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Clark v. Commissioner of Social Security

United States District Court, E.D. California

June 21, 2017




         Plaintiff Christine L. Clark (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her 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 a history of substance abuse in remission, affective disorder, and status-post thoracic spine fracture. For the reasons set forth below, Plaintiff's Social Security appeal shall be denied.


         Plaintiff had a prior application for Social Security benefits denied on June 14, 2011. (AR 84-88.) Plaintiff protectively filed an application for a period of disability and disability insurance benefits on July 13, 2012, and a Title XVI application for supplemental security income on July 17, 2012. (AR 22, 31.) Plaintiff's applications were initially denied on December 7, 2012; and denied upon reconsideration on April 5, 2013. (AR 90-94, 95-99, 102-106, 107-111.) Plaintiff requested and received a hearing before Administrative Law Judge Vincent Misenti (“the ALJ”). Plaintiff appeared for a video hearing on July 1, 2014. (AR 727-756.) On September 23, 2014, the ALJ found that Plaintiff was not disabled. (AR 707-719.) The Appeals Council denied Plaintiff's request for review on February 1, 2016. (AR 701-703.[2])

         A. Relevant Hearing Testimony

         Plaintiff testified at the July 1, 2014 video hearing with counsel. (AR 732-749.) Plaintiff is four eleven and weighs 165 pounds (AR 732.) Plaintiff is right handed. (AR 732.) Plaintiff is married and lives in a house with her husband who is unemployed and recently disabled. (AR 732-733.) Plaintiff receives general relief. (AR 733.) Plaintiff had a driver's license but it was suspended in 2009 for multiple speeding tickets. (AR 733.) Plaintiff takes the bus or her mother takes her to appointments. (AR 733-34.) Plaintiff has not worked for wages or pay since August 1, 2009. (AR 734.)

         Plaintiff suffers from depression, bipolar disorder, explosive episodes of anger, and anxiety. (AR 734-735.) Plaintiff takes medication for bipolar depression, adult onset ADD/ADHS, and to help her sleep and her mood swings. (AR 737.) The medication has helped and she is better than she was three or four years ago. (AR 737.) The episodes have been reduced from daily, where it was constant twenty four hours a day, to one to two times a week. (AR 737, 739.) Plaintiff has thrown things and went to jail for several months after an incident with her mother-in-law. (AR 739.) Plaintiff is seeking a psychiatrist every six to eight weeks and a therapist every other week. (AR 738.) Plaintiff has not attended group therapy because she is concerned about her anger outbursts. (AR 738.)

         Plaintiff's bipolar disorder causes her to have explosive episodes of rage. (AR 735.) She will not even realize that an episode is coming on until someone tells her to calm down and makes her aware of it. (AR 735.) Plaintiff states that it is a black out situation. (AR 735.) The extreme anger can last for days at a time. (AR 735.) When Plaintiff gets depressed she will remain in bed for days at a time not wanting to do much of anything. (AR 735.) She will have listlessness, insomnia, anxiety, and lack of concentration. (AR 736.) Plaintiff loses concentration every 20 to 30 minutes because she will get distracted by something else. (AR 736.) Plaintiff enjoys sitting and playing video games on the computer. (AR 745.) She does not play video games very often because she can only sit and concentrate on games for twenty or thirty minutes. (AR 745.)

         Plaintiff's anger issues have caused her to lose most of her jobs in the past. (AR 736.) When she is being given constructive criticism by a supervisor her anger flairs up and she has been known to explode at things that would not have made another person angry. (AR 736.) The bouts of anger come out of nowhere and the next thing she knows she is screaming and yelling and throwing things. (AR 748.) It takes about twenty or thirty minutes for her husband to get her calmed down enough to go and sit down and relax and talk about what just happened. (AR 748.) When she was working, Plaintiff would call in sick or go home early at least once a month if not more because she was angry and did not want to tell her supervisor the reason she was not coming in. (AR 747.)

         Her lack of concentration would make her unable to have a job that would require her to sit at a computer or do paperwork for longer than 20 minutes. (AR 737.) Plaintiff would be unable to do a job stocking shelves because of her lack of concentration. (AR 740.) After five to fifteen minutes she would have to change tasks. (AR 740.) When she cleans her house she does one room a day and posts a schedule to keep her on track and tell her what she should be doing. (AR 740.)

         On occasion, Plaintiff has been homeless in the past. (AR 739-740.) Plaintiff used recreational drugs in the past. (AR 740.) Plaintiff was using recreational drugs on a regular basis up until about 6 years ago. (AR 740.) Plaintiff has had a couple relapses but has not used on a regular basis for six years. (AR 740.)

         A vocational expert (“VE”), Cheryl R. Chandler, also testified at the hearing. (AR 749-755.) The VE categorized Plaintiff's past work as a substance abuse counselor, Dictionary of Occupational Title (“DOT”) number 045.107-058, sedentary. (AR 750-751.) The job is classified as an SVP 8, but the VE classified it as an SVP 6 because it did not rise to the four to ten year category as it was a two year program and the DOT contemplates a master's level program. (AR 750-751.)

         The ALJ presented a hypothetical of an individual with the same educational history and vocational background as Plaintiff, who is limited to a light range of work and is limited to simple, routine, repetitive tasks (that is remembering, carrying out, and using judgment limited to simple work-related decisions) and responding appropriately and socially interacting with supervisors, coworkers, and the public occasionally. (AR 751.) The VE opined that this individual would not be able to perform Plaintiff's past work. (AR 751.) This individual, doing unskilled, light work with only occasional contact with others, would be able to perform work as a marker, DOT number 369.687-026, light, SVP 2 with approximately 129, 000 jobs in the national economy. (AR 752.) This individual would also be able to perform work as a folding machine operator, DOT number 363.686-010, light, unskilled, SVP 2 with 42, 000 jobs in the national economy. (AR 752.)

         The ALJ presented a hypothetical of this same individual in the first hypothetical who could rarely socially interact with the public or coworkers and occasionally interact with supervisors. (AR 752-753.) The VE opined that this would be too limiting as interaction with coworkers would be more than rarely and there would be no jobs that this individual could perform. (AR 753.)

         Plaintiff's attorney presented a hypothetical of an individual who would be off task roughly fifteen to twenty percent of workday. The VE opined that there would be no work that this individual could perform in the national economy. (AR 755.)

         B. ALJ Findings

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

• Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2011.
• Plaintiff has not engaged in substantial gainful activity since the alleged onset date of August 1, 2009.
• Plaintiff has the following severe impairments: affective disorder and status-post thoracic spine fracture.
• Plaintiff has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she is limited to simple, repetitive tasks and using judgment and interacting with the public on an occasional basis.
• Plaintiff is unable to perform any past relevant work.
• Plaintiff was born on June 9, 1978, and was 31 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date.
• Plaintiff has at least a high school education and is able to communicate in English.
• Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that Plaintiff is “not disabled” whether or not Plaintiff has transferable job skills.
• 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.
• Plaintiff has not been under a disability, as defined in the Social Security Act, from August 1, 2009, through the date of this decision.

(AR 712-718.)


         To qualify for disability insurance benefits under the Social Security Act, the claimant must show that she 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. 20 C.F.R. § 404.1520; 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, ...

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