Edythe Flowers v. Jo Anne B Barnhart

Case 2:04-cv-10592-MAN Document 18 Filed 07/27/06 Page 1 of 16 Page ID #:41 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CAL...

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Case 2:04-cv-10592-MAN Document 18 Filed 07/27/06 Page 1 of 16 Page ID #:41

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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10 11 12 13 14 15 16

EDYTHE FLOWERS,

) ) Plaintiff, ) v. ) ) ) JO ANNE B. BARNHART, ) Commissioner of the ) Social Security Administration, ) ) Defendant. ) ___________________________________)

NO. CV 04-10592-MAN MEMORANDUM OPINION AND ORDER

17 18

Plaintiff filed a Complaint on January 4, 2005, seeking review of

19

the denial by the Social Security Commissioner (“Commissioner”) of

20

Plaintiff’s claim for supplemental security income benefits (“SSI”). On

21

February 7, 2005, the parties filed a “Consent to Proceed Before a

22

United States Magistrate Judge,” pursuant to 28 U.S.C. § 636.

23

parties

24

Plaintiff seeks an order reversing the Commissioner’s decision and

25

directing the payment of benefits or, alternatively, remanding the case

26

for further proceedings; and Defendant requests that the Commissioner’s

27

decision

28

Stipulation under submission without oral argument.

filed

be

a

Joint

affirmed.

Stipulation

The

Court

on

October

has

taken

4,

the

2005,

in

parties’

The

which:

Joint

Case 2:04-cv-10592-MAN Document 18 Filed 07/27/06 Page 2 of 16 Page ID #:42

1

SUMMARY OF ADMINISTRATIVE PROCEEDINGS

2 3

Plaintiff

filed

her

application

for

SSI

on

June 24, 2003.

1

4

(Administrative Record (“A.R.”) 55-59.)

In her application, Plaintiff

5

claimed to have been disabled since May 16, 1987, due to diabetes and

6

affective mood disorder.2

7

experience.

(A.R. 20, 55.)

She has no past relevant work

(A.R. 22.)

8 9

The Commissioner denied Plaintiff’s claim for benefits initially

10

and upon reconsideration.

11

represented by counsel, testified at a hearing before Administrative Law

12

Judge Jan Donsbach (“ALJ”).

13

denied

14

subsequently affirmed the ALJ’s decision.

Plaintiff’s

claim

On March 30, 2004, Plaintiff, who was

(A.R. 229-38.) for

benefits,

On May 17, 2004, the ALJ and

the

Appeals

Council

(A.R. 6-8, 19-24.)

15 16

SUMMARY OF ADMINISTRATIVE DECISION

17 18

In his May 17, 2004 decision, the ALJ found that Plaintiff has not

19

engaged in substantial gainful activity since her alleged onset of

20

disability.

21

impairments, consisting of obesity, affective mood disorder, diabetes,

22

and chronic musculoligamentous strain/sprain of the lumbar spine, but

23

concluded that Plaintiff did not have an impairment or combination of

24

impairments listed in, or medically equivalent to an impairment listed

(A.R. 23.)

The ALJ found that Plaintiff had “severe”

25 26 27

1

Plaintiff previously filed an application for SSI on September 3, 2002, and the ALJ declined to reopen this prior claim. (A.R. 19.) 2

28

However, in her Disability Report, Plaintiff stated that her disability began on April 17, 1998. (A.R. 91.) 2

Case 2:04-cv-10592-MAN Document 18 Filed 07/27/06 Page 3 of 16 Page ID #:43

1

in, Appendix 1, Subpart P, Regulation No. 4.

(Id.)

2 3

The ALJ further found Plaintiff’s subjective complaints to be not

4

credible.

(A.R. 23.)

The ALJ assessed Plaintiff’s residual functional

5

capacity assessment as follows:

6 7

[S]he can lift no more than 30 pounds occasionally and 20

8

pounds frequently; [she] can stand and walk no more than six

9

hours per day; [she can] no more than occasional[ly] climb,

10

balance, stoop, kneel, crouch, or crawl; [she] must avoid

11

concentrated exposure to extremes of temperature; and [she]

12

must perform simple work.

13 14

(Id.)

