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Leatrice Cox v. Michael J. Astrue

September 9, 2011



This social security action was submitted to the court, without oral argument, for ruling on plaintiff's motion for summary judgment and defendant's cross-motion for summary judgment. For the reasons explained below, the undersigned will recommend that plaintiff's motion be granted, that defendant's motion be denied, that the decision of the Commissioner of Social Security (Commissioner) be reversed and that this matter be remanded for further proceedings consistent with these findings and recommendations.


In 1995 plaintiff Leatrice Cox was awarded disability benefits. (Transcript ("Tr.") at 173.) Those benefits were later terminated pursuant to the Drug Addiction and Alcoholism ("DAA") provisions of the Social Security Act. (Id.) Plaintiff filed a subsequent application for benefits in 1997. (Id.) On September 21, 2000, an Administrative Law Judge ("ALJ") found that plaintiff was not able to perform her past relevant work but was able to do other, sedentary work and was therefore not disabled. (Id. at 173, 190.)

On October 7, 2002, plaintiff applied for Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act (the Act), alleging that she became disabled on July 31, 2001, due to lupus, fibromyalgia, seizures, leg pain, back pain, arm pain and mental problems. (Id. at 44, 52-54.) Plaintiff's application was denied initially on May 16, 2003, and upon reconsideration on October 6, 2003. (Id. at 36-37.) An administrative hearing was held before an ALJ on May 18, 2004. (Id. at 226-52.) Plaintiff was represented by counsel and testified at the hearing. In a decision issued on October 12, 2004, the ALJ found that plaintiff was not disabled. (Id. at 18-26.) The ALJ entered the following findings:

1. The claimant has not engaged in substantial gainful activity since the alleged onset of disability.

2. The claimant's chronic low back pain, fibromyalgia syndrome, and borderline intellectual functioning, are considered "severe" based on the requirements in the Regulations 20 CFR § 416.920(b).

3. These medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.

4. The undersigned finds the claimant's allegations regarding her limitations are not totally credible for the reasons set forth in the body of the decision.

5. The claimant has the following residual functional capacity: lift 20 pounds occasionally and 10 pounds frequently, walk/stand six hours, sit six hours, occasionally perform postural activities, and mentally perform simple routine, repetitive work and some semi-skilled work.

6. The claimant's past relevant work as a child care provider did not require the performance of work-related activities precluded by her residual functional capacity (20 CFR § 416.965).

7. The claimant's medically determinable chronic low back pain, fibromyalgia syndrome, borderline intellectual functioning, and mild disc degeneration and bulging at L4-5 and L5-S1 do not prevent the claimant from performing her past relevant work.

8. The claimant was not under a "disability" as defined in the Social Security Act, at any time through the date of the decision

(20 CFR § 416.920(f)). (Id. at 25.)

On May 6, 2005, the Appeals Council denied plaintiff's request for review of the ALJ's decision, thereby making it the final decision of the Commissioner. (Id. at 7-9.) Plaintiff sought judicial review pursuant to 42 U.S.C. § 405(g) by filing the complaint in this action on July 8, 2005. (Doc. No. 1.) By stipulated order filed January 30, 2006, the case was remanded for further administrative proceedings. (Doc. No. 17.) On November 12, 2010 the court granted defendant's motion to reopen this matter. (Doc. No. 25.)


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 as a whole 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). 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 such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citing Morgan, 169 F.3d at 599); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).

A reviewing court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion. See Jones, 760 F.2d at 995. The court may not affirm the ALJ's decision simply by isolating a specific quantum of supporting evidence. Id.; see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a finding of either disability or non-disability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

In determining whether or not a claimant is disabled, the ALJ should apply the five-step sequential evaluation process established under Title 20 of the Code of Federal Regulations, Sections 404.1520 and 416.920. See Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). This five-step process can be summarized as follows:

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 or her 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. If not, the claimant is disabled.

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).


Plaintiff argues that the ALJ committed the following four principal errors in finding her not disabled: (1) the ALJ improperly ignored the res judicata effect of the September 21, 2000 finding that plaintiff could no longer perform her past relevant work; (2) the ALJ rejected third-party testimony regarding plaintiff's functional limitations without legitimate or germane reasons for so doing; (3) the ALJ rejected the opinion of plaintiff's treating physician without a legitimate basis for doing so; and (4) the ALJ failed to properly analyze plaintiff's past relevant work in ...

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