Janis Stephenson v. Michael J. Astrue, No. 5:2010cv01864 - Document 24 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion. (hr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JANIS STEPHENSON, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. EDCV 10-1864 JC ) ) ) MEMORANDUM OPINION AND ) ORDER OF REMAND ) ) ) ) ) ) ) 18 19 20 21 22 23 24 25 26 27 28 I. SUMMARY On December 9, 2010, plaintiff Janis Stephenson ( plaintiff ) filed a Complaint seeking review of the Commissioner of Social Security s denial of plaintiff s application for benefits. The parties have consented to proceed before a United States Magistrate Judge. This matter is before the Court on the parties cross motions for summary judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ).1 The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; December 13, 2010 Case Management Order, ¶ 5. 1 On June 3, 2011, plaintiff filed a reply in connection with Plaintiff s Motion. 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is REVERSED AND REMANDED for further proceedings 3 consistent with this Memorandum Opinion and Order of Remand. 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On October 26, 2005, plaintiff filed an application for Supplemental 7 Security Income benefits. (Administrative Record ( AR ) 74). Plaintiff asserted 8 that she became disabled on June 1, 1999, due to ankles, back, obesity and 9 anxiety. (AR 74, 136). The Administrative Law Judge ( ALJ ) examined the 10 medical record and heard testimony from plaintiff and a vocational expert on 11 September 10, 2007. (AR 23). On September 19, 2007, the ALJ determined that 12 plaintiff was not disabled through the date of the decision. (AR 74-81). 13 On November 30, 2007, the Appeals Council granted review, vacated the 14 ALJ s September 19, 2007 decision, and remanded the matter for further 15 administrative proceedings. (AR 112-15). The ALJ again examined the medical 16 record and heard testimony from plaintiff (who was represented by counsel), two 17 medical experts and a vocational expert on August 5, 2008. (AR 41-68). 18 On September 11, 2008, the ALJ again determined that plaintiff was not 19 disabled through the date of the decision.2 (AR 10-20). Specifically, the ALJ 20 found: (1) plaintiff suffered from the following severe impairments: obesity, 21 asthma, affective mood disorder, post-traumatic stress disorder, and somatoform 22 disorder secondary to psychological reaction to physical conditions (AR 12); 23 (2) plaintiff s impairments, considered singly or in combination, did not meet or 24 medically equal one of the listed impairments (AR 12-14); (3) plaintiff retained 25 the residual functional capacity to perform sedentary work (20 C.F.R. 26 27 2 The ALJ stated that his September 19, 2007 decision was incorporated by reference into, 28 and supplemented by, his September 11, 2008 decision. (AR 10). 2 1 § 416.967(a)) with several additional exertional and non-exertional limitations3 2 (AR 14); (4) plaintiff could not perform her past relevant work (AR 18); (5) there 3 are jobs that exist in significant numbers in the national economy that plaintiff 4 could perform, specifically information clerk, general office clerk, and order clerk 5 (AR 19); and (6) plaintiff s allegations regarding her limitations were not credible 6 to the extent they were inconsistent with the ALJ s residual functional capacity 7 assessment (AR 17). 8 The Appeals Council denied plaintiff s second application for review. (AR 9 1-4). 10 III. APPLICABLE LEGAL STANDARDS 11 A. 12 To qualify for disability benefits, a claimant must show that the claimant is Sequential Evaluation Process 13 unable to engage in any substantial gainful activity by reason of a medically 14 determinable physical or mental impairment which can be expected to result in 15 death or which has lasted or can be expected to last for a continuous period of at 16 least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 17 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of 18 performing the work claimant previously performed and incapable of performing 19 any other substantial gainful employment that exists in the national economy. 20 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. 21 § 423(d)(2)(A)). 