Miguel Magallon Diaz v. Michael J Astrue, No. 5:2008cv01919 - Document 20 (C.D. Cal. 2009)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal: Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g), IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. (dhl)

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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 MIGUEL MAGALLON DIAZ, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) ______________________________) NO. EDCV 08-1919 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Miguel Magallon Diaz ( Plaintiff ) brings this action seeking to 22 overturn the decision of the Commissioner of the Social Security 23 Administration (hereinafter the Commissioner or the Agency ) denying 24 his application for Disability Insurance Benefits ( DIB ). The parties 25 consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the 26 undersigned United States Magistrate Judge. 27 below, the decision of the Commissioner is REVERSED and REMANDED for 28 further proceedings. For the reasons stated 1 II. 2 PROCEDURAL HISTORY 3 Plaintiff 4 filed an application for DIB on August 5, 2004. 5 (Administrative Record ( AR ) 57-60). 6 date of June 4, 2004 (AR 57) due to osteomyelitis in the spine and 7 diabetes. 8 initially on September 14, 2004. 9 upon reconsideration on December 9, 2004. (AR 80, 140). He alleged a disability onset The Agency denied Plaintiff s claim for DIB (AR 26-30). This denial was upheld (AR 32-36). 10 On December 4, 2006, a hearing was held before Administrative Law 11 12 Judge ( ALJ ) Peter J. Valentino. 13 benefits in a written decision dated December 15, 2006. (AR 16-24). 14 On unfavorable 15 decision. 16 2008. (AR 5-7). Plaintiff commenced the instant action on December 24, 17 2008. January 25, 2007, (AR 15). Plaintiff (AR 1201-28). sought review of The ALJ denied the The Appeals Council declined review on October 28, 18 19 III. 20 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 21 22 To qualify for disability benefits, a claimant must demonstrate 23 a medically determinable physical or mental impairment that prevents him 24 from engaging in substantial gainful activity1 and that is expected to 25 result in death or to last for a continuous period of at least twelve 26 27 28 1 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 2 1 months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 2 42 U.S.C. § 423(d)(1)(A)). 3 incapable of performing the work he previously performed and incapable 4 of performing any other substantial gainful employment that exists in 5 the national economy. 6 1999) (citing 42 U.S.C. § 423(d)(2)(A)). The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 7 8 9 10 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are as follows: 11 12 (1) Is the claimant presently engaged in substantial gainful 13 activity? If so, the claimant is found not disabled. 14 If not, proceed to step two. 15 16 (2) Is the claimant s impairment 17 claimant is found not disabled. 18 severe? If not, the three. If so, proceed to step 19 20 (3) Does the claimant s impairment meet or equal one of a 21 list of specific impairments described in 20 C.F.R. Part 22 404, Subpart P, Appendix 1? 23 found disabled. If so, the claimant is If not, proceed to step four. 24 25 (4) Is the claimant capable of performing her past work? 26 so, the claimant is found not disabled. 27 to step five. 28 3 If If not, proceed (5) 1 Is the claimant able to do any other work? 2 claimant is found disabled. 3 If not, the If so, the claimant is found not disabled. 4 5 Tackett, 180 F.3d at 1098-99; see also 20 C.F.R. §§ 404.1520(b)-(g)(1), 6 416.920(b)-(g)(1); Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th 7 Cir. 2001) (citations omitted). 8 9 The claimant has the burden of proof at steps one through four, and 10 the Commissioner has the burden of proof at step five. Bustamante, 262 11 F.3d at 953-54. 12 establishing an inability to perform past work, the Commissioner must 13 show that the claimant can perform some other work that exists in 14 significant numbers in the national economy, taking into account the 15 claimant s residual functional capacity ( RFC ),2 age, education, and 16 work experience. 