McAndrews v. Colvin, No. 2:2013cv03099 - Document 23 (E.D. Wash. 2014)
Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, granting 20 Motion for Summary Judgment; denying 22 Motion for Summary Judgment. Case is CLOSED. Signed by Senior Judge Robert H. Whaley. (LR, Case Administrator)
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McAndrews v. Colvin Doc. 23 1 2 3 4 5 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON BARRY McANDREWS, No. CV-13-3099-RHW 7 8 Plaintiff, 9 v. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 10 11 CAROLYN W. COLVIN, Commissioner of Social Security, 12 13 Defendant. 14 15 BEFORE THE COURT are cross-motions for summary judgment. ECF 16 Nos. 20, 22. Attorney D. James Tree represents Plaintiff; Special Assistant 17 United States Attorney Jeffrey R. McClain represents the Commissioner of Social 18 Security (Defendant). After reviewing the administrative record and the briefs 19 filed by the parties, the court GRANTS Plaintiff’s Motion for Summary Judgment 20 and DENIES Defendant’s Motion for Summary Judgment. 21 22 JURISDICTION On August 14, 2006, Plaintiff filed a Title II application along with a Title 23 XVI application for a period of disability and disability insurance benefits, alleging 24 disability in both claims beginning October 15, 2001. Tr. 134; 264. Plaintiff 25 indicated that he was unable to work due to asthma, ADHD, depression and sinus 26 problems. Tr. 269. The claim was denied initially, denied upon reconsideration, 27 and Plaintiff subsequently requested a hearing. Tr. 127-54; 159-97. On March 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 27, 2009, ALJ R. S. Chester presided over an administrative hearing at which 2 vocational expert Daniel McKinney and Plaintiff, who was represented by counsel, 3 testified. Tr. 50-71. ALJ Chester denied Plaintiff’s claim on April 14, 2009. Tr. 4 134-47. 5 Plaintiff requested review from the Appeals Council, and along with the 6 request, Plaintiff submitted an opinion letter from vocational expert Roger Wentz, 7 dated September 25, 2003. Tr. 341-44. On February 6, 2011, the Appeals Council 8 remanded the case and instructed the ALJ to obtain supplemental evidence from a 9 vocational expert to clarify the assessed limitations on Plaintiff’s occupational 10 base. Tr. 155-56. The Appeals Council also directed the ALJ to offer the Plaintiff 11 an opportunity for hearing, to address the evidence submitted with the request for 12 review, and to issue a new decision. Tr. 156. 13 On July 21, 2011, ALJ Caroline Siderius presided over the second 14 administrative hearing, at which medical expert Margaret Moore, Ph.D., vocational 15 expert Daniel McKinney, and Plaintiff, who was represented by counsel, testified. 16 Tr. 73-126. ALJ Siderius denied Plaintiff’s claim on August 25, 2011. Tr. 21-39. 17 The Appeals Council declined review. Tr. 1-5. The instant matter is before this 18 court pursuant to 42 U.S.C. § 405(g). 19 20 STATEMENT OF FACTS The facts have been presented in the administrative hearing transcript, the 21 ALJ’s decision, and the briefs of the parties and thus, they are only briefly 22 summarized here. At the time of the second hearing, Plaintiff was 47 years old, 23 single, and was staying with friends. Tr. 97; 106. He said he was in special 24 education classes up to the eighth grade, and he quit school after the tenth grade. 25 Tr. 55. 26 Plaintiff testified that he suffers from chronic sinus infections. Tr. 109. He 27 said that he misses too many days of work and has to quit because of his frequent 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 2 1 sinus problems. Tr. 109. Plaintiff said he last worked at McDonald’s, and that job 2 ended because he had sinus surgery. Tr. 97. He testified that he has been in jail 3 more than ten times in the past ten years. Tr. 99. At the time of the hearing, 4 Plaintiff said he had been “clean and sober” since May, 2011. Tr. 99. 5 Plaintiff’s daily activities include attending AA meetings and group 6 counseling sessions. Tr. 106-07. He also watches television. Tr. 107. He has a 7 ten-year old daughter whom he cares for on Saturdays, and he said he takes her to 8 Walmart, to see movies, and to the park. Tr. 108. 9 10 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 11 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 12 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 13 deference to a reasonable construction of the applicable statutes. McNatt v. Apfel, 14 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 15 only if it is not supported by substantial evidence or if it is based on legal error. 