Jimmy Malone v. Michael J. Astrue, No. 5:2007cv01325 - Document 18 (C.D. Cal. 2008)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered REVERSING and REMANDING the decision of the Commissioner for further administrative hearings consistent with this decision. (READ ATTACHED ORDER) (esa)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 JIMMY MALONE, ) ) ) ) ) ) ) ) ) ) ) ) 13 Plaintiff, 14 v. 15 16 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 17 Defendant. 18 NO. EDCV 07-1325-SS MEMORANDUM DECISION AND ORDER 19 20 Plaintiff Jimmy Malone ( Plaintiff ) brings this action seeking to 21 overturn the decision of the Commissioner of the Social Security 22 Administration 23 Agency ) denying his application for Disability Insurance Benefits and 24 Supplemental Security Income Benefits. 25 to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United 26 States Magistrate Judge. 27 parties Joint Stipulation ( Jt. Stip. ) filed on July 31, 2008. 28 (hereinafter Defendant, Commissioner, or the The parties consented, pursuant This matter is before the Court on the For 1 the reasons stated below, the decision of the Commissioner is REVERSED 2 and REMANDED for further proceedings. 3 4 PROCEDURAL HISTORY 5 6 On April 2, 2002, Plaintiff filed an application for Supplemental 7 Security Income Benefits ( SSI ). (Administrative Record ( AR )54). 8 He alleged that his disability began on July 1, 1998. (Id.). 9 indicated that he was unable to work due to back injuries, knee injuries 10 liver damage and hepatitis C. (AR 63). 11 impairments related to stress and an injured left wrist. Plaintiff Additionally, Plaintiff alleged (AR 30, 78). 12 13 The Agency denied Plaintiff s application for SSI benefits 14 initially and upon reconsideration. 15 requested a hearing by an Administrative Law Judge ( ALJ ), which was 16 held on October 30, 2003. (AR 40). A hearing was held before ALJ James 17 S. Carletti. 18 decision denying benefits. 19 of the ALJ s decision before the Appeals Council. (AR 3-5). (AR 182-201). (AR 30-33, 35-39). Plaintiff then On December 23, 2003, the ALJ issued a (AR 10-22). Plaintiff then sought review 20 21 On March 8, 2003, the Appeals Council denied Plaintiff s request 22 for review and the ALJ s decision became the final decision of the 23 Commissioner. 24 this Court on April 16, 2004. 25 and remanded the ALJ decision for failing to further develop the record 26 by obtaining a missing MRI of the Plaintiff s lumbar spine and to 27 further consider the opinion of Dr. Blaylock, Plaintiff s treating (AR 3-5). Plaintiff then commenced a civil action in On March 25, 2005, this Court reversed 28 2 1 physician. Accordingly, the Appeals Council ordered a new hearing, 2 which was held on January 24, 2007. (AR 273-74). 3 4 The new hearing was held before ALJ Mason Harrell. (AR 434-469). 5 Plaintiff was represented by counsel and testified on his own behalf. 6 Additionally, Sami Nafoosi, M.D., a medical expert, and Sandra Fioretti, 7 a vocational expert, testified at the hearing. 8 9 On March 6, 2007, the ALJ issued an unfavorable decision, finding 10 Plaintiff capable of performing his past relevant work. (AR 218). 11 Plaintiff sought review of this decision before the Appeals Council. 12 (AR 207). 13 Plaintiff commenced the instant action on October 16, 2007.1 The Appeals Council denied the request for review and 14 15 FACTUAL BACKGROUND 16 17 Plaintiff was born on March 23, 1951 and was fifty-five years old 18 at the time of the hearing. (AR 214). 19 (AR 185). 20 and general laborer before the alleged onset of his disability. 21 Plaintiff alleges that his disability began on July 1, 1998. (AR 54). 22 He had previously been approved for SSI benefits in August 2000, which 23 he received until October 4, 2001, after his benefits were terminated He has a tenth grade education. Plaintiff had previous work experience as a carpet cleaner (Id.). 24 25 26 1 27 28 In the original complaint Plaintiff made claim for both Supplemental Security Income and Disability Benefits, as opposed to the present instance where the Plaintiff is solely appealing the denial of Supplemental Security Income. (See Jt. Stip at 2). 3 2 1 twice when he was sent to prison on an outstanding warrant. 2 suffers from hepatitis C and lumbar spondylosis. 