Nault v. Astrue

Filing 28

ORDER ADOPTING MAGISTRATES JUDGE'S FINDINGS AND RECOMMENDATION TO AFFIRM THE ADMINISTRATIVE LAW JUDGE'S DECISION 24 . Signed by JUDGE HELEN GILLMOR on 2/28/2012. ~ There is substantial evidence in the record to support the Administrative Law Judge's March 3, 2011 decision denying Plaintiff disability benefits under the Social Security Act. (1) The Magistrate Judge's Findings and Recommendation To Affirm the Decision of the Administrative Law Judge (Doc. [24 ]), filed November 19, 2012, is ADOPTED; and (2) Plaintiffs Objections to the Magistrate Judge's Findings and Recommendation, filed November 28, 2012, (Doc. 25 ), are DENIED. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DANIEL A. NAULT,

)
)
)
Plaintiff,
)
vs.
)
)
MICHAEL J. ASTRUE,
)
Commissioner, Social Security )
Administration,
)
)
)
Defendant.
)
_______________________________ )

CIV. NO. 12-00175 HG-KSC

ORDER ADOPTING MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION TO
AFFIRM THE ADMINISTRATIVE LAW JUDGE’S DECISION (DOC. 24)
Plaintiff Daniel A. Nault (“Plaintiff”) brought this action
against Defendant Michael J. Astrue, Commissioner of Social
Security (“Defendant”), challenging Defendant’s decision to deny
him social security disability insurance benefits.

Pursuant to

42 U.S.C. 405(g), Plaintiff sought judicial review of that
decision.

Plaintiff objects to the Magistrate Judge’s Findings

and Recommendation upholding the Commissioner’s denial of
benefits.
The Magistrate Judge’s Findings and Recommendation is
ADOPTED, and Plaintiff’s objections are DENIED.

PROCEDURAL HISTORY
Plaintiff applied to the Social Security Administration for
disability insurance benefits under Title II of the Social

Security Act on April 10, 2009. (Administrative Record (“AR”) at
12.)

At the time the application was submitted, Plaintiff

represented that his disability onset date was August 17, 1998.
(Id.)

By letter dated January 24, 2001, Plaintiff amended the

alleged onset date from August 17, 1998 to December 15, 2002.
(AR at 198, Exhibit 13E.)

Plaintiff’s claim was denied on

September 3, 2009, and upon reconsideration on January 14, 2010.
(Id. at 12.)
On February 28, 2010 Plaintiff submitted a Request for
Hearing by Administrative Law Judge.

(Id.)

A hearing was held

on February 24, 2011 before the Administrative Law Judge (“ALJ”).
(Id.)

On March 3, 2011, the ALJ issued his Decision.

The ALJ

concluded that Plaintiff was not under a disability for purposes
of social security disability benefits at any time from December
15, 2002, the amended onset date, through December 31, 2002, the
date last insured.

(AR at 20.)

Plaintiff sought review of the ALJ’s Decision by the Social
Security Administration Appeals council.

On February 15, 2012,

the Appeals Council of the Social Security Administration denied
Plaintiff’s request for review.
Plaintiff filed a Complaint in the United States District
Court, District of Hawaii on April 3, 2012, pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3).
On August 27, 2012 Plaintiff filed a Motion for Judgment on

2

the Pleadings.

(Doc. 12.)

The Magistrate Judge construed

Plaintiff’s filing as an Opening Brief.

On September 27, 2012,

Defendant filed a Response.

On October 10, 2012,

(Doc. 15.)

Plaintiff filed a Reply. (Doc. 18.)
On November 15, 2012, the Magistrate Judge held a hearing on
the Complaint for Review of the Social Security Determination.
The matter was taken under advisement.
On November 19, 2012, the Magistrate Judge issued a
“Findings and Recommendation to Affirm the Decision of the
Administrative Law Judge.”

(Doc. 24.)

On November 28, 2012, Plaintiff filed Objections to the
Magistrate Judge’s Findings and Recommendation (“Objections”).
(Doc. 25.)
On December 12, 2012, Defendant filed a Response to the
Objections.

(Doc. 27.)

FACTUAL BACKGROUND
Plaintiff is currently sixty-two years old with a high
school education.

(AR at 16, 29-30.)

college level education.
in Honolulu, Hawaii.

(Id.)

Plaintiff has one year of

Plaintiff resides with his wife

(AR at 139.)

Plaintiff is currently

unemployed.
Plaintiff’s history of injuries began in the 1970s while
serving in the United States Navy.

3

(AR at 16.)

Plaintiff served

in the Navy from September 22, 1971 to April 3, 1974.
615.)

(AR at

Plaintiff’s service-related injuries include low back

strain, cervical neck strain, and nerve affected conditions is
his right arm, lower left leg, and low right leg. (AR at 615-18.)
Plaintiff continues to receive Veterans Affairs (VA) benefits.
(AR at 16.)
From 1983 to 1985, Plaintiff worked as a driver for a tour
bus company.

