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Ronald R. Vawser v. Michael J. Astrue

March 6, 2012


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



Ronald Vawser ("Petitioner") seeks review of the Commissioner of the Social Security Administration's final decision denying Petitioner's application for social security disability insurance benefits under Title II 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.


Petitioner filed an application for Disability Insurance Benefits on July 24, 2007, alleging that he had been disabled and unable to work since April 30, 2006, due to a bad back and ruptured discs with bilateral sciatica and radiculopathy. This application was denied initially and on reconsideration, and a hearing was held on March 3, 2010, before Administrative Law Judge ("ALJ") G. Alejandro Martinez. The ALJ issued a decision finding Petitioner not disabled on June 25, 2010, and Petitioner timely requested review by the Appeals Council. The Appeals Council denied Petitioner's request for review on September 22, 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 October 19, 2010. (Dkt. 1.) The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

At the March 3, 2010 hearing, Petitioner was represented by counsel and testified on his own behalf. During the hearing, Petitioner became confused concerning his work history and the ALJ discontinued the proceedings, directing Petitioner's counsel to produce wage records for 2008 within twenty days. The ALJ further directed Petitioner's counsel to file a one page explanation of why Petitioner's work during 2008 did not rise to the level of substantial gainful activity or, in the alternative, to seek an amendment of the onset of disability date. (AR 52-54.) A vocational expert was present at the March 3, 2010 hearing, but, because the hearing was cut short, the expert did not testify.

Following the hearing, in a letter dated March 16, 2010, Petitioner's counsel submitted Petitioner's pay stubs and time sheets for 2008, and requested Petitioner's onset of disability date be amended to January 1, 2009, because Petitioner's earnings were "very near [substantial gainful activity] for the time period in question." (AR 208-209.) Petitioner's counsel submitted another letter, dated June 1, 2010, requesting that Petitioner's onset of disability date be further amended to May 30, 2009. (AR 286.) Without reconvening the hearing, on June 25, 2010, the ALJ issued an unfavorable decision, denying Petitioner's request to amend his onset of disability date, and finding that, although Petitioner suffered from severe impairments, he retained the residual functional capacity to perform past relevant work as a parts clerk. (AR 23.) The unfavorable decision was based upon the ALJ's finding that Petitioner "continued to perform [substantial gainful activity] work long after the onset of the alleged disability and at least up to May 30, 2009." (AR 23.)

At the time of the hearing, Petitioner was fifty-three years of age (turning fifty-four the month of the hearing). Petitioner has a high school education and was enlisted in the Navy from 1974 through 1978. Petitioner's prior work experience includes working as a "Parts Person and Maintenance" between 1978 through 1997, a Service Manager from 1997 until 2006, and as a Receiving Clerk. (AR 172.) He also testified that he worked part-time as a desk clerk at Napa Auto Parts in 2008.


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. At step one, the ALJ found Petitioner had not engaged in substantial gainful activity since his alleged onset date. (AR 19, 21.) However, as discussed more fully below, the ALJ made a contradictory finding later in his decision, finding that Petitioner had in fact engaged in substantial gainful activity up to at least May 30, 2009, which ultimately was one of the primary reasons Petitioner was found not disabled.

At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Petitioner's back problems severe within the meaning of the Regulations. (AR 21.)

Step three asks whether a claimant's impairments meet or equal a listed impairment. A finding that one or more of a claimant's impairments meets or equals a listing presumptively demonstrates disability. See 20 C.F.R. § 404.1520(d); See also, Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1221-22 (9th Cir. 2010). Although Petitioner's treating physician opined that Petitioner's impairments met the criteria for Listing 1.04 (Disorders of the Spine), the ALJ found that Petitioner's impairments did not meet or equal the criteria for a listed impairment. (AR 21-22.) The ALJ rejected the treating physician's opinion based upon a finding that "the treating doctor was not receiving accurate information about the nature of the symptoms and limitations from the claimant." (AR 21.)

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. Concerning Petitioner's RFC, the ALJ found that Petitioner retained the capacity to perform the full range of light work as defined in 20 C.F.R. 404.1567(b). (AR 22.) In making this finding, the ALJ found that Petitioner had an underlying medically determinable physical impairment capable of producing the complained of symptoms, but that Petitioner's allegations concerning the persistence and limiting effects of these symptoms were not credible. (AR 22-23.) This adverse credibility finding was based upon Petitioner's part time work during 2008, his request to amend his onset of disability date, and the ALJ's finding that Petitioner had not supplied his physicians with accurate information. (AR 22-23.)

At step four, the ALJ found Petitioner was able to perform his past relevant work as a parts clerk, (AR 23), which was the part time position Petitioner held during portions of 2008 and 2009. The ALJ also made an alternative finding, stating that "the claimant has the capacity for the full range of light work and therefore the Medical Vocational Rule 202.13 at his age and educational level (high school graduate) would apply and direct a finding of not disabled." (AR 23.) Based upon these findings, the ALJ held that "[t]he claimant has not been under a disability, as defined in the Social Security Act, from April 30, 2006, through the date of this decision[, June 25, 2010]." (AR 23.)


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 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).

If the evidence reasonably can support either affirming or reversing a decision, the Court may not substitute its own judgment for that of the Commissioner. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). The Court, however, "must consider the entire record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion, and may not affirm simply by isolating a specific quantum of supporting evidence." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal quotations and citations omitted).


Petitioner challenges the ALJ's decision essentially on three grounds. First, Petitioner contends that the ALJ failed to properly develop the record in this case. This failure, Petitioner argues, resulted in a decision containing inconsistent findings related to whether Petitioner engaged in substantial gainful activity after the initial alleged onset of disability date. Specifically, Petitioner points out that the ALJ found at step one of the five step analysis that Petitioner had not engaged in substantial gainful activity after 2006, but later concluded, at step four of the sequential analysis, that Petitioner could perform past relevant work based upon ...

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