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Lopez v. Astrue

April 1, 2010

RICHARD R. LOPEZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

DECISION AND ORDER DENYING PLAINTIFF'S SOCIAL SECURITY COMPLAINT (DOC. 1)

ORDER DIRECTING THE ENTRY OF JUDGMENT FOR DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF RICHARD R. LOPEZ

Plaintiff is proceeding with counsel with an action seeking judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying Plaintiff's applications of July 26, 2000, May 27, 2003, and July 14, 2000 (A.R. 153-55, 158-60, 3), made pursuant to Titles II and XVI of the Social Security Act for disability insurance benefits (DIB) and supplemental security income (SSI), in which Plaintiff alleged that he had been disabled since September 15, 1999, due to intermittent pain in the lower back, hip, and knee brought on by moving around and resulting in an inability to walk very well (A.R. 153-55, 194, 197, 3). The Court has subject matter jurisdiction pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g). 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 Lawrence J. O'Neill filed on February 10, 2009, 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) David E. Flierl, dated September 26, 2007 (A.R. 18-25), rendered after a hearing held on August 7, 2007 (A.R. 53-84), at which Plaintiff appeared and testified after choosing to do so without the assistance of an attorney or other representative (A.R. 18).

The Appeals Council denied Plaintiff's request for review of the ALJ's decision on March 21, 2008 (A.R. 7-9), and thereafter Plaintiff filed the complaint in this Court on October 14, 2008. Plaintiff's opening brief was filed on August 26, 2009; Defendant filed a brief on September 17, 2009; and Plaintiff filed a reply brief on September 28, 2009. The matter has been submitted without oral argument to the Magistrate Judge.

I. Standard and Scope of Review

A. Legal Standards

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).

B. The Scope of the Remand from the Appeals Council

As a result of prior proceedings on the application that is the basis for the instant proceeding, the pertinent period for a determination of disability by the ALJ in the decision before this Court was from Plaintiff's originally alleged date of onset, September 15, 1999, until January 1, 2006, the date on which the previous ALJ, with the later acquiescence of the Appeals Council, had already determined that Plaintiff became disabled.

The pertinent orders reflect this limited scope of adjudication. On May 16, 2006, in a decision made on Plaintiff's application, the other ALJ found that Plaintiff was disabled beginning on January 1, 2006, and the Appeals Council affirmed this finding on December 11, 2006. (A.R. 26-28.)

However, in the same document affirming the previous ALJ's finding of disability beginning in January 2006, the Appeals Council granted review of other parts of the ALJ's decision. Review was granted because Plaintiff established that his attorney representative had misled him concerning the law and/or facts pertinent to Plaintiff's date of onset and Plaintiff's last date of meeting disability earnings requirements for purposes of entitlement to DIB. Plaintiff had mistakenly amended his alleged date of onset, which had originally been September 15, 1999, to January 1, 2006; however, the record had shown that Plaintiff last met the disability earnings requirements for entitlement to DIB on September 30, 2003. Therefore, the result of Plaintiff's amending the onset date to January 2006 was to lose his benefits because the amended date of onset postdated Plaintiff's date last insured. (A.R. 27-28.)

The Appeals Council remanded the case to an ALJ for a hearing to permit Plaintiff to choose an alleged onset date and fully to present his case based on that onset date. The Appeals Council also specified that the ALJ was to consider the entire record and provide assessment regarding the medical impairments established by the medical evidence, which included certain impairments that had not been discussed or evaluated in the previous ALJ's decision (i.e., depression, alcoholism, and obesity); provide discussion and rationale for the conclusions reached regarding the specific limitations resulting from Plaintiff's impairments for the portion of the period at issue prior to January 1, 2006, and for the weight accorded to the medical opinions of record; address appropriately the credibility of Plaintiff's subjective complaints; and, as appropriate, obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the occupational base. (A.R. 28.)

