Rochelle Ross v. Michael J Astrue, No. 2:2007cv06193 - Document 23 (C.D. Cal. 2008)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle: IT IS ORDERED that: 1. The decision of the Commissioner is REVERSED. 2. This action is REMANDED to defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above. 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. (See document for further details.) (pcl)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 13 14 15 16 17 ROCHELLE D. ROSS, ) ) Plaintiff, ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner, Social Security ) Administration, ) ) Defendant. ) ) No. CV 07-6193 CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned Magistrate Judge. 21 review of the Commissioner s denial of disability benefits. 22 discussed below, the court finds that the Commissioner s decision 23 should be reversed and this matter remanded for further proceedings. 24 25 I. Plaintiff seeks As BACKGROUND Plaintiff Rochelle Ross was born on June 20, 1952, and was fifty- 26 four years old at the time of her administrative hearing. 27 [Administrative Record ( AR ) 271.] 28 and past relevant work experience as a janitorial cleaner, hostess, 1 She has a ninth grade education 1 office worker, private home care provider, retail stocker and data 2 entry clerk. [AR 26, 271.] 3 of chronic low back pain, back spasms, radicular pain, low 4 intellectual functioning, and difficulty ambulating. [AR 30.] 5 6 II. Plaintiff alleges disability on the basis PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on September 25, 2007, and filed 7 on September 28, 2007. 8 and plaintiff s Administrative Record ( AR ). 9 parties filed their Joint Stipulation ( JS ) identifying matters not 10 in dispute, issues in dispute, the positions of the parties, and the 11 relief sought by each party. 12 submission without oral argument. 13 14 III. On April 3, 2008, defendant filed an answer On October 2, 2008, the This matter has been taken under PRIOR ADMINISTRATIVE PROCEEDINGS Plaintiff applied for disability insurance benefits ( DIB ) under 15 Title II of the Social Security Act on April 13, 2004, alleging 16 disability since December 10, 2003. 17 application was denied initially, plaintiff requested an 18 administrative hearing, which was held on August 16, 2006, before 19 Administrative Law Judge ( ALJ ) Melvin Benitz. 20 Plaintiff appeared with counsel, and testimony was taken from 21 plaintiff and vocational expert Adina Leviton. 22 denied benefits in a decision dated September 5, 2006. [AR 18-28.] 23 When the Appeals Council denied review on July 6, 2007, the ALJ s 24 decision became the Commissioner s final decision. [AR 8-10.] 25 26 IV. [AR 18, JS 1.] After the [AR 18, 468; JS 1.] [AR 467.] The ALJ STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 27 Commissioner s decision to deny benefits. 28 ALJ s) findings and decision should be upheld if they are free of 2 The Commissioner s (or 1 legal error and supported by substantial evidence. 2 court determines that a finding is based on legal error or is not 3 supported by substantial evidence in the record, the court may reject 4 the finding and set aside the decision to deny benefits. 5 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 6 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 7 F.3d 1157, 1162 (9th Cir. 8 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 9 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 10 11 However, if the See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). Substantial evidence is more than a scintilla, but less than a 12 preponderance. Reddick, 157 F.3d at 720. 13 which a reasonable person might accept as adequate to support a 14 conclusion. 15 a finding, a court must review the administrative record as a whole, 16 weighing both the evidence that supports and the evidence that 17 detracts from the Commissioner s conclusion. 18 can reasonably support either affirming or reversing, the reviewing 19 court may not substitute its judgment for that of the Commissioner. 20 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. It is relevant evidence To determine whether substantial evidence supports V. 21 Id. If the evidence DISCUSSION 22 A. THE FIVE-STEP EVALUATION 23 To be eligible for disability benefits a claimant must 24 demonstrate a medically determinable impairment which prevents the 25 claimant from engaging in substantial gainful activity and which is 26 expected to result in death or to last for a continuous period of at 27 least twelve months. 28 721; 42 U.S.C. § 423(d)(1)(A). Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 3 1 Disability claims are evaluated using a five-step test: 2 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 3 4 5 6 7 8 9 10 11 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 12 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 13 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 14 C.F.R. § 404.1520, § 416.920. If a claimant is found disabled or 15 not disabled at any step, there is no need to complete further 16 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 17 Claimants have the burden of proof at steps one through four, 18 subject to the presumption that Social Security hearings are non19 adversarial, and to the Commissioner s affirmative duty to assist 20 claimants in fully developing the record even if they are represented 21 by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 22 1288. If this burden is met, a prima facie case of disability is 23 made, and the burden shifts to the Commissioner (at step five) to 24 prove that, considering residual functional capacity ( RFC )1, age, 25 26 1 27 28 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to 4 1 education, and work experience, a claimant can perform other work 2 which is available in significant numbers. 