Angelanette Edwards v. Michael J. Astrue, No. 2:2010cv04093 - Document 17 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. The decision of the Social Security Commissioner is REVERSED and REMANDED for further proceedings consistent with this opinion. (ade)
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Angelanette Edwards v. Michael J. Astrue Doc. 17 1 “O” 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 WESTERN DIVISION 9 10 ANGELANETTE EDWARDS, 11 Plaintiff, 12 13 14 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 10-4093-MLG MEMORANDUM OPINION AND ORDER 17 18 Plaintiff Angelanette Edwards seeks judicial review of the 19 Social 20 Supplemental Security Income (“SSI”) benefits. For the reasons 21 stated below, the decision of the Commissioner is REVERSED and the 22 matter 23 opinion. Security REMANDED Commissioner’s for further denial of proceedings her application consistent with for this 24 25 I. Facts and Procedural Background 26 Plaintiff was born on February 5, 1962. She has an eleventh 27 grade education and has work experience as an in-home care giver. 28 (Administrative Record (“AR”) 18, 40, 98, 149.) Plaintiff filed an 1 Dockets.Justia.com 1 application for SSI benefits on June 14, 2006, alleging disability 2 as of December 30, 2003, due to diabetes mellitus, disorders of the 3 muscle, ligament and fascia, and depression. (AR 40, 93.) 4 Plaintiff’s application was denied initially and upon 5 reconsideration. (AR 42-46, 51-54.) An administrative hearing was 6 held June 16, 2008, before Administrative Law Judge (“ALJ”) James 7 D. 8 testified at the administrative hearing. (AR 21-39.) Goodman. Plaintiff, represented by attorney Bill LaTour, 9 ALJ Goodman issued an unfavorable decision on August 21, 2008. 10 (AR 9-18.) The ALJ found that Plaintiff suffered from the following 11 severe impairments: history of diabetes, right shoulder pain, 12 obesity, depressive disorder not otherwise specified, and cocaine 13 abuse in remission. (AR 12.) Plaintiff’s impairments were deemed 14 not to meet the requirements of a listed impairment found in 20 15 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) The ALJ further found 16 that Plaintiff retained the residual functional capacity (“RFC”) to 17 “perform medium work as defined in 20 C.F.R. 416.967(c) except that 18 she can frequently climb, balance, kneel, crouch, crawl and stoop, 19 and she can frequently do handling, grasping, and fingering as well 20 as above-the-shoulder lifting, pushing and pulling. In the mental 21 realm, the claimant can perform simple, routine, and repetitive 22 work.” (AR 14.) The ALJ also determined that Plaintiff was able to 23 perform her past relevant work as an in-home care giver. (AR 18.) 24 The ALJ concluded that Plaintiff was not disabled as defined in the 25 Social Security Act. (Id.) 26 The Appeals Council denied review on April 27, 2010. (AR 1-3.) 27 Plaintiff commenced this action on June 4, 2010, and on December 7, 28 2010, the parties filed a joint stipulation (“Joint Stip.”) of 2 1 disputed facts and issues. Plaintiff contends that the ALJ erred by 2 failing 3 physician M. Sohn, M.D., (2) psychiatric consultative examiner 4 Ernest A. Bagner III, M.D., and (3) State Agency physician P. M. 5 Balson, M.D.; and (4) that the ALJ erred in his Step Four finding 6 that Plaintiff could perform her past work as a care-giver. (Joint 7 Stip. 2-3.) Plaintiff asks the Court to reverse and order an award 8 of 9 proceedings. (Joint Stip. 14-15.) The Commissioner requests that 10 to fully benefits or, consider in the the opinions alternative, of to (1) State remand for Agency further the ALJ’s decision be affirmed. (Joint Stip. 15.) 11 After reviewing the parties’ respective contentions and the 12 record as a whole, the Court concludes that the ALJ erred in 13 finding, at Step Four of the sequential evaluation, that Plaintiff 14 could perform the job of Home Attendant, which requires a reasoning 15 Level 16 Accordingly, the matter shall be remanded for further proceedings 17 consistent with this opinion. 3, given her limitation to simple, repetitive tasks. 18 19 20 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 21 Commissioner’s 22 decision must be upheld unless “the ALJ’s findings are based on 23 legal error or are not supported by substantial evidence in the 24 record as a whole.” Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 25 1999); 26 Substantial evidence means more than a scintilla, but less than a 27 preponderance; it is evidence that a reasonable person might accept 28 as adequate to support a conclusion. Lingenfelter v. Astrue, 504 Parra decision v. Astrue, to deny 481 benefits. F.3d 3 742, 746 The Commissioner’s (9th Cir. 2007). 1 F.3d 1028, 1035 (9th Cir. 2007)(citing Robbins v. Soc. Sec. Admin., 2 466 3 substantial evidence supports a finding, the reviewing court “must 4 review the administrative record as a whole, weighing both the 5 evidence that supports and the evidence that detracts from the 6 Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 7 (9th Cir. 1996). “If the 8 or reversing the ALJ’s conclusion,” the court “may not substitute 9 its judgment for that of the ALJ.” Robbins, 466 F.3d at 882. F.3d 880, 882 (9th Cir. 2006)). evidence can To determine support either whether affirming 10 11 12 III. Discussion A. 13 The ALJ Properly Considered the Opinion of State Agency Physician Dr. Sohn 14 Plaintiff contends that the ALJ erred by failing to consider 15 a portion of the September 15, 2006, opinion of State Agency 16 physician M. 17 Plaintiff argues 18 inconsistency between Dr. Sohn’s opinion and the medical opinion of 19 the internal medicine consultative examiner, Dr. Concepcion A. 20 Enriquez. (Id.) 21 With Sohn, regard M.D. that to (Joint the ALJ Plaintiff’s Stip. 3.) failed to right More specifically, address shoulder, a Dr. supposed Enriquez 22 concluded that “[t]he patient can still do above-the-shoulder 23 lifting, pushing, and pulling.” (AR 180.) The ALJ stated that he 24 based his physical RFC finding primarily on the opinion of Dr. 25 Enriquez. (AR 14.) The ALJ found that Dr. Enriquez’s opinion “is 26 consistent with that of the State Agency physician who similarly 27 found the claimant is limited to a wide range of medium work. There 28 is no contrary opinion evidence.” (AR 14, 208-212.) Plaintiff 4 1 argues that, contrary to the ALJ’s contention, the opinion of the 2 State Agency reviewing physician, Dr. Sohn, differed from that of 3 Dr. Enriquez because Dr. Sohn limited Plaintiff’s work with her 4 right arm to occasional reaching above shoulder level and working 5 overhead with her hand. (Joint Stip. 3; AR 210.) 6 From a review of the opinions of the consultative and State 7 Agency physicians, it is apparent that they are substantially 8 similar and are not inconsistent. Both physicians concluded that 9 Plaintiff could lift 50 pounds occasionally and 25 pounds 10 frequently; could stand, sit or walk for six hours in an eight-hour 11 work day, and could frequently perform handling, grasping and 12 fingering functions. (AR 180, 209.) In fact, the reviewing State 13 Agency physician specifically noted that his conclusions regarding 14 Plaintiff’s limitations or restrictions were not significantly 15 different from those of the examining physician. (AR 212.) The only 16 difference between the two opinions is that Dr. Enriquez found that 17 Plaintiff “can still do above-the-shoulder lifting, pushing and 18 pulling,” 19 occasionally reach above shoulder level with her right hand and 20 frequently with her left. (AR 180, 210.) The ALJ’s conclusion that 21 the two opinions were consistent was reasonable. See Thomas v. 22 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (“Where the evidence is 23 susceptible to more than one rational interpretation, one of which 24 supports 25 upheld.”). Accordingly, the Court finds that this claim of error is 26 without merit. 27 // 28 // while the Dr. ALJ’s Sohn found decision, the 5 that Plaintiff ALJ’s could conclusion must only be 1 B. 2 3 The ALJ Properly Considered the Opinion of the Psychiatric Consultative Examiner Plaintiff contends that the ALJ erred in failing to properly 4 consider 5 consultative psychiatric examining physician, Dr. Ernest A. Bagner 6 III. (Joint Stip. 5.) More specifically, Plaintiff argues that the 7 ALJ failed to explain why he relied more heavily upon the State 8 Agency reviewing physicians’ reports than upon Dr. Bagner’s report, 9 and also that the ALJ erred in failing to incorporate Dr. Bagner’s 10 assessment of Plaintiff’s mental functioning in the RFC assessment. 