Regina Tate v. Michael J Astrue, No. 2:2011cv03213 - Document 22 (C.D. Cal. 2012)

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 administrative proceedings consistent with instructions set forth in the body of the decision. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 REGINA LAURA TATE, 12 Plaintiff, v. 13 14 MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 15 Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) No. CV 11-3213 CW DECISION AND ORDER The parties have consented, under 28 U.S.C. § 636(c), to the 18 jurisdiction of the undersigned Magistrate Judge. 19 review of the Commissioner s denial of disability insurance benefits 20 and supplemental security income. 21 Magistrate Judge finds that this matter should be reversed and 22 remanded for further administrative proceedings consistent with this 23 decision and order. 24 25 I. Plaintiff seeks For the reasons stated below, the BACKGROUND Plaintiff Regina Laura Tate was born on May 15, 1950, and was 59- 26 years old at the time of her administrative hearing. 27 Record ( AR ) 17.] She has at least some high school education and 28 past work experience as a caterer and an in-home care giver. [AR 89.] 1 [Administrative 1 Plaintiff alleges disability due to severe migraines; obesity; 2 sciatic nerve damage; high blood pressure; an inability to lift heavy 3 objects; an inability to sit, stand or walk for more than ten or 4 fifteen minutes at a time; and rotator cuff damage. 5 II. [AR 87-88.] PROCEEDINGS IN THIS COURT 6 Plaintiff s complaint in this matter was lodged on April 15, 7 2011, and filed on April 25, 2011. On November 9, 2011, defendant 8 filed an answer and the certified administrative record. On February 9 21, 2012, the parties filed their Joint Stipulation ( JS ) identifying 10 matters not in dispute, issues in dispute, the positions of the 11 parties, and the relief sought by each party. 12 taken under submission without oral argument. 13 III. 14 This matter has been PRIOR ADMINISTRATIVE PROCEEDINGS On December 27, 2007, Plaintiff filed an application for a period 15 of disability and disability insurance benefits and supplemental 16 security income, alleging disability beginning December 1, 2006. 17 75.] 18 reconsideration, Plaintiff requested an administrative hearing, which 19 was held on May 12, 2010, before Administrative Law Judge ( ALJ ) 20 Robert A. Evans. 21 testimony was taken from Plaintiff, vocational expert ( VE ) Ruth 22 Arnish, and medical expert ( ME ) Barbara Falcons. 23 denied benefits in an administrative decision dated June 4, 2010. 24 26.] 25 4], the ALJ s decision became the Commissioner s final decision. 26 action followed. 27 28 [AR After the applications were denied initially and upon [AR 17-26.] Plaintiff appeared with counsel, and [AR 298.] The ALJ [AR When the Appeals Council denied review on February 15, 2011 [AR IV. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 2 This 1 Commissioner s decision to deny benefits. The Commissioner s (or 2 ALJ s) findings and decision should be upheld if they are free of 3 legal error and supported by substantial evidence. 4 court determines that a finding is based on legal error or is not 5 supported by substantial evidence in the record, the court may reject 6 the finding and set aside the decision to deny benefits. 7 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 8 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 9 F.3d 1157, 1162 (9th Cir. However, if the See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, 10 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 11 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 12 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 13 Substantial evidence is more than a scintilla, but less than a 14 preponderance. Reddick, 157 F.3d at 720. 15 which a reasonable person might accept as adequate to support a 16 conclusion. 17 a finding, a court must review the administrative record as a whole, 18 weighing both the evidence that supports and the evidence that 19 detracts from the Commissioner s conclusion. 20 can reasonably support either affirming or reversing, the reviewing 21 court may not substitute its judgment for that of the Commissioner. 22 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. To determine whether substantial evidence supports V. 23 It is relevant evidence Id. If the evidence DISCUSSION 24 A. THE FIVE-STEP EVALUATION 25 To be eligible for disability benefits a claimant must 26 demonstrate a medically determinable impairment which prevents the 27 claimant from engaging in substantial gainful activity and which is 28 expected to result in death or to last for a continuous period of at 3 1 least twelve months. 2 721; 42 U.S.C. § 423(d)(1)(A). 3 Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at Disability claims are evaluated using a five-step test: 4 Step one: Is the claimant engaging in substantial 5 gainful activity? 6 disabled. 7 If so, the claimant is found not If not, proceed to step two. Step two: Does the claimant have a severe impairment? 8 If so, proceed to step three. 9 If not, then a finding of not disabled is appropriate. 