(AR at 141.)

In 1985, Plaintiff began working as a deputy sheriff for the
State of Hawaii.

(AR at 16, 30-31.)

person in the course of duty.

In 1992, Plaintiff shot a

(AR at 787, Exhibit 19F.)

In

1995, Plaintiff was terminated from his job after an alleged
assault incident.

(AR at 788.)

In March of 1998, Plaintiff was

reinstated to his position after an arbitration over the 1995
assault incident concluded.

(Id.)

In August 1998, Plaintiff

testified at a trial in connection with the 1992 shooting.

(Id.)

After testifying, Plaintiff was put on medical stress leave and
was placed on workers compensation in 1998.

(AR at 16, 788.)

Plaintiff returned to work in 2002, but cannot recall the time
period he was employed.
Memorandum.)

(AR at 199, Exhibit 13E/3, Pre-Hearing

Plaintiff is certain that he was not working by

mid-December 2002 because of his medical conditions.

(Id.)

Plaintiff alleges an inability to work due to lower back and
neck spinal degeneration combined with major depressive disorder

4

and post traumatic stress disorder.

(Compl. at ¶ 6.)

Plaintiff

claims he has been disabled by these conditions since December
15, 2002.

(Id.)

The claimant’s earnings record shows that the claimant
acquired sufficient quarters of coverage to remain insured
through December 31, 2002 (hereafter “the date last insured”).
In order to prevail, the claimant must establish disability on or
before that date in order to be entitled to a period of
disability and disability insurance benefits.

(AR at 12.)

STANDARD OF REVIEW
A magistrate judge may be assigned to prepare findings and
recommendations for a district judge on a matter that is
dispositive of a claim. Fed. R. Civ. P. 72(b)(1).

If a party

objects to the magistrate judge’s findings or recommendation, the
district court must review de novo those portions to which
objection is made.

United States v. Raddatz, 447 U.S. 667, 673

(1980); Fed. R. Civ. P. 72(b)(2).

The district court may accept,

reject, or modify, in whole or in part, the findings and
recommendations made by the magistrate judge, or recommit the
matter to the magistrate judge with further instructions.
Raddatz, 447 U.S. at 673-74; Fed. R. Civ. P. 72(b)(3).
De novo review means the district court must consider the
matter anew, as if the matter had not been heard before and no

5

previous decision rendered.

Ness v. Commissioner, 954 F.2d 1495,

1497 (9th Cir. 1992). The district court must arrive at its own
independent conclusion about those portions to which objections
are made, but a de novo hearing is not required.

United States

v. Remsing, 874 F.2d 614, 617-18 (9th Cir. 1989).
A claimant is disabled if he or she is unable 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.”
423(d)(1)(A).

42 U.S.C. §

Only disabilities existing before the date last

insured establish entitlement to disability insurance benefits.
Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008)(citing Vincent
v. Heckler, 739 F.2d 1393, 1394 (9th Cir. 1984) (per curiam).
Judicial review of an ALJ’s decision to deny disability
benefits is very limited in scope.

Hall v. Secretary of Health,

Education and Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).

An

ALJ’s decision must be affirmed by the district court if it is
based on proper legal standards and the findings are supported by
substantial evidence on the record as a whole.

See 42 U.S.C. §

405(g); see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995).

“Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a
conclusion.”

Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir.

6

1993).
A court should not substitute its judgment for the judgment
of the ALJ if the evidence can reasonably support either
affirming or reversing the ALJ’s decision.

See Flaten v.

Secretary of Health and Human Services, 44 F.3d 1453, 1457 (9th
Cir. 1995); Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990).

ANALYSIS
Disability claims are evaluated using a five-step sequential
analysis:
In step one, the ALJ determines whether a claimant is
currently engaged in substantial gainful activity. If so,
the claimant is not disabled. If not, the ALJ proceeds
to step two and evaluates whether the claimant has a
medically
severe
impairment
or
combination
of
impairments. If not, the claimant is not disabled. If so,
the ALJ proceeds to step three and considers whether the
impairment or combination of impairments meets or equals
a listed impairment under 20 C.F.R. pt. 404, subpt. P,
App. 1. If so, the claimant is automatically presumed
disabled. If not, the ALJ proceeds to step four and
assesses whether the claimant is capable of performing
her past relevant work. If so, the claimant is not
disabled. If not, the ALJ proceeds to step five and
examines whether the claimant has the residual functional
capacity (“RFC”) to perform any other substantial gainful
activity in the national economy. If so, the claimant is
not disabled. If not, the claimant is disabled.
(emphasis added)
Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 20
C.F.R. § 404.1520).

The claimant has the burden to prove a

disability in steps one through four of the analysis.
7

Id.

