Raymond J. Flores v. Michael J. Astrue, No. 5:2008cv01691 - Document 19 (C.D. Cal. 2010)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Frederick F. Mumm For the foregoing reasons, the judgement of the Commissioner is reversed and remanded for further proceedings consistent with this opinion. IT IS SO ORDERED. **See Order for specific details.** (sl)
Download PDF
<![CDATA[
Raymond J. Flores v. Michael J. Astrue Doc. 19 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 WESTERN DIVISION 9 10 RAYMOND J. FLORES, Plaintiff, 11 v. 12 13 MICHAEL J. ASTRUE, Commissioner of Social Security, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) No. EDCV 08-1691 FFM MEMORANDUM DECISION AND ORDER Plaintiff brings this action seeking to overturn the decision of the Commissioner 16 17 of the Social Security Administration denying his applications for a period of 18 disability, disability benefits, and Supplemental Security Income benefits. On January 19 6, 2009 and February 25, 2009, plaintiff and defendant, respectively, consented to the 20 jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 21 636(c). Pursuant to the case management order entered on December 11, 2008, on 22 September 1, 2009, the parties filed a Joint Stipulation (the “JS”) detailing each 23 party’s arguments and authorities. The Court has reviewed the administrative record 24 (the “AR”), filed by defendant on July 15, 2009, and the JS. For the reasons stated 25 below, the decision of the Commissioner is reversed and this matter is remanded for 26 further proceedings. 27 /// 28 /// Dockets.Justia.com 1 PROCEDURAL HISTORY 2 On February 22, 2006, plaintiff filed applications for a period of disability, 3 disability benefits, and Supplemental Security Income benefits. Plaintiff’s 4 applications were denied initially and upon reconsideration. Plaintiff requested a 5 hearing before an administrative law judge (“ALJ”). ALJ F. Keith Varni held a 6 hearing on February 4, 2008. (AR 17 - 27.) Plaintiff appeared with counsel and 7 testified at the hearing. (See id.) 8 The ALJ issued a decision denying benefits. (AR 5 - 16.) Plaintiff sought 9 review of the decision before the Social Security Administration Appeals Council. 10 The Appeals Council denied plaintiff’s request for review on September 24, 2008. 11 (AR 1 - 3.) 12 Plaintiff filed his complaint herein on December 4, 2008. 13 CONTENTIONS 14 15 Plaintiff raises four issues in this action: 16 1. 17 Whether the ALJ properly considered the State Agency findings regarding plaintiff’s multiple moderate limitations; 18 2. Whether the ALJ properly developed the record; 19 3. Whether the ALJ properly considered the treating physician’s opinion 20 21 regarding plaintiff’s cluster headaches; and 4. Whether the ALJ should have obtained vocational expert testimony. 22 23 24 STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 25 determine whether the Commissioner’s findings are supported by substantial evidence 26 and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 27 841, 846 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but 28 less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 2 1 28 L. Ed. 2d 842 (1971); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 2 573, 575-76 (9th Cir. 1988). Substantial evidence is “such relevant evidence as a 3 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 4 U.S. at 401. This Court must review the record as a whole and consider adverse as 5 well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). 6 Where evidence is susceptible to more than one rational interpretation, the 7 Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 8 (9th Cir. 1984). However, even if substantial evidence exists in the record to support 9 the Commissioner’s decision, the decision must be reversed if the proper legal 10 standard was not applied. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1014-15 11 (9th Cir. 2003). 12 DISCUSSION 13 14 1. Whether the ALJ properly considered the State Agency findings regarding 15 plaintiff’s multiple moderate limitations State Agency review psychiatrist, Dr. H.M. Skopec, completed an SSA form 16 17 “Psychiatric Review Technique” (“PRT”) on May 26, 2006 and an SSA form “Mental 18 Residual Functional Capacity Assessment” (“MRFCA”) on June 15, 2006. In the 19 PRT, Dr. Skopec found mild limitations in (1) restriction of activities of daily living; 20 (2) difficulties in maintaining social functioning; and (3) difficulties in maintaining 21 concentration, persistence, or pace. (AR 190.) Dr. Skopec also stated that he agreed 22 with Dr. Smith’s evaluation of “no to mild limitations.” (AR 192.) In the MRFCA, Dr. Skopec found that plaintiff is moderately limited in (1) the 23 24 ability to work in coordination with or proximity to others without being distracted by 25 them; (2) the ability to interact appropriately with the general public; and (3) the 26 ability to accept instructions and respond appropriately to criticism from supervisors. 