3 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098, 4 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 5 Here, the ALJ found that plaintiff had not engaged in substantial 6 gainful activity since the alleged disability onset date (step one); 7 that plaintiff had severe impairments, namely degenerative disc 8 disease and depression (step two); and that plaintiff did not have an 9 impairment or combination of impairments that met or equaled a 10 listing (step three). [AR 20, 22.] The ALJ found that plaintiff 11 had an RFC for a significant range of light work, including a 12 limitation to simple, routine, unskilled, low stress work that has a 13 sit-stand option every thirty minutes and requires only low 14 concentration and memory and that allows her to avoid prolonged 15 climbing, balancing and stooping, as well as overhead reaching; 16 plaintiff must also avoid temperature and humidity extremes, heights 17 and hazardous machinery. [AR 23.] 18 perform any of her past relevant work (step four). [AR 26.] 19 found that plaintiff could make a successful adjustment to other jobs 20 in the national economy, such as sealer for semiconductor dyes or 21 manufacturing inspector (step five). [AR 27.] 22 was found not disabled as defined by the Social Security Act. [AR 23 28.] Plaintiff was found unable to The ALJ Accordingly, plaintiff 24 25 26 27 28 work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 C. 2 The parties Joint Stipulation identifies three disputed issues: 3 1. 4 5 ISSUES IN DISPUTE Whether the ALJ provided clear and convincing evidence to discredit plaintiff; 2. Whether the ALJ s finding that plaintiff did not meet or 6 equal a listed impairment is supported by substantial 7 evidence; and 8 3. 9 Whether the ALJ s vocational findings are supported by substantial evidence. 10 [JS 9.] 11 D. 12 In a questionnaire completed in May 2004, plaintiff wrote that ISSUE ONE: CREDIBILITY 13 she completes her personal hygiene and dressing with difficulty; she 14 fixes simple meals; she takes public transportation and no longer 15 drives; she shops with her daughter or by herself; she watches 16 television; she attends church and therapy; and that she is much more 17 limited in her activities than prior to the onset of her claimed 18 disability. [AR 87-97.] 19 hearing, plaintiff testified that she stopped working in December 2003 20 when she fell down some stairs and hurt her back and legs. [AR 476.] 21 She further testified that she continued to feel pain but that it made 22 walking difficult; medication only partially controls the pain; she 23 can only sit for fifteen to twenty minutes at a time; she no longer 24 drives; she has back spasms; an average day consists of watching 25 television and reading; she occasionally visits her daughter; she 26 attends church; she can wash her own dishes; and that she has tried to 27 take up a hobby such as crochet. [AR 476-82.] 28 Subsequently, during the administrative In the administrative decision, the ALJ did not credit 6 1 plaintiff s testimony, citing medical findings that were indicative 2 that the claimant s complaints are not fully substantiated by the 3 objective medical conclusions and her symptoms may not have been as 4 limiting as the claimant has alleged with this application. 2 [AR 24.] 5 The ALJ also noted that a review of her work history shows that she 6 worked only sporadically prior to the alleged disability onset date, 7 often not working for years at a time prior to her accident in 2003 8 and that this raises a question as to whether the claimant s 9 continuing unemployment is actually due to medical impairments. [Id.] 10 Additionally, the ALJ found that plaintiff had daily activities which 11 are not limited to the extent one would expect, given the complaints 12 of disabling symptoms and limitations and that the activities were 13 not inconsistent with the performance of many basic work activities. 14 [Id.] 15 supported by substantial evidence.3 [JS 9-14.] Plaintiff argues that the ALJ s credibility finding is not 16 17 18 19 20 21 22 23 24 25 2 Specifically, the ALJ cited the following evidence to find plaintiff s testimony not fully supported by the medical record: a physical therapy report that showed improvement with decreased pain frequency [AR 130]; a report dated April 2004 by Dr. Ushma Patel that plaintiff had 5/5 strength in her left lower extremity [AR 139-40]; a report dated May 2004 by Dr. Sandra Boehlert that found, among other things, that plaintiff had a normal gait, could fully squat, used no assistive device, had full range of motion in her upper extremities, hips, ankles and cervical spine, and had 5/5 strength in all of her extremities [AR 158-61]; an intellectual evaluation dated June 2003 by Dr. Melvin Zax that plaintiff s concentration, attention and memory were intact but that there was not a great deal of motivation on her part to work [AR 162-65]; a report dated September 2004 by Dr. Clifford Ameduri that plaintiff had 5/5 strength in all her extremities, her gait was nonantalgic, and she was oriented in all spheres [AR 214-15]; and a report dated December 2005 by Dr. Thomas McElligott that plaintiff had no paravertebral spasm and straight leg raising was negative [AR 383-84]. 