Theresa Shea v. Michael J Astrue, No. 5:2012cv00086 - Document 16 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 THERESA SHEA, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY, ) ) ) Defendant. ) ) ___________________________________) NO. ED CV 12-86-E MEMORANDUM OPINION AND ORDER OF REMAND 18 19 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 20 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 21 judgment are denied and this matter is remanded for further 22 administrative action consistent with this Opinion. 23 24 PROCEEDINGS 25 26 Plaintiff filed a complaint on January 26, 2012, seeking review 27 of the Commissioner s denial of disability benefits. The parties 28 filed a consent to proceed before a United States Magistrate Judge on 1 February 14, 2012. Plaintiff filed a motion for summary judgment on 2 June 28, 2012. Defendant filed a cross-motion for summary judgment on 3 July 27, 2012. The Court has taken the motions under submission 4 without oral argument. 5 2012. See L.R. 7-15; Order, filed January 31, 6 7 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 8 9 Plaintiff, a former housekeeper, asserts disability since 10 January 1, 2008, based on a combination of alleged impairments 11 (Administrative Record ( A.R. ) 10-317). 12 ( ALJ ) determined that Plaintiff suffers from the following severe 13 impairments: bipolar disorder, anxiety, and vertigo (A.R. 12). 14 ALJ also determined that Plaintiff has moderate difficulties 15 regarding concentration, persistence or pace (A.R. 14). The Administrative Law Judge The 16 17 Dr. Linda M. Smith, an examining psychiatrist, opined that 18 Plaintiff is mildly impaired in her ability to interact 19 appropriately with supervisors, co-workers, or the public, comply 20 with job rules such as safety and attendance, respond to change in 21 the normal workplace setting, and maintain persistence and pace in a 22 normal workplace setting (A.R. 246). 23 is mildly impaired overall, closer to the moderate end of the mild 24 range (id.). Dr. Smith believed Plaintiff 25 26 The ALJ found that Plaintiff retains the residual functional 27 capacity to work at all exertional levels but with the following non- 28 exertional limitations: no working at heights; no operating dangerous 2 1 machinery or motor vehicles; and limited to simple, repetitive tasks 2 with no public contact (A.R. 14) (emphasis added). 3 a vocational expert a hypothetical question embodying this residual 4 functional capacity (A.R. 49). 5 specifically any mild or moderate limitations in concentration, 6 persistence or pace, ability to interact appropriately with 7 supervisors, co-workers, or the public, ability to comply with job 8 rules such as safety and attendance, or ability to respond to change 9 in normal workplace setting (A.R. 49). The ALJ posed to The hypothetical did not mention The vocational expert 10 testified that a person having the limitations assumed in the 11 hypothetical could perform Plaintiff s past relevant work as a 12 housekeeper (A.R. 49-50). 13 Plaintiff not disabled (A.R. 19). 14 (A.R. 1-3). The ALJ relied on this testimony in finding The Appeals Council denied review 15 16 STANDARD OF REVIEW 17 18 Under 42 U.S.C. section 405(g), this Court reviews the 19 Administration s decision to determine if: (1) the Administration s 20 findings are supported by substantial evidence; and (2) the 21 Administration used correct legal standards. 22 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008). 23 evidence is such relevant evidence as a reasonable mind might accept 24 as adequate to support a conclusion. 25 389, 401 (1971) (citation and quotations omitted); see Widmark v. 26 Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006). 27 /// 28 /// 3 See Carmickle v. Substantial Richardson v. Perales, 402 U.S. 1 DISCUSSION 2 3 Plaintiff contends, inter alia, that the ALJ implicitly rejected 4 Dr. Smith s opinions regarding Plaintiff s limitations without stating 5 sufficient reasons for doing so. 6 hypothetical question posed to the vocational expert should have 7 included the limitations Dr. Smith found to exist. 8 that the ALJ accepted all of the limitations Dr. Smith found to exist, 9 and that the ALJ accounted for all of these limitations in the Plaintiff suggests that the Defendant contends 10 residual functional capacity s restriction to simple, repetitive 11 tasks with no public contact. 