Cheryle Ann Montgomery v. Michael J Astrue, No. 2:2012cv01094 - Document 17 (C.D. Cal. 2012)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Oswald Parada: Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED THAT Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings consistent with this Memorandum Opinion. (am)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 CHERYLE ANN MONTGOMERY, ) Case No. CV 12-1094-OP ) ) Plaintiff, ) MEMORANDUM OPINION; ORDER v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) 17 The Court1 now rules as follows with respect to the disputed issues listed in 18 the Joint Stipulation ( JS ).2 19 / / / 20 / / / 21 / / / 22 23 1 24 25 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See ECF Nos. 7, 15.) 2 As the Court stated in its Case Management Order, the decision in this case is made on the basis of the pleadings, the Administrative Record, and the 27 Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal 28 Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). (ECF No. 6 at 3.) 26 1 1 I. 2 DISPUTED ISSUES 3 As reflected in the Joint Stipulation, the disputed issues raised by Plaintiff 4 as the grounds for reversal and/or remand are as follows: 5 (1) Whether the Administrative Law Judge ( ALJ ) properly determined 6 Plaintiff s residual functional capacity in light of his (a) determination 7 of Plaintiff s credibility, (b) rejection of the opinions of Plaintiff s 8 treating physicians, and (c) consideration of the consultative 9 examiner s opinion; and 10 11 (2) Whether the ALJ properly found that Plaintiff was capable of performing alternative work. 12 (JS at 4-13, 31-39.) 13 II. 14 STANDARD OF REVIEW 15 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 16 to determine whether the Commissioner s findings are supported by substantial 17 evidence and whether the proper legal standards were applied. DeLorme v. 18 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 19 than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 20 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec y of 21 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 22 evidence is such relevant evidence as a reasonable mind might accept as adequate 23 to support a conclusion. Richardson, 402 U.S. at 401 (citation omitted). The 24 Court must review the record as a whole and consider adverse as well as 25 supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). 26 Where evidence is susceptible of more than one rational interpretation, the 27 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 28 1452 (9th Cir. 1984). 2 1 III. 2 DISCUSSION 3 A. The ALJ s Findings. 4 The ALJ found that Plaintiff has the severe impairments of status post 5 thoracotomy, chronic obstructive pulmonary disease, emphysema, depressive 6 disorder, and history of polysubstance abuse. (Administrative Record ( AR ) at 7 15.) The ALJ found Plaintiff had the residual functional capacity ( RFC ) to 8 perform a limited range of light work with the following limitations: Plaintiff is 9 able to lift twenty pounds occasionally and ten pounds frequently; sit and stand for 10 six hours in an eight-hour day; occasionally climb; be exposed to a minimal 11 amount of pulmonary irritants; and perform only simple, routine tasks. (Id. at 18.) 12 Relying on the testimony of a vocational expert ( VE ), the ALJ concluded that 13 Plaintiff was not capable of performing her past relevant work as a certified nurse 14 aid but could perform alternative work as ticket taker and small products 15 assembler. (Id. at 19-20.) 16 B. The ALJ s Consideration of Plaintiff s Credibility. 17 Plaintiff argues that the ALJ s RFC assessment was flawed because it was 18 the result of underlying errors. First, Plaintiff contends that the ALJ improperly 19 rejected her subjective complaints of impairment. (JS at 4-7.) 20 In his decision, the ALJ rejected Plaintiff s credibility as follows: 21 After careful consideration of the evidence, the undersigned finds 22 that the claimant s medically determinable impairments could 23 reasonably be expected to cause the alleged symptoms; however, the 24 claimant s statements concerning the intensity, persistence and limited 25 effects of these symptoms are not credible to the extent they are 26 inconsistent with the above residual functional capacity assessment. 27 In terms of the claimant s alleged mental limitations, the record 28 shows multiple diagnosis of alcohol-induced mood disorder. The 3 1 claimant testified that she has been sober since August 17, 2009. Since 2 that date, the record shows that the claimant has received very little 3 physiological or medical treatment. 4 Additionally, a treating physician diagnosed the claimant with 5 malingering disorder. It was noted that the claimant was consciously 6 selecting past material to make her condition appear worse. Given this 7 evidence, the undersigned assigns little weight to the claimant s reports 8 to her physicians. 