Rosemary Garrett v. Michael J. Astrue, No. 5:2007cv00549 - Document 17 (C.D. Cal. 2008)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. Accordingly, the Commissioner's decision is REVERSED, and this case is remanded to the Commissioner for the payment of SSI to plaintiff. Judgment shall be entered in favor of Plaintiff and this action shall be dismissed with prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY. (mz)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ROSEMARY GARRETT, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the ) Social Security Administration, ) ) Defendant. ) ___________________________________) NO. EDCV 07-549-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on May 16, 2007, seeking review of the 19 denial by the Social Security Commissioner ( Commissioner ) of her 20 application for supplemental security income benefits ( SSI ). 21 parties filed a Joint Stipulation on December 11, 2007, in which: 22 Plaintiff seeks an order reversing the Commissioner s decision and 23 directing the immediate award of benefits; and Defendant requests that 24 the Commissioner s decision be affirmed or, in the alternative, a remand 25 for further proceedings be ordered. 26 consented to proceed before the undersigned United States Magistrate 27 Judge pursuant to 28 U.S.C. § 636(c). 28 Joint Stipulation under submission without oral argument. The On August 5, 2008, the parties The Court has taken the parties SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 Plaintiff claims to have been disabled since April 30, 2003. 3 4 (Administrative Record ( A.R. ) 254.) Plaintiff alleges that she is 5 disabled because of an injured leg, right hip and shoulder, dyslexia, 6 asthma, and a learning disability. 7 relevant work experience as an in-home care giver, a nurse s assistant, 8 and a person who collects signatures for petitions. (A.R. 231, 259.) She has past (A.R. 289.) 9 10 Plaintiff filed her application for SSI on July 15, 2003. (A.R. 11 13.) The Commissioner denied Plaintiff s claim initially on December 9, 12 2003, and upon reconsideration on January 9, 2004. 13 and March 2, 2005, Plaintiff, who was represented by counsel, testified 14 at a hearing before Administrative Law Judge Mason D. Harrell ( ALJ ). 15 (A.R. 138-224.) 16 (A.R. 230-41.) (Id.) On January 5 On March 24, 2005, the ALJ denied Plaintiff s claim. 17 18 Plaintiff sought review by the Appeals Council, which remanded the 19 case because segments of the oral hearing tape were partially inaudible, 20 and therefore, the record was incomplete. (A.R. 33-36.) 21 2006, at 22 represented by counsel, testified. 23 2006, the ALJ again denied Plaintiff s claim. 24 Appeals Council subsequently denied Plaintiff s request for review of 25 that decision. 26 /// 27 /// 28 /// the ALJ held another hearing, (A.R. 5-7.) 2 which (A.R. 103-37.) On October 3, Plaintiff, again On December 18, (A.R. 13-21.) The SUMMARY OF ADMINISTRATIVE DECISION 1 2 3 The ALJ found that Plaintiff had the following severe impairments: 4 (1) below average intelligence; (2) an unspecified learning disorder; 5 (3) a personality disorder with immature features; and (4) a history of 6 substance abuse currently in sustained remission since April 2003. 7 (A.R. 15.) He concluded that such impairments, however, did not meet or 8 medically equal the criteria of an impairment listed in 20 C.F.R. Part 9 40, Subpart P, Appendix 1, the Listing of Impairments. (Id.) 10 11 Based on the medical records and medical testimony, the ALJ found 12 that Plaintiff s severe impairments caused her: 13 activities of daily living; mild difficulties with social functioning; 14 and mild difficulties with concentration, persistence, and pace [with] 15 no evidence of decompensation of extended duration. 16 Additionally, the ALJ found that Plaintiff has the ability to do work 17 with the following non-exertional limitations: she is limited to simple 18 work in a normal or habituated work-setting, with up to three steps of 19 instruction; she is precluded from work involving reading or math over 20 the third grade level, but she can read simple signs and do simple 21 calculations; 22 requiring hypervigilance, a fast pace, high production, or working with 23 the public. and she is precluded from safety no limitations of (A.R. 15.) operations, jobs (A.R. 16.) 24 25 The ALJ further found that, for purposes of Step Four of the 26 Commissioner s five-step sequential analysis, Plaintiff can perform her 27 past relevant work as an in-home care provider if the job is available 28 as a day worker, and for purposes of Step Five, she can perform 3 1 additional jobs that exist in significant numbers in the national 2 economy, such as assembler of buttons, optical assembler, and sorter of 3 small produce. 4 Plaintiff is not disabled within the meaning of the Social Security Act. 5 (A.R. 21.) (A.R. 19-21.) Accordingly, the ALJ concluded that 6 7 STANDARD OF REVIEW 8 9 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 10 decision to determine whether it is free from legal error and supported 11 by substantial evidence in the record as a whole. 12 F.3d 625, 630 (9th Cir. 2007). 13 evidence as a reasonable mind might accept as adequate to support a 14 conclusion. 