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Aida Barrios v. Astrue

September 28, 2010

AIDA BARRIOS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Aida Barrios ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for disability benefits pursuant to Title II of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Gary S. Austin, United States Magistrate Judge.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff protectively filed an application for disability insurance benefits on May 13, 2004, alleging disability beginning August 15, 2003, involving cellulitis, neuropathy and depression. (AR 86.) Plaintiff's application was denied initially, upon reconsideration, and by an Administrative Law Judge ("ALJ") following a hearing. (AR 55-60, 79-83, 86-91.)

On April 27, 2007, the Appeals Council granted Plaintiff's request for review of the ALJ's decision, pursuant to the substantial evidence provision of Title 20 of the Code of Federal Regulations section 416.1470, and ultimately remanded the case back to the ALJ. (AR 64-66.)

The Appeals Council Stated

The [ALJ] indicated that Dr. Damania concluded that the claimant can perform simple repetitive tasks. Actually, Dr. Damania concluded that the claimant can perform simple one and two step job instructions. Dr. Damania's conclusion that the claimant is limited to one and two step job instructions is more restrictive than the [ALJ]'s findings that the claimant can perform simple repetitive tasks. Although he found that the claimant can perform simple repetitive tasks, the [ALJ] did not evaluate the claimant's mental impairment and provide rationale as to how he reached the mental residual functional capacity found. Therefore, further consideration and evaluation of Dr. Damania's opinion and the claimants mental impairment are warranted.

(AR 65.) On remand, the Appeals Council directed the ALJ to: (1) give further consideration to the examining source opinion in accordance with Title 20 of the Code of Federal Regulations section 416.927 and Social Security Rulings ("SSR") 96-2p and 96-5p, and explain the weight given to such opinion evidence; (2) further evaluate the claimant's mental impairment in accordance to Title 20 of the Code of Federal Regulations section 416.920(a); (3) evaluate claimant's obesity pursuant to SSR 02-01p; and (4) obtain supplemental evidence from a vocational expert ("VE"). (AR 65-66.) The remand request directing the ALJ to obtain supplemental evidence from the VE specifically included instructions to: (a) clarify the effect of the assessed limitations on the claimant's occupational base; (b) frame the hypothetical questions to reflect the specific capacity/limitations established by the record as a whole; (c) ask the VE to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy; and (d) to identify any conflicts between the occupational evidence provided by the VE and the information in the Dictionary of Occupational Titles ("DOT") and its companion publication, the Selected Characteristics of Occupations before relying on evidence obtained from the VE. (AR 66.)

In accordance with the Appeals Council's remand instruction, on January 6, 2009, ALJ Michael J. Haubner held a hearing, and issued an order regarding benefits on February 4, 2009, finding Plaintiff had not been under a disability, as defined by the Social Security Act, since May 13, 2004. (AR 26.) On March 25, 2009, the Appeals Council denied review. (AR 6-8.)

Hearing Testimony of January 6, 2009

On January 6, 2009, in Fresno, California, ALJ Haubner held a second hearing in accordance with the directive from the Appeals Council. (AR 669-709.) Plaintiff's attorney, Geoffrey Hayden, was in attendance. (AR 670.) During the hearing, the ALJ elicited testimony from Plaintiff, VE Thomas Dachelet, and Plaintiff's daughter, Linda Gonzales. (AR 667-709.) The entire hearing testimony of January 6, 2009, was reviewed by the Court. Only those portions relevant to the issues on appeal are summarized below. Otherwise, the testimonial evidence will be referenced as necessary in this Court's decision.

Thomas Dachelet, Vocational Expert

VE Dachelet was initially requested by the ALJ to review the Plaintiff's work history and testify regarding Plaintiff's past relevant work. (AR 680). He determined that Plaintiff's work history did not include past relevant work, and the ALJ concurred, finding that Plaintiff's earnings record was consistent with the VE's opinion. Id. Having identified that Plaintiff had no past relevant work, the ALJ moved on to proposing several hypotheticals to the VE. Id.

First, the VE was asked to assume that for all the hypotheticals posed, the hypothetical worker would be identical to Plaintiff in age, education, language and experience background. Id. The ALJ then posed his first hypothetical, and asked the VE if this first hypothetical person could do other work assuming that the person: could lift and carry twenty pounds occasionally, ten pounds frequently; could stand and walk at least two hours out of eight; could sit six hours out of eight; could push and pull with the upper extremities without limitation, but had limited ability to do so with the lower extremities; should avoid foot controls with the left lower extremity; could never use ladders, ropes, or scaffolds; could occasionally climb ramps and stairs; and could occasionally balance, stoop, kneel, crouch, and crawl. (AR 680-681.) The VE responded that given the stand/walk limitation of only two hours out of eight total, "I'd drop the full world of sedentary unskilled, Your Honor." (AR 681.) Given this, the ALJ then asked "[s]o, the GRID's apply for that?" Id. "Yes," responded the VE. Id.

The ALJ then proposed a second hypothetical, in which the hypothetical person was restricted to the following exertional limitations: the individual could lift and carry twenty pounds occasionally and frequently; could stand and walk at least two hours out of eight; could push and pull without limitation; and could occasionally climb, balance, stoop, kneel, crouch, and crawl. (AR 681.) Considering these limitations, the VE stated "[w]ell, it's the same response to hypothetical one, Your Honor." Id.

The third hypothetical proposed by the ALJ was based on the opinion of internist Steven Stoliz, M.D. (AR 681-682.) In this hypothetical, the VE was asked to assume the hypothetical individual: could lift up to ten pounds, but could not carry ten pounds due to difficulty walking; could sit without restriction; stand and/or walk thirty minutes at a time before needing to take a short rest break, and cumulatively do so for four hours out of an eight-hour day; did not require a cane to ambulate; could use her hands without restriction; could use her right foot for operation of foot controls, but could not use her left foot to do so; could occasionally climb stairs and ramps, but not ladders or scaffolds; ...


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