Victor M Herrera v. Michael J Astrue, No. 5:2008cv00586 - Document 22 (C.D. Cal. 2009)

Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman; IT IS ORDERED that plaintiffs request for relief be granted, and the Commissioner shall award Title II disability benefits to plaintiff under 42 U.S.C. § 423. See order for details. (jy)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 VICTOR M. HERRERA, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) No. EDCV 08-0586-RC OPINION AND ORDER 17 18 Plaintiff Victor M. Herrera filed a complaint on May 8, 2008, 19 seeking review of the Commissioner s decision denying his application 20 for disability benefits. 21 answered the complaint, and the parties filed a joint stipulation on 22 December 15, 2008. On October 20, 2008, the Commissioner 23 24 BACKGROUND 25 I 26 On September 11, 2002, plaintiff applied for disability insurance 27 benefits under Title II of the Social Security Act ( Act ), 42 U.S.C. 28 § 423, claiming an inability to work since April 1, 1997, due to neck, 1 back, and waist problems. Certified Administrative Record ( A.R. ) 2 57-59, 78. 3 October 25, 2002, and was again denied on December 3, 2002, following 4 reconsideration. 5 administrative hearing, which was held on July 17, 2003, before 6 Administrative Law Judge Norman Buls ( ALJ Buls ). 7 On October 24, 2003, ALJ Buls issued a decision finding plaintiff is 8 not disabled, A.R. 14-25, and the Appeals Council denied review of the 9 decision on April 19, 2004. The plaintiff s application was initially denied on A.R. 33-42. The plaintiff then requested an A.R. 43, 249-68. A.R. 3-7. 10 11 On June 18, 2004, plaintiff filed his first complaint seeking 12 review of the Commissioner s decision denying his application for 13 disability benefits, Herrera v. Barnhart, EDCV 04-0732-RC ( Herrera 14 I ),1 and on July 20, 2005, this Court remanded the matter to the 15 Social Security Administration ( S.S.A. ) pursuant to 42 U.S.C. 16 § 405(g), sentence four. 17 that the evidence is ambiguous as to when plaintiff s condition 18 became disabling; however, it is clear that plaintiff s degenerative 19 spinal condition predates his last insured date. 20 Accordingly, the case was remanded so the ALJ [can] create a record 21 which forms a basis for th[e] onset date. 22 responsibility by calling a medical expert or where medical testimony 23 is unhelpful, explor[e] lay evidence[,] including the testimony of 24 family, friends, or former employers to determine the onset date. 25 A.R. 438 (citation and footnote omitted). A.R. 427-38. In so doing, this Court found A.R. 434. The ALJ can fulfill this 26 27 28 1 Pursuant to Fed. R. Evid. 201, this Court takes judicial notice of relevant documents in Herrera I. 2 1 Following remand, the Appeals Council remanded the matter for 2 further administrative proceedings and ordered the administrative law 3 judge to consider whether plaintiff s Title II application should be 4 consolidated with his subsequent application for Supplemental Security 5 Income ( SSI ) disability benefits. 6 September 7, 2006, ALJ John W. Belcher ( the ALJ ) held a new 7 administrative hearing. 8 issued a decision finding plaintiff is not disabled. 9 The plaintiff sought review from the Appeals Council, which on 10 March 28, 2008, granted review of the denial of plaintiff s SSI 11 application,2 as well as a later favorable determination, A.R. 269-73, 12 279-84, and on March 31, 2008, denied review of the denial of 13 plaintiff s Title II application. 14 requests this Court review the Commissioner s denial of his 15 application for Title II disability benefits. A.R. 440, 630-32. A.R. 307-51. On On December 22, 2006, the ALJ A.R. 274-78. A.R. 291-301. The plaintiff now 16 17 18 19 II This Court set forth the following relevant factual findings in Herrera I: 20 21 22 23 24 25 26 27 28 2 Since plaintiff s claim for SSI benefits remains before the Appeals Council, plaintiff has not exhausted his administrative remedies regarding that claim and the ALJ s decision to deny plaintiff SSI benefits is not final. Thus, this Court lacks subject matter jurisdiction to review the ALJ s denial of SSI benefits to plaintiff. See Califano v. Sanders, 430 U.S. 99, 108, 97 S. Ct. 980, 986, 51 L. Ed. 2d 192 (1977) (42 U.S.C. § 405(g) clearly limits judicial review to a particular type of agency action, a final decision of the [Commissioner] made after a hearing. ). Although the Commissioner may waive the requirement that administrative remedies be exhausted, Bass v. Soc. Sec. Admin., 872 F.2d 832, 833 (9th Cir. 1989) (per curiam), he has not done so here. 3 1 2 The plaintiff, who was born on March 10, 1954, is currently 3 [55] years old. 4 previously worked as a painter, upholsterer and carpenter. 