David B Labato Sr v. Michael J Astrue, No. 5:2009cv01710 - Document 23 (C.D. Cal. 2010)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal: IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. (dhl)

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David B Labato Sr v. Michael J Astrue Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DAVID B. LABATO, SR., 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 09-01710 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 David B. Labato, Sr. ( Plaintiff ) brings this action seeking to 22 overturn the decision of the Commissioner of the Social Security 23 Administration (hereinafter the Commissioner or the Agency ) denying 24 his application for Disability Insurance Benefits ( DIB ). The parties 25 consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the 26 undersigned United States Magistrate Judge. 27 below, the decision of the Agency is REVERSED and REMANDED for further 28 proceedings. For the reasons stated Dockets.Justia.com 1 II. 2 PROCEDURAL HISTORY 3 4 On October 27, 2006, Plaintiff filed an application for DIB under 5 Title II and Part A of Title XVIII of the Social Security Act. 6 (Administrative Record ( AR ) 86). Plaintiff alleged a disability onset 7 date of September 1, 2006. 8 application on December 7, 2006, and upheld the denial on April 3, 2007. 9 (AR 40, 41). (AR 86). The Agency initially denied his Plaintiff then requested a hearing, which was held before 10 Administrative Law Judge ( ALJ ) Barry S. Brown on August 28, 2008. (AR 11 24-38). 12 Subsequently, the ALJ submitted interrogatories to a Medical Expert 13 ( ME ), Dr. Alanson A. Mason, and a Vocational Expert ( VE ), Alan 14 Boroskin. Plaintiff appeared without counsel and testified. (AR 26-38). (AR 136-146). 15 16 In a report dated November 11, 2008, the ME concluded that 17 Plaintiff suffered from bilateral osteoarthritis of the knees, a torn 18 lateral meniscus in the right knee, a torn posterior cruciate ligament 19 in the right knee, a status post partial medial mensicectomy in both 20 knees, morbid obesity, and status post anterior cruciate ligament 21 reconstruction of the right knee. 22 Plaintiff appear[ed] capable of narrow range light work, including 23 standing and walking for less than 6 hours and work that was restricted 24 to a seated position with no limitations on lifting ability. (AR 143). 25 26 \\ 27 \\ 28 \\ 2 He also concluded that (AR 146). 1 In a report dated January 14, 2009, the VE concluded that Plaintiff 2 had a sedentary Residual Functional Capacity ( RFC )1 based on the ME s 3 conclusions. 4 to work as a document preparer, an order clerk, and an information 5 clerk. (AR 140). The VE reported that Plaintiff had the ability (AR 140). 6 7 On April 17, 2009, the ALJ issued a decision denying benefits. (AR 8 15). 9 Council. 10 Plaintiff sought review of this decision before the Appeals On July 13, 2009, the Appeals Council denied review. (AR 1). Plaintiff filed the instant action on March 5, 2010. 11 12 III. 13 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 14 15 To qualify for disability benefits, a claimant must demonstrate a 16 medically determinable physical or mental impairment that prevents him 17 from engaging in substantial gainful activity2 and that is expected to 18 result in death or to last for a continuous period of at least twelve 19 months. 20 42 U.S.C. § 423(d)(1)(A)). 21 incapable of performing the work he previously performed and incapable 22 of performing any other substantial gainful employment that exists in Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant 23 24 1 Residual functional capacity is the most [one] can still do 25 despite [his] limitations and represents an assessment based on all 26 the relevant evidence. 20 C.F.R. § 416.945(a). 2 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay 28 or profit. 20 C.F.R. § 416.910. 27 3 1 the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 2 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 3 4 5 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: 6 7 (1) Is the claimant presently engaged in substantial gainful 8 activity? 9 If not, proceed to step two. 10 (2) Is the If so, the claimant is found not disabled. claimant s impairment 11 claimant is found not disabled. 12 severe? If not, the three. 13 (3) Does the claimant s If so, proceed to step impairment meet or equal the 14 requirements of any impairment listed at 20 C.F.R. Part 15 404, Subpart P, Appendix 1? 16 found disabled. 