26 3 27 28 Plaintiff further argues a finding of disability is warranted because the VE testified that if plaintiff s testimony were credited as true, there would be no work in the national economy that plaintiff could do. [AR 489.] However, the record shows the VE did not respond 7 1 In general, questions of credibility and resolution of conflicts 2 in the testimony are functions solely for the ALJ. Parra v. Astrue, 3 481 F.3d 742, 750 (9th Cir. 2007) (citing Sample v. Schweiker, 694 4 F.2d 639, 642 (9th Cir. 1982)). 5 subjective symptom testimony is credible, the ALJ must engage in a 6 two-step analysis. 7 Cir. 2007). 8 presented objective medical evidence of an underlying impairment 9 which could reasonably be expected to produce the pain or other To determine whether a claimant s Lingenfelter v. Astrue, 504 F.3d 1038, 1036 (9th First, the ALJ must determine whether the claimant has 10 symptoms alleged. Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 11 344 (9th Cir. 1991)). 12 and there is no evidence of malingering, the ALJ can reject the 13 claimant s testimony about the severity of her symptoms only by 14 offering specific, clear and convincing reasons for doing so. 15 Lingenfelter, 504 F.3d at 1036 (quoting Smolen v. Chater, 80 F.3d 16 1273, 1281 (9th Cir. 1996)); see also Parra, 481 F.3d at 750; Holohan 17 v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). 18 specifically identify the testimony found not credible, the ALJ must 19 explain what evidence undermines the testimony, and the evidence on 20 which the ALJ relies must be substantial. Second, if the claimant meets this first test, An ALJ must Parra, 481 F.3d at 750; 21 22 23 24 25 26 27 28 to a hypothetical question setting out the limitations found in plaintiff s testimony, but instead, on limitations found in the opinion of Dr. McElligott. [Compare AR 352-58 and AR 489.] As for that opinion, the ALJ declined to give it significant weight because it was written on a fill-in-the-blank form without an accompanying explanation; it conflicted with other substantial evidence of record cited in the decision; it appeared that Dr. McElligott did not adequately consider the entire record, including the statements of collateral sources and the objective findings of other treating physicians; and the objective evidence in the record did not support the level of severity that Dr. McElligott assigned. [AR 24-25.] Upon review of the record, the ALJ provided specific and legitimate reasons supported by substantial evidence in the record not to give the opinion significant weight. See Lester, 81 F.3d at 830. 8 1 Tonapetyan, 242 F.3d at 1148 ( The ALJ must give specific, convincing 2 reasons for rejecting the claimant s subjective statements. ); Light 3 v. Social Security Admin., 119 F.3d 789, 792 (9th Cir. 1997). 4 Based on this standard, clear and convincing reasons were 5 provided to support the credibility finding in this case. First, the 6 ALJ found that the objective medical evidence did not corroborate the 7 severity of plaintiff s subjective symptom complaints. 8 Sullivan, 947 F.2d 341, 347 (9th Cir. 1991)(en banc) (although ALJ may 9 not reject a claimant s subjective complaints based solely on a lack See Bunnell v. 10 corroborating medical evidence, the ALJ is not prohibited from 11 considering the presence or absence of objective evidence 12 corroborating the alleged severity of a claimant s subjective 13 complaints). 14 of credibility evaluation to test plaintiff s credibility. 15 v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); Thomas v. Barnhart, 278 16 F.3d 947, 959 (9th Cir. 2002)(upholding adverse credibility finding 17 because, among other things, plaintiff s work history was spotty at 18 best ). 19 they were not incompatible with the performance of basic work duties. 20 See Thomas, 278 F.3d at 953, 959 (holding that the ALJ did not err in 21 finding that the claimant's ability to live alone and perform chores 22 such as cooking, laundry, washing dishes, and shopping undermined the 23 credibility of her subjective complaints). 24 does not warrant reversal. Second, the ALJ permissibly applied ordinary techniques See Fair Third, the ALJ discussed plaintiff s daily activities and how Accordingly, this issue 25 E. ISSUE TWO: LISTING 12.05(C) 26 In June 2004, during an Intellectual Evaluation performed by Dr. 27 Zax, plaintiff took the Wechsler Adult Intelligence Scale test (Third 28 Edition)( WAIS-III ) and received a full scale IQ score of 61, a 9 1 verbal IQ score of 61, and a performance IQ score of 68. [AR 162-65.] 