Mark Hood v. Michael J. Astrue, No. 5:2009cv00509 - Document 16 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. For the reasons stated above, the Court finds that the ALJs decision is not supported by substantial evidence. Accordingly, it is ORDERED that this case be remanded to the Commissioner for further proceedings consistent with this opinion. (See Order for further details) (db)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 MARK HOOD, 13 Plaintiff, 14 15 16 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 17 Defendant. 18 19 I. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 09-00509-MLG MEMORANDUM OPINION AND ORDER Background 20 Mark Hood filed an application for Social Security Disability 21 Insurance Benefits on July 25, 2005, alleging that he had become 22 disabled and unable to work on December 9, 2002, due to lower back pain, 23 depression, dyslexia, illiteracy, hypertension, and bilateral shoulder 24 pain. (Administrative Record ( AR ) at 26, 51-53). His application was 25 denied initially and upon reconsideration. 26 administrative hearing was held on August 8, 2007, before Administrative 27 Law Judge ( ALJ ) Keith Varni. 28 \\ (AR at 21, 29, 36). (AR at 160-184). An 1 Plaintiff, who was represented by counsel, testified that he was 2 born on April 18, 1959, and was then forty-eight years old. 3 163). 4 stated that he cannot read or write. (AR 174). His work experience 5 includes employment as power pole installer. (AR at 165). 6 last worked in December 2002, when he was injured on the job. (AR 165- 7 66). In 2006, Plaintiff attempted work as a mail sorter, but that job 8 ended after a month because of his dyslexia. (AR at 169). He has not 9 worked since that time. 10 Plaintiff has a ninth grade education. (AR at 163). Plaintiff testified that he is unable to work (AR at Plaintiff Plaintiff because of 11 depression; back, knee, and shoulder pain; and high blood pressure. (AR 12 169). The pain and swelling keeps him from lifting heavy objects and 13 walking long distances. (AR 172-74). He claims to suffer from daily 14 headaches. Id. He takes Vicodin for pain and Paxil for depression. (AR 15 177-78). 16 On August 24, 2007, the ALJ issued a decision unfavorable to 17 Plaintiff. 18 period, 19 musculoskeletal system and while the evidence was somewhat questionable, 20 he also suffered from depression. (AR at 13). 21 could perform his past work, but can perform unskilled medium work, 22 except for that involving complex or detailed work. (AR 14). Using the 23 Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, App. 2, 24 Rule 201 ( the grids ), as a framework for decision, as well as a report 25 from the state reviewing agency, (AR at 64-65), the ALJ found that 26 Plaintiff there were a substantial number of jobs Plaintiff could 27 perform, including jobs as an addresser, nut sorter or cuff folder. (AR 28 at 19). (AR at 11-19). Plaintiff The ALJ found that during the relevant time suffered from 2 severe impairments of the He found that Plaintiff 1 Plaintiff s request for review was denied by the Appeals Council on 2 January 23 (AR at 3-5). Plaintiff now seeks judicial review of the ALJ s 3 final decision denying his application for benefits. 4 2009, the parties filed a Joint Stipulation of disputed issues. For the 5 reasons 6 proceedings. stated below, the matter shall be On October 14, remanded for further 7 8 II. Plaintiff s Claims 9 Plaintiff asserts the following claims: (1) the ALJ improperly 10 evaluated the opinion of a consultative medical examiner; (2) the ALJ 11 erred by failing to secure the testimony of a vocational expert; and (3) 12 the ALJ made improper credibility findings. Joint Stipulation ( JS ) at 13 2). 14 remand for an award of benefits or a new hearing. 15 that the ALJ s decision be affirmed. Because the Court finds that the 16 ALJ erred in failing to obtain vocational expert testimony, the court 17 will only address that issue.1 Plaintiff seeks reversal of the Commissioner s decision and a Defendant requests 18 19 III. Standard of Review 20 Under 42 U.S.C. § 405(g), a district court may review the Social 21 Security Commissioner s decision to deny benefits. The Commissioner s 22 decision must be upheld unless the ALJ s findings are based on legal 23 error or are not supported by substantial evidence in the record as a 24 whole. 25 Astrue, 481 F.3d 742, 746 (9th Cir. 2007); Tackett v. Apfel, 180 F.3d Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 26 27 28 1 The Court assumes that on remand, a new decision will be reached with a reassessment of Plaintiff s depression on his ability to work as well as a new credibility determination. 3 1 1094 (9th Cir. 1999). Substantial evidence means more than a scintilla, 2 but less than a preponderance; it is evidence that a reasonable person 3 might accept as adequate to support a conclusion. 