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Harp v. Commissioner of Social Security

United States District Court, E.D. California

April 20, 2015

JOHN HARP, Plaintiff,


STANLEY A. BOONE, Magistrate Judge.



Plaintiff John Harp ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability benefits and supplemental security income pursuant to the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Stanley A. Boone.[1]

Plaintiff suffers from alcohol abuse in remission, bilateral carpal tunnel syndrome, sleep apnea, mild cervical and lumbar degenerative disc disease, borderline intellectual functioning, learning disability, and anxiety disorder. For the reasons set forth below, Plaintiff's Social Security appeal shall be granted in part. II.


After receiving an unfavorable decision on his prior claim for disability benefits on January 25, 2010 (AR 63-74), Plaintiff protectively filed an application for a period of disability and disability insurance benefits and a Title XVI application for supplemental security income on April 9, 2010. (AR 227.) Plaintiff's applications were initially denied on December 31, 2010, and denied upon reconsideration on May 16, 2011. (AR 129-132; 138-142.) Plaintiff requested and received a hearing before Administrative Law Judge Michael J. Haubner ("the ALJ"). Plaintiff appeared for a hearing on May 24, 2012. (AR 34-62.) On June 15, 2012, the ALJ found that Plaintiff was not disabled. (AR 13-28.) The Appeals Council denied Plaintiff's request for review on January 17, 2014. (AR 1-4.)

A. Hearing Testimony

Plaintiff testified at the May 24, 2012 hearing and was represented by counsel. (AR 39-54.) Plaintiff graduated from high school. (AR 53.) Plaintiff last drank alcohol in April 2009 and has been convicted of a DUI with vehicular manslaughter. (AR 42.)

Plaintiff lives with his father and sister. (AR 45.) He has a driver's license and drives three times per week. (AR 45-46.) Plaintiff watches television for an hour a day every three days and gets on the computer for about ten minutes once every three days. (AR 43, 49.) He reads his mail once a week (AR 43); talks on the phone to family for about ten minutes every day (AR 49, 50); goes out to eat about once a month and leaves the house daily (AR 50).

Plaintiff is able to do all his personal care himself. (AR 43-44.) He prepares a simple meal daily, does dishes three times per week, and cleans the kitchen once a week. (AR 44, 47.) Plaintiff takes out the trash and mows the lawn once a week. (AR 44-45.) It has been three months since Plaintiff changed the sheets on his bed. (AR 46.) Plaintiff is able to fold and hang laundry and does laundry every two weeks. (AR 46.) Plaintiff vacuums once a week. (AR 47.) Plaintiff has a dog and gives it food and water every three days. (AR 47.) Plaintiff goes shopping for groceries twice per month and goes to a non-grocery store twice per month. (AR 48.) Plaintiff is compliant with his treatment and medications. (AR 58.)

When Plaintiff previously worked as a security office he lifted between 50 and 75 pounds. (AR 52.) As a security officer, Plaintiff did crowd control and surveillance. (AR 54.)

Plaintiff is able to lift and carry eight pounds, can stand twenty minutes, and walk thirty minutes before resting. (AR 40.) Plaintiff can sit thirty minutes at a time and can only concentrate for two minutes. (AR 40.) During an eight hour day, Plaintiff needs to rest one hour and twenty minutes. (AR 41.) Plaintiff is only rarely able to bend and needs to sit in a chair to put his socks and shoes on. (AR 41-42.)

