Laurence E Kramer v. Michael J Astrue, No. 2:2012cv05297 - Document 20 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman: (See document for details.) For the reasons stated above, the decision of the Social Security Commissioner is REVERSED and the action is REMANDED for further proceedings consistent with this opinion. (rla)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 WESTERN DIVISION 8 9 LAURENCE E. KRAMER, 10 Plaintiff, 11 v. 12 13 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-5297-MLG MEMORANDUM OPINION AND ORDER 16 17 I. 18 Plaintiff Background Laurence Kramer seeks judicial review of the 19 Commissioner s final decision denying his application for disability 20 insurance benefits ( DIB ). Plaintiff was born on September 14, 1949, 21 and was 59 years old at the time he filed his application for benefits. 22 (Administrative Record ( AR ) at 129.) He completed three years of 23 college and has relevant work experience as an architectural drafter, 24 project manager, teacher, and construction project manager. (AR at 27, 25 168, 171.) Plaintiff filed his DIB application on May 21, 2009, alleging 26 disability beginning April 9, 2006, due to bowel related problems, 27 diabetes, hip problems and high blood pressure. (AR at 79, 167.) 28 // 1 1 Plaintiff s application was denied initially on January 5, 2010. 2 (AR at 80-84.) An administrative hearing was held on January 25, 2011, 3 before 4 represented by counsel, testified, as did a vocational expert ( VE ). 5 (AR at 44-77.) Administrative Law Judge ( ALJ ) Zane A. Lang. Plaintiff, 6 On January 27, 2011, the ALJ issued an unfavorable decision. (AR at 7 20-28.) The ALJ found that the medical evidence established that 8 Plaintiff 9 diverticulitis, diabetes, and degenerative disc disease of the lumbar 10 spine. (AR at 22.) The ALJ determined that Plaintiff s impairments did 11 not meet, and were not medically equal to, one of the listed impairments 12 in 20 C.F.R., Part 404, Subpart P, Appendix 1. (AR at 24.) The ALJ 13 further found that Plaintiff retained the following residual functional 14 capacity 15 404.1567(b) with the following limitations: suffered ( RFC ) to from perform the following light work as severe impairments: defined in 20 C.F.R. 16 lifting and/or carrying 20 pounds occasionally and 10 pounds 17 frequently, standing and/or walking for 6 hours in an 8-hour 18 workday, and sitting for up to 6 out of 8 hours, with 19 occasional 20 balancing, stooping, kneeling, crouching, and crawling). performance of postural activities (climbing, 21 (Id.) 22 The ALJ concluded that Plaintiff was capable of performing his past 23 relevant work as a project manager, architectural drafter, teacher, and 24 construction project manager, and therefore Plaintiff was not disabled 25 within 26 416.920(f). (AR at 27.) the meaning of the Social Security Act. See 20 C.F.R. § 27 On April 10, 2012, the Appeals Council denied review. (AR at 1-4.) 28 Plaintiff then timely commenced this action for judicial review. On 2 1 January 14, 2013, the parties filed a Joint Stipulation ( Joint Stip. ) 2 of disputed facts and issues. Plaintiff contends that the ALJ erred by 3 failing to: (1) include in his hypothetical to the VE the mild mental 4 limitations that the ALJ found Plaintiff to suffer from; and (2) credit 5 the limitations assessed by the psychiatric consultative examiner. 6 (Joint Stip. at 3-4.) Plaintiff seeks reversal of the Commissioner s 7 decision and the payment of benefits or, in the alternative, remand for 8 a new administrative hearing. (Joint Stip. at 20-21.) The Commissioner 9 requests that the ALJ s decision be affirmed. (Joint Stip. at 21.) 10 After reviewing the parties respective contentions and the record 11 as a whole, the Court finds that the ALJ erred in failing to include 12 Plaintiff s mild mental limitations in the RFC assessment and in the 13 hypothetical posed to the VE. The matter will be remanded for further 14 proceedings consistent with this opinion.1 15 16 17 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 18 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 19 decision must be upheld unless the ALJ s findings are based on legal 20 error or are not supported by substantial evidence in the record as a 21 whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Batson v. 22 Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Parra 23 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means 24 such evidence as a reasonable person might accept as adequate to support 25 26 27 28 1 As noted above, Plaintiff also contends that the ALJ erred by failing to credit the limitations assessed by the psychiatric consultative examiner. The Court does not reach the remaining issue or decide whether this issue would independently warrant relief. The ALJ may wish to consider this issue upon remand. 