15 a mere scintilla but not necessarily a preponderance. 16 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)(citation omitted). 17 inferences from the record can constitute substantial evidence, only 18 those reasonably drawn from the record will suffice. 19 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted). Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. While Widmark v. 20 21 Although this Court cannot substitute its discretion for that of 22 the Commissioner, the Court nonetheless must review the record as a 23 whole, weighing both the evidence that supports and the evidence that 24 detracts from the [Commissioner s] conclusion. 25 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 26 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 27 responsible for determining credibility, resolving conflicts in medical 28 testimony, and for resolving ambiguities. 4 Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 1 1035, 1039-40 (9th Cir. 1995). 2 The Court will uphold the Commissioner s decision when the evidence 3 4 is susceptible to more than one rational interpretation. Burch v. 5 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 6 review only the reasons stated by the ALJ in his decision and may not 7 affirm the ALJ on a ground upon which he did not rely. 8 at 630; see also Connett, 340 F.3d at 874. 9 the Commissioner s decision if it is based on harmless error, which 10 exists only when it is clear from the record that an ALJ s error was 11 inconsequential to the ultimate nondisability determination. Robbins 12 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 13 Comm r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 14 F.3d at 679. However, the Court may Orn, 495 F.3d The Court will not reverse 15 16 DISCUSSION 17 18 Plaintiff alleges the following two issues: (1) did the ALJ 19 properly find that Plaintiff s condition does not meet the Listing of 20 Impairments; and (2) does the testimony of the vocational expert commend 21 reversal with an order to calculate benefits. 22 23 24 I. The ALJ s Finding That Plaintiff s Impairments Do Not Meet or Equal A Listing Is Not Supported By Substantial Evidence. 25 26 Conditions contained in the Listing of Impairments ( Listings ) are 27 considered so severe that they are irrebuttably presumed disabling, 28 without any specific finding as to the claimant s ability to perform his 5 1 past relevant work or any other jobs. Lester v. Chater, 81 F.3d 821, 2 828 (9th Cir. 1995)(emphasis added). 3 operate as a presumption of disability that makes further inquiry 4 unnecessary. 5 claimant shows that her impairments meet or equal a Listing, she will be 6 found presumptively disabled. The Listings were designed to Sullivan v. Zebley, 493 U.S. 521, 532 (1990). If a 20 C.F.R. §§ 416.925-416.926. 7 8 9 10 Plaintiff contends that the evidence establishes that she meets Listing 12.05C. In order to be considered disabled under Listing 12.05C, Plaintiff must show the following: 11 12 12.05 Mental Retardation: Mental retardation refers to 13 significantly subaverage general intellectual functioning with 14 deficits in adaptive functioning initially manifested during 15 the developmental period; i.e., the evidence demonstrates or 16 supports onset of the impairments before age 22. 17 18 19 The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied. 20 21 . . . . 22 23 C. A valid verbal, performance, or full scale IQ of 60 24 through 70 and a physical or other mental impairment imposing 25 an additional and significant work-related limitation of 26 function[.] 27 28 20 C.F.R. Part 404, Subpt. P, App. 1 § 12.05.C. 6 1 As noted above, the ALJ found that Plaintiff has severe mental 2 impairments, but concluded that they did not meet or equal a Listing. 3 The ALJ expressly based his conclusion that no Listing was satisfied on 4 the testimony of the medical expert, Dr. J. Malancharuvil (the ME ), at 5 the initial January 5, 2005 hearing prior to the Appeals Council s 6 remand.1 7 opinion evidence of record, I have given the greatest weight to the 8 ME s testimony.) 9 on his own summary, without citation to the record, of the ME s (A.R. 15, 111; see also A.R. 18, 19, noting that, as to the More precisely, the ALJ based his Step Three finding 10 testimony. (See A.R. 17.) The pertinent portions of the ME s January 11 2005 testimony are as follows: 12 13 The ME opined that Plaintiff did not meet any of the requirements 14 of the Listings and did not meet Listing 12.05C. 15 testified that his conclusion on this question was based upon the 16 October 1, 2003 opinion of a consultative examiner, Clifford Taylor, a 17 clinical psychologist,2 who performed a number of tests on Plaintiff. 18 (A.R. 19 reflected in the transcript, the ME s testimony was inaudible at 179; see A.R. 528-34, Dr. Taylor s (A.R. 176-77.) report.) Although, He as 20 21 22 23 24 25 1 The ME actually testified only once, i.e., at the January 2005 hearing. (A.R. 175-88.) With the agreement of Plaintiff s counsel, the ME appeared at the most recent (October 2006) hearing by telephone, and his sole testimony was a statement that the ALJ s original, vacated decision accurately set forth the ME s prior testimony. (A.R. 108, 111.) 