Stubbs-Danielson v. Astrue ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOUANNA STUBBS-DANIELSON, 
Plaintiff-Appellant, No. 07-35096
v.
 D.C. No.
CV-06-05212-JKA
MICHAEL J. ASTRUE, Commissioner
of Social Security, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Washington
J. Kelley Arnold, Magistrate Judge, Presiding
Argued and Submitted
June 5, 2008—Seattle, Washington
Filed August 22, 2008
Before: Ferdinand F. Fernandez and Consuelo M. Callahan,
Circuit Judges, and Irma E. Gonzalez,* District Judge.
Opinion by Judge Gonzalez
*The Honorable Irma E. Gonzalez, Chief Judge of the United States
District Court for the Southern District of California, sitting by designa-
tion.
11439
STUBBS-DANIELSON v. ASTRUE 11443
COUNSEL
D. James Tree, Attorney at Law, Yakima, Washington, for the
plaintiff-appellant.
David Blume, Assistant Regional Counsel, Social Security
Administration, Seattle, Washington, for the defendant-
appellee.
OPINION
GONZALEZ, Chief District Judge:
Appellant Louanna Stubbs-Danielson appeals the district
court’s decision affirming the Commissioner of Social Securi-
ty’s denial of her application for disability insurance benefits
under the Social Security Act. We affirm.
I.
Stubbs-Danielson first applied for Supplemental Security
Income (“SSI”) benefits in 1986. The Commissioner
11444 STUBBS-DANIELSON v. ASTRUE
approved her application and Stubbs-Danielson received SSI
benefits from 1986 until roughly 1995, at which time her ben-
efits were terminated as a result of her incarceration. She was
in prison from roughly 1994 to 2000 and, upon release, she
unsuccessfully applied for SSI benefits. Stubbs-Danielson
protectively filed the present application in 2002.
In 2002, Stubbs-Danielson was 38 years old. She had a
high school education, having taken special education classes
and worked briefly as a telemarketer after her release from
prison. Stubbs-Danielson based her application on claimed
mental and physical limitations. Relevant here are evaluations
conducted by two physicians and one psychologist.
In December 2002, Dr. Bryce A. McCollum evaluated
Stubbs-Danielson and diagnosed her with borderline intellec-
tual functioning and said she showed good persistence, but a
slow pace in thought and action. Dr. McCollum observed that
Stubbs-Danielson could follow three-step instructions. IQ
testing resulted in scores that fell within the borderline range
of intellectual functioning. Dr. McCollum noted Stubbs-
Danielson functions in the low average range for verbal com-
prehension, perceptual organization, reporting the meaning of
words, thinking abstractly, holding content in short term
memory while sorting and reporting, copying symbols, rea-
soning with spatial relationships, and non-verbal reasoning.
In April 2003, Stubbs-Danielson injured her left wrist, left
leg, and back in an automobile accident. X-rays showed
degenerative changes in her lumbar spine. Later that month,
Lawrence Neville, M.D., examined her and diagnosed a lum-
bar strain and left leg bruises. He concluded that her standing,
walking, and sitting limitations would soon resolve.
In May 2003, Bruce Eather, Ph.D., a State agency review-
ing psychologist noted Dr. McCollum’s observation about
claimant’s slow pace and likewise indicated claimant has sev-
STUBBS-DANIELSON v. ASTRUE 11445
eral mental limitations. Dr. Eather stated claimant could per-
form simple work without public contact.
The Commissioner denied Stubbs-Danielson’s 2002 appli-
cation initially and on reconsideration. Stubbs-Danielson
requested, and was granted, a hearing before an administrative
law judge (“ALJ”). The ALJ took testimony from Stubbs-
Danielson and a vocational expert. The ALJ subsequently ren-
dered a decision denying the application in 2005.