5 [¶] 6 initially injuring his back in the 1980s. 7 1997, and September 20, 2002, plaintiff received treatment 8 from Feliciano Reyes, M.D., who diagnosed him with a 9 cervical sprain, among other conditions. He has a ninth-grade education, and has The plaintiff has a long history of back pain, Between June 20, A lumbar spine CT 10 scan taken June 25, 1997, revealed broadbased 11 circumferential disc protrusion at L3-L4, without focal 12 protrusion, and degenerative changes in the apophyseal 13 joints leading to mild foraminal encroachment at L5-S1. 14 lumbar spine CT scan taken September 5, 2002, revealed a 15 bulging disc at L4-5 and a disc protrusion centrally at L5- 16 S1. 17 Victor Valley Community Hospital on March 20, 1998, revealed 18 degenerative disc disease at C3-4, C4-5, and C5-6, with a 19 small posterior osteophyte encroaching upon the central 20 canal at C5-6, and mild anterior spurring of L3-L5. 21 Cervical spine x-rays taken at the same facility a year 22 later, on February 26, 1999, showed mild disc space 23 narrowing at C4-5, C5-6, and C6-7, with facet spurring. 24 On July 16, 1998, Rajiv Puri, M.D., an orthopedic surgeon, 25 examined plaintiff and diagnosed him with a herniated lumbar 26 disc, degenerative lumbosacral spine arthritis, and cervical 27 spine arthritis. 28 taken July 22, 1998, demonstrated mild disc space narrowing [¶] A Cervical and lumbosacral spine x-rays taken at [¶] Cervical and lumbosacral spine x-rays 4 1 at C5-6, with associated anterolateral and posterolateral 2 spurring and the suggestion of early arthritic changes 3 involving the facet joints at L5-S1 bilaterally. 4 spine MRI obtained August 13, 1998, showed mild degenerative 5 changes of the lumbar spine, with straightening of the 6 lumbar lordosis, which could be caused by muscle spasm. 7 August 17, 1998, Dr. Puri referred plaintiff for physical 8 therapy. 9 diagnosis to include degenerative arthritis in the cervical A lumbar On On February 15, 1999, Dr. Puri revised his 10 and lumbosacral spine. [¶] . . . [¶] Starting on or about 11 November 8, 2001, Arthur E. Jimenez, M.D., began treating 12 plaintiff for herniated cervical and lumbar discs. 13 October 22, 2002, Dr. Jimenez opined that plaintiff: is 14 limited to lifting or carry less than 10 pounds occasionally 15 or frequently; can stand and/or walk for less than 2 hours 16 in an 8-hour day; can sit for less than 6 hours in an 8-hour 17 day; can occasionally climb, balance, stoop, kneel, crouch, 18 or crawl; and is limited in his ability to work at heights 19 or around moving machinery as well as to work at temperature 20 extremes. 21 alternate standing and sitting, and he needs a cane to walk 22 if he walks over 2 miles. 23 opined plaintiff: 24 and/or walk for approximately 5-10 minutes in an 8-hour day; 25 can occasionally twist, stoop, crouch and climb; has 26 problems handling, fingering, feeling, and pushing or 27 pulling; needs the opportunity to change positions at will, 28 and can only sit or stand for 10 minutes before having to On Dr. Jimenez further opined plaintiff needs to On June 5, 2003, Dr. Jimenez can lift less than 10 pounds; can stand 5 1 walk for 10 minutes. Dr. Jimenez further opined plaintiff 2 must lie down for 20-30 minute intervals at unpredictable 3 times during the day. 4 should avoid all exposure to hazards, even moderate exposure 5 to extreme cold or fumes, and concentrated exposure to 6 extreme heat, humidity and noise. 7 that plaintiff is unable to perform any duties at this 8 time. Finally, Dr. Jimenez found plaintiff Dr. Jimenez concluded 9 10 A.R. 428-31 (Herrera I at 2:17-5:16 (footnotes and citations 11 omitted)). 12 13 After this Court s remand, further medical evidence was obtained, 14 showing: On February 10 and 11, 2004, plaintiff was treated in the 15 emergency room at Loma Linda University Medical Center ( Loma Linda ) 16 for an acute exacerbation of his chronic low back pain, and he was 17 provided Toradol3 and recommended to attend a pain clinic. 18 49. 