Jerome K. Jackson v. Michael J. Astrue, No. 5:2007cv01449 - Document 19 (C.D. Cal. 2008)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. The decision of the Social Security Commissioner is affirmed. (See document for details) (db)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 EASTERN DIVISION 9 10 JEROME JACKSON, Plaintiff, 11 12 v. 13 MICHAEL J. ASTRUE, Commissioner of Social Security, 14 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 07-1449-MLG MEMORANDUM OPINION AND ORDER 17 Plaintiff Jerome Jackson seeks review of the Commissioner s final 18 decision terminating payment of Supplemental Security Income ( SSI ) 19 benefits. For the reasons discussed below, the Commissioner s decision 20 is affirmed. 21 22 I. Facts and Procedural History 23 Plaintiff was born on September 20, 1956,1 and he has an eighth- 24 grade education. (Administrative Record ( AR ) at 216.) Plaintiff has no 25 past relevant work experience within the meaning of the regulations, 20 26 C.F.R. § 416.965. (AR 18.) 27 Plaintiff filed an application for SSI benefits on August 11, 1998, 28 1 The joint stipulation incorrectly states that Plaintiff is 31 years old. (Joint Stip. 2.) 1 alleging a disability onset date of October 14, 1997, due to impairments 2 of the musculoskeletal and cardiovascular systems, as well as a visual 3 impairment. (Joint Stip. 2.) After the Commissioner denied Plaintiff s 4 claim initially and upon reconsideration, a hearing was held on October 5 26, 1999, before Administrative Law Judge ( ALJ ) Paul Tierney. (AR 6 393.) The ALJ determined that Plaintiff s severe impairments included 7 coronary artery disease, bilateral patella displacement, right shoulder 8 bursitis, and a vision defect. (AR 221.) On November 24, 1999, the ALJ 9 concluded that Plaintiff was under a disability as defined by the Social 10 Security 11 thereafter. (AR 218, 60.) 12 The Act, and Plaintiff Commissioner began conducted a receiving continuing SSI benefits disability shortly review in 13 November 2004, at the conclusion of which the Commissioner determined 14 that Plaintiff s medical impairments had improved and terminated his 15 benefits. (AR 229-32.) On March 10, 2005, a Disability Hearing Officer 16 also concluded that Plaintiff was no longer disabled. (AR 250-60.) At 17 Plaintiff s request, a hearing was held before ALJ F. Keith Varni on 18 July 17, 2006, for which Plaintiff failed to appear. (AR 444-46.) The 19 ALJ proceeded with the hearing and denied Plaintiff s claim, relying on 20 the record and a vocational expert s testimony in concluding that 21 Plaintiff was not disabled. (AR 42-47.) Plaintiff appealed the ALJ s 22 decision, claiming that he had not received notice of the hearing. (AR 23 37.) The Social Security Administration Appeals Council remanded the 24 case to ALJ Varni for a new hearing on October 16, 2006. (AR 35.) The 25 ALJ held a subsequent hearing on June 1, 2007, at which Plaintiff 26 testified and was represented by counsel. (AR 15.) A vocational expert 27 also testified at the hearing. 28 The ALJ issued a decision on August 17, 2007, concluding that 2 1 Plaintiff s disability had ended on November 1, 2004. (AR 20.) Applying 2 the analysis mandated by the regulations, the ALJ found that Plaintiff s 3 impairments did not meet or equal any listed impairment, and that 4 Plaintiff s severe impairments included only the musculoskeletal and 5 cardiovascular systems, not a vision defect. (AR 17.) The ALJ determined 6 that Plaintiff s impairments had improved since the prior ALJ s decision 7 awarding benefits on November 22, 1999, and that the improvement related 8 to Plaintiff s ability to work. (Id.) The ALJ then found that Plaintiff 9 retained the residual functional capacity ( RFC ) to perform work at the 10 medium exertional level, with the following limitations: 11 The claimant can lift and carry 50 pounds occasionally and 25 12 pounds frequently. He can stand and walk for 2 hours out of an 13 8-hour work day, and he has no restrictions in sitting. He 14 cannot perform activities requiring active knee extension as 15 he would have difficulty with foot controls. He should never 16 climb or balance. He can occasionally kneel, crouch, crawl, 17 and stoop. He cannot perform hazardous duties such as working 18 with machinery or working at heights. He is unable to change 19 positions quickly. 20 (AR 17.) The ALJ noted that although Plaintiff had no past relevant work 21 to which he could return, he relied on the vocational expert s testimony 22 in concluding that Plaintiff could work as an assembler, packager, and 23 laundry sorter/folder. (AR 19.) The ALJ thus concluded that Plaintiff s 24 disability had ended on November 1, 2004, and that Plaintiff was no 25 longer entitled to SSI benefits. (Id.) 26 The Appeals Council denied Plaintiff s request for review on 27 October 13, 2007, and Plaintiff filed this action on November 7, 2007. 