The ALJ used the required five-step sequential framework
to analyze whether Stubbs-Danielson was disabled. See 20
C.F.R. § 416.920. At step one, the ALJ found that Stubbs-
Danielson had not engaged in substantial gainful activity
since the alleged disability onset date. At step two, the ALJ
concluded that although some of the alleged impairments
were not “severe” within the meaning of the applicable regu-
lations, Stubbs-Danielson’s lumbar degenerative disc disease,
borderline intellectual functioning, adjustment disorder, and
obesity were severe. At step three, the ALJ found that none
of Stubbs-Danielson’s conditions met or medically equaled a
listed impairment in the regulations. Finding that Stubbs-
Danielson’s allegations regarding her limitations were not
entirely credible, the ALJ determined that Stubbs-Danielson
“retain[ed] the residual functional capacity to perform simple,
routine, repetitive sedentary work, requiring no interaction
with the public.” At step four, based on the residual functional
capacity assessment, the ALJ found that Stubbs-Danielson
had no past relevant work. At step five, the ALJ relied on the
Medical-Vocational Guidelines and the testimony of the voca-
tional expert to conclude that Stubbs-Danielson could perform
work as a “small products assembler,” with 1,000 jobs avail-
able regionally and 100,000 available nationwide, and as a
“packager/sorter,” with 800 jobs available regionally and over
80,000 available nationwide. The ALJ, therefore, concluded
that Stubbs-Danielson was not disabled.
The Social Security Appeals Council denied Stubbs-
Danielson’s request for review of the ALJ’s decision, which
11446 STUBBS-DANIELSON v. ASTRUE
renders the ALJ’s decision the Commissioner’s final decision.
The district court affirmed the ALJ’s decision, and this appeal
followed.
II.
“We review de novo a district court’s judgment upholding
the denial of social security benefits. We may set aside a
denial of benefits only if it is not supported by substantial evi-
dence or is based on legal error.” Lingenfelter v. Astrue, 504
F.3d 1028, 1035 (9th Cir. 2007) (internal citation and quota-
tion marks omitted).
III.
Stubbs-Danielson argues the ALJ: (1) failed to give any res
judicata effect to her prior disability finding; (2) improperly
rejected the opinions of her treating doctors and improperly
found Stubbs-Danielson’s testimony was not credible; and (3)
failed to meet his burden of identifying specific jobs, avail-
able in significant numbers, which Stubbs-Danielson could
perform despite her impairments.
1. Preclusive Effect of Prior Disability Determination
As discussed above, Stubbs-Danielson received SSI bene-
fits from 1986 until her incarceration in 1994, which resulted
in termination of benefits. She argues the ALJ erred in failing
to apply a presumption of disability based on this earlier
receipt of benefits.
[1] In Warren v. Bowen, 804 F.2d 1120 (9th Cir. 1987) (per
curiam), this court held that while the social security adminis-
trator may be foreclosed from reevaluating the disability
determinations for current beneficiary recipients, the adminis-
trator is not required to presume that a previous disability has
continued through a non-medically related termination of ben-
efits. Id. at 1121. We examined then-existing regulations
STUBBS-DANIELSON v. ASTRUE 11447
which provided that an applicant whose benefits were termi-
nated for a non-medical reason would not be required to
resubmit evidence of his disability if the re-application came
within one year of the prior termination. Id. (citing 20 C.F.R.
§ 416.1321(b) (1986)). We reasoned that such regulations
supported the position that a presumption of disability should
not extend to an applicant whose re-application came almost
three years—i.e., more than one year—after a non-medical
termination. Id.[2] The existing regulations compel the same result in this
case. The current regulations state that a claimant’s benefits
are suspended upon incarceration, and after 12 months of con-
tinuous suspension, benefits are terminated. See 20 C.F.R.