19 and spondylosis with disc dessication from L2-L3 through L4-L5, a tiny 20 left paracentral disc protrusion, without significant impingement, and 21 fluid in the facet joints at L5-S1, suggesting inflammatory changes. 22 A.R. 538. 23 dislocation in the lumbar spine, minimal degenerative disc disease and 24 facet arthritis, minimal degenerative listhesis and minimal sacroiliac 25 arthritis. A.R. 536- A lumbar spine MRI showed multilevel degenerative disc disease Lumbar spine x-rays showed no evidence of acute fracture or A.R. 547. 26 27 28 3 Toradol, an nonsteroidal anti-inflammatory drug, is used to relieve moderately severe, acute pain. The PDR Family Guide to Prescription Drugs, 687 (8th ed. 2000). 6 1 On March 28, 2004, Warren David Yu, M.D., an orthopedic surgeon, 2 examined plaintiff and diagnosed him as having cervical neck pain with 3 underlying spondylosis, low back pain with underlying degeneration, 4 and bilateral carpal tunnel syndrome. 5 rays showed moderate multilevel spondylosis from C3 to C7, with 6 straightening and reversal of the cervical lordosis and degenerative 7 anterior spurring. A.R. 552-53. A.R. 550-53. Cervical spine x- Dr. Yu opined plaintiff: 8 9 should be able to walk without an assistance device. He 10 should be able to sit, stand or walk for up to six hours in 11 an eight-hour day with appropriate breaks. 12 occasionally be allowed to pick up 20 pounds, and less than 13 10 pounds frequently. 14 the upper extremities for pushing, pulling, fine finger 15 motor movements and handling. 16 occasional squatting, stooping, kneeling, crawling, climbing 17 or bending. He should He should have only frequent use of He should be limited to only 18 19 A.R. 553. 20 21 On May 1, 2005, Dr. Yu reexamined plaintiff and diagnosed 22 plaintiff as having myofascial neck and back pain with underlying 23 degenerative changes and mild bilateral carpal tunnel syndrome. 24 574-77. 25 mild degenerative spurring of the lumbar spine. 26 opined as he did in 2004 regarding plaintiff s RFC, but offered no 27 opinion regarding plaintiff s ability to squat, stoop, kneel, crawl, 28 climb or bend. A.R. Lumbosacral spine x-rays were unremarkable, showing only Id. 7 A.R. 577. Dr. Yu On July 19, 2004, Emmanuel P. Katsaros, D.O., examined plaintiff 1 2 at Loma Linda and diagnosed him as having: 3 degenerative disc disease, without cord compression or radiculopathy 4 and with secondary lumbar strain with loss of spinal curvature and 5 weakness of the lumbar paraspinal muscles; neck degenerative disc 6 disease and degenerative joint disease; generalized osteoarthritis; 7 and carpal tunnel syndrome with documented neuropathy. 8 Dr. Katsaros recommended plaintiff try conservative treatment, such as 9 hot packs and physical and water aerobic therapy, and recommended a 10 pain clinic. lumbosacral spine A.R. 616-20. A.R. 619-20. 11 On May 24, 2006, Dr. Jimenez opined that because of plaintiff s 12 13 cervical and lumbar degenerative disc disease and carpal tunnel 14 syndrome, plaintiff: 15 stand and/or walk less than 2 hours in an 8-hour day; can sit less 16 than 2 hours in an 8-hour day; can never twist, stoop, crouch and 17 climb stairs or ladders; has problems reaching, handling, fingering, 18 feeling, and pushing or pulling; needs to change positions from 19 sitting or standing at will; can only sit for 10 minutes and stand for 20 15 minutes before changing positions; must walk every 10 minutes for 21 at least 30 minutes; needs to lie down twice a day; and should avoid 22 all exposure to hazards and extreme cold, wetness, humidity, noise and 23 fumes. 24 condition would cause him to be absent from work more than three times 25 a month. 26 // 27 // 28 // A.R. 622-24. can frequently lift less than 10 pounds; can Finally, Dr. Jimenez concluded plaintiff s A.R. 624. 8 1 On August 28, 2006, Edward T. Gallegos, M.D.,4 opined plaintiff: 2 can frequently lift 10 pounds; can stand and/or walk about 2 hours in 3 an 8-hour day; can sit less than 2 hours in an 8-hour day; can 4 occasionally twist, stoop, crouch and climb stairs, but never climb 5 ladders; has no problems reaching, handling, fingering or pushing/ 6 pulling, but does have a problem feeling, due to arthralgia in both 7 wrists and the left elbow; must avoid all exposure to hazards and even 8 moderate exposure to extreme cold and heat, wetness, humidity, noise 9 and fumes; needs the opportunity to change positions at will; can only 10 sit for 20 minutes and stand for 15 minutes at a time before having to 11 walk for 15 minutes; and must lie down about 7 times per day at 12 unpredictable intervals. 