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Vesta Harvey, As Surviving Spouse of Leonard Harvey v. Michael J. Astrue

September 19, 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 Vesta Harvey's, as surviving spouse of Leonard Harvey, Petition for Review (Dkt. 1) of the Respondent's denial of social security benefits, filed on November 23, 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.


Claimant Leonard Harvey filed an application for Disability Insurance Benefits and Supplemental Security Income on June 11, 2007. This application was denied initially and on reconsideration, and a hearing was held on July 24, 2009, before Administrative Law Judge ("ALJ") Michael A. Kilroy. ALJ Kilroy heard testimony from Claimant Leonard Harvey and vocational expert Anne Aastum. ALJ Kilroy issued a decision finding Mr. Harvey not disabled on November 24, 2009, and he timely requested review by the Appeals Council, which denied the request for review on June 18, 2010.

Following Mr. Harvey's death, his wife Vesta Harvey appealed this final decision to the Court.*fn1 The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

At the time of the hearing, Mr. Harvey was 62 years of age. He completed high school, six years of vocational training in electronics, and two semesters of college course work. His prior work experience includes work as a customer service representative and computer hardware fabricator and inspector.


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 Mr. Harvey had engaged in substantial gainful activity since his alleged onset date, which was therefore amended to September 1, 2007. After amending the alleged onset date, the ALJ found that Mr. Harvey had not engaged in substantial gainful activity. At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Mr. Harvey's ruptured disk at L3-4 with nerve root impingement and associated quadriceps weakness; spondylitic lumbar spine disease; history of deep vein thrombosis; asthma; joint pain of the shoulder; and obesity severe within the meaning of the Regulations.

Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found that Mr. Harvey's impairments did not meet or equal the criteria for a listed impairments, specifically Listing section 1.04, which pertains to musculoskeletal impairments. 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 Mr. Harvey retained the RFC to perform his past relevant work as a customer service representative. The ALJ therefore did not proceed to step five.


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 believes the ALJ erred at steps three and four. Mrs. Harvey argues that her husband met the requirements of listing section 1.04(C) based upon his ruptured disk at L3-4 with nerve root impingement and spondylitic lumbar spine disease, coupled with his inability to ambulate effectively. Next, Petitioner contends that the ALJ erred in finding Mr. Harvey not credible with respect to his testimony about the severity, persistence, and limiting effects of his pain. Petitioner further asserts that the ALJ erred by improperly rejecting the opinions of treating physician Dr. Hanson and accepting the RFC analysis of a state agency medical examiner. Therefore, Petitioner asserts that the ALJ's RFC assessment is wrong, and does not support the ALJ's finding that Mr. Harvey was capable of performing his past relevant work as a customer service representative. In addition, Petitioner argues that the ALJ improperly relied upon a consultative examination from August of 2007, which was performed before Mr. Harvey's amended onset date of September 1, 2007, to support the ALJ's finding that Mr. Harvey had the requisite mental capacity to perform his past relevant work.

Respondent disputes Petitioner's arguments, contending that nothing in the record indicated Mr. Harvey was unable to ambulate effectively, and that Mr. Harvey's daily activities supported the ALJ's credibility finding. In addition, the Respondent argues that the ALJ presented specific and legitimate reasons in support of the findings rejecting Dr. Hanson's RFC analysis. And finally, Respondent contends that the ALJ's RFC findings are supported by substantial evidence in the record, ...

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