9 (AR at 18-19 (citations omitted).) 10 An ALJ s assessment of pain severity and claimant credibility is entitled to 11 great weight. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. 12 Heckler, 779 F.2d 528, 531 (9th Cir. 1986). When, as here, an ALJ s disbelief of a 13 claimant s testimony is a critical factor in a decision to deny benefits, the ALJ 14 must make explicit credibility findings. Rashad v. Sullivan, 903 F.2d 1229, 1231 15 (9th Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981); see also 16 Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (an implicit finding that 17 claimant was not credible is insufficient). 18 Under the Cotton test, where the claimant has produced objective medical 19 evidence of an impairment which could reasonably be expected to produce some 20 degree of pain and/or other symptoms, and the record is devoid of any affirmative 21 evidence of malingering, the ALJ may reject the claimant s testimony regarding 22 the severity of the claimant s pain and/or other symptoms only if the ALJ makes 23 specific findings stating clear and convincing reasons for doing so. See Cotton v. 24 Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Smolen v. Chater, 80 F.3d 25 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); 26 Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991). In other words, an ALJ 27 may reject a claimant s testimony only upon (1) finding evidence of malingering, 28 or (2) expressing clear and convincing reasons for doing so. Benton ex. el. 4 1 Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). 2 To determine whether a claimant s testimony regarding the severity of his 3 symptoms is credible, the ALJ may consider, among other things, the following 4 evidence: (1) ordinary techniques of credibility evaluation, such as the claimant s 5 reputation for lying, prior inconsistent statements concerning the symptoms, and 6 other testimony by the claimant that appears less than candid; (2) unexplained or 7 inadequately explained failure to seek treatment or to follow a prescribed course of 8 treatment; (3) the claimant s daily activities; and (4) testimony from physicians 9 and third parties concerning the nature, severity, and effect of the claimant s 10 symptoms. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also 11 Smolen, 80 F.3d at 1284. Social Security Ruling 96-7p further provides that an 12 individual may be less credible for failing to follow prescribed treatment without 13 cause. Soc. Sec. Ruling 96-7p. 14 Here, the ALJ cited to evidence that Plaintiff had been diagnosed with 15 malingering and was found to consciously select[] past material to make herself 16 appear worse. (AR at 19.) The record supports this finding. (Id. at 326, 332.) In 17 light of the evidence of malingering, the ALJ was relieved of his duty to provide 18 clear and convincing reasons for rejecting Plaintiff s credibility.3 Nevertheless, in 19 20 3 The ALJ provided an additional reason for rejecting Plaintiff s credibility: 21 the record contained little evidence of medical treatment since Plaintiff s alleged 22 sobriety date of August 17, 2009. (AR at 18.) This reason, however, is not clear 23 and convincing. Despite evidence that Plaintiff received routine medical care throughout the period at issue, the record is nearly devoid of any treatment notes 24 from Plaintiff s treating physician Seya Eshraghi, M.D., and treating psychologist 25 Thomas Eby, Ph.D. In fact, of the 520 pages contained in the Administrative Record, it seems just twenty-five pages pertain to routine medical treatment of 26 Plaintiff by any provider. (Id. at 337-43, 489, 496-09, 518-20.) On the other 27 hand, the vast majority of the medical records pertain to inpatient surgical or 28 psychiatric treatment, or emergency room visits. The lack of records reflecting (continued...) 5 1 light of other evidence in the record indicating that Plaintiff is not a malingerer 2 (see, e.g., 496, 502, 506) and because this action must be remanded as discussed 3 below (see Discussion supra Part III.C), upon remand the ALJ should reconsider 4 Plaintiff s credibility and set forth legally sufficient reasons for rejecting her 5 credibility, if the ALJ again determines rejection is warranted.4 6 C. The ALJ Failed to Properly Consider the Opinions of the Treating 7 Physician and Psychologist. 8 Plaintiff contends that the ALJ s erroneous RFC assessment was the result 9 of the improper rejection of the opinions of Plaintiff s treating physician and 10 psychologist. (JS at 7-12.) 11 The record contains two documents authored by Plaintiff s treating 12 psychologist, Thomas Eby, Ph.D. First, in an April 15, 2009, assessment, Dr. Eby 13 diagnosed Plaintiff with Depression NOS (R/O Substance Induced Mood 14 Disorder; R/O Major Depression, recurrent, moderate), polysubstance abuse, 15 relational problem NOS, and posttraumatic stress disorder. (AR at 499.) Dr. Eby 16 reported Plaintiff s Global Assessment of Functioning was 45/50, and her 17 prognosis was fair. (Id. at 499-500.) 