16 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 17 defined as being more than a mere scintilla, but less than a preponderance. Id. at 18 1098. Put another way, substantial evidence is such relevant evidence as a 19 reasonable mind might accept as adequate to support a conclusion. Richardson v. 20 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 21 rational interpretation, the court may not substitute its judgment for that of the 22 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 23 169 F.3d 595, 599 (9th Cir. 1999). Nevertheless, a decision supported by 24 substantial evidence will still be set aside if the proper legal standards were not 25 applied in weighing the evidence and making the decision. Brawner v. Secretary 26 of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial 27 evidence supports the administrative findings, or if conflicting evidence supports a 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 3 1 finding of either disability or non-disability, the ALJ’s determination is conclusive. 2 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 3 4 SEQUENTIAL PROCESS The Commissioner has established a five-step sequential evaluation process 5 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 6 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 7 through four, the burden of proof rests upon the claimant to establish a prima facie 8 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 9 burden is met once a claimant establishes that a physical or mental impairment 10 prevents him from engaging in his previous occupation. 20 C.F.R. §§ 11 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 12 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 13 (1) the claimant can make an adjustment to other work; and (2) specific jobs exist 14 in the national economy which claimant can perform. Batson v. Commissioner of 15 Social Sec. Admin., 359 F.3d 1190, 1193-94 (2004). If a claimant cannot make an 16 adjustment to other work in the national economy, a finding of “disabled” is made. 17 20 C.F.R. §§ 404.1520(a)(4)(I-v), 416.920(a)(4)(I-v). 18 19 ALJ’S FINDINGS At step one of the sequential evaluation process, the ALJ found Plaintiff had 20 not engaged in substantial gainful activity since October 15, 2001, the alleged 21 onset date. Tr. 23. At step two, the ALJ found Plaintiff has had the following 22 severe impairments: personality disorder, learning disorder, depressive disorder; 23 substance abuse; asthma; and sinusitis. Tr. 24. At step three, the ALJ concluded 24 that Plaintiff did not have an impairment or combination of impairments that meets 25 or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 26 404, Subpart P, Appendix 1 (20 C.F.R. 416.929(d), 416.925 and 416.926). Tr. 24- 27 25. The ALJ found that Plaintiff has the residual functional capacity to perform 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 4 1 light work with certain additional limitations including: “the claimant can never 2 climb ladders, ropes, and scaffolds.” Tr. 26. The ALJ concluded that Plaintiff 3 could not perform past relevant work, but considering Plaintiff’s age, education, 4 work experience and residual functional capacity, jobs exist in significant numbers 5 in the national economy that Plaintiff can perform, such as small parts assembler 6 and packing line worker. Tr. 38. As a result, the ALJ concluded Plaintiff was not 7 disabled as defined by the Social Security Act. Tr. 39. ISSUES 8 9 Plaintiff argues that the ALJ erred by: (1) failing to comply with the 10 Appeals Council remand order; (2) improperly evaluating Plaintiff’s impairments 11 at step two; (3) finding Plaintiff had little credibility; (4) improperly weighing the 12 medical evidence; and (5) relying upon the testimony of the vocational expert 13 when the hypothetical was incomplete. ECF No. 20 at 13; 23. 14 1. 15 Appeals Council Remand Order. Plaintiff contends that the ALJ failed to comply with the Appeals Council 16 order by failing to consider the opinions of vocational expert Roger Wentz. ECF 17 No. 20 at 14-15 18 On April 20, 2009, Plaintiff requested the Appeals Council review ALJ 19 Chester’s decision dated April 14, 2009. Tr. 196-97. Along with the request, 20 Plaintiff filed a September 25, 2003, opinion letter signed by vocational expert 21 Robert Wentz. Tr. 341-42. 