United States District Court, E.D. California
ORDER AFFIRMING AGENCY'S DENIAL OF BENEFITS AND
ORDERING JUDGMENT FOR COMMISSIONER
Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE
Jose Mojarro (“Plaintiff”) seeks judicial review
of the final decision of the Commissioner of Social Security
(“Commissioner”) denying his application for
disability insurance benefits and supplemental security
income (“SSI”) under Titles II and XVI of the
Social Security Act, respectively. The matter is before the
Court on the parties' briefs, which were submitted
without oral argument to Magistrate Judge Barbara A.
McAuliffe. The Court finds the decision of the Administrative
Law Judge (“ALJ”) to be supported by substantial
evidence in the record as a whole and based upon proper legal
standards. Accordingly, this Court affirms the agency's
determination to deny benefits.
AND PRIOR PROCEEDINGS
January 31, 2011, Plaintiff filed his current applications
for DIB and SSI alleging disability beginning on October 24,
2005. AR 80-95. Plaintiff's applications were denied
initially and on reconsideration. AR 31-39. Subsequently,
Plaintiff requested a hearing before an ALJ. ALJ Catherine
Lazuran held a hearing on March 4, 2014, and issued an order
denying benefits on June 11, 2014. AR 13-25. The ALJ's
decision became the final decision of the Commissioner of
Social Security when the Appeals Council denied
Plaintiff's request for review. AR 6-10. This appeal
held a video hearing on March 4, 2014. AR 377. Plaintiff
appeared and testified in Bakersfield, California. AR
376-423. He was represented by an attorney. AR 28. Impartial
Medical Expert Rueben Beezy, M.D, and Vocational Expert
(“VE”) Judith Najarian also testified. AR 64.
time of the hearing, Plaintiff was 45 years old with a
driver's license, a high school education, and vocational
training in upholstery. AR 380-81. Plaintiff last worked in
2005 at a maintenance job where he drove a forklift, serviced
the mill, put product into tanks, and supervised two work
crews. AR 381-82. Plaintiff stopped working in 2005 when he
fell from a “50 foot tank” onto a set of metal
stairs causing injury to his back, hand, and leg. After his
injury, Plaintiff received a Workers' Compensation
settlement of $170, 000, four years prior to the hearing. AR
383-84; 398. Plaintiff testified that the majority of his
allegedly disabling injuries stem from this workplace injury.
asked about his medical treatment, Plaintiff testified that
he wore a back brace and took Vicodin for neck and back pain.
AR 400-405. Plaintiff also takes medications for diabetes and
depression. AR 405-407. His medications caused dizziness and
blurry vision and as a result his doctor recommended that he
get glasses. AR 384-85. Plaintiff denied being hospitalized
or visiting an emergency room since his injury in 2005. AR
385. Although his doctors have recommended surgery, Plaintiff
has not had any surgery since a hand procedure in 2006. AR
387-88, 399. Plaintiff testified that he had poor hearing but
could use his right ear to hear over the telephone and could
understand what people were saying if he read their lips. AR
389-90. Plaintiff stated that his left hand was better than
his right hand. AR 390-91. Although Plaintiff was stabbed in
his left hand in 1994 or 1995, he was able to work using his
left hand for many years. AR 391. Plaintiff testified that on
his right hand, he is unable to move his middle and fourth
finger. AR 392.
asked about his daily activities, Plaintiff asserted he was
unable to exercise or walk more than 20 feet; his wife helped
him dress and bathe and she handled housework and childcare.
AR 391-93. He helps his wife with the shopping and
occasionally visited with friends, but he denied having
hobbies or doing anything besides watching television. AR
392, 394-96, 403, 407. Plaintiff explained that when he
watched television, he sat in a “Lazy Boy” chair
and elevated his legs. AR 403-04. Plaintiff mostly isolates
himself and spends about twenty-two hours in his room in a
twenty-four hour period. AR 407.
expert, Dr. Beezy also testified at the hearing. AR 408-414.
Dr. Beezy testified that Plaintiff's case file was
missing several Workers' Compensation records from
Plaintiff's accident in 2005. AR 409. However, based on
the existing records in Plaintiff's file Dr. Beezy
testified that Plaintiff suffered from diabetes; neck and
shoulder pain; mild degenerative joint disease; instances of
foot, knee, elbow, and ankle pain; right hand surgery;
bilateral hearing loss; chest pain; obesity; hypertension;
hyperlipidemia; fatty liver; depression, and anxiety. AR
409-10. Dr. Beezy opined that Plaintiff did not have an
impairment that met or equaled a listing. AR 410. He further
opined, based on Plaintiff's subjective testimony that
Plaintiff could perform less than sedentary work and would
have trouble climbing; he would be limited in stooping,
crouching, and crawling; he would be markedly limited in
handling with his right hand and reaching with his right
shoulder; he should avoid heights; and he would be limited in
his ability to sustain full-time work. AR 410-11. In so
testifying, Dr. Beezy admitted he was basing his opinion on
Plaintiff's subjective statements at the hearing. AR 411.
the ALJ asked the vocational expert hypothetical questions
based upon the medical record and the ALJ's subsequent
RFC finding. After asking the VE to contemplate an individual
of the same age, education, and work background as Plaintiff,
the VE determined that Plaintiff could perform work as an
usher, counter clerk, and dealer accounts investigator. AR
entire medical record was reviewed by the Court. AR 1-423.