26 2 27 28 The ALJ incorrectly describes Dr. Taylor as Plaintiff s primary treating physician. (A.R. 17.) In fact, Dr. Taylor performed a consultative examination of Plaintiff on one occasion only, at the request of the Commissioner. (A.R. 528.) 7 1 numerous points,3 it appears that the ME: 2 of a verbal IQ of 70, a performance IQ of 83, and a full-scale IQ of 74; 3 and opined that these and other test results are consistent with a 4 learning disability rather than an intellectual ability problem. 5 179, 183.) noted Dr. Taylor s findings (A.R. 6 7 When questioned by Plaintiff s counsel, the ME stated that, with IQ 8 testing, there is a margin of error of up to three to six points, so 9 that an IQ score of 70 could reflect a score as low as 64 or as high as 10 76, and that with all IQ tests, accuracy is always in a range. (A.R. 11 181-82.) 12 his verbal IQ assessment of Plaintiff to be valid, the ME asserted 13 that, as far as validity, Dr. Taylor said Plaintiff s IQ score is 14 an under-estimation of the actual ability. 15 then 16 testimony, 17 estimation then the [INAUDIBLE] to go about what is obtained by his 18 clinical judgment. When asked if the record indicated that Dr. Taylor had found questioned as about this transcribed, assertion, reads as (A.R. 182.) and follows: his The ME was somewhat It was an garbled under- (Id.) 19 20 In concluding that Plaintiff does not meet Listing 12.05C, the ALJ 21 expressly relied on the above-noted ME testimony. The ALJ characterized 22 the ME s testimony as establishing that Dr. Taylor said the score [of 23 3 24 25 26 27 28 The Court notes, and is troubled by, the fact that the ME s January 2005 testimony on this critical issue was inaudible in numerous respects. (See A.R. 179-83.) Significantly, the Appeals Council vacated the ALJ s prior decision and remanded specifically due to inaudibility problems with the January 2005 hearing recording, and expressly directed the ALJ to take any further action needed to complete the administrative record. (A.R. 35-36.) The ALJ, however, did not obtain updated and fully audible testimony from the ME and, instead, elected to rely on the ALJ s own description of that earlier, and partially inaudible, testimony. 8 1 70] was valid 2 intelligence. but an underestimation of [Plaintiff s] true (A.R. 15, 17.) 3 4 The threshold, critical flaw in the ALJ s analysis and in the ME s 5 testimony is their assertion that Dr. Taylor questioned the validity of 6 his verbal IQ assessment and opined that Plaintiff s verbal IQ score of 7 704 underestimated her verbal IQ -- a proposition that misstates the 8 record. 9 and Dr. Taylor performed a psychological evaluation of Plaintiff administered four tests to her as part of his consultative 10 examination: a Bender Visual-Motor Gestalt Test - Second Edition; Trail 11 Making Tests - Form A & B; Wechsler Adult Intelligence Scale - Third 12 Edition (WAIS-III); and Wechsler Memory Scale - Third edition (WMS-III). 13 (A.R. 528, 531.) 14 in separate, narrative sections. 15 discussion of the WMS-III test results, Dr. Taylor expressly opined that 16 the results appear to be valid and accurately reflect current levels of 17 memory 18 discussions of the other three tests results, he made no explicit 19 comment as to the accuracy of his findings. 20 outset of the conclusion/summary section of his report, Dr. Taylor 21 stated: 22 move quickly. 23 533.) and In his report, he discussed each of his test findings learning (A.R. 531-33.) abilities ; however, Within the narrative within (Id.) the narrative Subsequently, at the This claimant was in pain and was impulsive and appeared to The test scores are mildly below her ability. (A.R. Dr. Taylor, however, did not identify the test scores to which 24 25 26 27 28 4 Under the Commissioner s regulations, it is irrelevant that Plaintiff s scores on the other portions of the Wechsler test exceeded 70. 20 C.F.R. § 404, Subpart P, App. I, Section 12.00.D.6.c ( In cases where more than one IQ is customarily derived from the test administered, e.g., where verbal, performance, and full-scale IQs are provided in the Wechsler series, we use the lowest of these in conjunction with 12.05. ). 9 1 this comment pertained, nor did he explain the basis for this statement, 2 particularly in light of his seemingly inconsistent statements regarding 3 Plaintiff s cooperation and provision of adequate effort in connection 4 with her testing. (See A.R. 528, noting that Plaintiff was cooperative 5 and gave [an] adequate effort ; A.R. 530, noting that Plaintiff gave 6 minimal but adequate effort on the testing. ) 7 8 The ME s insinuation that the validity of Dr. Taylor s verbal IQ 9 assessment was undermined by his purported opinion that Plaintiff s 10 verbal IQ score of 70 underestimated her actual abilities is simply not 11 a fair or accurate description of the record. 12 the ME s inaccurate description of Dr. Taylor s opinion was neither 13 reasonable nor appropriate, particularly given the garbled, inaudible 14 nature 15 Therefore, this inaccurate proposition -- the primary basis upon which 16 the ALJ and the ME found that Listing 12.05C was not met -- does not 17 constitute substantial evidence. of the ME s testimony regarding The ALJ s acceptance of Dr. Taylor s findings. 