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Mojarro v. Berryhill

United States District Court, E.D. California

March 29, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff 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.[1] 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.


         On January 31, 2011, Plaintiff filed his current applications for DIB and SSI alleging disability beginning on October 24, 2005. AR 80-95.[2] 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 followed.

         Plaintiff's Testimony

         The ALJ 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.

         At the 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.

         When 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.

         When 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.

         Medical 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.

         Lastly, 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 420.

         Medical Record

         The 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 ALJ's Decision

         Using 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.

         Based 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.


         Congress 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).


         In 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).


         Plaintiff 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.

         1. The ALJ Fully and Fairly Developed the Record

         Plaintiff's 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 ...

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