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Duran v. Commissioner of Social Security

United States District Court, E.D. California

April 7, 2017

JOSEPH MARCOS DURAN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER DENYING PLAINTIFF'S SOCIAL SECURITY APPEAL (ECF 16, 17, 18)

         I. INTRODUCTION

         Plaintiff Joseph Marcos Duran (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for disability benefits 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 asthma, back pain, anxiety disorder NOS; and major depressive disorder. For the reasons set forth below, Plaintiff's Social Security appeal shall be denied.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff received supplemental security income benefits based on disability as a child. (AR 65, 353-358.) As required under the regulations, Plaintiff's eligibility for benefits was re-determined under the rules for determining disability in adults when he turned eighteen. On March 22, 2012, it was determined that Plaintiff was no longer disabled as of March 1, 2012. (AR 74-77.) The determination was upheld on reconsideration. (AR 106-108.) Plaintiff requested and received a hearing before Administrative Law Judge John Heyer (“the ALJ”). Plaintiff appeared for a hearing on November 14, 2012. (AR 41-64.) On July 14, 2014, the ALJ found that Plaintiff was not disabled. (AR 16-28.) The Appeals Council denied Plaintiff's request for review on January 11, 2016. (AR 1-3.)

         A. Hearing Testimony

         Plaintiff testified at the May 21, 2014 hearing. (AR 45-56.) Plaintiff was born on January 4, 1994, and was 20 years old on the date of the hearing. (AR 45.) Plaintiff does not drive and his sister dropped him off for the hearing. (AR 45.) Plaintiff has never worked. (AR 45.) Plaintiff does not go outside and when he is around people his anxiety acts up. (AR 45.)

         Plaintiff had been seeing a psychiatrist and psychologist since August or December 2013. (AR 45.) Plaintiff sees a therapist for 20 minutes once a month and the psychiatrist every 2 months. (AR 46.) Plaintiff cannot tell if the therapy is helping because 20 minutes is not enough. (AR 46.) Plaintiff had just started taking medications that help slightly. (AR 46.) Plaintiff requested to be kept on a low dose until he felt comfortable enough to increase the dosage. (AR 46.) Plaintiff had not taken medication before. (AR 47.)

         Plaintiff was previously found to be disabled due to his depression, anger, and slight OCD. (AR 47.) Plaintiff attended public school from first through fifth grade. (AR 47.) In fifth grade, Plaintiff went on independent study from sixth to seventh grade. (AR 47.) Plaintiff tried to go to intermediate school but could not handle the kids and switching classes all the time. (AR 47.) Plaintiff stopped going to school and an officer was sent to pick him up. (AR 47.) Plaintiff went back on independent study for seventh and eighth grade. (AR 47.) Plaintiff was in a small class with three teachers and four to six students. (AR 48.) Plaintiff went to independent study at West High for ninth grade. (AR 48-49.) He dropped out of school in the middle of the tenth grade. (AR 49.)

         Plaintiff dropped out of school because the doctor who gave him the referral to go to the school had left and he could not find someone else to give him a referral. (AR 49.) His mom talked to the principal and they placed him in the Opportunity class, but over time more kids started coming and he could not handle going to lunch. (AR 49.) Plaintiff had to stay at school at least five hours with other kids doing work. (AR 50.) When he went to lunch he would have to be at a table with other kids who were bad kids and he could not relate to them. (AR 50.) Plaintiff would like to go to adult school, but is nervous because his sister cannot take him all the time so he would have to take the bus. (AR 50-51.) It would be a problem taking the bus because other people are on it. (AR 51.)

         Plaintiff has taken the bus before. (AR 51.) The last time was the prior year when he went to Omni for the first time. (AR 51.) Plaintiff's mother goes with him on the bus. (AR 51.) Sometimes there will be a lot of people and sometimes there are not a lot of people on the bus. (AR 51.)

         Plaintiff does not go to the movies or the mall and has no friends. (AR 51.) Plaintiff does not go to see relatives. (AR 51.) People do come to his house to visit his mother or his sister. (AR 51.) Plaintiff gets along with them okay, but feels like he cannot talk to them as well as he can to the people who live with him so he avoids them and stays in his room. (AR 52.) Whether Plaintiff can be in a room with other people depends on the number of people. (AR 52.) Plaintiff can be in a room with less than ten people. (AR 52.) If there are ten or more people in the room, he begins to feel anxious. (AR 52.)

         Plaintiff also has slight scoliosis in his back. (AR 52.) The scoliosis used to cause him physical problems, but it has been a bit better. (AR 52.) Plaintiff can lift fifty pounds, stand for two hours, walk for an hour, and sit all day long. (AR 53.) Plaintiff does not exercise. (AR 53.)

