Jennifer Ann Santos v. Michael J. Astrue, No. 2:2010cv05916 - Document 19 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Jennifer Ann Santos (Santos) filed this action on August 16, 2010. (Dkt. No. 3.) Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on September 3 and 14, 2010. (Dkt. Nos. 9, 10.) On May 11, 2011, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. (Dkt. No. 17.) The court has taken the matter under submission without oral argument. Having reviewed th e entire file, the court reverses and remands the decision of the Commissioner for further proceedings consistent with this opinion. IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and remanded for further proceedings consistent with this opinion. (See Order for details.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JENNIFER ANN SANTOS, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 10-05916 AGR MEMORANDUM OPINION AND ORDER 18 Jennifer Ann Santos ( Santos ) filed this action on August 16, 2010. (Dkt. 19 No. 3.) Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before 20 the magistrate judge on September 3 and 14, 2010. (Dkt. Nos. 9, 10.) On May 21 11, 2011, the parties filed a Joint Stipulation ( JS ) that addressed the disputed 22 issues. (Dkt. No. 17.) The court has taken the matter under submission without 23 oral argument. 24 Having reviewed the entire file, the court reverses and remands the 25 decision of the Commissioner for further proceedings consistent with this opinion. 26 /// 27 /// 28 /// 1 I. 2 PROCEDURAL BACKGROUND 3 On October 15, 2007, Santos filed an application for supplemental security 4 income benefits, alleging an onset date of May 3, 2000. Administrative Record 5 ( AR ) 16, 73-81. The application was denied.1 AR 53. Santos requested a 6 hearing before an Administrative Law Judge ( ALJ ). AR 16. On July 15, 2009, 7 the ALJ conducted a hearing at which Santos appeared and testified. AR 40-52. 8 The ALJ issued a decision denying benefits on August 3, 2009. AR 13-26. On 9 June 10, 2010, the Appeals Council denied the request for review. AR 1-5. This 10 action followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner s 14 decision to deny benefits. The decision will be disturbed only if it is not supported 15 by substantial evidence, or if it is based upon the application of improper legal 16 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 17 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 18 Substantial evidence means more than a mere scintilla but less than a 19 preponderance it is such relevant evidence that a reasonable mind might 20 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 21 determining whether substantial evidence exists to support the Commissioner s 22 decision, the court examines the administrative record as a whole, considering 23 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 24 evidence is susceptible to more than one rational interpretation, the court must 25 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 26 27 28 1 This was a prototype case, which allowed the claimant to go directly to a hearing from an initial denial and skip the reconsideration stage. AR 53; see also 20 C.F.R. § 404.906(b)(4). 2 1 III. 2 DISCUSSION 3 A. Disability 4 A person qualifies as disabled, and thereby eligible for such benefits, only 5 if his physical or mental impairment or impairments are of such severity that he is 6 not only unable to do his previous work but cannot, considering his age, 7 education, and work experience, engage in any other kind of substantial gainful 8 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 9 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). 10 B. 11 The ALJ found that Santos had the following severe impairments: hepatitis 12 C, history of back pain, anxiety, polysubstance addiction disorder, and a paranoid 13 disorder. AR 18. Santos did not meet or medically equal a listed impairment in 14 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. Santos had the residual 15 functional capacity ( RFC ) to perform medium work, except that she is limited to 16 simple, routine tasks with limited public and coworker contact. 2 AR 20. The ALJ 17 found there were a significant number of jobs in the national economy that Santos 18 could perform. AR 25. The ALJ s Findings 19 C. Treating Physicians 20 Santos claims that the ALJ did not properly consider the opinions of her 21 22 treating physician, Dr. Hakimian, and her treating psychologist, Dr. Baum. An opinion of a treating physician is given more weight than the opinion of 23 a non-treating physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). 