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Face v. Astrue

August 26, 2010

MARK FACE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff filed a Complaint on August 13, 2009, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for disability insurance benefits ("DIB"). On November 18, 2009, the parties consented to proceed before the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The parties filed a Joint Stipulation on March 11, 2010, in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits or, in the alternative, remanding the matter for further administrative proceedings; and defendant seeks an order affirming the Commissioner's decision. The Court has taken the parties' Joint Stipulation under submission without oral argument.

SUMMARY OF ADMINISTRATIVE PROCEEDINGS

On January 31, 2002, plaintiff filed an application for a period of disability and DIB, alleging a disability onset date of May 10, 2001, due to diabetes, high blood pressure, and depression. (Administrative Record ("A.R.") 72-74, 90.) Plaintiff has past relevant work as a truck driver and school bus driver. (A.R. 100.)

The Commissioner denied plaintiff's application initially and upon reconsideration. (A.R. 47-50, 52-55.) On September 4, 2003, plaintiff, who was represented by counsel, testified at a hearing before Administrative Law Judge F. Keith Varni ("ALJ Varni"). (A.R. 27-44.) Joseph Mooney, a vocational expert, also testified. (A.R. 40-42.) On September 24, 2003, ALJ Varni denied plaintiff's application. (A.R. 9-14.) The Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision. (A.R. 3-4.)

On October 24, 2003, plaintiff filed a subsequent application for a period of disability and DIB.*fn1 (A.R. 209, 258.) On April 3, 2004, the application was granted, and the Commissioner determined that plaintiff has been disabled since September 24, 2003. (A.R. 452-55.)

On April 14, 2004, Plaintiff initiated a civil action in the United States District Court, Central District of California to appeal the September 24, 2003 decision, which had become the final decision of the Commissioner. (A.R. 240.) On July 20, 2005, this Court reversed the Commissioner's decision on the basis that ALJ Varni failed to provide specific and legitimate reasons for rejecting the opinion of Dr. Theron Wells and needed to further develop the record by re-contacting Dr. Wells. (A.R. 240-54.) This Court remanded the matter for further proceedings consistent with its decision. (A.R. 255.) On February 28, 2006, the Appeals Council remanded the case for further proceedings consistent with the Court Order and, noting the grant of plaintiff's subsequent claim for disability, limited the proceedings to prior to September 25, 2003. (A.R. 258-59.) The Appeals Council directed the Administrative Law Judge to give further consideration to Dr. Wells' opinion and stated that he may contact Dr. Wells. (Id.)

On September 5, 2006, plaintiff testified at a hearing before ALJ Varni. (A.R. 360-65.) Sandra Fioretti, a vocational expert, also testified. (A.R. 361-64.) On October 27, 2006, without having re-contacted Dr. Wells, ALJ Varni again denied plaintiff's application. (A.R. 209-18.) On January 11, 2007, plaintiff initiated a civil action in this district to appeal the October 27, 2006, decision. (A.R. 489-90.) On July 26, 2007, the parties executed a Stipulation to Voluntary Remand Pursuant to Sentence Four of 42 U.S.C. § 405(g) and to Entry of Judgment. Pursuant to the parties' Stipulation, the Court entered judgment on July 26, 2007, ordering that, on remand, the Administrative Law Judge was to re-contact and/or contact plaintiff's treating physicians, namely, Dr. Wells, Dr. William H. Cherry, and Dr. Peterson (the "Stipulated Remand Order"). (A.R. 487-88.)

On February 13, 2009, plaintiff testified at a hearing before Administrative Law Judge Lowell Fortune ("ALJ" or "ALJ Fortune"). (A.R. 387-404.) Troy Scott, a vocational expert, also testified. (A.R. 401-03.) On April 8, 2009, the ALJ denied plaintiff's application. (A.R. 369-81.)

SUMMARY OF ADMINISTRATIVE DECISION

The ALJ found that plaintiff did not engage in substantial gainful activity from May 10, 2001, the alleged onset date, through September 24, 2003. (A.R. 372, 381.) The ALJ determined that plaintiff had the following severe impairments: insulin-dependent diabetes mellitus; adjustment disorder; and methamphetamine abuse. (A.R. 372.) The impairments, including the substance abuse disorder, met sections 12.04 and 12.09 of 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) The ALJ determined, however, that if plaintiff stopped the substance abuse, his impairments would not have met or equaled any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (A.R. 373.)

The ALJ determined that had plaintiff stopped the substance abuse during the relevant period, he would have had the residual functional capacity ("RFC") to: perform medium work as defined in 20 [C.F.R.] 404.1567(c) except [plaintiff] was precluded from climbing ladders, ropes, and scaffolds, and he should avoid working around unprotected heights or pools of water. [Plaintiff] was able to perform simple, repetitive, nonpublic tasks with no safety operations or responsibility for [t]he safety of others.

(A.R. 374.) The ALJ found that plaintiff was unable to perform his past relevant work. (A.R. 380.) Having considered plaintiff's age, education, work experience, and RFC, as well as relied on testimony from the vocational expert, the ALJ found that jobs existed in the national economy that plaintiff could have performed if he stopped his substance abuse, including cleaner, dishwasher, and handpacker. (A.R. 380-81.)

Accordingly, the ALJ concluded that plaintiff, had he stopped the substance abuse, was not disabled, as defined in the Social Security Act, from May 10, ...


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