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Minnie Moore v. Michael J. Astrue

March 30, 2011


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



Plaintiff Minnie Moore ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for disability and supplemental security income benefits pursuant to Titles II and XVI 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


Plaintiff applied for disability insurance and supplemental security income benefits in December 1998.*fn3 See AR 244-246. The applications were denied initially and on reconsideration. AR 163-172. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and a hearing was held before ALJ Rocklin D. Lyons on October 12, 2000. AR 173-174, 685-710. ALJ Lyons issued a decision denying benefits on November 21, 2000. AR 99-108.

On February 9, 2001, Plaintiff reapplied for disability insurance and supplemental security income benefits. AR 251-254. The applications were again denied initially and on reconsideration. AR 176-186. Following a request for a hearing before an ALJ, on June 26, 2002, ALJ Joanne Birge held a hearing and issued a decision denying benefits on November 13, 2002. AR 122-133, 187-188, 711-748. Plaintiff appealed the decision. AR 201-202. After remand by the Appeals Council, on July 28, 2005, ALJ James Ross held a hearing and subsequently issued a decision denying benefits on November 21, 2005. AR 52, 140-143, 147-162, 749-770. Again, Plaintiff appealed the decision. AR 215-217.

On July 23, 2007, following remand by the Appeals Council, ALJ James Berry held a hearing and issued an order regarding benefits. AR 39, 222-226. ALJ Berry determined that Plaintiff became disabled on November 18, 2004, however, because Plaintiff's "date last insured" was December 31, 2003, she was not entitled to disability insurance benefits. Nevertheless, ALJ Berry found Plaintiff was entitled to supplemental security income benefits as of November 18, 2004. AR 26-39. The Appeals Council denied review on July 17, 2009. AR 10-12. Plaintiff now appeals the finding that she was not disabled prior to November 2004.

2007 Hearing Testimony

ALJ Berry held a hearing on July 23, 2007, in Fresno, California. Plaintiff was present and testified; she was represented by attorney Charles Oren. Vocational Expert ("VE") Judith Najarian also testified. AR 771-793.

Counsel asked Plaintiff whether she was truthful and honest when she provided previous testimony; she replied affirmatively. When she was asked whether her conditions had improved, worsened or stayed the same, Plaintiff indicated they remained the same. AR 784.

Plaintiff completed the eighth grade, but did not earn a GED. AR 790-791. When asked whether she drives, Plaintiff indicated she does so once in a while. For instance, she drove her son's car to the proceedings. AR 781. She does do her own cooking. AR 784.

Plaintiff sees her cardiologist every three months for her heart condition. The doctor has discussed the possibility of surgery with her "to open another valve." AR 775. In November 2004, Plaintiff underwent heart surgery. AR 787. Plaintiff continues to have pain in the area of her heart. She uses Nitroglycerin about twice a month. AR 776. Exertion or stress causes more pain. AR 776, 785. Plaintiff testified that she began noticing more chest pain in 2003, although she does not recall a particular event that caused her to take notice. AR 777. When specifically questioned by counsel about becoming disabled in 2000, and the fact that Plaintiff complained of chest pain at that time, Plaintiff indicated that she did have chest pain in 2000 and took a single "blood pressure pill" at that time. AR 778. When asked to recall and describe the chest pain "[b]ack in 2000," Plaintiff stated that she believed it was "gas pain," but when she sought treatment at the emergency room, she was advised she was having a heart attack. However, she later agreed that event actually occurred in 2004. AR 778. She has been advised by her cardiologist that she will have "to live with" her condition. AR 784.

Plaintiff experiences chest pain when vacuuming the floor, when she gets depressed, or "something like that." AR 779. In 2004, as a result of the chest pain, Plaintiff would stay home, watch television, "do a little cleaning," and then go for a walk. AR 780.

In 2004, Plaintiff found it necessary to lie down for four to five hours during the day and still finds it necessary to do so. AR 781, 783. When asked how many hours in an eight-hour work day that she could sit, Plaintiff replied "[m]aybe two or three hours." AR 783-784. When she was asked by the ALJ how long she could stand in an eight-hour workday, Plaintiff replied about three hours. AR 787. She can walk two blocks before she becomes fatigued and must use an inhaler for shortness of breath. AR 779. When asked about difficulties she experiences while standing, Plaintiff indicated that her left leg will "give[] out a lot" as a result of "something to do with the muscles." AR 780. The problem is mainly related to Plaintiff's left knee. AR 782.