12 13 14 The extent to which the ALJ rejected or accepted Dr. Smith s opinions is unclear. The ALJ s decision states: 15 16 In determining the claimant s mental residual functional 17 capacity, the undersigned has given significant weight, but 18 not controlling weight, to the opinions of the psychiatric 19 consultative examiner [Dr. Smith], and the State agency 20 review psychiatrists on initial review and on 21 reconsideration. 22 supported by the evidence as a whole. 23 has been completely adopted as the residual functional 24 capacity determined herein. 25 the benefit of the doubt, the undersigned has adopted some 26 slightly more restrictive mental limitations on a function- 27 by-function basis that are supported by the evidence as a 28 whole (A.R. 18). These opinions are all reasonable and No single assessment In order to give the claimant 4 1 The ALJ evidently found Plaintiff more limited than did Dr. Smith 2 ( moderately rather than mildly ) with respect to concentration, 3 persistence or pace. 4 arguendo, the correctness of Defendant s contention that the ALJ 5 accepted the accuracy of Dr. Smith s opinions regarding Plaintiff s 6 limitations. Apart from this observation, the Court assumes, 7 8 The ALJ was required to include in the hypothetical question 9 posed to the vocational expert all of the limitations the ALJ found to 10 exist, including but not limited to the moderate limitation on 11 concentration, persistence or pace. 12 fails to set out all of the claimant s impairments, the vocational 13 expert s answers to the question cannot constitute substantial 14 evidence to support the ALJ s decision. 15 Sullivan, 924 F.2d 841, 850 (9th Cir. 1991); Gamer v. Secretary, 815 16 F.2d 1275, 1280 (9th Cir. 1987); Gallant v. Heckler, 753 F.2d 1450, 17 1456 (9th Cir. 1984); see also Social Security Ruling 96-8p (in 18 assessing residual functional capacity, the ALJ must consider all 19 limitations imposed by all impairments, even non-severe impairments; 20 the limitations due to such a not severe single impairment may 21 prevent an individual from performing past relevant work . . . ); 20 22 C.F.R. ยง 404.1545(e) ( we will consider the limiting effects of all 23 your impairment(s), even those that are not severe, in determining 24 your residual functional capacity ); accord Carmickle v. Commissioner, 25 533 F.3d at 1164. 26 include all of Plaintiff s limitations in the hypothetical question. 27 /// 28 /// Where a hypothetical question See, e.g., DeLorme v. The ALJ thus appears to have erred by failing to 5 1 In attempting to avoid this conclusion, Defendant argues that 2 inclusion in the hypothetical question of the restriction to simple, 3 repetitive tasks with no public contact amply accounted for all of 4 the above-discussed mental limitations. 5 Defendant relies on Stubbbs-Danielson v. Astrue, 539 F.3d 1169 (9th 6 Cir. 2008) ( Stubbs ). 7 claimant s contention that a restriction to simple, routine, 8 repetitive sedentary work, requiring no interaction with the public 9 failed to capture certain moderate and mild mental limitations In making this argument, In Stubbs, the Ninth Circuit rejected the 10 identified by a Dr. McCollum and a Dr. Eather. 11 Id. at 1173-74. Stubbs Court observed: 12 13 Dr. McCollum did not assess whether [the claimant] could 14 perform unskilled work on a sustained basis. 15 report did. 16 slow pace, both in thinking & actions and several moderate 17 limitations in other mental areas, ultimately concluded [the 18 claimant] retained the ability to carry out simple 19 tasks. . . Dr. Eather s Dr. Eather s report, which also identified a 20 21 The ALJ translated [the claimant s] condition, including the 22 pace and mental limitations, into the only concrete 23 restrictions available to him Dr. Eather s recommended 24 restriction to simple tasks . . . [A]n ALJ s assessment of 25 a claimant adequately captures restrictions related to 26 concentration, persistence, or pace where the assessment is 27 consistent with restrictions identified in the medical 28 testimony. Id. 6 The 1 The present case is distinguishable from Stubbs. In the present 2 case, unlike Stubbs, no doctor opined Plaintiff retains the ability to 3 carry out simple tasks notwithstanding the doctor s imposition of 4 mild/moderate limitations in various mental areas. 5 present case, unlike Stubbs, the ALJ had no medical basis to conclude 6 that the restriction to simple, repetitive tasks with no public 7 contact accounted for all of the mental limitations the ALJ and the 8 medical experts found to exist. 9 itself, have recognized that Stubbs does not control where the medical 10 evidence fails to establish that the claimant can perform simple work 11 notwithstanding moderate/mild limitations in mental functioning. 