Ischay v. Barnhart

• Decision Date: 27 July 2005
• Docket Number: No. ED CV 04-1696-PJW.,ED CV 04-1696-PJW.
• Citation: 383 F.Supp.2d 1199
• Parties: Francis W. ISCHAY, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of the Social Security Administration, Defendant.
• Court: U.S. District Court — Central District of California

383 F.Supp.2d 1199

Francis W. ISCHAY, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of the Social Security Administration, Defendant.

No. ED CV 04-1696-PJW.

United States District Court, C.D. California.

July 27, 2005.

COPYRIGHT MATERIAL OMITTED

Steven G. Rosales, Lawrence D. Rohlfing Law Offices, Santa Fe Springs, CA, for Plaintiff.

Kathryn M. Ritchie, Assistant U.S. Attorney, Office of U.S. Attorney, Los Angeles, CA, for Defendant.

MEMORANDUM OPINION AND ORDER

WALSH, United States Magistrate Judge.

I. INTRODUCTION

Plaintiff brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking reversal of the decision by Defendant Social Security Administration ("Agency") denying Supplemental Security Income ("SSI") benefits. Alternatively, he asks the Court to remand the case to the Agency for further proceedings. For the reasons discussed below, the Agency's decision is REVERSED and the case is REMANDED for the award of benefits.

II. BACKGROUND

Plaintiff was born on February 2, 1934, and was 69 years old at the time of the relevant administrative hearing. (AR 465.) He is a high-school graduate, with three years of college-level training in engineering and economics. (AR 51, 465.) He has past relevant skilled work as a production superintendent for an aluminum distribution company. (AR 51, 465-66.)

Plaintiff filed protectively for SSI benefits on January 17, 1995. (AR 464.) In his application, he alleged disability since April 4, 1994, because of hypertension and low back pain. (AR 51.) Plaintiff timely requested a hearing before an administrative law judge ("ALJ") after his claim was denied initially and on reconsideration. (See AR 50, 107.)

Over the years, various ALJs held four hearings on Plaintiff's application. Although only the decision that followed the ultimate hearing is at issue in this case, the substance of all four hearings and the evidence introduced at each is relevant because of Plaintiff's assertion of the doctrine of law of the case. Accordingly, the Court will summarize the four hearings in chronological order.

A. The First Hearing (October 16, 1996)

The first hearing was held on October 16, 1996. (AR 70.) Plaintiff appeared with counsel and testified. (See AR 72-85.) The ALJ also heard testimony from Alan Boroskin, a vocational expert. (See AR 86-95.)

At the first hearing, Plaintiff stated that he finished three years of college course work in engineering and economics. (See AR 72-73.) He explained that he had last worked in 1994, overseeing production and quality-control at an aluminum manufacturing plant. (AR 73-74.) Plaintiff's general duties were supervisory in nature; his specific duties involved walking, retrieving data from a computer, making phone calls, occasional local travel to visit suppliers of raw materials, and hiring and firing. (See AR 74-76.) Beginning in 1993, Plaintiff became responsible for supervising three shifts. (AR 76-77.) The stress of these additional duties led him to quit this job in 1994 "[u]nder doctor's recommendations because of elevated blood pressure, hypertension."¹ (AR 76.)

Plaintiff's doctor prescribed medication for his blood pressure and recommended stretching exercises and non-prescription doses of Tylenol as needed for his back. (See AR 77-81.) His daily activities included watering the lawn, cooking, watching television, reading, working on his home computer, and corresponding with family. (AR 80-82.) Occasionally, Plaintiff also relaxed at his motor home by the beach. (AR 81.)

Regarding his functional limitations, Plaintiff stated that he had sporadic difficulty walking; on bad days, he used a back brace, support brace, and a cane, although he admitted that "[r]ight now I could probably walk easily enough." (AR 82.) Plaintiff estimated that he sat at his computer for no more than one hour at a time. (AR 83.) He added that his ability to bend at the waist was limited and described muscle spasms in his back; again, however, he admitted that "I can go into the grocery store, shop, carry it out and probably do okay." (See AR 83.) Plaintiff considered his hypertension to be the most significant impediment to his return to work. (AR 83-84.)

The ALJ next heard testimony from Alan Boroskin, the Vocational Expert. (AR 86.) According to the Dictionary of Occupational Titles ("DOT"), this expert considered that Plaintiff's previous job was skilled labor performed at the light exertional level. (AR 86.) The expert added that, given Plaintiff's particular duties — which involved responsibility for seven departments and supervision of approximately 100 employees — the stress level of this job would rate at approximately an 8 on a scale of 1 to 10, with 10 indicating the highest level of stress. (See AR 86.)