17 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 18 do so by the testimony of a vocational expert or by reference to the 19 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart 20 P, Appendix 2 (commonly known as the Grids ). 21 F.3d 1157, 1162 (9th Cir. 2001). 22 (strength-related) 23 inapplicable and the ALJ must take the testimony of a VE. 24 Apfel, 216 F.3d 864, 869 (9th Cir. 2000). If, at step four, the claimant meets his burden of Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at and The Commissioner may Osenbrock v. Apfel, 240 When a claimant has both exertional nonexertional limitations, the Grids are Moore v. 25 26 27 28 2 Residual functional capacity is the most [one] can still do despite [one s] limitations and represents an assessment based on all the relevant evidence in [one s] case record. 20 C.F.R. §§ 404.1545(a), 416.945(a). 4 1 IV. 2 THE ALJ S DECISION 3 4 At step one, the ALJ found that Plaintiff had not engaged in 5 substantial gainful activity at any time relevant to the ALJ s decision. 6 (AR 21). 7 8 At step two, the ALJ determined that Plaintiff had the severe 9 impairments of spinal disc disease, history of osteomyelitis, thoracic 10 radiculopathy, chronic back pain, diabetes mellitus, and hypertension. 11 (Id.). 12 13 At step three, the ALJ concluded that Plaintiff did not have an 14 impairment or combination of impairments that met or medically equaled 15 a listed impairment. (Id.). 16 17 At step four, the ALJ found that Plaintiff retained the RFC to 18 perform light work, with occasional postural activities and no climbing 19 of ladders, ropes, or scaffolds.3 20 Plaintiff was capable of performing his past relevant work as a 21 supervisor of a wheels and rims assembly line. (AR 23). Therefore, the 22 ALJ concluded that Plaintiff was not disabled. 23 /// (Id.). The ALJ determined that (Id.). 24 25 3 26 27 28 Light work is defined as work involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds and requiring a good deal of walking or standing or sitting most of the time with some pushing and pulling of arm or leg controls. 20 C.F.R. §§ 404.1567(b), 416.967(b). 5 1 V. 2 STANDARD OF REVIEW 3 4 Under 42 U.S.C. § 405(g), a district court may review the 5 Commissioner s decision to deny benefits. 6 Commissioner s decision when the ALJ s findings are based on legal error 7 or are not supported by substantial evidence in the record as a whole. 8 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 9 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). The court may set aside the 10 11 Substantial evidence is more than a scintilla, but less than a 12 preponderance. 13 which a reasonable person might accept as adequate to support a 14 conclusion. 15 a finding, the court must consider the record as a whole, weighing 16 both 17 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 18 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 19 reasonably support either affirming or reversing that conclusion, the 20 court may not substitute its judgment for that of the Commissioner. 21 Reddick, 157 F.3d at 720-21. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// evidence Reddick, 157 F.3d at 720. Id. It is relevant evidence To determine whether substantial evidence supports that supports and evidence 6 that detracts from the If the evidence can 1 VI. 2 DISCUSSION 3 4 5 A. Remand Is Required For Further Consideration Of Dr. Ralph Steiger s Opinion 6 7 Plaintiff contends that the ALJ failed to properly consider Dr. 8 Ralph Steiger s opinion. 9 claims that the ALJ failed to provide clear and convincing reasons for (Jt. Stip. at 5-6). Specifically, Plaintiff 10 rejecting Dr. Steiger s opinion. (Jt. Stip. at 6). Defendant argues 11 that the ALJ provided specific and legitimate reasons for the rejection. 12 (Jt. Stip. at 8-9). 13 Plaintiff. As set forth below, the Court agrees with 14 15 In general, [t]he opinions of treating doctors should be given 16 more weight than the opinions of doctors who do not treat the claimant. 17 Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citing Reddick v. 18 Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 19 opinion, in turn, generally is afforded more weight than a nonexamining 20 physician s opinion. An examining physician s Orn, 495 F.3d at 631. 