13 that plaintiff s impairments would never cause him to be absent from 14 work. A.R. 627-29. Dr. Gallegos further opined A.R. 629. 15 16 Medical expert Dr. Joseph Jensen testified at the 2006 17 administrative hearing, opining plaintiff has moderate cervical and 18 lumbar degenerative disc disease with multiple level spondylosis and 19 degenerative arthritis, hyperlipidemia and hyperthyroidism. A.R. 314- 20 21 22 23 24 25 26 27 28 4 At the administrative hearing, plaintiff produced Dr. Gallegos s business card and testified Dr. Gallegos has treated him about four times over the past year for his bad back and neck. A.R. 323-26. Additionally, plaintiff identified Dr. Gallegos as a physician who treated him in 2006, and who prescribes Gabapentin to him. See A.R. 498-99. Thus, Dr. Gallegos should be considered one of plaintiff s treating physicians. See Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (physician who saw claimant five times in three years for treatment was treating physician); Ghokassian v. Shalala, 41 F.3d 1300, 1303 (9th Cir. 1994) (physician who saw claimant twice within a 14-month period and prescribed medication to him was treating physician). 9 1 35. These conditions, according to Dr. Jensen, would cause plaintiff 2 to have a significant limitation in the workplace. . . . 3 Based on plaintiff s conditions, Dr. Jensen opined plaintiff: A.R. 321. 4 5 [could] lift[] and carry[] . . . a maximum of 20 pounds on 6 [an] occasional[] basis or 10 pounds frequently[;] [could] 7 stand[] and walk[] . . . up to four hours in an eight hour 8 day[;] [could sit] six hours in an eight hour day with the 9 usual breaks[;] . . . could manage occasionally, stairs, 10 ramps, but no ladders, ropes or scaffolding[;] could 11 occasionally balance, bend, stoop, kneel [and] crawl[;] . . 12 . would be precluded from constant gross and fine 13 manipulation, but could perform this bilaterally on a 14 frequent basis[;] . . . could occasionally reach above 15 shoulder level with both shoulders [and occasionally 16 perform] pedal operation bilaterally[;] . . . would be 17 probably . . . preclu[ded] from constant exposure to the 18 extremes of dampness and coldness . . . [;] [and] . . . 19 should avoid hazardous heights or dangerous machinery. . . . 20 21 A.R. 322-23. Finally, Dr. Jensen opined plaintiff s limitations have 22 in all likelihood existed for the entire period of 1997 to the 23 present. A.R. 326. 24 25 DISCUSSION 26 III 27 28 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner s decision denying plaintiff disability 10 1 benefits to determine if his findings are supported by substantial 2 evidence and whether the Commissioner used the proper legal standards 3 in reaching his decision. 4 Cir. 2009); Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). Vasquez v. Astrue, 572 F.3d 586, 591 (9th 5 6 As this Court found in Herrera I, plaintiff was last insured 7 under Title II on December 31, 1999, and plaintiff has the burden to 8 prove he was either permanently disabled or subject to a condition 9 that became so severe as to disable him prior to that date. A.R. 433 10 (citing Armstrong v. Comm r of the Soc. Sec. Admin., 160 F.3d 587, 589 11 (9th Cir. 1998); Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996)). 12 The claimant is disabled for the purpose of receiving benefits under 13 the Act if he is unable to engage in any substantial gainful activity 14 due to an impairment which has lasted, or is expected to last, for a 15 continuous period of at least twelve months. 16 § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). 42 U.S.C. 17 18 Regulations promulgated by the Commissioner establish a five-step 19 sequential evaluation process to be followed by the ALJ in a 20 disability case. 21 must determine whether the claimant is currently engaged in 22 substantial gainful activity. 23 the Second Step, the ALJ must determine whether the claimant has a 24 severe impairment or combination of impairments significantly limiting 25 him from performing basic work activities. 