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Chansio Chao v. Michael J. Astrue

March 12, 2012

CHANSIO CHAO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff Chansio Chao ("plaintiff"), who is represented by counsel, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "defendant") denying plaintiff's applications for Disability Insurance Benefits under Title II of the Social Security Act ("Act") and Supplemental Security Income benefits under Title XVI of the Act.*fn1 In his motion for summary judgment, plaintiff contends that the administrative law judge ("ALJ") in this case erred: (1) by failing "to correctly apply the principles of res judicata" given a prior decision denying plaintiff's application for benefits; and (2) by failing to consider and/or rejecting evidence that plaintiff's condition had "further deteriorated" since the prior unfavorable decision. (See generally Pl.'s Mot. for Summ. J., Dkt. No. 15.) Defendant filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Def.'s Opp'n & Cross-Motion for Summ. J., Dkt. No. 16.) Plaintiff did not file a reply memorandum in support of his motion. For the reasons stated below, the court denies plaintiff's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.

I. BACKGROUND*fn2

This case differs from the typical Social Security case because plaintiff previously

applied for and was denied social security benefits. On November 27, 2002, plaintiff filed applications for disability and disability insurance benefits, which were initially denied on March 7, 2003, and by ALJ decision dated April 13, 2004 (the "First Decision"). (Admin. Record ("AR") 12, 312-19.) The ALJ who issued the First Decision determined that plaintiff had "severe" impairments of "back and generalized body pain," as well as the "residual functional capacity to perform at least a full range of light work (i.e., prolonged standing, walking and lifting not more than 10 pounds and occasionally lifting not more than 20 pounds)." (AR 16-17, 314.) The ALJ also examined evidence of plaintiff's "depression" but concluded that it was "mild," "not severe," and that it imposed no more than "slight limitations" in plaintiff's functioning. (AR 16-17, 314.) The First Decision concluded that plaintiff was not disabled and not entitled to benefits. (AR 315.)

On September 21, 2006, plaintiff again filed applications for Supplemental Security Income and Disability Insurance Benefits, both of which alleged a disability onset date of January 1, 2006. (AR 65-77, 82-84.) The Social Security Administration denied plaintiff's application initially on May 17, 2007, and upon reconsideration on July 13, 2007. (AR 2-4.) Plaintiff requested a hearing before an ALJ, and the ALJ conducted the hearing on February 6, 2008. (AR 11- 23, 267-304.) Plaintiff was represented by counsel at the hearing and testified. A vocational expert, Ms. Susan L. Creighton-Clavel, also testified at the hearing. (AR 11, 297-304.)

In a written decision dated April 4, 2008 (the "Second Decision"), the ALJ denied plaintiff's applications for benefits based on a finding that plaintiff was capable of performing past relevant work as a janitor, both as he performed that work previously and as that work is performed in the national economy.*fn3 (AR 22.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AR 2-4.) Plaintiff subsequently filed this action, which arises from the Second Decision.

B. Summary of the ALJ's Findings

The ALJ conducted the required five-step evaluation and concluded that plaintiff was not disabled within the meaning of the Act. At step one, the ALJ found that plaintiff had not engaged in substantial gainful employment since January 1, 2006, the alleged date of disability onset. (AR 16.) At step two, the ALJ concluded that "[t]he record contains no new and material evidence pertaining to the period previously adjudicated" and therefore that the First Decision is "final and binding." (AR 12.) However, the ALJ also found that, as to the period after the First Decision, "new evidence" dated after that Decision supported a finding that plaintiff's "physical condition is not as severe as it was in the past" butthat plaintiff's "mental condition is more severe than it was in the past, as he is now limited to unskilled work." (AR 16.) The ALJ determined that plaintiff had "severe" impairments of "degenerative disc disease at L5-S1 and multiple level mild spondylosis, mild scoliosis, and a major depressive order, recurrent, with a post traumatic stress disorder." (AR 16.)

At step three, the ALJ determined that plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in the applicable regulations. (Id. at 17 (citing 20 C.F.R. pt. 404, subpt. P, app.1).) Prior to reaching step four of the analysis, the ALJ determined plaintiff's residual functional capacity ("RFC") as follows:

In the [First Decision], it was found that the claimant was able to perform light exertion, and that the claimant did not have a severe mental impairment. Having considered the additional evidence obtained in connection with the current claim, the undersigned finds that new and material evidence exists to conclude that the claimant currently has a lesser physical disability and a greater mental disability. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform the full range of medium work as defined in 20 CFR 404.1567(c) and 416.967(c). Medium work includes the ability to stand and/or walk, off and on, for a total of approximately six hours out of an eight-hour workday, and sit intermittently during the remaining time. It also requires an ability to lift 50 pounds occasionally and 25 pounds frequently and to frequently bend and stoop. Nonexertionally, the claimant is limited to simple, routine tasks. These findings are supported by the treating and consultative examining reports.

(AR 18.)

In assessing plaintiff's RFC, the ALJ also addressed plaintiff's testimony and found that plaintiff was not credible to the extent that his testimony concerning the intensity, persistence and limiting effects of his symptoms conflicted with the ALJ's RFC assessment. (AR 19, 21.)