The ALJ additionally found that Plaintiff has no past relevant

15

work pursuant to 20 C.F.R. § 416.965, was a “younger individual”

16

pursuant to 20 C.F.R. § 416.963 at the time of the decision, and has

17

“more than a high school (or high school equivalent education)” pursuant

18

to 20 C.F.R. § 416.964.

19

vocational

20

framework, the ALJ found that there were a significant number of jobs in

21

the national economy that Plaintiff could perform.3

22

the ALJ concluded that Plaintiff was not “disabled.” (Id.)

expert

and

( Id.)

using

Based upon the testimony of the

Medical

Vocational

Rule

202.20

(Id.)

as

a

Accordingly,

23 24 25 26 27 28

3

Under Rule 202.20, a claimant who is a “younger individual,” a “high school graduate or more,” and “unskilled,” is “not disabled.” 20 C.F.R. Pt. 220, App. 2. 3

Case 2:04-cv-10592-MAN Document 18 Filed 07/27/06 Page 4 of 16 Page ID #:44

1

STANDARD OF REVIEW

2 This

3

Court

reviews

the

Commissioner’s

decision

to

determine

4

whether it is free from legal error and supported by substantial

5

evidence.

6

Commissioner’s decision must stand if it is supported by substantial

7

evidence and applies the appropriate legal standards. Saelee v. Chater,

8

94 F.3d 520, 521 (9th Cir. 1996).

9

mere scintilla but less than a preponderance -- it is such relevant

10

evidence that a reasonable mind might accept as adequate to support the

11

conclusion.”

Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996).

The

Substantial evidence is “more than a

Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995).

12 13

Although this Court cannot substitute its discretion for that of

14

the Commissioner, this Court nonetheless must review the record as a

15

whole, “weighing both the evidence that supports and the evidence that

16

detracts from the [Commissioner’s] conclusion.” Desrosiers v. Secretary

17

of Health and Human Serv., 846 F.2d 573, 576 (9th Cir. 1988); see also

18

Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

19

responsible for determining credibility, resolving conflicts in medical

20

testimony, and for resolving ambiguities.”

21

1035,

22

Commissioner’s decision if it is supported by substantial evidence and

23

free from legal error, even when the record reasonably supports more

24

than one rational interpretation of the evidence.

25

Morgan v. Commissioner of the Social Security Administration, 169 F.3d

26

595, 599 (9th Cir. 1999); Flaten v. Secretary, 44 F.3d 1453, 1457 (9th

27

Cir. 1995).

1039-40

(9th

Cir.

1995).

28 4

This

“The ALJ is

Andrews v. Shalala, 53 F.3d Court

must

uphold

the

Id. at 1041; see also

Case 2:04-cv-10592-MAN Document 18 Filed 07/27/06 Page 5 of 16 Page ID #:45

1

DISCUSSION

2 Plaintiff alleges two disputed issues.

3

First, Plaintiff contends

4

that the ALJ improperly rejected the opinions of her treating mental

5

health professionals. Second, Plaintiff contends that the ALJ failed to

6

provide a complete hypothetical question to the vocational expert.

7

(Joint Stip. at 3.)

8 9

A.

10

The ALJ’s Mental Residual Functional Capacity Is Not Based On Substantial Evidence.

11 12

Ordinarily, the opinions of a treating physician should be given

13

great weight, if not controlling weight. See Social Security Ruling 96-

14

2p;

15

1989)(opinions of treating physicians are entitled to great deference).

16

When the ALJ rejects the opinion of a treating physician, even if it is

17

contradicted, the ALJ may reject that opinion only by providing specific

18

and legitimate reasons for doing so, supported by substantial evidence

19

in the record.

20

also Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)(ALJ erred by

21

rejecting

22

Security examiners’ opinions in finding that claimant’s chronic fatigue

23

syndrome had not rendered her disabled).

24

not suffice for rejecting the treating physician’s opinion.

25

v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989).

26

doctor’s opinion is uncontradicted, it may be rejected by an ALJ only

27

“for ‘clear and convincing’ reasons supported by substantial evidence in

28

the record.”

see

also

the

Magallanes

v.

Bowen,

881

F.2d

747,

751

(9th

Cir.

Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); see

treating

doctors’

opinions

and

relying

upon

Social

Broad and vague reasons will McAllister

When a treating

Holohan v. Massanari, 246 F.3d 1195, 1202-03 (9th Cir. 5

Case 2:04-cv-10592-MAN Document 18 Filed 07/27/06 Page 6 of 16 Page ID #:46

1

2001)(citation omitted); Reddick, 157 F.3d at 725.

