Alfred Reaza v. Michael J. Astrue, No. 5:2009cv01897 - Document 15 (C.D. Cal. 2011)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is REVERSED. 2. This action is REMANDED to defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above. 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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Alfred Reaza v. Michael J. Astrue Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 13 14 15 16 17 ALFRED REAZA, ) ) Plaintiff, ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner, Social Security ) Administration, ) ) Defendant. ) ) No. EDCV 09-1897 (CW) DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned Magistrate Judge. 21 review of the Commissioner s denial of disability benefits. 22 discussed below, the court finds that the Commissioner s decision 23 should be reversed and this matter remanded for further proceedings. 24 25 I. Plaintiff seeks As BACKGROUND Plaintiff Alfred Reaza was born on July 19, 1954, and was fifty- 26 four years old at the time of his administrative hearing. 27 [Administrative Record ( AR ) 15, 41.] 28 education and past relevant work experience as an office assistant. He has at least a high school 1 Dockets.Justia.com 1 [AR 15.] Plaintiff alleges disability on the basis of post-traumatic 2 stress disorder, diabetes, and degenerative bone disease. [AR 85.] 3 II. 4 PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on October 8, 2009, and filed on 5 October 19, 2009. 6 Plaintiff s administrative record. 7 filed their Joint Stipulation ( JS ) identifying matters not in 8 dispute, issues in dispute, the positions of the parties, and the 9 relief sought by each party. 10 On April 20, 2010, Defendant filed an answer and On June 24, 2010, the parties This matter has been taken under submission without oral argument. 11 III. 12 PRIOR ADMINISTRATIVE PROCEEDINGS Plaintiff applied for a period of disability and disability 13 insurance benefits on February 12, 2008, alleging disability since 14 December 1, 2003. 15 and on reconsideration, Plaintiff requested an administrative hearing, 16 which was held on April 9, 2009, before an administrative law judge 17 ( ALJ ). [AR 41.] 18 taken from Plaintiff, two medical experts, and a vocational expert. 19 [AR 40.] 20 [AR 7-17.] 21 2009, the ALJ s decision became the Commissioner s final decision. [AR 22 1.] 23 24 [AR 7.] After the application was denied initially Plaintiff appeared with counsel, and testimony was The ALJ denied benefits in a decision dated May 28, 2009. When the Appeals Council denied review on September 11, IV. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 25 Commissioner s decision to deny benefits. 26 ALJ s) findings and decision should be upheld if they are free of 27 legal error and supported by substantial evidence. 28 court determines that a finding is based on legal error or is not 2 The Commissioner s (or However, if the 1 supported by substantial evidence in the record, the court may reject 2 the finding and set aside the decision to deny benefits. 3 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 4 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 5 F.3d 1157, 1162 (9th Cir. 6 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 7 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 8 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 9 See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a 10 preponderance. Reddick, 157 F.3d at 720. 11 which a reasonable person might accept as adequate to support a 12 conclusion. 13 a finding, a court must review the administrative record as a whole, 14 weighing both the evidence that supports and the evidence that 15 detracts from the Commissioner s conclusion. 16 can reasonably support either affirming or reversing, the reviewing 17 court may not substitute its judgment for that of the Commissioner. 18 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. It is relevant evidence To determine whether substantial evidence supports 19 V. Id. If the evidence DISCUSSION 20 A. THE FIVE-STEP EVALUATION 21 To be eligible for disability benefits a claimant must 22 demonstrate a medically determinable impairment which prevents the 23 claimant from engaging in substantial gainful activity and which is 24 expected to result in death or to last for a continuous period of at 25 least twelve months. 26 721; 42 U.S.C. § 423(d)(1)(A). 27 28 Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at Disability claims are evaluated using a five-step test: Step one: Is the claimant engaging in substantial 3 1 gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 2 3 4 5 6 7 8 9 10 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 11 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 12 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 13 C.F.R. § 404.1520, § 416.920. 