Lolita Arquette v. Michael J. Astrue, No. 5:2009cv02295 - Document 18 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER 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. (mrgo)
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Lolita Arquette v. Michael J. Astrue Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LOLITA ARQUETTE, Plaintiff, 12 v. 13 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 ) Case No. EDCV 09-02295-OP ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) 17 18 19 The Court1 now rules as follows with respect to the eight disputed issues listed in the Joint Stipulation (“JS”).2 20 21 1 22 23 24 25 26 27 28 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See Dkt. Nos. 7, 9.) 2 As the Court advised the parties in its Case Management Order, the decision in this case is being made on the basis of the pleadings, the Administrative Record and the Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal 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). 1 Dockets.Justia.com 1 I. 2 DISPUTED ISSUES 3 4 5 As reflected in the Joint Stipulation, the disputed issues which Plaintiff is raising as the grounds for reversal and/or remand are as follows: (1) properly considered the treating physician’s opinions; 6 7 (2) (3) (4) (5) (6) (7) (8) Whether the ALJ should have obtained vocational expert testimony. 20 21 Whether the ALJ properly considered the demands of Plaintiff’s past relevant work; and 18 19 Whether the ALJ properly considered the consultative examiner’s findings; 16 17 Whether the ALJ properly considered the severity of Plaintiff’s mental impairment; 14 15 Whether the ALJ properly considered the side effects of Plaintiff’s medications; 12 13 Whether the ALJ properly considered the treating clinician’s opinions; 10 11 Whether the ALJ properly considered the treating psychiatrist’s opinions; 8 9 Whether the Administrative Law Judge (“ALJ”), F. Keith Varni, (JS at 2-3.) 22 II. 23 STANDARD OF REVIEW 24 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s 25 decision to determine whether the Commissioner’s findings are supported by 26 substantial evidence and whether the proper legal standards were applied. 27 DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence 28 means “more than a mere scintilla” but less than a preponderance. Richardson 2 1 v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); 2 Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 3 1988). Substantial evidence is “such relevant evidence as a reasonable mind 4 might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 5 401 (citation omitted). The Court must review the record as a whole and 6 consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 7 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one 8 rational interpretation, the Commissioner’s decision must be upheld. Gallant v. 9 Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). 10 III. 11 DISCUSSION 12 A. The ALJ Failed to Properly Consider the Opinions of the Treating 13 Physician. 14 Plaintiff testified at the hearing before the ALJ that her treating physician 15 was Ibrahim Sumarli, M.D.3 (Administrative Record (“AR”) at 39-40.) 16 According to the record, Plaintiff was under Dr. Sumarli’s care at the Riverside 17 Neighborhood Health Center beginning in late 2006. (Id. at 463, 479, 500, 18 503, 505, 528, 531, 533.) Of particular relevance here is Dr. Sumarli’s March 19 27, 2007, Medical Report of Plaintiff. In that report, Dr. Sumarli indicated that 20 Plaintiff suffered from hypertension, fibromyalgia, carpel tunnel syndrome, and 21 migraine headaches. (Id. at 503.) Dr. Sumarli reported that Plaintiff was 22 unable to work full- or part-time and that she would only be able to work in a 23 zero-stress situation. (Id.) According to Dr. Sumarli, Plaintiff could not 24 participate in training-type activities. (Id.) In denying Plaintiff’s application, 25 the ALJ made no mention of Dr. Sumarli or his March 27, 2007, report. 26 27 28 3 In the transcript of the hearing, the doctor’s name is phonetically spelled “Somarli.” (AR at 39.) 3 1 It is well established in the Ninth Circuit that a treating physician’s 2 opinion is entitled to special weight, because a treating physician is employed 3 to cure and has a greater opportunity to know and observe the patient as an 4 individual. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). “The 5 treating physician’s opinion is not, however, necessarily conclusive as to either 6 a physical condition or the ultimate issue of disability.” Magallanes v. Bowen, 7 881 F.2d 747, 751 (9th Cir. 1989). The weight given a treating physician’s 8 opinion depends on whether it is supported by sufficient medical data and is 9 consistent with other evidence in the record. 