12 Brink v. Commissioner, 343 Fed. App x 211, 212 (9th Cir. Aug. 18, 13 2009); Feltis v. Astrue, 2012 WL 2684994, at *4 (E.D. Cal. July 6, 14 2012); Lim v. Astrue, 2011 WL 3813100, at *7 (E.D. Cal. Aug. 29, 15 2011); Bentancourt v. Astrue, 2010 WL 4916604, at *3 (C.D. Cal. 16 Nov. 27, 2010). Therefore, in the Courts, including the Ninth Circuit See 17 18 In view of these authorities, this Court is unable to conclude 19 that a restriction to simple, repetitive tasks with no public 20 contact amply accounts for the moderate/mild limitations the ALJ 21 evidently found to exist. 22 expert testimony given in response to an incomplete hypothetical 23 question. The ALJ erred in relying on vocational 24 25 The Court is also unable to conclude that the error was harmless. 26 [A]n ALJ s error is harmless where it is inconsequential to the 27 ultimate non-disability determination. 28 1104, 1115 (9th Cir. 2012) (citations and quotations omitted). 7 Molina v. Astrue, 674 F.3d [W]e 1 must analyze harmlessness in light of the circumstances of the case. 2 Id. at 1121 (citations and quotations omitted).1 3 4 [D]espite the burden to show prejudice being on the party 5 claiming error by the administrative agency, the reviewing 6 court can determine from the circumstances of the case that 7 further administrative review is needed to determine whether 8 there was prejudice from the error. 9 enough. Mere probability is not But where the circumstances of the case show a 10 substantial likelihood of prejudice, remand is appropriate 11 so that the agency can decide whether re-consideration is 12 necessary. 13 a borderline question, remand for reconsideration is not 14 appropriate. By contrast, where harmlessness is clear and not 15 16 McCleod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011). 17 18 Significant uncertainty sometimes attends the application of this 19 harmless error standard. For example, where the circumstances of the 20 case do not appear to render harmlessness clear but also do not 21 appear to render the likelihood of prejudice substantial, the 22 result of applying the standard seems particularly uncertain. 23 /// 24 25 26 27 28 1 Plaintiff cites and relies on the harmless error standard set forth in Stout v. Commissioner, 454 F.3d 1050 (9th Cir. 2006) ( Stout ). Not only is the Stout standard expressly applicable only to errors in connection with lay witness evidence, the Stout standard has been limited, or read narrowly, by subsequent Ninth Circuit authorities. See Molina v. Astrue, 674 F.3d at 115-22. 8 The harmlessness of the error in the present case is not clear, 1 2 and perhaps is a borderline question. On very similar if not 3 substantively identical facts, the Ninth Circuit and several district 4 courts have refused to find the error harmless. 5 Commissioner, 343 Fed. App x at 211; Feltis v. Astrue, 2012 WL 6 2684994; Lim v. Astrue, 2011 WL 3813100; Bentancourt v. Astrue, 2010 7 WL 4916604. See, e.g., Brink v. This Court will follow suit.2 8 9 The appropriate remedy in the present case is a remand for 10 further administrative proceedings, rather than a reversal with a 11 directive for the payment of immediate benefits. 12 537 U.S. 12, 16 (2002) (upon reversal of an administrative 13 determination, the proper course is remand for additional agency 14 investigation or explanation, except in rare circumstances). 15 /// 16 /// 17 /// 18 /// 19 /// See INS v. Ventura, 20 21 22 23 24 25 26 27 28 2 It might be argued that the incomplete hypothetical question to the vocational expert was harmless because an ALJ need not always consult a vocational expert to find that a claimant can perform the claimant s past relevant work. See Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993); Miller v. Heckler, 770 F.2d 845, 850 (9th Cir. 1985). Absent the vocational expert s testimony in the present case, however, the record lacks substantial evidence that a person with Plaintiff s limitations can perform Plaintiff s past relevant work. See Burkhart v. Bowen, 856 F.2d 1335, 1341 (9th Cir. 1988) (administration may not speculate concerning the requirements of particular jobs). Moreover, the ALJ expressly relied on the vocational expert s testimony in concluding that Plaintiff could perform her past relevant work. 9 1 CONCLUSION 2 3 For all of the foregoing reasons,3 Plaintiff s and Defendant s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: August 10, 2012. 10 11 ______________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the payment of benefits would not be appropriate at this time. 10
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