Jerome Burnett v. Michael J. Astrue, No. 5:2010cv00105 - Document 18 (C.D. Cal. 2010)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal: IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (dhl)

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Jerome Burnett v. Michael J. Astrue Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JEROME BURNETT, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 10-00105 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Plaintiff Jerome Burnett (“Plaintiff”) brings this action seeking 22 to reverse the decision of the Commissioner of the Social Security 23 Administration 24 application for Supplemental Security Income (“SSI”). 25 consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the 26 undersigned United States Magistrate Judge. 27 below, the decision of the Agency is REVERSED and REMANDED for further 28 proceedings. (the “Commissioner” or the “Agency”) denying his The parties For the reasons stated Dockets.Justia.com 1 II. 2 PROCEDURAL HISTORY 3 4 On November 5, 2003, Plaintiff filed an application for SSI 5 claiming that he became disabled on July 15, 2000. 6 Record 7 application. 8 for reconsideration, (AR 43), which was denied on May 13, 2004. 9 44). Plaintiff then requested a hearing, (AR 50), which was held before (“AR”) 75). On (AR 39). January 9, 2004, the (Administrative Agency denied his On February 9, 2004, Plaintiff filed a request 10 Administrative Law Judge (“ALJ”) F. Keith Varni on July 15, 2005. 11 386-91). 12 benefits. 13 Council, (AR 8-9), which denied the request on December 1, 2006. 14 5-7). (AR (AR On September 15, 2005, the ALJ issued a decision denying (AR 13-18). Plaintiff sought review before the Appeals (AR 15 16 Plaintiff initially sought judicial review of the ALJ’s decision 17 in Burnett v. Astrue, Case No. EDCV 07-00057-JTL. On January 24, 2007, 18 Plaintiff filed a Complaint challenging the Commissioner’s denial of 19 benefits. 20 to Voluntary Remand. On July 16, 2007, the Magistrate Judge granted the 21 parties’ stipulation to voluntarily remand the action. However, on July 13, 2007, the parties filed a Stipulation (AR 409). 22 23 On February 16, 2008, the Appeals Council remanded the action to 24 the ALJ for a new hearing consistent with the parties’ stipulation. (AR 25 412-14). On November 17, 2008, the ALJ held a new hearing at which 26 Plaintiff was 27 Vocational Expert (“VE”) Joseph Mooney was also present and testified. 28 (AR 763-64). present with counsel and testified. (AR 738-62). On October 20, 2009, the ALJ issued a decision denying 2 1 benefits. (AR 392-407). 2 February 4, 2010. Plaintiff filed the instant Complaint on 3 4 III. 5 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 6 7 To qualify for disability benefits, a claimant must demonstrate a 8 medically determinable physical or mental impairment that prevents him 9 from engaging in substantial gainful activity1 and that is expected to 10 result in death or to last for a continuous period of at least twelve 11 months. 12 (citing 42 U.S.C. § 423(d)(1)(A)). 13 claimant incapable of performing the work he previously performed and 14 incapable of performing any other substantial gainful employment that 15 exists in the national economy. 16 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). See Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) The impairment must render the See Tackett v. Apfel, 180 F.3d 1094, 17 18 19 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are: 20 21 (1) Is the claimant presently engaged in substantial gainful 22 activity? 23 If not, proceed to step two. 24 (2) Is the If so, the claimant is found not disabled. claimant’s impairment 25 claimant is found not disabled. 26 three. 27 1 severe? If not, the If so, proceed to step Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay 28 or profit. 20 C.F.R. § 416.910. 3 1 (3) Does the claimant’s impairment meet or equal the 2 requirements of any impairment listed at 20 C.F.R. Part 3 404, Subpart P, Appendix 1? 4 found disabled. 5 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing his past work? 6 so, the claimant is found not disabled. 7 to step five. 8 (5) 9 10 If not, proceed Is the claimant able to do any other work? claimant is found disabled. If If not, the If so, the claimant is found not disabled. 11 12 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 13 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. § 416.920(b)- 14 (g)(1). 