22 On February 6, 2011, the Appeals Council accepted review, vacated the ALJ 23 decision, and remanded the case to an administrative law judge. Tr. 155-56. The 24 Council found that Plaintiff’s RFC – that limited Plaintiff to performing simple, 25 repetitive work away from the public that did not involve collaboration with 26 coworkers – precluded some of the jobs identified by the ALJ as jobs Plaintiff 27 could perform. Tr. 155. Also, the Council observed that because the recording of 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 5 1 the hearing was of poor sound quality, the Council was unable to understand 2 exchanges between Plaintiff’s counsel and the vocational expert and thus the 3 record was incomplete. Tr. 155. 4 The Council directed that on remand, the ALJ “will obtain supplemental 5 evidence from a vocational expert to clarify the effect of the assessed limitations 6 on the claimant’s occupational base. The hypothetical questions should reflect the 7 specific capacity/limitations established by the record as a whole.” Tr. 156 8 (reference omitted). Additionally, the ALJ was directed on remand to “offer the 9 claimant an opportunity for a hearing, address the evidence which was submitted 10 with the request for review,” and take further action as necessary to complete the 11 record and issue a new decision. Tr. 156. 12 Plaintiff argues that Mr. Wentz’s opinion letter, when considered together 13 with the medical provider opinions regarding Plaintiff’s psychological limitations, 14 establish Plaintiff is disabled. ECF No. 20 at 15. The ALJ failed to address Mr. 15 Wentz’s opinion letter. 16 Mr. Wentz’s opinion letter is not specific to Plaintiff. The letter indicates 17 that a hypothetical worker with a combination of five or more moderate limitations 18 in any of the mental activities “would have sufficient deficiencies that no employer 19 would be able to economically justify maintaining the employee.” Tr. 342. Thus, 20 Plaintiff argues, because Drs. McRae, Beaty and Moore all agree that Plaintiff has 21 five moderate limitations or more, Plaintiff is disabled. ECF No. 20 at 15-16. 22 Margaret Moore, Ph.D, a clinical psychologist, testified at the second 23 administrative hearing that the record revealed Plaintiff was moderately impaired 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 6 1 in seven mental categories.1 Tr. 93. The ALJ gave Dr. Moore’s opinion 2 significant weight. Tr. 34. 3 On October 29, 2006, DSHS consulting psychologist John McRae, Ph.D., 4 found that Plaintiff had moderate limitations in five mental categories. 2 Tr. 729- 5 30. The ALJ gave this opinion from Dr. McRae “some weight,” noting that the 6 1 7 8 on the form: 9 Q. I was wondering on that 20-item mental residual functional capacity for, Social Security’s form – if you could indicate any impairments that you believe would be at the moderate level or greater based on the record. A. Okay. Moderate would be three, five, as opposed to the marked that the DDS saw. No significant to moderate on six. Moderate on number nine. Moderate on 12, 14, 15, 16. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Dr. Moore referenced these listed categories by the number assigned the limitation Tr. 93; see, e.g., Tr. 729-30. The seven categories Dr. Moore identified include the ability to: (i) understand and remember detailed instructions; (ii) carry out detailed instructions; (iii) work in coordination with or proximity to others without being distracted by them; (iv) interact appropriately with the general public; (v) accept instructions and respond appropriately to criticism from supervisors; (vi) get along with coworkers or peers without distracting them or exhibiting behavioral extremes; and (vii) maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness. Tr. 93; 729-30. 2 The five categories of moderate impairments Dr. McRae identified included the ability to: (i) maintain attention and concentration for extended periods; (ii) work in coordination with or proximity to others without being distracted by them; (iii) interact appropriately with the general public; (iv) accept instructions and respond appropriately to criticism from supervisors; and (v) get along with coworkers or peers without distracting them or exhibiting behavioral extremes. Tr. 729-30. 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 7 1 opinion related to two marked impairments was not supported by the record. 3 Tr. 2 35. On March 21, 2007, Edward Beaty, Ph.D., affirmed Dr. McRae’s assessment. 3 Tr. 771. Additionally, Mr. Wentz asserted that one of the abilities – the ability to 4 5 accept instructions and respond appropriately to criticism from supervisors – that 6 both Drs. Moore and McRae both found was moderately limited “is mandatory in 7 the general labor market,” and a moderate impairment in this ability would mean a 8 worker would likely need a sheltered workshop. Tr. 341. This provides an 9 additional basis, Plaintiff argues, to find Plaintiff disabled. 