The medical evidence will be referenced below as necessary to
this Court's decision.
the Social Security Administration's five-step sequential
evaluation process, the ALJ determined that Plaintiff did not
meet the disability standard. AR 13-25. More particularly,
the ALJ found that Plaintiff had not engaged in any
substantial gainful activity since October 24, 2005. AR 15.
Further, the ALJ identified lumbar and cervical degenerative
disc disease; right hand and elbow injury and history of
surgery; obesity and fatty liver; hearing loss; and diabetes
as severe impairments. AR 16-18. Nonetheless, the ALJ
determined that the severity of Plaintiff's impairments
did not meet or exceed any of the listed impairments. AR 18.
on her review of the entire record, the ALJ determined that
Plaintiff retained the residual functional capacity
(“RFC”) to perform light work including that
Plaintiff can lift or carry 20 pounds occasionally and 10
pounds frequently; stand, walk or sit for 6 hours in an
8-hour workday. Plaintiff is also limited to occasional,
bending, stooping, pushing, pulling, crouching, crawling and
climbing. He can also occasionally reach, handle, finger, and
feel with the right dominant arm; he has no limit on use of
the left arm. AR 18-19. He should also avoid concentrated
exposure to extremely loud noise, vibrations, and hazards
such as unprotected heights. AR 18-19. Plaintiff cannot
perform his past relevant work, but ultimately, the ALJ found
that Plaintiff could perform a significant number of jobs
that exist in the national economy. AR 23-25.
has provided a limited scope of judicial review of the
Commissioner's decision to deny benefits under the Act.
In reviewing findings of fact with respect to such
determinations, this Court must determine whether the
decision of the Commissioner is supported by substantial
evidence. 42 U.S.C. § 405 (g). Substantial evidence
means “more than a mere scintilla, ”
Richardson v. Perales, 402 U.S. 389, 402 (1971), but
less than a preponderance. Sorenson v. Weinberger,
514 F.2d 1112, 1119, n.10 (9th Cir. 1975). It is “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). The record as a whole
must be considered, weighing both the evidence that supports
and the evidence that detracts from the Commission's
conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th
Cir. 1985). In weighing the evidence and making findings, the
Commission must apply the proper legal standards. E.g.,
Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).
This Court must uphold the Commissioner's determination
that the claimant is not disabled if the Secretary applied
the proper legal standards, and if the Commission's
findings are supported by substantial evidence. Sanchez
v. Sec'y of Health and Human Serv., 812 F.2d 509,
510 (9th Cir. 1987); see also Andrews v. Shalala, 53
F.3d 1035, 1039 (9th Cir. 2002).
order to qualify for benefits, a claimant must establish that
he or she is unable to engage in substantial gainful activity
due to a medically determinable physical or mental impairment
which has lasted or can be expected to last for a continuous
period of not less than twelve months. 42 U.S.C. § 1382c
(a)(3)(A). A claimant must show that he or she has a physical
or mental impairment of such severity that he or she is not
only unable to do his or her previous work, but cannot,
considering his or her age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy. Quang Van Han v.
Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden
is on the claimant to establish disability. Terry v.
Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).
contends that the ALJ erred in: (1) developing the record;
(2) weighing the medical evidence; (3) assessing the
credibility of his subjective complaints and the statements
of his wife; (4) considering his need to raise his legs and
the impact of his medication side effects; and (5) finding
that he could perform jobs that exist in the national
economy. (Doc. 18 at 10-20). As discussed further below,
there is no merit to Plaintiff's list of grievances. The
Commissioner's final decision was based upon substantial
evidence and free of reversible error.
The ALJ Fully and Fairly Developed the Record
first contention is that the ALJ did not fully and fairly
develop the record. Specifically, Plaintiff argues that Dr.
Beezy, the independent medical examiner who testified at the
hearing, repeatedly mentioned that many of Plaintiff's
medical records from his 2005 Workers' Compensation claim
were missing from Plaintiff's file. According to
Plaintiff, because Dr. Beezy did not have the benefit of many
of the pertinent medical ...