3 that he is disabled as a result of hepatitis C, emotional strain and 4 pain in his back, knee and left wrist. 5 not engaged in substantial gainful activity since applying for SSI 6 benefits in March 2002. (AR 193). (AR 30, 63, 78). Plaintiff He asserts Plaintiff has (AR 11). 7 8 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 9 10 To qualify for disability benefits, a claimant must demonstrate 11 a medically determinable physical or mental impairment that prevents him 12 from engaging in substantial gainful activity3 and that is expected to 13 result in death or to last for a continuous period of at least twelve 14 months. 15 42 U.S.C. § 423(d)(1)(A)). 16 incapable of performing the work he previously performed and incapable 17 of performing any other substantial gainful employment that exists in 18 the national economy. 19 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 20 21 22 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are: 23 24 25 26 27 28 2 A discrepancy exists between the ALJ judges determinations of Plaintiff s incarceration dates, however, this does not impact this Court s decision. 3 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. § 416.910. 4 1 (1) Is the claimant presently engaged in substantial gainful 2 activity? 3 If not, proceed to step two. 4 (2) Is the If so, the claimant is found not disabled. claimant s impairment severe? 5 claimant is found not disabled. 6 If not, the three. 7 (3) If so, proceed to step Does the claimant s impairment meet or equal one of a 8 list of specific impairments described in 20 C.F.R. Part 9 404, Subpart P, Appendix 1? found disabled. 10 (4) 11 If so, the claimant is If not, proceed to step four. Is the claimant capable of performing his past work? 12 so, the claimant is found not disabled. 13 If to step five. (5) 14 If not, proceed Is the claimant able to do any other work? 15 claimant is found disabled. 16 If not, the If so, the claimant is found not disabled. 17 18 19 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 20 949, 953-54 (9th Cir. 2001) (citing Tackett); 20 C.F.R. § 416.920(b)- 21 416.920(f)(1). 22 The claimant has the burden of proof at steps one through four, and 23 24 the Commissioner has the burden of proof at step five. 25 F.3d 26 affirmative duty to assist the claimant in developing the record at 27 every step of the inquiry. 28 meets his burden of establishing an inability to perform past work, the at 953-54 (citing Tackett). Id. at 954. 5 Additionally, Bustamante, 262 the ALJ has an If, at step four, the claimant 1 Commissioner must show that the claimant can perform some other work 2 that exists in significant numbers in the national economy, taking 3 into account the claimant s residual functional capacity ( RFC ),4 age, 4 education, and work experience. 5 Reddick, 157 F.3d at 721; 20 C.F.R. § 416.920(f)(1). 6 may do so by the testimony of a vocational expert or by reference to the 7 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart 8 P, Appendix 2 (commonly known as the Grids ). 9 F.3d 1157, 1162 (9th Cir. 2001) (citing Tackett). Tackett, 180 F.3d at 1098, 1100; The Commissioner Osenbrock v. Apfel, 240 When a claimant has 10 both exertional (strength-related) and nonexertional limitations, the 11 Grids are inapplicable and the ALJ must take the testimony of a 12 vocational expert. 13 (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)). Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) 14 15 THE ALJ S DECISION 16 17 The ALJ employed the five-step sequential evaluation process 18 discussed above. 19 had not engaged in substantial gainful activity since the alleged onset 20 date of his disability. (AR 213). Second, the ALJ found that Plaintiff 21 suffers from a disorder of the lumbar spine, chronic obstructive 22 pulmonary disease, and hepatitis C. (Id.). At the first step, the ALJ indicated that Plaintiff 23 24 In making this determination, the ALJ gave little weight to Dr. 25 Blaylock s opinions and more weight to the opinions of Dr. Nafoosi 26 27 28 4 Residual functional capacity is the most [one] can still do despite [his] limitations and represents assessments based on all relevant evidence. 20 C.F.R. § 416.945(a). 