§§ 416.1325, 416.1335. While the regulations provide for the
resumption of suspended benefits upon an otherwise eligible
recipient’s release from custody, see 20 C.F.R. § 416.1325(b),
they provide for no such reinstatement where a recipient’s eli-
gibility has been terminated after 12 consecutive months of
suspension. Accordingly, there is no basis for applying a pre-
sumption of continuing disability where, as here, a claimant’s
reapplication comes at least 6 years after a termination of ben-
efits and more than 15 years after her previously successful
application.
Our decision in Chavez v. Bowen, 844 F.2d 691 (9th Cir.
1988), does not compel a contrary result. In Chavez, we
observed that principles of res judicata apply to administrative
decisions regarding disability and impose an obligation on the
claimant, in instances where a prior ALJ has made a finding
of non-disability, to come forward with evidence of “changed
circumstances” in order to overcome a presumption of contin-
uing non-disability. Id. at 693. We also explained that a previ-
ous ALJ’s findings concerning residual functional capacity,
education, and work experience are entitled to some res judi-
cata consideration and such findings cannot be reconsidered
by a subsequent judge absent new information not presented
to the first judge. Id. at 694. Stubbs-Danielson has cited no
11448 STUBBS-DANIELSON v. ASTRUE
authority extending the principles of Chavez, which applied
preclusive effect to a prior finding of non-disability, to the
present context, an attempt to apply that same presumption to
a prior finding of disability. Further, Stubbs-Danielson has not
established that the ALJ improperly reconsidered prior find-
ings, i.e., reconsidered prior findings based strictly on infor-
mation already presented to the first judge. The entirety of the
medical evaluations presented with respect to the present
application were conducted after Stubbs-Danielson’s 1984
initial disability determination. These evaluations necessarily
presented new and material information not presented to the
first ALJ.
2. ALJ’s Rejection of Certain Testimony
Stubbs-Danielson next argues the ALJ improperly rejected
the opinions of the treating and examining doctors as well as
Stubbs-Danielson’s own subjective complaints. Stubbs-
Danielson contends the ALJ failed to account for a number of
significant functional limitations assessed by the doctors of
record, including difficulties in maintaining pace, and failed
to provide reasons for rejecting those doctors’ opinions. She
also asserts the ALJ excluded various postural limitations on
bending, stooping, and crouching assessed by the Disability
Determination Services physicians who reviewed the file.
i. The ALJ’s hypothetical question did not improperly
reject the opinions of Stubbs-Danielson’s doctors
The ALJ’s residual functional capacity (“RFC”) finding
was as follows: “the claimant retains the residual functional
capacity to perform simple, routine, repetitive sedentary work,
requiring no interaction with the public.” Stubbs-Danielson
argues the RFC finding does not capture the deficiency in
pace and other mental limitations identified by Dr. Bryce
McCollum and Dr. Bruce Eather.
We disagree. While Dr. McCollum’s 2002 Intellectual
Assessment observed Stubbs-Danielson had a “slow pace,
STUBBS-DANIELSON v. ASTRUE 11449
both with thinking and her actions” and his 2005 Mental
Residual Functional Capacity Assessment (“2005 MRFCA”)
identified Stubbs-Danielson as “moderately limited” in her
ability to “to perform at a consistent pace without an unrea-
sonable number and length of rest periods” and “mildly limit-
ed” in several other mental functioning areas, Dr. McCollum
did not assess whether Stubbs-Danielson could perform
unskilled work on a sustained basis. Dr. Eather’s report did.
Dr. Eather’s report, which also identified “a slow pace, both
in thinking & actions” and several moderate limitations in
other mental areas, ultimately concluded Stubbs-Danielson
retained the ability to “carry out simple tasks as evidenced by
her ability to do housework, shopping, work on hobbies,
cooking and reading.” While Mr. Wentz, a vocational expert,
provided Stubbs-Danielson’s representative his opinion that a
person with anything more than a mild limitation with respect
to pace would be precluded from employment except in a
sheltered workshop, the ALJ refused to lend any weight to the
assessment because it did not address Stubbs-Danielson’s
RFC and did not appear to be based on her individual record
as a whole. This represents the type of credibility determina-
tion charged to the ALJ which we may not disturb where, as
here, the evidence reasonably supports the ALJ’s decision.