26 If so, in the Third Step, the ALJ must determine whether the claimant 27 has an impairment or combination of impairments that meets or equals 28 the requirements of the Listing of Impairments, 20 C.F.R. § 404, 20 C.F.R. § 404.1520. In the First Step, the ALJ 20 C.F.R. § 404.1520(b). 11 If not, in 20 C.F.R. § 404.1520(c). 1 Subpart P, App. 1. 20 C.F.R. § 404.1520(d). If not, in the Fourth 2 Step, the ALJ must determine whether the claimant has sufficient 3 residual functional capacity despite the impairment or various 4 limitations to perform his past work. 5 not, in Step Five, the burden shifts to the Commissioner to show the 6 claimant can perform other work that exists in significant numbers in 7 the national economy. 20 C.F.R. § 404.1520(f). If 20 C.F.R. § 404.1520(g). 8 9 Applying the five-step sequential evaluation process, the ALJ 10 found plaintiff has not engaged in substantial gainful activity since 11 April 1, 1997, the alleged onset date. 12 found plaintiff has the severe impairments of degenerative disc 13 disease of the lumbar and cervical spine and bilateral carpal tunnel 14 syndrome[,] 5 (Step Two); but plaintiff does not have an impairment or 15 combination of impairments that meets or equals a Listing. 16 Three). 17 relevant work. 18 plaintiff can perform a significant number of jobs in the national 19 economy; therefore, he is not disabled. (Step One). The ALJ then (Step The ALJ next determined plaintiff cannot perform his past (Step Four). Finally, the ALJ concluded that (Step Five). 20 5 21 22 23 24 25 26 27 28 The ALJ also found plaintiff does not have a severe mental impairment, noting: There is no evidence of a longitudinal history of a psychiatric impairment, of repeated hospitalizations, or of prolonged outpatient treatment that has lasted or is expected to last for 12 continuous months. The [plaintiff] has neither required nor received extensive psychiatric treatment other than the use of mild antidepressant medication, which he stated he first began taking approximately 10 days prior to the [2006] hearing. A.R. 296. 12 1 IV 2 A claimant s residual functional capacity ( RFC ) is what he 3 can still do despite his physical, mental, nonexertional, and 4 other limitations. 5 2001); see also Valentine v. Comm r Soc. Sec. Admin., 574 F.3d 685, 6 689 (9th Cir. 2009) (The RFC is a summary of what the claimant is 7 capable of doing (for example, how much weight he can lift). ). 8 the ALJ found plaintiff has the RFC to perform a limited range of 9 light work,6 as follows: Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. Here, 10 11 [plaintiff can] lift and/or carry 10 pounds frequently and 20 12 pounds occasionally. 13 can stand and/or walk for 4 hours and sit for 6 hours with the 14 ability to change positions during the normal workday breaks. 15 Nonexertional limitations include occasional climbing stairs, 16 bending, stooping, crouching, kneeling, crawling, and reaching 17 above shoulder level with the bilateral upper extremities. 18 [plaintiff] cannot: balance; climb ladders, ropes, or scaffolds; 19 or walk on extremely uneven ground (i.e., plowed fields). 20 must avoid constant exposure to extremely hot or cold 21 environments and cannot work at unprotected heights or around 22 dangerous, moving machinery. Out of an 8-hour period, the [plaintiff] The He With the bilateral hands, the 23 6 24 25 26 27 28 Under Social Security regulations, [l]ight work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. 20 C.F.R. § 404.1567(b). 13 1 [plaintiff] can frequently fine finger/manipulate as well as 2 engage in power, forceful gripping, torquing, and twisting. 3 can occasionally power grip and twist with the bilateral hands 4 and occasionally use foot controls with the bilateral lower 5 extremities. He 6 7 A.R. 297. However, plaintiff contends the ALJ s RFC finding, as well 8 as the Step Five determination, are not supported by substantial 9 evidence because, among other reasons, the ALJ did not properly 10 consider the opinions of his treating physicians, Drs. Jimenez and 11 Gallegos.7 12 is correct. Jt. Stip. at 5:20-27, 10:13-12:7, 14:13-17. The plaintiff 13 14 The medical opinions of treating physicians are entitled to 15 special weight because the treating physician is employed to cure and 16 has a greater opportunity to know and observe the patient as an 17 individual. 18 Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 19 1999). 