20 C.F.R. §§ 404.1527(d), 10 416.927(d). Where the treating physician’s opinion is uncontroverted by 11 another doctor, it may be rejected only for “clear and convincing” reasons. 12 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); Baxter v. Sullivan, 923 F.2d 13 1391, 1396 (9th Cir. 1991). If the treating physician’s opinion is controverted, 14 as appears to be the case here, it may be rejected only if the ALJ makes 15 findings setting forth specific and legitimate reasons that are based on the 16 substantial evidence of record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th 17 Cir. 2002); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 18 (9th Cir. 1987). The ALJ can “meet this burden by setting out a detailed and 19 thorough summary of the facts and conflicting clinical evidence, stating his 20 interpretation thereof, and making findings.” Thomas, 278 F.3d at 957 21 (citation and quotation omitted). 22 The ALJ’s failure to provide any reasons, let alone legally sufficient 23 reasons, for discounting Dr. Sumarli’s opinions warrants remand. See Embrey, 24 849 F.2d at 422 (in disregarding the findings of a treating physician, the ALJ 25 must “provide detailed, reasoned and legitimate rationales” and must relate any 26 “objective factors” he identifies to “the specific medical opinions and findings 27 he rejects”); see, e.g., Nelson v. Barnhart, No. C 00-2986 MMC, 2003 WL 28 297738, at *4 (N.D. Cal. Feb. 4, 2003) (“Where an ALJ fails to ‘give 4 1 sufficiently specific reasons for rejecting the conclusion of [a physician],’ it is 2 proper to remand the matter for ‘proper consideration of the physicians’ 3 evidence.’”) (citation omitted). Accordingly, remand is required for the ALJ to 4 set forth legally sufficient reasons for rejecting the opinions of Dr. Sumarli, if 5 the ALJ again determines rejection is warranted.4 6 B. The ALJ’s Consideration of the Opinions of the Treating 7 Psychiatrist. 8 Plaintiff began psychiatric treatment on April 14, 2007, at the Riverside 9 County Department of Mental Health. (AR at 546-52.) In an April 26, 2007, 10 Initial Psychiatric Assessment of Plaintiff, Denise Joseph, M.D., reported a 11 diagnosis of Major Depressive Disorder with psychotic features, rule out 12 bipolar disorder. (Id. at 556.) Dr. Joseph assessed Plaintiff’s Global 13 Assessment of Functioning (“GAF”) at 40 currently, with the highest score 14 during the past year as 40. (Id.)5 Dr. Joseph reported that Plaintiff presented 15 with disorganized/incoherent speech, depressed mood, feelings of 16 worthlessness, decreased ability to concentrate, fatigue, and decreased sleep. 17 (AR at 557.) Dr. Joseph also noted that Plaintiff suffered from excessive 18 19 4 20 The Court expresses no view on the merits. 5 21 22 23 24 25 26 27 28 A GAF score is the clinician’s judgment of the individual’s overall level of functioning. It is rated with respect only to psychological, social, and occupational functioning, without regard to impairments in functioning due to physical or environmental limitations. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (“DSMIV”) at 32 (4th Ed. 2000). A GAF score of 31-40 indicates: “Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work . . . .).” Id. at 34. 5 1 anxiety/worry, recurrent distressing dreams, feelings of recurrent traumatic 2 event, muscle tension, and irritability. (Id.) 3 A Mental Status Exam on the same date resulted in findings of poverty 4 of speech, psychomotor slowing, poor eye contact, and distant interactions. 5 (Id. at 559.) Plaintiff was depressed and her thought content was bizarre and 6 poorly organized. (Id.) Plaintiff reported visual hallucinations in the form of 7 shadows. (Id.) 8 In a June 14, 2007, Psychiatric/Psychological Impairment Questionnaire, 9 Dr. Joseph reiterated the diagnosis of severe major depressive disorder with 10 psychotic features. (Id. at 538.) Dr. Joseph indicated that Plaintiff exhibited 11 the following positive clinical findings: poor memory; moderate appetite 12 disturbance; restless sleep; personality changes; mood disturbances; emotional 13 lability; hallucinations; anhedonia or pervasive loss of interests; psychomotor 14 agitation or retardation; difficulty thinking or concentrating; time or place 15 disorientation; social withdrawal or isolation; blunt, flat or inappropriate affect; 16 decreased energy; intrusive recollections of a traumatic experience; and 17 hostility and irritability. (Id. at 539.) Dr. Joseph concluded that Plaintiff was 18 mildly limited in her ability to carry out simple one or two-step instructions; 19 ask simple questions or request assistance; and be aware of normal hazards and 20 take appropriate precautions. (Id. at 