22 23 3 The ALJ determined that plaintiff: (i) could perform sedentary work; (ii) could stand 24 and/or walk for two hours during an eight-hour work day but not for more than 30 minutes at a 25 time; (iii) could not climb ladders, walk on uneven surfaces for a prolonged period, balance, work at unprotected heights, or work around dangerous machinery; (iv) could occasionally climb 26 stairs or ramps; (v) could not operate foot pedals and could not frequently push/pull with the 27 lower extremities; (vi) did not need an assistive device for ambulating; (vii) must work in a clean environment with no concentrated exposure to dust, odors, fumes, gasses, etc. (due to plaintiff s 28 asthma); (viii) could perform simple, repetitive tasks. (AR 14). 3 1 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 2 sequential evaluation process: 3 (1) 4 5 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant s alleged impairment sufficiently severe to limit 6 claimant s ability to work? If not, the claimant is not disabled. 7 If so, proceed to step three. 8 (3) 9 Does the claimant s impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. 10 Part 404, Subpart P, Appendix 1? If so, the claimant is 11 disabled. If not, proceed to step four. 12 (4) Does the claimant possess the residual functional capacity to 13 perform claimant s past relevant work? If so, the claimant is 14 not disabled. If not, proceed to step five. 15 (5) Does the claimant s residual functional capacity, when 16 considered with the claimant s age, education, and work 17 experience, allow claimant to adjust to other work that exists in 18 significant numbers in the national economy? If so, the 19 claimant is not disabled. If not, the claimant is disabled. 20 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 21 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 22 The claimant has the burden of proof at steps one through four, and the 23 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 24 F.3d 949, 954 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 25 (claimant carries initial burden of proving disability). 26 B. 27 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 28 benefits only if it is not supported by substantial evidence or if it is based on legal 4 1 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 3 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 4 mind might accept as adequate to support a conclusion. Richardson v. Perales, 5 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 6 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 7 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 8 To determine whether substantial evidence supports a finding, a court must 9 consider the record as a whole, weighing both evidence that supports and 10 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 11 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 12 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 13 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 14 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 15 IV. DISCUSSION 16 Plaintiff asserts that a reversal or remand is required because the ALJ s 17 residual functional capacity assessment, and in turn the hypothetical question the 18 ALJ posed to the vocational expert, failed properly to account for limitations 19 related to plaintiff s impairment in her ability to maintain concentration, 20 persistence and pace. (Plaintiff s Motion at 3-6). Defendant argues that the ALJ s 21 residual functional capacity assessment, which limited plaintiff to simple, 22 repetitive tasks, properly captured all of plaintiff s mental limitations. 23 (Defendant s Motion at 5-6). The Court finds that the ALJ failed properly to 24 account for all of plaintiff s mental limitations that are supported by the record. 25 As the Court cannot find that the ALJ s error was harmless, a remand is warranted. 26 A. 27 At the August 5, 2008 administrative hearing, Dr. Malancharuvil, a Pertinent Facts 28 psychologist, testified as a medical expert with respect to plaintiff s mental 5 1 impairments. (AR 41, 57-64). Dr. Malancharuvil opined that plaintiff had mild to 2 moderate difficulties in her ability to maintain concentration, persistence and pace, 3 and that plaintiff had psycho physiological reactions to pain.4 (AR 13, 58-59). 4 In the September 11, 2008 decision, the ALJ found that (1) based on Dr. 5 Malancharuvil s testimony, plaintiff was moderately impaired in her ability to 6 maintain concentration, persistence and pace; and (2) any limitations from 7 plaintiff s mental impairments were adequately reflected in the ALJ s residual 8 functional capacity assessment which included a restriction to simple, repetitive 9 tasks. (AR 13-14). 