6 1 because Plaintiff s treating physician s opinions were found to lack 2 support in medical evidence and were not consistent with the totality 3 of the evidence. (AR 218). 4 5 At the third step, the ALJ found that Plaintiff s impairments did 6 not meet or equal any of the impairments appearing in the Listing of 7 Impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. 8 (AR 214). 9 medical evidence and the claimant s own description of his activities 10 of daily living in determining Plaintiff s residual functional capacity. 11 (Id.). 12 vocational expert, and found that Plaintiff could perform a limited 13 range of light exertion. (Id.). In the fourth step of his analysis, the ALJ weighed the The ALJ incorporated the limitations prescribed by the 14 15 Having addressed Plaintiff s functional limitations, the ALJ found 16 that Plaintiff is capable of performing his past relevant work. (AR 17 218). 18 disability any time through the date of the decision. Thus, the ALJ determined that Plaintiff has not been under a 19 20 STANDARD OF REVIEW 21 22 Under 42 U.S.C. § 405(g), a district court may review the 23 Commissioner s decision to deny benefits. 24 Commissioner s decision when the ALJ s findings are based on legal error 25 or are not supported by substantial evidence in the record as a whole. 26 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing 27 Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th 28 Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 7 The court may set aside the 1 Substantial evidence is more than a scintilla, but less than a 2 preponderance. 3 112 F.3d 1064, 1066 (9th Cir. 1997)). 4 a reasonable person might accept as adequate to support a conclusion. 5 Id. (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at 1279). 6 determine whether substantial evidence supports a finding, the court 7 must consider the record as a whole, weighing both evidence that 8 supports 9 conclusion. and Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, evidence that It is relevant evidence which detracts from the To [Commissioner s] Aukland, 257 F.3d at 1035 (citing Penny v. Sullivan, 2 10 F.3d 953, 956 (9th Cir. 1993)). 11 either affirming or reversing that conclusion, the court may not 12 substitute its judgment for that of the Commissioner. Reddick, 157 F.3d 13 at 720-21 (citing Flaten v. Sec y, 44 F.3d 1453, 1457 (9th Cir. 1995)). If the evidence can reasonably support 14 15 DISCUSSION 16 17 Plaintiff contends that the ALJ erred by: (1) failing to properly 18 consider his treating physician s opinion, (2) improperly concluding 19 that the Plaintiff does not require the use of a cane, and (3) failing 20 to pose a complete hypothetical question to the vocational expert. 21 Court agrees. 22 treating records. The ALJ must include the limitations supported by the 23 medical evidence when the ALJ evaluates Plaintiff s residual functional 24 capacity. 25 accurately describes Plaintiff s limitations to a vocational expert. 26 \\ 27 \\ 28 \\ The Upon remand, the ALJ must consider all of Plaintiff s Finally, the ALJ must 8 pose a hypothetical that more 1 A. The ALJ Failed To Properly 2 Relevant 3 Failed 4 Consider All The Treating Physician s Opinions Medical to Evidence Provide Give and, Proper In Particular, Weight To The 5 6 Plaintiff contends that the ALJ did not give the proper weight to 7 his treating physician s opinion. (Jt. Stip. at 3). 8 acknowledges Plaintiff suffers from lumbar spondylosis, the ALJ s 9 opinion fails to give sufficient weight to the treating records that Although the ALJ 10 document Plaintiff s severe and constant back pain. 11 reflect constant and on-going serious treatment for Plaintiff s back 12 pain. 13 pain (AR 120, 131) constant pain (AR 115), back pain radiates to 14 back of right leg (AR 330) and not well controlled. (AR 338). 15 pain level, on a ten point scale was described as a 10/10. 16 338, 340). His treating doctors repeatedly prescribed him Tylenol 4 and 17 Vicodin, for many years. 18 to his doctor that he experienced difficulty walking due to back pain. 19 (AR 177, 334). These records At times, the records describe his problems as chronic back (AR 178, 330, 334, 343). His (AR 121, Plaintiff reported 20 21 The degree of obviously limiting pain described by these treating 22 doctors 23 examinations. 