10 Step three: Does the claimant s impairment or 11 combination of impairments meet or equal an impairment 12 listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? 13 so, the claimant is automatically determined disabled. 14 not, proceed to step four. 15 If If Step four: Is the claimant capable of performing his 16 past work? 17 proceed to step five. 18 If so, the claimant is not disabled. If not, Step five: Does the claimant have the residual 19 functional capacity to perform any other work? 20 claimant is not disabled. If so, the If not, the claimant is disabled. 21 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 22 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 23 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 24 C.F.R. § 404.1520, § 416.920. 25 not disabled at any step, there is no need to complete further 26 steps. 27 28 If a claimant is found disabled or Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. Claimants have the burden of proof at steps one through four, subject to the presumption that Social Security hearings are non4 1 adversarial, and to the Commissioner s affirmative duty to assist 2 claimants in fully developing the record even if they are represented 3 by counsel. 4 1288. 5 made, and the burden shifts to the Commissioner (at step five) to 6 prove that, considering residual functional capacity ( RFC )1, age, 7 education, and work experience, a claimant can perform other work 8 which is available in significant numbers. 9 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520, 416.920. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at If this burden is met, a prima facie case of disability is Tackett, 180 F.3d at 1098, 10 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 11 Here, the ALJ found that Plaintiff met the insured status 12 requirements of the Social Security Act through October 10, 2008, and 13 that Plaintiff had not engaged in substantial gainful activity since 14 the alleged onset date, December 1, 2006 (step one); that Plaintiff 15 had the severe impairments of: 16 hypertension, low back pain, obesity, and affective mood disorder 17 (step two); and that Plaintiff did not have an impairment or 18 combination of impairments that met or equaled a listing (step 19 three). [AR 19-22.] 20 migraines, diabetes mellitus, The ALJ found that Plaintiff retained the RFC to perform a 21 limited range of light work, and that she had the following additional 22 limitations: 23 1 24 25 26 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 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 [O]nly occasionally climb, crawl and perform overhead 2 reaching with the right upper extremity. 3 climb ladders, ropes or scaffolds, as well as must avoid 4 moving machinery and unprotected heights. [Plaintiff] must 5 avoid even moderate exposure to fumes, harsh chemicals and 6 extreme concentration of heat and/or cold. 7 8 She must never [AR 22-25.] The ALJ concluded that Plaintiff is capable of performing past 9 relevant work as a Companion (Dictionary of Occupational Titles, 10 DICOT, 309.677-101) and Residence Counselor (DICOT 187-167-186) 11 (step four). [AR 25-26.] 12 disabled as defined by the Social Security Act. [AR 26.] Accordingly, Plaintiff was found not to be 13 C. 14 The JS identifies as disputed issues whether the ALJ properly: 15 1. 16 ISSUES IN DISPUTE Determined that Plaintiff could return to her past relevant work [JS 3-12]; 17 2. Developed the record [JS 12-16]. 18 Issue two is dispositive. 19 D. 20 In issue one, Plaintiff contends that the step four finding is in ISSUE ONE: PAST RELEVANT WORK 21 error because the ALJ failed properly to assess and determine the 22 nature and requirements of her past relevant work, and to compare her 23 RFC to those requirements. Plaintiff indicated that in the 1990s she 24 worked as an in-house counselor at a women s home and from 1994 to 25 2006 she worked as an in-home caregiver [AR 94.] The ALJ found that 26 Plaintiff s past relevant work consisted of work as a residence 27 counselor (DICOT 187.167-186) and companion (DICOT 309.677-101). 28 At step four, a plaintiff has the burden of showing that she 6 1 could no longer perform her past relevant work. Pinto v. Massanari, 2 249 F.3d 840, 844 (9th Cir. 2001). 3 "to make the requisite factual findings to support his conclusion." 4 Id. 5 functional capacity and the physical and mental demands' of 6 [plaintiff's] past relevant work." 7 §§ 404.1520(e), 416.920(e)). 8 her past relevant work either as actually performed or as generally 9 performed in the national economy. Nonetheless, the ALJ had the duty This duty requires an ALJ to examine plaintiff's " residual Id. at 844-45 (quoting 20 C.F.R. The plaintiff must be able to perform Id. at 845 ("[w]e have never 10 required explicit findings at step four regarding a claimant's past 11 relevant work both as generally performed and as actually performed") 12 (emphasis in original). 