Rita Bentancour v. Michael J Astrue, No. 5:2010cv00196 - Document 15 (C.D. Cal. 2010)

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. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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Rita Bentancour v. Michael J Astrue Doc. 15 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 EASTERN DIVISION 10 11 RITA BENTANCOURT ) ) ) ) ) ) ) ) ) ) _ ) 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. No. EDCV 10-0196 CW DECISION AND ORDER 17 18 The parties have consented, under 28 U.S.C. § 636(c), to the 19 jurisdiction of the undersigned magistrate judge. Plaintiff seeks 20 review of the Commissioner’s denial of disability benefits. As 21 discussed below, the court finds that the Commissioner’s decision 22 should be reversed and this matter remanded for further proceedings. 23 I. BACKGROUND 24 Plaintiff Rita Bentancourt was born on September 14, 1950, and 25 was fifty-seven years old at the time of her administrative hearing. 26 [AR 23.] She has at least a high school education and no past 27 relevant work experience. [AR 23, 41.] Plaintiff alleges disability on 28 1 Dockets.Justia.com 1 the basis of pain in her knees and hands, a rash, bad headaches, 2 breathing problems, depression, anxiety, and auditory hallucinations. 3 [AR 26, 39.] 4 5 II. PROCEEDINGS IN THIS COURT Plaintiff’s complaint was lodged on February 5, 2010, and filed 6 on February 22, 2010. On August 20, 2010, Defendant filed an Answer 7 and Plaintiff’s Administrative Record (“AR”). 8 the parties filed their Joint Stipulation (“JS”) identifying matters 9 not in dispute, issues in dispute, the positions of the parties, and 10 the relief sought by each party. 11 submission without oral argument. 12 13 III. On October 22, 2010, This matter has been taken under PRIOR ADMINISTRATIVE PROCEEDINGS Plaintiff applied for supplemental security income on July 11, 14 2006, alleging disability beginning on that date. [AR 7.] 15 claim was denied initially and upon reconsideration, Plaintiff 16 requested an administrative hearing. [Id.] 17 on March 21, 2008, before an Administrative Law Judge (“ALJ”). [Id.] 18 Plaintiff was represented by counsel at the hearing, and testimony was 19 taken from Plaintiff and vocational expert Stephen Davis. [Id.] The 20 ALJ’s decision denying benefits was issued on April 14, 2008. [AR 13.] 21 When the Appeals Council denied review on December 15, 2009, the ALJ’s 22 decision became the Commissioner’s final decision. [AR 1.] 23 24 IV. After the A video hearing was held 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 the Plaintiff had not engaged in 6 substantial gainful activity since her disability application date 7 (step one); that Plaintiff had the following “severe” impairments: 8 anxiety disorder not otherwise specified, depressive disorder not 9 otherwise specified, borderline intellectual functioning, a history of 10 heroin dependence in uncertain remission, status post gunshot wound of 11 the right knee, bilateral osteoarthritis in the hands and wrists, and 12 tension headaches (step two); and that Plaintiff did not have an 13 impairment or combination of impairments that met or equaled a listing 14 (step three). [AR 9.] 15 impairments, Plaintiff had the RFC to perform a range of work at the 16 medium exertional level with limitation to frequent bilateral 17 fingering, grasping, and handling. 18 ALJ found that Plaintiff was restricted to simple, repetitive work 19 with preclusion from social interaction. [AR 10.] 20 past relevant work (step four). [AR 11.] 21 testified that a person with Plaintiff’s RFC could perform work 22 existing in significant numbers, such as a store laborer and car lot 23 porter (step five). [AR 12.] 24 “disabled” as defined by the Social Security Act. [Id.] 25 // The ALJ determined that based on all these As for non-exertional limits, The Plaintiff had no The vocational expert Accordingly, Plaintiff was not found 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 C. ISSUES IN DISPUTE 2 The parties’ Joint Stipulation sets out five disputed issues: 3 1. Whether the ALJ properly considered the August 31, 2006 4 opinion of Dr. Adam Cash, Psy.D., a psychological 5 consultative examiner; 6 2. 7 Whether the ALJ properly considered the September 13, 2006 opinion of State agency physician H.M. Skopec, M.D.; 8 3. 9 Whether the ALJ properly considered the October 20, 2006 opinion of consultative orthopedic examiner Carl Sainten, 10 M.D.; 11 4. 12 Whether the ALJ properly considered the July 26, 2006 lay opinion of Laura Swartz; and 13 5. 14 Whether the ALJ properly posed the hypothetical questions to the vocational expert. 15 [JS 2-3.] 16 As discussed below Issue One is dispositive. 17 D. 18 On August 31, 2006, Plaintiff was given a Psychological PLAINTIFF’S FUNCTIONAL LIMITATIONS 19 Evaluation by consultative examiner Adam Cash, Psy.D. [AR 140.] Dr. 20 Cash opined that Plaintiff was appropriately alert and oriented, and 21 that her consciousness was intact. [AR 142.] 22 that Plaintiff’s “attention and concentration were impaired . . . [and 23 she] had some difficulty both establishing and maintaining focus.” 