Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Katherine Slack v. Michael J. Astrue


February 14, 2011



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. For the reasons discussed below, the court will recommend that plaintiff's motion for summary judgment or remand be granted, that the Commissioner's cross-motion for summary judgment be denied, and that this matter be remanded under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion.


Plaintiff filed an application for disability benefits on February 18, 2005, alleging a disability onset date of September 2, 2003. Administrative Record ("AR") 84-86. Her application was denied initially and upon reconsideration. Id. at 67-71, 56-60. A hearing was held on February 28, 2008 before Administrative Law Judge ("ALJ") Peter Belli. Id. at 413-460. In a decision dated May 29, 2008, the ALJ determined plaintiff was not disabled.*fn1 Id. at 16-24.

The ALJ made the following specific findings:

1. The claimant has not engaged in substantial gainful activity since February 18, 2005, the application date (20 CFR 416.920(b) and 416.971 et seq.)

2. The claimant has the following severe impairments: degenerative joint disease and degenerative disc disease at L3-4, mild bilateral degenerative facet arthropathy at L4-5; degenerative changes at L5-S1;and history of Methicillin Resistant Staphylococcus aureus (MRSA) (20 CFR 416.920(c)). ...

3. The claimant does not have an impairment or combination of impairments that meets of medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926). ...

4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except lift/carry/push/and/or pull 20 pounds occasionally and ten pounds frequently; sit for 8/8 hours with normal work breaks; stand/walk for 6/8 hours with normal breaks; no climbing ladders, ropes or scaffolds; and occasionally stoop, kneel, crouch or kneel. ...

5. The claimant is capable of performing past relevant work as a housekeeper (motel), food server, and companion (elder facility). This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity

(20 CFR 416.965). ...

6. The claimant has not been under a disability, as defined in the Social Security Act, since February 18, 2005 (20 CFR 416.920(f)), the date the application was filed.

Id. at 17-24.

Plaintiff requested that the Appeals Council review the ALJ's decision. However, on February 23, 2009, the Appeals Council denied review, leaving the ALJ's decision as the final decision of the Commissioner of Social Security. Id. at 4-6.

This appeal followed. Among other assertions of error, plaintiff contends the ALJ improperly found that plaintiff's Methicillin Resistant Staphylococcus Aureus ("MRSA") infection was not a severe impairment at step two of the sequential analysis. Dckt. No. 22. Plaintiff further contends that because of this error, the ALJ improperly found she could perform her past relevant work as a companion in an elder facility. These contentions are dispositive and require remand.*fn2


The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).

The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). "'It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).

"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).


Plaintiff contends that the ALJ made contradictory findings with respect to the severity of her MRSA infection and failed to properly develop the record with respect to plaintiff's functional limitations from this impairment. As a result of the errors, plaintiff asserts the ALJ erred in finding plaintiff could perform her past relevant work.

"The step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater,80 F.3d 1273, 1290 (9th Cir. 1996). The purpose is to identify claimants whose medical impairment is so slight that it is unlikely they would be disabled even if age, education, and experience were taken into account. Bowen v. Yuckert, 482 U.S. 137, 153 (1987).

At step two of the sequential evaluation, the ALJ determines which of claimant's alleged impairments are "severe" within the meaning of 20 C.F.R. § 416.920(c). A severe impairment significantly limits a person's physical or mental ability to do basic work activities. Id. "An impairment is not severe if it is merely 'a slight abnormality (or combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities.'" Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting Social Security Ruling ("SSR") 96-3p (1996)). If a severe impairment exists, all medically determinable impairments must be considered in the remaining steps of the sequential analysis. 20 C.F.R. § 416.923. The ALJ "must consider the combined effect of all of the claimant's impairments on her ability to function, without regard to whether each alone [i]s sufficiently severe." Smolen, 80 F.3d at 1290; 20 C.F.R. § 416.923.

At step two of the sequential analysis, the ALJ found plaintiff has a severe impairment of history of MRSA infection. AR 17. Within the body of the decision, however, the ALJ made the contradictory finding that plaintiff's MRSA infection did not meet the durational requirement. AR 22. This finding is not supported by substantial evidence. On the contrary, the medical evidence is replete with references to the sequelae of recurrent MRSA infection over an extended period, well beyond the twelve month durational requirement. AR 402 (October, 2007, request for follow up for treatment for MRSA infection), 229 (October, 2007, sores in axilla from MRSA healed), 269-271 (October, 2007 multiple acute MRSA infection in axilla), 403 (September, 2007 (reinfection), 272-279 (August, 2007, treatment for colitis type syndrome associated with antibiotics), 409 (prior infection from MRSA had resolved; three week history of diarrhea with weight loss, infection with C. difficile enteritis), 286-293 (May, 2007 treatment for MRSA infection), 347-355 (May-June, 2006 treatment for MRSA labial abscess).