17 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing his past work? 18 so, the claimant is found not disabled. 19 If to step five. 20 (5) If not, proceed Is the claimant able to do any other work? 21 claimant is found disabled. 22 If not, the If so, the claimant is found not disabled. 23 24 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 25 949, 953-54 (9th Cir. 2001); 20 C.F.R. § 416.920(b)-(g)(1). 26 27 28 The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. 4 Bustamante, 262 1 F.3d at 953-54. If, at step four, the claimant meets his burden of 2 establishing an inability to perform the past work, the Commissioner 3 must show that the claimant can perform some other work that exists in 4 significant numbers in the national economy, taking into account the 5 claimant s RFC, age, education and work experience. 6 at 1100; 20 C.F.R. § 416.920(g)(1). 7 testimony of a VE or by reference to the Medical-Vocational Guidelines 8 appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known 9 as the Grids ). Tackett, 180 F.3d The Commissioner may do so by the Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 10 2001). When a claimant has both exertional (strength-related) and 11 nonexertional limitations, the Grids are inapplicable and the ALJ must 12 take the testimony of a VE. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 13 2000). 14 15 IV. 16 THE ALJ S DECISION 17 18 The ALJ employed the five-step sequential evaluation process and 19 concluded that Plaintiff was not disabled within the meaning of the 20 Social Security Act. 21 Plaintiff 22 September 1, 2006. 23 the severe impairments of bilateral osteoarthritis of the knees, status 24 post bilateral partial medial meniscectomy, morbid obesity, and status 25 post anterior cruciate ligament reconstruction of the right knee. 26 10). had not (AR 15). engaged (AR 10). in At step one, the ALJ found that substantial activity since At step two, he found that Plaintiff had 27 28 gainful \\ 5 (AR 1 2 At step three, the ALJ found that the severe impairments at step two did not meet or medically equal a listed impairment. (AR 10). 3 4 At step four, the ALJ found that Plaintiff was not capable of 5 performing his past relevant work as a fork lift operator, sale clerk, 6 automobile parts manager, truck driver, and an insulator installer. (AR 7 13). 8 of sedentary work and was able to sit 6 hours in an 8 hour day; stand 9 and walk 2 hours in an 8 hour day; can lift and carry occasionally 20 10 pounds and 10 pounds frequently; can use upper extremities without any 11 restrictions; 12 movements; 13 exposure in marked changes in temperature and humidity; and is mildly 14 restricted from being around moving machinery and driving automotive 15 equipment. He also found that Plaintiff had the RFC to perform a wide range can is use bilateral moderately lower restricted extremities from for unprotected repetitive heights and (AR 10). 16 17 At step five, the ALJ found that there were jobs existing in 18 significant numbers in the national 19 perform. (AR 14). Specifically, the ALJ concluded that Plaintiff could 20 perform the job requirements of a document preparer, order clerk, and 21 an information clerk. 22 was not disabled. (AR 14). economy that Plaintiff could Thus, the ALJ concluded that Plaintiff (AR 15). 23 24 V. 25 STANDARD OF REVIEW 26 27 28 Under 42 U.S.C. § 405(g), a district Commissioner s decision to deny benefits. 6 court may review the The court may set aside the 1 Commissioner s decision when the ALJ s findings are based on legal error 2 or are not supported by substantial evidence in the record as a whole. 3 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 4 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 5 6 Substantial evidence is more than a scintilla, but less than a 7 preponderance. 8 which a reasonable person might accept as adequate to 9 conclusion. Reddick, 157 F.3d at 720. Id. It is relevant evidence support a To determine whether substantial evidence supports 10 a finding, the court must consider the record as a whole, weighing 11 both 12 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 13 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 14 reasonably support either affirming or reversing that conclusion, the 15 court may not substitute its judgment for that of the Commissioner. 