Yvonne Almarez v. Michael J. Astrue, No. 5:2009cv00140 - Document 24 (C.D. Cal. 2010)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)

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Yvonne Almarez v. Michael J. Astrue Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 YVONNE ALMAREZ, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, Commissioner ) of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 09-00140-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on February 2, 2009, seeking review of 19 the denial by the Social Security Commissioner (“Commissioner”) of 20 plaintiff’s application for supplemental security income (“SSI”). 21 March 11, 2009, the parties consented to proceed before the undersigned 22 United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). 23 parties filed a Joint Stipulation on September 22, 2009 (“Joint Stip.”), 24 in which: 25 decision 26 proceedings; and defendant seeks an order affirming the Commissioner’s 27 decision. 28 submission without oral argument. On The plaintiff seeks an order reversing the Commissioner’s and remanding the matter for further administrative The Court has taken the parties’ Joint Stipulation under Dockets.Justia.com SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 Plaintiff 3 filed her application for SSI on August 1, 2001. 4 (Administrative Record (“A.R.”) 103-04.) Plaintiff claims to have been 5 disabled since April 27, 2001, due to carpal tunnel syndrome, shoulder 6 and knee pain, arthritis, asthma, and a head injury. (A.R. 113-25, 130- 7 31, 134.) 8 Plaintiff’s 9 application was denied initially and upon 10 reconsideration (A.R. 21-22, 33-42), and she requested a hearing (A.R. 11 43). 12 hearing before Administrative Law Judge Jacqueline Drucker.1 13 348-91.) 14 Judge Drucker denied plaintiff’s claim. (A.R. 26-32.) 15 review. 16 review, vacated the September 2003 decision, remanded the case to an 17 ALJ, and directed the ALJ to: (1) assess the credibility of plaintiff’s 18 subjective complaints; (2) address the consultative examiner’s opinion 19 regarding the amount of weight plaintiff could lift with her right upper 20 extremity; (3) address the effect of plaintiff’s mental impairment, 21 including memory problems, on her residual functional capacity (“RFC”); 22 and (4) if plaintiff was found disabled, consider the materiality of 23 plaintiff’s chronic alcohol abuse and conduct any further appropriate 24 inquiry. On May 22, 2003, plaintiff, who was unrepresented, testified at a (A.R. In a September 26, 2003 written decision, Administrative Law (A.R. 76.) Plaintiff sought On February 1, 2005, the Appeals Council granted (A.R. 88-89.) 25 26 27 28 1 Plaintiff had appeared for hearing initially on October 29, 2002, but that hearing was continued so that plaintiff could obtain counsel. (A.R. 334-37.) On March 31, 2003, plaintiff again appeared for hearing without counsel; the ALJ again continued the hearing to afford plaintiff an additional opportunity to obtain counsel. (A.R. 338-47.) 2 1 On May 4, 2005, plaintiff, who then was represented by counsel, 2 appeared at a hearing before Administrative Law Judge Jay Levine (the 3 “ALJ”). 4 denied 5 subsequently denied plaintiff’s request for review of that decision. 6 (A.R. 4-6.) (A.R. 392-425.) plaintiff’s In a September 22, 2005 decision, the ALJ claim. (A.R. 12-16.) The Appeals Council 7 8 On February 8, 2006, plaintiff filed an action in this district 9 court -- Case No. EDCV 06-00150-MAN –- seeking judicial review of the 10 ALJ’s September 22, 2005 decision. 11 the Court reversed the ALJ’s decision and remanded the case for further 12 proceedings consistent with the Court’s Order, as discussed infra (the 13 “2007 Order”). (A.R. 467-84.) On October 15, 2007, the Appeals Council 14 vacated the ALJ’s decision and remanded the case for further proceedings 15 consistent with the 2007 Order. (A.R. 467.) On September 28, 2007, (A.R. 487.) 16 17 On April 30, 2008, plaintiff, who was represented by counsel, 18 testified at a hearing before the ALJ. 19 2008, the ALJ again denied plaintiff’s claim. (A.R. 436-52.) On October 16, (A.R. 429-35.) 20 21 STANDARD OF REVIEW 22 23 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s 24 decision to determine whether it is free from legal error and supported 25 by substantial evidence in the record as a whole. 26 F.3d 625, 630 (9th Cir. 2007). 27 evidence as a reasonable mind might accept as adequate to support a 28 conclusion.’” Orn v. Astrue, 495 Substantial evidence is “‘such relevant Id. (citation omitted). 3 The “evidence must be more than 1 a mere scintilla but not necessarily a preponderance.” Connett v. 2 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). “While inferences from the 3 record can constitute substantial evidence, only those ‘reasonably drawn 4 from the record’ will suffice.” 5 1066 (9th Cir. 2006)(citation omitted). Widmark v. Barnhart, 454 F.3d 1063, 6 7 Although this Court cannot substitute its discretion for that of 8 the Commissioner, the Court nonetheless must review the record as a 9 whole, “weighing both the evidence that supports and the evidence that 10 detracts from the [Commissioner’s] conclusion.” 11 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 12 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 13 responsible for determining credibility, resolving conflicts in medical 14 testimony, and for resolving ambiguities.” 15 1035, 1039-40 (9th Cir. 1995). 16 support either a grant or a denial, [a federal court] may not substitute 17 [its] judgment for the ALJ’s.” 18 F.3d 1219, 1222 (9th Cir. 2009)(citation and internal punctuation 19 omitted). Desrosiers v. Sec’y of “The ALJ is Andrews v. Shalala, 53 F.3d “Where the evidence as a whole can Bray v. Comm’r of Soc. Sec. Admin., 554 20 21 The Court will uphold the Commissioner’s decision when the evidence 22 is susceptible to more than one rational interpretation. Tommasetti v. 23 Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008); Burch v. Barnhart, 400 F.3d 24 676, 679 (9th Cir. 2005); see also Batson v. Comm’r of Soc. Sec. Admin., 25 359 F.3d 1190, 1193 (9th Cir. 2004)(“if evidence exists to support more 26 than one rational interpretation, we must defer to the Commissioner’s 27 decision”). 28 the ALJ in his decision “and may not affirm the ALJ on a ground upon However, the Court may review only the reasons stated by 4 1 which he did not rely.” Orn, 495 F.3d at 630; see also Connett, 340 2 F.3d at 874. 3 it is based on harmless error, which exists only when it is “clear from 4 the record that an ALJ’s error was ‘inconsequential to the ultimate 5 nondisability determination.’” 6 880, 885 (9th Cir. 2006)(quoting Stout v. Comm’r, 454 F.3d 1050, 1055-56 7 (9th Cir. 2006)); see also Tommasetti, 533 F.3d at 1038; Burch, 400 F.3d 8 at 679. The Court will not reverse the Commissioner’s decision if Robbins v. Soc. Sec. Admin., 466 F.3d 9 DISCUSSION 10 11 Plaintiff alleges that the ALJ failed to comply with the 2007 Order 12 13 and properly consider the relevant medical evidence of record. (Joint 14 Stip. at 4.) 15 in three respects. 