18 19 Significantly, the ALJ did not expressly find that Dr. Taylor s 20 assessment of Plaintiff s verbal IQ score of 70 was not valid, and 21 made no express finding on this question. 22 reiterated the ME s above-noted inaccurate characterization of Dr. 23 Taylor s opinion5 as well as the ME s assertion that, in IQ testing, Instead, the ALJ simply 24 25 26 27 28 5 If, in the light of Dr. Taylor s statement that Plaintiff cooperated and performed adequately, the ALJ perceived Dr. Taylor s opinion regarding Plaintiff s verbal IQ score to be ambiguous based on Dr. Taylor s subsequent unexplicated allusion to unspecified test scores being mildly below her ability, the ALJ had the duty to ask Dr. Taylor to explain his ambiguous comment. See, e.g., 20 C.F.R. § 416.927(c)(3); Smolen v. Chater, 80 F.3d 1279, 1288 (9th Cir. 1996). That the ALJ did 10 1 there can be a margin of error of six points. 2 testimony does not constitute substantial evidence based upon which 3 Plaintiff s verbal IQ score of 70 can be called into question. 4 stated that all IQ testing is subject to potential margins of error and 5 accuracy is always in a range. 6 regulations nonetheless expressly base Listing 12.05C on IQ tests scores 7 within a particular, fixed numerical range, 8 regardless of any range of accuracy that may apply to such scores. 9 Plaintiff s verbal IQ score of 70 is within the specific IQ range 10 The ME s margin of error (A.R. 182.) The ME The Commissioner s i.e., 60 through 70, necessary to invoke Listing 12.05C.6 11 12 As the ALJ made no express invalidity finding and cited no 13 legitimate basis for questioning the validity of Dr. Taylor s assessment 14 of Plaintiff s verbal IQ score, the evidence of record is uncontradicted 15 that Plaintiff has been assessed with a valid verbal IQ score of 70. 16 Accordingly, Plaintiff has satisfied the first requirement of Listing 17 12.05C. 18 2008)(finding that, while an ALJ has the ability to decide that an IQ See Thresher v. Astrue, 2008 WL 2483377, *1 (9th Cir. June 19, 19 20 21 22 23 24 not do so gives rise to the presumption that he found no ambiguity and accepted the IQ score as valid. See Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989)(a reviewing court may draw specific and legitimate inferences from the ALJ s opinion if those inferences are there to be drawn ). In any event, even if the ALJ s mere unquestioning reiteration of the ME s inaccurate characterization of Dr. Taylor s opinion could be viewed as an implicit finding by the ALJ that Plaintiff s verbal IQ score is invalid (and the Court is highly dubious that doing so would be appropriate), any such implicit finding does not rest on substantial evidence and, thus, constitutes error. 25 6 26 27 28 Adoption of the ALJ s apparent margin of error theory for rejecting Plaintiff s verbal IQ score would mean that claimants with IQ scores between 65 and 70 would never meet Listing 12.05C, because given the margin of error, their actual IQ scores could exceed 70. Such an illogical result is directly contrary to the specific language of the Listing. 11 1 score is not valid, when an ALJ does not expressly find that an IQ score 2 is not valid and the score in the 60-70 range, it qualifies under 3 Listing 4 Cal Jan. 22, 2008)( the ALJ did not explicitly reject the validity of 5 claimant s new IQ score [of 68], so the Court must accept the score as 6 valid, and finding that, as a result, the first requirement of Listing 7 12.05C was satisfied).7 12.05C); see also Lewis v. Astrue, 2008 WL 191415, *4-*5 (N.D. 8 9 The second requirement of Listing 12.05C is that there be a 10 physical or mental impairment that imposes an additional and 11 significant work-related limitation of function. 12 Plaintiff has no physical impairments, but she has the severe mental 13 impairments of below average intelligence, an unspecified learning 14 disorder, and a personality disorder with immature features. (A.R. 15.) 15 The ALJ further found that, based on these severe mental impairments, 16 Plaintiff has the following non-exertional limitations: she is limited 17 to simple work in a normal or habituated work-setting, with up to three 18 steps of instruction; she is precluded from work involving reading or 19 math over the third-grade level, but she can read simple signs and do 20 simple calculations; and she is precluded from safety operations, jobs The ALJ found that 21 7 22 23 24 25 26 27 28 The Court rejects the Commissioner s argument (Joint Stip. at 7) that the first requirement of Listing 12.05C is not met, because Dr. Taylor characterized Plaintiff s intellectual functioning as borderline-to-low-average range (A.R. 530, 533) and did not explicitly describe her as mentally retarded. Dr. Taylor s finding that Plaintiff s verbal IQ score is 70 satisfies the first requirement of Listing 12.05C regardless of any language in his opinion diagnosing or otherwise describing Plaintiff s mental status. See Lewis, 2008 WL 191415, *5, *7 (finding that a verbal IQ score of 68, with an onset date before age 22, necessarily satisfies the first requirement of Listing 12.05C, even when no doctor had diagnosed the claimant with mental retardation and, in fact, the doctor performing the IQ tests had diagnosed her with borderline intellectual functioning and not mental retardation. ). 