18 In a June 9, 2009, Mental Impairment Questionnaire, Dr. Eby reported a 19 diagnosis of Major Depression, with symptoms of sleep disturbance, mood 20 21 3 (...continued) 22 medical care following Plaintiff s alleged sobriety date is not surprising in light of 23 the lack of evidence of her routine medical care as a whole. Significantly, of the few pages pertaining to routine medical treatment, one page reflects continued 24 psychiatric care and a regimen of prescription medication after Plaintiff s alleged 25 sobriety date. (Id. at 520.) Moreover, the fact that Plaintiff did not require 26 inpatient or emergency care in the six months between her alleged sobriety date and the hearing before the ALJ is little proof that she did not continue to suffer 27 from the symptoms alleged. 28 4 The Court expresses no view on the merits. 6 1 disturbance, emotional lability, anhedonia or pervasive loss of interests, feelings 2 of guilt or worthlessness, difficulty thinking or concentrating, suicidal ideation or 3 attempts, perceptual disturbances, social withdrawal or isolation, deceased energy, 4 intrusive recollections of a traumatic experience, and persistent irrational fears. 5 (Id. at 505.) Dr. Eby opined that Plaintiff was extremely limited in her ability to 6 understand and remember detailed instructions, carry out detailed instructions, set 7 realistic goals or make plans independently of others, deal with stress of 8 semiskilled and skilled work, and interact appropriately with the general public. 9 (Id. at 508.) Dr. Eby found that Plaintiff suffers from marked limitations in her 10 ability to maintain attention for two-hour segments, maintain regular attendance 11 and be punctual within customary tolerances, sustain an ordinary routine without 12 special supervision, perform at a consistent pace without an unreasonable number 13 of rest periods, ask simple questions or request assistance, accept instructions and 14 respond appropriately to criticism from supervisors, get along with co-workers or 15 peers without unduly distracting them or exhibiting behavioral extremes, respond 16 appropriately to changes in a routine work setting, deal with normal work stress, 17 be aware of normal hazards and take appropriate precautions, maintain socially 18 appropriate behavior, travel in unfamiliar place, and use public transportation. (Id. 19 at 507-08.) Dr. Eby further concluded that Plaintiff was moderately limited in her 20 ability to remember work-like procedures, understand and remember very short 21 and simple instructions, carry out very short and simple instructions, work in 22 coordination with or proximity to others without being unduly distracted, make 23 simple work-related decisions, and adhere to basic standards of neatness and 24 cleanliness. (Id.) Dr. Eby also reported that Plaintiff was markedly limited in her 25 activities of daily living and in maintaining social functioning. (Id. at 509.) He 26 opined that Plaintiff would experience frequent deficiencies of concentration, 27 persistence, or pace, and would have repeated episodes of deterioration or 28 decompensation in work or work-like settings. (Id.) 7 1 The record contains just a single document authored by Plaintiff s treating 2 physician, Seya Eshraghi, M.D. In that April 21, 2009, Physical Residual 3 Functional Capacity Questionnaire, Dr. Eshraghi reported a diagnosis of COPD, 4 major depressive disorder, bipolar mood disorder, history of pericarditis, and left 5 hand carpal tunnel syndrome. (Id. at 501.) Dr. Eshraghi described Plaintiff s 6 symptoms, complaints of pain, and the supporting clinical findings. (Id.) Dr. 7 Eshraghi reported that Plaintiff s symptoms constantly interfere with attention and 8 concentration needed to perform even simple work tasks, she would be incapable 9 of even low stress jobs, she can only walk one block without rest, she can sit for 10 thirty minutes at a time, she can stand for ten minutes at a time, she would require 11 unscheduled twenty-minute breaks from work every hour, and could rarely lift less 12 than ten pounds. (Id. at 502-03.) The doctor further reported that Plaintiff could 13 occasionally hold her head in a static position; could rarely twist, stoop, and climb 14 stairs; and could never crouch and climb ladders. (Id. at 504.) According to Dr. 15 Eshraghi, Plaintiff would suffer from good days and bad days, and would likely be 16 absent from work more than four days a month as a result of impairments or 17 treatment. (Id.) 18 In his decision, the ALJ offered the following discussion concerning Drs. 19 Eby and Eshraghi: 20 As for the opinion evidence, the undersigned gives little weight 21 to the opinions at Exhibit 32F and Exhibit 33F. While these reports 22 assign quite severe limitations on the claimant, these opinions are not 23 supported by the other evidence in the record and the treatment notes, 24 if any, from these professionals do not support their opinions. 