11 In his report, Dr. Bagner concluded that “[t]he patient would 12 have mild limitations interacting with supervisors, peers and the 13 public, maintaining concentration and attention and completing 14 simple tasks. She would have mild to moderate limitations handling 15 normal stresses at work, completing complex tasks and completing a 16 normal workweek without interruption.” (AR 207.) The ALJ stated 17 that he based his mental RFC assessment “primarily on the opinion 18 of the State Agency psychiatrist, who found the claimant can 19 sustain 20 maintains sobriety.” (AR 14-15.) The ALJ found that these opinions 21 were “consistent for the most part with that of the consultative 22 examiner,” Dr. Bagner. (AR 15.) portions simple, of the routine, August and 30, repetitive 2007, report tasks, by assuming the she 23 Contrary to Plaintiff’s contention, the ALJ properly credited 24 Dr. Bagner’s opinion, to the extent that it was consistent with all 25 of the other medical evidence in the record. See Thomas, 278 F.3d 26 at 957 (“The opinions of non-treating or non-examining physicians 27 may also serve as substantial evidence when the opinions are 28 consistent with independent clinical findings or other evidence in 6 1 the record.”) Here, both State Agency physicians, Drs. Skopec and 2 Balson, concluded that Plaintiff’s mental impairments did not 3 significantly impair her functioning or prevent her from working. 4 (AR 223, 296.) The fact that Dr. Bagner concluded that Plaintiff 5 would have some mild to moderate limitations in performing work- 6 related tasks does not make his opinion inconsistent with those of 7 the State Agency physicians. The ALJ properly synthesized the 8 opinions of the State Agency reviewing physicians with that of Dr. 9 Bagner’s to determine Plaintiff’s mental RFC. 10 Further, the ALJ’s failure to mention a portion of Dr. 11 Bagner’s report is not fatal to his decision. The ALJ is not 12 required to address every detail of the consultative examining 13 physician’s report or every piece of evidence in the record in 14 reaching a disability determination. Howard ex. rel. Wolff v. 15 Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). 16 C. 17 The ALJ Properly Considered the Opinion of State Agency Physician Dr. Balson 18 Plaintiff next contends that the ALJ erred by implicitly 19 rejecting the April 16, 2007 opinion of State Agency physician P. 20 M. Balson, M.D. (Joint Stip. 9.) In his mental RFC assessment, Dr. 21 Balson 22 limitation in the ability to maintain a normal workday without 23 interruption; the ability to carry out detailed instructions; and 24 the ability to understand and remember detailed instructions. (AR 25 294-95.) Plaintiff contends that the ALJ erred by not specifically 26 citing Dr. Balson’s findings and also by failing to incorporate 27 these findings into the mental RFC assessment. (Joint Stip. 9.) 28 concluded that Plaintiff would have mild to moderate As discussed in detail above, the ALJ was not required to 7 1 discuss and adopt each and every finding in Dr. Balson’s report in 2 order to credit Dr. Balson’s opinion as substantial evidence when 3 assessing Plaintiff’s mental RFC. See Howard, 341 F.3d at 1012. 4 Both 5 impairment did not prevent her from performing most work-related 6 tasks. Dr. Skopec noted that Plaintiff’s psychiatric symptoms did 7 not significantly decrease her ability to function. (AR 223.) 8 Similarly, Dr. Balson concluded that Plaintiff could predictably 9 sustain State Agency simple physicians repetitive agreed tasks. (AR that 296.) Plaintiff’s The ALJ mental properly 10 credited Dr. Balson’s opinion in determining that Plaintiff was 11 capable of performing simple, routine and repetitive work. (AR 14- 12 16.) Therefore, Plaintiff’s argument is without merit. 13 D. The ALJ Erred at Step Four of the Sequential Evaluation 14 in Finding That Plaintiff Could Perform the Job of Home 15 Attendant 16 Plaintiff next argues that the ALJ erred at Step Four of the 17 sequential evaluation because he determined that Plaintiff could 18 perform her past relevant work as she actually performed it. (Joint 19 Stip. 11.) The ALJ determined that Plaintiff could perform a wide 20 range of medium work, which would require her to lift 25 pounds 21 frequently and 50 pounds occasionally. (AR 13-14.) In her work 22 history report, Plaintiff described the duties of her past relevant 23 work as “lifted things” from 8:00 a.m. to 5:00 p.m. and “did hair” 24 from 12:00 p.m. to 3:00 p.m. (AR 148.) She also checked the box 25 that indicated that she lifted 50 pounds or more frequently. (AR 26 149-151.) Plaintiff contends that her past relevant work as an in- 27 home care giver, as she actually performed it, required her to lift 28 50 pounds frequently, not merely occasionally. (Joint Stip. 11.) 