(citing Swenson v. Sullivan, 867 F.2d 683, 687 (9th Cir. 1989)).
The burden shifts to the Commissioner in step five to show that
the claimant can perform other substantial gainful work.

Id.

In the case before the Court, the ALJ held that the
Plaintiff must establish disability on or before December 31,
2002 to be entitled to a period of disability and disability
insurance benefits. (AR at 14.)

In conducing the five-step

sequential analysis, the ALJ found:
(Step One)

the Plaintiff did not engage in substantial
gainful activity during the period from his
amended onset date of December 15, 2002 through
his date last insured of December 31, 2002 (20
C.F.R. § 404.1571 et seq.);

(Step Two)

that Plaintiff had severe impairments;

(Step Three)

that none of Plaintiff’s impairments met or
medically equaled one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1;

(Step Four)

that in between December 15, 2002 and December 31,
2002, Plaintiff was unable to perform any past
relevant work;

(Step Five)

that Plaintiff has the residual functional
capacity to perform other substantial gainful
activity in the national economy and is not

8

disabled.
(AR at 14-19.)

Plaintiff challenges the ALJ’s conclusion in step

five.
The Magistrate Judge finds and recommends that the ALJ’s
decision be affirmed.
OBJECTIONS
The Objections largely repeat the arguments Plaintiff
presented in his Opening Brief. (Doc. 12.)

Plaintiff makes the

following objections to the Magistrate Judge’s Findings and
Recommendation To Affirm the Decision of the Administrative Law
Judge (“F & R”):
(1) that the Magistrate Judge erred in finding that the ALJ
properly assessed Plaintiff’s residual functional capacity
(Objections at 12);
(2) that the Magistrate Judge erred in finding that the ALJ
gave clear and convincing reasons to reject Plaintiff and Mrs.
Nault’s testimony (Objections at 17-18);
(3) that the Magistrate Judge erred in finding that ALJ
properly determined that Plaintiff was “not disabled” and able to
do light work.

Plaintiff claims that the evidence establishes

his residual functional capacity was sedentary.

Plaintiff argues

that no jobs exist in significant numbers in the national economy
that Plaintiff could have performed at the sedentary level and he
9

is entitled to a finding of “disabled.”

Plaintiff objects to the

Magistrate Judge’s finding that the ALJ’s decision is supported
by substantial evidence (Objections at 2-5);
(4) that the Magistrate Judge erred in finding that the ALJ
properly considered the VA disability decision (Objections at
(26-27);
(5) the Plaintiff’s objection attempts to attribute to the
Magistrate Judge a finding that the ALJ failed to consider the
workers compensation decision and he found such failure to be
harmless error.

(Objections at 29.)

no such finding of harmless error.

The Magistrate Judge made

The Magistrate Judge found

the treatment of the workers compensation disability
determination by the ALJ to be appropriate; and
(6) that the Magistrate Judge erred in finding that
vocational expert testimony would be unnecessary. (Objections at
27-28.)
After reviewing Plaintiff’s objections and Defendant’s
response, the Court finds that the ALJ properly assessed
Plaintiff’s residual functional capacity and made an appropriate
finding that Plaintiff was not disabled.

The ALJ provided

specific and legitimate reasons for his conclusions, based on
substantial evidence.

The Court adopts the Magistrate Judge’s

Findings and Recommendation.

10

I.

The Administrative Law Judge properly assessed Plaintiff’s
residual functional capacity
A claimant’s residual functional capacity (“RFC”) is what he

can still do despite his limitations.

20 C.F.R. § 404.1545

(2000); see also Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir.
2001).

An RFC finding is “based on all the relevant medical and

other evidence in [the claimant’s] case record.”
404.1520(e); see also 20 C.F.R. § 404.1545.

20 C.F.R. §

“The RFC assessment

must first identify the individual's functional limitations or
restrictions and assess his or her work-related abilities on a
function-by-function basis, including the functions in paragraphs
(b), (c), and (d) of 20 C.F.R. 404.1545 and 416.945.
Security Ruling (“SSR”) 96-8P.

Social

Paragraphs (b), (c), and (d) of

20 C.F.R. §§ 404.1545 and 414.945 discuss the assessment of
physical abilities, mental abilites, and other abilities affected
by some medically determinable impairment.
The Social Security Administration classifies jobs in terms
of exertional levels of work - sedentary, light, medium, heavy,
and very heavy - to determine the physical exertion requirements
of work in the national economy.

20 C.F.R. § 404.1567.

After

the RFC assessment identifies the individual’s functional
limitations or restrictions and assess a claimant’s work-related
abilities based on a function-by-function basis, the RFC may be
expressed in terms of the exertional levels of work.