A vocational expert ("VE"), Thomas Dachelet, also testified at the hearing. (AR 51-61.) The VE classified Plaintiff's past work history as a security officer, light, SVP 3, semiskilled, but heavy as performed. (AR 53.) The ALJ presented a hypothetical of an individual of Plaintiff's same age, education, language, and experience who is able to occasionally lift twenty pounds, frequently lift ten pounds; sit, stand, and walk six hours in an eight hour day; can occasionally stoop, crouch, kneel, and crawl; and is able to carry out simple, routine, repetitive tasks. (AR 54-55.) The VE opined that this individual would not be able to perform Plaintiff's past relevant work. (AR 55.) However, this individual would be able to work as a packing line worker, Dictionary of Occupational Titles ("DOT") 753.687-038, unskilled, SVP 2, with 43, 902 jobs in California and 319, 204 in the national economy; garment sorter, DOT 222.687-014, unskilled, SVP 2, with 20, 897 jobs in California and 223, 146 in the national economy; and ampoule filler, DOT 559.685-01, unskilled, SVP 2, with 20, 295 jobs in California and 166, 016 in the national economy. (AR 55.)

The ALJ presented a second hypothetical of an individual who can lift and carry twenty pounds occasionally and ten pounds frequently; stand and walk about six hours out of an eight hour day; sit six hours out of an eight hour day; ability to push and pull is unlimited; can occasionally climb ladders, ropes and scaffolds; all other posturals at frequent with no additional limitations. (AR 56.) The VE opined that this individual would be able to perform Plaintiff's past relevant work as per the DOT, but not as performed. (AR 56.) This individual would also be able to perform those jobs identified in the first hypothetical. (AR 56.)

The ALJ presented a third hypothetical of an individual who is able to manage his own funds; has the ability to perform simple, repetitive tasks; cannot perform detailed or complex tasks; cannot accept instructions from supervisors, interact with the public or co-workers; cannot perform work on a persistent basis; cannot maintain regular attendance in the workplace; cannot complete a normal workweek or workday; and cannot deal with normal stresses in the workplace. (AR 56-57.) The ALJ assumed and the VE confirmed that there would be no work available for this individual. (AR 57.)

The ALJ presented a fourth hypothetical of an individual with severe social functioning impairment, marked impairment and attention in concentration; two episodes of emotional deterioration; capable of handling his own funds; and marked impairment of persistence and pace. (AR 57.) The ALJ assumed and the VE confirmed that there would be no work that this individual could perform. (AR 57.)

The ALJ presented a fifth hypothetical of an individual who was able to lift and carry eight pounds; stand twenty minutes at a time, walk thirty minutes at a time; sit thirty minutes at a time; concentrate two minutes at a time; needs to raise his feet or lay down for an hour and twenty minutes out of eight hours; and can rarely bend. (AR 57.) The VE opined that there would be no work that this individual could perform. (AR 58.)

B. ALJ Findings

Plaintiff had previously filed for benefits and a hearing decision dated January 25, 2010 found that he had the residual capacity to perform light work with simple repetitive tasks and was not disabled. (AR 18.) The period at issue here begins January 26, 2010. (AR 18.) The ALJ found that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2012. (AR 20.) Plaintiff had not engaged in substantial gainful activity since the alleged onset date of December 1, 2008. (AR 20.)

Plaintiff has the following severe impairments: mild cervical and lumbar degenerative disc disease, borderline intellectual functioning, learning disability, and anxiety disorder. (AR 20.) Plaintiff has the residual functional capacity to lift and carry 20 pounds occasionally and 10 pounds frequently; sit, stand, and or walk for six hours in an 8 hour day; and occasionally stoop, crouch, and crawl. (AR 22.) Plaintiff is limited to simple repetitive tasks. (AR 22.)

Plaintiff is unable to perform any past relevant work. (AR 26.) Plaintiff was thirty years old and therefore is defined as a younger individual on the alleged disability onset date. (AR 27.) Plaintiff has at least a high school education and is able to communicate in English. (AR 27.) Considering Plaintiff's age, education, work experience, and residual functional capacity, there are jobs that exist in the significant numbers in the national economy that Plaintiff can perform. (AR 27.) Plaintiff has not been under a period of disability, as defined in the Social Security Act, from December 1, 2008 though the date of the decision. (AR 28.)



