Daniel Payan v. Michael J. Astrue, No. 5:2009cv01488 - Document 20 (C.D. Cal. 2010)
Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman; IT IS ORDERED that: (1) plaintiffs request for relief is granted and defendants request for relief is denied; and (2) the Commissioners decision is reversed, and the action is remanded to the Social Security Administration for further proceedings consistent with this Opinion and Order, pursuant to sentence four of 42 U.S.C. § 405(g), and Judgment shall be entered accordingly. See order for further details. (jy)
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Daniel Payan v. Michael J. Astrue Doc. 20 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 DANIEL PAYAN, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) No. EDCV 09-1488-RC OPINION AND ORDER 17 18 Plaintiff Daniel Payan filed a complaint on August 12, 2009, 19 seeking review of the Commissioner’s decision denying his applications 20 for disability benefits. 21 an answer to the complaint, and the parties filed a joint stipulation 22 on February 25, 2010. On December 28, 2009, the Commissioner filed 23 24 BACKGROUND 25 On June 16, 2006, plaintiff, who was born on June 14, 1961, 26 applied for disability benefits under Title II of the Social Security 27 Act (“Act”), 42 U.S.C. § 423, and the Supplemental Security Income 28 program (“SSI”) of Title XVI of the Act, claiming an inability to work Dockets.Justia.com 1 since June 8, 2006, due to type II diabetes and hypertension. 2 40-41, 53, 164-65, 183. 3 denied on August 15, 2006, and were denied again on April 27, 2007, 4 following reconsideration. 5 requested an administrative hearing, which was held before 6 Administrative Law Judge Mason D. Harrell, Jr. (“the ALJ”) on June 10 7 and September 2, 2008. 8 issued a decision finding plaintiff is not disabled. 9 The plaintiff appealed this decision to the Appeals Council, which 10 A.R. 9, The plaintiff’s applications were initially A.R. 9, 77-81, 83-89. A.R. 35-70. denied review on June 23, 2009. The plaintiff then On October 7, 2008, the ALJ A.R. 6-15, 91. A.R. 1-4. 11 12 DISCUSSION 13 I 14 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 15 review the decision denying plaintiff disability benefits to determine 16 if his findings are supported by substantial evidence and whether the 17 Commissioner used the proper legal standards in reaching his decision. 18 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Vernoff v. 19 Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). 20 21 The claimant is “disabled” for the purpose of receiving benefits 22 under the Act if he is unable to engage in any substantial gainful 23 activity due to an impairment which has lasted, or is expected to 24 last, for a continuous period of at least twelve months. 25 §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). 26 “The claimant bears the burden of establishing a prima facie case of 27 disability.” 28 cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 42 U.S.C. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), 2 1 1289 (9th Cir. 1996). 2 3 The Commissioner has promulgated regulations establishing a five- 4 step sequential evaluation process for the ALJ to follow in a 5 disability case. 6 the ALJ must determine whether the claimant is currently engaged in 7 substantial gainful activity. 8 If not, in the Second Step, the ALJ must determine whether the 9 claimant has a severe impairment or combination of impairments 20 C.F.R. §§ 404.1520, 416.920. In the First Step, 20 C.F.R. §§ 404.1520(b), 416.920(b). 10 significantly limiting him from performing basic work activities. 20 11 C.F.R. §§ 404.1520(c), 416.920(c). 12 must determine whether the claimant has an impairment or combination 13 of impairments that meets or equals the requirements of the Listing of 14 Impairments (“Listing”), 20 C.F.R. § 404, Subpart P, App. 1. 15 C.F.R. §§ 404.1520(d), 416.920(d). 16 ALJ must determine whether the claimant has sufficient residual 17 functional capacity despite the impairment or various limitations to 18 perform his past work. 19 in Step Five, the burden shifts to the Commissioner to show the 20 claimant can perform other work that exists in significant numbers in 21 the national economy. If so, in the Third Step, the ALJ 20 If not, in the Fourth Step, the 20 C.F.R. §§ 404.1520(f), 416.920(f). If not, 20 C.F.R. §§ 404.1520(g), 416.920(g). 