25 (Id. at 19 (citations omitted).) 26 It is well established in the Ninth Circuit that a treating physician s opinion 27 is entitled to special weight, because a treating physician is employed to cure and 28 has a greater opportunity to know and observe the patient as an individual. 8 1 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). The treating 2 physician s opinion is not, however, necessarily conclusive as to either a physical 3 condition or the ultimate issue of disability. Magallanes v. Bowen, 881 F.2d 747, 4 751 (9th Cir. 1989). The weight given a treating physician s opinion depends on 5 whether it is supported by sufficient medical data and is consistent with other 6 evidence in the record. 20 C.F.R. §§ 404.1527(d), 416.927(d). Where the treating 7 physician s opinion is uncontroverted by another doctor, it may be rejected only 8 for clear and convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 9 1995); Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If the treating 10 physician s opinion is controverted, as will be assumed to be the case here, it may 11 be rejected only if the ALJ makes findings setting forth specific and legitimate 12 reasons that are based on the substantial evidence of record. Thomas v. Barnhart, 13 278 F.3d 947, 957 (9th Cir. 2002); Magallanes, 881 F.2d at 751; Winans v. 14 Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The ALJ can meet this burden by 15 setting out a detailed and thorough summary of the facts and conflicting clinical 16 evidence, stating his interpretation thereof, and making findings. Thomas, 278 17 F.3d at 957 (citation omitted) (quotation marks omitted). 18 First, the ALJ concluded that the opinions cited in the questionnaires 19 authored by Drs. Eby and Eshraghi were not supported by the treatment notes of 20 the doctors. (AR at 19.) The ALJ need not accept the opinion of any physician, 21 including a treating physician, if that opinion is brief, conclusory, and 22 inadequately supported by clinical findings. Thomas, 278 F.3d at 957; see also 23 Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). Here, the 24 ALJ is correct that the questionnaires are not supported by the treatment notes 25 included in the record. However, this is because the record is completely devoid 26 of treatment notes from Drs. Eby and Eshraghi, save for a single assessment of 27 Plaintiff by Dr. Eby. Despite evidence that Plaintiff was treated by these providers 28 for at least a period of months before the hearing before the ALJ, treatment records 9 1 from these sources are almost nonexistent within the Administrative Record. It is 2 hard to imagine that these medical professionals treated Plaintiff for an extended 3 period without producing a single progress report or treatment note. The Court is 4 unclear how the record came to be so unrepresentative of Plaintiff s treatment 5 history. Neither the ALJ nor Plaintiff s counsel have offered an explanation for 6 the lack of treatment records. (See AR at 30 (indicating that the record contained 7 everything ).) However, the ALJ has a duty to develop the record and obtain the 8 medical evidence necessary to properly evaluate the claimant s application. 9 Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (ALJ s duty to develop 10 the record is triggered when the record is inadequate to allow for proper 11 evaluation of the evidence ). This duty applies whether or not the claimant is 12 represented, and is heightened where the claimant may be mentally ill and thus 13 unable to protect [his or her] own interests. Tonapetyan v. Halter, 242 F.3d 1144, 14 1150 (9th Cir. 2001) (citing Higbee v. Sullivan, 975 F.2d 558, 562 (9th Cir. 15 1992)); see also DeLorme, 924 F.2d at 849 ( In cases of mental impairments, this 16 duty [to develop the record] is especially important. ). It is unjust to fail to fully 17 develop the record regarding these treatment notes and then rely on the lack of 18 supporting treatment notes to reject the opinions of the treating sources. 19 Accordingly, this reason for rejecting the opinions of the treating sources was not 20 legitimate. 21 The ALJ also rejected the treating opinions because they were not supported 22 by other evidence of record. (Id. at 19.) To simply say a medical opinion is not 23 supported by the medical evidence is a conclusory statement and not an adequate 24 reason to reject the opinion. Schulz v. Astrue, 849 F. Supp. 2d 1049 (W.D. 25 Wash. 2011) (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)). 