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Aaron J. Thompson v. Michael J. Astrue

March 29, 2011


The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge



Pending before the Court for its consideration is the Petition for Review (Dkt. 1) of the Respondent's denial of social security benefits, filed by Aaron Thompson ("Petitioner") on January 14, 2010. The Court has reviewed the Petition for Review and the Answer, the parties' memoranda, and the administrative record ("AR"), and for the reasons that follow, will affirm the decision of the Commissioner.


Petitioner filed an application for Disability Insurance Benefits and Supplemental Security Income on September 18, 2006, alleging disability since September 14, 2006, based on sciatic nerve pain, cyclothymia, psoriasis, and a learning disorder. His application was denied initially and on reconsideration. On December 11, 2008, a hearing was conducted. Administrative Law Judge Michael A. Kilroy ("ALJ Kilroy") heard testimony from Petitioner, medical expert James Bruce, Ph.D., and vocational expert Beth Cunningham. ALJ Kilroy issued a decision finding Petitioner not disabled on March 13, 2009. Petitioner timely requested review by the Appeals Council, which denied his request for review on July 30, 2009. Petitioner appealed this final decision to the Court. The Court has jurisdiction to review ALJ Kilroy's decision pursuant to 42 U.S.C. § 405(g).

At the time of the hearing, Petitioner was thirty-eight years of age. Petitioner has a high school diploma, and previously worked as a general laborer/construction worker.


The Commissioner follows a five-step sequential evaluation for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, it must be determined whether the claimant is engaged in substantially gainful activity. ALJ Kilroy found that Petitioner had not engaged in substantial gainful activity since his alleged disability onset date of September 14, 2006. At step two, it must be determined whether claimant suffers from a severe impairment. ALJ Kilroy found that Petitioner had the following severe impairments: diabetes, sleep apnea, psoriasis, hypertension, coronary artery disease, obesity, a history of headaches, gastroesophageal reflux disease, bipolar disorder, and social anxiety with panic disorder.

Step three asks whether a claimant's impairments meet or equal a listed impairment. ALJ Kilroy found that Petitioner's impairments did not meet or equal the requirements of a listed impairment. If a claimant's impairments do not meet or equal a listing, the Commissioner must assess the residual functional capacity ("RFC") and determine at step four whether the claimant has demonstrated an inability to perform past relevant work.

At step four, the ALJ determines whether the impairment prevents the claimant from performing work which the claimant performed in the past, as in, whether the claimant has sufficient RFC to tolerate the demands of any past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). "In making this finding, the [ALJ] must consider all of the claimant's impairments, including impairments that are not severe (20 C.F.R. 404.1520(e) and 404.1545; SSR 96-8p)." In the instant case, ALJ Kilroy determined that, based upon Petitioner's RFC (See AR 14-21), Petitioner could not perform his past relevant work because it involved medium to heavy exertion levels.

If the claimant is unable to perform past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the ability to make an adjustment to other work that exists in significant levels in the national economy, after considering the claimant's residual functional capacity, age, education and work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). Based on the testimony of the vocational expert and using Medical-Vocational Rules 202.14 and 202.15 as a framework for his decision making, ALJ Kilroy concluded that Petitioner retained the ability to perform light work with several further limitations, and that occupations existed in significant numbers in the national economy that Petitioner was capable of performing, such as document preparer, order clerk, and parking lot cashier. Therefore, ALJ Kilroy determined Petitioner was "not disabled" under step five of the evaluation. (AR 21-22.)


The Petitioner bears the burden of showing that disability benefits are proper because of the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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); see also 42 U.S.C. § 1382c(a)(3)(A); Rhinehart v. Fitch, 438 F.2d 920, 921 (9th Cir. 1971). An individual will be determined to be disabled only if his physical or mental impairments are of such severity that he not only cannot do his previous work but is unable, considering his age, education, and work experience, to engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A).

On review, the Court is instructed to uphold the decision of the Commissioner if the decision is supported by substantial evidence and is not the product of legal error. 42 U.S.C. § 405(g); Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474 (1951); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla but less than a preponderance, Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997), and "does not mean a large or considerable amount of evidence." Pierce v. Underwood, 487 U.S. 552, 565 (1988).

