Miguel R. Victor v. Michael J. Astrue, No. 2:2010cv07674 - Document 16 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For the reasons set forth above, the Court concludes that the Agency's decision denying benefits is not supported by substantial evidence. The decision is, therefore, reversed and the case is remanded for further consideration in light of the Court's decision. IT IS SO ORDERED. (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 MIGUEL ROSAS VICTOR, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-7674-PJW MEMORANDUM OPINION AND ORDER 16 17 I. INTRODUCTION 18 Before the Court is Plaintiff s appeal from a decision by 19 Defendant Social Security Administration ( the Agency ), denying his 20 application for Disability Insurance benefits ( DIB ). 21 claims that the Administrative Law Judge ( ALJ ) erred in his 22 evaluation of Plaintiff s limitations. 23 below, the Court concludes that the ALJ erred and that remand is 24 required. 25 26 II. Plaintiff For the reasons explained SUMMARY OF PROCEEDINGS In January 2008, Plaintiff applied for DIB, alleging that he had 27 been disabled since February 3, 2006, due to pain and swelling in both 28 hands; pain in his feet, knees, elbows, shoulders, and fingers; 1 diabetes; rheumatoid arthritis; and depression. (Administrative 2 Record ( AR ) 118-19, 126, 155.) 3 initially and on reconsideration. 4 was granted a hearing before an ALJ. 5 Plaintiff appeared with counsel at the hearing and testified. 6 56.) 7 (AR 22-29.) 8 review. The Agency denied his application (AR 60-70.) He then requested and (AR 71-73.) On March 5, 2010, (AR 37- On April 30, 2010, the ALJ issued a decision denying benefits. Plaintiff appealed to the Appeals Council, which denied (AR 4-15.) He then commenced the instant action. 9 III. ANALYSIS 10 Plaintiff s treating physician Steven Brourman opined that 11 Plaintiff should avoid heavy lifting, repetitive forceful gripping, 12 grasping, pushing, pulling, squeezing, twisting, torquing, fingering 13 and fine manipulative tasks. 14 Brourman s opinion was entitled to great weight because he is a hand 15 specialist, because he was Plaintiff s treating physician, and because 16 he performed Plaintiff s carpal tunnel release surgery. 17 a result, the ALJ adopted Dr. Brourman s findings, translating his 18 limitation for repetitive forceful gripping, grasping, pushing, 19 pulling, squeezing, twisting, and torquing into a limitation for 20 frequent handling, fingering, and fine manipulation . . . . 21 27.) 22 the ALJ s translation does not accurately encompass his limitations. 23 (Joint Stip. at 4-8.) (AR 454.) The ALJ recognized that Dr. Plaintiff takes issue with the ALJ s analysis. (AR 27.) As (AR 26- He contends that For the following reasons, the Court agrees. 24 Gripping, grasping, pushing, pulling, squeezing, twisting, and 25 torquing require the application of force; handling, fingering, and 26 fine manipulation do not. 27 3293350, at *3 (C.D. Cal. Aug. 18, 2010) (finding that grasping and 28 handling are not the same because [t]he act of grasping requires a See, e.g., Czajka v. Astrue, 2010 WL 2 1 firm hold or grip. 2 hands. 3 original). 4 equating the terms. 5 Handling can mean simply touching or using the It is improper to conflate the two terms. ) (emphasis in As such, the Court concludes that the ALJ erred by Additionally, the Court disagrees with the ALJ s determination 6 that Dr. Brourman s finding that Plaintiff should avoid repetitive 7 forceful gripping, grasping, pushing, pulling, squeezing, twisting, 8 and torquing was equivalent to a limitation on frequent handling, 9 fingering, and fine manipulating. (AR 26.) Repetitive is not 10 synonymous with frequent. 11 that is repeated. 12 performed. 13 (N.D. Cal. Sept. 29, 2008) (explaining that term repetitive seems 14 to describe the manner in which a person uses her hands and the type 15 of action required, whereas the term occasional [or frequent ] 16 reflects how often a person uses her hands in a particular manner[,] 17 and remanding where ALJ s hypothetical did not reflect this 18 distinction). 19 determination did not include a limitation on forceful activities at 20 all. 21 Repetitive refers to a type of action Frequent refers to how often an action is See, e.g., Macapagal v. Astrue, 2008 WL 4449580, at *3-4 Moreover, the ALJ s residual functional capacity In failing to include portions Dr. Brourman s limitations, the 22 ALJ tacitly rejected those parts of the doctor s opinion without 23 providing specific and legitimate reasons for doing so. 24 error. 25 ALJ must provide specific and legitimate reasons for rejecting 26 treating opinion that is contradicted by another doctor). 27 error was not harmless. 28 Cir. 2006) (error is harmless in the social security context if it is This was See Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (holding And the See Stout v. Comm r, 454 F.3d 1050, 1055 (9th 3 1 inconsequential to the ultimate nondisability determination. ). The 2 ALJ s failure to include all of Plaintiff s limitations in the 3 residual functional capacity determination and the resultant 4 hypothetical question to the vocational expert meant that the 5 vocational expert s opinion was based on less than all of Plaintiff s 6 limitations. 7 that Plaintiff could perform his past work. 8 253 F.3d 1152, 1160 (9th Cir. 2001); and DeLorme v. Sullivan, 924 F.2d 9 841, 850 (9th Cir. 1991) ( If the hypothetical does not reflect all As such, the testimony cannot support the ALJ s decision See Edlund v. Massanari, 10 the claimant's limitations . . . the expert's testimony has no 11 evidentiary value to support a finding that the claimant can perform 12 jobs in the national economy. ).1 13 For these reasons, the case is remanded to the Agency to either 14 provide specific and legitimate reasons for rejecting Dr. Brourman s 15 limitations or to incorporate them into the residual functional 16 capacity determination. 17 proceedings as necessary. Thereafter, the ALJ may conduct further 18 19 20 21 22 23 1 24 25 26 27 28 Notably, in response to a hypothetical question from Plaintiff s counsel, the vocational expert testified that if Plaintiff was limited to no more than occasional gripping and grasping he would not be able to perform his past work. (AR 54.) The Court notes further that Plaintiff s past work, Dictionary of Occupational Titles ( DOT ) No. 763.381-010, requires sanding, graining, polishing, and waxing, actions which may well involve repetitive forceful gripping, grasping, pushing, and pulling. Though this job is defined as light work in the DOT, Plaintiff performed it in the medium range. (AR 51.) 4 1 IV. CONCLUSION 2 For the reasons set forth above, the Court concludes that the 3 Agency s decision denying benefits is not supported by substantial 4 evidence. 5 remanded for further consideration in light of the Court s decision.2 The decision is, therefore, reversed and the case is 6 IT IS SO ORDERED. 7 Dated: October 11, 2011 8 9 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 S:\PJW\Cases-CLOSED\Closed-Soc Sec\VICTOR, M 7674\Memo_Opinion.wpd 21 22 23 24 25 26 27 28 2 Plaintiff has requested that the Court reverse the Agency s decision and remand the case for an award of benefits. (Joint Stip. at 15.) The Court recognizes that it has the authority to do this but finds that the issues outlined above require further development before it will be clear whether Plaintiff is entitled to benefits. See, e.g., Andrews v. Shalala, 53 F.3d 1035, 1043-44 (9th Cir. 1995) (remanding case because ALJ s hypothetical to vocational expert did not include functional limitations found by examining physician); Reddick v. Chater, 157 F.3d 715, 728 (9th Cir. 1998) (noting that the decision whether to remand or simply award benefits is within discretion of court). 5
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