24 doctor found Plaintiff to be limited to exertion that would be less than 25 sedentary exertion due to his back impairment. 26 agreeing that Plaintiff has a disorder of the lumbar spine, Dr. Nafoosi 27 nevertheless testified that Plaintiff s consultative examinations were 28 normal. (AR 214, 447). Additionally, there is conflicting evidence is inconsistent with the findings of the consultative For example, in October 2003, Plaintiff s treating 9 (AR 167-169). While 1 regarding Plaintiff s use of a cane to ambulate. 2 references in the record to Plaintiff s use of a cane to ambulate. 3 353 ( Pt. uses cane to ambulate ), 404, 442). 4 indicates that it would be reasonable for a treating doctor to prescribe 5 a cane. However, Dr. Nafoosi also testified that the objective evidence 6 does not support the use of a cane. (AR 449). 7 statement puzzling, as it is unclear why it would be both reasonable for 8 a doctor to prescribe a cane and yet objective evidence would not 9 support use of a cane. There are several (AR Dr. Nafoosi s testimony The Court finds this More importantly, the medical evidence appears 10 to indicate that Plaintiff often used a cane to ambulate. Thus, the ALJ 11 should have included this limitation in his evaluation of Plaintiff. 12 13 Where the treating doctor s opinion is not contradicted by another 14 doctor, it may be rejected only for clear and convincing reasons. 15 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended). 16 if the treating physician s opinion is contradicted by another doctor, 17 the 18 legitimate reasons, supported by substantial evidence in the record. 19 Id. 20 because the treating physician is hired to cure and has a better 21 opportunity 22 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). ALJ may not reject this opinion without providing Even specific, The opinions of treating physicians are entitled to special weight to know and observe the claimant as an individual. 23 24 The Court finds that the ALJ failed to provide specific, legitimate 25 reasons for disregarding the treating doctors opinions here. Moreover, 26 to the extent there was a conflict between the treating doctors 27 evaluations of Plaintiff and the consultative doctor s evaluation, the 28 conflict was not resolved by the ALJ. 10 Plaintiff received serious, long 1 term and continuous treatment for his back pain, as demonstrated by the 2 repeated prescription of Tylenol 4 and Vicodin. Neither the ALJ nor the 3 consultative doctor addressed the impact these medications would have 4 on Plaintiff s ability to work. 5 conflict over Plaintiff s use of a cane to ambulate. As the ALJ did not 6 give proper weight to the treating records and resolve the conflicts 7 between those records and the consultative doctor s evaluations, the 8 case must be remanded. 9 all the evidence of record. Nor did the ALJ give resolve the Upon remand, the ALJ is directed to consider 10 11 B. The ALJ s Hypothetical Was Incomplete 12 13 An ALJ must propose a hypothetical that is based on medical 14 assumptions 15 reflects each of the claimant s limitations. 16 F.3d 1157, 1164-65 (9th Cir. 2001). 17 to the vocational expert did not accurately describe Plaintiff s chronic 18 and 19 medications such as Vicodin (there are several reports of drowsiness in 20 the records) or Plaintiff s need to use a cane to ambulate. (AR 461- 21 462). 22 include all of Plaintiff s limitations that are supported by the medical 23 evidence. 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ severe supported by substantial evidence in the record that back pain, his Osenbrock v. Apfel, 248 The hypothetical posed by the ALJ advanced age, side effects from his Upon remand, any hypothetical posed to a vocational expert must 11 1 CONCLUSION 2 3 Consistent with the foregoing, IT IS ORDERED that Judgment be 4 entered REVERSING and REMANDING the decision of the Commissioner for 5 further administrative hearings consistent with this decision. 6 FURTHER ORDERED that the Clerk of the Court serve copies of this Order 7 and the Judgment on counsel for both parties. 8 9 DATED: October 17, 2008. 10 11 12 13 ______________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 IT IS

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