10 At the August 5, 2008 administrative hearing, the ALJ posed a hypothetical 11 question to the vocational expert which included all limitations noted in the ALJ s 12 residual functional capacity assessment for plaintiff except a limitation to simple, 13 repetitive tasks. (Compare AR 14 with AR 65). In response, the vocational expert 14 testified that a hypothetical individual with the stated characteristics could still 15 perform the jobs of information clerk, general office clerk, and order clerk. (AR 16 14, 65-66). The ALJ adopted the vocational expert s testimony and, as noted 17 above, determined that plaintiff was not disabled because she retained the residual 18 functional capacity to perform the representative jobs identified by the vocational 19 expert. (AR 19). 20 21 22 23 24 25 26 27 28 4 To the extent plaintiff s argues that Dr. Malancharuvil actually testified that plaintiff had marked (rather than moderate) impairment in concentration, persistence and pace (Plaintiff s Motion at 4-5) (citing AR 63), the record belies such an assertion. At the August 5, 2008 hearing, Dr. Malancharuvil testified that plaintiff had mild to moderate limitations in maintaining concentration, persistence, or pace the third of the four broad functional areas known as the paragraph B criteria. (AR 59) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.07(B)(3)). As defendant correctly points out, Dr. Malancharuvil s statement regarding marked limitation in concentration, persistence and pace was a reference to medical records from Mr. James Orrell, LCSW (a medical source that the ALJ rejected), and was not an expression of Dr. Malancharuvil s opinion as to plaintiff s mental abilities. (Defendant s Motion at 3-4) (citing AR 63). Although plaintiff suggests in her reply that such evidence raises a conflict in the medical opinion evidence, any such conflict was the sole province of the ALJ to resolve. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 6 1 B. 2 If, at step four, the claimant meets her burden of establishing an inability to Pertinent Law 3 perform past work, the Commissioner must show, at step five, that the claimant 4 can perform some other work that exists in significant numbers in the national 5 economy (whether in the region where such individual lives or in several regions 6 of the country), taking into account the claimant s residual functional capacity, 7 age, education, and work experience. Tackett, 180 F.3d at 1100 (citing 20 C.F.R 8 § 404.1560(b)(3)); 42 U.S.C. § 423(d)(2)(A). Where, as here, a claimant suffers 9 from both exertional and nonexertional limitations, the Grids do not mandate a 10 finding of disability based solely on the claimant s exertional limitations, and the 11 claimant s non-exertional limitations are at a sufficient level of severity such that 12 the Grids are inapplicable to the particular case, the Commissioner must consult a 13 vocational expert.5 Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007); see 14 Lounsburry v. Barnhart, 468 F.3d 1111, 1116 (9th Cir.), as amended (2006); 15 Cooper v. Sullivan, 880 F.2d 1152, 1155 (9th Cir. 1989). 16 The vocational expert s testimony may constitute substantial evidence of a 17 claimant s ability to perform work which exists in significant numbers in the 18 national economy when the ALJ poses a hypothetical question that accurately 19 describes all of the limitations and restrictions of the claimant that are supported 20 by the record. See Tackett, 180 F.3d at 1101; see also Robbins, 466 F.3d at 886 21 (finding material error where the ALJ posed an incomplete hypothetical question 22 to the vocational expert which ignored improperly-disregarded testimony 23 suggesting greater limitations); Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001) 24 ( If the record does not support the assumptions in the hypothetical, the vocational 25 expert s opinion has no evidentiary value. ); Embrey v. Bowen, 849 F.2d 418, 422 26 27 28 5 The severity of limitations at step five that would require use of a vocational expert must be greater than the severity of impairments determined at step two. Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007). 7 1 (9th Cir. 1988) ( Hypothetical questions posed to the vocational expert must set 2 out all the limitations and restrictions of the particular claimant . . . . ) (emphasis 3 in original; citation omitted). 