20 for rejecting the uncontroverted opinion of a treating physician, Ryan 21 v. Comm r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008), and 22 [e]ven if [a] treating doctor s opinion is contradicted by another 23 doctor, the ALJ may not reject this opinion without providing 24 specific and legitimate reasons supported by substantial evidence in 25 the record. Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987); Therefore, the ALJ must provide clear and convincing reasons Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998); 26 27 28 7 Although Dr. Jimenez offered opinions regarding both plaintiff s physical and mental limitations, this discussion addresses only plaintiff s physical limitations. 14 1 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 2 3 On October 22, 2002, and again on June 5, 2003, Dr. Jimenez 4 opined plaintiff was severely limited in his ability to perform work- 5 related activities. 6 Dr. Jimenez opined plaintiff is unable to perform any duties at all. 7 A.R. 235. 8 support a finding plaintiff was not disabled prior to his date last 9 insured, stating: A.R. 206-09, 233-35. Indeed, on June 5, 2003, The ALJ found Dr. Jimenez s 2002 and 2003 opinions do not 10 11 Dr. Jimenez s opinion that the claimant was disabled cannot 12 be [used to] infer[] that the [plaintiff s] impairments were 13 disabling some time prior to the date last insured of 14 December 31, 1999, and the totality of the record does not 15 support a finding of disabled on or before the date last 16 insured. 17 18 A.R. 297. Apart from the fact that the first clause of this statement 19 makes no sense without editing, the statement, as a whole, is not a 20 specific and legitimate reason for rejecting Dr. Jimenez s opinions 21 since it is conclusory and does not identify the parts of the record 22 supposedly supporting the conclusion.8 See Regennitter v. Comm r of 23 24 25 8 This Court in Herrera I held the ALJ erred in not finding Dr. Jimenez s opinions relevant to determine when plaintiff s disability commenced, noting: 26 27 28 medical evaluations made after the expiration of a claimant s insured status are relevant to an evaluation of the preexpiration condition. Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995) (quoting Smith v. 15 1 the Soc. Sec. Admin., 166 F.3d 1294, 1299 (9th Cir. 1999) 2 ( [C]onclusory reasons will not justify an ALJ s rejection of a 3 medical opinion. ); Burger v. Astrue, 536 F. Supp. 2d 1182, 1187 (C.D. 4 Cal. 2008) (same). 5 significant insight into plaintiff s condition prior to his date last 6 insured since medical expert Dr. Jensen opined plaintiff s condition 7 has in all likelihood remained static since 1997.9 Moreover, Dr. Jimenez s opinions provide A.R. 326. 8 9 The ALJ also erred in failing to address the 2006 opinions of 10 Drs. Jimenez and Gallegos, both of whom opined plaintiff cannot work 11 an 8-hour day. 12 he disagreed with these opinions, the ALJ, in determining plaintiff 13 has the RFC to perform a limited range of light work, implicitly 14 rejected Dr. Jimenez s and Dr. Gallegos s 2006 opinions. A.R. 622-24, 627-29. Indeed, without explaining why This was 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988)); see also Flaten v. Sec. of Health & Human Servs., 44 F.3d 1453, 1461 & n.5 (9th cir. 1995) ( Retrospective diagnoses by treating physicians and medical experts . . . are . . . relevant to the determination of a continuously existing disability with onset prior to expiration of insured status. ); Kemp v. Weinberger, 522 F.2d 967, 969 (9th Cir. 1975) (When a disease is known to progress in a slow, degenerative process, evidence of medical deterioration can be probative of a patient's condition at an earlier time). Thus, the ALJ could not again reject Dr. Jimenez s opinions on the ground Dr. Jimenez s opinions could not be applied retroactively. 9 This Court in Herrera I noted ALJ Buls s statement that he would clearly find plaintiff disabled as of July 17, 2003. Based on Dr. Jensen s testimony that plaintiff s condition has in all likelihood remained the same from 1997, it is reasonable to infer that ALJ Buls would have found plaintiff was disabled prior to his date last insured. 16 1 clear legal error. Lingenfelter v. Astrue, 504 F.3d 1028, 1038 n.10 2 (9th Cir. 2007); Smolen v. Chater, 80 F.3d 1273, 1286 (9th Cir. 1996). 3 For all these reasons, the ALJ s RFC assessment is not supported by 4 substantial evidence. 