16 Reddick, 157 F.3d at 720-21. evidence that supports and evidence that detracts from the If the evidence can 17 18 VI. 19 DISCUSSION 20 21 Plaintiff contends the ALJ erred for four reasons: (1) Plaintiff 22 was prejudiced by the ALJ s failure to advise him of his right to 23 representation and obtain a knowing waiver (Memorandum in Support of 24 Plaintiff s Complaint ( Complaint Memo. ) at 3-4); (2) the ALJ erred by 25 relying on a non-testifying medical witness whose report was flawed by 26 failing to address all the medical evidence of record (id. at 5-7); (3) 27 the ALJ erred by failing to properly assess Plaintiff s credibility (id. 28 7 1 at 7-9); and (4) the ALJ failed to fully and fairly develop the record. 2 (Id. at 9-11). 3 4 The Court agrees with Plaintiff s first and fourth contentions. 5 For the reasons discussed below, the Court finds that the ALJ s decision 6 should be reversed and this action remanded for further proceedings. 7 8 A. Remand Is Required Because The ALJ Failed To Properly Advise Plaintiff Regarding His Right To Representation 9 10 11 Plaintiff claims that the ALJ failed to properly advise him 12 regarding his right to representation. 13 (Complaint Memo. at 3-4). The Court agrees. 14 15 When a claimant appears at a hearing without counsel, the ALJ has 16 an obligation to inform the claimant of options other than self- 17 representation. 18 a pro se claimant in a disability case the avenues which [the pro se 19 claimant] could pursue in obtaining counsel. 20 F.2d 812, 814 (9th Cir. 1981). 21 for additional facts and explain to the claimant the type of showing 22 which 23 successfully. the The Ninth Circuit has held that an ALJ must explain to applicant had to Cruz v. Schweiker, 645 In the alternative, the ALJ must probe make in order to prove his case Id. 24 25 Here, the transcript of the hearing demonstrates that the ALJ 26 failed to explain to Plaintiff the avenues he could pursue in obtaining 27 counsel. 28 I m an (See AR 24-39). Administrative In his opening statement, the ALJ stated, Law Judge 8 with the Office of Disability 1 Adjudication and Review of the Social Security Administration. 2 you have any objection to my receiving into evidence the documents that 3 are now in your exhibit file? 4 subsequent medical records that Plaintiff would submit into the record, 5 before swearing Plaintiff in and beginning to take Plaintiff s testimony 6 by asking Now your name is David B. Labato, Sr., is that right? 7 27). 8 an inquiry as to whether the Plaintiff wished to proceed without 9 counsel. (AR 26). Now do The ALJ then discussed (AR The ALJ then continued to ask Plaintiff questions, without even (AR 27-38). 10 11 In addition, the ALJ failed to probe for additional facts and 12 explain to the claimant the type of showing which the applicant had to 13 make in order to prove his case successfully. 14 Although the ALJ briefly explained the hearing process, he nevertheless 15 failed to satisfy Cruz because he offered no explanation to Plaintiff 16 regarding the showing he needed to make to prove his case. 17 27). Cruz, 645 F.2d at 813. (See AR 26- 18 19 The ALJ failed in other respects to satisfy his obligations to a 20 pro se claimant in a disability action. 21 As the Ninth Circuit has repeatedly observed: 22 23 [W]here the claimant is not represented, it is incumbent upon 24 the ALJ to scrupulously and conscientiously probe into, 25 inquire of and explore for all the relevant facts. 26 be especially diligent in ensuring that favorable as well as 27 unfavorable facts and circumstances are elicited. 28 9 He must 1 Higbee v. Sullivan, 975 F.2d 558, 560 (9th Cir. 1992) (citing Cox v. 2 Califano, 587 F.2d 988, 991 (1978)(citations omitted); and Heckler v. 3 Campbell, 461 U.S. 458, 470-73, 103 S. Ct. 1952, 1959-60, 76 L. Ed. 2d 4 66 (1983)). 5 in ensuring that both the favorable and unfavorable facts were 6 elicited. 7 comply 8 opportunity to cross-examine the ME and the VE. This record does not demonstrate that the ALJ was diligent Plaintiff was further prejudiced by the ALJ s failure to with his obligations because Plaintiff did not have the (See AR 24-39). 9 10 The Supreme Court has held that a written report by an examining 11 physician may constitute substantial evidence when a plaintiff has not 12 exercised the right to subpoena the reporting physician and thus has 13 forfeited the opportunity for cross-examination. 14 Perales, 402 U.S. 389, 402, 91 S. Ct. 1420, 28 L. Ed. 2d. 842 (1971). 15 However, a plaintiff cannot be denied the opportunity to cross examine 16 or rebut testimony. 17 1988). 18 perform any past relevant work. 19 a VE, and instead speculated as to the work that the plaintiff could 20 perform. 