15 16 The claimant has the burden of proof at steps one through four, and 17 the Commissioner has the burden of proof at step five. See Bustamante, 18 262 F.3d at 953-54. 19 establishing an inability to perform the past work, the Commissioner 20 must show that the claimant can perform some other work that exists in 21 “significant numbers” in the national economy, taking into account the 22 claimant’s residual functional capacity (“RFC”),2 age, education and 23 work experience. 24 The Commissioner may do so by the testimony of a vocational expert or 25 by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. 26 Part 404, Subpart P, Appendix 2 (commonly known as “the Grids”). If, at step four, the claimant meets his burden of Tackett, 180 F.3d at 1100; 20 C.F.R. § 416.920(g)(1). 27 See 2 Residual functional capacity is “the most [one] can still do despite [his] limitations” and represents an assessment “based on all 28 the relevant evidence.” 20 C.F.R. § 416.945(a). 4 1 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 2 claimant 3 limitations, the Grids are inapplicable and the ALJ must take the 4 testimony of a vocational expert. See Moore v. Apfel, 216 F.3d 864, 869 5 (9th Cir. 2000). has both exertional (strength-related) and When a nonexertional 6 7 IV. 8 THE ALJ’S DECISION 9 10 The ALJ employed the five-step sequential evaluation process. At 11 step one, the ALJ found that Plaintiff had not engaged in substantial 12 gainful employment since his alleged onset date.3 13 two, the ALJ found that Plaintiff had the severe impairments of 14 “polysubstance dependence with secondary mood disorder.” (AR 397). At step (AR 398). 15 16 At step three, the ALJ found that Plaintiff’s impairments, either 17 singly or in combination, do not meet or equal the requirements of any 18 impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 19 398). 20 physical RFC for “a full range of work at all exertional levels but with 21 the following nonexertional limitations: routine, repetitive, entry 22 level, minimally stressful work with no contact with the general public 23 and superficial intermittent contact with co-workers and supervisors.” 24 (AR 399). 25 Plaintiff was unable to perform any of his past relevant work. 26 405). 27 (AR At step four, the ALJ determined that Plaintiff retained a Based on this RFC determination, the ALJ concluded that 3 (AR The ALJ’s opinion identifies Plaintiff’s alleged onset date as January 1, 1985. (AR 397). However, Plaintiff’s application identifies 28 his alleged onset date as July 15, 2000. (AR 75). 5 1 At step five, the ALJ found that based on Plaintiff’s age, 2 educational background, work experience, RFC and the vocational expert’s 3 testimony, Plaintiff “is capable of making a successful adjustment to 4 other work that exists in significant numbers in the national economy.” 5 (AR 406). 6 (Id.). Accordingly, the ALJ found that Plaintiff was not disabled. 7 8 V. 9 STANDARD OF REVIEW 10 11 Under 42 U.S.C. § 405(g), a district court may review the 12 Commissioner’s decision to deny benefits. The court may set aside the 13 Commissioner’s decision when the ALJ’s findings are based on legal error 14 or are not supported by substantial evidence in the record as a whole. 15 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 16 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 17 18 “Substantial evidence is more than a scintilla, but less than a 19 preponderance.” 20 which a reasonable person might accept as adequate to support a 21 conclusion.” 22 a finding, the court must “‘consider the record as a whole, weighing 23 both 24 [Commissioner’s] conclusion.’” Aukland, 257 F.3d at 1035 (quoting Penny 25 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 26 reasonably support either affirming or reversing that conclusion, the 27 court may not substitute its judgment for that of the Commissioner. 28 Reddick, 157 F.3d at 720-21. evidence Reddick, 157 F.3d at 720. Id. It is “relevant evidence To determine whether substantial evidence supports that supports and evidence 6 that detracts from the If the evidence can 1 VI. 2 DISCUSSION 3 4 A. The Record Below Was Insufficient For The ALJ To Determine 5 Whether Plaintiff Had Past Relevant Work And Therefore Whether 6 20 C.F.R. § 404.1562(b) Applied 7 8 9 Plaintiff contends that the ALJ failed to properly consider whether he has past relevant work pursuant to 20 C.F.R. § 404.1562(b). (See 10 Memorandum in Support of Plaintiff’s Complaint (“Complaint Memo.”) at 11 8). The Court agrees. 