28 Plaintiff alleges that the ALJ erred by failed to consider an examining 3 1 physician s opinion regarding the limitations of Plaintiff s visual 2 impairment and a treating psychologist s opinion that Plaintiff was 3 unable to work. (Joint Stip. 3.) Plaintiff seeks an award of benefits or 4 a remand for a new administrative hearing. (Joint Stip. 14.) 5 6 II. 7 Standard of Review The Court must uphold the Social Security Administration s 8 disability determination unless it is not supported by substantial 9 evidence or is based on legal error. Ryan v. Comm r of Soc. Sec., 528 10 F.3d 1194, 1198 (9th Cir. 2008)(citing Stout v. Comm r of Soc. Sec. 11 Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)). Substantial evidence means 12 more than a scintilla, but less than a preponderance; it is evidence 13 that 14 conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 15 2007)(citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 16 2006)). To determine whether substantial evidence supports a finding, 17 the reviewing court must review the administrative record as a whole, 18 weighing both the evidence that supports and the evidence that detracts 19 from the Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, 20 720 (9th Cir. 1996). If the evidence can support either affirming or 21 reversing the ALJ s conclusion, the reviewing court may not substitute 22 [its] judgment for that of the ALJ. Robbins, 466 F.3d at 882. a reasonable person might accept as adequate to support a 23 24 III. Discussion 25 As a preliminary matter, the two arguments Plaintiff presents in 26 the joint stipulation require the same legal analysis. Plaintiff argues 27 that the ALJ failed to discuss two medical opinions that bear on 28 Plaintiff s impairments and his ability to work. Plaintiff contends that 4 1 the ALJ should have provided specific and legitimate reasons for 2 rejecting these opinions, and his failure to do so requires remand for 3 a new hearing. 4 Both of the opinions upon which Plaintiff relies were rendered in 5 1999, prior to ALJ Tierney s decision awarding benefits, which is known 6 as the comparison point decision or CPD . In arguing that the ALJ 7 should have specifically discussed particular aspects of these older 8 reports, 9 determinations, Plaintiff relies as on opposed cases to addressing termination of initial benefits disability cases. See 10 Regennitter v. Comm r of Soc. Sec. Admin., 166 F.3d 1294 (9th Cir. 1999) 11 (denial of disability insurance ( SSDI ) benefits and SSI on initial 12 determination); Andrews v. Shalala, 53 F.3d 1035 (9th Cir. 1995)(denial 13 of SSDI benefits on initial determination); Lester v. Chater, 81 F.3d 14 821 (9th Cir. 1995)(denial of SSDI benefits on initial determination); 15 Crain v. Callahan, 996 F. Supp. 1003 (D. Or. 1997)(denial of SSDI 16 benefits and SSI on initial determination). (Joint Stip. 4.) This 17 distinction is important, because the analysis the ALJ must undertake is 18 different in the two types of cases. 19 For initial disability determinations, the ALJ must consider 20 whether the claimant is disabled, which is defined as the inability to 21 do 22 determinable physical or mental impairment for a certain period of 23 time. 20 C.F.R. § 416.905(a). The ALJ undertakes a five-step analytical 24 process in making this determination. In a termination of benefits case, 25 on the other hand, the ALJ must consider whether there has been any 26 medical improvement in the impairments that allows the claimant to 27 engage in substantial gainful activity. 20 C.F.R. § 416.994(b). Medical 28 improvement any substantial means gainful any activity decrease in 5 by the reason medical of any severity medically of [the 1 claimant s] impairment(s) which was present at the time of the most 2 recent favorable medical decision that [the claimant was] disabled or 3 continued to be disabled. Id. § 416.994(b)(1)(I). 4 The regulations outline a seven-step inquiry the ALJ must utilize 5 to determine whether a claimant continues to be disabled, which involves 6 consideration of the following questions: (1) whether the claimant s 7 impairments meet or equal one of the listings in 20 C.F.R. § 404, 8 Subpart P, Appendix 1; (2) whether medical improvement has occurred 9 since the original disability finding; (3) whether the medical 10 improvement, if any, is related to the claimant s ability to work; (4) 11 in the absence of medical improvement related to work, whether any of 12 the specified exceptions apply that would render the claimant not 13 disabled; (5) whether the impairments are severe ; (6) whether the 14 claimant is able to return to past relevant work; and (7) whether the 15 claimant can do other types of work. 20 C.F.R. § 416.994(b)(5). The 16 steps are cumulative, meaning that the ALJ need not consider further 17 steps after finding that a step does not favor the claimant. In reaching 18 his decision that Plaintiff s disability had ended in November 2004, ALJ 19 Varni addressed each of these seven steps. 