21 22 If the treating doctor s opinion is not contradicted by another 23 doctor, it may be rejected only for clear and convincing reasons 24 supported by substantial evidence in the record. 25 F.3d 821, 830 (9th Cir. 1995) (citing Baxter v. Sullivan, 923 F.2d 1391, 26 1396 (9th Cir. 1991)). 27 contradicted by the opinion of another doctor, the ALJ may properly 28 reject the treating Lester v. Chater, 81 Even when the treating doctor s opinion is doctor s opinion 7 by providing specific and 1 legitimate reasons supported by substantial evidence in the record. 2 Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007) (quoting Reddick, 157 3 F.3d at 725). 4 5 As with a treating physician, the ALJ must present clear and 6 convincing reasons for rejecting the uncontroverted opinion of an 7 examining physician and may reject the controverted opinion of an 8 examining physician only for specific and legitimate reasons that are 9 supported by substantial evidence. Carmickle v. Comm r, Soc. Sec. 10 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 F.3d at 11 830-31). 12 13 On December 7, 2004, Dr. Steiger, a worker s compensation examining 14 physician, conducted an orthopedic evaluation of Plaintiff. 15 93). Plaintiff reported that he had frequent slight to moderate right 16 knee and 17 intermittently slight to moderate; and intermittent, slight neck pain. 18 (AR 988). 19 tenderness on palpation at the base of the occiput, upper trapezius, 20 levator scapulae, and rhomboid muscles, bilaterally, with no evidence 21 of muscle spasm, rigidity, or trigger points upon palpation of these 22 muscles; pain at the base of the neck with axial compression testing; 23 decreased range of motion in flexion, extension, right and left lateral 24 bending, and right and left rotation. 25 noted that Plaintiff had decreased range of motion of the right shoulder 26 with 27 acromioclavicular joint, and supraspinatus musculature. leg pain; constant slight lower back pain, (AR 981- which was An examination of the cervical spine revealed: moderate tenderness on palpation of 28 8 (AR 983-84). the coracoid Dr. Steiger also process, biceps, (AR 984). 1 Dr. Steiger also examined Plaintiff s thoracolumbar spine, which 2 revealed: ambulation with a right antalgic gait and with the right knee 3 bent; difficulty heel walking; toe walking performed satisfactorily; 4 moderate tenderness of the upper and lower lumbar spine and of the 5 posterior-superior iliac spines, bilaterally; no evidence of muscle 6 spasm or trigger points in the paravertebral muscles; decreased range 7 of motion in flexion, extension, right and left lateral bending, and 8 right and left rotation; positive straight leg raising in the sitting 9 and supine position; and positive signs of right sciatic nerve root 10 irritability. 11 demonstrated crepitus of the medial compartment; tenderness of the 12 medial and lateral joint lines; and decreased range of motion in flexion 13 and extension. 14 able to partially squat due to knee pain. 15 neurological 16 extremities were intact; deep tendon reflexes in the upper extremities 17 were 18 bilaterally; presence of hypesthesia in the right leg and foot; and deep 19 tendon reflexes at the ankles were unobtainable, bilaterally. 20 984, 986). (AR 985-86). (AR 986). examination unobtainable at His examination of Plaintiff s right knee Dr. Steiger noted that Plaintiff was only which the revealed: biceps, (Id.). He also conducted a sensation triceps, and in both upper brachioradialis, (AR 21 22 Dr. Steiger also commented that x-rays taken on that same date 23 revealed anterior lipping and bridging at multiple levels of the 24 thoracic spine and . . . narrowing of the disc space and some scalloping 25 in the superior end plate of what is probably T6-7 of this film. 26 987). 27 and internal derangement of the right knee; musculoligamentous sprain 28 of the lumbar spine with lower extremity radiculitis; musculoligamentous (AR He diagnosed Plaintiff with, inter alia, chondromalacia patella 9 1 sprain of the cervical spine; and status post thoracotomy in the right 2 chest for infection in the thoracic spine. 