12 13 20 C.F.R. § 404.1562 sets forth “[m]edical-vocational profiles 14 showing an inability to make an adjustment to other work.” 15 (b) states as follows: Subsection 16 17 (b) If you are at least 55 years old, have no more than a 18 limited education, and have no past relevant work experience. 19 If you have a severe, medically determinable impairment(s) 20 (see §§ 404.1520(c), 404.1521, and 404.1523), are of advanced 21 age 22 education or less (see § 404.1564), and have no past relevant 23 work experience (see § 404.1565), we will find you disabled. (age 55 or older, see § 404.1563), have a limited 24 25 20 C.F.R. § 404.1562(b); accord 20 C.F.R. § 416.962(b). 26 27 28 The Commissioner does not appear to dispute that Plaintiff is at least fifty-five years old, has a 7 severe, medically determinable 1 impairment, and that he has no more than a limited education. 2 Memorandum in Support of Defendant’s Answer (“Answer Memo.”) at 9-10). 3 Indeed, Plaintiff’s California ID Card is in the record and states that 4 Plaintiff was born on August 27, 1951. 5 Plaintiff turned 55 years of age on August 27, 2006. 6 ALJ 7 determinable impairments of “polysubstance dependence with secondary 8 mood disorder.” 9 Plaintiff “has a limited education.” expressly found that (AR 398). Plaintiff had (AR 248). the (See Accordingly, Additionally, the severe, medically Finally, the ALJ further found that (AR 405). Thus, the Court 10 concludes that Plaintiff is at least fifty-five years old, has a severe, 11 medically determinable impairment, and that he has no more than a 12 limited education pursuant to 20 C.F.R. § 404.1562(b). 13 14 Defendant concedes that 20 C.F.R. § 404.1562(b) and 416.962(b) 15 apply when a claimant has no past relevant work. 16 However, Defendant argues these provisions do not apply to the present 17 case because “[t]he ALJ reasonably found that Plaintiff did have past 18 relevant 19 Plaintiff’s testimony that he “has worked off the books” for the past 20 twenty years “doing odd jobs” and that “he last worked a week before the 21 hearing passing out flyers for $20.00 dollars a day.” 22 Contrary to the ALJ’s finding, however, it was impossible to determine 23 from the current record whether Plaintiff’s prior work doing odd jobs 24 and passing out flyers qualified as “past relevant work.” work.” (Id.) (citing AR 405). (Answer Memo. at 9). Indeed, the ALJ noted (AR 405). 25 26 A plaintiff’s prior work qualifies as “past relevant work” for 27 purposes of a disability benefits application “when it was done within 28 the last 15 years, lasted long enough for [the plaintiff] to learn to 8 1 do it, and was substantial gainful activity.” 2 Thus, there are three elements to the existence of past relevant work: 3 (1) recency; (2) duration; and (3) substantial gainful activity. 4 Social 5 http://www.ssa.gov/OP_Home/rulings/di/02/SSR82-62-di-02.html. 6 Plaintiff’s prior work does not qualify as “past relevant work” because 7 it does not constitute substantial gainful activity. Security Ruling 82-62, 20 C.F.R. § 416.965. available See at Here, 8 9 Prior work performed between January of 1990 and June of 1999 10 constitutes substantial gainful activity if the claimant earned more 11 than $500 per month on average. See 20 C.F.R. § 416.974(b)(2)(i) (Table 12 1). 13 constitutes substantial gainful activity if the claimant earned more 14 than $700 per month on average. 15 January 1, 2001 constitutes substantial gainful activity if the claimant 16 earned on average per month more than $740 in 2001, $780 in 2002, $800 17 in 2003, $810 in 2004, $830 in 2005, $860 in 2006, $900 in 2007, $940 18 in 2008, $980 in 2009, and $1,000 in 2010. 19 Gainful 20 http://www.ssa.gov/OACT/COLA/sga.html. Prior work performed between July of 1999 and December of 2000 Activity See id. Amounts Prior work performed after See Monthly Substantial Chart, available at 21 22 Plaintiff testified that he has survived for the past twenty years 23 by working odd jobs and either staying with friends or living in a tent. 24 (AR 740-41). 25 occasional work, but he did state that he earned “[m]aybe $20 a day” 26 passing out flyers the week before the hearing. 