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Ayala v. Astrue

July 16, 2010


The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge


On May 8, 2009, Milagro Ayala ("Plaintiff") filed a Complaint seeking review of the decision by the Commissioner of the Social Security Administration ("Commissioner") denying in part Plaintiff's application under Title II of the Social Security Act for Social Security Disability Insurance benefits ("SSDI"). On July 27, 2009, the Commissioner filed an Answer to the Complaint. On November 12, 2009, the parties filed a Joint Stipulation ("JS") setting forth their positions and the issues in dispute.

Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before the Magistrate Judge. The matter is now ready for decision. After reviewing the pleadings, transcripts, and administrative record ("AR"), the Court concludes that the Commissioner's decision should be affirmed.


Plaintiff was born on April 3, 1950 (AR 149), and she was 53 years old at the time of her alleged disability onset date of May 28, 2003. (See AR 29.) Plaintiff has past relevant work at McDonald's as a fast food cook, a fast food worker, and a janitor; and Plaintiff has also worked at another job as a packer. (See AR 40, 351-52). Plaintiff has not engaged in substantial gainful activity since her alleged onset date. (AR 29.) On April 3, 2005, the plaintiff turned 55 years old; and the Administrative Law Judge ("ALJ") noted that her age category changed from an individual "closely approaching advance age" to an individual of "advanced age" on that date. (AR 40, citing 20 C.F.R. § 404.1563.)

On June 28, 2004, Plaintiff filed her application for SSDI benefits. (See AR 119-41.) Plaintiff claimed that she was disabled due to a back condition, injuries to both knees, diabetes, high blood pressure, a heart condition, and high cholesterol. (AR 143.)

On September 20, 2005, a hearing was held before an ALJ, and a Vocational Expert ("VE") testified at that hearing. (See AR 52, 339-369.) On January 19, 2006, the ALJ issued a decision finding that Plaintiff was disabled, stating that "[b]ased on the claimant's age on April 3, 2005, the relevant Medical-Vocational rule as of April 3, 2005 is 202.02, directing a finding of 'disabled.'"*fn1 (AR 60.) However, the ALJ noted that the VE testified that prior to that date Plaintiff could perform other unskilled work at a modified light exertional level with the help of a stool that would allow Plaintiff to sit for up 6 hours a day, such as a cashier, as described in the Dictionary of Occupational Titles ("DOT") no. 211.462-010, or a counter clerk, DOT no. 249.366-010.*fn2 (AR 58-59, 354-355.)

Plaintiff appealed the ALJ's decision to the Social Security Administration's Appeals Council; and on March 29, 2007, the Appeals Council issued an "Affirmation and Order," directing that the case be remanded to the ALJ "on the issue of disability before April 3, 2005." (AR 91-93.) In particular, the Appeals Council directed the ALJ to consider on remand the opinions of Dr. Eric Fromer, a chiropractor who had treated Plaintiff; to evaluate further Plaintiff's obesity and subjective complaints pursuant to the Social Security Regulations ("SSRs"); to consider further Plaintiff's maximum Residual Functional Capacity ("RFC"); and, if warranted by the expanded record, to obtain testimony from a Vocational Expert ("VE") as to whether Plaintiff has acquired any skills that are transferable to other occupations under the guidelines in the SSRs.*fn3 *fn4 (AR 91-93.)

On September 25, 2007, another hearing was held before the same ALJ who conducted the first hearing. (See AR 370-391.) A new VE apparently was present at that second hearing but did not testify. (See AR 370.) On October 4, 2007, the ALJ issued a decision on the remanded case, finding once again that Plaintiff was not disabled before April 3, 2005. (See AR 27-42.) The ALJ found that Plaintiff had the following severe impairments: "mild meniscal degenerative changes of the right knee, mild degenerative changes of the back, diabetes mellitus, and obesity (20 C.F.R. [§] 404.1520(c))." (AR 29.) In light of these impairments, the ALJ found that Plaintiff could not perform her past relevant work. (AR 40.) However, the ALJ found that Plaintiff retained the RFC to perform work at the "light exertional level, with additional limitations," stating "[t]his may involve lifting and/or carrying 20 pounds occasionally and 10 pounds frequently, standing and/or walking for up to 2 hours in an 8-hour workday, and sitting for up to 6 hours in an 8-hour workday." (AR 37.) The ALJ noted that Plaintiff was 53 years old on the alleged disability onset date, May 15, 2003, and a person of that age was defined as an individual "closely approaching advanced age" under the grids. (AR 40.) Based on the facts as the ALJ presented them to the VE at the first hearing, the ALJ again relied on the VE's opinion that, given Plaintiff's age, education, work experience, and RFC, Plaintiff "would have been able to perform the requirements of representative occupations such as that of a cashier, DOT section 211.462-010, light exertion, with a[n] SVP rating of 2, 13,000 jobs available locally and 250,000 jobs available nationally; or a counter clerk, DOT section 249.366-010, light exertion, with a[n] SVP rating of 2, 1,500 jobs available locally and 25,000 jobs available nationally." (See AR 41, 354-55.) The ALJ's decision also noted that, pursuant to SSR 00-4p, the VE's testimony was consistent with the information contained in the DOT. (AR 41.)


As reflected in the Joint Stipulation, Plaintiff raises the following disputed issue as a ground for reversal or remand of the ALJ's decision:

1. Whether the ALJ properly denied the Plaintiff's application at step five of the sequential evaluation (20 C.F.R. § 416.920), where the ALJ found that Plaintiff has the RFC for light work "with additional limitations," and where the VE testified that plaintiff could perform the jobs of cashier or counter clerk, classified as light work in the DOT, with the help of a stool to sit 6 hours a day; or whether the VE's modification of these lights jobs effectively reduced them to sedentary jobs, which under the grids would direct a finding of disabled. (See JS at 3 et seq.)


Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision to determine whether the ALJ'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." Saelee v. Chater, 94 ...

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