         Plaintiff worries about things such as that something might happen to his mother when she leaves the house. (AR 53.) Plaintiff has trouble sleeping because sometimes he does not feel like sleeping. (AR 53-54.) Sometimes he gets stressed or feels depressed and it is hard to sleep. (AR 54.) Plaintiff has trouble falling asleep and gets tired easily. (AR 54.) The current medications Plaintiff is taking were started April 4, 2014. (AR 54.) Prior to that Plaintiff had been prescribed two different medications around December or January. (AR 55.) Plaintiff never took any mental health medication as a child. (AR 55.) Plaintiff's counsel stated that the record shows he took Paxil around 2012. (AR 55-56.) Plaintiff does not remember taking any medication. (AR 56.)

         Joel Greenberg, a vocational expert (“VE”), also testified at the hearing. (AR 56-.) The ALJ presented a hypothetical of an individual that can lift about 50 pounds; sit, stand, and walk six hours each in an eight hour workday; and was able to perform jobs at all exertion levels. (AR 57.) This individual would not be able to interact with the general public, could only occasionally interact with co-workers and supervisors; and who could work in proximity to others, but not as part of a team. (AR 57-58.) The VE ruled out jobs that would require an individual to be on their feet a majority of the day because they would not allow the individual to be able to change or sit down after an hour of standing or walking. (AR 58.) The VE opined that this individual could work as a hand packager, Dictionary of Occupational Titles (“DOT”) 920.587-018, exertion level medium, SVP: 2. (AR 58.) To account for other SVP levels and variables that would affect the hypothetical, the VE reduced the jobs available by fifty percent, which left 265, 000 jobs nationally and 37, 000 statewide. (AR 58.) This individual would also be able to work as a small product assembler I, DOT 706.684-022, exertion level light, SVP 2. (AR 58.) Again to account for other SVP levels, the number of jobs was reduced by fifty percent, leaving 96, 000 jobs nationally, and 8, 000 jobs statewide. (AR 58-59.) This individual could also work as a laundry sorter, DOT 361.687-014, exertion level light, SVP 2. (AR 59.) With a fifty percent reduction to account for other SVP levels and possible changes in the hypothetical variables, there would be 204, 000 jobs nationally, and 21, 000 statewide. (AR 59.)

         Plaintiff's counsel presented a hypothetical of the same individual with no interaction with the general public; who could not interact with supervisors and co-workers fifty percent of the time; and would be unable to respond appropriately to usual work situations and changes in a work routine setting less than fifty percent of the time. (AR 59.) As to the ability to interact with supervisors and co-workers, the VE opined that none of the jobs identified would require such interaction more than fifty percent of the time. (AR 60.) The VE asked for clarification on the second part of the hypothetical. (AR 60-61.) The attorney clarified that fifty percent of the time the individual would be unable to interact appropriately as well as to respond to changes in a routine setting. (AR 61.) The VE opined that this individual would be unable to work. (AR 62.)

         The attorney presented a second hypothetical of the same individual with additional impairments that fifteen percent of the time would him to be unable to perform tasks; would be unable to maintain regular attendance and be punctual; and have difficulty traveling in unfamiliar places or using public transportation. (AR 63.) The VE opined there would be no jobs for this individual. (AR 63.)

         B. ALJ Findings

         The ALJ made the following findings of fact and conclusions of law:

• Plaintiff attained age 18 on January 4, 2012, and was eligible for supplemental security income benefits as a child for the month preceding the month in which he attained age 18. Plaintiff was notified that he was found no longer disabled as of March 1, 2012, based on a redetermination of disability under the rules for adults who file new applications.
• Since March 1, 2012, Plaintiff has had the following severe impairments: anxiety disorder NOS; and major depressive disorder.
• Since March 1, 2012, Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments.
• Since March 1, 2012, Plaintiff has had the residual functional capacity to lift 50 pounds; sit, stand, and walk for six hours each in an eight hour day; perform no work with the general public; have no more than occasional interactions with coworkers and supervisors; and work in proximity to others but not as part of a team. Occasionally is defined as occurring from very little up to one-third of the time, or approximately 2 hours in an 8-hour workday.
• Plaintiff has no past relevant work.
• Plaintiff was born on January 4, 1994, and is a younger individual age 18-49.
• Plaintiff has a limited education and is able to communicate m English.
• Transferability of job skills is not an issue because Plaintiff does not have past relevant work.
• Since March 1, 2012, considering Plaintiffs age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform.
• Plaintiffs disability ended on March 1, 2012, and he has not become disabled again since that date.

(AR 21-27.)

         III. LEGAL STANDARD

         To qualify for disability insurance benefits under the Social Security Act, the claimant must show that he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Regulations set out a five step sequential evaluation process to be used in determining if a claimant is disabled. Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1194 (9th Cir. 2004). The five steps in the sequential evaluation in assessing whether the claimant is disabled are:

Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.
Step two: Is the claimant's alleged impairment sufficiently severe to limit his or her ability to work? If so, proceed to step three. If not, the claimant is not disabled.
Step three: Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not, proceed to step four.
Step four: Does the claimant possess the residual functional capacity (“RFC”) to perform his or her past relevant work? If so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant's RFC, when considered with the claimant's age, education, and work experience, allow him or her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.

Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).

         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) ...


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