10 Defendant’s response to Plaintiff’s argument is that the ALJ’s failure to 11 address Mr. Wentz’s opinion is harmless error. ECF No. 22 at 16. Defendant 12 reasons that Mr. Wentz provided only a “generic opinion regarding functional 13 limitations,” unlike the testifying vocational expert, and the generic opinion was 14 insufficient “to undermine the substantial evidence supporting the ALJ’s 15 conclusions.” ECF No. 22 at 16-17. An error is deemed harmless so long as substantial evidence remains that 16 17 supports the ALJ decision, and the error “does not negate the validity of the ALJ’s 18 ultimate conclusion.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012), 19 citing Batson, 359 F.3d at 1195-97. In this case, the Court cannot find that the 20 ALJ’s failure to address Mr. Wentz’s report was harmless error, because if the 21 report is credited and weighed more heavily than the testifying vocational expert, 22 23 24 25 26 27 3 The two categories in which Dr. McRae found Plaintiff was markedly impaired were in the ability to understand and remember detailed instructions and in the ability to carry out detailed instructions. Tr. 729. Dr. Moore disagreed with the “marked” rating, and opined that Plaintiff was moderately impaired in these categories. Tr. 93. 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 8 1 Plaintiff would be deemed disabled. Although specific, legitimate reasons may 2 exist for rejecting Mr. Wentz’s report, the court is constrained to review only those 3 reasons asserted by the ALJ. Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 4 2001). In this case, the ALJ erred by failing to address Mr. Wentz’s opinion. 5 The Court has discretion in deciding whether to remand for further 6 proceedings or for immediate payment of benefits. Harman v. Apfel, 211 F.3d 7 1172, 1178 (9th Cir. 2000). The issue turns on the utility of further proceedings. 8 A remand for an award of benefits is appropriate when no useful purpose would be 9 served by further administrative proceedings or when the record has been fully 10 developed and the evidence is insufficient to support the Commissioner's decision. 11 Strauss v. Comm'r, 635 F.3d 1135, 1138 (9th Cir. 2011) (quoting Benecke v. 12 Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). 13 Under the "crediting as true" doctrine, evidence should be credited and an 14 immediate award of benefits directed where: (1) the ALJ has failed to provide 15 legally sufficient reasons for rejecting the evidence; (2) no outstanding issues exist 16 that must be resolved before a determination of disability can be made; and (3) it is 17 clear from the record that the ALJ would be required to find the claimant disabled 18 were such evidence credited. Id. The "crediting as true" doctrine is not a 19 mandatory rule in the Ninth Circuit, but leaves the court flexibility in determining 20 whether to enter an award of benefits upon reversing the Commissioner's decision. 21 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (citing Bunnell v. Sullivan, 22 947 F.2d 341, 348 (9th Cir. 1991)). 23 In this case, the vocational experts offered contradictory evidence. 24 Applying one vocational expert’s opinion, Plaintiff can work; apply the opinions of 25 the second vocational expert, Plaintiff is disabled. As a result, applying the “credit 26 as true” analysis is not appropriate in this context. The ALJ failed to address Mr. 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 9 1 Wentz’s evidence, and thus the case must be remanded for reconsideration of the 2 report. 3 2. 4 Step Two. Plaintiff argues that the ALJ erred at step two by failing to find Plaintiff’s 5 obstructive lung disease, asthma, and chronic sinusitis as severe impairments. 6 ECF No. 20 at 21. 7 The ALJ found that Plaintiff’s borderline intellectual functioning was 8 nonsevere for several reasons, including that no objective medical evidence existed 9 this impairment “significantly limits the claimant’s ability to perform basic work 10 activities.” Tr. 24. Similarly, the ALJ found that Plaintiff’s diagnosis of ADHD 11 and anxiety were non-severe, in part, because no objective medical evidence 12 existed that these impairments “significantly [limit] the claimant’s ability to 13 perform basic work activities.” Tr. 24. 14 At step two of the sequential evaluation, the ALJ determines whether 15 Plaintiff has "a severe medically determinable physical or mental impairment" that 16 meets the twelve-month durational requirement. 