2 3

Plaintiff

contends

that

the

ALJ

erred

in

failing

to

provide

4

specific and legitimate reasons to reject the opinions of her treating

5

mental health professionals.

6

ALJ improperly disregarded treatment records showing that she had mental

7

limitations, including impaired memory, judgment, and insight, without

8

providing any reason for doing so.

Specifically, Plaintiff contends that the

(Joint Stip. at 4-5.)

9 10 11

In discussing Plaintiff’s mental health treatment records, the ALJ stated:

12 13

On

August

7,

2002,

14

Ernesto

15

Department

16

concentration is somewhat impaired; that she gets along well

17

with

18

sometimes triggers panic attacks; that she appears to be

19

stable on medication; and that [Plaintiff’s] condition is

20

unlikely to improve (Exhibit 9-F). Dr. [Natividad] also noted

21

that [Plaintiff] has seen her therapist only twice in the past

22

two years and has not participated in therapy, but sees him

23

primarily for medication management.

[Natividad],

[Plaintiff’s]

of

others;

Mental

that

M.D.,

at

Health

stress

at

treating

the stated

work

Los

Angeles

that

makes

psychiatrist,

her

County

[Plaintiff’s]

nervous

and

24 25

By May 15, 2003, [Plaintiff’s] progress notes reflect great

26

improvement, including [Plaintiff’s] statement that she has

27

had “no panic attacks for a while” and “great improvement with

28

medication” (Exhibit 5-F: 3).

Her more [recent] medication 6

Case 2:04-cv-10592-MAN Document 18 Filed 07/27/06 Page 7 of 16 Page ID #:47

1

logs also reflect that [Plaintiff’s] response to medication is

2

“good”, that her “anxiety remains down”, and that she “has not

3

had [an anxiety attack] for the last few months” (Exhibit 9-F:

4

4, 5, 6).

5 6

(A.R. 21.)

7 8

In fact, in his August 7, 2002 Mental Disorder Questionnaire Form,

9

Dr. Natividad diagnosed Plaintiff with “bi-polar disorder, manic” and

10

“panic attacks with agoraphobia,” and noted that Plaintiff’s condition

11

“is

12

improvement can be expected.”

13

Plaintiff:

14

[which] does not appear to be severely impaired, [but] perhaps somewhat”

15

based on a memory exam; has “[impaired] practical judgment”; “[i]s able

16

to follow written [and] oral instructions after going over them a few

17

times”; has “[poor] attention [and] focus [due to] possible brain damage

18

from

19

“[d]eadlines [and] stress at work.”

probably

past

as

stable

as

it

is

going

(A.R. 124.)

to

get”

and

“no

further

In addition, he noted that

“appears to be stable on medication”; has “concentration

alcohol

abuse”;

and

has

panic

attacks

triggered

by

(A.R. 121-23.)

20 21

The record shows that Plaintiff had a long history of significant

22

mental health problems.4

23

Initial Assessment from Los Angeles County Department of Mental Health,

24

Alna Baray, M.H.C./R.N. diagnosed Plaintiff with bipolar disorder,

25

manic;

noted

symptoms

For instance, in an October 6, 2000 Adult

such

as

“moderate[ly]

impaired”

insight,

26 4

27 28

Plaintiff testified at the March 30, 2004 hearing that she stopped drinking in April 2000, and although she has experienced fewer panic attacks since that time, she did continue to experience panic attacks and manic bouts of depression and hyperactivity. (A.R. 233-35.) 7

Case 2:04-cv-10592-MAN Document 18 Filed 07/27/06 Page 8 of 16 Page ID #:48

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“fragmented”

concentration,

“[l]abile”

and

“[w]orried”

affect,

2

“[i]rritable” and “[d]ysphoric” mood, “paranoid” delusions, “suspicious”

3

ideations, “[e]xcessive worry,” and “[t]hreatening” homicidal/suicidal

4

ideation, according to her history; and assessed her with a Global

5

Assessment of Functioning (“GAF”) of 30.5

(A.R. 154-57.)

6 7

In determining Plaintiff’s mental residual functional capacity, the

8

ALJ

9

physician.