12 1 requiring hypervigilance, a fast pace, high production, or working with 2 the public. (A.R. 16.) 3 4 Numerous Circuits have found that an ALJ s finding of an additional 5 impairment that is severe ipso facto satisfies the second prong of 6 Listing 12.05C. 7 Cir. 2003); Nieves v. Sec y. of Health and Human Services, 775 F.2d 12, 8 14 (1st Cir. 1985); Castillo v. Barnhart, 2002 WL 31255158, *11-*12 9 (S.D.N.Y. 2002)(collecting and discussing cases). Indeed, some Circuits 10 have opined that a showing of an impairment that is less than severe may 11 be sufficient to satisfy the Listing s second prong. 12 Edwards v. Heckler, 736 F.2d 625, 630 (11th Cir. 1984). 13 Circuit has held that the test is whether, as to the additional 14 impairment, the effect on a claimant s ability is more than slight or 15 minimal. See, e.g., Markle v. Barnhart, 324 F.3d 182, 188 (3d Id.; see also The Ninth Fanning v. Bowen, 827 F.2d 631, 633 (9th Cir. 1987). 16 17 Here, the ALJ found at least one additional mental impairment, to 18 wit, Plaintiff s personality disorder with immature features, which is 19 severe for Step Two purposes. 20 severe, the ALJ necessarily concluded that this impairment has more 21 than a minimal effect on [Plaintiff s] ability to work. 22 F.3d at 1290 (citing Social Security Ruling 85-28 and Yuckert v. Bowen, 23 841 F.2d 303 (9th Cir. 1988)); see also 20 C.F.R. § 416.921(a) ( [a]n 24 impairment or combination of impairments is not severe if it does not 25 significantly limit your physical or mental ability to do basic work 26 activities. ); Social Security Rule 96-8p, 1996 WL 374184, *2 (a severe 27 impairment has more than a minimal effect on a claimant s ability to do 28 work). Moreover, as quoted above, the ALJ found that Plaintiff s severe By finding this impairment to be 13 Smolen, 80 1 impairments have resulted in a number of limitations on her ability to 2 work that clearly are more than slight or minimal. 3 result, under existing precedent, the second prong of Listing 12.05C 4 necessarily was satisfied by the ALJ s Step Two finding of the existence 5 of 6 otherwise was erroneous.8 this additional impairment. The ALJ s (A.R. 16.) apparent As a conclusion 7 Finally, Plaintiff was 20 years old at the time of Dr. Taylor s 8 9 October 1, 2003 assessment. (A.R. 528, 535.) This satisfies the 10 requirement in the first paragraph of Listing 12.05 that the evidence 11 demonstrates or supports onset of the impairment before age 22. 12 13 Accordingly, for the reasons set forth above, the ALJ s adverse 14 Step Three finding constitutes error. 15 warrants reversal.9 16 /// 17 /// 18 /// 19 This error was not harmless, and /// 20 21 22 23 24 25 26 27 28 8 The ALJ s decision does not clearly state a finding as to the second prong of Listing 12.05C. The Court rejects the Commissioner s apparent contention (Joint Stip. at 8) that the ALJ -- by opining that Plaintiff has only mild mental limitations, based on his conclusion that Plaintiff s testimony about her subjective symptoms, including physical pain, was not credible in the light of several of her normal life activities (A.R. 19) -- made an adverse finding as to the second prong of Listing 12.05C. Even if such a Step Three finding could be inferred from the ALJ s Step Four credibility assessment (and the Court is dubious that doing so would be appropriate), it would not comport with the standard established by the Ninth Circuit in Fanning, supra. 9 In Section III, the Court discusses the remedy warranted as a result of this reversible error. However, the Court first will address Plaintiff s second issue. 14 1 2 II. The ALJ s Reliance On The Vocational Expert s Testimony To Support A Finding That Plaintiff Is Not Disabled Was Error. 3 4 As described above, the ALJ found that Plaintiff has various non- 5 exertional limitations.10 6 seek the testimony of a vocational expert ( VE ) if the claimant has a 7 significant non-exertional limitation. 8 268 F.3d 824, 827-28 (9th Cir. 2001); Tackett v. Apfel, 180 F.3d 1094, 9 1101-02 (9th Cir. 1999); Desrosiers, 846 F.2d at 579. (A.R. 16.) An ALJ generally is required to See, e.g., Bruton v. Massanari, A hypothetical 10 posed to a VE must be accurate, detailed, [and] supported by the 11 record. 12 not reflect all of the claimant s limitations and/or is not supported by 13 the evidence of record, the VE s testimony has no evidentiary value. 14 Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993); Embrey v. Bowen, 15 849 F.2d 418, 422-23 (9th Cir. 1988); Gallant v. Heckler, 753 F.2d 1450, 16 1456 (9th Cir. 1984). Tackett, 180 F.3d at 1101. If the hypothetical to the VE does 17 18 19 Here, the ALJ posed two different hypotheticals to the VE. In the first hypothetical, the ALJ instructed the VE to assume the following: 20 21 Okay. Ms. Fioretti, the hypothetical that I m going to 22 give you is pretty much the same one I gave Ms. Porter. It 23 involves a 20, well, how about the age is really relevant, 24 someone with a ninth grade education who has the following 25 limitations: the individual would, would not, have problems 26 27 28 10 Non-exertional limitations are limitations which do not affect the claimant s ability to meet a job s strength demands. 