16 comply with this Court’s directive to consider and analyze adequately a 17 “frequent rests” limitation and a lifting limitation imposed by Dr. 18 Tariq Jamil, a consultative examining physician.2 (Id. at 4-7.) Second, 19 plaintiff complains that the ALJ, without explanation, altered his prior 20 RFC assessment in a manner unfavorable to plaintiff, i.e., the ALJ 21 omitted certain manipulation limitations he previously had found to be 22 supported by the evidence of record. 23 contends that the ALJ misstated and ignored the medical expert’s 24 testimony in concluding that plaintiff did not meet or equal a listed 25 impairment for a one-year period of time. As discussed below, plaintiff contends that the ALJ erred First, plaintiff argues that the ALJ failed to (Id. at 7-8.) Third, plaintiff (Id. at 5.) 26 27 28 2 Plaintiff also notes that the ALJ failed to indicate whether he considered the lifting limitations expressed earlier by a different consultative examiner, Dr. Rocely Ella-Tamayo. (Joint Stip. at 6.) 5 1 2 I. 3 The ALJ Erred By Failing To Comply With, And Exceeding The Scope Of, The 2007 Order. 4 5 In the 2007 Order, the Court found that “[t]he ALJ offered no 6 reason for his implicit rejection of” two functional limitations noted 7 by Dr. Jamil. 8 plaintiff is limited to lifting 10 pounds occasionally and frequently, 9 and standing and walking up to 4 hours in an 8-hour workday with (A.R. 476.) Specifically, Dr. Jamil opined that 10 frequent rests. (A.R. 297, 475.) 11 that plaintiff has the RFC to perform a limited range of light work 12 (A.R. 13), a category that requires the ability to lift up to 20 pounds 13 occasionally,3 as well as sedentary work, a category that would encompass 14 Dr. Jamil’s 10-pound lifting limitation.4 Although the ALJ acknowledged 15 Dr. Jamil’s 10-pound lifting limitation (A.R. 14), the ALJ failed to 16 address it further and implicitly rejected it, given the light work RFC 17 assessment he made (A.R. 13-15). 18 limited to walking no more than 4 hours out of an 8-hour workday, 19 without limitation. 20 Dr. Jamil’s “frequent rests” limitation (A.R. 14), the ALJ omitted it 21 from plaintiff’s RFC without explanation and, thus, implicitly rejected 22 it (A.R. 13-15). (A.R. 13.) In his 2005 decision, the ALJ found The ALJ also found that plaintiff is Again, although the ALJ acknowledged 23 24 The Court concluded that the “ALJ’s failure to address clearly and 25 either accept and reject” both the 10-pound lifting limitation and the 26 27 3 See 20 C.F.R. § 416.967(b). 28 4 See 20 C.F.R. § 416.967(a). 6 1 “frequent rests” limitation imposed by Dr. Jamil constituted reversible 2 error. 3 Court remanded the case “to allow the ALJ the opportunity to correct the 4 above errors.” 5 Appeals Council vacated the ALJ’s decision and remanded the case “for 6 further proceedings consistent with the” 2007 Order. (A.R. 476-77.) Accordingly, pursuant to the 2007 Order, the (A.R. 483.) In its subsequent order of remand, the (A.R. 487.) 7 A. 8 The Law Of The Case And Rule Of Mandate Doctrines 9 In Sullivan v. Hudson, 490 U.S. 877, 109 S. Ct. 2248 (1989), the 10 11 Supreme Court observed: 12 13 Where a court finds that the [Commissioner] has committed 14 a legal or factual error in evaluating a particular claim, the 15 district court’s remand order will often include detailed 16 instructions concerning the scope of the remand, the evidence 17 to 18 addressed. . . . 19 the subsequent administrative proceedings is itself legal 20 error, subject to reversal on further judicial review. be adduced, and the legal or factual issues to be Deviation from the court’s remand order in 21 22 Id. at 885-86, 109 S. Ct. at 2254-55 (citations omitted). Citing the 23 Supreme Court’s observation and other precedent, district courts in the 24 Ninth Circuit and elsewhere have applied the law of the case doctrine 25 and the rule of mandate doctrine5 in the social security context to find 26 27 28 5 Under the law of the case doctrine, the decision of an appellate court on a legal issue must be followed in all subsequent proceedings in the same case. See, e.g., United States v. Lewis, 611 F.3d 1172, 1179 7 1 reversal warranted when ALJ decisions exceed the scope of and/or 2 contravene district court remand orders. 3 4 In Holst v. Bowen, 637 F. Supp. 145 (E.D. Wash. 1986), the ALJ 5 found the claimant disabled for a closed period but not disabled 6 thereafter. The claimant filed a federal action challenging the finding 7 that he was not disabled for the subsequent period. 8 remanded the case for the consideration of several recent Ninth Circuit 9 decisions. Id. at 145-46 & n.1. The district court On remand, the ALJ proceeded through 10 the full five-step sequential evaluation and, based on new evidence 11 considered, found that the claimant had never been disabled. 12 146. 13 that portion of the decision which held that claimant fully met the 14 disability requirements for the closed period,” and “[t]he unambiguous 15 tenor of the order of remand necessarily assumed the validity of the 16 finding 17 previously found by the ALJ. Id. at On appeal, the district court observed that “[n]o one appealed that claimant was disabled” during Id. at 146-47. the closed period as The Court concluded that 18 19 20 21 22 (9th Cir. 2010); see also Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993)(under the law of the case doctrine, “a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case”). “[A]n inferior court ‘is bound by the [appellate court’s] decree as the law of the case; and must carry it into execution, according to the mandate.’” Vizcaino v. U.S. District Court, 173 F.3d 713, 719 (9th Cir. 1999)(quoting In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S. Ct. 281 (1895)). 23 24 25 26 27 28 The rule of mandate doctrine is a variant of the law of the case doctrine. Ischay v. Barnhart, 383 F. Supp. 2d 1199, 1214 (C.D. Cal. 2005). Under the rule of mandate doctrine, a lower court receiving a mandate “‘cannot vary it or examine it for any other purpose than execution.’” United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1996)(citation omitted). “The rule of mandate requires that, on remand, the lower court’s actions must be consistent with both the letter and the spirit of the higher court’s decision.” Ischay, 383 F. Supp. 2d at 1214 (emphasis in original; citing Quern v. Jordan, 440 U.S. 332, 347 n.18, 99 S. Ct. 1139 (1979)). 8 1 “[t]he fact of [claimant’s] disability during that period thereby became 2 the 3 administrative proceedings.”6 law of the case and not subject to tampering in further Id. at 147. 4 5 In Ruiz v. Apfel, 24 F. Supp. 2d 1045 (C.D. Cal. 1998), an ALJ 6 found that the claimant could not perform her past relevant work and, at 7 step five after applying the grids, found that she was not disabled. 8 After plaintiff sought judicial review, the district court remanded the 9 case for two limited purposes, namely, for the ALJ to provide further 10 findings with respect to his credibility assessment and determine the 11 propriety of the use of the grids at step five. 12 supplemental hearing, the ALJ found that the claimant could perform her 13 past relevant work and, thus, found her not disabled at step four. 14 at 1047. 15 the ALJ had erred in reviewing, and redetermining, the step four issue 16 previously found in her favor, which had not been appealed. 