541-43.) The doctor further concluded 21 that Plaintiff was moderately limited in her ability to understand and remember 22 detailed instructions; interact appropriately with the general public; accept 23 instructions and respond appropriately to criticism from supervisors; travel to 24 unfamiliar places or use public transportation; and set realistic goals or make 25 plans independently. (Id.) In addition, Dr. Joseph reported that Plaintiff was 26 markedly limited in her ability to remember locations and work-like 27 procedures; carry out detailed instructions; maintain attention and 28 concentration for extended periods; perform activities within a schedule, 6 1 maintain regular attendance and be punctual within customary tolerance; 2 sustain ordinary routine without supervision; work in coordination with or 3 proximity to others without being distracted by them; complete a normal 4 workweek without interruptions from psychologically based symptoms and 5 perform at a consistent pace without an unreasonable number and length of rest 6 periods; and maintain socially appropriate behavior and adhere to basic 7 standards of neatness and cleanliness. (Id. at 538.) Dr. Joseph explained that 8 she was unable to determine Plaintiff’s prognosis at the time of the report. (Id.) 9 The doctor opined that Plaintiff is not a malingerer, is incapable of performing 10 even low stress work, and likely would be absent from work twice a week as a 11 result of her impairments or treatment. (Id. at 544-45.) 12 The ALJ rejected the findings of Dr. Joseph, as follows: 13 [W]hat is said in the form from Denise Joseph, M.D. is 14 astounding . . . . Dr. Joseph holds herself out principally as an 15 internist who also dabbles in psychology. However, a graduate of an 16 off-shore medical school, she is not Board certified in psychology or 17 anything else and when she completed the form at Exhibit 24F, had 18 seen the claimant at most twice, if that. The plethora of markedly 19 limited mental functions makes one wonder why the doctor did not 20 institutionalize the claimant, since that number would render her 21 unable to take care of herself, perform any self-help activities, or 22 even entertain any activities of daily living. This is as groundless an 23 assessment as I have seen. 24 psychological consultative examinations and even more so by the 25 State agency Board certified psychiatrists. 26 27 28 It is thoroughly rebutted by the (Id. at 28 (citations omitted).) The ALJ’s points are not well taken. First, the ALJ concludes that Dr. Joseph “holds herself out principally as an internist who also dabbles in 7 1 psychology.” The ALJ relies on information from the California Medical 2 Board listing internal medicine as Dr. Joseph’s primary specialty, with 3 psychiatry listed as her secondary specialty.6 (Id. at 189.) The order in which 4 Dr. Joseph listed her specialties does not indicate that she is any less trained or 5 capable in either area of practice. In addition, the fact that Dr. Joseph was 6 employed at, and treating Plaintiff through, the Riverside County Department 7 of Mental Health indicates that at the time of the assessment she was employed 8 as a psychiatrist, not merely “dabbl[ing]” in the field. Further, Dr. Joseph 9 doesn’t dabble in “psychology” at all, as she is a psychiatrist not a 10 psychologist. 11 Next, the ALJ faults Dr. Joseph for being a graduate of an “off-shore” 12 medical school. According to the California Medical Board, Dr. Joseph is a 13 graduate of the American University of the Caribbean School of Medicine. 14 However, regardless of where she attended medical school, Dr. Joseph is duly 15 licensed to practice medicine within the State of California. Ironically, the two 16 consultative examiners relied on by the ALJ also attended foreign medical 17 schools. According to the California Medical Board, Reynaldo Abejuela, M.D. 18 attended medical school at the Far Eastern University in the Philippines and 19 Sohini Parikh, M.D. attended Gujarat University Medical College in India. 20 The ALJ also rejected Dr. Joseph’s opinions because she is not “Board 21 certified in psychology or anything else.” Of course, the Court would not 22 expect Dr. Joseph, a psychiatrist, to be Board certified in psychology. In 23 addition, consultative psychiatrist Dr. Parikh stated on his report that he is 24 Board eligible (id. at 329), but there is no indication in the record or through 25 26 27 28 6 The Court notes that the California Medical Board currently lists Dr. Joseph’s primary specialty as psychiatry, with internal medicine listed as her secondary specialty. http://www2.mbc.ca.gov/LicenseLookupSystem/ PhysicianSurgeon/Lookup.aspx?licenseType=A&licenseNumber=51242. 