14 not disabled at any step, there is no need to complete further 15 steps. 16 If a claimant is found disabled or Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. Claimants have the burden of proof at steps one through four, 17 subject to the presumption that Social Security hearings are non- 18 adversarial, and to the Commissioner s affirmative duty to assist 19 claimants in fully developing the record even if they are represented 20 by counsel. 21 1288. 22 made, and the burden shifts to the Commissioner (at step five) to 23 prove that, considering residual functional capacity ( RFC )1, age, Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at If this burden is met, a prima facie case of disability is 24 25 26 27 28 1 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 4 1 education, and work experience, a claimant can perform other work 2 which is available in significant numbers. 3 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098, 4 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 5 Here, the ALJ found that Plaintiff had not engaged in substantial 6 gainful activity since his alleged disability onset date (step one). 7 [AR 9.] 8 with diabetes mellitus II under variable control and no significant 9 end-organ disease ; degenerative disc disease of the lumbar spine and Plaintiff had the following severe impairments: overweight 10 sacroiliitis; right shoulder impingement; sensori-neureal hearing 11 loss, mild; depressive disorder, not otherwise specified, with some 12 features of anxiety; a somatoform disorder, a psychiatric reaction to 13 his physical condition; a personality disorder, not otherwise 14 specified; and a history of alcohol dependence (step two). [Id.] 15 Plaintiff did not have an impairment or combination of impairments 16 that met or equaled a listing (step three). [AR 10.] 17 determined that Plaintiff had an RFC for light work, with a notable 18 limitation to moderately complex tasks with four to five steps in a 19 habituated setting, without fast-paced work or responsibility for the 20 safety of others. [AR 10-11.] 21 vocational expert, who stated that a person with Plaintiff s RFC could 22 not perform his past relevant work (step four) but could perform other 23 work in the national economy, such as office helper, information 24 clerk, and electronics worker (step five). [AR 15-16.] 25 Plaintiff was found not disabled as defined by the Social Security The ALJ The ALJ adopted the testimony of the Accordingly, 26 27 28 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 Act. [AR 16.] 2 C. 3 The parties Joint Stipulation identifies the following disputed 4 issues: 5 1. ISSUES IN DISPUTE 6 Dr. Mark Pierce, a psychological consultative examiner; 7 8 Whether the ALJ properly considered the medical opinion of 2. Whether, if the ALJ improperly considered Dr. Pierce s opinion, the error was harmless; 9 3. Whether the ALJ properly considered lay witness testimony; 10 4. Whether the ALJ should have ordered a consultative orthopedic 11 examination; and 12 13 5. Whether there was an inconsistency between the ALJ s RFC finding and the Dictionary of Occupational Titles ( DOT ). 14 [JS at 2-3.] 15 As discussed below, Issues One and Two are dispositive. 16 D. 17 In May 2008, Dr. Pierce conducted an evaluation of Plaintiff that DISCUSSION 18 included a series of psychological tests. [AR 238-43.] 19 evaluation, Dr. Pierce found that Plaintiff did not give full effort 20 during the tests, which included a malingering-sensitive memory test. 21 [AR 238, 240, 241, 243.] 22 today s limited test performance, [Plaintiff] does not finally 23 convince that he would be significantly cognitively limited in 24 completing simple and repetitive to higher demand vocational skills or 25 from adapting to minimal changes in a work environment. [AR 243.] 26 More specifically, Dr. Pierce stated that Plaintiff can remember and 27 comply with simple one and two part instructions in a work setting. 28 [Id.] Throughout the Dr. Pierce concluded that, [d]espite 6 Based on Dr. Pierce s evaluation, a state agency review physician 1 2 completed a mental RFC ( MRFC ) assessment that stated, in pertinent 3 part, that Plaintiff was capable of understanding, remembering and 4 carrying out one and two step instructions. [AR 258.] 