3 Plaintiff s work restrictions as follows: no heavy lifting or repetitive 4 bending 5 movement; no heavy pushing or pulling; no prolonged weight bearing; no 6 repetitive squatting or climbing; and no crawling or kneeling on the 7 right knee. 8 injured worker who was unable to return to his previous occupation 9 as a forklift driver.4 and stooping; (AR 989). no repetitive (Id.). twisting; Dr. Steiger assess no prolonged neck He commented that Plaintiff was a qualified (AR 982, 989). 10 11 Dr. Steiger s opinion contradicted that of Dr. George Weilepp, the 12 medical expert who testified at the December 4, 2006 hearing. (AR 1216- 13 22). 14 Plaintiff could perform sedentary, light work activities. 15 19). Specifically, Dr. Weilepp assessed the following limitations: sit 16 for six hours, two hours at a time with normal breaks; stand for six 17 hours, an hour and a half to two hours at a time with normal breaks; 18 occasional kneeling, crawling, and squatting; frequent lifting and 19 bending; no heights or ladders; and no heavy industrial vibration or 20 dangerous equipment. Dr. Weilepp testified that, based on the medical records, (AR 1218- (AR 1219-21). 21 22 The ALJ relied on Dr. Weilepp s opinion in finding that Plaintiff 23 retained the RFC to perform light work, with occasional postural 24 activities and no climbing of ladders, ropes, or scaffolds. (AR 21-22). 25 4 26 27 28 On August 10, 2005, Dr. Steiger completed a supplemental medical report, in which he summarized various medical records from Plaintiff s treating physicians. (AR 1190-98). Based on his review of the records, he concluded that his December 7, 2004 assessments remained unchanged. (AR 1196). 10 1 In so doing, the ALJ discounted a portion of Dr. Steiger s opinion, 2 stating: 3 Dr. Steiger also merely precluded [Plaintiff] from heavy 4 lifting or repeated bending or stooping, repetitive twisting, 5 prolonged 6 repetitive squatting or climbing. 7 precluded 8 crawling, or kneeling, upon examination he found only pain, 9 tenderness, and crepitus of the right knee, with loss of neck movement, [Plaintiff] heavy from pushing or pulling, and Although Dr. Steiger also prolonged weight bearing, 10 motion, hypesthesia, and absent ankle reflexes. 11 knee signs were normal and knee pain was only slight to 12 moderate. 13 with Dr. Weilepp, as to [Plaintiff s] capacity for performing 14 the standing and walking requirements of light work, and 15 performing occasional crawling or kneeling. 16 Steiger found [Plaintiff] able to perform toe walking, there 17 were no spasms or trigger points, sensation was intact in the 18 upper 19 intermittently slight to moderate, and neck pain was only 20 intermittent and slight (Exhibit 13F). 21 Remaining I do not agree with Dr. Steiger, but rather, agree extremities, low back pain was In fact, Dr. slight and only (AR 22). 22 23 As Dr. Steiger s opinion was contradicted by Dr. Weilepp s 24 testimony, the ALJ was required to provide specific and legitimate 25 reasons for rejecting the portion of Steiger s opinion concerning 26 Plaintiff s ability to bear weight, crawl, and kneel. 27 F.3d at 1164. 28 Specifically, the ALJ s finding that Dr. Steiger s opinion was not Carmickle, 533 Here, the ALJ failed to satisfy this obligation. 11 1 supported by his own clinical findings was not legally sufficient to 2 reject his opinion. 3 that Plaintiff s condition was not as severe as Dr. Steiger assessed 4 (e.g., able to perform toe walking, no spasms or trigger points, 5 sensation was intact in the upper extremities, constant lower back pain 6 which 7 intermittent and slight), he failed to discuss the other findings that 8 did support the physician s opinion. 9 observed: was Although the ALJ noted several findings indicating intermittently moderate slight tenderness to in the moderate, and neck pain was For example, Dr. Steiger also base of the occiput, upper 10 trapezius, levator scapulae, and rhomboid muscles; decreased range of 11 motion of the cervical spine in all directions; decreased range of 12 motion of the right shoulder; tenderness of the coracoid process, 13 biceps, acromioclavicular joint, and supraspinatus musculature; right 14 antalgic gait with difficulty heel walking; moderate tenderness of the 15 upper and lower lumbar spine and of the posterior-superior iliac spine; 16 decreased range of motion of the thoracolumbar spine in all directions; 17 reduced straight leg raising