2 Plaintiff argues that these scores, combined with her physical 3 impairments, establish that she meets or equals the requirements of 4 Listing 12.05, which provides that 5 6 7 Mental retardation refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22. The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied. 8 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.05. 9 Specifically, plaintiff contends that she meets or equals the 10 requirements of 12.05(C), which requires a valid verbal, performance 11 or full scale IQ of 60 through 70 and a physical or other mental 12 impairment imposing an additional and significant work-related 13 limitation of function. Id. at § 12.05(C). [JS 21-24.] 14 However, assuming without deciding that the requirements of 15 subsection (C) have been met, the record does not establish an onset 16 of the impairment before plaintiff turned twenty-two.4 Accordingly, 17 the current record does not establish that plaintiff is disabled under 18 Listing 12.05(C). 19 F. ISSUE THREE: VOCATIONAL FINDINGS 20 As stated above, the ALJ found that plaintiff had an RFC for a 21 significant range of light work with several other limitations, 22 including, in pertinent part, that plaintiff be limited to low stress 23 work. [AR 23.] During the administrative hearing, however, the ALJ 24 omitted this limitation in the hypothetical question asked to the VE 25 about plaintiff s ability to perform work in the national economy. 26 27 28 4 Plaintiff points out that she dropped out of high school in the ninth grade [JS 26], but this evidence is too speculative to establish an onset date before the age of twenty-two. 10 1 The VE testified that a person with the limitations described by the 2 ALJ could perform work as an inspector for manufacturing and possibly 3 another job that was marked inaudible on the transcript. [AR 488.] 4 In the administrative decision, the ALJ found, at step five, that 5 plaintiff could perform the jobs of sealer for semiconductor dyes or 6 manufacturing inspector and, therefore, was not disabled. [AR 27.] 7 Plaintiff argues that this finding was erroneous because: 1. 8 The ALJ omitted plaintiff s limitation to low stress work in the 9 hypothetical question, and there is evidence that manufacturing jobs 10 sometimes require work at a fast pace, which is more than low stress 11 work; 12 sealer of semiconductor dyes was not supported anywhere in the 13 transcript of the VE s testimony, which was marked as partially 14 inaudible; and 3. 15 the Dictionary of Occupational Titles ( DOT ), but both manufacturing 16 and inspector jobs involve more than low stress work. 17 Defendant agrees that the step five finding was reversible error and 18 argues that remand is necessary so that the ALJ can incorporate all of 19 the limitations from plaintiff s RFC into hypothetical questions posed 20 to the VE. [JS 31.] 2. The ALJ s finding that plaintiff could perform the job as The job of manufacturing inspector is not listed in [JS 27-30.] 21 Upon review of the record, it is apparent that the hypothetical 22 questions in this case did not set out all of claimant s impairments 23 for the VE s consideration. 24 (9th Cir. 1999)( The ALJ s depiction of the claimant s disability 25 [when asking hypothetical questions] must be accurate, detailed, and 26 supported by the medical record. ); Embrey v. Bowen, 849 F.2d 418, 422 27 (9th Cir. 1988)( Hypothetical questions posed to the vocational expert 28 must set out all the limitations and restrictions of the particular See Tackett v. Apfel, 180 F.3d 1094, 1101 11 1 claimant. . . )(emphasis in original). Under these circumstances, the 2 opinion of the vocational expert has no evidentiary value. 3 id. 4 status is appropriate. Embrey, Accordingly, remand for reconsideration of plaintiff s disability 5 E. REMAND FOR FURTHER PROCEEDINGS 6 The decision whether to remand for further proceedings is within Harman v. Apfel, 211 F.3d 1172, 7 the discretion of the district court. 8 1175-1178 (9th Cir. 2000). 9 further proceedings, or where the record has been fully developed, it Where no useful purpose would be served by 10 is appropriate to exercise this discretion to direct an immediate 11 award of benefits. 12 remand for further proceedings turns upon their likely utility). 13 However, where there are outstanding issues that must be resolved 14 before a determination can be made, and it is not clear from the 15 record that the ALJ would be required to find the claimant disabled if 16 all the evidence were properly evaluated, remand is appropriate. 17 Here, as set out above, outstanding issues remain before a finding of 18 disability can be made. Harman, 211 F.3d at 1179 (decision whether to Accordingly, remand is appropriate. 19 20 21 22 23 24 25 26 27 28 12 Id. VI. 1 ORDERS 2 Accordingly, IT IS ORDERED that: 3 1. The decision of the Commissioner is REVERSED. 4 2. This action is REMANDED to defendant, pursuant to Sentence 5 Four of 42 U.S.C. § 405(g), for further proceedings as discussed 6 above. 7 8 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 9 10 11 12 DATED: October 23, 2008 _______________/S/_______________ CARLA M. WOEHRLE United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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