24 When, as here, a treating physician s opinion is contradicted by another doctor, 25 the ALJ may not reject this opinion without providing specific and legitimate 26 2 27 28 Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighting up to 25 pounds. 20 C.F.R. § 416.967(c). 3 1 reasons supported by substantial evidence in the record. This can be done by 2 setting out a detailed and thorough summary of the facts and conflicting clinical 3 evidence, stating his interpretation thereof, and making findings. Id. at 632 4 (citations and internal quotations omitted). When there is conflicting medical 5 evidence, the Secretary must determine credibility and resolve the conflict. 6 Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002) (citation and quotation 7 marks omitted). 1. 8 The ALJ mentioned Dr. Hakimian s medical records in 2007. AR 21, 121- 9 10 Dr. Hakimian 29. Two days before the hearing, Santos submitted Dr. Hakimian s medical 11 12 records from December 2007 through June 2009. AR 326-49, 380-83. In July 13 2008, Dr. Hakimian noted that Santos psychologist agreed she is disabled. AR 14 342. Dr. Hakimian opined that Santos was unable to work in check-the-box forms 15 dated March 4, 2008 and June 16, 2009. AR 329, 345. Dr. Hakimian appears to 16 have diagnosed anxiety and arthralgia, and has generally prescribed Klonopin, 17 Vicodin, and various other medications. E.g., AR 331-33, 335-36, 339-41, 344, 18 348. 19 Dr. Hakimian was contacted on March 3, 2008. AR 106. He reported that 20 Santos has addiction problems with methadone and vicodin since 2006. Id. Dr. 21 Hakimian states he cannot tell the clmt s exact [] mental status but clmt s function 22 significantly better w/o substance abuse. Id. 23 The ALJ erred in not addressing Dr. Hakimian s opinions. Although the 24 Commissioner offers his interpretation of Dr. Hakimian s opinions, this court is 25 constrained to review the ALJ s decision. Connett v. Barnhart, 340 F.3d 871, 874 26 (9th Cir. 2003) (error for district court to affirm based on evidence the ALJ did not 27 discuss). This matter must be remanded for consideration of his opinions. 28 /// 4 1 2. 2 Dr. Baum is a staff psychologist for the adult parole division of the 3 California department of corrections. AR 379. Dr. Baum appears to have seen 4 Santos during the period May-October 2008. AR 23, 317. 5 Dr. Baum Dr. Baum found that Santos had schizophrenia, paranoid type. AR 312. 6 Dr. Baum opined Santos had a low IQ or reduced intellectual functioning. AR 7 315. Santos could not meet competitive standards for any work function, except 8 that she was seriously limited but not precluded from sustaining an ordinary 9 routine without special supervision, asking simple questions, and accepting 10 instructions from supervisors. AR 314-15; see also AR 321, 379. Dr. Baum 11 opined that Santos was not malingering and could not manage benefits on her 12 own behalf. AR 316. 13 The ALJ gave Dr. Baum s opinion limited weight because the opinion (1) 14 did not explain the basis for its conclusions and (2) was inconsistent with the 15 opinions of the examining and state agency physician. AR 23. 16 An ALJ need not accept the opinion of any physician, including a treating 17 physician, if that opinion is brief, conclusory, and inadequately supported by 18 clinical findings. Thomas, 278 F.3d at 957. An ALJ may discount a check-the- 19 box report that does not explain the basis of its conclusions. See Batson v. 20 Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ properly 21 rejected treating physician's conclusory check-list report). 22 Dr. Baum s checklist report and notes do not explain the basis for the 23 conclusions. Although Dr. Baum checked off the boxes for Santos symptoms, 24 Dr. Baum left blank the question that asks for clinical findings, including results of 25 mental status examinations, that support the severity of the patient s mental 26 impairment and symptoms. AR 312-13, 379. Dr. Baum left blank the question 27 /// 28 /// 5 1 that asked for an explanation, including test results, for a conclusion that the 2 patient had reduced intellectual functioning.3 AR 315. 3 Santos argues that the ALJ improperly relied on the opinion of Dr. 4 Stolinsky, an examining physician. AR 22-23. An examining physician's opinion 5 constitutes substantial evidence when it is based on independent clinical findings. 