Judy Hobart v. Michael J. Astrue, No. 5:2012cv00353 - Document 15 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JUDY HOBART, Plaintiff, 12 13 14 15 16 vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. ED CV 12-00353 RZ MEMORANDUM OPINION AND ORDER 17 Under Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988), a final administrative 18 determination of non-disability creates a presumption of continuing non-disability, and a 19 presumption that the claimant continues to have the same residual functional capacity. This 20 presumption can be rebutted by changed circumstances. In his decision of June 2, 2008, 21 the Administrative Law Judge found that Plaintiff had the residual functional capacity to 22 do work at any exertional level, with the non-exertional limitation that she was limited to 23 unskilled, entry level work. [AR 43] The Administrative Law Judge further found that 24 Plaintiff was capable of performing past relevant work as a care provider, fast food worker, 25 or a housekeeper. [AR 46] This decision established the Chavez presumptions. 26 Six months later, Plaintiff filed the present claim, again seeking disability 27 benefits or Supplemental Security Income. The Administrative Law Judge found the same 28 residual functional capacity [AR 12] and the same capacity to perform Plaintiff s past 1 relevant work. [AR 15] The central question for review is whether Plaintiff has rebutted 2 the presumptions that she continues not to be disabled. 3 Plaintiff does not directly argue that there are any changed circumstances 4 justifying a rebuttal of the Chavez presumptions. At best she indirectly does so, by 5 challenging the Administrative Law Judge s determination of the residual functional 6 capacity, arguing that it does not take into account the limitations imposed by the treating 7 physician, Terry Roh, who did evaluate Plaintiff one week after the previous decision. 8 [AR 149] But, as the Administrative Law Judge pointed out, while Dr. Roh found that 9 Plaintiff was depressed and had poor concentration, she also found that Plaintiff was 10 having no hallucinations and otherwise presented normally. [AR 14, 149] Further, as the 11 Administrative Law Judge noted, Dr. Roh s assessment called for follow-up visits, and on 12 those follow-up visits Plaintiff was found to be overall normal [AR 14]. Further, the 13 Administrative Law Judge indicated that Plaintiff was not always taking her medication. 14 And Plaintiff s residual functional capacity, limiting her to unskilled, entry-level work, also 15 took her mental status into account. 16 Plaintiff also challenges two aspects of the Administrative Law Judge s 17 finding that she could perform her past relevant work. First, she asserts that the 18 Administrative Law Judge did not explain the demands of the past relevant work, and 19 compare those demands to the residual functional capacity. In this Plaintiff is correct. 20 Pinto v. Massanari, 249 F.3d 840 (9th Cir. 2001). However, the error is harmless. The 21 Administrative Law Judge found that Plaintiff could perform work at any exertional level; 22 that obviously includes any past relevant work. As for the non-exertional limitations, 23 Plaintiff concedes that the past relevant work of a fast-food worker involves an Specific 24 Vocation Preparation ( SVP ) level of 2. Since past relevant work is work either as 25 actually performed or as performed in the general economy, Pinto, 249 F.3d at 845, 26 Plaintiff s past work therefore qualifies. 27 Second, Plaintiff asserts that the Administrative Law Judge was incorrect 28 when he said that Plaintiff is able to perform [her past relevant work] as actually -2- 1 performed. This is consistent with the Dictionary of Occupational Titles. [AR 15] 2 Plaintiff points out that for two of the three jobs Plaintiff performed in the past, that of care 3 provider and housekeeper, the closest descriptions in the Dictionary have SVP s higher 4 than 2. Accepting this, however, does not help Plaintiff, because Plaintiff concedes that 5 the fast food worker job has an SVP of 2, which fits within the residual functional capacity 6 that the Administrative Law Judge found. Again, therefore, if there was error, the error 7 was harmless. 8 Plaintiff also asserts that the Administrative Law Judge erred by not calling 9 a vocational expert. However, an administrative law judge is not required to call a 10 vocational expert as to the determination of ability to perform past relevant work. Moore 11 v. Apfel, 216 F.3d 864, 870-71 (9th Cir. 2000), citing Lewis v. Barnhart, 353 F.3d 642, 648 12 (8th Cir. 2003) and Miles v. Barnhart, 374 F.3d 694, 700 (8th Cir. 2004). 13 Finally, Plaintiff asserts that the Administrative Law Judge wrongly 14 discredited her testimony and made incomplete credibility findings. But all that Plaintiff 15 does in this argument is to cite the law and quote some of the Administrative Law Judge s 16 decision. There is no explanation of where the Administrative Law Judge supposedly got 17 it wrong, and no assessment of how things would be different if he had gotten it right. In 18 fact, the Administrative Law Judge did what the law requires. He was entitled to use 19 ordinary techniques of questioning a witness s credibility, Fair v. Bowen, 885 F.2d 597, 20 603 (9th Cir. 1989), and he did so, indicating that current complaints of medication side 21 effects did not match contemporary records, that medication was effective but sometimes 22 not used, and that Plaintiff missed medical appointments . These were sufficient bases to 23 cast doubt on some of Plaintiff s assertions, such as that she could not concentrate longer 24 than two seconds. 25 The Administrative Law Judge concluded that he did not see any credible 26 evidence of any substantial change in the claimant s condition from the time of the last 27 hearing to this current decision. [AR 15] The Court agrees. Plaintiff has shown no 28 -3- 1 reason that the presumption of continuing disability does not apply, and has shown no 2 errors justifying reversal of the decision. 3 The Commissioner s decision is affirmed. 4 5 DATED: November 2, 2012 6 7 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-
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