8 1 Plaintiff “bears the initial burden of establishing disability 2 by showing that a physical or mental impairment prevents [her] from 3 engaging in any of [her] previous occupations.” Allen v. Secretary 4 of Health & Human Serv., 726 F.2d 1470, 1472 (9th Cir. 1984). 5 However, it is Plaintiff’s burden to prove that she cannot return 6 to her former type of work, not just to her former job. Villa v. 7 Heckler, 797 F.2d 794, 798 (9th Cir. 1986). A claimant is not 8 disabled if she can perform the duties of her past relevant work. 9 See 20 C.F.R. § 404.1520(f). 10 In assessing a claimant’s ability to perform past relevant 11 work, an ALJ may consider the physical and mental demands of the 12 job either as actually performed or as usually performed in the 13 general economy. S.S.R. 82-62, *3 (“The RFC to meet the physical 14 and mental demands of jobs a claimant has performed in the past 15 (either the specific job a claimant performed or the same kind of 16 work as it is customarily performed throughout the economy) is 17 generally a sufficient basis for a finding of ‘not disabled.’”). 18 The ALJ may rely on the Dictionary of Occupational Titles (“DOT”) 19 for establishing the mental and physical demands of a particular 20 job as usually performed in the general economy. S.S.R. 82-61, *2; 21 Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001)(“[T]he best 22 source for how a job is generally performed is usually the [DOT].”) 23 Once an ALJ determines that the claimant’s limitations do not 24 preclude the work as usually performed in the general economy, the 25 ALJ must find that the claimant is not disabled. S.S.R. 82-61, *2. 26 The ALJ need not conclude that the claimant can return to the prior 27 position as actually performed. Pinto, 249 F.3d at 845 (“We have 28 never required explicit findings 9 at step four regarding a 1 claimant’s past relevant work both as generally performed and as 2 actually performed.”)(emphasis in original). 3 Here, the ALJ found that Plaintiff’s past relevant work as an 4 in-home care giver most closely matched that of a Home Attendant 5 (DOT 354.377-014). (AR 18.) The occupation of Home Attendant is a 6 medium work job, which requires exerting 20 to 50 pounds of force 7 only occasionally, not frequently, as Plaintiff claims she actually 8 performed it. Because the ALJ was not required to determine whether 9 Plaintiff could perform the job as usually performed and as 10 Plaintiff actually performed it, he properly determined, at step 11 four of the sequential evaluation, that Plaintiff was able to 12 perform her past relevant work. 13 Plaintiff also argues that the ALJ erred in finding that she 14 could perform her past relevant work as generally performed in the 15 national economy because the job of Home Attendant (DOT 354.377- 16 014) requires a Reasoning Level 3, which is inconsistent with 17 Plaintiff’s RFC limitation to “simple, routine, and repetitive” 18 work. (Joint Stip. 12; AR 13-14.) Plaintiff contends that simple, 19 repetitive tasks refer to unskilled work at Reasoning Level 2. 20 (Joint Stip. 12.) 21 It appears that the Ninth Circuit has not yet addressed this 22 issue. However, district courts in this Circuit have held that a 23 limitation 24 Reasoning Level 3 jobs. See, e.g., Burns v. Astrue, 2010 WL 25 4795562, *6 (C.D.Cal. 2010); Bagshaw v. Astrue, 2010 WL 256544, *6 26 (C.D.Cal. 2010); Etter v. Astrue, 2010 WL 4314415, *4 (C.D.Cal. 27 2010); Pak v. Astrue, 2009 WL 2151361, *7 (C.D.Cal. 2009); Tudino 28 v. Barnhart, 2008 WL 4161443, *10-*11 (S.D.Cal. 2008); Torrez v. to simple, repetitive 10 tasks is inconsistent with 1 Astrue, 2010 WL 2555847, *7-*9 (E.D.Cal. 2010). Thus, absent 2 persuasive evidence to justify a variation from the requirements of 3 the job as identified in the DOT, such as the testimony of a 4 Vocational 5 repetitive tasks is inconsistent with the finding that Plaintiff 6 could perform the job of Home Attendant, which requires Reasoning 7 Level 3. Accordingly, the matter shall be remanded for additional 8 proceedings to determine whether Plaintiff can perform her past 9 work and, if not, whether any other jobs 10 Expert, the ALJ’s limiting Plaintiff to simple, exist in the economy that she can perform. 11 12 13 IV. Conclusion For the reasons stated above, the decision of the Social 14 Security Commissioner is REVERSED and 15 REMANDED for further proceedings consistent with this opinion. 16 17 Dated: December 17, 2010 18 19 20 ______________________________ Marc L. Goldman United States Magistrate Judge 21 22 23 24 25 26 27 28 11
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