17 agreed, observing that the “remand order did not authorize the Appeals 18 Council or the ALJ to revisit the previous step-four determination that 19 plaintiff could not perform her past relevant work” and that: On remand, following a Id. After again seeking judicial review, the claimant argued that The Court 20 6 21 The Court noted the Sixth Circuit’s decision in Mefford v. Gardner, 383 F.2d 748 (6th Cir. 1967)(reversing an adverse decision by an ALJ following a remand), and quoted from it as follows: 22 23 24 25 26 27 28 The Hearing Examiner was bound to obey the directions of the mandate without variation; and failure to follow the instructions therein given was error. He failed to follow the instructions of the District Court, and, instead, introduced a mass of evidence with the purpose of holding, contrary to the decision of the District Court, that appellee was not suffering from a heart condition which prevented him from carrying out the work in which he was previously engaged. In so doing, and in creating a new case, the Hearing Examiner committed error. Holst, 637 F. Supp. at 147 (quoting Mefford, 383 F.2d at 756). 9 1 [T]he Appeals Council order vacating the prior decision and 2 remanding the case “for further proceedings consistent with 3 the order of the court” [did not] suggest that review beyond 4 the scope of the court’s order was permitted or contemplated. 5 There was, accordingly, no basis for the ALJ to review issues 6 that had been determined in plaintiff’s favor. 7 8 Id. at 1050 (record citation omitted). 9 10 More recently, in Ischay, supra, the district court reached a 11 similar result through express application of the law of the case/rule 12 of mandate doctrines. Following the first remand by the district court, 13 the ALJ found that the plaintiff was limited to light exertional work, 14 could not perform his past relevant work, and was not disabled at step 15 five, because he had transferrable skills and/or could perform other 16 jobs. 17 and the district court’s remand order directed the ALJ to obtain 18 testimony from a vocational expert regarding the step five issue of 19 vocational adjustment. 20 remand, the ALJ made new findings at the various steps of the sequential 21 evaluation, finding at step four that the plaintiff was not disabled and 22 concluding that he could perform his past relevant work. 23 The district court held that, based on the rationale of Holst, supra, 24 the law of the case and rule of mandate doctrines apply to cases 25 remanded to the Commissioner for further proceedings.7 The second remand was pursuant to a stipulation of the parties, 383 F. Supp. 2d at 1208. Following the second Id. at 1212. Id. at 1216-17. 26 27 28 7 The Court expressly rejected the Commissioner’s argument that 20 C.F.R. § 404.983 -- which, like 20 C.F.R. § 416.1483, states that, on remand, “[a]ny issues may be considered by the administrative law judge 10 1 The district court found that the ALJ had violated the law of the case 2 doctrine and exceeded the scope of the mandate by reconsidering his 3 prior step one through step four findings.8 Id. at 1218-19. 4 5 Similarly, in Calderon v. Astrue, 683 F. Supp. 2d 273 (E.D.N.Y. 6 2010), the district court initially remanded based on error at step 7 five, 8 physician’s opinion had been given on the step five issue of whether the 9 claimant could perform other jobs in the national economy. namely, remand, due the to ALJ a failure removed to state certain what weight a treating Following 10 that previously-determined fine 11 manipulation limitations from his RFC assessment without explanation and 12 13 18 whether or not they were raised in the [prior] administrative proceedings” -- precludes application of the doctrines. Ischay, 383 F. Supp. 2d at 1217. The Court noted that, as in the instant case, the Appeals Council remanded the matter to the ALJ “for further proceedings consistent with the order of the [federal] court,” and 20 C.F.R. § 404.977(b) -- like 20 C.F.R. § 416.1477(b) -- states that ALJs may “take any additional action that is not inconsistent with the Appeals Council’s remand order.” Id. The Court reasoned that the language of the Appeals Council’s remand order bound the ALJ to follow the district court’s remand instructions, and thus, the law of the case doctrine was applicable. Id. 19 8 14 15 16 17 20 21 22 23 24 25 26 27 28 Other recent decisions issued in this district court have reached similar conclusions -- viz., that ALJ actions on remand violated the law of the case and/or rule of mandate doctrines -- including, inter alia: Loeung v. Astrue, 2010 WL 3365799 (C.D. Cal. Aug. 24, 2010)(although remand had been for the purpose of positing a new hypothetical to the vocational expert, the ALJ purported to “clarify” his prior RFC finding by changing it; however, this error was found to be harmless); Gallagher v. Astrue, 2009 WL 57033 (C.D. Cal. Jan. 6, 2009)(although remand was limited to step four and step five issues regarding plaintiff’s past relevant work and alternate work, the ALJ made a redetermination of the plaintiff’s severe impairments at step two, reassessed the plaintiff’s RFC at step four, and eliminated moderate limitations previously found); White v. Astrue, 2009 WL 363620 (C.D. Cal. Feb. 13, 2009)(although remand was based on the ALJ’s erroneous reliance solely on the grids at step five and was for the purpose of adducing vocational expert testimony, the ALJ rendered a less restrictive RFC finding on remand); Coto v. Astrue, 2008 WL 4642965 (C.D. Cal. Oct. 20, 2008)(the ALJ conducted “an entirely new RFC analysis” following a remand limited to two specific issues). 11 1 concluded at step four that the claimant could perform his past relevant 2 work. 3 case doctrine by reconsidering the step four determinations made in 4 prior decisions. 5 irrelevant that, in the prior federal action, there had not been an 6 explicit determination regarding the validity of the prior step four 7 findings, because the law of the case doctrine applies to all matters 8 decided directly or by necessary implication. 9 observed: Id. at 276. The Court found that the ALJ violated the law of the Id. at 276-77. The Court concluded that it was Id. at 276. The Court 10 11 The point is particularly important in Social Security appeals 12 because a district court is never called upon to address 13 issues 14 obviously 15 Commissioner cannot challenge them because they were made by 16 him (or his delegate) in the first place. . . . 