20 Plaintiff does not challenge ALJ Varni s conclusion that, since the 21 initial disability determination in 1999, Plaintiff had had a medical 22 improvement that would allow him to engage in substantial gainful 23 activity. Instead, Plaintiff claims that the ALJ erred by rejecting 24 the prior medical opinions. However, Plaintiff misinterprets both the 25 ALJ s 26 termination of benefits case. ALJ Varni did not reject the prior 27 medical opinions. ALJ Tierney had already credited those opinions when 28 he found Plaintiff to be disabled in 1999. Although the prior medical decision and the proper legal 6 analysis required for this 1 records are certainly relevant to determining whether there has been a 2 medical improvement, ALJ Varni was not required to revisit ALJ Tierney s 3 decision. Instead, ALJ Tierney s decision, which is based on Plaintiff s 4 prior medical records, is the baseline for ALJ Varni s evaluation of 5 whether Plaintiff has medically improved in recent years. None of the 6 cases Plaintiff cites indicate that the ALJ in a termination of benefits 7 case 8 analysis in the same way as for an initial disability determination. must incorporate prior medical records into the improvement 9 Even if the regulations did require the ALJ to evaluate the prior 10 medical opinions as Plaintiff suggests, Plaintiff s arguments are still 11 without merit, for the reasons discussed below. 12 A. 13 Plaintiff relies on an April 17, 1999, report, in which examining 14 physician Joel Hendler, M.D., opined that Plaintiff could use his hands 15 for repetitive hand and finger action, although his vision would limit 16 the fine details of what he could handle. (AR 170.) Plaintiff has 17 characterized 18 details, and he argues, Dr. Hendler has determined that the Plaintiff 19 does have significant physical impairments that cause limitations. 20 Indeed such limitations can prevent the Plaintiff from working. (Joint 21 Stip. 4, 9.) There are several problems with Plaintiff s arguments. Consultative Internal Medicine Evaluation this assessment as the limitation regarding fine 22 First, Dr. Hendler did not opine that Plaintiff s vision would pose 23 a significant impediment to Plaintiff s ability to work in general. Dr. 24 Hendler simply suggested that Plaintiff s vision would limit his ability 25 to 26 limitation, had the ALJ incorporated it into his RFC assessment, would 27 have precluded Plaintiff from working. Nor does Plaintiff offer any 28 theory as to how this limitation could have changed the ALJ s ultimate work with fine details. Plaintiff 7 does not explain why this 1 conclusion 2 Plaintiff chose a relatively minor detail from an examining physician s 3 opinion issued before the CPD and, without explaining why this detail 4 has any bearing on the issues, insists that the ALJ s failure to discuss 5 it requires an entirely new hearing. However, the ALJ need not discuss 6 every piece of evidence in the record, only evidence that is significant 7 and probative. Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394- 8 95 (9th Cir. 1984)(per curiam)(citation omitted). The Court is not 9 convinced, in light of the issues discussed below, that this detail is 10 that there had been medical improvement. In essence, significant or probative. Second, the medical evidence in the record, as ALJ Varni discussed 11 12 in both of his decisions, does not support the conclusion that 13 Plaintiff s visual limitations are currently significant. To support his 14 claims of continuing disability, Plaintiff provided medical records and 15 appeared for two consultative examinations. These records show that on 16 September 20, 2004, Plaintiff s visual acuity was 20/30-2 in the right 17 eye and 20/25-3 in the left eye.2 (AR 344, 363.) An independent medical 18 examination conducted on October 26, 2004, showed Plaintiff s corrected 19 visual acuity at 20/50 in the right eye, 20/40 in the left eye, and 20 20/30 with both eyes. (AR 347.) A later orthopedic consultation also 21 revealed Plaintiff s corrected visual acuity to be quite good: 20/40 in 22 the right eye, 20/40 in the left eye, and 20/30 with both eyes. (AR 23 371.) The orthopedist also noted that Plaintiff had no difficulty moving 24 25 26 27 28 2 This report from a treating physician also indicates that Plaintiff has glaucoma in both eyes. The report states that Plaintiff was referred to ophthalmology for a follow-up appointment, but it does not appear from the record that he has pursued any treatment for glaucoma. (AR 344.) The physician did not suggest that glaucoma had any effect on Plaintiff s ability to work, nor did Plaintiff argue the point in the Joint Stipulation. 