11

See SSR 96-

8p.
The ALJ reviewed, among other things, Plaintiff’s medical
records, specifically citing the following records: (1) medical
records from Kaiser Behavioral Health Services from 12/1/01 to
12/31/02, including clinical encounter records from psychologist
Dr. Joan H. Koff, Ph.D and psychiatrist Dr. Dolly Langen, M.D.
(AR at 247-280, Exhibit 2F); (2) medical records from Kaiser
Permanente from 12/1/01 to 12/31/02 (AR at 281-291, Exhibit 3F);
(3) historical VA disability ratings covering dates from 1974 to
2010 (AR at 656-658, Exhibit 16F); (4) VA medical records from
8/23/02 to 11/22/10 (AR at 678-720, Exhibit 18F); (5) medical
records from Dr. Won-Yee Cheng, Neuroscience, from January 2003
to April 2010 (AR at 308, Exhibit 7F; AR at 613-614, Exhibit
12F); (6) medical records from Kaiser Behavioral Health Services
from 1/28/03 to 4/28/04, including clinical encounter records
from psychologist Dr. Koff (AR at 641-655, Exhibit 15F); (7)
medical records from Kaiser Behavioral Health Services from 2004
to 2007, including clinical documentation notes from Dr. Koff and
Dr. Langen (AR at 311-412, Exhibit 10F/44, 46, 65, 83).
The ALJ also reviewed written statements prepared by the
Plaintiff and/or his wife, specifically citing the following
records:

(1) a Social Security Administration (“SSA”) disability

report completed by Plaintiff on 7/15/09 (AR at 139-146, Exhibit
2E); (2) a SSA disability report appeal completed by Janice Nault
12

on 10/9/09 (AR at 161-170, Exhibit 7E); (3) a letter from Janice
Nault to the SSA dated 3/14/10 (AR at 174-175, Exhibit 9E); (4) a
SSA disability report appeal completed by Plaintiff on 3/9/10 (AR
at 179-190, Exhibit 11E); (5) a letter from Janice Nault to the
ALJ dated 11/12/10 (AR at 191-196, Exhibit 12E).
Plaintiff’s reliance on Smolen v. Chater, 80 F.3d 1273, 1291
(9th Cir. 1996), is misplaced.

In Smolen, the court held that

there was no evidence to support the ALJ’s RFC finding.
1292.

Id. at

In this case, the ALJ relied on medical and other evidence

to support his analysis.
The Magistrate Judge properly concluded that the ALJ
conducted an RFC assessment.

The ALJ considered and weighted the

relevant medical and other evidence in the record and discussed
how the medical and non-medical evidence supports his conclusion.
(AR at 15-18.)
II.

Credibility determination
In evaluating the credibility of pain testimony after a

claimant establishes medical evidence of an impairment, an ALJ
may not reject a claimant’s testimony based solely on a lack of
medical evidence to fully corroborate the alleged severity of the
pain.

Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005).

When determining credibility, an ALJ may engage in ordinary
techniques of credibility evaluation such as inconsistencies in a

13

claimant’s testimony.

Id.

Medical evidence is a relevant factor

in determining the severity of a claimant’s pain and its
disabling effects.

Rollins v. Massanari, 261 F.3d 853, 857 (9th

Cir. 2001) (citing 20 C.F.R. § 404.1529(c)(2)).

“Unless there is

affirmative evidence showing that the claimant is malingering,
the ALJ's reasons for rejecting pain testimony must be clear and
convincing.”

Burch, 400 F.3d at 680 (citing Lester v. Chater, 81

F.3d 821, 834 (9th Cir. 1995)).

If evidence is susceptible to

more than one rational interpretation, the court defers to the
ALJ’s decision.

Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d

1190, 1193 (9th Cir. 2004) (citing Gallant v. Heckler, 753 F.2d
1450, 1452–53 (9th Cir. 1984)).
A.

Plaintiff’s testimony

The ALJ provided clear and convincing reasons for not fully
crediting Plaintiff’s testimony.

The ALJ accepted Plaintiff’s

testimony that he left his job because of stress and worries
related to a continuing threat to him and his family.
15.)

(AR at

Regarding the severity of Plaintiff’s symptoms, the ALJ

cited medical records from Dr. Koff in December 2002 showing
improvement in Plaintiff’s depression.

(AR at 17.)

The ALJ

relied on medical evidence that Plaintiff responded to the use of
Paxil and psychotherapy sessions; that Plaintiff declined
surgical options for numbness and tingling in his right upper
extremity; and that he experienced some neck pain and occasional
14

discomfort in his right arm.

(AR at 17.) The record supports the

ALJ’s finding that “none of claimant’s treating health providers
(on or before the date last insured) has suggested that claimant
was precluded from engaging in all work activity.”

(AR at 18.)

At the hearing before the ALJ, Plaintiff stated he did not
literally surf in late 2002, but surfed “maybe just in my mind.”
(AR at 42.)

This testimony directly contradicts Plaintiff’s

self-reporting of activities reflected in his medical records in
2002.