17 from this procedural anomaly that when a district court passes 18 judgment on, for example, an ALJ’s step-five determination, it 19 has implicitly affirmed the determinations at all prior steps. resolved cannot in the claimant’s challenge such favor; the determinations, claimant and the [I]t follows 20 21 Id. at 276-77.9 22 23 9 24 25 26 27 28 The Court rejected the Commissioner’s argument that the law of the case doctrine cannot apply, because its operating procedures require an ALJ to redetermine all issues on remand. The Court noted that the procedures state only that the ALJ must consider all pertinent issues de novo. Calderon, 683 F. Supp. 2d at 277 (citing Soc. Sec. Admin., Hearings, Appeals & Litig. Law Manual (HALLEX) at § I-2-8-18 (2008)). As the Court reasoned, when the Appeals Council remands a matter for further proceedings consistent with the federal court’s order, the Appeals Council has limited the pertinent issues to those identified by the district court in its order of remand. Id. 12 1 The foregoing authorities persuasively explain why the law of the 2 case and law of mandate doctrines should apply in the Social Security 3 context, and the Court agrees with, and adopts, their reasoning and 4 rationales.10 5 whether the ALJ complied with the 2007 Order and/or exceeded its scope 6 must be considered in view of these doctrines. Accordingly, the Court concludes that the question of 7 8 B. The ALJ’s Modification Of Plaintiff’s RFC To Remove Previously-Imposed Manipulation Limitations Exceeded The 9 Scope Of The 2007 Order 10 11 12 Plaintiff complains that the ALJ reassessed plaintiff’s RFC to omit 13 certain manipulation limitations that he previously found necessary. 14 Specifically, in his September 22, 2005 decision, ALJ Levine found that 15 plaintiff is precluded from work requiring, inter alia: 16 keyboarding in excess of 2 hours per day total or greater than 15 17 minutes at one time; and greater than occasional lifting above shoulder 18 level. 19 however, ALJ Levine omitted these limitations without providing any 20 explanation for their omission. 21 these limitations were omitted by the ALJ without explanation but 22 dismisses the omission as inconsequential, arguing that the ALJ “was not 23 bound by the prior ALJs’ RFC assessments and was not required to explain (A.R. 13.) continuous In his post-remand October 16, 2008 decision, (A.R. 432.) Defendant concedes that 24 25 26 27 28 10 As the Court observed in Ischay, “[n]o published opinion of the Ninth Circuit has applied the doctrine of the law of the case or the rule of mandate to preclude ALJs from relitigating issues settled in district court orders.” 383 F. Supp. 2d at 1215. However, other Circuit Courts “have held that the doctrine of the law of the case and the rule of mandate apply to Social Security proceedings.” Id. at 1216 n.7 (discussing Fourth, Sixth, and Seventh Circuit decisions). 13 1 that he found different manipulative limitations than the prior ALJs.” 2 (Joint Stip. at 12.) 3 rendered both decisions in issue and, thus, omitted his own previously- 4 imposed limitations (see A.R. 16 and 435), but in any event, even if 5 decisions 6 nevertheless would fail. by Defendant, of course, overlooks that the same ALJ different ALJs were involved, defendant’s argument 7 8 The Court, through its 2007 Order, remanded this matter for the 9 proper consideration by the ALJ of two specific items of evidence -- 10 namely, 11 restriction -- and to afford the ALJ the opportunity to rectify his 12 error in failing to consider these limitations properly and either 13 reject them, if warranted, or incorporate them into plaintiff’s RFC. 14 The 2007 Order did not contemplate any revisiting and elimination of 15 unrelated limitations11 that the ALJ had found warranted by the evidence 16 of record in his 2005 decision. 17 2005 decision that favored plaintiff were not appealed; they were not 18 disturbed by the 2007 Order and, thus, were implicitly affirmed, for the 19 reasons outlined in Calderon, 683 F. Supp. at 276-77. 20 Council, through its remand order, explicitly remanded the matter to the 21 ALJ “for further proceedings consistent with the” 2007 Order, and thus, 22 it limited the “pertinent” issues for determination on remand to the two 23 issues set forth in the 2007 Order. Dr. Jamil’s lifting restriction and his “frequent rests” Any limitations found by the ALJ in his The Appeals 24 11 25 26 27 28 The need for the ALJ to clarify his consideration of Dr. Jamil’s lifting limitations and properly consider Dr. Jamil’s “frequent rests” limitation had nothing to do with the manipulative limitations found by the ALJ in his 2005 decision. Put otherwise, because the manipulation limitations and Dr. Jamil’s two limitations in issue were unrelated, whatever conclusion the ALJ reached on remand with respect to Dr. Jamil’s two inadequately-addressed limitations would not have had any effect on the previously-determined manipulation limitations. 14 1 The ALJ, therefore, was not authorized to revisit his 2005 RFC 2 determination in toto, much less to render a new RFC finding that was 3 less favorable to plaintiff through the omission of the above-noted 4 limitations, which the ALJ previously had found to be warranted. 5 ALJ’s decision to reconsider plaintiff’s limitations entirely and to 6 remove certain limitations from her newly assessed RFC exceeded not only 7 the scope of the 2007 Order, in violation of the law of the case and 8 rule of mandate doctrines, but also the Appeals Council’s order of 9 remand, in contravention of 20 C.F.R. § 416.1477(b). The 10 The ALJ’s error in this respect cannot be found to be harmless. 11 In 12 the hypothetical he posed to the vocational expert at the April 30, 2008 13 hearing, the ALJ omitted the manipulation limitations and stated only 14 the amended RFC and the light work category12 he subsequently set forth 15 in his 2008 decision. 16 number of light, unskilled positions that a person with such an RFC 17 could perform. 18 expert to include in the hypothetical the additional limitations of 19 “occasional fingering and occasional twisting, flexion extension and so 20 forth of the wrists,” the vocational expert stated that the inclusion of 21 such limitations “would delete all those jobs,” because they “all 22 require frequent to continuous use of the hands” and “handling.” 23 450.) (Id.) (A.R. 449.) The vocational expert identified a When plaintiff’s counsel asked the vocational (A.R. 24 Accordingly, the ALJ’s error in exceeding the scope of the 2007 25 26 12 27 28 The hypothetical that the ALJ posed to the vocational expert was premised on a claimant having the ability to perform light work; the ALJ did not pose any hypothetical premised on the ability to perform only sedentary work. 15 1 Order, by the omission of limitations previously found to be warranted, 2 constitutes reversible error. 3 C. 4 The ALJ Failed To Comply With The Directive Of The 2007 5 Order To Properly Consider The Two Additional Limitations 6 Found By Dr. Jamil. 7 8 In the 2007 Order, the Court concluded that the ALJ, by his 9 assessment of an RFC for light work, implicitly had rejected Dr. Jamil’s 10 lifting limitation of 10 pounds occasionally and frequently. 11 noted, additionally, the uncertainty engendered by the ALJ’s subsequent 12 reference to an RFC finding for a narrow range of light and sedentary 13 work. 14 failure to indicate what consideration (if any) he gave to Dr. Jamil’s 15 lifting limitation, the Court held that the ALJ’s failure to address Dr. 16 Jamil’s lifting limitation, and clearly either accept or reject it, 17 constituted error. 18 also had implicitly rejected Dr. Jamil’s “frequent rests” limitation, 19 given that the ALJ’s RFC assessment failed to include this limitation. 20 (A.R. 476.) 21 for 22 constituted error. (A.R. 476.) the The Court Regardless of that uncertainty, given the ALJ’s (A.R. 476-77.) The Court concluded that the ALJ The Court held that the ALJ’s failure to state any reason rejection of this portion of Dr. Jamil’s opinion also (A.R. 476-77.) 