21 opportunity to cross-examine a witness or rebut testimony. See Richardson v. Burkhart v. Bowen, 856 F.2d 1335, 1341 (9th Cir. In Burkhart, the ALJ had concluded that the plaintiff could not Id. Id. The ALJ, though, did not consult Such actions effectively deprived [plaintiff] of an Id. 22 23 Here, Plaintiff s hearing was held on August 28, 2008. (AR 24-39). 24 The ALJ submitted interrogatories to the ME and VE, which were completed 25 on November 11, 2008, and January 14, 2009, respectively. 26 136-140). 27 interrogatories 28 interrogatories. (AR 142-146; The record does not indicate why the ALJ chose to use or whether Plaintiff received notice of the It appears that Plaintiff was not provided with 10 1 sufficient information to make an informed decision about whether 2 Plaintiff needed to request that the ALJ subpoena the VE or ME to allow 3 for cross-examination. 4 . of an opportunity to cross examine a witness or rebut testimony. 5 Burkhart, 853 F.2d at 1341. 6 provide Plaintiff an opportunity to cross-examine the ME and VE. Thus, Plaintiff was effectively deprived . . Accordingly, the case must be remanded to 7 8 9 B. The ALJ Failed To Properly Consider The Effect Of Plaintiff s Obesity On His Other Impairments 10 11 Plaintiff claims that the ALJ failed to fully and fairly develop 12 the record in three separate aspects. 13 First, Plaintiff argues that the ALJ failed to develop the record 14 relating to the severe impairment of morbid obesity. 15 Second, Plaintiff argues that the ALJ failed to develop the record by 16 failing to contact his treating physician, Dr. Fisher. 17 Third, Plaintiff argues that the ALJ failed to develop the record by 18 failing to scrupulously and conscientiously probe into, inquire of, and 19 explore all the relevant facts. 20 omitted). 21 therefore need not reach his second and third arguments. The Court agrees (Complaint Memo. at 9-11). (Id. at 9). (Id. at 10). (Id. at 11) (internal quotation marks with Plaintiff s first argument and 22 23 The Ninth Circuit has held that where there is evidence of 24 obesity, the ALJ must determine the effect of the claimant s obesity 25 upon his other impairments, his ability to work, and his general health. 26 See Celaya v. Halter, 332 F.3d 1177, 1181 (9th Cir. 2003) ( The ALJ was 27 responsible for determining the effect of [the claimant s] obesity upon 28 her other impairments, and its effect on her ability to work and general 11 1 health, given the presence of those impairments. ); see also Social 2 Security Ruling 02-01p (requiring an ALJ to consider the effects of 3 obesity at several points in the five-step sequential evaluation). 4 5 Here, the record is replete with either diagnoses of, or references 6 to, Plaintiff s obesity. Indeed, the ALJ acknowledged that Plaintiff 7 had the severe impairment of morbid obesity. 8 the ALJ s Medical Interrogatory, the ME listed morbid obesity as one of 9 Plaintiff s impairments. (AR 143). (AR 10). In response to Nevertheless, the ALJ did not 10 analyze the effect of Plaintiff s obesity on his other impairments, 11 especially the arthritis in his knees. 12 was error. 13 355 F.3d 1065, 1068-69 (7th Cir. 2004) (ALJ erred in not considering 14 effect of Plaintiff s obesity on claimant s arthritis); Clifford v. 15 Apfel, 227 F.3d 863, 873 (7th Cir. 2000) (evidence of obesity required 16 ALJ to consider weight issue with the aggregate effect of claimant s 17 other impairments). 18 remand, the ALJ must consider the effect of Plaintiff s obesity as a 19 medically 20 impairments. Remand is appropriate on this basis as well. determinable impairment \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 This omission See Celaya, 332 F.3d at 1182; see also Barrett v. Barnhart, 21 22 (See AR 11-13). \\ 12 and its effect on his On other 1 VII. 2 CONCLUSION 3 4 Consistent with the foregoing, and pursuant to sentence four of 42 5 U.S.C. § 405(g),3 IT IS ORDERED that judgment be entered REVERSING the 6 decision of the Commissioner and REMANDING this matter for further 7 proceedings consistent with this decision. 8 the Clerk of the Court serve copies of this Order and the Judgment on 9 counsel for both parties. IT IS FURTHER ORDERED that 10 11 DATED: July 15, 2010 12 13 _______/S/______________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 3 This sentence provides: The [district] court shall have power 27 to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of 28 Social Security, with or without remanding the cause for a rehearing. 13

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