The ALJ cited medical records from Dr. Koff and the VA

physical therapist establishing that Plaintiff engaged in family
activities, including surfing, on more than an occasional basis.
(AR at 17-18.)

The ALJ is responsible for determining

credibility and weighing the evidence.
F.3d 1035, 1039 (9th Cir. 1995).

Andrews v. Shalala, 53

Plaintiff’s conflicting

testimony supports the ALJ’s decision to reject Plaintiff’s
statements at the February 24, 2011 hearing in favor of the selfreports from 2002.

The Court will not second guess the ALJ’s

reasoned assessment of the evidence.
The ALJ’s interpretation of Plaintiff’s testimony is a
reasonable interpretation supported by substantial evidence.
Rollins, 261 F.3d at 857.
Plaintiff’s testimony.

The ALJ did not err in rejecting

See Stubbs-Danielson v. Astrue, 539 F.3d

1169, 1175 (9th Cir. 2008).

The Magistrate Judge properly

concluded that the ALJ gave clear and convincing reasons for
15

partially rejecting Plaintiff’s testimony.

See e.g. Morgan v.

Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599-600 (9th Cir. 1999)
(holding that the ALJ provided clear and convincing reasons for
rejecting claimant's testimony. The ALJ pointed to specific
evidence in the record, including reports by the treating
psychiatrist and the examining psychologist in identifying what
testimony was not credible and what evidence undermined
claimant's complaints; the ALJ commented upon contradictions
between claimant's reports to the examining psychologist and his
reports to the treating psychiatrist regarding his activities;
the ALJ identified inconsistency between health staff's
observations and claimant's denial of improvement in his
condition); Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685,
693 (9th Cir. 2009) (holding that the ALJ’s resolution between
conflicting evidence provided a clear and convincing reason to
reject claimant’s subjective evidence, the ALJ cited records and
evidence of claimant’s outside activities to find claimant’s
claims about the severity of his limitations were exaggerated).

B.

Mrs. Nault’s testimony

“Lay testimony as to a claimant's symptoms or how an
impairment affects the claimant's ability to work is competent
evidence that the ALJ must take into account.”

Molina v. Astrue,

674 F.3d 1104, 1114 (9th Cir. 2012) (citing Nguyen v. Chater, 100
16

F.3d 1462, 1467 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915,
919 (9th Cir. 1993)).

The ALJ may not disregard competent lay

witness testimony without comment.
at 1467).

Id.

(citing Nguyen, 100 F.3d

The ALJ “must give reasons that are germane to each

witness” in order to discount competent lay witness testimony.
Id.

The Ninth Circuit Court of Appeals has held that the ALJ is

not required to discuss every witness’s testimony on an
individualized basis, rather if the ALJ gives germane reasons for
rejecting similar testimony by one witness, those same reasons
apply when rejecting similar testimony by a different witness.
Id. (citing Valentine, 574 F.3d at 694).
The Magistrate Judge did not err in determining that the
ALJ’s analysis regarding Plaintiff’s lack of credibility applies
equally to Mrs. Nault.

The ALJ’s decision incorporated evidence

submitted by both Plaintiff and Mrs. Nault.

The ALJ reviewed

written statements prepared by Plaintiff and Mrs. Nault. (AR at
16.)

Plaintiff and Mrs. Nault testified to the severity of

Plaintiff’s disabilities including back pain, discomfort when
sitting or standing, the inability to grip objects, irritability,
forgetfulness, paranoia, and difficulty interacting with others.
(AR at 32-43; AR at 46-52.)
decision.

(AR at 16.)

The ALJ cited these symptoms in his

Plaintiff’s objection to the ALJ’s

treatment of Mrs. Nault’s testimony is belied by the ALJ’s import
of the substance of Mrs. Nault’s testimony in his decision.

17

The

ALJ provided germane reasons for rejecting Plaintiff and Mrs.
Nault’s evidence in favor of the records from the medical
professionals.

See Valentine, 574 F.3d at 693.

III. The Administrative Law Judge’s decision is supported by
substantial evidence
The ALJ held that through the date last insured Plaintiff
had the residual functional capacity to perform light work as
defined in 20 C.F.R. § 404.1567(b) except that he was unable to
perform any detailed tasks.

(AR at 16.)

Light work is defined as:
Light work involves lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted
may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable
of performing a full or wide range of light work, you
must have the ability to do substantially all of these
activities. If someone can do light work, we determine
that he or she can also do sedentary work, unless there
are additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
20 C.F.R. § 404.1567(b).

In reaching the conclusion that

Plaintiff could perform light work activity with no detailed
tasks, the ALJ provided the following reasons for his finding:
(1) None of Plaintiff’s treating health care providers on or
before the date last insured has suggested that Plaintiff was
precluded from engaging in all work activity; (2) Plaintiff was

18

able to manage his symptoms by changing positions, as needed; (3)
Plaintiff declined medication prescriptions because of adverse
side effects and because Plaintiff believed a course of physical
therapy was not beneficial; (4) Plaintiff was engaging in family
activities, including surfing, on more than an occasional basis;
(5) Plaintiff’s treating psychologist Dr. Koff’s notes indicate
that Plaintiff’s depression was in partial remission, in that
claimant was responsive to a change in medication and was
pursuing vocational rehabilitation.

