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Grow v. Astrue

February 5, 2009


The opinion of the court was delivered by: John W. Sedwick United States District Judge

ORDER AND OPINION [Re: Motion at Docket 16]


Plaintiff David E. Grow ("Grow"), having exhausted his administrative remedies, filed a Social Security complaint in this court alleging the final decision of the Social Security Commissioner was not supported by substantial evidence and/or was erroneous as a matter of law and regulation. At docket 16, Grow requests reversal of the June 26, 2006 final decision and/or remand pursuant to 42 U.S.C. § 405(g). At docket 18, defendant Commissioner ("Commissioner") responds. Grow replies at docket 19. Oral argument was not requested and would not assist the court.


This dispute arises from the Commissioner's denial of Grow's application for disability benefits. On September 25, 2000, Grow filed an application for a period of disability and disability insurance benefits. Grow also filed an application for supplemental security income on August 31, 2000. Both claims alleged that Grow had been unable to work since August 1, 1998, due to depression and an HIV infection manifesting as acquired immunodeficiency syndrome ("AIDS"). The Social Security Administration ("Administration") initially denied his claim on February 22, 2001, but, after a hearing by Administrative Law Judge John Bauer ("ALJ Bauer"), issued a partially favorable decision on March 12, 2003, granting a closed period of disability. Because the decision contained conflicting dates regarding the onset date of the closed period, Grow appealed. Nevertheless, Grow was paid disability benefits based on a disability period beginning on July 26, 2000 and ending in September 2001.*fn1

After review by the Appeals Council, the March 12, 2003 decision was vacated and remanded for further proceedings. In its order dated September 9, 2005, the Appeals Council noted the conflicting disability onset dates of January 26, 1999, July 26, 2000, and January 26, 2000. Although the end dates also conflicted, each date fell in September 2001. The Appeals Council also noted that 20 C.F.R. § 404.321(c)(2) provides that entitlement to a period of disability ends the second month following the month in which the disability ended which, in this case, would have been at the close of November 2001.*fn2 Therefore, the Appeals Council remanded the action to (1) address a statement made by a lay witness, Terry McMahill ("McMahill"), pursuant to the requirements of Dodrill v. Shalala, 12 F.3d 915 (9th Cir. 1993); (2) evaluate Grow's mental impairment pursuant to 20 C.F.R. §§ 404.1520a and 416.920a; (3) obtain supplemental evidence from a medical expert to clarify the nature and severity of Grow's HIV impairment, and (4) if necessary, obtain a vocational expert to assist in comparing Grow's residual functional capacity ("RFC") to his past relevant work. Additionally, after the March 12, 2003 decision, Grow filed subsequent claims for benefits in November 2003. Given the Appeals Council's action, those claims were rendered duplicate, and the Appeals Council directed the Administrative Law Judge on remand to associate the new claims with the existing claims.

On remand, a new Administrative Law Judge, Ruperta M. Alexis ("ALJ Alexis"), denied Grow's claims on the ground that Grow was not disabled at any time since he filed his initial claim on September 25, 2000. In a decision dated June 26, 2006, ALJ Alexis found that Grow's depression was not a severe impairment because, inter alia, "[Grow's] statements concerning the intensity, duration and limiting effects of these symptoms are not entirely credible."*fn3 Furthermore, contrary to ALJ Bauer's findings, ALJ Alexis concluded that his HIV-related impairments did not meet the criteria of section 14.08(I) of the impairments listed in Appendix 1, Subpart P of 20 C.F.R. § 404. It appears that ALJ Bauer and ALJ Alexis reached different conclusions because different medical experts testified at each hearing. At ALJ Bauer's hearing, Dr. Marvin S. Wolf ("Dr. Wolf") testified that Grow "had diarrhea and weight loss that met or equaled medical listing 14.08(I), HIV wasting syndrome . . . [and] that [Grow's] depression probably worsened [his] condition." At ALJ Alexis' hearing, Dr. William Spence testified that "at no time from the alleged onset of disability to the present time has [Grow] met or equaled a Listing from the Listing[] of Impairments . . . [and] opined that although [Grow's] weight has fluctuated from 145 to 130 pounds, . . . none of the other sequelae of an 'HIV wasting syndrome' . . . as described at 14.08I" were present." Based on Dr. Spence's opinion, ALJ Alexis concluded that Grow was not entitled to a period of disability and further concluded that Grow's RFC did not preclude him from engaging in past relevant work.


The Social Security Act defines a "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months."*fn4 A claimant is not disabled if he or she can engage "in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work."*fn5

Disability claims are evaluated using a five-step sequential analysis.*fn6 At step one, the ALJ determines whether the claimant is "working and the work [is] substantial gainful activity."*fn7 If the claimant is doing substantial gainful activity, the claimant is not disabled, regardless of medical condition, age, education or work experience.*fn8 At step two, the ALJ assesses the severity of the claimant's impairment or combination of impairments - that is, whether the impairment or combination of impairments significantly limits basic work activities.*fn9 If those impairments do not so limit claimant's ability to work, the claimant is not disabled. At step three, the ALJ considers whether the claimant's impairment or combinations of impairments meets or equals an impairment listed in an appendix to the regulations.*fn10 At step four, the ALJ assesses the claimant's RFC and determines whether the claimant is capable of performing work he has performed in the past fifteen years.*fn11 In analyzing whether a claimant is capable of performing past relevant work, an ALJ must compare a claimant's RFC with the physical and mental demands of a claimant's past relevant work.*fn12

If the claimant can still do his or her past relevant work, the claimant is deemed not to be disabled.

If the claimant cannot perform past relevant work, the evaluation process moves to the fifth and final step. At step five, the ALJ assesses the claimant's RFC, "together with vocational factors . . . to determine if [the claimant] can make an adjustment to other work."*fn13 If the claimant can make an adjustment to other work, the ALJ will conclude that he is not disabled. "The claimant carries the initial burden of proving a disability in steps one through four of the analysis."*fn14 If the claimant establishes the inability to perform past relevant work, the burden then shifts to the ALJ to "show that the claimant can perform other substantial gainful work."*fn15 In making this assessment, the ALJ considers the claimant's RFC, age, education, and work experience, as well as whether alternative jobs exist in the national economy in significant numbers, either in the region in which claimant resides or in several regions in the country.*fn16

Upon denial of disability benefits, a claimant may request the Appeals Council to review the ALJ's decision.*fn17 Where, as here, the Appeals Council denies a request for review, the decision of the ALJ represents the final decision of the Commissioner.*fn18 The claimant may then seek judicial review of the ALJ's decision by the district court.*fn19 On de novo review, the district court may enter, upon pleadings and a transcript of the record, a judgment affirming, modifying, or reversing the ALJ's decision, with or without remanding the case for a rehearing.*fn20 The ALJ's decision must be upheld if it is supported by substantial evidence and the ALJ applied the correct legal standards.*fn21

"Substantial evidence is 'more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as ...

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