26 Moreover, the ALJ s conclusion is not supported by the record. The record is 27 replete with evidence of Plaintiff s numerous psychiatric hospitalizations, routine 28 psychiatric care and medication management, and lung surgery and resulting 10 1 impairments. (AR at 207-93, 490-95, 510-20.) In addition, as discussed more 2 fully below, the consultative examiner found Plaintiff to be at least partially 3 limited due to mood disorder, alcohol dependence, and potential major depression 4 or bipolar disorder. (Id. at 405-06.) While most of these records do not attempt to 5 classify the level of Plaintiff s impairments in terms of her ability to perform work 6 activity, as do the reports from Drs. Eby and Eshraghi, they supported the 7 conclusions of the treating sources by confirming Plaintiff s extended medical 8 history and repeated diagnosis of physical and mental impairments.5 9 The ALJ s failure to provide legally sufficient reasons for discounting the 10 opinions of Drs. Eby and Eshraghi warrants remand. See Embrey, 849 F.2d at 422 11 (in disregarding the findings of a treating physician, the ALJ must provide 12 detailed, reasoned and legitimate rationales and must relate any objective 13 factors he identifies to the specific medical opinions and findings he rejects ); 14 Agnew-Currie v. Astrue, --- F. Supp. 2d ---, 2012 WL 2339584 (D. Ariz. June 19, 15 2012) (finding the application of the Ninth Circuit s credit-as-true rule lies within 16 the discretion of the court and remand for further proceedings can be appropriate 17 18 19 20 21 22 23 24 25 26 27 28 5 The ALJ might have dismissed the evidence of Plaintiff s mental illness on the basis of a finding that her limitations were caused by a long history of alcohol and substance abuse. (See AR at 18 (finding that Plaintiff suffered from an alcohol-induced mood disorder and rejecting her credibility on the basis of Plaintiff s limited medical treatment since her alleged sobriety date).) While the ALJ might have reasonably questioned the extent to which Plaintiff s polysubstance abuse was a cause or an effect of Plaintiff s mental illness, this consideration does not take away from the fact that the record contains extensive evidence of Plaintiff s physical and mental impairments that supports the opinions of Drs. Eby and Eshraghi. Whether Plaintiff s substance abuse was a contributing factor to her alleged disability must be considered in a separate analysis. Significantly, however, the agency-contracted consultative examiner concluded that Plaintiff suffers from both a Mood Disorder and Alcoholism and that she would still be subject to recurrent depressions whether or not she were drinking. (Id. at 405 (emphasis added).) 11 1 after an ALJ has failed to give adequate reasons for rejecting a treating source 2 opinion). Accordingly, remand is required for the ALJ to obtain additional 3 evidence from Plaintiff s treating sources and to set forth legally sufficient reasons 4 for rejecting their opinions, if the ALJ again determines rejection is warranted.6 5 D. The ALJ s Consideration of the Opinions of the Consultative Examiner. 6 Plaintiff further complains that the RFC assessment is in error because the 7 ALJ failed to completely consider the opinions of the consultative examiner. (JS 8 at 12-13.) 9 On September 9, 2008, consultative psychologist, Isadore Wendel, Ph.D., 10 conducted a Comprehensive Mental Examination of Plaintiff. Dr. Wendel 11 diagnosed Plaintiff with mood disorder, alcohol dependence, and possible major 12 depression or bipolar disorder. (AR at 405.) Dr. Wendel concluded that Plaintiff 13 would still be subjected to recurrent depressions whether or not she were 14 drinking. (Id.) Dr. Wendel reported that Plaintiff has a desire to succeed, but 15 that she is unlikely to make much sustained progress. (Id. at 406.) He further 16 concluded that Plaintiff has no impairment in social functioning, a mild 17 impairment in the activities of daily living on a psychological basis, and a 18 moderate impairment of concentration, persistence, and pace. (Id. at 406.) Dr. 19 Wendel cautioned that Plaintiff would have repeated episodes of emotional 20 deterioration in work-like situations due to pain. (Id. at 406.) 21 The ALJ discussed Dr. Wendel s report, as follows: 22 The claimant underwent a psychological consultative examination 23 on September 9, 2008. The consultative examiner noted that the 24 claimant had a major mood disorder and alcoholism. She [sic] opined 25 that the claimant would likely benefit from a review of her psychotropic 26 medications and from psychotherapy, as well as from structured alcohol 27 28 6 The Court expresses no view on the merits. 12 1 rehabilitation. 2 .... 3 With regard to concentration, persistence or pace, the claimant has 4 moderate difficulties. The consultative examiner opined that the 5 claimant has moderate difficulties with respect to concentration, 6 persistence or pace. 7 (AR at 16-17 (citations omitted).) 