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Daniel Lara v. Michael J. Astrue

October 4, 2011


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge


Plaintiff filed this action seeking reversal of the decision of the defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

Plaintiff filed an application for SSI benefits on December 20, 2005, alleging that he had been disabled since December 31, 1997 due to depression, affective mood disorders, hepatitis C, numbness in his left arm, loss of the use of his right upper extremity, left knee problems and pain, pins in his jaw, jaw pain, asthma, and disorders of the muscles, ligaments, and fascia. [JS 2].*fn1

Plaintiff's applications were denied initially and upon reconsideration. [JS 2; Administrative Record ("AR") 77-81, 83-87]. Plaintiff requested an administrative hearing, which was conducted before Administrative Law Judge Mason D. Harrell, Jr. (the "ALJ") on March 6, 2008. [AR 29-50; 379-400]. Plaintiff, who was represented by an attorney, testified on his own behalf. [AR 379-400]. Testimony also was received from a vocational expert. [AR 398-400].

On April 4, 2008, the ALJ issued a written decision denying plaintiff's application for benefits. [AR 355-365]. The Appeals Council denied plaintiff's request for review on September 26, 2008. [AR 1-3, 366-368]. Plaintiff filed an action for judicial review in this court, resulting in a stipulated remand for further administrative proceedings on August 4, 2009. [AR 370-373].

On remand, the Appeals Council vacated and remanded the case to the ALJ, who held an additional hearing on July 30, 2010. The ALJ then issued another unfavorable decision. [AR 300-310]. The ALJ found that plaintiff had the following severe impairments: loss of the use of his right upper extremity, obesity, and depression. [AR 305]. The ALJ determined, however, that plaintiff's impairments, singly or in combination, did not meet or equal an impairment included in the Listing of Impairments (the "Listing"). [AR 305]. See 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ further found that plaintiff retained the residual functional capacity ("RFC") to perform a range of light work, and therefore that plaintiff could not perform his past relevant work as a welder, construction worker, or gardener. [AR 309]. Based on the testimony of the vocational expert, the ALJ determined that plaintiff could perform alternative jobs that exist in significant numbers in the national economy. [AR 309-310]. The ALJ therefore concluded that plaintiff was not disabled at any time up to the date of his decision. The ALJ's decision on remand is the Commissioner's final decision in this matter. [AR 309-310]. See 20 C.F.R. §§ 404.984, 416.1484 (explaining that when a case is remanded by a federal court for further consideration, the decision of the ALJ will become the final decision of the Commissioner unless the Appeals Council assumes jurisdiction based on the claimant's written exceptions or on its own authority).

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "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, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).

Statement of Disputed Issues

The disputed issues are: (1) whether the ALJ properly complied with the Appeals Council order and; (2) whether the Dictionary of Occupational Titles ("DOT") definitions are inconsistent with the ALJ's holding that plaintiff can perform the jobs of toll collector and charge account clerk.


Plaintiff was involved in a motor vehicle accident in 1994 and sustained an open fracture to his right forearm. His right arm was nearly severed. His right forearm was reattached and required extensive repair of flexor and tendons, which also resulted in nerve damage. Over time, plaintiff's grasping and extending capabilities with his right arm improved somewhat, though never fully, and he has difficulty with pain. Plaintiff also complained of knee pain, and said that he underwent left knee surgery in high school to replace a torn ligament. Plaintiff added that he suffered from depression. Finally, plaintiff testified that he experiences fatigue, shortness of breath, and asthma. [AR 56, 315-340, 362-363].

In his first decision on April 4, 2008 [AR 355-365], the ALJ found that plaintiff had the RFC to perform a restricted range of light work. [AR 361]. The ALJ relied on testimony from a vocational expert (the "VE") to determine that there were jobs that exist in significant numbers in the national economy that plaintiff could perform, consistent with the DOT. [AR 365]. However, the ALJ failed to include certain limitations that were present in his RFC finding in his hypothetical question to the VE. [AR 398-400; JS 4]. The Appeals Council remanded the case in order to clarify apparent ...

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