22 23 Applying the five-step sequential evaluation process, the ALJ 24 found plaintiff has not engaged in substantial gainful activity since 25 June 8, 2006, his alleged onset date. 26 plaintiff has the following severe impairments: 27 . . . poorly controlled diabetes[,] . . . sensory peripheral 28 neuropathy involving the feet, hypertension and degenerative arthritis 3 (Step One). The ALJ then found “morbid obesity with 1 of the hips and low back” (Step Two); however, he does not have an 2 impairment or combination of impairments that meets or equals a listed 3 impairment. 4 unable to perform his past relevant work. 5 ALJ concluded plaintiff is able to perform a significant number of 6 jobs in the national economy; therefore, he is not disabled. 7 Five). (Step Three). The ALJ next determined plaintiff is (Step Four). Finally, the (Step 8 9 II 10 At Step Five, the burden shifts to the Commissioner to show that 11 a claimant can perform other jobs that exist in the national economy. 12 Bray v. Astrue, 554 F.3d 1219, 1222 (9th Cir. 2009); Hoopai v. Astrue, 13 499 F.3d 1071, 1074-75 (9th Cir. 2007). 14 Commissioner “must ‘identify specific jobs existing in substantial 15 numbers in the national economy that [the] claimant can perform 16 despite [his] identified limitations.’” 17 1111, 1114 (9th Cir. 1999) (quoting Johnson v. Shalala, 60 F.3d 1428, 18 1432 (9th Cir. 1995)). 19 meet this burden: “(1) by the testimony of a vocational expert, or (2) 20 by reference to the Medical Vocational Guidelines [“Grids”] at 20 21 C.F.R. pt. 404, subpt. P, app. 2.”1 To meet this burden, the Meanel v. Apfel, 172 F.3d There are two ways for the Commissioner to Tackett v. Apfel, 180 F.3d 1094, 22 23 24 25 26 27 28 1 The Grids are guidelines setting forth “the types and number of jobs that exist in the national economy for different kinds of claimants. Each rule defines a vocational profile and determines whether sufficient work exists in the national economy. These rules represent the [Commissioner’s] determination, arrived at by taking administrative notice of relevant information, that a given number of unskilled jobs exist in the national economy that can be performed by persons with each level of residual functional capacity.” Chavez v. Dep’t of Health & Human Servs., 103 F.3d 849, 851 (9th Cir. 1996) (citations omitted). 4 1 1099 (9th Cir. 1999); Bray, 554 F.3d at 1223 n.4. 2 [the Grids] do not adequately take into account [a] claimant’s 3 abilities and limitations, the Grids are to be used only as a 4 framework, and a vocational expert must be consulted.” 5 Barnhart, 278 F.3d 947, 960 (9th Cir. 2002); Bray, 554 F.3d at 1223 6 n.4. However, “[w]hen Thomas v. 7 8 9 Hypothetical questions posed to a vocational expert must consider all of the claimant’s limitations, Valentine v. Comm’r, Soc. Sec. 10 Admin., 574 F.3d 685, 690 (9th Cir. 2009); Thomas, 278 F.3d at 956, 11 and “[t]he ALJ’s depiction of the claimant’s disability must be 12 accurate, detailed, and supported by the medical record.” 13 180 F.3d at 1101. 14 reflect all the claimant’s limitations, then the ‘expert’s testimony 15 has no evidentiary value to support a finding that the claimant can 16 perform jobs in the national economy.’” 17 678, 681 (9th Cir. 1995) (quoting Delorme v. Sullivan, 924 F.2d 841, 18 850 (9th Cir. 1991)); Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 19 2001). 20 following hypothetical question: Tackett, “If a vocational expert’s hypothetical does not Matthews v. Shalala, 10 F.3d Here, the ALJ asked vocational expert Sandra Fioretti the 21 22 [L]et’s go to someone who has [an] eleventh[-]grade 23 education, is not, they’re not illiterate, but they read and 24 write basic English, and they’re limited to being on their 25 feet no more than a total of two hours out of eight, 15 to 26 30 minutes at a time; sitting is unlimited, but [the 27 individual] can only sit for an hour to an hour and a half, 28 . . . – and that, of course, would be with normal breaks – 5 1 lifting and carrying would be 20 pounds occasionally, ten 2 pounds frequently; can only occasionally stoop and bend; 3 cannot squat, kneel, crawl, run, or jump; can climb stairs 4 but not ladders; no work at heights or balanc[ing]; cannot 5 operate foot pedals or controls; have to be able to during a 6 lunch break take insulin. . . . 7 could be done with those limitations? Any unskilled jobs that 8 9 A.R. 68. The vocational expert responded that such an individual 10 could work as a bench assembler, Dictionary of Occupational Titles 11 (“DOT”) no. 706.684-042,2 and a sorter of small agricultural products 12 such as nuts, DOT no. 521.687-086. 13 testimony, in Step Five, the ALJ found plaintiff can perform a 14 significant number of jobs in the national economy. A.R. 68-69. Based on this A.R. 14-15. 