23 24 The 2007 Order remanded the matter “to allow the ALJ the 25 opportunity to correct the above errors.” (A.R. 479, 483.) The Appeals 26 Council remanded the case to the ALJ “for further proceedings consistent 27 with the [2007 Order].” 28 obligated to address and rectify the two errors identified in the 2007 (A.R. 487.) 16 Thus, on remand, the ALJ was 1 Order with respect to the lifting and “frequent rests” limitations found 2 by Dr. Jamil. The ALJ, however, has failed in both respects. 3 1. 4 Dr. Jamil’s Lifting Limitation 5 6 At the 2008 hearing, Dr. Arthur Lorber, a medical expert, testified 7 telephonically, without objection from plaintiff’s counsel. 8 39.) Dr. Lorber opined that, following an unspecified date in April 9 2002, plaintiff had the RFC to occasionally (A.R. 440-41.) lift 20 (A.R. 438- pounds and 10 frequently lift 10 pounds. The ALJ did not ask Dr. 11 Lorber why he had imposed a less restrictive lifting limitation than 12 that imposed by Dr. Jamil or, previously, by Dr. Ella-Tamayo.13 13 440-42.) 14 hypotheticals he posed to the vocational expert was the less restrictive 15 limitation found by Dr. Lorber; the ALJ did not pose a hypothetical 16 utilizing the more restricted lifting limitations assessed by Dr. Jamil 17 or Dr. Ella-Tamayo. 18 assessment set forth in his 2008 decision, the ALJ relied only on, and 19 adopted, Dr. Lorber’s opinion, which included the above-noted lifting 20 limitation consistent with light work -- a less restrictive limitation 21 than that imposed by Dr. Jamil. 22 decision did not mention Dr. Jamil’s lifting limitation at all. 23 429-35.) (A.R. The only lifting limitation utilized by the ALJ in the (A.R. 449-50.) In connection with the RFC (Compare A.R. 432 with 441.) The ALJ’s (A.R. 24 The 2007 Order, plainly, required the ALJ to accept or reject Dr. 25 26 13 27 28 In October 2001, Dr. Ella-Tamayo opined that plaintiff was restricted to lifting 5 pounds on the right side, due to her right shoulder arthritis, and 10 pounds frequently and 25 pounds occasionally on her left side. (A.R. 223.) 17 1 Jamil’s lifting limitation and, if the ALJ decided to reject it, to set 2 forth adequate reasons for doing so in compliance with the governing 3 legal standards. The ALJ clearly contravened that directive. The ALJ’s 4 2008 decision ignores Dr. Jamil’s lifting limitation entirely and fails 5 to set forth any reason whatsoever for rejecting it. 6 repeated the same error that the 2007 Order directed be rectified. 7 ALJ’s disregard of the duty imposed by the 2007 Order to consider 8 properly the lifting limitation imposed by Dr. Jamil and, if a rejection 9 of that limitation was in order, to state legally valid reasons for 10 rejecting Dr. Jamil’s opinion, was improper under the rule of mandate 11 doctrine. 12 the 2007 Order by ignoring it; his failure to even mention Dr. Jamil’s 13 lifting limitation is inexplicable. 14 this portion of the 2007 Order, therefore, clearly constitutes error. The ALJ, thus, has The The ALJ was not entitled to simply sidestep this aspect of The ALJ’s failure to comply with 15 16 On top of the foregoing reversible error, the ALJ committed an 17 additional, and related, error. 18 found by Dr. Lorber, a non-examining physician, the ALJ rejected the 19 contrary opinions of Dr. Jamil and Dr. Ella-Tamayo, both consultative, 20 examining physicians. 21 by itself constitute substantial evidence that justifies the rejection 22 of 23 physician.” Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1996)(emphasis 24 in original); see also, e.g., Morgan v. Comm’r. of Social Sec. Admin., 25 169 F.3d 595, 600 (9th Cir. 1999); Pitzer v. Sullivan, 908 F.2d 502, 506 26 n.4 (9th Cir. 1990). 27 is entitled to less weight than that of an examining physician, as the 28 former has not had the opportunity to conduct an independent examination the opinion of By adopting the lifting limitation “The opinion of a nonexamining physician cannot either an examining physician or a treating The opinion of a non-examining physician normally 18 1 of the claimant. 2 1194, 1198 (9th Cir. 2008)(“the opinion of an examining physician is 3 entitled to greater weight 4 physician”); Pitzer, 908 5 non-examining physician is entitled to less weight than the conclusion 6 of an examining physician”). 7 examining physician in favor of the opinion of a nonexamining medical 8 advisor, the ALJ must set forth specific, legitimate reasons that are 9 supported by substantial evidence in the record.” Nguyen v. Chater, 100 10 F.3d 1462, 1466 (9th Cir. 1996)(emphasis in original); see also Andrews, 11 53 F.3d at 1041 (when a nontreating source’s opinion contradicts that of 12 the treating or examining physician but is not based on independent 13 clinical findings, or rests on clinical findings also considered by the 14 treating 15 examining physician “may be rejected only if the ALJ gives specific, 16 legitimate reasons for doing so that are based on substantial evidence 17 in the record”). or See, e.g., Ryan v. Comm’r. of Social Sec., 528 F.3d examining than F.2d at the 506 opinion n.4 of (“the a non-examining conclusion of a “In order to discount the opinion of an physician, the opinion of the treating or 18 19 Given that Dr. Lorber’s opinion regarding plaintiff’s lifting 20 capability contradicted that of two examining physicians and lacked any 21 independent clinical support, the different conclusion drawn by the 22 medical 23 constitute substantial evidence. 24 not proffer a single reason, much less the requisite specific and 25 legitimate 26 physicians and for deferring, instead, to the medical expert’s opinion. 27 The ALJ’s failure to explicitly reject the opinions of Dr. Jamil and Dr. 28 Ella-Tamayo regarding plaintiff’s lifting limitations, and the ALJ’s expert regarding reasons, for plaintiff’s lifting capability cannot Moreover, and critically, the ALJ did rejecting 19 the opinions of the examining 1 failure to set forth specific and legitimate reasons for crediting Dr. 2 Lorber’s opinion on this issue over the opinions of two examining 3 physicians, constitutes an independent reversible error above and beyond 4 his noncompliance with the 2007 Order. 5 6 2. Dr. Jamil’s “Frequent Rests” Limitation 7 8 The ALJ did note Dr. Jamil’s “frequent rests” limitation in his 9 2008 decision but rejected the “frequent rests” limitation for the 10 stated reasons that: Dr. Jamil failed to “specifically define” what he 11 meant by “‘frequent rests’ in terms of frequency or duration”; “there is 12 no demonstrated medical pathology which would specifically address the 13 need for such frequent breaks”; Dr. Lorber did not “specify the need for 14 any type of ‘frequent rest’”; and the ALJ would limit plaintiff to 15 standing and/or walking for no more than one hour at a time, “at which 16 time it would be reasonable for the claimant to change position.” (A.R. 17 433.) 18 Jamil’s “frequent rests” limitations. None of these reasons is a tenable basis for rejecting Dr. 19 20 The ALJ’s reliance on Dr. Lorber’s failure to include this same 21 limitation in his opinion is neither legitimate nor convincing. 