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Jessie Douthit v. Michael J. Astrue

August 10, 2011


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



Jessie Douthit ("Petitioner") seeks review of the Commissioner of the Social Security Administration's final decision denying Petitioner's application for Supplemental Security Income disability benefits under Title XVI of the Social Security Act. (Dkt. 1.) 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 remand to the Social Security Administration for further proceedings consistent with this Memorandum Decision and Order.


Petitioner filed an application for Supplemental Security Income on January 24, 2006, claiming that she had been disabled and unable to work since July 1, 1997, due to several mental impairments (including depression, bipolar disorder, post-traumatic stress disorder ("PTSD"), and schizoaffective disorder) and the physical impairment of bilateral hip dysplasia. Her application was denied initially and on reconsideration, and a hearing was held on April 24, 2008, before Administrative Law Judge ("ALJ") Michael A. Kilroy. The ALJ issued a decision finding Petitioner not disabled on July 3, 2008, and Petitioner timely requested review by the Appeals Council. The Appeals Council denied Petitioner's request for review on April 29, 2010, and the ALJ's decision became the final decision of the Commissioner. Petitioner timely filed an appeal of the Commissioner's final decision to this Court on June 10, 2010. (Dkt. 1.) The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

At the April 24, 2008 hearing, Petitioner was represented by counsel and testified on her own behalf. The ALJ also heard testimony from medical expert Dr. James Bruce and vocational expert Beth Cunningham. Based largely on the opinions of Dr. Bruce -- a non-treating, non-examining medical source -- the ALJ issued a decision finding Petitioner not disabled on July 3, 2008.

At the time of the hearing, Petitioner was 33 years of age and reported that she attended high school through the eleventh grade. Petitioner's prior work experience includes work as a check-in clerk at a dry cleaner, dishwasher and cook at a restaurant, housekeeper at a motel, and training as a Certified Nursing Assistant, although she did not obtain her certification.


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. The ALJ found Petitioner had not engaged in substantial gainful activity since her alleged onset date. At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found that Petitioner had the following severe impairments: anxiety disorder; affective disorder; personality disorder; bilateral hip dysplasis; and hepatitis C.

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, specifically considering Petitioner's hip dysplasia under Listing 1.02 (Major dysfunction of a joint(s)), Petitioner's hepatitis C under Listing 5.05 (Chronic liver disease), and Petitioner's mental impairments under Listings 12.04 (Affective disorders), 12.06 (Anxiety-related disorders), and 12.08 (Personality disorders). 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 determined Petitioner had the RFC to perform light work as defined in 20 CFR 416.967(b), with the following qualifications:

She must be given the opportunity to alternate sitting, walking, and standing throughout an 8-hour workday to relieve pain and/or discomfort, can walk no further than 1/4 of a mile at a time, can stand and/or sit for no longer than 1 hour at a time, can only occasionally climb ramps and stairs, occasionally balance, stoop, kneel, crouch, and crawl, can seldom use stepladders, and must avoid concentrated exposure to vibration, extreme could, and rough, uneven, wet, or slipper [sic] surfaces. The claimant is also limited to a work environment without contact with large numbers of people at any one time, with no constant and/or critical supervision, an environment requiring routine activities where new learning is at the unskilled or semi-skilled level and where new learning is done primarily visually with only minimal reading required, and the claimant must work in an environment with no high constant stress nor requirement for high constant focus. (AR 20.)

The ALJ found Petitioner was not able to perform any past relevant work. (AR 26.) If a claimant demonstrates an inability to perform past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the capacity 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. The ALJ found that Petitioner could perform work existing in significant numbers in the national economy, specifically noting the positions identified by the vocational expert: parking lot cashier; school bus monitor; and film touch-up inspector. (AR 27.) Because the ALJ found that Petitioner could perform work existing in significant numbers in the national economy, he concluded that Petitioner is not disabled within the meaning of the Social Security Act.


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 her physical or mental impairments are of such severity that she not only cannot do her previous work but is unable, considering her 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).


Petitioner attacks the ALJ's decision on two grounds. First, Petitioner argues that the ALJ improperly rejected the opinions of her treating physician (Dr. Eddie Rodriguez-Lopez, M.D.), an examining physician (Dr. Jerry Doke, Ph.D.), and a treating physicians' assistant (Thea Heaton), in favor of opinions of a non-treating, non-examining medical expert (Dr. James Bruce) who testified at the hearing. Second, Petitioner argues the ALJ erred by failing to consider the impact that Petitioner's medications have on her residual functional capacity. Petitioner argues that these alleged errors compromised the ALJ's findings at steps two, three, and five of the sequential evaluation. Petitioner requests that the Court remand the case to the Commissioner with instructions to properly consider the medical ...

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