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Aspen Holliday v. Astrue

March 24, 2010

ASPEN HOLLIDAY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Oswald Parada United States Magistrate Judge

MEMORANDUM OPINION; ORDER

The Court now rules as follows with respect to the disputed issues listed in*fn1 the Joint Stipulation ("JS").*fn2

I. DISPUTED ISSUES

As reflected in the Joint Stipulation, the disputed issues which Plaintiff raises as the grounds for reversal and/or remand are as follows:

1. Whether the Administrative Law Judge ("ALJ") complied with the Appeals Council remand order to properly consider the lay witness statement;

2. Whether the ALJ complied with the Appeals Council remand order to properly consider Dr. Afghan's opinion;

3. Whether the ALJ complied with the Appeals Council remand order to properly consider Dr. Quion's opinion;

4. Whether the ALJ complied with the Appeals Council remand order to properly consider Plaintiff's residual functional capacity ("RFC");

5. Whether the ALJ posed a complete hypothetical to the vocational expert ("VE"); and

6. Whether the ALJ properly held that Plaintiff can perform the job of mail clerk, library page, and cleaner.

(JS at 2-3.)

II. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed. 2d 842 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).

III. DISCUSSION

A. Background and ALJ Decisions

On February 22, 2007, ALJ F. Keith Varni rendered an unfavorable decision on Plaintiff's application for disability and disability insurance benefits allegedly beginning on May 1, 2002 ("2007 Decision"). Plaintiff filed a civil action in this Court, entitled Holliday v. Astrue, No. 07-1075-OP. The parties stipulated to a remand of that action. (No. CV 07-1075-OP, Dkt. No. 12.)

On May 6, 2008, the Appeals Council remanded the case for further proceedings consistent with the remand order of this Court. (Administrative Record ("AR") at 322-24.) The Appeals Council specifically noted:

[The ALJ] did not give adequate consideration to medical evidence, including opinion, evidence from the claimant's treating physicians. Although the decision contains mention of treating psychiatrist Dr. Afghan's treatment notes, there is no mention of the various certifications he made concerning periods he indicated the claimant was unable to work or, from those opinions from Dr. Agnes Quion, a general practitioner. While Dr. Quion's opinion was addressed in the hearing decision as it appears in Tr. 250-251, the Judge apparently identified Dr. Quion [as] Dr. Olguin (Tr. 18). . . . [¶] In addition, the hearing decision contains no mention of the claimant's allegations of vomiting and excessive bowel movements or the effect of these symptoms, if supported by the record, on her ability to perform past relevant work as a cashier. Further consideration of these allegations as well as testimony and statements from third parties (Tr. 296-298 and 90-98) is also necessary. (AR at 322 (citations omitted).)

The Appeals Council directed the ALJ to: (1) obtain additional evidence concerning Plaintiff's mental health impairments in order to complete the administrative record; (2) further evaluate Plaintiff's mental impairment in accordance with the "special technique described in 20 CFR 404.1520a"; (3) further evaluate Plaintiff's subjective complaints and provide rationale in accordance with the disability regulations pertaining to evaluation of symptoms; (4) give further consideration to Plaintiff's RFC during the entire period at issue; and (5) if warranted by the expanded record, obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the occupational base. (Id. at 323.)

On January 26, 2009, Plaintiff appeared and testified at a hearing, again before ALJ Varni. (Id. at 356-77.) On March 31, 2009, an unfavorable decision issued ("2009 Decision"). (Id. at 303-13.) Plaintiff did not seek Appeals Council review of the 2009 Decision. (Id. at 300-02.)

In his 2009 Decision, the ALJ found that Plaintiff had the severe impairments of musculoskeletal disorder with residual pain; diabetes; obesity; and agoraphobia and panic disorder. (Id. at 305.) He found Plaintiff had the RFC to perform medium work and could occasionally lift and/or carry fifty pounds and frequently twenty-five pounds; could stand and/or walk six hours in an eight-hour work day and sit for six hours; could frequently walk on uneven terrain, climb ladders, or work at heights; could frequently bend, stoop, kneel, crawl and crouch; was precluded from working with heavy moving machinery, and was limited to non-public, routine, repetitive, entry-level work with only superficial contact with co-workers and supervisors. (Id. at 307.) The ALJ concluded Plaintiff could not perform her past relevant work but that there ...


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