20 C.F.R. § 416.909. “An 17 impairment or combination of impairments can be found ‘not severe’ only if the 18 evidence establishes a slight abnormality that has ‘no more than a minimal effect 19 on an [individual’s] ability to work.’” Smolen v. Chater, 80 F.3d 1273, 1290 (9th 20 Cir. 1996), citing SSR 85-28. The step two inquiry is a de minimis screening 21 device to dispose of groundless or frivolous claims. Yuckert v. Bowen, 841 F.2d 22 303, 306 (9th Cir. 1988). 23 Specifically, Plaintiff contends that in determining whether his borderline 24 intellectual functioning, attention-deficit hyperactivity disorder and anxiety 25 constituted severe impairments, the ALJ used an incorrect standard. ECF No. 20 at 26 21. In other words, Plaintiff complains, the ALJ used a more rigorous standard 27 that made it more difficult for Plaintiff to establish a severe impairment. 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 10 1 In deciding if Plaintiff’s impairments were severe, the ALJ examined 2 whether the impairment “significantly limited” Plaintiff’s ability to work, instead 3 of the applicable standard whether the impairment had “no more than a minimal 4 effect” on Plaintiff’s ability to work. These standards are significantly different, 5 and thus on remand, the ALJ should reconsider all of Plaintiff’s impairments, and 6 apply the “no more than a minimal effect” test to determine if Plaintiff’s 7 impairments qualify as severe impairments at step two. 8 3. Credibility. 9 Plaintiff argues that the ALJ erred in finding that he lacked credibility. ECF 10 No. 20 at 23-24. Plaintiff argued that ALJ improperly relied upon two activities – 11 Plaintiff’s playing with a hackey sack ball and riding a bicycle– to determine he 12 was not as limited as he claimed. ECF No. 20 at 23-24. Defendant responds that 13 Plaintiff’s challenge to the credibility determination is facially insufficient because 14 the remaining, unchallenged reasons are sufficient to support the negative 15 credibility determination. ECF No. 22 at 6-7. 16 The ALJ found Plaintiff had little credibility. Tr. 28-29. As the ALJ found, 17 Plaintiff’s testimony that he went to the emergency room every two to three 18 months to treat his sinus infections and asthma attacks contradicted the medical 19 evidence that he had asthma attacks only twice per year in 2011, and he had no 20 attacks in the six months preceding the hearing. Tr. 28; 1239. Also, as the ALJ 21 found, Plaintiff testified that he had last used methamphetamine in 1991, yet he 22 tested positive for methamphetamine twice in March 2010. Tr. 28; 973. 23 Additionally, as the ALJ noted, Plaintiff was not compliant with his prescribed 24 medications and treatment, and when he was compliant, his symptoms were 25 controlled. Tr. 29-30; 430-31; 437. Finally, as the ALJ explained, many of 26 Plaintiff’s complaints regarding his mental health issues were related to the effects 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 11 1 of his failure to comply with his medications for anxiety and depression. Tr. 30; 2 608; 611; 657. The ALJ is responsible for determining credibility. Andrews, 53 F.3d at 3 4 1039. Unless affirmative evidence exists indicating that the claimant is 5 malingering, the ALJ's reasons for rejecting the claimant's testimony must be "clear 6 and convincing." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). The ALJ's 7 findings must be supported by specific, cogent reasons. Rashad v. Sullivan, 903 8 F.2d 1229, 1231 (9th Cir. 1990). "General findings are insufficient; rather, the 9 ALJ must identify what testimony is not credible and what evidence undermines 10 the claimant's complaints." Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998), 11 quoting Lester, 81 F.3d at 834. In determining credibility, an ALJ properly 12 considers Plaintiff’s prior inconsistent statements, an inadequately explained 13 failure to seek treatment or to follow a prescribed course of treatment, and 14 Plaintiff’s daily activities. See, e.g., Fair v. Bowen, 885 F.2d 597, 602-04 (9th Cir. 15 1989). In this case, the ALJ relied upon several valid factors to find that Plaintiff 16 17 had little credibility, and as Defendant noted, Plaintiff challenged only one. Even 18 assuming arguendo that the ALJ erred by relying upon Plaintiff’s activities to 19 discount his credibility, the error is harmless because the ALJ’s remaining 20 credibility reasons are supported by substantial evidence. See Batson, 359 F.3d at 21 1195-97. As a result, Plaintiff’s claim fails. 