The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's amended motion for summary judgment (Doc. 23) and defendant's cross-motion for summary judgment (Doc. 24).
Plaintiff applied for social security benefits on May 31, 2001. In the application, plaintiff claims that disability began on January 22, 1996, and is caused by a combination of: "my legs, back, stomach hurts all the time; can't walk far or stand long; obese; hard breathing; constance [sic] pain in my body; vision problems." In her motion for summary judgment, plaintiff alleges disability due to: "morbid obesity, degenerative joint disease in the back and knees, gastroesophageal reflux disease (GERD), hyperlipidemia, diabetes, chronic pain, anxiety, and depression." Plaintiff's claim was initially denied.
First Administrative Hearing
Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on October 10, 2002, before Administrative Law Judge ("ALJ") Antonio Acevedo-Torres. In a November 12, 2002, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:
1. Plaintiff has the following severe impairments: obesity/deconditioned state, hyperglycemia by report without objective evidence of associated end-organ damage, and musculoskeletal complaints likely related to her obesity;
2. Plaintiff does not have a severe psychological impairment; 3. Plaintiff's impairments do not meet or medically equal an impairments listed in the regulations.
4. Plaintiff's allegations regarding limitations are not credible;
5. Plaintiff has the residual functional capacity for light work; and
6. Plaintiff can perform her past relevant work as a restaurant cook.
After the Appeals Council declined review on February 14, 2003, plaintiff appealed. The parties stipulated to a voluntary remand with the following instructions:
Upon remand, the Appeals Council will remand this case to an Administrative Law Judge ("ALJ"), and direct him or her to re-evaluate the credibility of Plaintiff's subjective complaints in accordance with the regulations and Social Security Ruling ("SSR") 96-7p, and to consider the third-party evidence provided by Plaintiff's friend and niece. The ALJ will also be directed to consider the combined effects of Plaintiff's obesity with her other impairments in determining whether she has a listing-level impairment or combination of impairments, and determine what, if any , functional limitations resulted from Plaintiff's obesity in accordance with SSR 02-01p.
Second Administrative Hearing A second administrative hearing was held on April 8, 2005, before the same ALJ.
In a May 23, 2005, decision, the ALJ again concluded that plaintiff was not disabled based on the following relevant findings:
1. The medical evidence establishes that plaintiff has severe obesity, osteoarthritis, diabetes mellitus, hypertension, and varicose veins;
2. Plaintiff does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations;
3. Plaintiff's testimony regarding her limitations are not credible because they are not shown to be a reasonable consequence of her medically determinable impairments;
4. Plaintiff has the residual functional capacity to perform all work except for work involving lifting and carrying more than 10 pounds frequently or 20 pounds occasionally; and
5. Plaintiff can perform her past relevant work as a restaurant cook and manager.
The Appeals Council declined review on January 30, 2006, and plaintiff filed a second appeal. Once again, the parties stipulated to a remand, this time with the following instructions:
Upon remand, the Office of Disability Adjudication and Review will remand this case to a different Administrative Law Judge (ALJ) to reevaluate the third-party statements and Plaintiff's subjective complaints in accordance with the regulations and SSR 96-7p. The ALJ will also reevaluate Plaintiff's mental impairment. The ALJ will also develop the record as to Plaintiff's past work to determine if it constitutes past relevant work and, if so, make findings as to the physical and mental demands of the work and determine if Plaintiff can perform the work. If it is found that Plaintiff does not have past relevant work or is unable to perform her past relevant work, the ALJ will proceed to the fifth step of the sequential evaluation. Supplemental evidence from a vocational expert should be obtained.
In assigning the case to a new ALJ pursuant to the second stipulated remand, the Appeals Council first noted that plaintiff had been found disabled on a subsequent application:
The Administrative Law Judge found that based on the application filed May 31, 2001, the claimant is not disabled at any time through the date of his decision of May 23, 2005. The claimant had filed a subsequent application on November 23, 2003. The claimant was found disabled beginning November 1, 2003, in a determination dated June 30, 2004. The Administrative Law Judge's decision conflicts with the determination dated June 30, 2004. The Administrative Law Judge found that the claimant was not disabled at any time through the date of his decision without consideration of the earlier determination and without reopening the determination. The determination dated June 30, 2004, is now more than two years in the past and cannot be reopened. Therefore, the determination dated June 30, 2004, has become final and its finding that the claimant became disabled November 1, 2003, must be affirmed.
As to the relevant closed period between May 31, 2001, and October 31, 2003, the Appeals Council stated as follows:
The Administrative Law Judge's decision did not comply with the prior Court order to reevaluate the third party evidence provided by the claimant's friend and niece, therefore, the Administrative Law Judge must reevaluate the third party evidence and the claimant's subjective complaints. The letter from the niece was apparently misplaced and was not in the record considered by the Administrative Law Judge upon remand. A copy of the letter has been added to the record (p. 92) and should be evaluated by the Administrative Law Judge.
The Administrative Law Judge indicated that he gave considerable weight to the third party questionnaire completed by the claimant's friend (pp. 197-198, 259-264). In doing so, the Administrative Law Judge noted only the positive aspects of the statements and did not evaluate the part of the statement which dealt with the claimant's mental status. Therefore, further consideration and evaluation of the claimant's friend's statements are warranted.
