Azami v. Apfel, CV 96-4070 JG.

• Decision Date: 15 October 1998
• Docket Number: No. CV 96-4070 JG.,CV 96-4070 JG.
• Court: U.S. District Court — Central District of California
• Parties: Sultan A. AZAMI, Plaintiff, v. Kenneth APFEL, Commissioner of the Social Security Administration,<SMALL><SUP>1</SUP></SMALL> Defendant.

24 F.Supp.2d 1007

Sultan A. AZAMI, Plaintiff, v. Kenneth APFEL, Commissioner of the Social Security Administration,¹ Defendant.

No. CV 96-4070 JG.

United States District Court, C.D. California.

October 15, 1998.

Lawrence D. Rohlfing, Lawrence D. Rohlfing Law Offices, Santa Fe Springs, CA, for plaintiff.

John K. Rubiner, Asst. U.S. Atty., Office of U.S. Attorney, Civ. Div., Los Angeles, CA, for defendant.

MEMORANDUM AND ORDER (Social Security)

GROH, United States Magistrate Judge.

Plaintiff has filed a complaint under 42 U.S.C. § 405(g) seeking review of the decision of the Commissioner of the Social Security Administration (Commissioner) denying his application for supplemental security income benefits (SSI) under Title XVI of the Social Security Act. Defendant has answered and the parties have filed cross-motions for summary judgment. For the reasons discussed below, I conclude that the Commissioner's decision should be affirmed.

BACKGROUND

Plaintiff filed his current application for SSI on April 23, 1992, claiming disability since March 9, 1985, due to chest pain, back pain, and fainting spells. (Administrative Record (A.R.) 254-257.)² After his claim was denied initially and upon reconsideration, plaintiff received a hearing before ALJ Templin on June 21, 1995. (A.R.10-11, 22, 283-299.) Plaintiff was represented by a non-attorney and testified through an interpreter. Expert testimony was received from a physician and from a vocational specialist. (A.R.22.)

In a written decision dated July 10, 1995, ALJ Templin explicitly declined to reopen plaintiff's prior applications. (A.R.11.) He determined that plaintiff retained the capacity to perform his past relevant work as a general office clerk and, accordingly, denied his claim at step 4 of the sequential evaluation procedure.³ (A.R.14-15.) The Appeals Council denied plaintiff's request for review, and this appeal followed. (A.R.3-4.)

RELEVANT RECORD EVIDENCE

Plaintiff was 60 years old at the time the ALJ's decision was issued. (A.R.15, 254.) He testified that he had ten years of education in his native Afghanistan. His past work was performed in that country, where he was employed as a clerk for the Department of Water and Power in Kabul. (A.R. 36-38; Pl's Mem. at 7.) He held that position for at least 15 years, until emigrating to the United States in 1981. (A.R.37, 101.) There is no evidence that he has been employed since that date. (A.R.14, 36-37.)

Plaintiff testified that he could not work because of pain in his lumbar area and right leg stemming from an accident in which he was hit by a car while waiting for a bus. (A.R. 39-40; see also A.R. 97.) He averred that he could walk only to the bedroom and back and could stand, with a cane, for no more than a few minutes. (A.R.40-41.) He also testified that he could not sit for long periods and could not lift "anything." (A.R.41-42.)

The medical expert testified that the medical records show that he had degenerative joint disease of the lumbar spine and chronic lumbar stain. (A.R.29.) He found no evidence of weakness in the lower extremities. (A.R.34.) He concluded that plaintiff was capable of lifting or carrying 50 pounds occasionally and 25 pounds frequently and that plaintiff had no nonexertional limitations. (A.R.30.)

The vocational expert testified that plaintiff's past work in his native land corresponded to that of a "general office clerk" as defined by the Dictionary of Occupational Titles (DOT). (A.R. 46.) Based on plaintiff's testimony, she described that work as semiskilled and light. (A.R.45-50.)

DISCUSSION

Under 42 U.S.C. § 405(g), the Commissioner's decision is subject to review in order to determine whether: (1) the findings are supported by substantial evidence, and (2) the Commissioner applied the proper legal standard. Swanson v. Secretary of Health and Human Services, 763 F.2d 1061, 1064 (9th Cir.1985). "Substantial evidence is more than [a] mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)).

Plaintiff contends (1) that ALJ Templin erred in finding, at step 4, that he has a residual functional capacity (RFC) for medium work and can perform his past relevant work as an office clerk, (2) that his work in Afghanistan was not "past relevant work" within the meaning of the applicable regulations, and (3) that, assuming a residual functional capacity for light work, he should be found disabled at step 5 under Rule 202.01 of the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpt. B., App. 2.