8 1 the medical board that he has ever obtained formal certification. In addition, 2 while Dr. Abejuela states in his report that he is a Diplomate of the American 3 Board of Psychiatry and Neurology (id. at 251), his certification is not reflected 4 through the state medical board.7 Neither is there any evidence establishing the 5 Board certification of the other identifiable state agency psychiatrist, David E. 6 Goss, M.D.8 Accordingly, it was inappropriate for the ALJ to conclude, based 7 on the information reflected by the California Medical Board, that Dr. Joseph 8 was not Board certified, or at the very least Board eligible. Moreover, even 9 assuming that Dr. Joseph is not Board certified, the ALJ improperly rejected 10 her opinions in favor of other apparently non-certified psychiatrists. 11 The ALJ also rejects Dr. Joseph’s findings because the extreme 12 limitations reported by Dr. Joseph would have rendered Plaintiff incapable of 13 caring for herself and would have warranted that she be institutionalized. 14 However, although Dr. Joseph believed Plaintiff to be quite impaired, she 15 clearly did not feel that Plaintiff required hospitalization or any other form of 16 “institutionaliz[ation].” It was inappropriate for the ALJ to reject Dr. Joseph’s 17 findings by substituting his own medical conclusions for that of the physician, 18 particularly where the ALJ did not even seek the testimony of a medical expert. 19 20 21 22 23 24 25 26 27 28 7 This Court has no reason to doubt that Dr. Abejuela is Board certified. However, the discrepancy in information merely highlights the fact that the California Medical Board, upon which the ALJ apparently relied in determining Dr. Joseph’s qualifications, might not maintain accurate and upto-date information on a physician’s status with the Board. Notably, the medical board’s homepage does not guarantee the accuracy of information regarding a physician’s Board certification and refers inquiries into those matter to the American Board of Medical Specialties. 8 There is one other state agency psychiatrist relied upon by the ALJ. However, that physician’s signature is illegible and his printed name does not appear on the report. (AR at 339-52.) 9 1 See Tacket v. Apfel, 180 F.3d 1094, 1102-03 (9th Cir. 1999) (finding it 2 inappropriate for an ALJ to substitute his own medical judgment for that of a 3 treating physician); see also Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 4 1975) (noting that hearing examiner was not a qualified medical expert). 5 Next, the ALJ concludes that Dr. Joseph’s opinions are thoroughly 6 rebutted by the psychological consultative examinations and even more so by 7 the State agency Board certified psychiatrists. First, as explained above, it is 8 not clear that all, or any, of the doctors relied on by the ALJ were Board 9 certified, or that Dr. Joseph was not Board certified. Second, the most recent of 10 the reports relied on by the ALJ was completed in May 2005 (AR at 339), 11 approximately two years before Dr. Joseph began treating Plaintiff and more 12 than two years prior to the ALJ’s decision. The ALJ does nothing to account 13 for the possibility of deterioration in Plaintiff’s symptoms between the time the 14 state agency physicians considered Plaintiff’s condition and the time she began 15 treatment with Dr. Joseph. Third, the fact that a physician’s opinion is 16 inconsistent with other evidence might be reason to conclude it not worthy of 17 “controlling weight,” but it is not a sufficient reason to reject the opinion 18 outright. Orn v. Astrue, 495 F.3d 625, 631-32 (9th Cir. 2007) (quoting SSR 19 96-2p; 20 CFR § 404.1527. 20 Finally, the ALJ rejected Dr. Joseph’s opinions because, at the time she 21 completed the Psychiatric/Psychological Impairment Questionnaire, she had 22 seen the claimant “at most twice.” The “[l]ength of the treatment relationship 23 and the frequency of examination” are factors the ALJ may consider in 24 determining the weight to be given the opinions of a treating source. Orn, 495 25 F.3d at 631. Moreover, it is correct that Dr. Joseph had recently begun treating 26 Plaintiff at the time she completed the Psychiatric/Psychological Impairment 27 Questionnaire. However, because the Court has decided above that this action 28 must be remanded for further consideration of Dr. Sumarli’s opinions, the 10 1 Court also directs the ALJ to further consider Dr. Joseph’s opinions and to set 2 forth legally sufficient reasons for rejecting those opinions, if the ALJ again 3 determines that such rejection is warranted.9 4 C. The ALJ’s Consideration of the Opinions of the Treating Social 5 Worker. 