The Administrative Law Judge found that the claimant's depression is not severe. The Administrative Law Judge noted the May 31, 2004, mental status examination by Dr. Surulinathan, but did not acknowledge that Dr. Surulinathan indicated that the claimant "may be" able to perform work activities and "may be" able to complete a normal workday and "may be" able to deal with the usual stress. In its most recent determination, the State Agency found that the claimant's depression was severe and it limited her to simple repetitive tasks with some decreased contact with the public and co-workers. The Administrative Law Judge did not consider the State Agency determination or Dr. Surulinathan's statements. Therefore, further evaluation of the claimant's depression is necessary.
The Administrative Law Judge found that the claimant can perform her past work as a restaurant cook and manager. The claimant's prior work at her husband's restaurant was sporadic and she had special accommodations (her husband bought her a stool to sit on while cooking). It is questionable whether this work was substantial gainful activity. The claimant indicated that she did not work an 8 hour day as the restaurant manager. Thus, this work may not have been performed at the substantial gainful activity level. In addition, the Administrative Law Judge did not make findings as to the physical and mental demands of the claimant's past work.
Third Administrative Hearing
A third administrative hearing was held on October 25, 2007, before ALJ L. Kalei Fong. In a January 22, 2008, decision, the ALJ found that plaintiff was not disabled during the closed period between May 31, 2001, and October 31, 2003, based on the following relevant findings:
1. Plaintiff has the following severe impairments: obesity, osteoarthritis, and varicose veins;
2. Plaintiff does not have a severe mental impairment;
3. Plaintiff does not have an impairment or combination of impairments which meet or medically equal an impairment listed in the regulations;
4. During the closed period, plaintiff had the residual functional capacity to lift/carry 10 pounds frequently and 20 pounds occasionally, stand/sit/walk for 6 of 8 hours, and occasional climbing, bending, stooping, kneeling, crouching, and crawling; and
5. Considering plaintiff's age, education, work experience, and residual functional capacity, and based on vocational expert testimony, there are jobs that exist in significant numbers in the national economy that plaintiff can perform.
After the Appeals Council denied further review on April 3, 2008, this appeal followed.
II. SUMMARY OF THE EVIDENCE
The certified administrative record ("CAR") contains the following evidence, summarized chronologically below:*fn1
October 8, 1999 -- Plaintiff's treating physician, Dr. Z. Zarrabi, M.D., prepared a progress note. Dr. Zarrabi notes complaints of mood swings and inability to sleep. To the extent the progress note records objective findings on physical or mental status examination, the progress note is illegible. It is apparent, however, that plaintiff was prescribed Mallaril in response to her complaints.
June 25, 2001 -- Plaintiff submitted a daily activities questionnaire. When asked to describe her typical day, plaintiff stated: "Get up, sit on couch, watch TV, crochet or latch hook, do laundry -- put stuff in washer, then dryer." She also stated that she has difficulty sleeping due to "my stomach, urine a lot." She stated that she does not take any medication to sleep. Plaintiff added that she does not need assistance with personal needs such as dressing herself because "I stay in night dresses so I don't need help." As to meals, plaintiff stated that her son or friend prepare meals, though she does so "sometimes." Meals consist of simple things like salads, soups, or hot dogs. She stated she does not do any shopping because she "can't walk in stores." As to household chores, she stated she does some laundry and vacuuming but needs assistance completing these tasks due to back and leg pain and trouble breathing. For hobbies, plaintiff stated she does "crocheting, latch hook." She stated that when she watches television she tends to fall asleep for several minutes at a time. She does no reading.
As to social functioning, plaintiff stated that she only goes out for doctor appointments and to take her kids to and from school. When she goes out she drives a car. She stated she does not need any help traveling. Plaintiff also stated that she stays away from people because "I get too nervous and aggeraved [sic]." She stated she never visits with family or speaks with relatives on the phone, though she gave no reasons. Plaintiff stated that her children are dependent on her to "keep clothes clean, make sure they do homework, and be clean for school." Plaintiff stated that her impairments have changed her social life because she would "rather be alone or with my kids." She added that she does not like crowds.
Regarding other aspects of her functioning, plaintiff stated that she has problems concentrating due to forgetfulness. She also stated that she has difficulty following instructions due to an inability to concentrate and lack of patience. Plaintiff stated that she has trouble finishing tasks because of irritability, fatigue, and difficulty breathing. Plaintiff stated that her impairments keep her from working due to back and leg pain. She stated she needs to lay down most of the time. She stated that she had to shut down her business because "no body could be around me."
June 27, 2001 -- Plaintiff's friend, George Hurtt, submitted a third-party daily activities questionnaire concerning plaintiff's capabilities. Mr. Hurtt stated that plaintiff does not have regular sleeping hours and that she tires easily. He stated that she "tires out walking," but "does well" with personal hygiene. He added that plaintiff has trouble breathing. Mr. Hurtt stated that he does the shopping for plaintiff based on a list she provides, though he added that plaintiff pays her own bills and manages her own finances. He stated that irritability is common "due to pain & discomfort." Mr. Hurtt also stated that plaintiff takes care of her two children and "provides for their every need no matter how she feels." He also stated that ...