8 As is the case with the opinion of a treating physician, the Commissioner 9 must provide clear and convincing reasons for rejecting the uncontradicted 10 opinion of an examining physician. Lester, 81 F.3d at 830. 11 It is not clear from the ALJ s opinion to what extent he might have credited 12 or rejected portions of Dr. Wendel s assessment. While it is possible that the 13 consultative examiner s report might be reconciled with the ALJ s opinion, the 14 ALJ did not expressly consider Dr. Wendel s opinion that Plaintiff would suffer 15 repeated episodes of emotional deterioration, that she is unlikely to make much 16 sustained progress, and that she would still be subjected to recurrent depressions 17 whether or not she were drinking. Because this action must be remanded for 18 further consideration of the treating source opinions, upon remand the ALJ should 19 also reconsider the opinions of the consultative examiner and provide reasoning as 20 to whether the consultative examiner s opinions are credited or rejected. 21 E. The ALJ s Consideration of Plaintiff s Ability to Perform Alternative 22 Work. 23 Plaintiff argues that the ALJ erred in concluding that Plaintiff can perform 24 alternative work as a ticket taker or small products assembler. (JS at 31-39.) 25 Plaintiff argues that the ALJ s error was premised on an incomplete hypothetical 26 to the VE because the hypothetical lacked Plaintiff s limitation to simple routine 27 tasks. According to Plaintiff s argument, the job of ticket taker requires more than 28 simple routine tasks. (Id. at 34-35.) Plaintiff further argues that the evidence 13 1 shows she lacks the mental temperament to perform work as a ticket taker. (Id. at 2 36.) Finally, Plaintiff argues that the job of small products assembler is not 3 compatible with her limitations in handling and fingering, and in concentration, 4 persistence, and pace. (Id. at 37-39.) 5 The ALJ posed the following hypothetical to the VE: 6 Let s assume an individual forty-eight years of age, eleven grades 7 of education, and the work experience as you have just described, and 8 for each of these hypotheticals, A and B let s take a person that is 9 limited to, at most, simple routine tasks, and for each hypothetical 10 minimal pulmonary irritants. Let s add this person in hypo A being able 11 to lift 10 pounds frequently to 20 pounds occasionally, and stand six in 12 eight, sit six in eight, and occasionally climb, bend, or stoop. Any jobs 13 such a functionally restricted person could perform? 14 (AR at 41.) The VE testified that such an individual could perform work as a 15 ticket taker and a small products assembler. (Id.) 16 The ALJ then posed a second hypothetical to the VE: 17 Lets have this person able to lift 5 pounds frequently to 10 18 occasionally, standing two in eight hours, and sitting six in eight hours, 19 and occasional climb, bend, or stoop. Any jobs such a functionally 20 restricted person could perform? 21 (Id. at 41-42.) The VE testified that such an individual could still perform the jobs 22 of ticket taker and small products assembler, but at reduced numbers. (Id. at 42.) 23 The ALJ ultimately adopted the RFC as reflected in the first hypothetical. 24 (Id. at 18.) Based on this finding and the VE s testimony, the ALJ found that 25 Plaintiff was capable of performing work as a ticket taker and small products 26 assembler. (Id. at 20.) 27 First, Plaintiff s argument that the ALJ failed to include a limitation to 28 simple routine work in the hypothetical is erroneous. The ALJ expressly included 14 1 such a limitation in his hypothetical question to the VE. (Id. at 41.) Furthermore, 2 the ALJ s inclusion of a limitation to simple routine tasks adequately encompassed 3 Plaintiff s limitations in concentration, persistence, and pace. Stubbs-Danielson v. 4 Astrue, 539 F.3d 1169, 1173-75 (9th Cir. 2008) (a limitation to simple and routine 5 work accurately encompasses a claimant s limitations in his ability to maintain 6 concentration, persistence, and pace). 7 However, whether the ALJ was remiss in failing to include additional 8 limitations in the hypothetical is dependent upon the ALJ s conclusions on remand 9 with respect to the issues detailed in Sections III.B-D, above. For this reason, 10 upon remand the ALJ should request additional testimony from a VE and pose to 11 the expert a hypothetical question including all of the physical and mental 12 limitations supported by the evidence. 13 IV. 14 ORDER 15 Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS HEREBY 16 ORDERED THAT Judgment be entered reversing the decision of the 17 Commissioner of Social Security and remanding this matter for further 18 administrative proceedings consistent with this Memorandum Opinion. 19 20 Dated: October 10, 2012 21 HONORABLE OSWALD PARADA United States Magistrate Judge 22 23 24 25 26 27 28 15
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