With regard to side effects of the medications she is currently prescribed, and more particularly the blood pressure medication, Plaintiff indicates she gets tired, has less energy and sleeps more as a result. AR 777-778. Plaintiff also has a hard time remembering things, and that too may be a side effect of the medications she has been prescribed, but she is not sure. AR 783.

Plaintiff is currently being treated by Dr. Dao.*fn4 AR 780-781. She also suffers from numbness in her hands and arm which has been a problem for four or five years. The condition has neither improved nor worsened over time. AR 782-783. The hands and arm "stay numb for maybe 20 or 30 minutes . . . at a time." AR 782. Nor has her condition improved. AR 782-783. Plaintiff has undergone three surgeries on her right hand; she believes the last surgery was prior to 2000 at Valley Medical Center. AR 782. Plaintiff has a hard time holding items with that hand. AR 783. When she was asked how much weight she could currently lift, Plaintiff replied she could lift a five pound bag of sugar with one hand and "help it" with the other. AR 783, 787.

Plaintiff last worked in 2001 providing in home care three days a week, for three or four hours a day. In 1995, Plaintiff worked at Taco Bell. AR 785-786. While employed at Taco Bell she acted as cashier, cook, and cleaner; she "did all of it." AR 786. She recalls having to lift a twenty-five pound bag of beans. AR 786.

With regard to Plaintiff's past work, VE Najarian clarified that Plaintiff cleaned the house and took out the garbage during her employment as an in home care provider, and also drove the gentleman to whom she provided care to the Veterans Administration hospital for appointments with his physician. AR 789. As a result, VE Najarian indicated the in home care work was as a day worker in the Dictionary of Occupational Titles ("DOT"), medium and 2, unskilled. AR 789. With regard to Plaintiff's prior work at Taco Bell, the VE classified it as a fast food worker in the DOT, light and 2, unskilled. The VE noted however that if Plaintiff were lifting twenty-five pounds, the work was medium as performed. AR 789-790. When she was asked again about the heaviest weight lifted during her employment with Taco Bell, Plaintiff indicated she could not "see" how much the large bag weighed; it could have been twenty pounds*fn5 or it could have been twenty-five pounds.*fn6 AR790.

VE Najarian was asked to consider a hypothetical worker between the age of forty-nine to fifty-three years of age, with an eighth grade education and past relevant work as a day worker and fast food worker. Additionally, the VE was asked to consider the fact the hypothetical worker had a combination of severe impairments and the residual functional capacity ("RFC") to lift and carry twenty pounds occasionally and ten pounds frequently, can stand, walk and sit for six hours each, and can occasionally push or pull. AR 791. VE Najarian indicated that such a worker could not perform Plaintiff's past work as a fast food worker where it is performed at a medium level, nor could the individual perform the work of a day worker. However, the hypothetical worker could perform work as a fast food worker if it is performed at the light level. AR 791.

Next, VE Najarian was asked to assume a similar hypothetical worker with the ability to sit for four to eight hours, stand or walk for two hours, and lift and carry ten pounds. In light of those limitations, VE Najarian indicated the hypothetical worker would be unable to perform any of Plaintiff's past relevant work. AR 791.

Medical Record

The entire medical record was reviewed by the Court (AR 363-684), however, only those medical records relevant to the issues on appeal will be addressed below as needed in this opinion.

ALJ Berry's Findings

The ALJ determined that Plaintiff met the insured status requirements on December 31, 2003, but those requirements were not met thereafter. AR 33. Next, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since November 22, 2000, the alleged onset date, and that she had the severe impairments of arthritis, coronary artery disease, hypertension and carpal tunnel syndrome. AR 34. Nonetheless, the ALJ determined that, from the alleged onset date, Plaintiff did not have an impairment or combination of impairments that met or exceeded one of the listing impairments. AR 34.