The vocational expert found that many of Plaintiff's skills were transferable to other, less stressful work. Specifically, the expert explained that Plaintiff could perform jobs as a reader, an automobile locator, or in administrative support — all of which were less stressful than his previous work, and each of which involved a lower general level of skill and existed in significant numbers in the local economy. (See AR 87-90.) Even if none of Plaintiff's skills was transferable, the expert concluded that he still could perform unskilled jobs existing in large numbers in the national economy, including cleaner — a relatively low-stress job performed at the medium-level of exertion for which 81,000 positions existed in the local economy. (See AR 86-87.)

In response to Plaintiff's counsel's hypothetical questions, the vocational expert opined that, even if Plaintiff had a marked or significant limitation in his ability to accept instructions and respond appropriately to criticisms from supervisors, he would not be significantly limited in his ability to perform these other jobs. (See AR 93.) The expert conceded, however, that if Plaintiff had a marked limitation in his ability to maintain attention and concentration for longer than two hours at a time, he would be unable to perform any of these other jobs. (AR 92-93.)

On January 24, 1997, after analyzing Plaintiff's claims under the Agency's five-step sequential evaluation process, the ALJ issued the first decision. (AR 50-60.) Based on his assessment of the medical record, the ALJ determined that, although Plaintiff's last position was too stressful for him, he remained capable of performing any position he held at his company before becoming responsible for managing three shifts of employees. (See AR 58.) Accordingly, the ALJ concluded that Plaintiff was not disabled as defined in the Social Security Act (the "Act") at any time through the date of that first decision. (AR 60.)

Plaintiff timely requested review of the first decision. (AR 41.) The Appeals Council affirmed the decision. (See AR 3-4.) Plaintiff then filed suit in this Court, and, on June 15, 1999, Magistrate Judge Ann I. Jones reversed. (AR 385-95.) Primarily, the Court faulted the ALJ's step four conclusion that Plaintiff could return to his previous work, observing that there was no evidence that he ever performed the discrete "jobs" that the ALJ considered him capable of resuming. (AR 389-91.) The Court found, instead, that the "evidence supports the conclusion that [P]laintiff would be precluded from performing any of his prior work." (See AR 391.) Additionally, the Court noted that the ALJ offered inadequate reasons for his dismissal of Plaintiff's subjective pain complaints. (AR 392-94.) On remand, therefore, the Court instructed the ALJ "to complete the five-step evaluation." (See AR 394.) The Court entered summary judgment in favor of Plaintiff, and remanded the matter to the Agency with the usual mandate to conduct "further administrative action consistent with this Memorandum Opinion." (AR 395.) Pursuant to Magistrate Judge Jones's Order, the Appeals Council vacated the first decision and remanded the matter to a different ALJ for additional proceedings. (See AR 382-83.)

B. The Second Hearing (January 12, 2000)

On remand, a second administrative hearing was held on January 12, 2000, before a different ALJ. (AR 328.) Once more, Plaintiff appeared with counsel and testified. (See AR 330-53.) The ALJ also heard testimony from Randi Hetrick, another vocational expert. (See AR 353-378.)

At the second hearing, Plaintiff testified at length about his overall financial situation. He told the ALJ that, since he left his job, he continued to live with his wife in their home, which they had owned for 30 years. (AR 336-37.) Additionally, he admitted that he had been receiving early retirement benefits from the Agency since 1996.² (AR 332, 337.) He also confirmed that he had settled his Worker's Compensation claim for $12,000, and that the lump-sum settlement left him responsible for his own continuing medical care. (AR 343-44, 347.) Plaintiff further testified that, although he had left his company on disability, his company retirement benefits had vested thereafter; under that pension plan, he had received payments totaling approximately $48,000 over a one-year period, and then no further pension payments thereafter. (See AR 346, 352-53.)

Plaintiff recapitulated some of his earlier testimony about his work history for the benefit of the new ALJ. (See AR 332-34.) He admitted that the reasons his doctor considered him unable to return to his job in 1994 were the stress level of that job and his hypertension disease, although he added his stress manifested itself in "nightmares and mental problems." (See AR 345, 349.) He conceded that he "would rather avoid going to doctors," but claimed that he followed their advice and took his prescribed medication religiously. (AR 344.) Plaintiff explained that he had stopped working on the advice of his doctor in 1994, who was then having difficulty controlling his blood pressure with medication; following Plaintiff's separation from the company, his blood pressure...