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Darryl D. Jenkins v. Michael J. Astrue

January 27, 2011

DARRYL D. JENKINS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSION OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Introduction and Summary

Plaintiff, a presently fifty-six (almost 57) year old applicant*fn1 for Supplemental Security Income (Title XVI), suffers from a combination of spine and mental/emotional ailments. After careful review of the well-briefed positions, the court concludes that the case must be remanded for further work-up of the vocational expert.

Facts

The ALJ's formal findings are as follows:

1. The claimant has not engaged in substantial gainful activity since January 18, 2006, the application date (20 CFR 416.920(b) and 416.971 et seq.).

2. The claimanat has the following severe impairments: lumbar degenerative disc disease, mild degenerative cervical changes, adjustment Disorder with Anxiety and Depressed Moods, alcohol Dependence in remission with rule out substance abuse, NOS, tension headaches, left great toe degenerative changes, and right popliteal knee cyst (20 CFR 416.920(c)).

Issues

1. Whether the ALJ improperly failed to accord proper weight to the treating physician's opinion;

2. Whether the ALJ's rejection of mental limitations posed by a State Agency physician was appropriate;*fn2

3. Whether the ALJ properly rejected the testimony of plaintiff and third party witness concerning plaintiff's limitations;

4. Whether the ALJ relied on the vocational expert (VE) response to an improperly formulated hypothetical;

5. Whether the jobs which the VE identified as being able to be performed by plaintiff were consistent with the Dictionary of Occupational Titles.

The ALJ identified an irrelevant/ spurious "severe impairment" -- "alcohol Dependence in remission with rule out substance abuse." The identification is irrelevant in that "alcohol dependence in remission," cannot by definition have a present limitation on plaintiff's ability to work because it is in remission. The identified impairment is also spurious in that the ALJ does not analyze "rule out substance abuse" (overuse of prescription drugs) as an impairment at all pursuant to the required analysis set forth in Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001), but rather utilizes the alleged possible substance abuse as an adverse factor to plaintiff's credibility. The undersigned will not consider this asserted non-ailment as either subject to the sequential analysis pursuant to Bustamante, nor will the undersigned consider it adversely vis-a-vis plaintiff's credibility.

Discussion

A. Legal Standards

Although review of Social Security*fn3 administrative law judge decisions are supposed to be affirmed if substantial evidence supports the findings, the undersigned will not set forth the usual "substantial evidence" standard, as that standard has been often replaced in case law with finely tuned standards which apply to discrete issues in Social Security practice, and define the standard in terms which do not include the phrase: "substantial evidence." The precise, applicable standard will be given in each section. However, it is useful to set forth the sequential analysis parameters which define where an error may occur in a Social Security adjudication.

Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income is paid to disabled persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability, in part, as an "inability to engage in any substantial gainful activity" due to "a medically determinable physical or mental impairment. . . ." 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A parallel five-step sequential evaluation governs eligibility for benefits under both programs. See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287 (1987). The following summarizes the sequential evaluation:

Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.

Step two: Does the claimant have a "severe" impairment?

If so, proceed to step three. If not, then a finding of not disabled is appropriate.

Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined disabled. If not, proceed to step four.

Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.

Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. ...


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