22 Lorber was not asked if any such limitation was appropriate or why he 23 disagreed with Dr. Jamil in this respect. 24 assessed by an examining physician cannot be rejected simply because a 25 non-examining physician did not mention such a limitation, as the 26 authorities discussed previously make clear. (A.R. 440-42.) Dr. A limitation 27 28 The ALJ’s second and third stated reasons are variants on the same 20 1 theme, namely, that Dr. Jamil’s opinion was uncertain and the ALJ did 2 not find “medical pathology” to support it. 3 basis for summarily dismissing Dr. Jamil’s opinion, however, the ALJ’s 4 conclusions gave rise to a duty on his part to obtain clarification of 5 Dr. Jamil’s opinion. Rather than serving as a 6 7 In Social Security cases, the law is well-settled that the ALJ has 8 an affirmative “‘duty to fully and fairly develop the record and to 9 assure that the claimant’s interests are considered . . . even when the Celaya v. Halter, 332 F.3d 1177, 10 claimant is represented by counsel.’” 11 1183 (9th Cir. 2003)(ellipsis in original; quoting Brown v. Heckler, 713 12 F.2d 441, 443 (9th Cir. 1983)); Smolen v. Chater, 80 F.3d 1273, 1273 13 (9th Cir. 1279). 14 triggered by ambiguous evidence, the ALJ’s own finding that the record 15 is inadequate or the ALJ’s reliance on an expert’s conclusion that the 16 evidence is ambiguous.” 17 2005)(citing Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)). 18 An ALJ can discharge his or her duty to develop the record “in several 19 ways, including: subpoenaing the claimant’s physicians, submitting 20 questions to the claimant’s physicians, continuing the hearing, or 21 keeping the record open after the hearing to allow supplementation of 22 the record.” 23 1288; 20 C.F.R. § 416.1444 (stating that the ALJ may continue the 24 hearing if he believes material evidence is missing, and may reopen the 25 hearing at any time prior to mailing a notice of decision to receive new 26 and material evidence); 20 C.F.R. § 416.1450(d)(providing that the ALJ 27 may issue subpoenas on his own initiative or at the request of a party). “The ALJ’s duty to supplement a claimant’s record is Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. Tonapetyan, 242 F.3d at 1150; see also Smolen, 80 F.3d at 28 21 1 Thus, an ALJ has a duty “‘to scrupulously and conscientiously probe 2 into, inquire of, and explore for all the relevant facts’” by procuring 3 the necessary, relevant treatment records. Higbee v. Sullivan, 975 F.2d 4 558, 561-62 (9th Cir. 1991)(citation omitted). 5 Smolen, supra, the Ninth Circuit held that the ALJ erred in rejecting 6 the uncontroverted opinion of a treating physician on the ground, inter 7 alia, that the physician did not explain the basis for his “yes-or-no” 8 answers to questions. 9 to meet his duty of stating clear and convincing reasons for rejecting 10 the opinions, and “[i]f the ALJ thought he needed to know the basis of 11 [the treating physician’s] opinions in order to evaluate them, he had a 12 duty to conduct an appropriate inquiry, for example, by subpoenaing the 13 physicians or submitting further questions to them.” 14 “Having failed to fully develop the record regarding the basis for [the 15 physician’s] opinions, the ALJ could not then reject those opinions -- 16 which were uncontroverted and corroborated -- because they were given in 17 response to leading, hypothetical questions.” Thus, for example, in The Ninth Circuit found that the ALJ had failed 80 F.3d at 1288. Id. 18 19 Here as well, the ALJ’s assertion -- that Dr. Jamil’s “frequent 20 rests” limitation was rejected, because Dr. Jamil failed to 21 “specifically define” what he meant in this respect -- was not a clear 22 and convincing reason for flatly rejecting the examining physician’s 23 opinion. 24 found Dr. Jamil’s “frequent rests” opinion to be ambiguous. 25 ALJ expressly stated, he needed clarification as to the meaning of Dr. 26 Jamil’s opinion regarding “frequent rests,” the ALJ should have obtained 27 such clarification through the several means available to him for doing 28 so. Having failed to meet his duty to “conduct an appropriate inquiry,” The ALJ’s statement constituted an acknowledgment that he 22 If, as the 1 the ALJ’s stated reason for rejecting Dr. Jamil’s opinion was neither 2 clear not convincing. Smolen, 80 F.3d at 1288. 3 The ALJ’s related stated reason -- “there is no demonstrated 4 5 medical pathology documented 6 specifically address the need for such frequent breaks” (A.R. 433) -- is 7 also not convincing. The ALJ found that plaintiff has severe orthopedic 8 impairments and further, based on Dr. Lorber’s opinion, that she cannot 9 walk for greater than 4 hours out of 8 and for no more than 1 hour at a (A.R. 431-32.) anywhere in the record which would 10 time. 11 limitation, Dr. Lorber cited to multiple items of objective medical 12 evidence, including: 13 degenerative 14 September 17, 2003 MRI showing probable right anterior cruciate ligament 15 tear at the femoral attachment and a lateral meniscus tear (A.R. 332); 16 an August 14, 2003 medical note indicating that plaintiff knee surgery 17 performed on October 8, 1999, for a right lateral meniscus tear (A.R. 18 326); 19 osteoarthritis in her knees (A.R. 329).14 (A.R. 441.) Dr. Lorber opined 20 that he limited plaintiff’s standing and walking based on osteoarthritis 21 in both of her knees. 22 Lorber’s limitation, the ALJ necessarily determined that the above-noted 23 medical 24 limitation with a significant durational cap. 25 that there is no “medical pathology” that might support Dr. Jamil’s and When the ALJ asked Dr. Lorber the basis for this arthritis March evidence 23, was a December 19, 2004 x-ray that demonstrated in 2005 plaintiff’s x-rays that (A.R. 441-42.) demonstrative left knee (A.R. demonstrated 237-38); plaintiff a has Given the ALJ’s adoption of Dr. of the need for a stand/walk Hence, the ALJ’s finding 26 27 14 28 The March 23, 2005 x-rays also revealed mild arthritic changes in both of plaintiff’s hips. (A.R. 330.) 23 1 opinion is not supported by substantial evidence.15 2 3 The ALJ’s assertion that his allowance of a one-hour limit on 4 standing and/or walking prior to a change of position was a more 5 “reasonable” limitation than a “frequent rests” limitation also is not 6 a legitimate basis for rejecting Dr. Jamil’s opinion. 7 permitted 8 physician. 9 1999)(finding that the ALJ erred in concluding that the claimant could 10 sit for two hours without changing position, based on the claimant’s 11 testimony regarding a lengthy driving trip, when the treating physicians 12 and the medical expert opined that the claimant needed to change 13 position every half hour); see also Clifford v. Apfel, 227 F.3d 863, 870 14 (7th Cir. 2000)(observing that “‘ALJs must not succumb to the temptation 15 to play doctor and make their own independent medical findings’” 16 (citation omitted); and finding that an ALJ’s RFC finding that the 17 claimant could stand or walk for up to six hours, notwithstanding a 18 treating physician’s opinion that the claimant’s knee arthritis limited 19 her ability to stand or walk on a sustained basis, was an erroneous 20 substitution by the ALJ of his medical judgment for that of the 21 physician). 