13 Here, though the court does not decide whether remand would be 14 warranted based solely upon the step four finding, because the hearing 15 decision is insufficient to permit the court to gauge whether the 16 findings with respect to past relevant work are well supported, these 17 findings should be revisited on remand. See Lewin v. Schweiker, 654 18 F.2d 631, 634-35 (9th Cir. 1981)(an ALJ must make full and detailed 19 findings of fact which are essential to the ALJ's conclusion so that a 20 reviewing court may determine the basis for the decision and whether 21 substantial evidence supports the Commissioner's decision.) 22 First, with respect to Plaintiff s past job of residence 23 counselor, pursuant to Social Security Ruling ( SSR ) 82-62, work 24 that was performed fifteen years or more prior to the time of 25 adjudication of the claim (or 15 years or more prior to the date the 26 title II disability insured status requirement was last met, if 27 earlier) typically will not be considered [u]nless continuity of 28 skills, knowledge, and processes can be established between such work 7 1 and the individual's more recent occupations. Furthermore, the 2 duration of employment required to qualify as past relevant work 3 varies according to the nature and complexity of the job. 4 has lasted long enough for plaintiff to learn it when there has been 5 sufficient time to learn the techniques, to acquire information, and 6 to reach the point where the job can easily be performed with average 7 competency. 8 that she performed the counselor job for several years, until June 9 1994. [AR 94.] She testified, however, that she did this job only for See SSR 82-62. Past work Here, at one point, Plaintiff indicated 10 five or six months. [AR 208.] 11 with respect to this discrepancy or, to the extent the job was held 12 more than fifteen years prior to the administrative hearing on 13 Plaintiff s claim for SSI benefits, articulate whether there was a 14 continuity of skills, knowledge and processes between the counsel job 15 and Plaintiff s work through 2006. 16 The decision does not make any findings The decision s assessment of the in-home caregiver job is 17 similarly insufficient. With respect to that job, Plaintiff indicated 18 that she: lifted patients in and out of bed, transferred patients to 19 and from appointments, cooked, cleaned, helped with bathing and 20 feeding, did errands, housework, laundry, assisted with medication, 21 and acted as a companion. [AR 89, 95.] The ALJ deemed that this job 22 was comparable to the job of Companion, the DICOT definition of 23 which is as follows: 24 Cares for elderly, handicapped, or convalescent persons: Attends 25 to employer's personal needs [PERSONAL ATTENDANT (domestic 26 ser.)]. Transacts social or business affairs [SOCIAL SECRETARY 27 (clerical)]. Reads aloud, plays cards, or other games to 28 entertain employer. Accompanies employer on trips and outings. 8 1 2 3 May prepare and serve meals to employer. DICOT 309.677-010. 1991 WL 672667 (GPO). However, as Plaintiff contends, a more directly analogous 4 classification would be that of home attendant, which is defined as 5 follows: 6 Cares for elderly, convalescent, or handicapped persons in 7 patient's home, performing any combination of following tasks: 8 Changes bed linens, washes and irons patient's laundry, and 9 cleans patient's quarters. Purchases, prepares, and serves food 10 for patient and other members of family, following special 11 prescribed diets. Assists patients into and out of bed, 12 automobile, or wheelchair, to lavatory, and up and down stairs. 13 Assists patient to dress, bathe, and groom self. Massages patient 14 and applies preparations and treatments, such as liniment or 15 alcohol rubs and heat-lamp stimulation. Administers prescribed 16 oral medications under written direction of physician or as 17 directed by home care nurse. Accompanies ambulatory patients 18 outside home, serving as guide, companion, and aide. Entertains 19 patient, reads aloud, and plays cards or other games with 20 patient. Performs variety of miscellaneous duties as requested, 21 such as obtaining household supplies and running errands. May 22 maintain records of services performed and of apparent condition 23 of patient. May visit several households to provide daily health 24 care to patients. 25 DICOT 354.377-014, 1991 WL 672933 (GPO). 26 ALJ found, that Plaintiff could return to her past job as an in-home 27 caregiver both as her job was actually and generally performed. 28 However, given the disparity between the DICOT description adopted by 9 The VE testified, and the 1 the VE and ALJ and Plaintiff s description of her job duties, the 2 court is unable with confidence to conclude that proper assessment was 3 made of the nature of Plaintiff s past work and her ability to perform 4 it. 5 An ALJ is obliged to investigate fully the demands of Plaintiff s 6 past relevant work and to compare them to her RFC. 7 hearing decision is insufficient in this regard, on remand and after 8 reassessing Plaintiff s RFC, as set forth below, the ALJ shall revisit 9 the step four analysis and, if Plaintiff is found not to be disabled 10 Because the at step four, shall also reach the step five analysis. 