4 at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). To 5 determine whether substantial evidence supports a finding, the reviewing 6 court must review the administrative record as a whole, weighing both 7 the evidence that supports and the evidence that detracts from the 8 Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th 9 Cir. 1996). If the evidence can support Richardson, 402 U.S. either affirming or 10 reversing the ALJ s conclusion, the reviewing court may not substitute 11 its judgment for that of the ALJ. Robbins, 466 F.3d at 882. 12 13 IV. Discussion 14 A. The ALJ Erred in Relying on the Medical Vocational Guidelines in 15 light of Plaintiff s Non-Exertional Limitations 16 Plaintiff contends that the ALJ erred in utilizing the Medical- 17 Vocational Guidelines2 to reach a determination that there existed work 18 in the economy that Plaintiff could perform. According to Plaintiff, he 19 suffers 20 depression. He claims that the ALJ assumed the role of the vocational 21 expert in determining that Plaintiff s nonexertional limitations did not 22 prevent him from doing other work. Plaintiff s argument is correct. 23 a significant non-exertional limitation, specifically The consultative examiner, Dr. Adam Cash, found that Plaintiff 24 suffered from depression and mild mental retardation 25 moderately impair Plaintiff in concentration, persistence and pace, as 26 well as moderately impair his social functioning in the workplace and 27 28 2 20 C.F.R., Part 404, Subpart P, Appendix 2. 4 that would 1 tolerance for stress. (AR at 135). Based on this report, the ALJ 2 specifically found that Plaintiff s depression would limit his ability 3 to perform a full range of medium work in that it would limit his to the 4 work that was not complex or detailed. 5 has the expertise to evaluate the availability of such work, the ALJ 6 employed the grids as a framework for concluding that Plaintiff s 7 limitations would not preclude him from performing a significant number 8 of jobs in the national economy. 9 independent evaluation of the additional consequences resulting from the 10 non-exertional impairments. Thus, the ALJ erroneously resorted to the 11 grids and relied upon them as more than just a framework. (AR at 15). 12 This was error. Rather than question a VE who In doing so, the ALJ reached his own 13 When a claimant suffers from both exertional and non-exertional 14 impairments, the ALJ must first consult the grids to determine whether 15 a finding of disability can be based on the exertional impairments 16 alone. 17 the grids direct a finding of disability, benefits must be awarded. 18 Cooper v. Sullivan, 880 F.2d 1152, 1155 (9th Cir. 1989). 19 exertional impairments alone are insufficient to direct a finding of 20 disability, the grids may be used as a framework, but the ALJ must 21 independently examine the additional consequences resulting from the 22 non-exertional impairments. 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(e)(2). If If the Id. at 1156. 23 In Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999), the court 24 held that an ALJ s use of the grids is justified where the grids 25 completely and accurately represent a claimant s limitations . . . In 26 other words, a claimant must be able to perform the full range of jobs 27 in a given category . (Emphasis in original). See also Lounsburry v. 28 Barnhart, 468 F.3d 1111, 1115 (9th Cir. 2006). 5 However, in Polney v. 1 Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988), the Ninth Circuit held that 2 where . . . a claimant s nonexertional limitations are in themselves 3 enough to limit [the claimant s] range of work, the Grids do not apply, 4 and the testimony of a vocational expert is required . 5 v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002)(holding that vocational 6 expert must be consulted when Grids do not adequately take into account 7 claimant s abilities and limitations ). 8 Plaintiff s depression would limit his ability to perform a full range 9 of work at the medium exertional level, the grids are inapplicable and 10 the ALJ should have taken testimony from a vocational expert as to 11 whether there were jobs Plaintiff could perform in light of the non- 12 exertional limitations. Moore v. Apfel, 216 F.3d 863, 869 (9th Cir. 13 2000). The case shall be remanded for this purpose. See also Thomas Because the ALJ found that 14 Conclusion 15 For the reasons stated above, the Court finds that the ALJ s 16 decision is not supported by substantial evidence. Accordingly, it is 17 ORDERED that this case be remanded to the Commissioner for further 18 proceedings consistent with this opinion. 19 20 DATED: October 28, 2009 21 22 23 24 25 26 27 28 ______________________________ MARC L. GOLDMAN United States Magistrate Judge
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