Based on his review of the medical evidence, the ALJ determined that Plaintiff had the RFC to lift and/or carry twenty pounds occasionally and ten pounds frequently, and to sit, stand and/or walk for six hours in an eight-hour work day, with a restriction to occasional pushing and pulling. AR 34-37. The ALJ found that, beginning November 18, 2004, Plaintiff had the RFC to perform the full range of sedentary work. Prior to November 18, 2004, Plaintiff was capable of performing her past relevant work. AR 37. However, the ALJ found that as of November 18, 2004, Plaintiff's RFC has prevented her from performing her past relevant work. AR 37.

Thereafter, the ALJ determined that, as of November 18, 2004, considering Plaintiff's age, education, work experience and RFC, there were not a significant number of jobs in the national economy that Plaintiff could perform. AR 38. Thus, the ALJ determined that Plaintiff was not disabled prior to November 18, 2004, but became disabled on that date and remains disabled through to the present. AR 38-39. Accordingly, the ALJ determined that Plaintiff was entitled to receive supplemental security income as of November 18, 2004. Plaintiff was not entitled to disability insurance benefits as the date of disability fell beyond the date Plaintiff was last insured for that purpose. AR 39.


Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n.10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The record as a whole must be considered, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner's determination that the claimant is not disabled if the Secretary applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See Sanchez v. Sec'y of Health and Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).


In order to qualify for benefits, a claimant must establish that she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c (a)(3)(A). A claimant must show that she has a physical or mental impairment of such severity that she is not only unable to do her previous work, but cannot, considering her age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

In an effort to achieve uniformity of decisions, the Commissioner has promulgated regulations which contain, inter alia, a five-step sequential disability evaluation process.

C.F.R. §§ 404.1520 (a)-(f), 416.920 (a)-(f) (1994). Following the ALJ's determination here (see ALJ Berry's Findings, ante), Plaintiff argues on appeal that the ALJ (1) erred at step two of his sequential analysis; (2) erred in his finding regarding Plaintiff's past relevant work as a fast foods worker; (3) improperly rejected the opinion of a medical provider; (4) improperly rejected Plaintiff's allegations; (5) proffered a flawed RFC finding; (6) failed to fully develop the record regarding Plaintiff's illiteracy; and (7) improperly determined Plaintiff's disability onset date. (Doc. 16 at 9-28.)


Step Two Findings

Plaintiff asserts ALJ Berry erred at step two of his sequential analysis when he determined that Plaintiff's borderline intellectual functioning was not a severe impairment, and further, that he failed to consider her combined impairments throughout his sequential analysis. (Doc. 16 at 9-16.) The Commissioner contends the ALJ properly assessed Plaintiff's alleged mental impairment. (Doc. 20 at 5-10.)

At step two of the sequential evaluation process, the ALJ must conclude whether Plaintiff suffers from a "severe" impairment. The regulations define a non-severe impairment as one that does not significantly limit the claimant's physical and mental ability to do basic work activities. An impairment is not severe "if the evidence establishes a slight abnormality that has 'no more than a minimal effect on an individual's ability to work.'" Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). To satisfy step two's requirement of a severe impairment, the claimant must prove the existence of a physical or mental impairment by providing medical evidence consisting of signs, symptoms, and laboratory findings; the claimant's own statement of symptoms alone will not suffice. 20 C.F.R. §§ 404.1508, 416.908. The effects of all symptoms must be evaluated on the basis of a medically determinable impairment which can be shown to be the cause of the symptoms. 20 C.F.R. §§ 404.1529, 416.929. An overly stringent application of the severity requirement violates the statute by denying benefits to claimants who do meet the statutory definition of disabled. Corrao v. Shalala, 20 F.3d 943, 949 (9th Cir. 1994).

The step two inquiry is a de minimis screening device to dispose of groundless or frivolous claims. Bowen v. Yuckert, 482 U.S. 137, 153-154 (1987). Further, the ALJ must consider the combined effect of all of the claimant's impairments on his ability to function, without regard to whether each alone was sufficiently severe. 42 U.S.C. § 423(d)(2)(B). The combined effect "shall be considered throughout the disability determination process. Id. The adjudicator's role at step two is further explained by SSR 85-28:

A determination that an impairment(s) is not severe requires a careful evaluation of the medical findings which describe the impairment(s) and an informed judgment about its (their) limiting effects on the individual's physical and mental ability(ies) to perform basic work activities; thus, an assessment of function is inherent in the medical evaluation process itself. At the second step of sequential evaluation, then, medical ...

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