The ALJ also addressed the medical evidence relating to plaintiff's back impairments and resulting functional limitations.*fn4 The ALJ rejected the ultimate conclusions both from the consultative examining physician, Dr. Sanford Selcon, and from plaintiff's treating physician, Dr. Scarlett Lu. Dr. Selcon assessed plaintiff as having "no" functional limitations but the ALJ determined Dr. Selcon's conclusion was "not afforded significant weight" given plaintiff's "longitudinal history" of pain and x-rays indicating "some degree" of physical limitations. (AR 18-19; 194-201.) Dr. Lu assessed plaintiff as having "chronic back pain both upper & lower [second to] dextroscoliosis and osteoarthritis" and no ability to work (AR 173), but the ALJ determined that "no evidentiary weight can be given to the conclusions reached by Dr. Lu in [her] statement of November 13, 2007," given that the statement was prepared at plaintiff's request for assistance with his disability claim and reflected extreme limitations inconsistent with Dr. Lu's clinical findings. (AR 20.)

Having assessed plaintiff's RFC, the ALJ found at step four that given plaintiff's limitations, plaintiff "is capable of performing his past relevant work as a janitor." (AR 22.) The ALJ specifically noted that, in the First Decision, "it was found that the claimant was able to perform his past relevant work," and that "the record continues to support" such finding given that such work "does not require the performance of work-related activities precluded by the claimant's residual functional capacity." (AR 22.) Because the ALJ found that plaintiff could perform such work, plaintiff has "not been under a disability" as defined in the Social Security Act. (AR 22.)

Because the ALJ determined at step four that plaintiff could perform his past relevant work both "as he performed it" previously and "as performed in the national economy," the ALJ deemed the vocational expert's testimony "irrelevant" and did not proceed to step five. (AR 22.)

II. STANDARDS OF REVIEW

The court reviews the Commissioner's decision to determine whether it is (1) free of legal error, and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); accord Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "'Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690. "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."). Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g);

see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222; see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). However, the court "must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ryan, 528 F.3d at 1198 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); accord Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "To determine whether substantial evidence supports the ALJ's decision, [a court] review[s] the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion." Andrews,

53 F.3d at 1039.

The court's review is constrained to the reasons asserted by the ALJ in the ALJ's decision. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) ("We review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely."); accord Tommasetti, 533 F.3d at 1039 n.2 (declining to review reasons provided by the district court in support of the ALJ's credibility decision that were not "expressly relied on" by the ALJ during the administrative proceedings).

III. DISCUSSION

A. Cases Involving Prior Final Agency Decisions Of Non-disability In cases involving a prior final agency decision of non-disability where the claimant subsequently files a new application for benefits, the prior administrative decision triggers a presumption of continuing non-disability. Chavez v. Bowen, 844 F.2d 691, 693-64 (9th Cir. 1988) (where ALJ made "no reference" to prior ALJ's decision and "failed to consider the first judge's findings," the "principles of res judicata made binding the first judge's determination"). In order to overcome this presumption of continuing non-disability, the claimant "must prove 'changed circumstances' indicating a greater disability." Id. (because defendant failed to identify "new" information that "had not been presented to the first" ALJ, it was error for the second ALJ to have "reopened the prior [ALJ's] determinations concerning the claimant's ability to perform his past relevant work") (quoting Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985)); cf. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1172-73 (9th Cir. 2008) (where "[t]he entirety of the medical evaluations presented with respect to the [claimant's] present application were conducted after [claimant's] initial disability determination[,] [t]hese evaluations necessarily presented new and material information not presented to the first ALJ") (applying Chavez) (emphasis added); Ellis v. Astrue, No. 2:10--cv--01201--LDG--GWF, 2011 WL 5877490 at *5-9 (D. Nev. Sept. 28, 2011) (unpublished) (ALJ did not err in determining that plaintiff had rebutted the presumption of continuing non-disability and did not err in adopting the RFC assessment from the prior ALJ's decision, because there was no "new and material evidence" concerning the claimant's functional limitations and because the ALJ gave clear and convincing reasons for not relying on the opinion of claimant's treating physician) (citing Chavez).

Social Security Acquiescence Ruling 97--4(9), 1997 WL 742758 (Dec. 3, 1997) ("AR 97-4(9)") provides guidance on the Chavez decision:

In order to rebut the presumption of continuing non-disability, a claimant must prove "changed circumstances" indicating a greater disability. In addition, the court [in Chavez] indicated that where the claimant rebuts the presumption by proving a changed circumstance, principles of res judicata require that certain findings contained in the final decision by the ALJ on the prior claim must be given some res judicata consideration in determining whether the claimant is disabled . . . The court concluded that where the final decision on the prior claim, which found the claimant not disabled, contained findings of the claimant's residual functional capacity, education, and work experience, [the agency] may not make different finding in adjudicating the subsequent disability unless there is new and material evidence . . .

Although the presence of additional impairments rebuts the general presumption of non-disability, that alone is insufficient to rebut the specific findings of the prior decision. Chavez, 844 F.2d at 694. Instead, there must be "new and material" evidence relating to each specific finding. See AR 97--4(9).*fn5

After a final agency determination of non-disability, where the claimant experiences improvement in the nature of his limitations and pain allegedly suffered, an ALJ may determine that a claimant's condition has improved. See Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985) (where claimant's first application for benefits was denied, the presumption of continuing non-disability applied, and ALJ properly determined that claimant's condition had "improved rather than deteriorated" in the period leading to second application for benefits.) In general, the Commissioner bears the burden of establishing that a claimant has experienced medical "improvement" that would allow him to engage in substantial gainful activity. Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983) (to ...


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