Although inartfully formulated by plaintiff, the question presented here is whether the ALJ properly considered the functional limitations of all medically determinable impairments at the remaining steps of the sequential evaluation. See Smolen, 80 F.3d at 1290 (if one severe impairment exists, all medically determinable impairments must be considered in the remaining steps of the sequential analysis) (citing 20 C.F.R. § 404.1523); see Burch v. Barnhart, 400 F.3d 676, 682-82 (9th Cir. 2005). The ALJ found that the MRSA impairment causes no limitations in plaintiff's ability to perform work activity other than limitations indicated in the residual functional capacity assessed by the ALJ. AR 22. Since the residual functional capacity sets forth no limits attributable to MRSA (AR 19), such as avoiding close contact with individuals susceptible to infection, it appears the ALJ inconsistently found the MRSA infection was severe and not severe at the same time.

This inconsistency is fatal to the ALJ's conclusion at step four of the sequential evaluation that plaintiff could perform her past relevant work as a companion in an elder care facility. "Although the burden of proof lies with the claimant at step four, the ALJ still has a duty to make the requisite factual findings to support his conclusion. Social Security Ruling "S.S.R.") 82-62.*fn3 See 20 C.F.R. §§ 404.1571 and 416.971, 404.1574 and 416.974, 404.1565 and 416.965." Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). "This is done by looking at the 'residual functional capacity and the physical and mental demands' of the claimant's past relevant work. 20 C.F.R. §§ 404.1520(e) and 416.920(e)." Pinto, 249 F.3d at 844-45. The claimant must be able to perform: (1) the actual functional demands and job duties of a particular past relevant job; or (2) the functional demands and job duties of the occupation as generally required by employers throughout the national economy. Id. at 845 (citing S.S.R. 82-61). "This requires specific findings as to the claimant's residual functional capacity, the physical and mental demands of the past relevant work, and the relation of the residual functional capacity to the past work." Id. (citing S.S.R. 82-62). "Social Security Regulations name two sources of information that may be used to define a claimant's past relevant work as actually performed: a properly completed vocational report, S.S.R. 82-61, and the claimant's own testimony, S.S.R. 82-41." Id.

The vocational expert testified that plaintiff's past work as a housekeeper, food server and companion at an elder care facility could be performed if plaintiff retained the residual functional capacity to perform light work. AR 458. At step four, the ALJ found plaintiff could perform her past relevant work in the occupations identified by the vocational expert. AR 23. A job is considered past relevant work only if it involved "substantial gainful activity." 20 C.F.R. § 416.972; Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001). The job must have been "done within the last 15 years [and] lasted long enough for [plaintiff] to learn to do it." 20 C.F.R. § 416.965. Past work which was done for a de minimis period is not past relevant work within the meaning of the regulations. 20 C.F.R. § 416.965; SSR 84-25 (jobs ending with three months considered unsuccessful work attempt); cf. Gatliff v. Commissioner of Social Security, 172 F.3d 690 (9th Cir. 1999) (string of sequential two month jobs does not constitute substantial gainful activity.)

Plaintiff's work history shows only one job, i.e. that of care giver in an elderly facility, which can be considered to be past relevant work, from both a durational viewpoint as well as the amount of money earned. AR 107; 20 C.F.R. § 416.974 (earnings below certain thresholds not considered to be substantial gainful activity). This point appears to be conceded by defendant. See Def.'s Br. at 9:23-28, fn. 4. The ALJ included no limitations in the residual functional capacity attributable to the MRSA impairment. No inquiry was made of the vocational expert as to what duties would be performed by a companion at an elder care facility. The vocational expert simply testified that such a job would require a light residual functional capacity and identified such job in the Dictionary of Occupation Titles*fn4 as 309.677-010.*fn5 AR 458. The position of care giver, as described by plaintiff, included dispensing medication, helping the elderly in personal hygiene, and transferring the residents of the elder care facility. AR 108. Under the DOT's description of the job as well as plaintiff's testimony, it appears close personal contact with the patient is required. There was no questioning of the vocational expert as to whether a person who has a recurrent MRSA infection would be allowed to perform duties requiring close physical contact with elderly persons. On the present record, substantial evidence does not support the ALJ's finding that plaintiff could perform her past relevant work. //// ////


For the foregoing reasons, this matter should be remanded under sentence four of 42 U.S.C. § 405(g) for further findings addressing the deficiencies noted above.


1. Plaintiff's motion for summary judgment or remand be granted;

2. The Commissioner's cross-motion for summary judgment be denied;

3. This matter be remanded for further proceedings consistent with this order; and

4. The Clerk be directed to enter judgment for plaintiff.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.