20 C.F.R. § 416.969a(c). 15 1 with a normal or habitual supervision. Can handle being told, 2 this is your job. 3 it, check on it then correct it. 4 having a highly demanding supervision, where the supervisor 5 sits by her side. 6 three steps of instruction at one time. 7 reading, writing, or math above the third grade level. 8 simple signs, road signs and simple calculations are okay. 9 She d be Do it. And then have the supervisor check But she couldn t handle She would be limited to simple work, up to restricted from safety No requirements for operations, But couldn t be 10 responsible for the safety of others, could operate something 11 like a sewing machine okay, but no dangerous machinery like a 12 vehicle 13 operations 14 vigilance. No fast paced high production work like that, fast 15 pace and [INAUDIBLE]. 16 someone perform any [of] claimant s prior work? or where [there] involved. And are no more than three requirements steps for of hyper Now with those limitations,[11] could 17 18 (A.R. 123-24, the First Hypothetical. ) 19 with the limitations set forth in the First Hypothetical could perform 20 work as a day worker, an unskilled position involving medium work.12 21 (A.R. 126.) The VE responded that someone 22 23 The ALJ then posed a second hypothetical to the VE, adding further 24 25 11 testimony. These limitations were based (A.R. 177-78, 185-86.) on the ME s January 2005 26 12 27 28 After questioning Plaintiff, the VE concluded that her prior work had not been as a home care giver or home attendant but, in fact, was more limited, namely, it constituted work as a day worker. (A.R. 124-25.) 16 1 limitations13: 2 3 Okay. Okay. Let me, I m going to add, if the individual 4 gets fidgety after sitting an hour and would have to stand or 5 stretch one or two minutes every hour, could stand up to 45 6 minutes at a time, but and could lift about five pounds, and 7 can only bend occasionally. 8 it, would it eliminate that job that you identified as a day 9 worker? Now with those limitations would 10 11 (A.R. 128, the Second Hypothetical. ) Based on the added limitations 12 in the Second Hypothetical, the VE concluded that the job of a day 13 worker would be eliminated, but that a person with such limitations 14 would be able to perform assembly work, such as [an] assembler in 15 buttons and notions or an optical assembler. (A.R. 128-29.) 16 17 After the ALJ was finished questioning the VE, Plaintiff s counsel 18 posed a hypothetical based on the ALJ s Second Hypothetical, with 19 several limitations added14: 20 21 Let s assume you have the [ALJ s] second hypothetical first, 22 and in addition you have a person who is irritable and 23 impulsive, who has only fair concentration and memory. . . . 24 And, who[se] sustained concentration is moderately impaired. 25 26 13 testimony. These limitations (A.R. 147-49.) were based on Plaintiff s March 2005 27 14 28 These additional limitations were based upon Dr. Taylor s October 2003 opinion. (A.R. 136, 530, 531, 533.) 17 1 . . . And you have a person who is in the low average range 2 of visual motor integration as speed of visual processing. 3 4 (A.R. 133, the Third Hypothetical. ) Based on the additional 5 limitations set forth in the Third Hypothetical, the VE testified that 6 a claimant could not perform the assembly worker jobs she had identified 7 or, indeed, any jobs at all. 8 the cumulative effect would eliminate the labor market complete[ly]. ) 9 Upon re-questioning by the ALJ, the VE confirmed her opinion, observing 10 that these additional limitations indicated that the claimant would not 11 be productive for a significant part of the workday, which would 12 preclude the claimant from the labor market. (A.R. 134-35, noting all those factors, (A.R. 135-36.) 13 14 In his decision, at Step Four, the ALJ determined that Plaintiff 15 could perform her past relevant work as a day worker, based on the VE s 16 testimony in response to the First Hypothetical. (A.R. 19.) While such 17 a finding normally would end the sequential analysis, i.e., require a 18 finding of no disability, the ALJ, nonetheless, proceeded to Step Five. 19 The ALJ concluded that jobs exist in significant numbers in the national 20 economy which Plaintiff can perform, based on the VE s testimony in 21 response to the Second Hypothetical, namely, that a claimant with the 22 limitations 23 assembly jobs; the ALJ therefore found Plaintiff not disabled. 24 20-21.) The ALJ s decision ignored the Third Hypothetical, and the VE s 25 testimony in response to it, entirely. identified in that hypothetical could perform certain (A.R. (A.R. 13-21.) 26 27 The limitations set forth in the First Hypothetical were found by 28 the ME, who in turn premised his findings on the October 2003 report of 18 1 Dr. Taylor, the consultative examiner. 