See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190,
1195-96 (9th Cir. 2004).
[3] The ALJ translated Stubbs-Danielson’s condition,
including the pace and mental limitations, into the only con-
crete restrictions available to him—Dr. Eather’s recom-
mended restriction to “simple tasks.” This does not, as
Stubbs-Danielson contends, constitute a rejection of Dr.
McCollum’s opinion. Dr. Eather’s assessment is consistent
with Dr. McCollum’s 2005 MRFCA, which found Stubbs-
Danielson is “not significantly limited” in her ability to “carry
out very short simple instructions,” “maintain attention and
concentration for extended periods,” and “sustain an ordinary
routine without special supervision.” As two of our sister cir-
cuits have recognized, an ALJ’s assessment of a claimant ade-
11450 STUBBS-DANIELSON v. ASTRUE
quately captures restrictions related to concentration,
persistence, or pace where the assessment is consistent with
restrictions identified in the medical testimony. See Howard
v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001) (where state
psychologist both identified claimant as having deficiencies
of concentration, persistence or pace and pronounced claimant
possessed the ability to “sustain sufficient concentration and
attention to perform at least simple, repetitive, and routine
cognitive activity without severe restriction of function,”
ALJ’s hypothetical including ability to perform “simple, rou-
tine, repetitive tasks” adequately, captured claimant’s defi-
ciencies in concentration persistence or pace); Smith v. Halter,
307 F.3d 377, 379 (6th Cir. 2001) (where ALJ’s hypothetical
incorporated concrete restrictions identified by examining
psychiatrist regarding quotas, complexity, and stress, ALJ did
not err in failing to include that claimant suffered from defi-
ciencies in concentration, persistence, or pace).
The Eighth Circuit’s decision in Howard is directly on
point. There, the court explicitly rejected a claim that an
ALJ’s hypothetical describing an ability to do “simple, rou-
tine, repetitive work” failed to capture deficiencies in concen-
tration, persistence, or pace. The court noted the state
psychologist’s findings which concluded that the claimant,
despite certain pace deficiencies, retained the ability to do
simple, repetitive, routine tasks. See Howard, 255 F.3d at 582.
The medical evidence by Dr. Eather in the present case
reflects the same conclusion.
[4] Accordingly, based on a review of the record, we con-
clude the ALJ’s RFC finding properly incorporated the limita-
tions identified by Dr. McCollum and Dr. Eather, including
those related to pace and the other mental limitations regard-
ing attention, concentration, and adaption. Further, to the
extent the ALJ’s RFC finding erroneously omitted Stubbs-
Danielson’s postural limitations (only occasional balancing,
stooping, and climbing of ramps and stairs), any error was
harmless since sedentary jobs require infrequent stooping,
STUBBS-DANIELSON v. ASTRUE 11451
balancing, crouching, or climbing. See Social Security Ruling
(“SSR”) 96-9p, at 8 (postural limitations related to climbing,
balancing, crouching, would not erode the occupational base
for a full range of unskilled sedentary work; most unskilled
sedentary occupations require very little to occasional stoop-
ing).
We note and distinguish decisions of the Third Circuit in
Ramirez v. Barnhart, 372 F.3d 546 (3d Cir. 2004), and the
Seventh Circuit in Kasarsky v. Barnhart, 335 F.3d 539 (7th
Cir. 2003) (per curiam), which found error where an ALJ’s
hypothetical failed to explicitly set forth deficiencies in pace.
