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Michael J. Hindrak v. Micahel J. Astrue

March 21, 2013


The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge



This matter is before the Court for review of the decision by the Commissioner of Social Security denying plaintiff's applications for Disability Insurance Benefits (DIB) and Supplemental Security Income under Titles II and XVI, respectively, of the Social Security Act (Act). Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C. § 405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. Plaintiff and defendant have filed their pleadings (Defendant's Answer; Plaintiff's Brief with Points and Authorities in Support of Plaintiff's Complaint; Defendant's Brief in Opposition to Complaint), and defendant has filed the Certified Administrative Record (AR). After review of the matter, the Court concludes that the decision of the Commissioner should be reversed and remanded.


On June 29, 2009, Plaintiff Michael J. Hrindak filed applications for DIB and SSI, alleging disability beginning December 7, 2008. (AR 13, 112-16). On October 13, 2009 plaintiff's applications were denied. (AR 55-59). On March 7, 2011 an Administrative Hearing was held before an Administrative Law Judge (ALJ). Subsequently, the ALJ issued a decision denying both applications on May 6, 2011. Plaintiff's request for review by the Appeals Council was denied on June 23, 2011. On August 17, 2012, plaintiff filed this action for judicial review of the Commissioner's decision.

Plaintiff makes three challenges to the ALJ's decisions denying him disability benefits, alleging (1) the ALJ's finding that plaintiff could perform his past relevant work was inconsistent with the definition of inside sales order clerk as defined by the Dictionary of Occupational Titles (DOT); (2) the ALJ failed to properly consider plaintiff's testimony and failed to make proper credibility findings; and (3) the ALJ failed to properly consider the lay witness testimony of plaintiff's sister, Petrea Agar.

Each of these contentions will be addressed in turn.


A.Standard of Review

Under 42 U.S.C. § 405, this court reviews the Commissioner's decision to determine if (1) the Commissioner's findings are supported by substantial evidence; and (2) the Commissioner used proper legal standards. Delorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 401; 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)), but "less than a preponderance." Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988).

B.ISSUE NO. 1: Whether the ALJ Properly Determined that Plaintiff Could Perform Past Relevant Work as an Inside Sales Order Clerk. Plaintiff asserts that the ALJ improperly determined that he could perform his past relevant work as an inside sales order clerk because he is precluded from intense personal interactions, and the occupation of inside sales order clerk requires intense personal interactions. In response, defendant asserts that the ALJ properly determined that Plaintiff could perform past relevant work because the occupation of inside sales clerk does not require intense personal interactions.

The ALJ determined that plaintiff had the following severe impairments: lumbar strain, status post-surgery, depressive disorder-NOS, and psychological reaction to physical condition. (AR 15). The ALJ also determined that plaintiff had the Residual Functional Capacity (RFC) to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) except for limitations as to "lifting/carrying 10 pounds frequently and 20 pounds occasionally, standing/walking and sitting for 6 hours each in an 8 hour day, with normal breaks, occasional climbing stairs/ramps, bending, stooping, kneeling, crouching and crawling, and preclusion from climbing ladders/ropes/scaffolds, exposure to hazards, and from intense personal interactions." (AR 16-17). The ALJ further determined that plaintiff was capable of performing past relevant work as an inside sales clerk, and that the work does not require performance of work-related activities which are precluded by plaintiff's RFC. (AR 19).

In deciding whether a claimant can perform past relevant work, the ALJ must determine whether the claimant can perform the functional demands of the past relevant work as they were actually performed or generally performed throughout the national economy. Lewis v. Barnhart, 281 F.3d 1081, 1093 (9th Cir. 2002); 20 C.F.R. § 404.1560(b). The ALJ must make a careful appraisal of: (1) the individual's statements as to which past work requirements can no longer be met and the reason(s) for his inability to meet those requirements; (2) medical evidence establishing how the impairment limits the ability to meet the physical and mental requirements of the work; and (3) in some cases, supplementary or corroborative information from other sources such as employers and the DOT. S.S.R. No. 82-62. The decision must be developed and fully explained. Id.

Here, the ALJ did not provide an explanation for finding that plaintiff could perform past relevant work as actually or generally performed, and relied entirely on the conclusion of the vocational expert, referencing only the testimony of the vocational expert who stated that plaintiff could perform his past relevant work as an order clerk. (AR 19). The ALJ did not provide a careful appraisal of plaintiff's statements or treatment record, and did not elicit any testimony from plaintiff or other witnesses with regard to the actual requirements of his past work. The ALJ also did not make a specific finding as to why he could or could not perform those requirements. The ALJ did not discuss any medical evidence that would indicate whether plaintiff could or could not meet the mental and physical requirements of an inside sales order clerk. Although the ALJ listed a few of the duties of an order clerk, including answering phones, ...

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