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Carbajal v. Berryhill

United States District Court, C.D. California

June 15, 2017

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


          JOHN D. EARLY United States Magistrate Judge.



         Plaintiff Byron D. Carbajal filed a Complaint on September 29, 2016, seeking review of the Commissioner's denial of his application for Title II Disability Insurance Benefits (“DIB”). (See Dkt. No. 1.) On January 11, 2017, Defendant filed an Answer to Plaintiff's Complaint. (Dkt. No. 16.) All parties have consented to proceed, pursuant to 28 U.S.C. § 636(c), before the undersigned Magistrate Judge for all further proceedings, including entry of Judgment. (See Dkt. Nos. 13, 14, 15.) On April 6, 2017, the parties filed a “Joint Stipulation” (sometimes hereinafter “J. Stip.”) setting forth the disputed issues in the case. (Dkt. No. 22.) The matter is now under submission and ready for decision.



         Plaintiff filed his first application for Title II DIB on December 7, 2011, alleging a disability onset date of July 9, 2009. (See Administrative Record [“AR”] 122.) Plaintiff alleged that he was disabled due to low back pain, “gouty arthritis” in his feet, and post-traumatic stress disorder (“PTSD”). (See AR 127.) Plaintiff has had two hearings before two different Administrative Law Judges (“ALJ”).

         Plaintiff was born on November 29, 1973, and at the time of his alleged onset of disability he was 36 years old. (AR 33, 133.) His only source of income is money he receives from the Veterans Affairs Department (“VA”). (AR 46-47.) He has not worked since June 15, 2013. (AR 47-48.) Plaintiff is divorced and he has two children, aged 21 and 11. (AR 46-47, 405.) Plaintiff lives with the family of a friend, and his daughter apparently sometimes lives with him. (AR 46-47, 405)

         Plaintiff testified that he was in the Army, and he went to Iraq in 2003 and 2007, where he trained Iraqi forces. (AR 56.) Plaintiff says that he injured his back when he was in the Army, and he now suffers from PTSD. (AR 48-50, 56.) He asserts that he is preoccupied with war, death, and destruction, and hears sounds and has auditory hallucinations which interfere with his concentration. (AR 55-56.) His feet swell up, and when they do he uses a back brace and crutches; he has been told that there is a “50/50” chance that surgery would help him. (AR 50-52.) From around July 2009 to September 2014, he tried to take courses online through the University of Phoenix, but did not earn a degree. (See AR 45-46.)

         On June 4, 2013, Plaintiff, represented by counsel, appeared at a first hearing before an ALJ at which a vocational expert (“VE”) testified. (AR 69, 122.)

         In an opinion dated June 14, 2013, the first ALJ found that Plaintiff was not disabled. (See AR 122-34.) In particular, the ALJ found that Plaintiff had three severe impairments: (1) chronic lumbosacral musculoligamentous strain; (2) occasional episodes of gouty arthritis; and (3) PTSD. (AR 124.) The ALJ found that Plaintiff was unable to perform his past relevant work (“PRW”), which included “marksmanship instructor, ” “office manager, ” and “tractor trailer truck driver.” (AR 132.) Nevertheless, based on the VE's testimony, the ALJ found that Plaintiff could perform three other jobs that existed in significant numbers in the economy: (1) “bench assembler, ” which the Dictionary of Occupational Titles (“DOT”) describes at job no. 706.684-041; (2) “office helper, ” DOT no. 239.567-010; or (3) “toy assembler, ” DOT no. 731.687-034. (See AR 133-34.) Accordingly, that first ALJ denied Plaintiff's first application for DIB at step five of the five-step sequential evaluation, finding that Plaintiff had not been under a disability from July 9, 2009, the alleged onset date, through June 14, 2013, the date of the ALJ's decision. (AR 134.)

         Notwithstanding that first denial, Plaintiff filed a second application for DIB on January 7, 2015, now alleging a slightly different disability onset date of July 11, 2009. (See AR 23.)

         Another hearing was held before a second, different ALJ on March 15, 2016. (AR 23, 39-68.) Plaintiff was represented by an attorney at that second hearing, and a VE also testified. (AR 23.)

         In another opinion dated April 6, 2016, the second ALJ found that Plaintiff was still not disabled. (See AR 23-34.)



         The opinion from the second ALJ recites the following:

The claimant was found to be not disabled in a decision by an ALJ, dated June 14, 2014, based on a prior application for period of disability and disability insurance benefits protectively filed on December 7, 2011. (Exh. B1A.) The claimant's current application alleges an onset date of disability that is within the previously adjudicated period. The undersigned finds, with respect to the previously adjudicated period, that the prior decision by an ALJ is final and that the same parties, law, fact, and issues are involved under the current application. However, there still exists a period after the effective date of the prior decision by the ALJ during which the claimant continues to meet the insured status requirements that must be addressed by a decision on the merits. Accordingly, the request for a hearing is not dismissed with respect to the unadjudicated period, and this decision adjudicates the period from June 15 2013, through the date of this decision [i.e., April 6, 2016].

(AR 23; parenthetical material in original; bracketed material added.)

         The second ALJ again found that Plaintiff had the same three severe impairments noted in the first opinion, that is (1) chronic lumbosacral musculoligamentous strain; (2) occasional episodes of gouty arthritis; and (3) PTSD. (AR 26.)

         The second ALJ assessed Plaintiff's residual functional capacity (“RFC”), and essentially found the same RFC that the first ALJ had assessed. (Cf. AR 27 with AR 126.) In particular, the second ALJ stated as follows:

[Plaintiff was] limited to no more than occasional stooping; he was precluded from interacting with the public; his [sic] was limited to no more than occasional interactions with coworkers and supervisors; he was limited to no more than occasional changes in the workplace setting; he was precluded from performing complex and detailed work activity, but he remained capable of performing unskilled labor; and he would likely to be [sic] absent from work an average of two days at a time every three months.

(AR 27; bracketed material added.)

         In assessing the credibility of Plaintiff's subjective complaints, the ALJ stated as follows:

The undersigned finds the claimant's allegations concerning the intensity, persistence and limiting effects of his symptoms are not consistent with the evidence. The undersigned finds that despite the claimant's testimony, there is no objective evidence of any worsening of his impairments between the time of the last ALJ decision ...

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