6 On April 16, 2007, a Licensed Clinical Social Worker (“LCSW”) at the 7 Riverside County Department of Mental Health conducted an Intake 8 Assessment of Plaintiff. The social worker estimated Plaintiff’s GAF to be 50 9 currently, with the highest GAF during the past year at 50.10 (AR at 546.) The 10 social worker further noted symptoms consistent with Dr. Joseph’s later report. 11 (Id. at 547-55.) The ALJ did not mention the findings of the social worker in 12 his decision. 13 Standing alone, the ALJ’s failure to give reasons for rejecting the 14 evaluation performed by the social worker is not reversible error because an 15 LCSW is not an “acceptable medical source” within the meaning of the 16 regulations. Nonetheless, information from “other sources” may be considered 17 to assess impairment severity and its affect on the ability to work. 20 C.F.R. §§ 18 404.1513(a), (d), 416.913(a), (d) (defining an “acceptable medical source,” and 19 explaining that information from “other sources” also may be considered); see 20 Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996) (holding that the 21 regulations permit the Commissioner to give “less weight” to opinions from 22 “other sources”). Because the Court has concluded that this action must be 23 24 9 25 26 27 28 The Court expresses no view on the merits. 10 A GAF score of 41-50 indicates “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” DSM IV at 34. 11 1 remanded for further consideration of Dr. Sumarli’s opinions, the Court also 2 directs the ALJ to further consider the opinions of the LCSW. 3 D. The ALJ Did Not Improperly Neglect to Consider Side Effects of 4 Plaintiff’s Medications. 5 Plaintiff explains that, according to a report from Dr. Joseph, she was 6 taking “Depakote ER, Cymbalta and another medication that is unidentifiable.” 7 (JS at 27.) Plaintiff then discusses the potential side effects of these 8 medications as described by WebMD and concludes that the ALJ erred by not 9 considering these side effects as they might have related to Plaintiff’s 10 11 impairment. (Id. at 27-28.) The Court does not agree. Under Ninth Circuit law, the ALJ must “consider all factors that might 12 have a ‘significant impact on an individual’s ability to work.’” Erickson v. 13 Shalala, 9 F.3d 813, 817 (9th Cir. 1993) (quoting Varney v. Sec’y of Health & 14 Human Servs., 846 F.2d 581, 585 (9th Cir.), relief modified, 859 F.2d 1396 15 (1988)). Such factors “may include side effects of medications as well as 16 subjective evidence of pain.” Erickson, 9 F.3d at 818. When the ALJ 17 disregards the claimant’s testimony as to subjective limitations of side effects, 18 he must support that decision with specific findings similar to those required 19 for excess pain testimony, as long as the side effects are in fact associated with 20 the claimant’s medications. See Varney, 846 F.2d at 545; see also Muhammed 21 v. Apfel, No. C 98-02952 CRB, 1999 WL 260974, at *6 (N.D. Cal. 1999). 22 In this case, there was no indication in the medical records that Plaintiff 23 reported any side effects from her medications. In fact, Plaintiff does not even 24 attempt to argue that the record contains evidence that she suffered from any of 25 the listed side effects, but rather apparently argues that the ALJ was required to 26 consider potential side effects merely because the medications were known to 27 cause some adverse reactions. In the absence of evidence that Plaintiff actually 28 suffered from side effects of medication, there was no error in the ALJ’s failure 12 1 to mention the potential side effects. See Bayliss v. Barnhart, 427 F.3d 1211, 2 1217 (9th Cir. 2005) (ALJ did not err in failing to “explicitly address the 3 drowsiness side-effect of [the claimant’s] medication” in making an RFC 4 determination as “the ALJ took into account those limitations for which there 5 was record support that did not depend on [the claimant’s] subjective 6 complaints”); Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002) (alleged 7 side effects need not be considered where no objective evidence supported 8 allegations). 9 E. The ALJ’s Consideration of the Plaintiff’s Mental Impairment. 10 After rejecting the opinions of Dr. Joseph, the ALJ concluded that 11 Plaintiff “has no severe mental impairment and not one of the ‘B’ criteria exist 12 for any reason.” (AR at 28.) Plaintiff relies on the opinions of Dr. Joseph, as 13 well as the LCSW from the County of Riverside Department of Mental Health, 14 in arguing that the ALJ failed to properly consider the severity of Plaintiff’s 15 mental impairment. (JS at 30-33.) The disposition of Plaintiff’s claim relies on 16 the weight to be given the opinions of Dr. Joseph and the LCSW. As this Court 17 has directed the ALJ to reconsider the opinions of Dr. Joseph and the LCSW on 18 remand, the Court further directs the ALJ to reconsider the severity of 19 Plaintiff’s mental impairment in light of the renewed assessment of the medical 20 evidence. 