22 limitation out of thin air and premised it on Dr. Lorber’s opinion, as 23 discussed herein, the ALJ has not stated any tenable basis for rejecting 24 Dr. Jamil’s opinion. to substitute his own medical judgment An ALJ is not for that of a See Tackett v. Apfel, 180 F.3d 1094, 1102-03 (9th Cir. While the ALJ apparently did not pluck this one-hour Hence, the ALJ’s rejection of Dr. Jamil’s opinion 25 26 27 28 15 Dr. Jamil stated that he had reviewed a December 19, 2001 x-ray of plaintiff’s knees, which showed mild degenerative arthritis. (A.R. 297; see also A.R. 268.) The subsequent x-rays and the MRI on which Dr. Lorber relied were consistent, and thus, they did not detract from Dr. Jamil’s opinion. 24 1 in favor of Dr. Lorber’s opinion was improper and did not serve as a 2 legitimate reason for disregarding Dr. Jamil’s opinion. 3 4 Significantly, the medical record before the ALJ following remand 5 stopped in March 2005. Indeed, at the hearing, the medical expert 6 specifically questioned the lack of updated records, asking “why is it 7 that we have no records for the past three years?” 8 asked plaintiff’s counsel about the lack of updated records, and counsel 9 responded that he had requested them from “the county two months ago” (A.R. 439.) The ALJ 10 but had not received them. 11 indicated that plaintiff’s lower extremity orthopedic impairments may 12 have been getting worse. 13 rendered her consultative opinion, Dr. Jamil found more restrictive 14 limitations warranted, and in the intervening years, x-rays and an MRI 15 repeatedly showed degenerative changes in plaintiff’s knees. 16 lack of updated medical records for the three years preceding the 2008 17 hearing, and the ALJ’s professed inability to understand the nature and 18 scope of Dr. Jamil’s “frequent rests” limitation, it was incumbent upon 19 the ALJ to obtain some clarification of Dr. Jamil’s opinion rather than 20 just deferring to Dr. Lorber’s testimony. (Id.) The medical evidence of record Three and a half years after Dr. Ella-Tamayo Given the 21 22 Given the 2007 Order’s directive that the ALJ appropriately 23 consider Dr. Jamil’s “frequent rests” limitation on remand, “including 24 [conducting] any further proceedings . . . as may be needed” (A.R. 25 479)), the ALJ’s rejection of this portion of Dr. Jamil’s opinion 26 without first attempting to obtain clarification was improper. The ALJ, 27 thus, failed to comply with the 2007 Order in this respect. 28 cannot find this error be harmless. 25 The Court 1 In the 2007 Order, the Court noted that, at the 2005 hearing, the 2 ALJ propounded a hypothetical to the vocational expert positing a 3 sedentary level of work and that the claimant would be “off task 20 4 percent of the time due to” orthopedic and/or focus/concentration 5 problems; in response, the vocational expert opined that there is no 6 work that could be performed by the claimant. 7 Court observed that it was unclear whether or not the “off task” 8 limitation included in the hypothetical correlated to Dr. Jamil’s 9 “frequent rests” limitation. (A.R. 478.) (A.R. 418, 478.) The At the 2008 hearing, the 10 vocational expert testified that, based on Dr. Lorber’s RFC opinion, 11 there were light, unskilled positions available that plaintiff could 12 perform. 13 claimant would be “off task at least 20% of the time due to pain,” and 14 the vocational expert responded that “there would not be any work,” 15 because the claimant would not be “working at a competitive rate for 16 full-time employment.” 17 whether the ALJ’s “off task” reference was intended to encompass Dr. 18 Jamil’s “frequent rests” limitation or not; if it was, then the ALJ’s 19 error plainly was not harmless. The ALJ then asked the vocational expert to assume that the (A.R. 449-50.) Once again, it is unclear 20 21 Accordingly, the Court finds that the ALJ did not comply with the 22 2007 Order with respect to the consideration of Dr. Jamil’s lifting 23 limitation and “frequent rests” limitation. 24 above, that error warrants reversal. 25 /// 26 /// 27 /// 28 /// 26 For the reasons set forth 1 II. The ALJ Did Not Properly Consider The Medical Expert’s 2 Testimony Indicating That Plaintiff Met Or Equaled A Listing 3 For A Closed Period. 4 5 At the 2008 hearing, the ALJ asked Dr. Lorber: “[B]ased on the 6 records that you have reviewed, do you have an opinion as to whether 7 during the time frame after 4-27-01 up to and including today, whether 8 the claimant met or equaled a listing?” 9 responded: (A.R. 440.) Dr. Lorber “Between the onset of April 27 ’01 and April of ’02 she met 10 listing 1. [sic], 11.04 peripheral neuropathy regarding bilateral carpal 11 tunnel syndrome. 12 listing.” 13 had opined that plaintiff “may have met a listed impairment but did not 14 satisfy the durational one year period.” (Id.) Subsequent to that she no longer met or equaled a In his 2008 decision, the ALJ stated that Dr. Lorber (A.R. 433.) 15 16 Plaintiff contends that the ALJ misstated Dr. Lorber’s testimony, 17 because Dr. Lorber’s testimony indicated a finding that, “for at least 18 a 12 month period of time from April of 2001 through April of 2002 this 19 Plaintiff met listing 11.04 regarding her upper extremity impairments.” 20 (Joint Stip. at 5.) 21 that plaintiff met the indicated listing “for the entire period from 22 April 2001 to April 2002, but simply that she met a listing between 23 those dates.” 24 portions of the medical evidence and asserts that: 25 complain of bilateral wrist pain until May 16, 2001, had carpal tunnel 26 release surgery on March 6, 2002, and had her sutures removed on March 27 22, 2002; and thus, her disabling condition lasted only from May 16, 28 2001, through March 22, 2002, which was less than 12 months. Defendant argues that Dr. Lorber did not testify (Id. at 11; emphasis in original.) 27 Defendants cites plaintiff did not (Id.) 1 Defendant’s argument fails for several reasons. First, defendant 2 overlooks the fact that these same medical records show that, on April 3 10, 2001, plaintiff complained to her treating physician of “numbness 4 and tingling of both hands.” 5 visit on May 16, 2001, at which time she again complained of bilateral 6 numbness and tingling, as well as wrist and hand pain. 7 When plaintiff did have her surgery sutures removed on March 22, 2002, 8 her impairment did not disappear at that moment ipso facto. 9 still complained of throbbing pain as of that date, and her medical 10 notes indicate that she should return in a month for a re-check to 11 determine whether she had the full use of her hands. 12 April 23, 2002, plaintiff reported to her treating physician that she 13 was experiencing right wrist swelling and pain. 14 defendant’s argument that plaintiff’s carpal tunnel-based impairment 15 lasted for less than 12 months is not supported by the record. (A.R. 207.) She returned for a follow-up (A.R. 206.) Plaintiff (A.R. 257.) (A.R. 256.) On In short, 16 17 Even if defendant’s argument did not fail factually, it would fail 18 legally, because it rests on an improper post hoc rationale. 19 did not cite the medical evidence on which defendant relies to support 20 his step three finding; rather, the ALJ relied only on his above-quoted 21 description of Dr. Lorber’s testimony. 