5 assessment was affirmed in full by a separate agency physician. [AR 6 318.] The MRFC 7 During the administrative hearing, a psychological medical expert 8 testified that, based on Dr. Pierce s evaluation and other evidence in 9 the record, Plaintiff was capable of work that involved moderately 10 complex tasks consistent with his physical abilities and that 11 involved four to five step instructions. [AR 56.] 12 the medical expert s opinion as to Plaintiff s RFC and posed a 13 hypothetical question to the vocational expert that reflected these 14 limitations; the vocational expert s response that other work in the 15 national economy was available was the basis of the ALJ s finding of 16 non-disability. [AR 73-74.] 17 The ALJ adopted Plaintiff argues that the ALJ s reliance on the medical expert s 18 opinion was improper because the opinion differed in significant 19 respects from the record evidence, without any apparent explanation. 20 [JS 4-5.] 21 that the opinion of a non-examining medical expert cannot, by itself, 22 constitute substantial evidence to support the Commissioner s 23 disability determination unless it is supported by other evidence in 24 the record and is consistent with it. 25 1035, 1042 (9th Cir. 1995); Pitzer v. Sullivan, 908 F.2d 502, 506 n. 4 26 (9th Cir. 1990); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 27 1984). 28 perform moderately complex tasks involving four to five step Plaintiff s point is well-taken. It is well-established See Andrews v. Shalala, 53 F.3d Here, the medical expert s testimony that Plaintiff could 7 1 instructions was not supported by or consistent with other evidence in 2 the record. 3 the examining physician, Dr. Pierce, and the two state agency review 4 physicians that Plaintiff should be limited to performing simple one 5 and two part instructions in a work setting. 6 circumstances, the medical expert s opinion was not substantial 7 evidence to support the non-disability finding. 8 1454 ( A report of a non-examining, non-treating physician should be 9 discounted and is not substantial evidence when contradicted by all 10 In fact, it was plainly inconsistent with the opinion of Under these See Gallant, 753 F.2d other evidence in the record. ).2 Finally, the error was not harmless. 11 A hypothetical question 12 that posed a functional limitation to one or two step work tasks, 13 consistent with Dr. Pierce s opinion, would preclude all of the jobs 14 cited by the vocational expert as evidence of Plaintiff s ability to 15 work. 16 at least two. 17 (office helper), 726.687-010 (electronics worker). 18 Plaintiff s limitation to simple one and two part instructions is 19 consistent with a reasoning level of one. 20 403 F. Supp. 2d 981, 984 (C.D. Cal. 2005)(DOT describes Level One 21 reasoning as ability to [a]pply commonsense understanding to carry 22 out simple one- or twostep instructions in standardized situations 23 with or no variables ); Grisby v. Astrue, No. EDCV 08-1413 AJW, 2010 According to the DOT, those jobs require a reasoning level of See DOT 237.367-018 (information clerk), 239-567-010 However, See Meissl v. Barnhart, 24 25 26 27 28 2 Defendant s argument that the medical expert s less restrictive opinion constituted a substantial basis for the ALJ s opinion because the record showed that Plaintiff was suspected of malingering during the evaluation by Dr. Pierce is not well-taken. Rather, it is evident that Dr. Pierce based his conclusion about Plaintiff s mental functional capacity despite any malingering behavior. 8 1 WL 309013 at *4 (C.D. Cal. Jan. 22, 2010)( The restriction to jobs 2 involving no more than two-step instructions is what distinguishes 3 Level 1 reasoning from Level 2 reasoning. ). 4 circumstances, remand for redetermination of Plaintiff s ability to 5 perform other work in the national economy is appropriate.3 6 Harman v. Apfel, 211 F.3d 1172, 1175-1178 (9th Cir. 2000)(where there 7 are outstanding issues that must be resolved before a determination 8 can be made, and it is not clear from the record that the ALJ would be 9 required to find the claimant disabled if all the evidence were 10 Under these See properly evaluated, remand is appropriate). VI. 11 ORDERS 12 Accordingly, IT IS ORDERED that: 13 1. The decision of the Commissioner is REVERSED. 14 2. This action is REMANDED to defendant, pursuant to Sentence 15 Four of 42 U.S.C. § 405(g), for further proceedings as discussed 16 above. 17 18 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 19 20 21 22 DATED: March 21, 2011 __________ _________________ CARLA M. WOEHRLE United States Magistrate Judge 23 24 25 26 27 28 3 None of the remaining issues raised by Plaintiff, even if they had merit, would warrant a finding of disability on the basis of the current record. 9

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