The Court cannot disturb the Commissioner's findings if they are supported by substantial evidence, even though other evidence may exist which supports the petitioner's claims. 42 U.S.C. § 405(g); Flatten v. Sec'y of Health and Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. Flatten, 44 F.3d at 1457. It is well-settled that, if there is substantial evidence to support the decision of the Commissioner, the decision must be upheld even when the evidence can reasonably support either affirming or reversing the Commissioner's decision, because the Court "may not substitute [its] judgment for that of the Commissioner." Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999).

When reviewing a case under the substantial evidence standard, the Court may question an ALJ's credibility assessment of a witness's testimony; however, an ALJ's credibility assessment is entitled to great weight, and the ALJ may disregard self-serving statements. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). See also, Carter v. Astrue, 295 Fed. Appx. 868, 870 (9th Cir. 2008). Where the ALJ makes a careful consideration of subjective complaints but provides adequate reasons for rejecting them, the ALJ's well-settled role as the judge of credibility will be upheld as based on substantial evidence. Matthews v. Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993).


Petitioner contends that ALJ Kilroy erred at step four by finding Petitioner not credible and by improperly rejecting his testimony concerning the intensity, persistence and limiting effects of his pain. Respondent replies that ALJ Kilroy provided clear and convincing reasons for his credibility determination, supported by substantial evidence.

Second, Petitioner argues that ALJ Kilroy erred at step five because the hypothetical question posed to the vocational expert mischaracterized the severity of Petitioner's mental impairments. Petitioner claims the hypothetical did not include all of Petitioner's limitations and therefore did not support the vocational expert's conclusion that Petitioner could maintain work as a document preparer or parking lot cashier. Respondent replies that ALJ Kilroy correctly characterized the vocational expert's testimony by not including elements in the hypothetical that were based only on Petitioner's self-reports, which ALJ Kilroy rejected as not credible.

Third, Petitioner contends that ALJ Kilroy erred at step four by failing to properly support his rejection of the treating source opinion with clear and convincing reasons. Because ALJ Kilroy did not refute the specific limitations outlined by Petitioner's treating source, Petitioner contends that ALJ Kilroy improperly rejected them. Respondent replies that ALJ Kilroy properly accepted the treating source's opinion regarding Petitioner's mental limitations, and properly distinguished the medical opinion from the treating source's opinions regarding vocational and legal conclusions.

Finally, Petitioner argues that ALJ Kilroy failed to take the lay testimony, specifically the physician's assistant's opinion and Petitioner's wife's opinion, into account when assessing the severity of Petitioner's impairments and did not provide a basis for rejecting their opinions. Respondent replies that ALJ Kilroy provided germane reasons for the weight he placed on the physician's assistant's opinions, and that Petitioner asserted the wrong standard for the ALJ to apply to those opinions. Respondent further argues that ALJ Kilroy provided germane reasons for the weight he placed on Petitioner's wife's statements because they correspond to Petitioner's own statements.

After summarizing as background Petitioner's physical and mental impairments, the Court will address each of Petitioner's arguments in turn.

1. Background

Petitioner has a history of suffering from multiple physical and mental impairments, the majority of which are ongoing. Physically, his medical records reveal a history of a one-time episode of renal failure (AR 264, 266-7), abnormal liver function (AR 262), hypertension (AR 265), obesity (AR 264), intermittent headaches (AR 293, 313-317, 417-420, 448-453, 479-481), and back pain (AR 262), dating back at least as far as 2003. Although his renal and liver issues resolved by 2004, Petitioner's hypertension and psoriasis persisted. Petitioner's hypertension was treated by multiple providers with a litany of medication for fluctuating levels of severity. (See AR 261, 261, 265, 301-305-309, 355-357, 358-359, 360-361, 397-404, 409-416, 421-428, 445-453, 475-476, 479-481, 490-491, 515-518, 532-534, 544-548.)

Petitioner suffered from intermittent episodes of severe psoriasis since approximately 2005. (See AR 275, 278, 301-304, 346-347, 355-361, 380-391, 448-453, 490-491, 515-518, 520, 532-534, 541-548.) Related symptoms included diffuse, pinkish-red erythema with white scales, guttate-sized plaques and lesions over his body (AR 275.) But, by March of 2008, his symptoms were under control. (AR 490-491.)

Likewise, Petitioner was diagnosed with diabetes mellitus, type 2, in 2007. (AR 433-436.) Despite intermittent episodes of neuropathy which affected Petitioner's feet, medical providers generally regarded Petitioner's diabetes as ...

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