4 C. 5 First, contrary to defendant s suggestion, an ALJ s residual functional Analysis 6 capacity assessment which includes a restriction to simple, repetitive tasks does 7 not necessarily account for limitations stemming from a claimant s impairments in 8 concentration, persistence or pace absent specific medical evidence in the record 9 to support such a conclusion. See Bickford v. Astrue, 2010 WL 4220531, at *11 10 (D. Or. Oct. 19, 2010) ( [S]o long as the ALJ s decision is supported by medical 11 evidence, a limitation to simple, repetitive work can account for moderate 12 difficulties in concentration, persistence or pace. ) (emphasis added; citations 13 omitted). 14 Second, here, substantial evidence does not support the ALJ s finding that 15 plaintiff s mental limitations were adequately reflected in the ALJ s restriction to 16 simple, repetitive tasks. As noted above, Dr. Malancharuvil testified only about 17 plaintiff s mental limitations (i.e., plaintiff s difficulties in her ability to maintain 18 concentration, persistence and pace, and plaintiff s psycho physiological reactions 19 to pain). (AR 13, 58-59). Such testimony, however, cannot serve as substantial 20 evidence supporting the ALJ s determination because Dr. Malancharuvil did not 21 identify the abilities plaintiff retained despite plaintiff s mental limitations. See, 22 e.g., Sabin v. Astrue, 337 Fed. Appx. 617, 621 (9th Cir. 2009)6 (ALJ s 23 determination that plaintiff could do simple and repetitive tasks in spite of 24 moderate difficulties as to concentration, persistence, or pace was supported by 25 reports from doctors that, despite concentration difficulties, plaintiff was able to 26 27 6 Courts may cite unpublished Ninth Circuit opinions issued on or after January 1, 2007. 28 See U.S. Ct. App. 9th Cir. Rule 36 3(b); Fed. R. App. P. 32.1(a). 8 1 complete serial 1 s; spell world backwards; follow a three-step command; and 2 do her own cooking, cleaning, laundry, shopping, and bills. ); Stubbs-Danielson v. 3 Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (RFC of simple, routine, repetitive 4 work is consistent with doctor s opinion that claimant can carry out very short 5 simple instructions, maintain attention and concentration for extended periods, 6 and sustain an ordinary routine without special supervision. ); Howard v. 7 Massanari, 255 F.3d 577, 582 (8th Cir. 2001) (limitation of often having 8 deficiencies of concentration, persistence or pace which was interpreted by a 9 doctor into a functional capacity assessment of being able to sustain sufficient 10 concentration and attention to perform at least simple, repetitive, and routine 11 cognitive activity without severe restriction of function was adequately captured 12 in a hypothetical for someone who is capable of doing simple, repetitive, routine 13 tasks ). Defendant points to no other medical evidence in the record which 14 demonstrates that plaintiff retained the ability to do simple, repetitive tasks despite 15 impairments in concentration, persistence and pace. 16 Finally, even assuming that the ALJ s residual functional capacity 17 assessment adequately accounted for plaintiff s mental limitations, a remand is 18 still warranted in this case because the ALJ posed an incomplete hypothetical 19 question to the vocational expert. As noted above, the ALJ s hypothetical 20 question did not include any limitation related to plaintiff s mental impairments. 21 (AR 65). Accordingly, the vocational expert s testimony based on such 22 incomplete hypothetical, which the ALJ adopted, could not serve as substantial 23 evidence supporting the ALJ s determination at step five that plaintiff could 24 perform the occupations of information clerk, general office clerk, and order clerk. 25 See Robbins, 466 F.3d at 886. The Court cannot find such error harmless as 26 defendant points to no persuasive evidence in the record which could support the 27 ALJ s determination at step five that plaintiff was not disabled. 28 /// 9 1 V. CONCLUSION7 2 For the foregoing reasons, the decision of the Commissioner of Social 3 Security is reversed in part, and this matter is remanded for further administrative 4 action consistent with this Opinion.8 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 DATED: July 12, 2011 7 8 ____________/s/_____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 7 The Court need not, and has not adjudicated plaintiff s other challenges to the ALJ s 23 decision, except insofar as to determine that a reversal and remand for immediate payment of 24 benefits would not be appropriate. 25 26 27 28 8 When a court reverses an administrative determination, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). 10

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