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Stard v. Astrue


August 14, 2009


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Plaintiff is proceeding in forma pauperis and with counsel with an action seeking judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying Plaintiff's applications protectively filed on September 24, 2004, for Disability Insurance benefits (DIB) and for Supplemental Security Income (SSI) benefits, in which he had claimed to have been disabled since September 1, 2002, due to severe depression, chemical dependency, bipolar, schizo-affective impairments, schizophrenia, hepatitis C, and nerve-damage to the right elbow, arm, and foot. (A.R. 18, 521-22, 538 105, 1247.) The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1), and pursuant to the order of Judge Anthony W. Ishii filed September 9, 2008, the matter has been assigned to the Magistrate Judge to conduct all further proceedings in this case, including entry of final judgment.

The decision under review is that of Social Security Administration (SSA) Administrative Law Judge (ALJ) Bert C. Hoffman, Jr., dated February 27, 2007 (A.R. 18-25), rendered after a hearing held December 20, 2006, at which Plaintiff appeared and testified with the assistance of counsel (A.R. 1252-90). The Appeals Council denied Plaintiff's request for review on June 19, 2008 (A.R. 11-13), and thereafter Plaintiff filed his complaint in this Court on July 23, 2008. Briefing commenced on April 27, 2009, and was completed with the filing of Defendant's brief on June 5, 2009. The matter has been submitted without oral argument to the undersigned Magistrate Judge.

I. Standard and Scope of Review

Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The Court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion; it may not simply isolate a portion of evidence that supports the decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

It is immaterial that the evidence would support a finding contrary to that reached by the Commissioner; the determination of the Commissioner as to a factual matter will stand if supported by substantial evidence because it is the Commissioner's job, and not the Court's, to resolve conflicts in the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th Cir. 1975).

In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must review the whole record and uphold the Commissioner's determination that the claimant is not disabled if the Commissioner applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If the Court concludes that the ALJ did not use the proper legal standard, the matter will be remanded to permit application of the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th Cir. 1987).

II. Disability

A. Legal Standards

In order to qualify for benefits, a claimant must establish that she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 1382c(a)(3)(A). A claimant must demonstrate a physical or mental impairment of such severity that the claimant is not only unable to do the claimant's previous work, but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden of establishing a disability is initially on the claimant, who must prove that the claimant is unable to return to his or her former type of work; the burden then shifts to the Commissioner to identify other jobs that the claimant is capable of performing considering the claimant's residual functional capacity, as well as her age, education and last fifteen years of work experience. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

The regulations provide that the ALJ must make specific sequential determinations in the process of evaluating a disability: 1) whether the applicant engaged in substantial gainful activity since the alleged date of the onset of the impairment, 20 C.F.R. § 404.1520 (1997);*fn1 2) whether solely on the basis of the medical evidence the claimed impairment is severe, that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities, 20 C.F.R. § 404.1520(c); 3) whether solely on the basis of medical evidence the impairment equals or exceeds in severity certain impairments described in Appendix I of the regulations, 20 C.F.R. § 404.1520(d); 4) whether the applicant has sufficient residual functional capacity, defined as what an individual can still do despite limitations, to perform the applicant's past work, 20 C.F.R. §§ 404.1520(e), 404.1545(a); and 5) whether on the basis of the applicant's age, education, work experience, and residual functional capacity, the applicant can perform any other gainful and substantial work within the economy, 20 C.F.R. § 404.1520(f).

With respect to SSI, the five-step evaluation process is essentially the same. See 20 C.F.R. § 416.920.

B. The ALJ's Findings

The ALJ found that Plaintiff had severe impairments of alcohol and cocaine dependency in intermittent remission, mood disorder, and status post-laceration to the first, second, and third fingers of the right hand; if Plaintiff stopped substance use, the remaining limitations would cause more than a minimal impact on the claimant's ability to perform basic work activities, and he would continue to have a severe impairment or combination of impairments. Regardless of Plaintiff's substance dependency, he did not have an impairment or combination thereof that met or medically equaled a listed impairment. If Plaintiff's drug and alcohol dependency were considered, his residual functional capacity (RFC) was to lift and carry up to twenty pounds occasionally, ten pounds frequently, and sit, stand, or walk for six hours in an eight-hour day, with only occasional use of the right hand forcefully to grasp or twist, perform rapid movement, or keyboard; mentally Plaintiff could understand, remember, and carry out simple instructions, but he would have difficulty with appropriate interpersonal behavior in a work setting, adhering to a work schedule, or meeting reasonable production goals. However, absent drug and alcohol dependency, the claimant would have the RFC to perform the same exertional activities with the same manipulative limitations, and he would have the mental capacity to understand, remember, and carry out simple instructions. (A.R. 21-22.) Plaintiff was unable to perform his past relevant work, but considering Plaintiff's age, education, work experience, and RFC, and assuming that Plaintiff stopped the substance abuse, Plaintiff could perform a significant number of jobs in the national economy. (A.R. 24-25.) The ALJ stated:

If the claimant stopped the substance abuse, he would not have the residual functional capacity to perform the full range of light work. However, the remaining additional limitations would have little or no effect on the occupational base of unskilled light work. At the earlier hearing, a vocational expert listed light unskilled jobs which would accommodate the claimant's right manipulative limitations, such as cashier, 76,000 jobs in California (Exhibit C-2A, p. 5). Consequently, a finding of "not disabled" is therefore appropriate under the framework of Medical-Vocational Rule 202.21. (A.R. 25.) The ALJ also expressly found that Plaintiff had not shown any substantial worsening of his condition since December 30, 1999, the date of the most recent, previous decision denying prior applications:

The claimant's prior applications alleged primarily mental impairments but earlier onset dates; they were denied initially, at reconsideration, and by hearing decisions dated May 29, 1998 and December 30, 1999 (Exhibits C-1A; C-2A). In both hearing decisions, the Administrative Law Judges found that the claimant had a residual functional capacity for light exertion with right handed manipulative limitations and a mental capacity for simple unskilled work. The Appeals Council denied review of the May 1998 hearing decision; the claimant did not request review of the December 1999 decision. Since the claimant did not file a request for review by the Appeals Council, the hearing decision of December 30, 1999 constitutes an ultimate finding on the claimant's non-disability through the date of the decision. The prior unfavorable hearing decisions create an ongoing presumption that the claimant continues to be "not disabled", which may be overcome by new evidence that the claimant's condition has worsened (AR 97-4(9); Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988)). After reviewing the record and testimony, I find that new evidence does not establish that the claimant's condition has substantially worsened since December 30, 1999, although the extent of his drug and alcohol dependency is clearer. (A.R. 18.)

III. Reasoning at Step Five

Plaintiff's sole contention is that the record does not support the ALJ's conclusion that Plaintiff could perform the position of cashier despite Plaintiff's limitation to understanding, remembering, and carrying out only simple instructions. (A.R. 22.)

Plaintiff points to specifications in the Dictionary of Occupational Titles (4th ed., 1991) (DOT), which require relatively advanced educational and reasoning processes for the position of cashier that Plaintiff contends are precluded by Plaintiff's limitation to simple, repetitive instructions.

Plaintiff advances the established principle that an ALJ may not rely on a vocational expert's testimony regarding the requirements of positions which conflict with the Dictionary of Occupational Titles (4th ed. 1992 rev.) (DOT) unless the ALJ first affirmatively inquires whether the testimony conflicts with the DOT. Soc. Sec. Ruling 00-4p; Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007). If there is a conflict, the ALJ must then determine whether the vocational expert's explanation for the conflict is reasonable and whether a basis exists for relying on the expert rather than the Dictionary of Occupational Titles. Id. at 1153-54. Where the record does not otherwise reflect the pertinent factors, then the ALJ's failure to follow the protocol set forth in Soc. Sec. Ruling 00-4p will result in a remand for the appropriate analysis by the ALJ. Id.

However, application of this rule proceeds in the context of the previous ALJ's findings, which must be given due respect. It is recognized that final findings of non-disability made by an administrative law judge require a claimant who reapplies to prove changed circumstances to overcome a presumption of continuing non-disability. Chavez v. Bowen, 844 F.2d at 693-94 (finding that a change in age status was a changed circumstance that precluded application of res judicata to a first ALJ's ultimate finding of non-disability, recognizing some res judicata consideration to the first ALJ's findings concerning RFC, education, and work experience, and remanding for determination of a factor [transferable work skills] needed to determine disability in light of the prior findings and the new advanced age factor). A finding of non-disability creates a presumption that the claimant is capable of substantial gainful employment which may be overcome if the claimant proves the existence of changed circumstances that would establish disability. Light v. Social Security Administration, 119 F.3d 789, 791-92 (9th Cir. 1997). Changed circumstances can refer not only to a demonstration of a worsening impairment, but also to a change in age category, or the raising of a new issue such as a new impairment not previously considered. Lester v. Chater, 81 F.3d 821, 827-28 (9th Cir. 1996).

Here, because Plaintiff was found not disabled in the prior decision, there is a continuing presumption of non-disability that Plaintiff must overcome by proving changed circumstances, such as a greater disability. Chavez v. Bowen, 844 F.2d 691, 693-94 (9th Cir. 1988).