27 (AR 194 - 95.) 28 /// 3 The ALJ found a residual functional capacity (“RFC”) that included a mental 1 2 limitation that plaintiff could perform only simple, repetitive tasks that do not involve 3 public contact. (AR 12.) The ALJ also stated that the foregoing RFC “is supported by 4 both the State Agency review psychiatrists and the psychiatric consultative examiner 5 who concluded the claimant would not be precluded from performing simple 6 nonpublic tasks.” (AR 14.) Plaintiff asserts that the ALJ failed to explicitly address the moderate limitations 7 8 noted by Dr. Skopec in the MRFCA. Defendant responds that the RFC found by the 9 ALJ incorporates those limitations. However, the RFC does not appear to include any 10 limitations with respect to co-workers or supervisors as found by Dr. Skopec; it only 11 address public contact. Because the ALJ did not state whether he was adopting or 12 rejecting Dr. Skopec’s findings, remand is required to allow the ALJ to address this 13 issue. 14 2. Whether the ALJ properly developed the record Exhibit 12F is a two page check the box form that suggests that plaintiff is 15 16 extremely limited in a number of mental abilities relating to work. (AR 258 - 59.) 17 The form was submitted by plaintiff’s counsel to the ALJ on January 17, 2008, prior to 18 the hearing, with the notation that the record contains an illegible signature. In his decision, the ALJ rejected the findings contained on this exhibit as 19 20 follows: The signature on the form at Exhibit 12F, assessing the claimant’s 21 22 ability to perform work-related activities (mental), is illegible and is 23 given no weight. It cannot be determined what type of relationship exists 24 between the source and the claimant and there are no clinical notes 25 submitted to support the assessment. 26 (AR 13.) 27 /// 28 /// 4 1 Plaintiff contends that the ALJ should have developed the record further to 2 rehabilitate the findings on the exhibit. Defendant responds that the record was 3 neither ambiguous nor inadequate for the ALJ to make a decision. 4 The ALJ has an independent duty to fully and fairly develop the record and to 5 assure that the claimant’s interests are considered, even when the claimant is 6 represented. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001); Crane v. 7 Shalala, 76 F.3d 251, 255 (9th Cir. 1996) (citing Brown v. Heckler, 713 F.2d 441, 443 8 (9th Cir. 1983)). However, “[a]n ALJ’s duty to develop the record further is triggered 9 only when there is ambiguous evidence or when the record is inadequate to allow for 10 proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th 11 Cir. 2001) (citing Tonapetyan, 242 F.3d at 1150). The ALJ may discharge this duty in 12 several ways, including subpoenaing the claimant’s physicians, submitting questions 13 to the claimant’s physicians, continuing the hearing, or keeping the record open after 14 the hearing to allow supplementation of the record. Tonapetyan, 242 F.3d at 1150. In 15 addition, if the information the ALJ needs is not readily available from the treating 16 source, the ALJ may ask the claimant to attend a consultative examination. 20 C.F.R. 17 § 416.912(f). 18 Here, as found by the ALJ, the check box form was not supported by any 19 treatment notes or laboratory findings. The checklist format of the exhibit constitutes 20 a specific, legitimate reason for rejecting it. Batson v. Commissioner, Soc. Sec. 21 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ properly discounted treating 22 physician’s opinion where, inter alia, opinion was in form of checklist). Given the 23 lack of support for the exhibit, and its proper rejection by the ALJ, the exhibit was 24 insufficient to create any ambiguity in the record. Moreover, to the extent the ALJ 25 had any duty to develop the record, he complied with this duty by ordering a 26 consultative examination. (See AR 171 - 79.) The record was neither ambiguous nor 27 inadequate for the ALJ to make a determination. Therefore, remand is not required in 28 connection with this issue. 5 1 3. Whether the ALJ properly considered the treating physician’s opinion regarding 2 plaintiff’s cluster headaches Plaintiff contends the ALJ erred by failing to address certain medical records 3 4 documenting that plaintiff suffers from cluster headaches.1 Defendant contends that 5 the records do not demonstrate how severe the headaches are and that, in any event, 6 such headaches are not documented for a continuous period of at least 12 months. 