10

relied

upon

the

findings

of

Dr.

Mark

Salib,

a

state

agency

The ALJ described Dr. Salib’s evaluation of Plaintiff as

follows:

11 12

On August 30, 2002, [Plaintiff] was evaluated by a DDS medical

13

evaluator, who opined that [Plaintiff] has mild restrictions

14

of

15

maintaining

16

maintaining

17

repeated episodes of extended-duration decompensation (Exhibit

18

4-F: 11).

19

the capacity to perform simple work (Exhibit 4-F: 17).

20

September 30, 2003 evaluation by a DDS medical evaluator

21

resulted in the same recommendation (Exhibit 8-F).

22

and adopt this mental residual functional capacity assessment.

activities

of

social

daily

living;

functioning;

concentration,

mild mild

persistence,

difficulties

in

difficulties

in

or

pace;

and

no

The DDS doctor concluded that [Plaintiff] retained A

I accept

23 24

(A.R. 21.)

In his findings, the ALJ stated that Plaintiff had the

25 26 27 28

5

A GAF of 21-30 shows behavior that is considerably influenced by delusions or hallucinations, serious impairment in communications or judgment, or a general inability to function in almost all areas. American Psychiatric Assoc. Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed. 1994) (“DSM-IV”). 8

Case 2:04-cv-10592-MAN Document 18 Filed 07/27/06 Page 9 of 16 Page ID #:49

1

mental residual functional capacity to perform “simple work.”

2

23.)

(A.R.

3 4

In his September 30, 2003 Mental Residual Functional Capacity

5

Assessment, Dr. Salib found that Plaintiff was “not significantly

6

limited” in all areas of mental functioning, but concluded she was

7

“moderately

8

instructions; ability to carry out detailed instructions; and ability to

9

interact appropriately with the general public.

limited”

in

her:

ability

to

understand

and

remember

(A.R. 192-93.)

Dr.

10

Salib further noted that:

11

remembering, and completing simple tasks”; “[Plaintiff] is capable of

12

focused attention and sustained concentration for 8 hours a day on a

13

regular basis”; and “[Plaintiff] is capable of appropriate interaction

14

and relationships with others.”

15

case summary, Dr. Salib noted that he reviewed May 15, 2003 progress

16

notes from Long Beach Mental Health, indicating that Plaintiff was

17

“doing better” with “no panic attacks for a while” but had “limited

18

insight and judgment,” as well as Dr. Natividad’s August 7, 2002 report.

19

(A.R. 196-97.)

“[Plaintiff] is capable of understanding,

(A.R. 194.)

In a September 30, 2003

20 21

Plaintiff’s contention is well-taken that Dr. Salib, upon whom the

22

ALJ relied in determining Plaintiff’s residual functional capacity, did

23

not have the entirety of Plaintiff’s treating records available to him.

24

See

25

consultative] examination or test, . . . [w]e will also give the

26

examiner any necessary background information about your condition.”).

27

In the September 30, 2003 Case Summary that Dr. Salib completed, he

28

specified that he reviewed progress notes dated August 7, 2002 and May

20

C.F.R.

§§

404.1517,

416.917

9

(“[i]f

we

arrange

for

[a

Case 2:04-cv-10592-MAN Document 18 Filed 07/27/06 Page 10 of 16 Page ID #:50

1

15, 2003; these records are only a small portion of Plaintiff’s treating

2

records.

(A.R. 196-97.)

3 4

Further, the record contains treating mental health professionals’

5

notes that post-date Dr. Salib’s September 30, 2003 assessment and pre-

6

date the ALJ’s May 17, 2004 decision.

7

some of these records show that Plaintiff’s compliance with medication

8

was good and reflect improvement in her condition, they nonetheless show

9

that Plaintiff continued to have panic attacks and other symptoms, such

10

as memory problems, which could affect Plaintiff’s ability to function

11

in the work-place.

12

log noting that Plaintiff’s anxiety had decreased but her panic attacks

13

persisted and her response to medication was “minimal”; A.R. 226 –-

14

April 26, 2004 progress notes showing Plaintiff’s anxiety had decreased

15

but her memory is still giving out); see also 20 C.F.R. Pt. 200, App. 2,

16

Section 12.00(B) (“The existence of a medically determinable [mental]

17

impairment of the required duration must be established by medical

18

evidence consisting of clinical signs, symptoms and/or laboratory or

19

psychological test findings.