22 4. 23 Medical Evidence. Plaintiff contends that the ALJ erred by rejecting the opinion of Plaintiff’s 24 treating physician on the basis that he was not “medically trained to give an 25 opinion” regarding Plaintiff’s mental health. ECF No. 20 at 19. 26 27 On July 14, 2006, Donald G. Hill, M.D., Plaintiff’s treating physician, completed a Physical Evaluation in which he diagnosed Plaintiff with COPD and 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 12 1 asthma, and opined Plaintiff was limited to light work. Tr. 577. In a treatment 2 note also dated July 14, 2006, Dr. Hill opined that Plaintiff was mildly to 3 moderately disabled “based upon concerns about his COPD and reactive airway 4 disease, but I think also to a significant extent due to his psychiatric problems and 5 social instability. All of these are complicated by his history of drug abuse and 6 alcohol abuse.” Tr. 589. 7 The ALJ gave little weight to Dr. Hill’s opinion for three reasons: (i) 8 because little evidence existed that Plaintiff’s asthma has resulted in exertional 9 limitations; (ii) Plaintiff’s daily exertional activities of walking and riding a bike 10 undermine the opinion; and (iii) because “Dr. Hill is not medically trained to give 11 an opinion as to Plaintiff’s mental health status.” Tr. 34. 12 Plaintiff challenges the ALJ’s reliance upon the fact that Dr. Hill is not a 13 specialist in mental health. ECF No. 20 at 19. An ALJ may consider a doctor's 14 area of expertise in determining the weight a doctor's opinion should be given; 15 however, an ALJ may not reject a doctor's opinion regarding medical limitations 16 solely on the grounds the opinion is outside the doctor's area of expertise. See 20 17 CFR §404.1527(c)(2)(ii). 18 Plaintiff is correct that the regulations provide that a treating doctor’s 19 opinion will be considered, even if the subject of the opinion is outside the doctor’s 20 area of expertise, and such an opinion is entitled to greater weight than the opinion 21 from an examining source: 22 23 24 25 26 27 For example, if your ophthalmologist notices that you have complained of neck pain during your eye examinations, we will consider his or her opinion with respect to your neck pain, but we will give it less weight than that of another physician who has treated you for the neck pain. When the treating source has reasonable knowledge of your impairment(s), we will give the source's opinion more weight than we would give it if it were from a nontreating source. 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 13 1 2 3 20 CFR §404.1527(c)(2)(ii). In this case, the ALJ gave little weight to Dr. Hill’s opinions for several 4 valid reasons, not solely because Dr. Hill was not a trained mental health 5 professional, and thus the ALJ did not err. Plaintiff fails to challenge the other 6 reasons, supported by substantial evidence that the ALJ cited for giving little 7 weight to Dr. Hill’s opinion. Because the ALJ provided several valid reasons for 8 discounting Dr. Hill’s opinion, Plaintiff’s claim fails. 9 Plaintiff also complains that the ALJ failed to provide a “new” analysis of 10 the medical evidence, which he argues was required by the Appeals Council. ECF 11 No. 20 at 20. Plaintiff argues that the ALJ’s decision “is essentially the prior 12 unfavorable decision,” and thus, Plaintiff concludes, “[t]he ALJ failed to provide 13 detailed, reasoned, and legitimate rationales for the decisions regarding the weight 14 accorded to the opinion evidence of record.” ECF No. 20 at 20. 15 Plaintiff’s argument that the ALJ’s decision is faulty because the decision 16 was not completely re-written is unavailing. First, the Appeals Council remand 17 order directs the ALJ to obtain more evidence regarding Plaintiff’s vocational 18 capacity, and the order does not address or take issue with the ALJ’s analysis of 19 the opinion evidence. As such, Plaintiff interprets too broadly the Council’s order 20 that the ALJ produce a “new decision.” 21 Second, while Plaintiff summarily asserts that the ALJ’s opinion evidence 22 lacked “detailed, reasoned, and legitimate rationales” related to analysis of the 23 opinions, Plaintiff fails to provide specific analysis or argument. The Court 24 ordinarily will not consider matters on appeal that are not specifically and 25 distinctly argued in an appellant's opening brief. See Carmickle v. Comm'r Soc. 26 Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008). The Ninth Circuit has 27 repeatedly admonished that the court will not "manufacture arguments for an 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 14 1 appellant" and therefore will not consider claims that were not actually argued in 2 appellant's opening brief. Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 3 (9th Cir. 1994). In light of Plaintiff’s failure to provide meaningful argument 4 related to the analysis of the opinion evidence, the Court declines to consider this 5 issue. 6 5. 7 Incomplete Hypothetical. Finally, Plaintiff contends that the ALJ erred by relying upon an incomplete 8 hypothetical posed to the vocational expert, to find that Plaintiff could perform 9 certain jobs. ECF No. 20 at 17. Plaintiff argues that the RFC in the written 10 decision limits Plaintiff to light work, and restricts him from climbing ladders, 11 ropes and scaffolds, but the hypothetical posed to the expert failed to include these 12 limitations. ECF No. 20 at 17. 13 Plaintiff is partially correct. Plaintiff’s RFC limited him to light work as 14 defined in 20 C.F.R. 404.1567(b) and 416.967 (b), except in part, Plaintiff “can 15 never climb ladders, ropes, and scaffolds.” Tr. 26. Contrary to Plaintiff’s 16 assertions, the hypothetical posed to the vocational expert included the restriction 17 that Plaintiff can never climb ladders, ropes, and scaffolds. Tr. 121. 18 However, as Plaintiff contends, the hypothetical posed to the vocational 19 expert did not specify light work, nor did the hypothetical include the lifting 20 restrictions attendant to light work. Light work involves lifting no more than 20 21 pounds at a time with frequent lifting or carrying of objects weighing up to 10 22 pounds. See Tr. 121; compare 20 C.F.R. 404.1567(b) and 416.967 (b). In fact, the 23 ALJ told the vocational expert that in considering the hypothetical worker, the “lift 24 and carry” was unrestricted. Tr. 122. 25 In response, the vocational expert opined that a “fairly broad range of 26 sedentary and light work” was available for the hypothetical worker. Tr. 122. The 27 ALJ noted that based upon the vocational expert’s testimony, the worker would be 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 15 1 able to perform the requirements of representative occupations of sedentary and 2 light unskilled work with a sit/stand option such as: small parts assembler, DOT 3 649.685-010, and packing line worker, DOT 753.687-038. Tr. 38. However, the 4 DOT code provided by the vocational expert for “small parts assembler,” is in fact 5 attached to “automatic-machine attendant,” which requires medium exertion. See 6 DOT 649.685-101.4 7 On remand, the ALJ is directed to correct the reference to the DOT code, or 8 identify a new representative occupation that is appropriate pursuant to Plaintiff’s 9 RFC. CONCLUSION 10 11 Having reviewed the record and the ALJ's findings, the court concludes the 12 ALJ's decision is based on legal error, and requires remand. On remand, the new 13 ALJ is directed to consider and weigh Mr. Wentz’s opinion letter, and reconsider 14 the determinations at both Step Two and Step Five. The decision is therefore 15 REVERSED and the case is REMANDED for further proceedings consistent with 16 this opinion. Accordingly, 17 4 18 19 20 21 22 23 24 25 ATTENDANT (paper goods) alternate titles: machine assembler. Tends automatic cutting, curling, crimping, capping, labeling, or tubing machines that assemble paper products, such as spools and tubes: Presses pedals, buttons, and switches or turns valves to start and stop machines and auxiliary devices, such as glue heaters, curling heads, and air ejectors. Dumps tubes, caps, labels, covers, spool shields, or paper strips into dispenser, feeds them onto conveyor, or positions them on mandrel. Pours glue into pots. Clears jams. May stack finished product on truck. GOE: 06.04.04 STRENGTH: M GED: R2 M1 L1 SVP: 2 DLU: 79 26 27 DOT 649.685-010 (emphasis added). 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 16 1 2 IT IS HEREBY ORDERED: 1. Plaintiff's Motion for Summary Judgment (ECF No. 20) is 3 GRANTED. The matter is remanded to the Commissioner for additional 4 proceedings pursuant to sentence four 42 U.S.C. 405(g). 5 6 2. Defendant's Motion for Summary Judgment (ECF No. 22) is DENIED. 7 3. An application for attorney fees may be filed by separate motion. 8 4. The District Court Executive is directed to enter Judgment for 9 Plaintiff. 10 11 12 IT IS SO ORDERED. The District Court Executive is hereby directed to file this Order and provide copies to counsel, and close the file. DATED this 9th day of October, 2014. 13 14 15 16 s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 17
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