in the sitting and supine position with 18 positive signs of right sciatic nerve root irritability; and limitation 19 to partial squat due to knee pain. 20 reliance on only portions of the report from Dr. Steiger was misleading 21 and failed to constitute substantial evidence.5 22 at 723 (it is impermissible for the ALJ to develop an evidentiary basis (AR 983-86). The ALJ s selective See Reddick, 157 F.3d 23 24 5 25 26 27 28 Although Dr. Steiger found that Plaintiff could not bear weight for a prolonged period, crawl, or kneel due to his right knee impairment, it is reasonable to assume that Plaintiff s back and right shoulder impairments would also contribute to these functional limitations. (AR 989). As such, the ALJ should have properly considered the clinical findings concerning Plaintiff s back and right shoulder. 12 1 by not fully accounting for the context of materials or all parts of 2 the testimony and reports ); Gallant v. Heckler, 753 F.2d 1450, 1456 3 (9th Cir. 1984) (an ALJ may not reach a conclusion and justify it by 4 ignoring competent evidence in the record that would suggest an opposite 5 result). 6 7 Furthermore, the ALJ failed to translate Dr. Steiger s workers 8 compensation findings into Social Security terms. 9 compensation disability ratings are not controlling in Social Security 10 cases, an ALJ must nevertheless evaluate medical opinions stated in 11 workers compensation terminology just as he would evaluate any other 12 medical opinion. 13 Desrosiers v. Secretary of Health & Human Services, 846 F.2d 573, 576 14 (9th Cir. 1988); Booth v. Barnhart, 181 F. Supp. 2d 1099, 1104 (C.D. 15 Cal. 2002). 16 medical terminology in order to accurately assess the implications of 17 those opinions for the Social Security disability determination. 18 Desrosiers, 846 F.2d at 576). 19 contain an explicit `translation, it should at least indicate that the 20 ALJ recognized the differences between the relevant state workers 21 compensation terminology, on the one hand, and the relevant Social 22 Security disability terminology, on the other hand, and took those 23 differences into account in evaluating the medical evidence. 24 181 F. Supp. 2d at 1105. 25 his workers compensation evaluation that were 26 determining Plaintiff s eligibility for social security benefits. (See 27 AR 988-989). Although workers Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996); The ALJ must translate terms of art contained in such See While the ALJ s decision need not Booth, Here, Dr. Steiger made findings relevant to 28 13 not translated for 1 Accordingly, the ALJ s failure to provide specific and legitimate 2 reasons for rejecting Dr. Steiger s opinion constitutes error. 3 case must be remanded for further consideration of Dr. Steiger s report. This 4 5 6 B. Remand Is Required For Further Consideration Of The Lay Witness Testimony Of Pauline Mendoza 7 8 Plaintiff claims that the ALJ failed to consider the lay witness 9 testimony of his friend, Pauline Mendoza. (Jt. Stip. at 12). Defendant 10 argues that Ms. Mendoza s statements are immaterial as they would not 11 render Plaintiff disabled even when fully credited. 12 For the following reasons, the Court agrees with Plaintiff s contention 13 and remands the case for further proceedings on this issue. (Jt. Stip. at 14). 14 15 In determining whether a claimant is disabled, an ALJ must consider 16 lay witness testimony concerning a claimant s ability to work. 17 v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006); 18 Smolen, 19 416.913(d)(4) & (e). 20 witnesses only if he gives reasons that are germane to each witness. 21 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993); see also Lewis v. 22 Apfel, 236 F.3d 503, 511 (9th Cir. 2001) ( Lay testimony as to a 23 claimant s symptoms is competent evidence that an ALJ must take into 24 account, unless he or she expressly determines to disregard such 25 testimony and gives reasons germane to each witness for doing so. ) 26 (citations omitted). An ALJ s failure to consider competent lay witness 27 testimony favorable to the claimant is harmless error only if the 28 reviewing court can confidently conclude that no reasonable ALJ, when 80 F.3d at 1288; 20 C. F. R. §§ 404.1513(d)(4) Stout & (e), The ALJ may discount the testimony of lay 14 1 fully crediting the testimony, could have reached a different disability 2 determination. Stout, 454 F.3d at 1056. 