20

persistent depending on the nature of the disorder.”)

(See A.R. 200-02, 226-27.)

While

(See, e.g., A.R. 202 –- November 19, 2003 medication

These findings may be intermittent or

21 22

The

ALJ’s

characterization

of

such

additional

records

--

as

23

reflecting

24

dismissal of the limitations noted therein ( i.e., the continuation of

25

panic attacks and other symptoms) is improper.

26

see also Reddick, 157 F.3d at 725.

27

all,

28

determination had he reviewed them, they directly bear upon Plaintiff’s

these

only

“great

additional

improvement”

records

–-

not

accurate,

and

his

Lester, 81 F.3d at 830;

While it is not clear how, if at

would

10

is

have

affected

Dr.

Salib’s

Case 2:04-cv-10592-MAN Document 18 Filed 07/27/06 Page 11 of 16 Page ID #:51

1

mental residual functional capacity and, therefore, this Court cannot

2

confirm

3

residual

4

conclusions founded upon his review of an incomplete record -- is

5

supported by substantial evidence.6

that

the

ALJ’s

functional

determination

capacity

–-

regarding

based

as

it

Plaintiff’s is

on

Dr.

mental Salib’s

6 7

The ALJ had discretion to decline to reopen the prior determination

8

regarding Plaintiff’s disability.7

9

minimize the significance of medical records preceding the date of

10

Plaintiff’s present claim and base his residual functional capacity

11

finding on a medical opinion resting on a review of incomplete records.

However, the ALJ could not properly

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

6

Furthermore, as set forth in Section B, infra, the ALJ’s failed to properly incorporate the limitations set forth by Dr. Salib in his residual functional capacity assessment. 7

Plaintiff’s contention that the ALJ applied the wrong standard in declining to reopen Plaintiff’s prior claim is rejected, as the Court lacks jurisdiction to review the ALJ’s decision not to reopen Plaintiff’s prior claim. Krumpelman v. Heckler, 767 F.2d 586 (9th Cir. 1985)(“‘[T]he Secretary’s decision not to re-open a previously adjudicated claim for social security benefits’ is purely discretionary and is therefore not considered a “final” decision within the meaning of § 405(g). . . . District courts, therefore, have no jurisdiction to review a refusal to re-open such a claim or a determination that such a claim is res judicata.”)(citation omitted; emphasis added); see also Califano v. Sanders , 430 U.S. 99, 107-08, 97 S. Ct. 980, 985 (1977)(Social security Act does not authorize judicial review of alleged abuses of agency discretion in refusing to reopen claims for social security benefits). Additionally, the ALJ did not specify the beginning date of the claimed period of disability. However, regardless of Plaintiff’s onset of disability, Plaintiff cannot receive disability payments until a month after June 24, 2003, her application date. 20 C.F.R. § 416.335 (“When you file an application in the month that you meet all the other requirements for eligibility, the earliest month for which we can pay you benefits is the month following the month you filed the application. If you file an application after the month you first meet all the other requirements for eligibility, we cannot pay you for the month in which your application is filed or any months before that month.”). Nevertheless, the ALJ should specify a finding regarding Plaintiff’s onset date in his decision on remand. 11

Case 2:04-cv-10592-MAN Document 18 Filed 07/27/06 Page 12 of 16 Page ID #:52

1

Medical

2

particularly relevant where the alleged impairment is unimproved and

3

progressive in nature.

4

1983

5

impairment in 1985); see also Blankenship v. Bowen, 874 F.2d 1116, 1121

6

(6th Cir. 1989)(pre-onset diagnoses of mental disease considered because

7

claimant’s condition was progressive in nature).

8

records indicate significant mental impairment –- including a GAF of 30

9

and symptoms such as “moderate[ly] impaired” insight, “fragmented”

and

evidence

1984

from

used

outside

the

period

of

disability

may

be

See Magallanes, 881 F.2d at 752 (reports from

to

assess

“paranoid”

onset

of

delusions,

claimant’s

disabling

back

Here, the prior

10

concentration,

“suspicious”

ideations,

and

11

“[e]xcessive worry” (A.R. 120-24) -- which are at odds with Dr. Salib’s

12

finding that Plaintiff would be capable of “completing simple tasks.”8

13 14

Although the ultimate conclusion regarding Plaintiff’s disability

15

may

not

16

Plaintiff’s

17

evidence. See 20 C.F.R. §§ 404.1545(a), 416.945(a) (residual functional

18

capacity is an assessment based upon all of the relevant evidence); see

19

also

20

requiring a consultative examination, such as a conflict, inconsistency,

21

ambiguity or insufficiency in the evidence).