Congress has provided that an individual may obtain judicial review of any final decision of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). In reviewing findings of fact in respect to the denial of benefits, this court "reviews the Commissioner's final decision for substantial evidence, and the Commissioner's decision will be disturbed only if it is not supported by substantial evidence or is based on legal error." Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). "Substantial evidence" means more than a scintilla, but less than a preponderance. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (internal quotations and citations omitted). "Substantial evidence is relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion." Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002) (quoting Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)).

"[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence." Hill, 698 F.3d at 1159 (quoting Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006). However, it is not this Court's function to second guess the ALJ's conclusions and substitute the court's judgment for the ALJ's. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) ("Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.").



Plaintiff contends that the ALJ's assessment of Plaintiff's mental impairments is fatally flawed; Plaintiff's mental retardation meets Listing 12.05C; the reasons the ALJ provided for rejecting Dr. Tirunagaru's opinion of Plaintiff's physical limitations were legally inadequate; the ALJ did not properly consider Plaintiff's testimony; the reasons the ALJ gave for rejecting the statement of Plaintiff's sister were not legally sound; and this case should be remanded for benefits. Defendant counters the ALJ did not err and that Plaintiff did not overcome the presumption of nondisability that arose based on the prior denial of benefits.

A. Presumption of Continued Ability to Work

Plaintiff's prior application for benefits was denied on January 25, 2010. (AR 63-74.) Plaintiff did not appeal this decision so it is final and binding. 20 C.F.R. ¶ 404.905; Chavez v. Bowen, 8444 F.2d 691, 692 (1988). The doctrine of res judicata applies in administrative proceedings, although it is less rigidly applied to administrative proceedings. Chavez, 844 F.2d at 693.

The Ninth Circuit has held that a finding that the claimant is not disabled creates a presumption that the claimant continues to be able to work after that date. Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995). The prior finding that the claimant was not disabled cannot be re-litigated through date of the prior decision. Giancola v. Colvin, 31 F.Supp.3d 1215, 1220-21 (E.D. Wash. 2014). "[I]n order to overcome the presumption of continuing nondisability arising from the first administrative law judge's findings of nondisability, [a claimant] must prove changed circumstances' indicating a greater disability." Chavez, 844 F.2d at 693 (quoting Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir.1985)). This can be done by showing a worsening of symptoms or other changes such as the existence of a new impairment not considered in the previous application or a change in the claimant's age category. Lester, 81 F.3d at 827. The burden of proof is on the claimant to show that he is disabled and on a subsequent application for benefits the claimant has the burden of rebutting the presumption of continuing nondisability. Lyle v. Secretary of Health and Human Services, 700 F.2d 566, 568 (9th Cir. 1983).

The presumption that Plaintiff is not disabled arises in this action. Therefore, in adjudicating a subsequent claim, the ALJ applies the presumption of continuing nondisability and will determine that the claimant is not disabled unless the claimant rebuts the presumption by showing changed circumstances with respect to the unadjudicated period. Acquiescence Ruling 97-4(9), 1997 WL 742758 (1997). If the presumption is rebutted, the ALJ must give effect to certain findings made in the prior final decision by the ALJ. Id.

In the prior decision, the ALJ found that Plaintiff's severe impairments were mild degenerative disk disease of the cervical and lumbar spine; borderline intellectual functioning/learning disorder; and an anxiety disorder. (AR 68.) The relevant period for the current application for benefits is from January 26, 2010 through the date of the decision, June 15, 2012. (AR 19.)

B. The ALJ Erred by Failing to State Reasons for the Finding that there was No Change in Plaintiff's Mental Condition

Plaintiff argues that the ALJ erred at Step Two by failing to consider Plaintiff's psychosis in determining his severe impairments. Defendant counters that the ALJ properly evaluated Plaintiff's mental impairments in light of the presumption of continued nondisability, and that Plaintiff has not identified any medical evidence demonstrating that his psychotic disorder has worsened since January 25, 2011.[2] Defendant further contends that the ALJ properly considered the medical record and that ...

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