24 [Id.] 25 persistence, and pace are moderately impaired.” [Id.] 26 Dr. Cash concluded that Plaintiff “will have no difficulties with 27 understanding, remembering, and carrying out simple instructions.” 28 [Id.] However, he also noted He further noted that “[h]er levels of concentration, 6 Nevertheless, 1 Dr. H.M. Skopec also indicated that Plaintiff was moderately 2 limited in various areas regarding sustained concentration and 3 persistence. [AR 145.] However, he concluded that Plaintiff “can 4 sustain simple repetitive tasks with adequate pace and persistence, 5 can adapt and relate to co-workers and supervisors but likely cannot 6 work with the public.” [AR 147.] 7 In the RFC determination, the ALJ specifically credited the 8 opinions of Dr. Cash and Dr. Skopec “to the extent that they all [sic] 9 moderate limitations in social interaction and maintaining 10 concentration, persistence and pace.” [AR 11.] 11 not include these limitations in the hypothetical question posed to 12 the vocational expert. [AR 41.] 13 However, the ALJ did Plaintiff asserts that the ALJ erred in failing to consider all 14 of the limitations listed by Drs. Cash and Skopec in their 15 assessments, in particular the statement that Plaintiff is moderately 16 impaired in concentration, persistence, and pace. [JS 3, 7.] Plaintiff 17 further asserts that limitations in concentration, persistence, and 18 pace are inadequately accounted for by a restriction to simple, 19 repetitive work. [JS 6.] 20 found that both opinions regarding this limitation are consistent with 21 a functional capacity for “simple repetitive work.” [JS 5.] 22 Defendant argues that the ALJ reasonably Defendant cites Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 23 (9th Cir. 2008), where the court found that a restriction to simple, 24 repetitive tasks adequately captured deficiencies in concentration, 25 persistence and pace. 26 of a claimant adequately captures restrictions related to 27 concentration, persistence, or pace where the assessment is consistent 28 with the restrictions identified in the medical testimony.” Id. There, the court held that “an ALJ’s assessment 7 1 However, Stubbs-Danielson is not applicable here because the medical 2 testimony in that case did not establish any limitations in 3 concentration, persistence or pace. 4 here establishes, as the ALJ accepted, that Plaintiff is limited in 5 concentration, persistence and pace. 6 Fed. Appx. 211 (9th Cir. 2009)(distinguishing Stubbs-Danielson and 7 rejecting the contention that “simple, repetitive work” includes 8 limitations in concentration, persistence and pace where the record 9 provides substantial evidence of such limitations.); see also In contrast, the medical evidence See Brink v. Comm'r SSA, 343 10 Bickford v. Astrue, 2010 WL 4220531 (D. Or. Oct. 19, 2010); Flores v. 11 Astrue, 2010 WL 3894208 (D. Col. Sept. 30, 2010); Melton v. Astrue, 12 2010 WL 3853195 (D. Or. Sept. 28, 2010). 13 In order for the vocational expert’s testimony to constitute 14 substantial evidence, the hypothetical question posed must “consider 15 all of the claimant’s limitations.” Andrews v. Shalala, 53 F.3d 1035, 16 1044 (9th Cir. 1995). 17 limitations, but failed to include them in the hypothetical question 18 posed to the vocational expert. 19 is capable of work at the medium exertional level is based on an 20 incomplete hypothetical question and unsupported by substantial 21 evidence. 22 Plaintiff’s claim requires remand. The ALJ accepted the evidence of Plaintiff’s Thus, the conclusion that Plaintiff Under these circumstances, an appropriate inquiry into 23 F. REMAND FOR FURTHER PROCEEDINGS 24 The decision whether to remand for further proceedings is within Harman v. Apfel, 211 F.3d 1172, 25 the discretion of the district court. 26 1175-1178 (9th Cir. 2000). 27 further proceedings, or where the record has been fully developed, it 28 is appropriate to exercise this discretion to direct an immediate Where no useful purpose would be served by 8 1 award of benefits. Harman, 211 F.3d at 1179 (decision whether to 2 remand for further proceedings turns upon their likely utility). 3 However, where there are outstanding issues that must be resolved 4 before a determination can be made, and it is not clear from the 5 record that the ALJ would be required to find the claimant disabled if 6 all the evidence were properly evaluated, remand is appropriate. 7 Here, as set out above, outstanding issues remain before a finding of 8 disability can be made.2 9 Id. Accordingly, remand is appropriate. VI. ORDERS 10 Accordingly, IT IS ORDERED that: 11 1. The decision of the Commissioner is REVERSED. 12 2. This action is REMANDED to defendant, pursuant to Sentence 13 Four of 42 U.S.C. § 405(g), for further proceedings as discussed 14 above. 15 16 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 17 18 19 20 DATED: November 27, 2010 _____________________________ CARLA M. WOEHRLE United States Magistrate Judge 21 22 23 24 25 26 27 28 2 The remaining issues raised in the parties’ Joint Stipulation do not mandate a finding of disability on the basis of the existing record. 9

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