21 F. The ALJ’s Consideration of the Opinions of the Consultative 22 Examiner. 23 After an April 27, 2005, Internal Medicine Evaluation, consultative 24 examiner Denny H. Lee, M.D., concluded, among other things, that Plaintiff 25 could push, pull, turn, and twist with her right dominant upper extremity 26 “frequently,” and that she should avoid working near moving machinery or at 27 unprotected heights during her migraine headaches. (AR at 319-20.) Without 28 specifically noting these limitations, the ALJ adopted the opinions of Dr. Lee 13 1 and concluded that Plaintiff maintained the Residual Functional Capacity to 2 “lift and carry 20 lbs. occasionally and 10 lbs. frequently; stand and walk up to 3 six hours and sit for six hours out of an eight hour workday with a few 4 additional limitations.”11 (Id. at 26.) Presumably, given his adoption of Dr. 5 Lee’s assessment, the limitations reported by Dr. Lee are included in the ALJ’s 6 notation of “a few additional limitations.” Ultimately, the ALJ concluded that 7 Plaintiff could perform her past work as “a rental property leasing agent.” (Id. 8 at 28.) However, the ALJ did not provide a DOT number for this position, or 9 specify that he was relying on the characterization of this job as detailed by 10 11 Plaintiff.12 The ALJ’s RFC assessment is relatively consistent with light work, 12 except potentially as Plaintiff is further limited by “a few additional 13 limitations.” The Dictionary of Occupational Titles (“DOT”) defines light 14 work as: 15 Exerting up to 20 pounds of force occasionally, and/or up to 10 16 pounds of force frequently, and/or a negligible amount of force 17 18 19 20 21 22 23 24 25 26 27 28 11 The Court notes that the conclusion by the ALJ that Plaintiff has “a few additional limitations,” appears to be in conflict with the heading of this portion of the ALJ’s analysis, which states that Plaintiff “has the residual functional capacity to perform the full range of light work.” (Id. at 25.) Whether these two conclusions are in fact inconsistent, and whether they are materially inconsistent when considered in light of Plaintiff’s past relevant work, is impossible for the Court to determine in light of the ALJ’s vague analysis, as discussed below. 12 Pursuant to Social Security Ruling 82-61, an ALJ may find a claimant “not disabled” at step four of the analysis where the claimant retains the RFC to perform “[t]he actual functional demands and job duties of a particular past relevant job,” or “[t]he functional demands and job duties of the occupation as generally required by employers throughout the national economy.” 14 1 constantly (Constantly: activity or condition exists 2/3 or more of the 2 time) to move objects. Physical demand requirements are in excess 3 of those for Sedentary work. Even though the weight lifted may be 4 only a negligible amount, a job should be rated Light Work: (1) when 5 it requires walking or standing to a significant degree; or (2) when it 6 requires sitting most of the time but entails pushing and/or pulling of 7 arm or leg controls; and/or (3) when the job requires working at a 8 production rate pace entailing the constant pushing and/or pulling of 9 materials even though the weight of those materials is negligible. 10 DOT, Fourth Ed., 1991, App. C. 11 Plaintiff’s past relevant work as a “rental property leasing agent,” 12 appears to fit within the DOT’s definition of Apartment House Manager (DOT 13 No. 186.167-018) or Property Manager (Id. No. 186.167-046). Each of these 14 positions are described as light work and do not on their face appear to require 15 more than frequent pushing, pulling, turning, and twisting of the upper 16 extremities or routine work around moving machinery or at unprotected 17 heights. Id. Nos. 186.167-018, 186.167-046. 18 In addition, at the hearing before the ALJ Plaintiff described her duties 19 as a leasing agent as: “To accept phone calls for people, tenants, prospective 20 tenants interested in apartments, showing apartments, doing move-ins and 21 move-outs.” (AR at 37.) In a 2005 Work History Report, Plaintiff described 22 her job duties in more detail. Plaintiff explained that her job required her to 23 “answer phone inquiry for apts - kept records of all calls/showed apts to 24 prospective tenants/wrote up move-in lease packets + move out paperwork/ 25 wrote up + served delinquent rent notices/accepted rent + deposit monies/ 26 handle complaints/lt bookkeeping/filing/evictions.” (Id. at 135.) Plaintiff 27 stated that her job required use of machines, tools, or