27 even assuming that Plaintiff worked thirty days a month and thus earned 28 $600.00 per month on average, this amount is still insufficient to Plaintiff never stated how much he earned from this 9 (AR 749). However, 1 constitute substantial gainful activity for 2008, the year of the 2 hearing. 3 available at http://www.ssa.gov/OACT/COLA/sga.html. See Monthly Substantial Gainful Activity Amounts Chart, 4 5 The Commissioner points out that Plaintiff’s earnings are a 6 presumptive, but not conclusive indicator of whether his prior work 7 constitutes substantial gainful activity. (See Answer Memo. at 10); see 8 also Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001) (“Earnings can 9 be a presumptive, but not conclusive, sign of whether a job is 10 substantial gainful activity.”). Indeed, the fact that Plaintiff earned 11 less than the required threshold to constitute substantial gainful 12 activity shifts the burden of proof to the Commissioner. See Lewis, 236 13 F.3d at 515 (“The presumption that arises from low earnings shifts the 14 step-four burden of proof from the claimant to the Commissioner.”). 15 “With the presumption, the claimant has carried his or her burden unless 16 the ALJ points to substantial evidence, aside from earnings, that the 17 claimant has engaged in substantial gainful activity.” Id. 18 19 Here, the ALJ noted that Plaintiff “was able to support himself” by 20 working “odd jobs.” (AR 405). However, Plaintiff explained that he was 21 “basically homeless” and mainly lived in a tent. (AR 741). Regardless, 22 the 23 necessarily demonstrate that he engaged in substantial gainful activity. 24 See Lewis, 236 F.3d at 516 (holding that the Commissioner failed to 25 rebut the presumption against substantial gainful activity based on the 26 claimant’s occasional work of twenty hours per week where the claimant 27 earned less than the required threshold). fact that Plaintiff occasionally 28 10 worked odd jobs does not Moreover, the ALJ conceded 1 that “[t]he vocational expert stated that based on [Plaintiff’s] lack 2 of recorded earning he has no past relevant work.” (AR 405). 3 4 B. Remand For Further Proceedings Is Required 5 6 The Court concludes that remand is appropriate because additional 7 proceedings could remedy defects in the Commissioner’s decision. See 8 Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000); Kail v. Heckler, 9 722 F.2d 1496, 1497 (9th Cir. 1984). On remand, the ALJ must apply the 10 presumption against substantial gainful activity based on Plaintiff’s 11 low earnings. 12 determine whether Plaintiff’s prior work constitutes substantial gainful 13 activity: (1) “the nature of the claimant’s work”; (2) “how well the 14 claimant 15 conditions”; (4) “if the claimant is selfemployed”; and (5) “the amount 16 of time the claimant spends at work.” 17 “Generally, an ALJ should not consider activities like taking care of 18 oneself, household tasks, hobbies, school attendance, club activities, 19 or social programs to be substantial gainful activities.” 20 Because the record is not sufficiently developed on this issue, the ALJ 21 should take additional testimony from Plaintiff and/or a VE in order to 22 resolve the ambiguities in the record. does The ALJ should consider the following five factors to the work”; (3) if the work is done under special Lewis, 236 F.3d at 515-16. Id. at 516. 23 24 Although the Court has declined to address Plaintiff’s remaining 25 arguments for a remand, the Court notes that the ALJ failed to directly 26 address the third party report of John Williams. 27 corrected on remand as well. 28 11 This issue should be 1 Finally, the ALJ declined to dismiss Plaintiff’s claim on the basis 2 of abandonment, citing 20 C.F.R. 404.957, although Plaintiff failed to 3 appear at the scheduled hearing. 4 cooperate in any part of the continuing administrative process, the ALJ 5 should reconsider whether Plaintiff has, in fact, abandoned these 6 proceedings. (AR 13). Should Plaintiff fail to 7 VII. 8 CONCLUSION 9 10 11 Consistent with the foregoing, IT IS ORDERED that judgment be 12 entered REVERSING the decision of the Commissioner and REMANDING this 13 matter for further proceedings consistent with this decision. 14 FURTHER ORDERED that the Clerk of the Court serve copies of this Order 15 and the Judgment on counsel for both parties. IT IS 16 17 DATED: September 29, 2010 18 19 20 _______/S/_____________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 12

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