6 Orn, 495 F.3d at 632. 7 Dr. Stolinsky s opinion was based on a psychological evaluation and testing 8 of Santos on January 30, 2008. AR 22, 291-95. Dr. Stolinsky did not review any 9 documents prior to the evaluation. AR 291. Santos appeared disheveled, her 10 clothes were worn and unkempt, she had poor grooming, and she smelled of 11 alcohol.4 Id. She appeared confused, unfocused, paranoid, and somewhat 12 psychotic. AR 292. 13 Dr. Stolinsky administered a series of tests, including Test of Memory 14 Malingering (TOMM), Wechsler Adult Intelligence Scale-III (WAIS-III) and the 15 Wechsler Memory Scale-III (WMS-III). AR 291. With respect to the TOMM, Dr. 16 explained that scores below 35 after the second trial are suspicious of 17 malingering. AR 292. No one receives less than 10 that is not malingering. AR 18 293. Santos scored a 0 on the second trial, and Dr. Stolinsky found it very likely 19 that Santos was malingering. AR 293. 20 On the WAIS-III, an objective intelligence test, Santos had a full scale IQ of 21 22 23 24 25 26 27 28 3 Santos argues that the ALJ should have recontacted Dr. Baum to further develop the record. However, it is the claimant s duty to prove he or she is disabled. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); see also 42 U.S.C. § 423(d)(5)(A) (claimant must furnish medical and other evidence of his disability). An ALJ is required to recontact a doctor only if the doctor s report is ambiguous or insufficient for the ALJ to make a disability determination. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). The ALJ did not find that the record was ambiguous or inadequate to allow for the proper evaluation of Dr. Baum s opinion. Nor is there any indication that there are missing records. 4 Santos argues that she tested clean for alcohol use from September 2007 - July 2009. See AR 352-75 (test results). Dr. Stolinsky did not have these records. 6 1 45, placing her in the low range of intellectual functioning. AR 293. On the WMS- 2 III, a test of memory functioning, Santos scored in an extremely low range. Id. 3 She was unable to follow instructions, had poor concentration, and became 4 confused and agitated. AR 293-94. 5 Dr. Stolinsky concluded: The claimant can probably not do any kind of 6 tasks and could be a danger to self or others in the workplace. But the TOMM 7 indicates serious malingering and the rest of the evaluation might truly be a bogus 8 attempt to make me believe she is paranoid and confused. AR 294. Dr. 9 Stolinsky diagnosed Santos with Malingering, Polysubstance Dependence, and 10 Borderline Personality Disorder, and rule out Anti-Social Personality Disorder. Id. 11 She opined that Santos substance abuse apparently contributed to a fairly 12 substantial paranoid ideation. Id. 13 The ALJ interpreted Dr. Stolinsky s report as indicating that Santos is likely 14 a malingerer and polysubstance abuser. AR 23. Santos argues that Dr. 15 Stolinsky did not review Santos medical records and, at the time of the evaluation 16 on January 30, 2008, was unaware that monthly tests indicated Santos was 17 negative for alcohol and illegal drugs during the period September 2007 through 18 July 2009. AR 291, 352-75. Santos argues this information was material 19 because, in other respects, the assessments of Santos work abilities by Dr. 20 Baum and Dr. Stolinsky were not inconsistent except as to malingering. 21 It is not clear that Dr. Baum s opinion is inconsistent with the state agency 22 physician, Dr. Tashjian. AR 23, 263-74. In reviewing the evidence, Dr. Tashjian 23 noted significant inconsistencies between the findings of Dr. Stolinsky and Dr. 24 Siciarz. AR 23 n.1, 274. During an internal medical evaluation on January 16, 25 2008, Dr. Siciarz opined that Santos mental status was clear, alert, and oriented 26 as to person, place, time, and purpose. AR 249. Just two weeks later, on 27 January 30, 2008, Dr. Stolinsky had observed Santos as confused, paranoid, and 28 somewhat psychotic. AR 291-92. Dr. Tashjian noted that in March 2008, Dr. 7 1 Hakimian provided an inconclusive response as to Santos mental state and 2 function. AR 106, 274. Dr. Tashjian found insufficient evidence to assess 3 Santos functional limitations under the B criteria. AR 271. Dr. Tashjian 4 diagnosed Santos as having an anxiety related disorder, personality disorder, and 5 a substance addiction disorder. AR 263. 6 7 This matter is being remanded for evaluation of Dr. Hakimian s opinions. On remand, the ALJ is free to reevaluate the entire medical evidence. 