11 E. ISSUE TWO: DUTY TO DEVELOP THE RECORD 12 In issue two, Plaintiff contends the ALJ failed adequately to 13 develop the record by, for example, asking sufficient questions at the 14 administrative hearing, and that he thus failed properly to evaluate 15 Plaintiff s RFC. 16 Although a claimant bears the burden of proving disability, the 17 ALJ has an affirmative duty to assist the claimant in developing the 18 record when there is ambiguous evidence or when the record is 19 inadequate to allow for proper evaluation of the evidence. Mayes v. 20 Massanari, 276 F.3d 453, 459 60 (9th Cir.2001) (citation omitted); 21 Bustamante, 262 F.3d at 954; see also Webb v. Barnhart, 433 F.3d 683, 22 687 (9th Cir. 2005)(ALJ has special duty fully and fairly to develop 23 record and to assure that claimant's interests are considered). The 24 duty to develop the record exists even when plaintiff is represented 25 by counsel. 26 However, when plaintiff appears at a hearing without counsel, the ALJ 27 must be "especially diligent in exploring the facts. Id. 28 notwithstanding the fact that Plaintiff is unrepresented by counsel Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir 2001). 10 Here, 1 and that the record is inadequate, there was not especial diligence 2 exercised in this case. 3 Here, neither the ME nor the ALJ expressed any doubt that 4 Plaintiff suffers chronic, severe, medical problems, including, for 5 example, migraine headaches. Yet the ALJ did not ask Plaintiff to 6 describe the functional limitations that result from her migraines, 7 for example, or from her other alleged impairments, including those 8 that Plaintiff indicated had worsened in the months prior to her 9 administrative hearing. Indeed, as Plaintiff points out in the joint 10 stipulation, the hearing was exceedingly brief. Nor was any treating 11 or consultive physician asked to assess the scope of Plaintiff s 12 limitations or her remaining functional capacity based upon an 13 examination or treatment of Plaintiff. 14 Indeed, in response to the ALJ s broad initial questions, the ME 15 suggested that it was difficult for her to form an opinion with 16 respect to Plaintiff s disability. 17 is impoverished and was thus able to afford only intermittent medical 18 care, she would have liked to review any more recent medical records 19 that were available. 20 kn[e]w [they] [we]re dealing with someone with several chronic 21 medical illnesses and obesity. 22 Plaintiff s RFC was highly equivocal: It sounds like she could do 23 light work, with decrease possible due to her obesity. The ALJ asked 24 no follow-up questions. [AR 304.] 25 Tonapetyan v. Halter, in which the Ninth Circuit held that the ALJ 26 failed properly to develop the record after the ME testified that the 27 medical evidence was confusing and that it was thus difficult to 28 discern whether the plaintiff was disabled. She noted that, because Plaintiff The ME further testified that, at most, she Her ultimate assessment of This case is thus analogous to 11 See 242 F.3d at 1150-51. 1 Given the ME s equivocal assessment of Plaintiff and the 2 undisputed severity of her impairments, the appropriate course would 3 be to order consultative examination to properly assess what Plaintiff 4 remains able to do and to hold supplemental administrative proceedings 5 as necessary. See 20 CFR §§ 404.1519a, 416.919a; Reed v. Massanari, 6 270 F.3d 838, 842 (9th Cir. 2001); Carillo Marin v. Sec y of Health 7 and Human Services, 758 F.2d 14, 17 (1st Cir. 1985)( [I]f the 8 Secretary is doubtful as to the severity of [a plaintiff s] disorder 9 the appropriate course is to request a consultative examination. ). 10 F. REMAND FOR FURTHER PROCEEDINGS 11 The decision whether to remand for further proceedings is within 12 the discretion of the district court. 13 1175-1178 (9th Cir. 2000). 14 further proceedings, or where the record has been fully developed, it 15 is appropriate to exercise this discretion to direct an immediate 16 award of benefits. 17 remand for further proceedings turns upon their likely utility). 18 However, where there are outstanding issues that must be resolved 19 before a determination can be made, and it is not clear from the 20 record that the ALJ would be required to find the claimant disabled if 21 all the evidence were properly evaluated, remand is appropriate. 22 Harman v. Apfel, 211 F.3d 1172, Where no useful purpose would be served by Harman, 211 F.3d at 1179 (decision whether to Id. Here, as discussed above, the record is not insufficiently 23 developed and outstanding issues must be resolved before a 24 determination can be made. Thus, remand for further administrative 25 proceedings is appropriate. 26 Admin., 635 F.3d 1135, 1136 (9th Cir. 2011) (remand for automatic 27 payment of benefits inappropriate unless evidence unequivocally 28 establishes disability). See e.g., Strauss v. Comm r of Soc. Sec. 12 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 administrative 6 proceedings consistent with instructions set forth in the 7 body of the decision. 8 9 3. The Clerk of the Court shall serve this Decision and Order and the Judgement herein on all parties or counsel. 10 11 12 13 DATED: April 11, 2012 ________________________________ CARLA M. WOEHRLE United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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