3 1 a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark 2 v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a 3 scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 4 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial 5 evidence supports a finding, the reviewing court must review the 6 administrative record as a whole, weighing both the evidence that 7 supports 8 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 9 the evidence can support either affirming or reversing the ALJ s 10 conclusion, the reviewing court may not substitute its judgment for 11 that of the ALJ. Robbins, 466 F.3d at 882. and the evidence that detracts from the Commissioner s 12 13 III. Discussion 14 Plaintiff contends that the ALJ erred by failing to include 15 Plaintiff s mild mental limitations in the assessment of his RFC and in 16 the hypothetical posed to the VE at Step Four of the sequential 17 evaluation. (Joint Stip. at 4.) Although the ALJ found at Step Two of 18 the sequential evaluation that Plaintiff s mental impairment was not 19 severe, he did find that Plaintiff s medically determinable mental 20 impairment caused mild limitation in activities of daily living, social 21 functioning, and concentration, persistence, or pace .... (AR at 23- 22 24.) However, the ALJ did not include any mental limitations in his 23 assessment of Plaintiff s RFC. (AR at 24.) 24 The Social Security Regulations provide that the ALJ must consider 25 all 26 limitations are found to be non-severe. See 20 C.F.R. § 404.1545(a)(2) 27 ( We will consider all of your medically determinable impairments of 28 which we are aware, including your medically determinable impairments limitations when assessing a 4 claimant s RFC, even if those 1 that are not severe ... when we assess your residual functional 2 capacity. ). In a recent Ninth Circuit opinion directly on point, the 3 court held that the ALJ erred in failing to include the mild mental 4 limitations caused by the claimant s post-traumatic stress disorder 5 ( PTSD ) in the RFC assessment at Step Four and in the hypothetical to 6 the VE at Step Five, even where the ALJ found that the claimant s PTSD 7 was not a severe impairment. Hutton v. Astrue, ---Fed Appx. ---, 2012 WL 8 6040731, *1 (9th Cir. December 05, 2012).2 9 The Commissioner posits various reasons for rejecting Hutton, none 10 of which are persuasive. First, the Commissioner claims that this case 11 is controlled by Hoopai v. Astrue, 499 F.3d 1071 (9th Cir. 2007), 12 relying on that case for the proposition that an ALJ is not required to 13 include 14 assessment because those findings are relevant only to the issues of 15 severity and the listings. (Joint Stip. at 9.) However, Hoopai is 16 inapplicable to this case because Hoopai merely holds that satisfaction 17 of the Step Two threshold of severity is not dispositive of the Step 18 Five determination of whether the claimant can perform other work in the 19 economy. Id. at 1076. Hoopai is silent on the matter at issue here, 20 whether the ALJ must include mild mental limitations in his assessment 21 of a claimant s RFC. 22 Hutton. mild limitations found at Step Two in a claimant s RFC This issue, however, is directly addressed by 23 The Commissioner also seeks to limit Hutton to its specific facts 24 by arguing that the court only granted relief because the ALJ also made 25 other compounding errors, such as improperly discrediting the 26 27 28 2 Although unpublished Ninth Circuit decisions are not precedent, they are nevertheless citable in accordance with Fed.R.App.P. 32.1 and Ninth Circuit Rule 36-3. 5 1 claimant s testimony, the treating physicians opinions, and the VA s 2 disability rating. (Joint Stip. at 11-12.) However, the Hutton court 3 specifically stated that it was not bas[ing] [its] action ... on any of 4 these determinations by the ALJ. 2012 WL 6040731, *1. Rather, the court 5 clearly stated that the ALJ committed legal error by failing to include 6 Hutton s PTSD in his assessment of Hutton s RFC analysis at Step Four 7 and in his hypotheticals to the vocational expert at Step Five, id., 8 regardless of any other additional errors made by the ALJ. 9 The Commissioner also contends that because the ALJ found 10 Plaintiff s allegations of decreased memory and concentration not fully 11 credible, he was therefore not required to include the mild mental 12 limitations in his RFC assessment or in the hypothetical to the VE. 13 (Joint Stip. at 8, 10.) However, the Hutton court rejected a similar 14 argument, concluding that, while the ALJ was free to reject Hutton s 15 testimony as not credible, there was no reason for the ALJ to disregard 16 his 17 limitations in the areas of concentration, persistence, or pace. 2012 18 WL 6040731, *1. Thus, the ALJ was required to include the mild mental 19 limitations he found in the RFC assessment and in the hypothetical to 20 the VE, regardless of whether the ALJ doubted Plaintiff s claim that he 21 had a mental impairment. Id. own finding that Hutton s nonsevere PTSD caused some mild 22 Accordingly, the ALJ erred in failing to include the mild 23 limitations with respect to concentration, persistence or pace in his 24 assessment of Plaintiff s RFC and in the hypothetical he posed to the 25 VE. Id. 26 // 27 // 28 // 6 1 2 IV. Conclusion For the reasons stated above, the decision of the Social Security 3 Commissioner is REVERSED and the action 4 is REMANDED for further proceedings consistent with this opinion. 5 6 DATED: January 22, 2013 7 8 9 ______________________________ Marc L. Goldman United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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