8 D. Credibility 9 Santos argues that the ALJ erred in finding her subjective symptom 10 testimony not credible. JS 18-22, 28-30. 11 To determine whether a claimant s testimony regarding subjective pain or 12 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter 13 v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ must determine 14 whether the claimant has presented objective medical evidence of an underlying 15 impairment which could reasonably be expected to produce the pain or other 16 symptoms alleged. Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 17 1991) (en banc)). The ALJ found that Santos had presented objective medical 18 evidence of underlying impairments that could reasonably be expected to cause 19 the alleged symptoms. AR 24. 20 Second, if the claimant meets this first test, and there is no evidence of 21 malingering, the ALJ can reject the claimant s testimony about the severity of her 22 symptoms only by offering specific, clear and convincing reasons for doing so. 23 Lingenfelter, 504 F.3d at 1036 (citations omitted). In making a credibility 24 determination, the ALJ must specifically identify what testimony is credible and 25 what testimony undermines the claimant s complaints. Greger v. Barnhart, 464 26 F.3d 968, 972 (9th Cir. 2006) (citation omitted). The ALJ may consider (a) 27 inconsistencies or discrepancies in a claimant s statements; (b) inconsistencies 28 /// 8 1 between a claimant s statements and activities; (c) exaggerated complaints; and 2 (d) an unexplained failure to seek treatment. Thomas, 278 F.3d at 958-59. 3 The ALJ found that Santos s statements concerning the intensity, 4 persistence, and limiting effects of these symptoms were not credible to the 5 extent they were inconsistent with the RFC assessment. AR 24. The ALJ was 6 not required to give clear and convincing reasons for discounting Santos 7 credibility because there was affirmative evidence of malingering. See AR 293- 8 94. As noted earlier, Dr. Stolinsky suspected serious malingering due to Santos s 9 TOMM score of 0 since [n]o one receives less than 10 that is not malingering. 10 11 Id. Nevertheless, the ALJ provided clear and convincing reasons for finding 12 Santos s testimony not credible: (1) lack of objective medical evidence supporting 13 her subjective allegations; (2) conservative treatment; (3) inconsistencies 14 between Santos statements and activities; and (4) Santos s daily activities. See 15 AR 24-25. 16 1. 17 Although lack of objective medical evidence supporting the degree of 18 limitation cannot form the sole basis for discounting pain testimony, it is a factor 19 that an ALJ may consider in assessing credibility. Burch v. Barnhart, 400 F.3d 20 676, 681 (9th Cir. 2005). Here, the ALJ found that, despite Santos claims of 21 significant physical limitations, the medical evidence did not support her claims. 22 AR 21, 24. Not only did Santos never have any surgeries for her alleged physical 23 impairments, but there were no MRI s or x-rays taken of her back or spine.5 AR 24 24, 121-250. 25 2. Objective Medical Evidence Conservative Treatment 26 27 28 5 The ALJ incorrectly stated there was no evidence of rib injuries since an x-ray taken in 2005 revealed irregularity of the 8th and 9th ribs and a midclavicular line. AR 24, 411. This error was harmless. 9 1 [E]vidence of conservative treatment is sufficient to discount a claimant s 2 testimony. Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007). The ALJ found 3 that the objective medical evidence evidenced routine care since there were no 4 increased medications for pain. AR 24, 121-250. Although Santos s medications 5 fluctuated, they were not necessarily increased for pain. AR 121-250. Dr. 6 Hakimian noted that Santos had addiction problems with methadone and vicodine 7 since 2006. AR 106. 8 3. 9 The ALJ considered inconsistencies between Santos statements and Inconsistent Statements and Conduct 10 activities. AR 24. The ALJ noted that a letter dated July 14, 2009 from a drug 11 rehabilitation clinic indicated that, although Santos had been an opiate addict for 12 many years, she had been testing negative for illicit drugs for over a year (i.e., 13 September 2007 - July 2009). AR 352-75. The ALJ found that the letter 14 contradicted Santos s testimony during the hearing on July 19, 2009 that she had 15 not used drugs for about five years. AR 24, 45. 