2 primary document that I relied on from a psychiatrist/psychological 3 point 4 evaluation with tests that s done October 1st 2003 by a Dr. Taylor who 5 gave her significant number of tests. ) 6 in the First Hypothetical, however, were based on a selective acceptance 7 of portions of Dr. Taylor s opinion. 8 finding that Plaintiff is irritable (A.R. 530), and the ALJ omitted this 9 limitation from the First Hypothetical. of view, is Exhibit 9F which (A.R. 179: the ME states, the is a detailed psychological The ME s conclusions set forth The ME ignored Dr. Taylor s The ME also rejected Dr. 10 Taylor s two additional findings (A.R. 531), i.e., that Plaintiff s 11 sustained concentration is moderately impaired and that she is in the 12 low average range of visual motor integration as speed of visual 13 processing. 14 had reached his own conclusions based on the test results, regardless of 15 whatever he [Dr. Taylor] said, and Plaintiff s abilities in these 16 respects are adequate, as she did very well with these tests. 17 191, 193.) 18 additional two limitations from the First Hypothetical. The ME stated that, with respect to these two findings, he (A.R. The ALJ, relying on the ME s conclusion, omitted these 19 20 The ALJ did not expressly reject the above-noted three limitations 21 set forth in Dr. Taylor s opinion that were ignored and/or expressly 22 rejected by the ME. 23 entitled to the greatest weight and by effectively adopting the ME s 24 testimony in all salient respects, the ALJ implicitly rejected Dr. 25 Taylor s opinion about 26 contrary opinion of 27 disregarding treating physicians opinions set forth in letters and 28 making contrary findings, the ALJ effectively rejected them ). However, by finding that the ME s opinion was these the ME. limitations See 19 and Smolen, instead 80 F.3d adopted at 1286 the (by The opinion of an examining physician is . . . entitled 1 2 to 3 physician. . . . 4 treating physician, the Commissioner must provide clear and 5 convincing reasons for rejecting the uncontradicted opinion 6 of an examining physician. . . . 7 treating doctor, the opinion of an examining doctor, even if 8 contradicted by another doctor, can only be rejected for 9 specific 10 greater and weight than the opinion of a nonexamining As is the case with the opinion of a legitimate And like the opinion of a reasons that are supported by substantial evidence in the record. . . . 11 12 Lester, 81 F.3d at 830 (citations omitted). 13 14 The opinion of a nonexamining physician cannot by itself 15 constitute substantial evidence that justifies the rejection of the 16 opinion of either an examining physician or a treating physician. 17 Lester, 81 F.3d at 831 (citation omitted; emphasis in original); see 18 also, e.g., Morgan v. Comm r of Social Sec. Admin., 169 F.3d 595, 600 19 (9th Cir. 1999); Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 20 1990); Gallant, 753 F.2d at 1454. 21 conclusion, with nothing more, does not constitute substantial evidence, 22 particularly in view of the conflicting observations, opinions, and 23 conclusions of an examining physician. 24 813, 818 n.7 (9th Cir. 1993)(citation omitted). 25 examining physician normally is entitled to less deference than that of 26 an examining physician, as the former has not had the opportunity to 27 conduct an independent examination of the claimant. 28 Comm r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)( the opinion of [T]he non-examining physicians 20 Erickson v. Shalala, 9 F.3d The opinion of a non- See, e.g., Ryan v. 1 an examining physician is entitled to greater weight than the opinion of 2 a nonexamining physician ); Andrews, 53 F.3d at 1041; Pitzer, 908 F.2d 3 at 506 n.4 ( the conclusion of a non-examining physician is entitled to 4 less weight than the conclusion of an examining physician ). 5 The opinions of non-examining physicians, including medical 6 experts, can constitute substantial evidence upon which an ALJ may rely 7 when they are supported by other evidence in the record and are 8 consistent with it. 9 Chater, 94 F.3d 520, 522 (9th Cir. 1996). In order to discount the of an Morgan, 169 F.3d at 600; see also Saelee v. 10 opinion examining 11 nonexamining 12 legitimate reasons that are supported by substantial evidence in the 13 record. Nguyen v. Chater, 100 F.3d 1462, 1466 (9th Cir. 1996)(emphasis 14 in original); see also Andrews, 53 F.3d at 1041 (when a nontreating 15 source s opinion contradicts that of the treating or examining physician 16 but is not based on independent clinical findings, or rests on clinical 17 findings also considered by the treating or examining physician, the 18 opinion of the treating or examining physician may be rejected only if 19 the ALJ gives specific, legitimate reasons for doing so that are based 20 on substantial evidence in the record ). medical physician advisor, the in favor ALJ must of the set opinion forth of a specific, 21 22 Under these standards, the ALJ s implicit rejection of Dr. Taylor s 23 opinion as to the three additional limitations and the ALJ s reliance, 24 instead, on the ME s opinion, standing alone, was improper. 25 above, the ME failed to address Dr. Taylor s finding of irritability. 26 The ME rejected Dr. Taylor s opinion about the other two limitations on 27 the ground that the ME drew different conclusions from Dr. Taylor s test 28 results than those drawn by Dr. Taylor. 