equipment; technical 28 knowledge or skills; and writing or completing reports. (Id.) In a typical day 15 1 on the job, Plaintiff estimated that she spent two to three hours walking; one 2 hour standing; three to four hours sitting; one to two hours climbing; forty-five 3 minutes stooping; one hour handling, grabbing, or grasping big objects; and 4 two to three hours writing, typing, or handling small objects. (Id.) Plaintiff 5 explained that she frequently was required to lift ten pounds, which was the 6 heaviest weight she lifted on the job. (Id.) 7 In light of this evidence, it does not appear that the ALJ’s RFC 8 assessment conflicts with Dr. Lee’s findings. However, the record cannot be 9 completely clear on this point without, at the very least, clarification as to 10 Plaintiff’s “few additional limitations” and an analysis of whether those 11 limitations can be accommodated by Plaintiff’s past work, either as defined by 12 the DOT or as she described it. Accordingly, on remand the ALJ should further clarify what, if any, 13 14 limitations Plaintiff has beyond those included in the definition of light work 15 and specify whether those limitations would prevent her from performing her 16 past relevant work. 17 G. The ALJ’s Consideration of Plaintiff’s Past Relevant Work. 18 As explained above, the ALJ concluded that Plaintiff could perform her 19 past work as “a rental property leasing agent.” (Id. at 28.) However, the ALJ 20 did not provide a DOT number corresponding to Plaintiff’s work or indicate 21 that he was relying on Plaintiff’s description of that work. Neither did the ALJ 22 seek testimony from a vocational expert as to the demands of Plaintiff’s past 23 work or whether Plaintiff could perform such work in light of her current 24 limitations. Upon remand, the ALJ is directed to further develop the record as 25 to Plaintiff’s specific limitations and identify any limitations Plaintiff maintains 26 beyond those recognized in the definition of light work. The ALJ should also 27 identify the DOT number corresponding to Plaintiff’s past work, or indicate 28 reliance on the job duties identified by Plaintiff, and thoroughly analyze 16 1 Plaintiff’s ability to perform that work in light of her current limitations. 2 H. Whether the ALJ Should Have Obtained Vocational Expert 3 Testimony. 4 As mentioned above, in concluding, at step four of the social security 5 analysis, that Plaintiff maintained the RFC to perform her past work, the ALJ 6 did not seek the testimony of a vocational expert. The Plaintiff bears the 7 burden of proving at step four that she is unable to perform her past relevant 8 work. Thus, although vocational expert testimony might be useful at this step, 9 it is not required. Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). 10 Because the ALJ concluded that Plaintiff did not meet her burden of proving 11 disability at step four of the analysis, he did not err in failing to obtain 12 vocational expert testimony.13 13 I. This Case Should Be Remanded for Further Administrative 14 Proceedings. 15 The law is well established that remand for further proceedings is 16 appropriate where additional proceedings could remedy defects in the 17 Commissioner’s decision. Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 18 1984). Remand for payment of benefits is appropriate where no useful purpose 19 would be served by further administrative proceedings, Kornock v. Harris, 648 20 F.2d 525, 527 (9th Cir. 1980); where the record has been fully developed, 21 Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand 22 would unnecessarily delay the receipt of benefits, Bilby v. Schweiker, 762 F.2d 23 24 25 26 27 28 13 Whether the ALJ properly concluded at step four that Plaintiff could perform her past work is dependent upon proper consideration of the opinions of the treating physicians and other evidence of record. Accordingly, upon remand the ALJ is directed to reconsider whether VE testimony is necessary and whether Plaintiff maintains the RFC to perform her past work in light of the medical record. 17 1 716, 719 (9th Cir. 1985). 2 Here, the Court concludes that this is an instance where further 3 administrative proceedings would serve a useful purpose and remedy 4 administrative defects. 5 IV. 6 ORDER 7 Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS HEREBY 8 ORDERED THAT Judgment be entered reversing the decision of the 9 Commissioner of Social Security and remanding this matter for further 10 administrative proceedings consistent with this Memorandum Opinion. 11 12 13 14 DATED: November 24, 2010 HONORABLE OSWALD PARADA United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18
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