16 The ALJ did not err. Although Santos tested negative for illicit drugs, she 17 tested positive for Methadone from September 2007- July 2009, which Santos 18 concedes is a drug used for detoxifying from other opiates and preventing 19 withdrawal symptoms in patients who were addicted to opiate drugs. AR 353-75; 20 JS 29. Dr. Hakimian noted Santos has addiction problems with methadone and 21 vicodin. AR 106. Even assuming the evidence is susceptible to more than one 22 rational interpretation, the court must defer to the Commissioner s decision. 23 Moncada, 60 F.3d at 523. 24 4. 25 The ALJ noted that Santos had failed to return her daily activities report to Daily Activities 26 the Social Security Administration. AR 24. The ALJ considered Santos 27 testimony that she watches TV and tries to cook and clean the house. The ALJ 28 found that the restrictions on Santos daily activities were mild. AR 19, 24-25, 10 1 47-49; see also Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (The 2 /// 3 ALJ may consider the claimant s daily activities as one of many factors in 4 weighing a claimant s credibility). 5 The ALJ s credibility finding is supported by substantial evidence. If the 6 ALJ s credibility finding is supported by substantial evidence in the record, we 7 may not engage in second-guessing. Thomas, 278 F.3d at 959 (citing Morgan v. 8 Comm r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)). 9 10 E. Whether Santos s Impairment Met or Equaled a Listing At step three of the sequential analysis, the claimant bears the burden of 11 demonstrating that her impairments are equivalent to a listed impairment that the 12 Commissioner acknowledges are so severe as to preclude substantial gainful 13 activity. Bowen v. Yuckert, 482 U.S. 137, 141, 146 n.5, 107 S. Ct. 2287, 96 L. Ed. 14 2d 119 (1987). If the impairment meets or equals one of the listed impairments, 15 the claimant is conclusively presumed to be disabled. If the impairment is not one 16 that is conclusively presumed to be disabling, the evaluation proceeds to the 17 fourth step. Id. at 141; Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999); 20 18 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). 19 The listings define impairments that would prevent an adult, regardless of 20 his age, education, or work experience, from performing any gainful activity, not 21 just substantial gainful activity. Sullivan v. Zebley, 493 U.S. 521, 532, 110 S. Ct. 22 885, 107 L. Ed. 2d 967 (1990) (citation omitted). For a claimant to show that his 23 impairment matches a listing, it must meet all of the specified medical criteria. An 24 impairment that manifests only some of those criteria, no matter how severely, 25 does not qualify. Id. at 530 (emphasis in original). 26 To equal a listed impairment, a claimant must establish symptoms, signs 27 and laboratory findings at least equal in severity and duration to the 28 characteristics of a relevant listed impairment, or, if a claimant s impairment is not 11 1 listed, then to the listed impairment most like the claimant s impairment. 2 Tackett, 180 F.3d at 1099 (emphasis in original); 20 C.F.R. § 404.1526. Medical 3 equivalence must be based on medical findings. A generalized assertion of 4 functional problems is not enough to establish disability at step three. Tackett, 5 180 F.3d at 1100 (citation omitted). 6 An ALJ must evaluate the relevant evidence before concluding that a 7 claimant s impairments do not meet or equal a listed impairment. A boilerplate 8 finding is insufficient to support a conclusion that a claimant s impairment does 9 not do so. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). 10 Santos asserts the ALJ erred in not considering whether she met Listing 11 12.05, which is met when there is a valid verbal, performance, or full scale IQ of 12 59 or less. 20 C.F.R. part 404, Subpart P, Appendix 1 § 12.05. Since Santos 13 scored a verbal IQ of 48, a performance IQ of 47, and a full scale IQ of 45 on the 14 WAIS-III test that Dr. Stolinsky administered, Santos argues she met the listing. 15 Santos argument is without merit. Dr. Stolinsky opined that, given Santos 16 TOMM scores indicating serious malingering, the rest of the evaluation might 17 truly be a bogus attempt to make [her] believe she is paranoid and confused. 6 18 AR 294. Although Santos argues that Dr. Baum noted she has a low IQ, Dr. 19 Baum did not check-off 12.05 Mental Retardation as a category upon which 20 Santos medical disposition was based, despite checking-off others such as 12.06 21 for an anxiety-related disorder. AR 317. The ALJ did not err. 22 F. The ALJ s Residual Functional Capacity Determination 23 Santos argues that the ALJ improperly determined her residual functional 24 capacity. JS 32. 