In Ramirez, unlike the present case, medical testimony
explicitly identified accommodation of a severe anxiety-
related pace deficiency as a significant precondition for claim-
ant’s success in maintaining a full-time job. Specifically, the
medical testimony recommended a close physical proximity
between any potential employment location and the location
of the claimant’s children. See Ramirez, 372 F.3d at 555. The
ALJ’s hypothetical, however, did not include this limitation
and instead only provided for a reasonable number of per-
sonal phone calls, which the Third Circuit found rendered the
hypothetical incomplete. See id. The medical testimony in this
case does not endorse a particularized accommodation like the
one identified in Ramirez. As mentioned above, the only con-
crete limitations in this case were provided by Dr. Eather
who, after considering Stubbs-Danielson’s deficiencies in
pace and other areas, found Stubbs-Danielson able to perform
simple tasks.
In Kasarsky, the court’s primary concern was the ALJ’s
failure to provide an explanation for the omission from the
hypothetical question of the ALJ’s earlier observation that the
claimant suffered from “frequent deficiencies of concentra-
tion, persistence, or pace,” Kasarsky, 335 F.3d at 544 (empha-
sis in original), an explanation which the court opined might
exist. No such deficiency is present in the ALJ’s opinion in
11452 STUBBS-DANIELSON v. ASTRUE
this case. The ALJ’s opinion explains the omission of Stubbs-
Danielson’s moderate pace deficiencies from the RFC finding
by reference to Dr. Eather’s assessment.
ii. The ALJ did not err in rejecting Stubbs-Danielson’s
complaints
[5] As for the claim that the ALJ improperly rejected
Stubbs-Danielson’s complaints without a subjective reason,
this charge is without merit. The ALJ sufficiently explained
his reasons for discrediting claimant’s testimony when he
explained as follows:
The claimant’s allegations as to the intensity, persis-
tence and limiting effects of her symptoms are dis-
proportionate and not supported by the objective
medical findings nor any other corroborating evi-
dence. The record reflects that the claimant has nor-
mal activities of daily living, including cooking,
house cleaning, doing laundry, and helping her hus-
band in managing finances.
* * *
These activities tend to suggest that the claimant
may still be capable of performing the basic
demands of competitive, remunerative, unskilled
work on a sustained basis.
In addition, the medical evidence, including Dr. Eather’s
report and Dr. Neville’s report—which both found Stubbs-
Danielson could perform a limited range of work—support
the ALJ’s credibility determination.
3. ALJ’s Step Five Analysis
Finally, Stubbs-Danielson argues the ALJ failed to meet his
step five burden of identifying specific jobs which she could
STUBBS-DANIELSON v. ASTRUE 11453
perform for at least three reasons: (a) the ALJ’s hypothetical
was incomplete; (b) the ALJ did not identify specific jobs the
claimant could perform; (c) the Vocational Expert’s (“VE’s”)
testimony was inconsistent with the Dictionary of Occupa-
tional Titles (“DICOT”) and the ALJ’s hypothetical question.
In arguing the ALJ’s hypothetical was incomplete, Stubbs-
Danielson simply restates her argument that the ALJ’s RFC
finding did not account for all her limitations because the ALJ
improperly discounted her testimony and the testimony of
medical experts. As discussed above, we conclude the ALJ
did not.
[6] We similarly find Stubbs-Danielson’s claim that the
ALJ did not identify specific jobs unpersuasive. The VE testi-
fied that someone with Stubbs-Danielson’s limitations could
perform “small product assembly jobs at the sedentary level”
and “packaging and sorting jobs” existing in significant num-
bers. Such a description is sufficiently specific to identify jobs
that match Stubbs-Danielson’s abilities. Indeed, several
assembly or sorting occupations in the DICOT correspond to
Stubbs-Danielson’s limitations. See DICOT §§ 713.687-018,
734.687-018, 521.687-086.
Accordingly, we disagree with Stubbs-Danielson’s claim
that the VE’s testimony was inconsistent with the DICOT and
the ALJ hypothetical.
IV.
For the foregoing reasons, we AFFIRM the judgment of the
district court.