III. 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 his or 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;*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 on the alleged date of onset, September 15, 1999, Plaintiff did not have a medically determinable severe impairment, but by September 30, 2003 (the date last insured), Plaintiff had a severe impairment of degenerative disc disease of the lumbar spine; his depressive symptoms and alcohol dependency were not severe. (A.R. 20-21.) Plaintiff had no impairment or combination thereof that met or medically equaled a listed impairment. (A.R. 21.)

The ALJ found that from September 2003 through December 31, 2005 (i.e., the last day before January 1, 2006), Plaintiff retained the residual functional capacity (RFC) to perform limited light work, occasionally lift up to twenty pounds, frequently lift and carry up to ten pounds, sit, stand, or walk for six hours in an eight-hour day with the usual breaks, and only occasionally stoop and crouch. (A.R. 21.)

The ALJ found that after January 1, 2006, Plaintiff had the RFC occasionally to lift up to twenty pounds, frequently lift and carry up to ten pounds, with no lifting from below waist level; sit, stand, or walk for six hours, but was precluded from climbing, bending, kneeling, crouching, and crawling, which vocational testimony established was equivalent to sedentary exertion. (A.R. 21.) Plaintiff could not perform any past relevant work, but after considering Plaintiff's age, high school education, ability to communicate in English, work experience, and RFC, the ALJ found that from September 2003 through January 1, 2006, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. (A.R. 23-24.) Accordingly, Plaintiff was not disabled at any time from September 15, 1999, through January 1, 2006, but became disabled on January 1, 2006, and has continued to be disabled through the date of decision. (A.R. 24.)

C. Plaintiff's Contentions

Plaintiff's sole contention that is expressly labeled as such in this proceeding is that the ALJ violated Social Security Ruling 83-20 and the law as established in this circuit by failing to obtain expert testimony to determine the date of onset of Plaintiff's disability. (Brief pp. 7-8.)

However, in the course of argument under that heading, Plaintiff challenges the ALJ's findings in light of the evidence in several respects. For example, Plaintiff contends that if the provision of a TENS unit to Plaintiff was dispositive, then the ALJ should have found disability in December 2005, when Dr. Santiago prescribed it for electro-stimulation; if use of a cane was critical, then the ALJ should have picked an earlier date because the record shows that Plaintiff used a cane on October 12, 2004, and for five or six years before 2005. (Brief p. 8.) Some of Plaintiff's arguments rest on a premise that the ALJ's reasoning was erroneous as a matter of law. Plaintiff also argues that the ALJ failed to state specific, legitimate reasons for rejecting the only inferences flowing from Dr. Santiago's opinion concerning Plaintiff's functionality in 2006, and thus the ALJ's conclusion concerning Plaintiff's RFC lacked the support of substantial evidence. (Brief p. 9.) These constitute challenges to the legal correctness and evidentiary support of the ALJ's findings concerning Plaintiff's RFC.

The Court will address all Plaintiff's arguments. Although proceedings in this Court are adversary proceedings, the Court notes that the administrative proceedings being reviewed are essentially investigatory in nature. See, Sims v. Apfel, 530 U.S. 103, 110-11 (2000). Plaintiff has already suffered delay due to an administrative remand and problems with counsel, and he proceeded without counsel below. Defendant's careful briefing responds with analysis of the law and evidence pertinent to all the arguments raised by Plaintiff. In view of the foregoing, and in the interest of providing adequate review, the Court will liberally construe counsel's statement of arguments in the opening brief and will not engage in any strict waiver analysis in this case.

IV. Medical Evidence

Records from Kevin D. Meeks, D.C., from 1997 through 1999 reveal frequent examination and ultrasound treatment. (A.R. 512-15.) Notes from 1999 reflect that Plaintiff complained of pain in the lower back on standing and sitting, and he displayed antalgic posture. (A.R. 501.) Plaintiff attended physical therapy five times in May 1999, and treatment notes reflect that Plaintiff reported ...


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