7 The Court notes that the record contains references to migraine headaches at 8 least as early as December 5, 2003 (“spontaneous migraine headaches almost every 9 day”; “patient has been taking . . . Fiorinal . . .”). (AR 147.) Other references are 10 dated September 29, 2005 (“Admission Diagnoses: . . . Cluster headaches . . . .”) (AR 11 140); March 30, 2007 (“Headaches, uncertain type at this time. Don’t really sound 12 like classic cluster headaches.”) (AR 273); and June 6, 2007 (“Cluster HA”) (AR 266). The cluster headaches are not addressed by the ALJ or any of the consultative 13 14 physicians. Therefore, remand is required for this issue as well. 15 4. 16 Whether the ALJ should have obtained vocational expert testimony The ALJ relied on the Medical-Vocational Guidelines contained in 20 C.F.R. 17 Part 404, Subpart P, Appendix 2 (the “Grids”) to find that plaintiff was not disabled. 18 Plaintiff argues that because he has non-exertional limitations, the ALJ was required 19 to obtain the testimony of a vocational expert. Defendant contends that because the 20 ALJ made a finding that plaintiff’s non-exertional limitations “have little or no effect 21 on the occupational base of unskilled work at all exertional levels,” a vocational 22 expert was not required. 23 24 1 25 26 27 28 Dorland’s Illustrated Medical Dictionary, 30th edition, defines a cluster headache as: “a headache, possibly a type of migraine, characterized by attacks of unilateral excruciating pain over the eye and forehead, with temperature elevation, lacrimation, and rhinorrhea; attacks last from 15 minutes to about an hour and tend to occur in clusters, sometimes a few times a day for two to eight weeks followed by months or years without occurrence.” 6 1 Claims of disability are evaluated under a five-step sequential procedure. See 2 20 C.F.R. §§ 404.1520(a)-(g), 416.920(a)-(g). If, at step four of the procedure, the 3 claimant meets his burden of establishing an inability to perform past work, at step 4 five, the Commissioner has the burden of showing that the claimant can engage in 5 other substantial gainful work that exists in the national economy, taking into account 6 his RFC, age, education, and work experience. There are two ways for the 7 Commissioner to meet his burden at step five: (1) by reference to the Grids; or (2) 8 through the testimony of a vocational expert as to other work in the economy that the 9 claimant can perform. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) 10 11 (citing Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999)). The ALJ is required to seek the testimony of a vocational expert when a 12 non-exertional limitation is “sufficiently severe so as to significantly limit the range of 13 work permitted by the claimant’s exertional limitation.” Hoopai v. Astrue, 499 F.3d 14 1071, 1076 (9th Cir. 2007) (internal quotation marks omitted). “The severity of the 15 limitations at step five that would require the use of a vocational expert must be 16 greater than the severity of impairments determined at step two.” Id. Thus, the mere 17 fact that a non-exertional limitation exists, or that the impairment underlying the 18 limitation is found to be severe at step two, is insufficient to require testimony from a 19 vocational expert. Id.; see also Desrosiers, 846 F.2d at 577 (“[T]he fact that a 20 nonexertional limitation is alleged does not automatically preclude application of the 21 grids”). 22 However, where the ALJ finds no exertional limitations, he cannot rely on the 23 grids to find that the claimant is not disabled. Lounsburry v. Barnhart, 468 F.3d 1111, 24 1115 (9th Cir. 2006); see also Cox v. Astrue, 2010 WL 3120593, *10 - 11 (C.D. Cal. 25 2010) (non-exertional limitations of simple routine work with limited social contact 26 required vocational expert testimony); Karno v. Astrue, 2010 WL 114386, *3 (C.D. 27 Cal. 2010) (same, with respect to non-exertional limitations of simple, routine, non- 28 public tasks). 7 1 2 Here, because the ALJ found no exertional limitations, the testimony of a vocational expert was required. Therefore, remand is required for this issue as well. 3 CONCLUSION 4 5 6 For the foregoing reasons, the judgement of the Commissioner is reversed and remanded for further proceedings consistent with this opinion. 7 8 IT IS SO ORDERED. 9 10 11 12 DATED: September 29, 2010 /S/ FREDERICK F. MUMM FREDERICK F. MUMM United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