25 26 27 28 6 [S]ince the results of intelligence tests are only part of the overall assessment, the narrative report that accompanies the test results should comment on whether the IQ scores are considered valid and consistent with the developmental history and the degree of functional limitation. 20 C.F.R. Pt. 404, Subpt. P, App. 1., § 12.00(D)(6) (emphasis added). 12 1 The Residual Functional Capacity (RFC) determination measures the 2 claimant s capacity to engage in basic work activities. Bowen v. New York, 476 3 U.S. 467, 471, 106 S. Ct. 2022, 90 L. Ed. 2d 462 (1986). The RFC assessment is 4 a determination of the most [an individual] can still do despite [his or her] 5 limitations. 20 C.F.R. § 404.1545(a). It is an administrative finding, not a 6 medical opinion. 20 C.F.R. § 404.1527(e)(2). The RFC takes into account both 7 exertional limitations and non-exertional limitations. When there is conflicting 8 medical evidence, the Secretary must determine credibility and resolve the 9 conflict. Thomas, 278 F.3d 947, 956-57 (citation omitted). 10 11 Because this matter is being remanded for consideration of Dr. Hakimian s opinions, the ALJ is free to reconsider the RFC on remand. 12 G. Step Five of the Sequential Analysis 13 Santos argues that the ALJ erred in determining that there were a 14 15 significant number of jobs in the national economy that she could perform. JS 37. At step five, the Commissioner bears the burden of demonstrating there is 16 other work in significant numbers in the national economy the claimant can do. 17 Lounsburry v. Barnhart , 468 F.3d 1111, 1114 (9th Cir. 2006). If the 18 Commissioner satisfies this burden, the claimant is not disabled and not entitled 19 to disability benefits. If the Commissioner cannot meet this burden, the claimant 20 is disabled and entitled to disability benefits. Id. 21 There are two ways for the Commissioner to meet the burden of showing 22 that there is other work in significant numbers' in the national economy that 23 claimant can do: (1) by the testimony of a vocational expert, or (2) by reference to 24 the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2 (the 25 grids ). Id. Where a claimant suffers only exertional limitations, the ALJ must 26 consult the grids. Where a claimant suffers only non-exertional limitations, the 27 grids are inappropriate, and the ALJ must rely on other evidence. Where a 28 claimant suffers from both exertional and non-exertional limitations, the ALJ must 13 1 consult the grids first. Id. at 1115. The grids are inapplicable when a claimant's 2 non-exertional limitations are sufficiently severe so as to significantly limit the 3 range of work permitted by the claimant's exertional limitations. 7 Hoopai v. 4 Astrue, 499 F.3d 1071, 1075 (9th Cir. 2007) (citation and quotation marks 5 omitted). Nonexertional impairments may or may not significantly narrow the 6 range of work a person can do. Social Security Ruling 83-14.8 The ALJ may rely 7 on the grids alone only when the grids accurately and completely describe the 8 claimant s abilities and limitations. Tackett, 180 F.3d at 1102 (citation and 9 quotation marks omitted); see also, 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 10 200(e). The testimony of a vocational expert is required where nonexertional 11 limitations significantly limit the range of work a claimant can perform. Tackett, 12 180 F.3d at 1102. 13 Again, because this matter is being remanded for consideration of Dr. 14 Hakimian s opinions, the ALJ is free to reassess the analysis at step five of the 15 sequential analysis. 16 IV. 17 ORDER 18 19 20 21 IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and remanded for further proceedings consistent with this opinion. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 22 23 24 25 26 27 28 7 Nonexertional limitations include postural and manipulative limitations such as difficulty reaching, handling, stooping, climbing, crawling, or crouching. Lounsburry, 468 F.3d at 1115; see also 20 C.F.R. § 404.1569a(c)(vi). 8 Social Security rulings do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 14 1 DATED: December 28, 2011 ALICIA G. ROSENBERG United States Magistrate Judge 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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