22

above, the ALJ’s finding as to Plaintiff’s residual functional capacity

23

is not clearly based on substantial evidence constitutes reversible

24

error.

20

change,

the

residual

C.F.R.

§§

ALJ

must

functional

ensure

that

capacity

404.1512a(b),

his

is

416.919a(b)

conclusion

based

on

(listing

as

to

substantial

situations

For the reasons set forth

25 8

26 27 28

Although Baray is not an “acceptable medical source” pursuant to 20 C.F.R. § 416.913(a), her notes and observations are consistent with Plaintiff’s other treating records and are not, therefore, “irrelevant,” as Defendant suggests. As such, they highlight the need for the ALJ to reconsider and correct the errors in his mental residual functional capacity finding. 12

Case 2:04-cv-10592-MAN Document 18 Filed 07/27/06 Page 13 of 16 Page ID #:53

1

B.

2

The ALJ Should Elicit Additional Testimony From A Vocational Expert On Remand.

3 An ALJ must seek the testimony of a vocational expert if the

4 5

claimant has non-exertional limitations.

6

(because the claimant had non-exertional limitations, it was error not

7

to seek the testimony of a vocational expert).

8

expert’s

9

limitations, then it has no evidentiary value.

testimony

418,

422-24

is

not

(9th

based

Cir.

on

1987)(in

a

See Reddick, 157 F.3d at 729

If the vocational

claimant’s

complete

set

of

See Embrey v. Bowen, 849

10

F.2d

posing

a

hypothetical

to

a

11

vocational expert, the ALJ must fully and accurately reflect all of the

12

claimant’s limitations).

13 14

Plaintiff’s argument is well-taken that the ALJ’s mental residual

15

functional capacity finding that Plaintiff is limited to “simple work”

16

(A.R.

17

hypothetical question to the vocational expert (A.R. 237) are improper,

18

in that they purport to be based upon Dr. Salib’s September 30, 2003

19

Mental

20

inconsistent with it.

21

1996)(ALJ properly considered treating doctors’ opinions which were

22

consistent with and subsumed within the ALJ’s determination that the

23

claimant was capable of performing a “wide range of light work”).

24

noted above, that assessment notes “moderate” impairments in Plaintiff’s

25

ability to understand and remember instructions, ability to carry out

26

detailed instructions, and ability to interact appropriately with the

23)

and

Residual

the

sole

Functional

restriction

Capacity

of

“unskilled”

Assessment

but,

work

in

in

fact,

his

are

Cf. Macri v. Chater, 93 F.3d 540, 544 (9th Cir.

27 28 13

As

Case 2:04-cv-10592-MAN Document 18 Filed 07/27/06 Page 14 of 16 Page ID #:54

1

general public.9

2

only required to include in his hypothetical question the limitations

3

that Dr. Salib noted on the last page of his assessment is incorrect and

4

at odds with the instructions of the form.

5

directs the physician completing it to “[r]ecord in this section the

6

elaborations on the preceding capacities.”

(A.R. 192-93.)

Defendant’s argument that the ALJ was

Specifically, this form

(A.R. 194; emphasis added.)

7 8 9

Similarly, Plaintiff contends that the ALJ’s hypothetical to the vocational

expert

was

flawed,

because

the

ALJ

did

not

accurately

10

encompass the limitations noted in the October 2003 Physical Residual

11

Functional Capacity Assessment completed by Dr. F. Wilson, a state

12

agency physician.

13

30 pounds occasionally and 20 pounds frequently; could sit, stand,

14

and/or walk six hours in an eight-hour workday; could climb, balance,

15

stoop,

16

concentrated

17

Although the ALJ stated in his opinion that he was adopting Dr. Wilson’s

18

findings regarding Plaintiff’s physical limitations, the ALJ only asked

19

the vocational expert a hypothetical question as to what jobs within the

20

national economy Plaintiff could perform if Plaintiff were limited to

21

“light” work.10

kneel,

Dr. Wilson found that Plaintiff could lift and carry

crouch,

exposure

and to

crawl

extreme

occasionally; heat

and

cold.

and

should (A.R.

avoid

171-74.)