3 4 On November 22, 2004, Ms. Mendoza completed a third party function 5 report describing Plaintiff s daily activities and abilities. (AR 115- 6 23). 7 him every other day. 8 did not prepare his own meals because he had difficulty using his right 9 arm and experienced shortness of breath. (AR 117). She also noted that 10 Plaintiff did not do any household chores due to pain and shortness of 11 breath. 12 for only short periods of time. (AR 119). She noted that Plaintiff did 13 not go out very much and when he did, he sometimes had his wife 14 accompany him because he got drowsy from his medication. 15 Ms. Mendoza reported that Plaintiff s condition affected his ability to 16 lift, squat, bend, stand, reach, walk, sit, see, climb stairs, remember, 17 understand, and follow instructions. 18 commented that Plaintiff could lift 5 to 15 pounds; could walk for 30 19 minutes before needing to rest for 20 to 25 minutes; and could pay 20 attention for 30 minutes. 21 very depressed and scared for his health. 22 Plaintiff purchased a cane and used it for support all the time 23 because he had pain in his back and legs. She reported that she has known Plaintiff for 16 years and sees (AR 117-18). (AR 115). Ms. Mendoza commented that Plaintiff Ms. Mendoza stated that Plaintiff could sit down (Id.). (AR 120). (AR 119-20). In particular, she Ms. Mendoza noted that Plaintiff was (AR 121). She stated that (Id.). 24 25 Here, the ALJ failed to consider the lay witness statement of Ms. 26 Mendoza. In his decision, the ALJ did not even mention the third party 27 function report completed by Ms. Mendoza. The ALJ s failure to consider 28 Ms. Mendoza s statement was error. 15 See Dodrill, 12 F.3d at 919 1 ( Disregard 2 regulation that he will consider observations by non-medical sources as 3 to how an impairment affects a claimant s ability to work. 4 § 404.1513(e) (2). ) (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th 5 Cir. 1987)). of [lay witness statements] violates the Secretary s 20 C.F.R. 6 7 The Court does not find that the ALJ s failure to consider Ms. 8 Mendoza s statement was harmless. 9 Ms. Mendoza provided clear assessments of the extent of Plaintiff s 10 functional limitations, which suggested that Plaintiff was disabled. 11 Specifically, Ms. Mendoza noted that Plaintiff could lift only 5 to 15 12 pounds and walk for only 30 minutes before needing to rest for 20 to 25 13 minutes. 14 would have found Plaintiff disabled if Ms. Mendoza s statements were 15 fully credited. 16 warranted on this issue. (AR 120). Contrary to Plaintiff s contention, The Court cannot conclude that no reasonable ALJ See Stout, 454 F.3d at 1056. Accordingly, remand is 17 18 C. 19 Remand Is Required For Further Consideration Of The Physical Demands Of Plaintiff s Past Relevant Work 20 21 Plaintiff argues that the ALJ s decision that Plaintiff was capable 22 of returning to his past relevant work as a supervisor for a wheel and 23 rims shop was not supported by substantial evidence of record. 24 Stip. 25 mischaracterized Plaintiff s past relevant job as light work . 26 Stip. at 16). 27 testimony of Plaintiff and the vocational expert in determining the at 15-16). Specifically, Plaintiff contends that the (Jt. ALJ (Jt. Defendant asserts that the ALJ properly relied on the 28 16 1 physical exertional requirements of Plaintiff s past relevant work. 2 (Jt. Stip. At 18-19). 3 4 At step four of the five-step sequential evaluation, the claimant 5 carries the burden of proving that he can no longer perform his past 6 relevant work. 7 (citing 20 C.F.R. §§ 404.1520(e) and 416.920(e)). 8 claimant is required to prove that he cannot return to his former type 9 of work as that work is generally performed, not just that he cannot Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001) Specifically, the 10 return to his particular job. See Villa v. Heckler, 797 F.2d 794, 798 11 (9th Cir. 1986). 12 at step four, the ALJ has the duty to make factual findings to support 13 his ultimate conclusion. Pinto, 249 F.3d at 844. The ALJ can meet this 14 burden by comparing the physical and mental demands of the past relevant 15 work with the plaintiff s actual RFC. Although the burden of proof lies with the plaintiff Id. at 845. 