Olivia Huerta v. Michael J. Astrue, No. 5:2010cv01095 - Document 18 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION and ORDER by Magistrate Judge Marc L. Goldman. IT IS HEREBY ORDERED that this action is remanded for further proceedings consistent with this Memorandum Opinion. (ade)
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Olivia Huerta v. Michael J. Astrue Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 OLIVIA HUERTA, 13 Plaintiff, 14 15 16 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 17 Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 10-1095-MLG MEMORANDUM OPINION AND ORDER 19 Plaintiff Olivia Huerta ( Plaintiff ) seeks judicial review of the 20 Commissioner s final decision denying her application for disability 21 insurance benefits ( DIB ) pursuant to Title II of the Social Security 22 Act. For the reasons stated below, the Commissioner s decision is 23 reversed, and this action is remanded for further proceedings. 24 25 I. Factual and Procedural Background 26 Plaintiff was born on November 19, 1966. (Administrative Record 27 ( AR ) at 45). She has relevant work experience as a food server, bakery 28 supervisor, checker, and office helper. (AR at 10). Dockets.Justia.com 1 Plaintiff protectively filed an application for DIB on June 23, 2 2006, alleging that she has been disabled since July 18, 2005, due to 3 multiple cervical discopathies, multiple disc protrusions in the lumbar 4 spine, depression, shoulder pain, knee pain, and anxiety. (AR at 10, 5 187). The Social Security Administration denied Plaintiff s application 6 initially and on reconsideration. (AR at 76-79, 81-85). 7 An administrative hearing was held before Administrative Law Judge 8 Lowell Fortune ( the ALJ ) on August 6, 2008, and was continued on 9 October 31, 2008, and January 30, 2009. (AR at 18-72). Plaintiff, who 10 was represented by counsel, testified at the hearings. (AR at 21-38, 45- 11 53, 57-61). A vocational expert also testified at the hearings. (AR at 12 38-41, 65-70). The ALJ issued a decision on June 26, 2009, denying 13 Plaintiff s application. (AR at 10-17). The ALJ found that Plaintiff: 14 (1) has not engaged in substantial gainful activity since her alleged 15 onset date (step 1); (2) suffers from severe impairments including 16 disorder of the cervical, thoracic and lumbar spine, left shoulder 17 disorder, bilateral knee disorder, depressive disorder and adjustment 18 disorder (step 2); (3) does not have any impairments that meet or equal 19 the criteria of a listed impairment (step 3); (4) has a residual 20 functional capacity ( RFC ) to perform a limited range of medium work;1 21 and (5) is able to perform her past relevant work as a food server, 22 23 24 25 26 27 28 1 Specifically, the ALJ found that Plaintiff is able to lift and carry 25 pounds frequently and 35 pounds occasionally, sit for six hours in an eight-hour workday, and stand and/or walk for six hours in an eight-hour workday. (AR at 16). The ALJ further found that Plaintiff is limited to low stress work and is precluded from engaging in the following: climbing scaffolds, ropes and ladders; repetitive head/neck motion; reaching with the left upper extremity; repetitive reaching at or above shoulder level with the dominant right hand; and work involving concentrated exposure to vibration, dangerous or fast machinery and unprotected heights. (AR at 14-15, 17). 2 1 checker, and office helper (step 4). (AR at 14-17). The Appeals Council 2 denied review on May 26, 2010. (AR at 1-3). 3 Plaintiff commenced this action for judicial review on July 27, 4 2010. The parties filed a Joint Stipulation identifying the 5 facts and legal issues on February 10, 2011. Plaintiff contends that the 6 ALJ failed to give proper consideration to the medical evidence and her 7 subjective 8 administrative 9 Commissioner requests that the ALJ s decision be affirmed. (Joint symptom testimony. proceedings. Plaintiff (Joint 10 Stipulation 11 II. remand Stipulation at for further 19-20). The submission without oral argument. 12 seeks disputed 13 at 20). The Joint Stipulation has been taken under Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 14 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 15 findings and decision should be upheld if they are free from legal error 16 and are supported by substantial evidence based on the record as a 17 whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 18 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 19 evidence means such evidence as a reasonable person might accept as 20 adequate 21 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more 22 than a scintilla, but less than a preponderance. Lingenfelter, 504 F.3d 23 at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 24 2006)). To determine whether substantial evidence supports a finding, 25 the reviewing court must review the administrative record as a whole, 26 weighing both the evidence that supports and the evidence that detracts 27 from the Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, 28 720 (9th Cir. 1996). If the evidence can reasonably support either to support a conclusion. 3 Richardson, 402 U.S. at 401; 1 affirming or reversing, the reviewing court may not substitute its 2 judgment for that of the Commissioner. Id. at 720-721. 3 4 III. DISCUSSION 5 A. Examining Physician s Opinion 6 Plaintiff contends that the ALJ improperly rejected the work- 7 related limitations identified by orthopedic surgeon Thomas W. Jackson, 8 M.D. (AR at 504-22). 