(A.R. 237.)

22 23 24 25 26

9

Defendant is incorrect in asserting that Dr. Salib noted in a Psychiatric Review Technique Form that Plaintiff’s mental impairment was not “severe” at Step Two. ( See A.R. 178-91.) In any event, the ALJ stated that he was relying upon Dr. Salib’s September 30, 2003 Mental Residual Functional Capacity Assessment, not his Psychiatric Review Technique Form. (A.R. 21.) 10

27 28

Defendant contends that the hypothetical question was proper, because “light” work does not require more than occasional climbing, balancing, stooping, kneeling, crouching, and crawling pursuant to Social Security Ruling 83-14, and that concentrated exposure to extreme 14

Case 2:04-cv-10592-MAN Document 18 Filed 07/27/06 Page 15 of 16 Page ID #:55

1

On remand, to the extent that the ALJ wishes to rely upon residual

2

functional capacity assessments completed by state agency physicians,

3

the ALJ must, at a minimum, ensure that his ultimate residual functional

4

capacity finding is consistent with the findings of those physicians.

5

However, the Court will not further address the issues raised by

6

Plaintiff regarding the propriety of the vocational expert’s testimony

7

at

8

functional

9

additional testimony from a vocational expert will be required.

this

juncture, capacity

as

the

must

finding be

regarding

reassessed,

as

Plaintiff’s discussed

residual

above,

and

10 11

C.

Remand Is Required.

12 13

Where, as in this case, the record needs to be developed and there

14

are errors in the ALJ’s findings, remand is appropriate to allow the ALJ

15 16 17 18 19 20 21 22 23 24 25 26 27 28

could and heat is not required for most jobs pursuant to Social Security Ruling 85-15. (Joint Stip. at 14.) Although Rule 83-14 states that: “to perform substantially all of the exertional requirements of most sedentary and light jobs, a person would not need to crouch and would need to stoop only occasionally (from very little up to one-third of the time, depending on the particular job),” it does not state that such non-exertional restrictions need not be provided to a vocational expert in order to determine what jobs a claimant with those limitations can perform. Similarly, although Rule 85-15 states that “[w]here a person has a medical restriction to avoid excessive amounts of noise, dust, etc., the impact on the broad world of work would be minimal because most job environments do not involve great noise, amounts of dust, etc.,” it does not state that the environmental non-exertional restriction of being precluded from exposure to extreme heat or cold need not be provided to a vocational expert in order to determine what jobs a claimant with those limitations can perform. Thus, if, on remand, the ALJ finds that Plaintiff has these non-exertional limitations, he must specifically provide them in his hypothetical question to the vocational expert. See Desrosiers, 846 F.2d at 577 (“A non-exertional impairment, if sufficiently severe, may limit the claimant’s functional capacity in ways not contemplated by the guidelines. In such a case, the guidelines would be inapplicable.”). 15

Case 2:04-cv-10592-MAN Document 18 Filed 07/27/06 Page 16 of 16 Page ID #:56

1

the

opportunity

to

remedy

those

inadequacies

and

errors.

See

2

McAllister, 888 F.2d at 603 (remand appropriate to remedy defects in the

3

record); see also Diaz v. Secretary of Health, Ed. and Welfare, 613 F.2d

4

1194, 1200 (9th Cir. 1980).

5 6

CONCLUSION

7 8 9

Accordingly, for the reasons stated above, the denial of benefits is

REVERSED,

and

this

case

is

REMANDED

for

further

proceedings

10

consistent with this Memorandum Opinion and Order.

Judgment shall be

11

entered reversing the decision of the Commissioner, and remanding the

12

matter for further administrative action consistent with this Memorandum

13

Opinion and Order.

14 15

IT IS FURTHER ORDERED that the Clerk of the Court shall serve

16

copies of this Memorandum Opinion and Order and the Judgment on counsel

17

for Plaintiff and for Defendant.

18 19

LET JUDGMENT BE ENTERED ACCORDINGLY.

20 21 22 23

DATED: July 27, 2006 /s/ MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE

24 25 26 27 28 16

English