8 1 around the office without assistance. (Id.) 2 Normal visual acuity is 20/20.3 By contrast, the Social Security Act 3 defines blindness as central visual acuity of 20/200 or less in the 4 better eye with the use of a correcting lens. 42 U.S.C.A. § 416(i)(1) 5 (West 2008). All recent medical reports, including from Plaintiff s 6 treating physicians, indicate that Plaintiff s vision has successfully 7 been corrected nearly to normal. The ALJ s conclusion that Plaintiff s 8 visual impairment was not severe is supported by substantial evidence in 9 the record. 10 Finally, the jobs that the ALJ determined Plaintiff could perform 11 do not include fine details. For example, the ALJ indicated that 12 Plaintiff could work as a laundry sorter/folder. (AR 19.) The Dictionary 13 of Occupational Titles defines laundry laborer as follows: 14 Prepares laundry for processing and distributes laundry, 15 performing any combination of the following duties: Opens 16 bundles of soiled laundry. Places bundles onto conveyor belt 17 or 18 classification sections. Weighs laundry on scales and records 19 weight 20 distributes 21 identification 22 subsequent assembly of customers orders. Sorts net bags 23 containing clean wash according to customers identification 24 tags.... drops on down chute tickets. to pins for distribution Removes bundles workers, or using clips onto to from marking conveyor handtruck. laundry to and and Fastens facilitate 25 DICOT 361.687-018, 1991 WL 672992 (4th Ed. 1991). Even if the ALJ had 26 included in his RFC assessment that Plaintiff could not do fine detail 27 28 3 American Optometric Ass n, http://www.aoa.org/myopia.xml. 9 1 work, Plaintiff would still be able to work as a laundry sorter/folder. 2 Plaintiff has failed to demonstrate that inclusion of the fine detail 3 limitation would have had any effect on the ALJ s decision. Plaintiff 4 is not entitled to relief on this claim. 5 B. 6 Plaintiff also relies on second report, dated February 22, 1999, in 7 which a psychologist appears to suggest that Plaintiff s frequent 8 conflicts at home might limit his ability to work. (AR 159.) Plaintiff 9 asserts, Dr. Simonet has determined that the Plaintiff does have a 10 significant mental limitation that can prevent the Plaintiff from 11 working. (Joint Stip. 11.) Plaintiff argues that the ALJ s failure to 12 discuss 13 psychologist who opined that the Plaintiff is unable to work and has a 14 dysfunction rating of severe. Simply put, the ALJ is not permitted to 15 ignore 16 explanation. (Joint Stip. 14.) This argument is also without merit.4 17 Treating Psychologist s Opinion this an opinion opinion Plaintiff was of warrants remand: disability awarded SSI from in Here a 1999 we have treating based on a treating source several without severe 18 impairments, which notably did not include mental illness. (AR 220-21.) 19 As discussed above, this is a termination of benefits case, so the ALJ 20 was required to determine whether Plaintiff s condition had improved 21 from the comparison point decision. The comparison point decision makes 22 no mention of a severe mental illness. 23 Moreover, Plaintiff has not provided any medical evidence to 24 suggest that he currently suffers from a mental impairment, and, as the 25 ALJ noted, he has received no mental health treatment since the 26 4 27 28 Plaintiff s assertion that the psychologist gave Plaintiff a severe dysfunction rating is incorrect. A review of the record reveals that the psychologist gave Plaintiff a dysfunction rating of moderate, (AR 159), which presumably means something less than severe. 10 1 comparison point decision. (AR 20.) The ALJ attempted to determine 2 whether Plaintiff suffered from a mental impairment by ordering a 3 psychiatric 4 separate appointments. (AR 20, 390-92.) This failure alone is sufficient 5 for the ALJ to conclude that Plaintiff is no longer disabled. 20 C.F.R. 6 § 416.918(a) ( If you are already receiving benefits and do not have a 7 good reason for failing or refusing to take part in a consultative 8 examination or test which we arranged for you, we may determine that 9 your disability ... has stopped because of your failure or refusal. ). 10 Additionally, Plaintiff did not raise his mental health at the hearing 11 when asked what impairments prevented him from working. (AR 454-55, 12 460.) consultation, but Plaintiff failed to appear for two 13 Plaintiff bears the burden of establishing the existence of a 14 disabling impairment. 20 C.F.R. § 416.912. Plaintiff has failed to meet 15 that burden here. The ALJ s conclusion that Plaintiff does not suffer 16 from a mental impairment is supported by substantial evidence in the 17 record. Plaintiff is not entitled to relief on this claim. 18 19 20 IV. Conclusion For the reasons discussed above, the decision of the Social 21 Security Commissioner is affirmed. 22 DATED: October 2, 2008 23 24 25 26 ______________________________ MARC L. GOLDMAN United States Magistrate Judge 27 28 11
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