With respect to mental impairments, the previous ALJ found severe impairments that included a history of polysubstance abuse, severe depression, possible PTSD, and impulse/adjustment disorder. (A.R. 469.) In the decision under review here, ALJ Hoffman found fewer but the same or related and less severe impairments, namely, alcohol and cocaine dependency in intermittent remission, and mood disorder. (A.R. 21.) There was no increase in the impairments claimed.

Plaintiff does not challenge the ALJ's characterization and/or evaluation of the medical evidence or the vocational record. The ALJ here concluded that there was not any worsening of Plaintiff's right hand weakness that resulted from a deep cut in 1988, with no findings noted in 2006. (A.R. 22.) The ALJ also found that the medical record reflected continued mood disorder with alcohol and cocaine dependency that exacerbated his symptoms, detoxification and treatment in the middle to late 1990's, return to treatment in July 2003 with some lapses but staying clean and sober through the date of the hearing, and overall VA records that demonstrated that when Plaintiff maintained sobriety and took his medications, he had adequate mental and social abilities. (A.R. 22-23.) The ALJ noted that Plaintiff worked as a truck driver in 2000 through 2002, a security guard in 2005-06, and a volunteer for the VA in 2004 and 2005 as part of rehabilitation. (A.R. 23.)

Plaintiff was represented by counsel in the previous administrative proceeding that resulted in the 1999 decision. (A.R. 468.) Plaintiff does not point to any procedural unfairness in the earlier proceedings.

In summary, there do not appear to be any circumstances that would warrant deviation from the pertinent authority concerning principles of res judicata and application of presumptions resulting from previous, final administrative determinations. The Court concludes that the ALJ's application of the Chavez presumption was appropriate, and thus Plaintiff's non-disability is presumed pursuant to the decision after hearing of the ALJ in December 1999, which became final upon Plaintiff's failure to seek review.

Plaintiff's challenge to the sufficiency of the evidence to support the conclusion that Plaintiff could perform the position of cashier must fail. The record does reflect that the characteristics of the position of cashier considered by the vocational expert (VE) who testified at the earlier hearing might well have conflicted with job characteristics as listed in the DOT. However, the ALJ in the earlier decision expressly relied on the opinion of the VE and wrote the following concerning the hypothetical question presented to the vocational expert at the hearing held on that application:

The question was as follows:

Assume a person with the claimant's education and job experience, of his age, who can perform simple, repetitive work involving lifting and carrying 20 pounds occasionally and 10 pounds frequently. Can such a person perform the claimant's past relevant work? The answer was no. Are there other jobs such a person can perform? The answer was yes: cashier and janitor, to name two, of which jobs there are approximately 76,000 cashier jobs in California the hypothetical person could perform and 9,000 light janitorial jobs in California.

Thus, the vocational expert said there are jobs other than the claimant's past relevant work which he can now perform. I find that are enough such jobs to constitute a significant number. (A.R. 470.) The 1999 decision predated Soc. Sec. Ruling 00-4p, and the full record of the 1999 decision is not before this Court; the administrative transcript before the Court contains the 1999 decision but not the transcript of the oral testimony given at the hearing preceding the 1999 decision. The decision shows that the ALJ gave the VE specific, articulated limitations, including the limitations to simple, repetitive work, based on the opinions of specified medical sources, and the VE responded not in terms of the DOT, but rather in terms of specific positions in a specified local market (California), and specific levels of performance ("light janitorial"), as distinct from some more generalized descriptions. The record presents a basis for an inference that the VE was responding based on personal experience and expertise, a reliable basis for a deviation from generic DOT descriptions.

At one time Plaintiff had the opportunity to challenge the adequacy of the record to support the findings of the ALJ in 1999 at step five, but Plaintiff has failed to demonstrate that Plaintiff timely sought review of those findings. Those findings became final. To require now affirmative record evidence to establish the reliability of the expert's testimony in the previous proceeding would result in a failure to accord the appropriate presumptive effect to the ALJ's findings.

The ALJ in the present case proceeded pursuant to correct legal standards, and his conclusion that Plaintiff had not demonstrated changed circumstances had the support of substantial evidence in the record.

IV. Disposition

Based on the foregoing, the Court concludes that the ALJ's decision was supported by substantial evidence in the record as a whole and was based on the application of correct legal standards.

Accordingly, the Court AFFIRMS the administrative decision of the Defendant Commissioner of Social Security and DENIES Plaintiff's Social Security complaint.

The Clerk of the Court IS DIRECTED to enter judgment for Defendant Michael J. Astrue, Commissioner of Social Security, and against Plaintiff John A. Stard, Jr.


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