21 As noted However, the ME had no clinical 1 data supporting in his opinion in this respect other than that generated 2 and relied on by Dr. Taylor. 3 medical evidence as Dr. Taylor, but simply drew a different conclusion 4 from it. Under the authorities cited above, given that the ME s opinion 5 contradicted that of Dr. Taylor, an examining physician, and lacked any 6 support apart from Dr. Taylor s findings, the ME s rejection of these 7 limitations on the basis that he drew a different conclusion cannot 8 constitute substantial evidence. 9 F.3d at 818 n.7. Put otherwise, the ME relied on the same Andrews, 53 F.3d at 1041; Erickson, 9 Moreover, and critically, the ALJ failed to set forth 10 any specific and legitimate reasons for rejecting Dr. Taylor s opinion 11 in this respect in favor of the ME s opinion.15 12 explicitly 13 limitations, and his failure to set forth specific and legitimate 14 reasons for crediting the ME over Dr. Taylor, constitutes error. 15 Nguyen, 100 F.3d at 1464-66. reject Dr. Taylor s opinion The ALJ s failure to regarding these three 16 17 Accordingly, the ALJ erred in omitting the three above-described 18 limitations from the First Hypothetical and the Second Hypothetical. As 19 both hypotheticals were incomplete, the VE s testimony in response to 20 each that jobs exist which Plaintiff can perform has no evidentiary 21 value. The ALJ s Step Four and Step Five findings, therefore, are not 22 23 24 25 26 27 28 15 The ALJ s mere recitation of the ME s stated grounds for discounting the second and third limitations was neither specific nor legitimate. The mere fact that the ME disagreed with the conclusions drawn by Dr. Taylor from the test data supplies no valid reason for the ALJ to reject Dr. Taylor s opinion about these limitations without discussion; rather, the ALJ was required to set forth a cogent explanation of why the ME should be believed in this respect rather than Dr. Taylor. The ALJ made no attempt to explain why the ME s after-thefact assessment of this data was better or entitled to more weight than the assessment made by the physician who actually examined Plaintiff and administered the subject tests. 22 1 supported by substantial evidence. This error is reversible. 2 3 III. Remand And Payment Of Benefits Is Appropriate. 4 5 As indicated above, the Court has found that multiple reversible 6 errors occurred. The question, therefore, is whether to remand this 7 case for further administrative proceedings or order an award of 8 benefits. 9 10 In the Ninth Circuit, the decision whether to remand for further 11 proceedings or order an immediate award of benefits is within the 12 district court s discretion. 13 (9th Cir. 2000). 14 determination of disability can be made, and it is not clear from the 15 record that the ALJ would be required to find the claimant disabled if 16 all the evidence were properly evaluated, remand is appropriate. Id. at 17 1179. 18 administrative proceedings, or when the record has been fully developed, 19 it is appropriate to exercise this discretion to direct an immediate 20 award of benefits. 21 proceedings turns upon the likely utility of such proceedings ); see 22 also Benecke v. McCarthy, 379 F.3d 587, 593 (9th Cir. 2004); Lester, 81 23 F.3d at 834; Smolen, 80 F.3d at 1292. 24 based on the dispositive error found in Section I. Harman v. Apfel, 211 F.3d 1172, 1175-78 When outstanding issues must be resolved before a However, when no useful purpose would be served by further Id. ( the decision of whether to remand for further The latter principle governs here 25 For the reasons set forth above, the ALJ erred in finding that 26 27 Plaintiff does not meet or equal Listing 12.05C. 28 that can be rectified through further 23 That error is not one administrative proceedings 1 following a remand to the Commissioner. As set forth above, substantial 2 evidence of record supports finding that Listing 12.05C applies; there 3 are no outstanding issues in this respect. Hence, under Listing 12.05C, 4 Plaintiff is presumed disabled, and as a result, she is entitled to 5 receive 6 Commissioner s regulations for the timing of the payment of SSI.16 SSI from her claimed onset date consistent with the 7 CONCLUSION 8 9 10 Accordingly, for the reasons stated above, the Commissioner s 11 decision is REVERSED, and this case is remanded to the Commissioner for 12 the payment of SSI to plaintiff. 13 Plaintiff and this action shall be dismissed with prejudice. Judgment shall be entered in favor of 14 15 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 16 copies of this Memorandum Opinion and Order and the Judgment on counsel 17 for Plaintiff and for Defendant. 18 19 LET JUDGMENT BE ENTERED ACCORDINGLY. 20 21 DATED: September 19, 2008 22 /s/ MARGARET A. NAGLE UNITED ST2ATES MAGISTRATE JUDGE 23 24 25 26 16 27 28 In view of the Court s conclusion that an award of benefits is warranted based on the applicability of Listing 12.05C, the Court need not, and does not, decide whether the VE-related error found in Section II also would warrant an award of benefits. 24

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