9 While working at a grocery store, Plaintiff suffered injuries to 10 her left shoulder, low back, mid-back, and neck. (AR at 505). In 11 February 12 compensation case as an Agreed Medical Examiner. (AR at 504-22). Dr. 13 Jackson diagnosed Plaintiff with disc bulges in the cervical spine, left 14 shoulder rotator cuff tendinitis, disc protrusion in the thoracic spine, 15 degenerative 16 associated with bilateral lower extremity radiculitis, and mild to 17 moderate exogenous obesity. (AR at 516). Based on these conditions, Dr. 18 Jackson identified a number of work restrictions. (AR at 518). With 19 respect to the use of the left arm at or above shoulder level, Dr. 20 Jackson found that Plaintiff was precluded from engaging in repetitive 21 movements, heavy lifting, heavy pushing, and heavy pulling. (AR 22 at 518). Dr. Jackson also found that Plaintiff was precluded from heavy 23 work and prolonged sitting and prolonged working in a stationary 24 standing position, due to her thoracic and lumbar spine impairments. 25 (AR at 518). 2007, Dr. disc Jackson disease of was retained the lumbar in Plaintiff s spine, facet workers spondylosis 26 The ALJ interpreted Dr. Jackson s restrictions to be consistent 27 with a limited range of medium work, including the ability to lift and 28 carry 25 pounds frequently and 35 pounds occasionally, sit for six hours 4 1 in an eight-hour workday, and stand and/or walk for six hours in an 2 eight-hour workday. (AR at 17). However, as noted above, Dr. Jackson 3 precluded Plaintiff from engaging in heavy work and heavy lifting 4 with the left arm at or above shoulder level. (AR at 518). The 5 California Guidelines for Work Capacity indicate that a disability 6 precluding heavy lifting contemplates that the individual has lost 7 approximately half of his pre-injury capacity for lifting. See Glass v. 8 Workers' Comp. Appeals Board, 105 Cal.App.3d 297, 302, n.1 (1980). 9 Plaintiff performed her prior work at the medium level, which required 10 lifting up to 50 pounds at a time. (AR at 66, 195); 20 C.F.R. § 11 404.1567(c). Given Dr. Jackson s preclusion against heavy work and heavy 12 lifting, Plaintiff s lifting ability would have been reduced by one 13 half, resulting in a maximum lifting ability of 25 pounds occasionally. 14 Glass, 105 Cal.App.3d at 302, n.1. Thus, the ALJ s conclusion that 15 Plaintiff was capable of lifting 25 pounds frequently and 35 pounds 16 occasionally was clearly in conflict with Dr. Jackson s opinion. 17 Plaintiff asserts that the ALJ erred by disregarding Dr. Jackson s 18 opinion on work limitations. (Joint Stipulation at 4; AR at 518). The 19 Commissioner responds that the ALJ was not required to address every 20 piece of evidence, and was not obligated to accept all of Dr. Jackson s 21 findings. (See Joint Stipulation at 8). The Commissioner further notes 22 that a residual functional capacity assessment for medium work was 23 consistent with the opinions of one of the examining physicians, Jeff 24 Altman, 25 Stipulation at 9; AR at 280, 283-87, 298-99). M.D., and two state agency reviewing physicians. (Joint 26 It is well settled that an ALJ must provide specific and legitimate 27 reasons supported by substantial evidence in the record before rejecting 28 a controverted examining physician s opinion. Lester v. Chater, 81 F.3d 5 1 821, 830-31 (9th Cir. 1996). The opinions of non-examining physicians 2 cannot by themselves constitute substantial evidence that justifies the 3 rejection of the opinion of either an examining physician. Id. at 831. 4 Here, in assessing Plaintiff s residual functional capacity, the ALJ 5 claimed to give Dr. Jackson s medical opinion the most weight. (AR at 6 15). The ALJ did not reject Dr. Jackson s opinion in favor of the other 7 examining and non-examining physicians s opinions. (AR at 12). Because 8 the ALJ did not provide any reasons for rejecting Dr. Jackson s opinion, 9 the decision to deny benefits is not supported by substantial evidence. 10 Lester, 81 F.3d at 830-31.2 11 12 13 IV. Conclusion In sum, the ALJ failed to give proper consideration to Dr. 14 Jackson s opinion. As the record needs further development with respect 15 to this opinion as well Plaintiff s true exertional ability, remand for 16 further proceedings is warranted. See Harman v. Apfel, 211 F.3d 1172, 17 1179-80 (9th Cir. 2000).3 18 19 20 21 22 23 24 25 26 27 28 2 The court further notes that although Plaintiff s prior work as a checker (Dictionary of Occupational Titles DOT 369.687-014), office worker (DOT 239.567-010), and food server (DOT 311.477-030) may be performed at the light level, those jobs all require frequent reaching, which is inconsistent with Plaintiff s residual functional capacity. (AR at 15, 17, 196-97). 3 Because the record is not sufficiently developed to support a determination of disability without further proceedings, the Court will not decide whether the remaining issue raised by Plaintiff would independently require reversal. See Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003) (where there are outstanding issues that must be resolved before a determination of disability can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate). The Court recommends, however, that the ALJ consider all of Plaintiff s arguments when determining the merits of her case on remand. 6 1 2 Accordingly, IT IS HEREBY ORDERED that this action is remanded for further proceedings consistent with this Memorandum Opinion. 3 4 5 6 DATED: March 9, 2011 ______________________________ MARC L. GOLDMAN United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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