(AR at 18.)

The ALJ held that through the date last insured, considering
Plaintiff’s age, education, work experience, and residual
functional capacity to perform light work except detailed tasks,
there were jobs that existed in significant numbers in the
national economy that the Plaintiff could have performed and
Plaintiff was “not disabled.”

A.

(AR at 19.)

The evidence supports the Administrative Law Judge’s
finding that Plaintiff had the residual functional
capacity to perform light work, except detailed tasks

Plaintiff objects to the ALJ’s finding.
that the evidence requires a RFC of Sedentary.
4.)

Plaintiff argues
(Objections at 3-

Sedentary work is defined as:
Sedentary work involves lifting no more than 10 pounds at
a time and occasionally lifting or carrying articles like
docket files, ledgers, and small tools. Although a
sedentary job is defined as one which involves sitting,
19

a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary
if walking and standing are required occasionally and
other sedentary criteria are met.
20 C.F.R. § 404.1567(a).

Plaintiff argues that, under Medical

Vocational Rule 201.14, a RFC of sedentary would trigger a
finding of “disabled” at step five when considered in conjunction
with Plaintiff’s age, education, and work experience.
The ALJ found that Plaintiff’s ability to pursue daily
activities supported a RFC finding of light work.

On October 22,

2002, Physical Therapist Tang noted that Plaintiff said he lives
an active life with surfing.
Progress Notes.)

(AR at 715, Exhibit 18F/38, VA

On December 5, 2002, Dr. Koff noted Plaintiff

self-reported that he participated in family activities and that
he had gotten his surfboard back. (AR at 279, Exhibit 2F/33,
Clinical Encounter Record dated 12/18/02.)

On December 31, 2002,

Dr. Koff noted that Plaintiff described surfing and pursuing
hobbies with his daughters and thus his outlook has improved.
(AR at 248, Exhibit 2F/2, Clinical Encounter Record dated
12/31/02.)

For the reasons stated above, the ALJ properly

rejected Plaintiff and Mrs. Nault’s testimony contradicting these
reports.

The ALJ’s findings are supported by substantial

evidence.
B.

Plaintiff’s ability to manage his symptoms

Plaintiff argues that the Magistrate Judge erred in finding
20

the ALJ properly incorporated Plaintiff's testimony describing
his need to change position for pain control into the ALJ
decision.

(Objections at 2.)

Attorney:

Well then let me ask you, as far as your back
when you were working, and this is back in
2002, do you remember what was bothering you?
Was it sitting, standing, walking? What sort
of things were bothering you?

Plaintiff:

It was a combination of it all and the fact
that I was having a problem with, you know,
what’s expected of your –- what the job
description is calling for. And it’s just
difficult. At some point you, you know,
you’re like a whole person and then all of a
sudden you’re being challenged.

Attorney:

Well you said you were having problems with
it all. By all did you mean the sitting, the
standing, walking? Or are your arms
involved?

Plaintiff:

Everything. My arms, strength, overall
strength, sitting is a problem.

ALJ:

Is?

Was?

Plaintiff:

Is.

Was.

Attorney:

This is back in 2002 when you were still
working.

Plaintiff:

Sitting was a problem, sure. But
progressively I am worse now, if that –-

Attorney:

Well back then you said sitting was a
problem. What about standing? If you had to
stand eight hours a day, five days a week?

Is.

21

What do you want me to –-

Plaintiff:

No, that –- that couldn’t happen.
do that.

Attorney:

Do you remember how long back then you could
stand for before you had to sit down?

Plaintiff:

A matter of minutes, you know.

Attorney:

What about going from sitting to standing?
Do you remember how long you could sit for
before you had to stand up?

Plaintiff:

Well when you’re in a chair you can change
your positions a lot, you can squirm, you can
–- I mean you –- you did everything. And I
still do.

(AR at 36-37.)

I couldn’t

Plaintiff argues that the ALJ should have found

Plaintiff’s RFC was sedentary based on this testimony.
(Objections at 3-4.)

Plaintiff’s argument that the ALJ

improperly ignored Plaintiff’s testimony is without merit.

The

ALJ considered Plaintiff’s testimony, but found it not credible.
See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir.
2008) (holding that the ALJ did not err in rejecting the
claimant’s testimony because her alleged symptoms were not
supported by objective medical findings or other corroborating
evidence, claimant engaged in normal activities of daily living,
and the doctors’ reports concluded she could perform a limited
range of work).

The Magistrate Judge properly determined that

the ALJ’s use of Plaintiff’s pain control testimony was not

22

erroneous.