16 17 Plaintiff has past relevant work experience as a forklift operator 18 and a supervisor for a wheels and rims shop. (AR 23, 81, 92-95, 140-41, 19 147-49). 20 worked as a supervisor for two different wheels and rims shops from 1973 21 through 1996 or 1997 and as a forklift operator from 1998 through 2004. 22 (AR 81, 140-41, 1208). 23 wheels and rims shop entailed supervising employees, managing inventory, 24 and operating machines. 25 position required walking and standing for 8 hours a day, lifting up to 26 75 to 80 pounds, and frequently lifting 50 pounds. 27 that he lifted car rims and placed them on pallets that were 2 to 3 feet 28 away from him. In his disability report, Plaintiff reported that he had (Id.). He noted that his supervisor job at the first (AR 81, 141). Plaintiff stated that this (Id.). He reported In his work history report, Plaintiff provided 17 1 similar descriptions of his supervisor position at the first wheels and 2 rims shop. (AR 93, 148-49). He also noted that the duties and physical 3 requirements of his first supervisor job were similar to those of his 4 second supervisor job. (AR 93-94). 5 6 Plaintiff reported in his work history report that his job as a 7 forklift operator required him to fill orders, load and unload trucks, 8 and drive forklifts. (AR 95). He stated that the physical requirements 9 of this job included walking and standing for 8 to 9 hours a day, 10 sitting for 4 to 5 hours a day, lifting up to 70 to 80 pounds, and 11 frequently lifting 50 pounds. 12 plastic and steel pipes into trucks and carried hoses, plastic pipes, 13 and tools a distance of 8 to 10 feet. (Id.). Plaintiff noted that he loaded (Id.). 14 15 Plaintiff appeared at the hearing with his counsel and testified 16 through an interpreter.6 17 his work as a supervisor entailed looking at the production and 18 watching the persons. 19 whether he did actual work or just simply made sure that the 20 employees were doing their work, Plaintiff responded that he would 21 render some documents of what had taken place during the shift and 22 give them to his manager. VE: 23 (AR 1203-14, 1222-25). (AR 1224). (Id.). Plaintiff stated that When questioned by the ALJ about The following colloquy then ensued:7 [Plaintiff], when I reviewed your file, the job that you had supervising the wheels and rims business, it said 24 25 6 26 27 28 At the hearing, Plaintiff s counsel informed the ALJ that she communicated with Plaintiff in Spanish with the aid of his niece, who acted as his interpreter. (AR 1204). 7 VE refers to the vocational expert. PLF refers to Plaintiff. 18 1 that you work as a machine operator and that you loaded 2 and unloaded pallets. 3 ALJ: Well that s when he worked as a forklift operator. 4 VE: 5 ALJ: Well, I don t think so. 6 PLF: No, that is mixed up with what I did for [the forklift 7 Right, but it was under that. operator job]. 8 ALJ: For [the forklift operator job], that s right. 9 VE: 10 Okay. Could you briefly describe your job at . . . the wheel and rim shop? 11 ALJ: He supervised people who did that work. 12 PLF: Describe it right now? 13 VE: 14 PLF: I was supervisor, and I had to report, watch the people 15 that was working in the machinery, and I had to render 16 information to see if that particular machine was going 17 to produce 200 rims, and if it only produce 150, I have 18 to give them a reason why was it that that machine 19 didn t produce 200 wheels. 20 Okay. You only supervised. [AR 1224-25]. 21 22 The vocational expert subsequently characterized Plaintiff s He characterized 23 supervisor job as skilled, light work. 24 Plaintiff s forklift operator job as semi-skilled, medium work. 25 1225-26). (Id.). (AR 26 27 The ALJ posed a hypothetical question involving a person with the 28 following limitations: able to perform light work; no continuous lifting 19 1 or bending; no climbing of ladders or scaffolds; and requirement of a 2 typical break after 2 hours of continuous standing or walking. 3 1226). The vocational expert responded that Plaintiff could perform his 4 past work as a supervisor of a wheels and rims shop. 5 relied on the vocational expert s testimony and concluded that Plaintiff 6 was capable of performing his past relevant work as a supervisor of a 7 wheels and rims assembly line. (Id.). (AR The ALJ (AR 23). 