1. Residual Functional Capacity Determination

Plaintiff advances the imaginative, if not misleading, argument that res judicata operates as a bar against ALJ Templin's determination that he can perform medium work. The thrust of plaintiff's argument is that ALJ Stuller's finding that he has a residual functional capacity (RFC) for light work is entitled to preclusive effect, and that ALJ Templin therefore erred in determining that he can perform medium work. While that may be so, the error is of no consequence. Plaintiff admits that he can perform the full range of light work, consistent with the prior determinations, and does not challenge the vocational expert's classification of his past work as light. A fortiori, plaintiff has not sustained his burden at step four to show that he cannot perform his past relevant work. Beyond that, ALJ Templin based his ultimate disability determination on the finding that plaintiff could perform his past, light-level work, not on his maximum RFC for medium work.⁴ Thus, even if ALJ Templin erred in not according preclusive effect to the prior RFC determinations, that error was harmless. See Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 434 (9th Cir.1988) (per curiam) (ALJ's classification of past work as "light" harmless error where he also found claimant able to perform other light work); Booz v. Secretary of Health and Human Services, 734 F.2d 1378, 1380 (9th Cir.1984).

It is nonetheless true that res judicata has forceful application in this case.⁵ Properly applied, however, the doctrine operates against plaintiff, not in his favor. There were three prior final determinations that plaintiff could perform his past relevant work as an office helper, and ALJ Templin explicitly declined to reopen the prior applications.⁶ Consequently, the prior findings and determinations of non-disability are binding for the period through the date of ALJ Stuller's decision, January 28, 1992. Chavez v. Bowen, 844 F.2d at 693 (prior findings as to RFC, education, and skill level are binding); Lyle v. Secretary of Health and Human Services, 700 F.2d 566, 568 (9th Cir.1983) (prior determination given res judicata effect through date of decision).

Plaintiff attempts to use his failed claim of res judicata (with respect to the prior finding that he has the RFC for light work) as a bootstrap to a step-five determination that he is disabled under the grids. This effort to finesse the step-four determination must fail. What he refuses to acknowledge is that the prior determination that he can perform his past relevant work (and is therefore not disabled at step 4) is also res judicata for the period through January 28, 1992. The prior determination also conclusively establishes that plaintiff's work in Afghanistan was "past relevant work" (and therefore "substantial gainful activity") within the meaning of the regulations. See infra, pp. 1012-13.

For the period after ALJ Stuller's decision (February 1992-July 1995), the prior determinations create a presumption of continuing non-disability. See note 5, supra.⁷ Plaintiff has failed to rebut the presumption by showing "changed circumstances."⁸ Indeed, he concedes that he retains the functional capacity for light work⁹ and does not argue — much less prove — that his past work was anything other than light work. Nor has he shown why the preclusive effect of the prior step-four determination should be invalidated.

Finally, the mere fact that plaintiff was represented by a non-attorney is not enough to overcome the presumption of continuing non-disability.¹⁰ That his representative, Rosa Fagerian, may have been unfamiliar with the concept of res judicata does not mean that she was unable, or failed, adequately to represent plaintiff, nor has plaintiff identified any specific defects in the record. Ms. Fagerian (who apparently held herself out as providing "Legal Services" (A.R.48)) represented plaintiff at both hearings, although only the transcript of the hearing before ALJ Templin is included in the record. Her examinations of plaintiff, the medical expert, and the vocational expert at that hearing demonstrate that she was familiar with the relevant issues and cognizant of the need to develop the record in her client's behalf. (A.R.32-34, 38-43, 46-49, 50.) Her colloquies with the ALJ also indicate that she understood the procedural requirements and the issues at the hearing. (A.R.43-45, 51-52.) The record is well-developed in other respects as well, including, as it does, plaintiff's treatment records, several consultative reports, and numerous disability reports and questionnaires; moreover, the ALJ took steps to insure that favorable evidence was elicited by requesting records from plaintiff's physicians. (See A.R. 1-2, 54-56, 320-323.) In light of the foregoing, plaintiff's assertions about the absence of counsel are unavailing.

2. Past Relevant Work

Plaintiff contends that the ALJ erred in concluding that his employment in Afghanistan was past relevant work because his earnings fell below the presumptive minimums for substantial gainful activity (SGA). That argument is unpersuasive, for two reasons.

First, ALJ Stuller found that plaintiff could perform his past relevant work as an office helper, and plaintiff did not appeal that...