22 the denial of benefits based on a reason not stated or a finding not 23 made by the ALJ, and the Commissioner’s after-the fact attempt to supply 24 an acceptable basis for the ALJ’s decision is unavailing. 25 Connett, 340 F.3d at 874; Pinto v. Massanari, 249 F.3d 840, 847-48 (9th 26 Cir. 2001)(an agency decision cannot be affirmed on the basis of a 27 ground the agency did not invoke in making its decision); Barbato v. 28 Comm’r of Soc. Sec. Admin., 923 F. Supp. 1273, 1276 n. 2 (C.D. Cal. 28 The ALJ A reviewing court cannot affirm See, e.g., 1 1996)(remand is appropriate when a decision does not adequately explain 2 how a decision was reached, “[a]nd that is so even if [the Commissioner] 3 can 4 conclusions,” for “the Commissioner’s decision must stand or fall with 5 the reasons set forth in the ALJ’s decision, as adopted by the Appeals 6 Council”)(citation omitted). offer proper post hoc explanations for such unexplained 7 8 Regardless of the flaws in defendant’s argument, the Court would be 9 constrained to find error, because the ALJ mischaracterized Dr. Lorber’s 10 testimony. 11 plaintiff “did not satisfy the durational one year period.” (A.R. 433.) 12 Rather, Dr. Lorber simply stated that plaintiff met or equaled a listing 13 “[b]etween” April 27, 2001, and April 2002, but thereafter, she did not. 14 (A.R. 440.) 15 beginning and end dates of plaintiff’s listed impairment is imprecise, 16 it is unlikely that he meant that she met or equaled the listing for 17 less than a year’s time, given his failure to so indicate and his 18 clarification that, after April 2002, she no longer met or equaled the 19 listing. 20 is that plaintiff met or equaled listing 11.04 through April 2002, which 21 would satisfy the 12 month durational requirement. Dr. Lorber did not testify, as the ALJ asserts, that While Dr. Lorber’s testimony regarding the specific The only reasonable interpretation of Dr. Lorber’s testimony 22 23 The ALJ’s characterization of Dr. Lorber’s testimony in this See Reddick v. Chater, 157 F.3d 715, 722-723 (9th 24 respect was error. 25 Cir. 1998)(misleading paraphrasing of the record constitutes error, and 26 it is impermissible for the ALJ to develop an evidentiary basis by “not 27 fully accounting for the context of materials or all parts of the 28 testimony and reports”). Although 29 the ALJ was prepared to rely 1 exclusively on Dr. Lorber’s testimony to the extent it supported a less 2 restrictive RFC than that which the ALJ previously found to be supported 3 by the evidence of record, the ALJ inexplicably, and impermissibly, 4 rejected the one aspect of Dr. Lorber’s testimony that was substantially 5 favorable to plaintiff. 6 portions of Dr. Lorber’s opinion that the ALJ wished to utilize to 7 support his decision. 8 properly construed, required finding plaintiff to have been disabled for 9 a closed one-year period, the ALJ’s error cannot be considered harmless. The ALJ was not permitted to cull only those See id. Given that Dr. Lorber’s testimony, if 10 11 III. Remand For Both The Payment Of Benefits For A One Year Closed 12 Period Of Disability And Further Proceedings Is Appropriate. 13 14 The decision whether to remand for further proceedings or order an 15 immediate award of benefits is within the district court’s discretion. 16 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 17 useful purpose would be served by further administrative proceedings, or 18 where the record has been fully developed, it is appropriate to exercise 19 this discretion to direct an immediate award of benefits. 20 (“[T]he decision of whether to remand for further proceedings turns upon 21 the likely utility of such proceedings.”). 22 outstanding issues that must be resolved before a determination of 23 disability can be made, and it is not clear from the record that the ALJ 24 would be required to find the claimant disabled if all the evidence were 25 properly evaluated, remand is appropriate. Where no Id. at 1179 However, where there are Id. at 1179-81. 26 27 Plaintiff asserts that this matter should be remanded to the 28 Commissioner for further proceedings, namely, for a proper consideration 30 1 and resolution of the foregoing issues. 2 concludes that there is no reason to remand this case for further 3 administrative proceedings with respect to the closed period identified 4 by Dr. Lorber. 5 plaintiff met or equaled listing 11.04 from April 27, 2001, through 6 April 2002, and the substantial evidence of record supporting that 7 conclusion (see discussion supra at p. 28, lns. 5-19), the Court finds 8 that plaintiff was disabled throughout that closed period. Accordingly, 9 a reversal and remand for an award of benefits for that closed period is 10 (Joint Stip. at 13.) The Court Given Dr. Lorber’s uncontradicted testimony that warranted. 11 12 However, with respect to the claim period after April 2002, a 13 remand for further proceedings is appropriate, so that the ALJ may 14 rectify the above-mentioned deficiencies and errors.16 15 ALJ should attempt to recontact Dr. Jamil for clarification of the 16 “frequent rests” limitation he found warranted. 17 is obtained, the ALJ must properly consider Dr. Jamil’s opinion, and 18 accord it the appropriate weight vis-a-vis Dr. Lorber’s testimony, when 19 assessing plaintiff’s RFC. 20 new consultative examination should be ordered for the limited purpose 21 of determining whether a “frequent rests” limitation is required. 22 ALJ also must properly consider the lifting limitation propounded by Dr. On remand, the If such clarification If such clarification cannot be obtained, a The 23 16 24 25 26 27 28 The Court reaches this conclusion somewhat reluctantly. It has been nine years since plaintiff filed her SSI application. Although this matter was remanded for the consideration of only two limited issues, the ALJ failed to comply with the 2007 Order and the directive of the Appeals Council that he do so. With that said, it is not clear to the Court that, if the ALJ had complied with the 2007 Order, a finding of disability would have been required with respect to the closed period of disability. Accordingly, and given that plaintiff herself seeks a remand for further proceedings, that remedy appears to be the appropriate one here. 31 1 Jamil, and accord it the appropriate weight vis-a-vis Dr. Lorber’s 2 testimony, when assessing plaintiff’s RFC. 3 from a vocational expert be adduced, the hypothetical(s) posed to the 4 vocational expert must clearly and accurately reflect all of the 5 limitations determined by the ALJ to affect plaintiff’s ability to work. Should further testimony 6 7 CONCLUSION 8 9 Accordingly, for the reasons stated above, the Commissioner’s 10 decision is REVERSED, and this case is remanded to the Commissioner for 11 the further proceedings specified above, including the payment of 12 benefits for the closed period. 13 14 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 15 copies of this Memorandum Opinion and Order and the Judgment on counsel 16 for plaintiff and for defendant. 17 18 LET JUDGMENT BE ENTERED ACCORDINGLY. 19 20 DATED: September 30, 2010 21 22 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 32

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