C.

Plaintiff’s medical records from after the date last
insured of December 31, 2002
1.

Plaintiff’s objection to the ALJ’s treatment of
medical records from after the date last insured

Plaintiff objects to the ALJ’s use of evidence covering a
period after Plaintiff’s date last insured (“DLI”).
at 6-7.)

(Objections

Medical evaluations made after the date last insured

are relevant to evaluation of disability during the insured
period.

Sampson v. Chater, 103 F.3d 918, 922 (9th Cir. 1996);

Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988)).

It was the

Plaintiff himself who introduced evidence from Dr. Won-Yee Cheng
for medical treatment from 2003-2009.

(AR at 56.)

The ALJ held:

The claimant came under the care of Dr. Won-Yee Cheng
beginning January 2003 for spinal injuries sustained from
repeated trauma associated with his work in the military
and then as a sheriff.
Although treatment began
immediately after the date last insured, Dr. Cheng did
not specify significant milestones in the claimant’s
treatment until late 2005 when the claimant apparently
underwent cervical fusion.
(AR. at 18.)

The ALJ’s conclusion of no disability as of

December 31, 2002 is supported by the lack of change in
Plaintiff’s condition until the surgery in 2005.

It is

appropriate for the ALJ to utilize evidence provided by the

23

Plaintiff where relevant to evaluation of Plaintiff’s condition
during the insured period.

The Magistrate Judge properly found

that the ALJ did not err in his treatment of Dr. Cheng’s records.

2.

Plaintiff’s objection to use of 850 pages of
medical records from June 22, 2005 through May 17,
2011 that are not part of the Administrative
Record

When Plaintiff requested review of the ALJ’s decision by the
Appellate Council, Plaintiff offered new evidence in the form of
850 pages of medical records covering from June 22, 2005 through
May 17, 2011.

The Appeals Council held:

We also looked at Medical records from Kaiser Permanente
dated June 22, 2005 through May 17, 2011.
The
Administrative Law Judge decided your case through
December 31, 2002, the date you were last insured for
disability benefits. This new information is about a
later time. Therefore, it does not affect the decision
about whether you were disabled at the time you were last
insured for disability benefits.
(AR at 2.)

The ALJ never had the 850 pages before him in making

his decision.

After rejection of use of the 850 pages by the

Appellate Council, Plaintiff raised the use of the 850 pages of
evidence in his Reply brief before the Magistrate Judge filed
October 10, 2012.

(Reply Brief at 7-9, Doc. 18.)

Plaintiff

argued that the Defendant should be precluded from using evidence
from June 22, 2005 through May 17, 2011 to establish disability
prior to the DLI because the Defendant chose not to produce the
24

records to the Court.

(Id. at 7.)

Plaintiff’s objection is

without substance.
The Magistrate Judge held:
Plaintiff should not have raised this argument for the
first time in the Reply. However, the Court need not
rule on the issue because the documents have no bearing
on the Court’s decision, as neither party cites to or
relies on them, and they cover a period of time after the
relevant disability period.
(F & R at 2, n.1.)

The Magistrate Judge pointed out that the 850

pages were not part of the evidence relied on by either party.
There was no error on the part of the Magistrate Judge.
IV.

VA Disability
Plaintiff claims the Magistrate Judge erred in finding the

ALJ properly considered the VA disability decision.

The Ninth

Circuit Court of Appeals has held that the ALJ must consider the
VA’s finding in reaching his decision and must ordinarily give
great weight to a VA determination of disability.

McCartey v.

Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002)(internal citations
omitted).

In McCartey, the Appellate Court cautions, however,

that a VA rating of disability does not necessarily compel the
Social Security Administration to reach an identical result.
(citing 20 C.F.R. § 404.1504).

Id.

The ALJ may give less weight to a

VA disability rating if he gives persuasive, specific, valid
reasons for doing so that are supported by the record.

25

Id.

The ALJ’s decision addressed Plaintiff’s VA rating and
considered both the history and the development of Plaintiff’s
limitations from 1972 forward.

Two paragraphs of the ALJ’s

decision detail symptoms, diagnoses, treatment, and VA ratings
from the VA records.

(AR at 17.)

The Court rejects Plaintiff’s

argument that the ALJ did not understand the VA disability
decision and therefore ignored the VA decision.
26-27.)

(Objections at

The ALJ addressed and considered the VA disability

decision.

Plaintiff’s 40% disability rating was in place from

1976 to 2002.

(AR at 658.)

From 1985 to 1995 Plaintiff worked

as a deputy sheriff in spite of his partial 40% disability
rating.

A finding of some disability by the VA does not compel

the ALJ to make a finding of disability under the Social Security
Administration law.

Plaintiff’s objection is without merit.

The

Court declines to find that the ALJ failed to properly weigh the
VA disability determination.
V.