8 9 In this case, the ALJ implicitly determined that Plaintiff s past 10 relevant work as a supervisor was classified as light work. (Id.). 11 However, there appears to have been some confusion as to the physical 12 exertion requirements of Plaintiff s past job. 13 his disability report and work history report that his duties as a 14 supervisor included substantial manual labor, which was performed at the 15 heavy exertional level.8 16 the hearing, however, that he did not perform manual labor but rather 17 oversaw employees and drafted reports. 18 explained that the description of his supervisor job contained in the 19 reports - specifically, operating machines and loading and unloading 20 pallets - should actually have been stated under the forklift operator 21 job heading. Plaintiff reported in (AR 81, 93-94, 141, 148-49). He indicated at (AR 1224-25). Plaintiff (AR 1225). 22 23 It is unclear whether Plaintiff properly understood the ALJ s and 24 vocational expert s questions concerning the job duties and physical 25 demands of his prior work. First, the vocational expert s question 26 27 28 8 Heavy work is defined as work involving lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds. 20 C.F.R. §§ 404.1567(d), 416.967(d). 20 1 regarding whether Plaintiff operated machines and loaded and unloaded 2 pallets as a supervisor of a wheels and rims company was not entirely 3 clear. 4 to drive forklifts and load and unloaded trucks, it is possible that 5 Plaintiff understood the vocational expert s question as one concerning 6 Plaintiff s forklift operator job. 7 the vocational expert was questioning Plaintiff about what Plaintiff had 8 written in his reports concerning his duties as a forklift operator 9 job.9 Given that Plaintiff s job as a forklift operator required him (AR 1224-25). In fact, even the ALJ thought that Moreover, when the vocational expert asked 10 Plaintiff to describe his supervisor job, the ALJ interjected that 11 Plaintiff supervised people who did that work. 12 never 13 Furthermore, in light of Plaintiff s reports in which he explicitly 14 stated under the supervisor job heading that he lift[ed] car rims to 15 put on pallet s [sic], it is doubtful that Plaintiff meant to write 16 this description under the forklift operator job heading. 17 94, 141, 148-49). 18 Plaintiff noted that he loaded plastic and steel pipes into trucks, not 19 rims. 20 determination of the physical demands of Plaintiff s past relevant work 21 was supported by substantial evidence. expressly (AR 95). stated that he did not do (AR 1225). any Plaintiff manual labor. (AR 81, 93- Indeed, under the forklift operator job heading, On this record, the Court cannot find that the ALJ s Upon remand, the ALJ should 22 23 24 25 26 27 28 9 Further, there may have been confusion due to a language barrier. Plaintiff could not speak English, and the record does not indicate whether Plaintiff s niece or a professional interpreter was used at the hearing. (AR 1202-03). If Plaintiff s niece was translating, it is quite possible that the ALJ s questions were not properly translated. For example, it is possible that Plaintiff thought the ALJ and vocational expert were asking questions only about his role in supervising employees and not about the aspect of his job requiring manual labor. 21 1 further inquire about the job duties and physical demands of his past 2 relevant work before determining whether Plaintiff can return to that 3 specific job. 4 5 VII. 6 CONCLUSION 7 8 Consistent with the foregoing, and pursuant to sentence four of 42 9 U.S.C. § 405(g),10 IT IS ORDERED that judgment be entered REVERSING the 10 decision of the Commissioner and REMANDING this matter for further 11 proceedings consistent with this decision. IT IS FURTHER ORDERED that 12 the Clerk of the Court serve copies of this Order and the Judgment on 13 counsel for both parties. 14 15 DATED: September 21, 2009. /S/ 16 ______________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 10 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 22

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