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Raymond Haugen, Jr v. Michael J. Astrue

July 12, 2011


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



Currently pending before the Court for its consideration is the Petition for Review (Dkt. 1) filed on May 19, 2010, by Petitioner Raymond Haugen Jr. ("Petitioner") of the Respondent's denial of social security benefits. 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 December 5, 2007, alleging disability due to left knee pain and low back pain. The application was denied initially and on reconsideration, and a hearing was held on August 18, 2009, before Administrative Law Judge ("ALJ") Robert Chester. ALJ Chester heard testimony from Petitioner and vocational expert Diane Kramer. ALJ Chester issued a decision finding Petitioner not disabled on September 4, 2009, and Petitioner timely requested review by the Appeals Council, which denied his request for review on March 24, 2010. (AR 1--4.)

Petitioner appealed this final decision to the Court. The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

At the time of the hearing, Petitioner was fifty one years of age. Petitioner completed high school, has one year of post-secondary education, and completed an apprenticeship in the roofing trade. Petitioner's prior work experience includes work as a roofer and as a customer service representative in a sports card and memorabilia store.


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 substantial gainful activity. The ALJ found Petitioner had not engaged in substantial gainful activity since his alleged onset date. At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Petitioner's low back pain and osteoarthritis of the left knee were severe impairments within the meaning of the Regulations.

Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found that Petitioner's impairments did not meet or equal the criteria for the listed impairments, and specifically considered Listing 1.02 ,1.04, and 14.09. If a claimant's impairments do not meet or equal a listing, the Commissioner must assess the claimant's residual functional capacity ("RFC") and determine at step four whether the claimant has demonstrated an inability to perform past relevant work.

The ALJ found Petitioner was not able to perform his past relevant work as a roofer, but could perform his past relevant work as a store manager or cashier. Therefore, the ALJ found Petitioner not disabled at step four of the sequential process.

Because the Commissioner found Petitioner could perform his past relevant work, the Commissioner did not proceed to step five.*fn1


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 that 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, will be 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). 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 argues the ALJ erred at steps three and four. First, Petitioner contends that his impairments, specifically his osteoarthritis of his left knee, meets the listing criteria of § 1.02(A). Second, Petitioner contends that the ALJ's Residual Functional Capacity ("RFC") assessment is not supported by substantial evidence, specifically the finding that Petitioner could perform light work with a sit/stand option. Third, Petitioner contends that the ALJ failed to present clear and specific reasons for rejecting Petitioner's testimony and finding him less than fully credible. And finally, Petitioner disputes that his past work as a store manager supports the ALJ's finding that such work constitutes "past relevant work." Petitioner asserts that his treating physician's assessment of his RFC corresponds with Vocational Rule 201.14, and directs a finding of disabled because the base of sedentary work is significantly eroded due to his limitations and he has no transferable skills.

Respondent refutes the above claims contending that, while Petitioner does experience pain, his condition does not meet the requirements of a listed impairment. Respondent contends that sufficient evidence in the record supports the ALJ's findings that Petitioner was less than fully credible, and that the RFC assessment is supported by substantial evidence in the record. Respondent argues that it was appropriate for the vocational expert to consider Petitioner's work in a retail establishment and assume that he could perform work as a cashier or store manager. And finally, Respondent asserts that the letter submitted from his treating physician was submitted after the close of the evidence, and Petitioner has not shown good cause for having failed to produce the evidence earlier. Therefore, Respondent argues the letter should not be considered.

1. Whether Petitioner's Impairments Meet or Equal a Listing

The ALJ found that Petitioner's impairments did not meet or equal any listing, specifically considering Listing 1.02, 1.04, and 14.09. Petitioner argues that the impairments to his left knee meet or equal Listing 1.02A, and that the ALJ committed error at step two. Petitioner asserts that he suffers from chronic knee pain and stiffness, and that clinical findings show a gross anatomical deformity as well as joint space narrowing. Petitioner contends that he cannot ambulate effectively because he is unable to walk two blocks over uneven ground at a reasonable pace and his knee interferes with activities of daily living.

If the claimant satisfies the criteria under a listing and meets the twelve month duration requirement, the Commissioner must find the claimant disabled without considering age, education and work experience. 20 C.F.R. § 404.1520(a)(4)(iii), (d). A claimant bears the burden of producing medical evidence that establishes all of the requisite medical findings that his impairments meet or equal any particular listing. Bowen v. Yuckert, 482 U.S 137, 146, n. 5 (1987). Further, if the claimant is alleging equivalency to a listing, the claimant must proffer a theory, plausible or other, as to how his combined impairments equal a listing. See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001).

Listing 1.02 pertains to musculoskeletal impairments and major dysfunction of a joint, due to any cause. Such dysfunction is characterized by: gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With:

A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate ...

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