15 16 The plaintiff contends, however, that the Step Five determination 17 is not supported by substantial evidence in the record because the 18 ALJ’s hypothetical question to the vocational expert did not include 19 all of plaintiff’s limitations. The plaintiff is correct.3 20 21 22 2 The DOT is the Commissioner’s primary source of reliable vocational information. Johnson, 60 F.3d at 1434 n.6; Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990). 23 3 24 25 26 27 28 Although the plaintiff correctly challenges the ALJ’s hypothetical question to the vocational expert, plaintiff argues that the hypothetical question was deficient because it did not include all the limitations posited by F. Kalmar, M.D., a nonexamining physician, see Jt. Stip. at 11:7-12:4, 12:23-25, which the Court does not address. Rather, the hypothetical question was deficient because it did not include all the limitations the ALJ determined are part of plaintiff’s residual functional capacity, as discussed herein. 6 1 A claimant’s residual functional capacity (“RFC”) is what he can 2 still do despite his physical, mental, nonexertional, and other 3 limitations. 4 see also Valentine, 574 F.3d at 689 (RFC is “a summary of what the 5 claimant is capable of doing (for example, how much weight he can 6 lift).”). Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); Here, the ALJ found plaintiff has the RFC to: 7 8 stand[] and walk[] [for] two hours out of eight, 15 to 30 9 minutes at a time. He can sit unlimited. Lift and carry 10 ten pounds frequently, 20 pounds occasionally; occasionally 11 stoop and bend. 12 He can climb stairs, but he can’t climb ladders, work at 13 heights, or balance, and he can’t operate foot pedals or 14 controls. . . . He can’t squat, kneel, crawl, run, or jump. 15 16 A.R. 12, 55, 62-63. 17 The ALJ further determined plaintiff’s RFC requires plaintiff: 18 19 to sit with his feet elevated on a 6 inch foot stool, sit a 20 maximum of 60 to 90 minutes at a time, use insulin during 21 his lunch break and perform no more than simple repetitive 22 work due to his pain. 23 24 A.R. 12. Despite determining plaintiff’s limitations in the RFC 25 assessment, the ALJ did not include all of these significant 26 limitations in the hypothetical question he posed to the vocational 27 expert. 28 limitations that plaintiff must sit with his feet elevated on a six More specifically, the hypothetical did not include the 7 1 inch stool, sit for a maximum of 60-90 minutes at a time, and perform 2 no more than simple repetitive work. 3 ALJ erred in excluding some of [plaintiff’s] limitations . . . from 4 the hypothetical, the [vocational expert’s] testimony ‘has no 5 evidentiary value.’” 6 1155, 1166 (9th Cir. 2008) (citation omitted); Robbins v. Soc. Sec. 7 Admin., 466 F.3d 880, 886 (9th Cir. 2006). 8 evidence support the ALJ’s step-five determination. . . .” 9 Lingenfelter v. Astrue, 504 F.3d 1028, 1041 (9th Cir. 2007). See A.R. 68. Thus, “because the Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d “Nor does substantial 10 11 III 12 When the Commissioner’s decision is not supported by substantial 13 evidence, the Court has authority to affirm, modify, or reverse the 14 Commissioner’s decision “with or without remanding the cause for 15 rehearing.” 16 1076 (9th Cir. 2002). 17 is appropriate if enhancement of the record would be useful.” 18 v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). 19 appropriate remedy so the ALJ can provide the vocational expert with a 20 hypothetical question accurately reflecting plaintiff’s RFC and 21 properly determine whether plaintiff is able to perform a significant 22 number of jobs in the national economy.4 23 // 24 // 25 // 42 U.S.C. § 405(g); McCartey v. Massanari, 298 F.3d 1072, “Remand for further administrative proceedings Benecke Here, remand is the Vasquez, 572 F.3d at 597; 26 27 28 4 Having reached this conclusion, it is unnecessary to address the other issues plaintiff raises, none of which warrant any further relief than herein granted. 8 1 Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir.), cert. denied, 531 2 U.S. 1038 (2000). 3 4 ORDER 5 IT IS ORDERED that: (1) plaintiff’s request for relief is granted 6 and defendant’s request for relief is denied; and (2) the 7 Commissioner’s decision is reversed, and the action is remanded to the 8 Social Security Administration for further proceedings consistent with 9 this Opinion and Order, pursuant to sentence four of 42 U.S.C. 10 § 405(g), and Judgment shall be entered accordingly. 11 12 DATE: November 16, 2010 13 14 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE R&R-MDO\09-1488.mdo 11/16/10 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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