5 6 Hypothetical questions posed to a vocational expert must consider 7 all of the claimant s limitations, Bray v. Astrue, 554 F.3d 1219, 1228 8 (9th Cir. 2009); Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir. 9 2002), and [t]he ALJ s depiction of the claimant s disability must be 10 accurate, detailed, and supported by the medical record. 11 Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). 12 include plaintiff s limitations, as found by Drs. Jimenez and 13 Gallegos, in the hypothetical question to vocational expert Corinne 14 Porter, whose response to the hypothetical question was the basis for 15 the ALJ s Step Five determination that plaintiff can perform other 16 jobs in the national economy. 17 in excluding some of [plaintiff s] limitations from the RFC 18 assessment, and thus from the [vocational expert s] hypothetical, the 19 [vocational expert s] testimony has no evidentiary value. 20 Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 21 2008) (citation omitted); see also Edlund v. Massanari, 253 F.3d 1152, 22 1160 (9th Cir. 2001) (ALJ erred in not including limitations from 23 claimant s mental impairment in hypothetical question posed to 24 vocational expert). 25 determination that plaintiff can perform other jobs in the economy 26 also is not supported by substantial evidence. 27 504 F.3d at 1041; Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th 28 Cir. 2006). A.R. 344-51. Tackett v. Here, the ALJ failed to [B]ecause the ALJ erred For this reason, the ALJ s Step Five 17 Lingenfelter, V 1 This Court has the discretion to award disability benefits to a 2 3 plaintiff when there is no need to remand the case for additional 4 factual findings. 5 Cir. 2002); Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001). 6 Generally, the Court will direct the award of benefits in cases where 7 the record has been fully developed and where further administrative 8 proceedings would serve no useful purpose. 9 1076-77; Vertigan v. Halter, 260 F.3d 1044, 1053 (9th Cir. 2001). McCartey v. Massanari, 298 F.3d 1072, 1076 (9th McCartey, 298 F.3d at 10 11 Where the ALJ fails to provide adequate reasons for rejecting 12 the opinion of a treating or examining physician, [this Court] 13 credit[s] that opinion as a matter of law. 14 81 F.3d 821, 834 (9th Cir. 1995) (quoting Hammock v. Bowen, 15 879 F.2d 498, 502 (9th Cir. 1989)). 16 opinions of Drs. Jimenez and Gallegos, it is clear that, prior to his 17 date last insured, plaintiff could not perform substantial gainful 18 activity for 8 hours a day or 40 hours a week; therefore, plaintiff is 19 disabled. 20 ( [I]n the unusual case in which it is clear from the record that the 21 claimant is unable to perform gainful employment in the national 22 economy, even though the vocational expert did not address the precise 23 work limitations established by the improperly discredited [evidence], 24 remand for an immediate award of benefits is appropriate. ); Kornock 25 v. Harris, 648 F.2d 525, 527 (9th Cir. 1980) (per curiam) ( The 26 ability to work only a few hours a day . . . is not the ability to 27 engage in substantial gainful activity. ). 28 // Lester v. Chater, Here, properly crediting the See Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) 18 Further, plaintiff initially filed his application for Title II 1 2 disability benefits in 2002 -- seven years ago. [A] remand for 3 benefits is indicated particularly where a claimant has already 4 experienced lengthy, burdensome litigation. 10 5 1053; see also Benecke, 379 F.3d at 595 ( Remanding a disability claim 6 for further proceedings can delay much needed income for claimants who 7 are unable to work and are entitled to benefits, often subjecting them 8 to tremendous financial difficulties while awaiting the outcome of 9 their appeals and proceedings on remand. (quoting Varney v. Vertigan, 260 F.3d at 10 Secretary of Health & Human Servs., 859 F.2d 1396, 1398 (9th Cir. 11 1988))). 12 13 ORDER 14 IT IS ORDERED that plaintiff s request for relief be granted, and 15 the Commissioner shall award Title II disability benefits to plaintiff 16 under 42 U.S.C. § 423. 17 18 DATE: October 6, 2009 19 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 10 27 Having reached this conclusion, it is unnecessary to address the other issues plaintiff raises. 28 R&R-MDO\08-0568.mdo 10/6/09 19

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