The State of Hawaii Department of Labor and Industrial
Relations worker’s compensation decision
Social Security Ruling 06-03p requires evaluation of

disability decisions by other governmental and nongovernmental
agencies, but the other decisions are not binding.

SSR 06-03p.

A state workers compensation finding may be introduced into
evidence but the ALJ may attribute as much or as little weight to
it as he deems appropriate.

Wilson v. Heckler, 761 F.2d 1383,

26

1835 (9th Cir. 1985); Little v. Richardson, 471 F.2d 715, 716
(9th Cir. 1972).
Plaintiff argues that if the ALJ’s decision is not reversed,
the case should be remanded to the ALJ.

Plaintiff takes the

position that the ALJ did not consider the State of Hawaii
workers compensation determination that Plaintiff was totally
disabled due to his psychological impairments from August 10,
1998 to July 30, 2008.

(AR at 126.)

As the Magistrate Judge pointed out, the ALJ has the
discretion to determine the weight given to the workers
compensation finding of disability.

(F & R at 45.)

The ALJ did

take into consideration the workers compensation decision.

The

ALJ stated that Plaintiff was placed on workers compensation in
1998 and 2002.

(AR at 16.)

The ALJ afforded the opinions of

the state agency medical and mental health specialists limited
weight because these decisions were made without consideration of
pertinent evidence submitted after the state agency
determinations were made.

(AR at 18.)

The Court adopts the

Magistrate Judge’s finding that the ALJ would not be required to
give a different weight to the workers compensation decision even
if this case were remanded.

The ALJ’s decision is supported by

substantial evidence and will not be remanded for further
consideration of the workers compensation decision.
VI.

Vocational expert testimony
27

Once a claimant establishes he is not able to perform any
work he has done in the past, the burden of proof shifts to the
Commissioner, at step five, to demonstrate that there are other
jobs existing in the national economy that a claimant can
perform.

Hoopai v. Astrue, 499 F.3d 1071, 1075 (9th Cir. 2007).

The Social Security Administration established the MedicalVocational guidelines (the grids) to assist in the step five
determination.

Id.

When the grids match a claimant’s

qualifications, “the guidelines direct a conclusion as to whether
work exists that the claimant could perform.”

Id. (quoting

Heckler v. Campbell, 461 U.S. 458, 462 (1983)).

If the grids do

not match the claimant’s qualifications, the ALJ may (1) use the
grids as a framework and make a determination of what work exists
that the claimant can perform, or (2) rely on a vocational expert
when the claimant has significant non-exertional limitations.
Id. (internal citations omitted).

The use of a vocational expert

is left to the Commissioner’s discretion.

Gomez v. Chater, 74

F.3d 967, 971 (9th Cir. 1996) (citing 20 C.F.R. §§ 404.1566(e),
416.966(e); Albrecht v. Heckler, 765 F.2d 914, 916 (9th Cir.
1985)).
Plaintiff argues that if the ALJ’s decision is not reversed
the case should be remanded to the ALJ.

Plaintiff claims that

vocational expert testimony is necessary during step five of the
ALJ’s disability analysis.

(Objections at 27-28.)

28

At step five

of his analysis the ALJ held:
Through the date last insured, if the claimant had the
residual functional capacity to perform the full range of
light work, considering the claimant’s age, education,
and work experience, a finding of “not disabled” would be
directed by Medical-Vocational Rule 202.14. However, the
additional limitations had little or no effect on the
occupational base of unskilled light work. A finding of
“not disabled” is therefore appropriate under the
framework of this rule.
(AR at 19.)

The ALJ expressly stated that Plaintiff’s additional

limitations had little or no effect on the occupational base of
unskilled light work and use of the grid is therefor appropriate.
The ALJ’s decision was supported by substantial evidence and will
not be remanded.

Even if the matter were remanded, there would

be no basis to require vocational expert testimony.
Plaintiff’s objections to the Magistrate Judge’s Findings
and Recommendation are without merit.

The Magistrate Judge

provided an in-depth review of the ALJ’s decision.

CONCLUSION
There is substantial evidence in the record to support the
Administrative Law Judge’s March 3, 2011 decision denying
Plaintiff disability benefits under the Social Security Act.
(1)

The Magistrate Judge’s Findings and Recommendation To
Affirm the Decision of the Administrative Law Judge
(Doc. 24), filed November 19, 2012, is ADOPTED;
29

and
(2)

Plaintiff’s Objections to the Magistrate Judge’s
Findings and Recommendation, filed November 28, 2012,
(Doc. 25), are DENIED.

IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, February 28, 2013.

/S/ Helen Gillmor
Helen Gillmor
United States District Judge

_________________________________________________________________
Nault v. Astrue, Civ. No. 12-00175 HG-KSC; ORDER ADOPTING
MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION TO AFFIRM THE
ADMINISTRATIVE LAW JUDGE’S DECISION (DOC. 24)

30