Denise Turk v. Michael J. Astrue, No. 5:2011cv00265 - Document 16 (C.D. Cal. 2012)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is REVERSED. 2. This action is REMANDED to defendant, pursuant to Sentence Four of 42 U.S.C. §405(g), for further administrative proceedings consistent with instructions set forth in the body of the decision. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 DENISE TURK, 13 Plaintiff, v. 14 15 MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) No. EDCV 11-265-CW DECISION AND ORDER 18 The parties have consented, under 28 U.S.C. § 636(c), to the 19 jurisdiction of the undersigned Magistrate Judge. Plaintiff seeks 20 review of the Commissioner s denial of supplemental security income 21 (SSI) Benefits. The court finds this matter should be reversed and 22 remanded for further administrative proceedings consistent with this 23 decision and order. 24 I. BACKGROUND 25 Plaintiff Denise Turk was born on March 27, 1944, and was sixty26 seven years old at the time of her last administrative hearing. 27 [Administrative Record ( AR ) 274.] She has a high school education 28 1 1 and past relevant work experience as a teacher. [AR 273.] 2 alleges disability due to asthma, back and shoulder pain, joint pain, 3 and mood disorders and depression. 4 II. 5 Plaintiff PROCEEDINGS IN THIS COURT On October 19, 2011, the parties filed their Joint Stipulation 6 ( JS ) identifying matters not in dispute, issues in dispute, the 7 positions of the parties, and the relief sought by each party. 8 matter has been taken under submission without oral argument. 9 III. This PRIOR PROCEEDINGS Plaintiff applied for SSI benefits under Title XVI of the Social 10 11 Security Act in 2005, alleging disability since November 23, 2002. 12 [AR 267.] 13 denied. [AR 7-13.] 14 review in this court in case number CV07-1450-CW. The matter was 15 ultimately remanded for further administrative proceedings. [See AR 16 285-93.] 17 After initial review and a hearing, her application was When that decision became final, Plaintiff sought A second hearing was held on April 9, 2009. [AR 672-93.] On July 18 1, 2009, the Administrative Law Judge ( ALJ ) issued a second 19 unfavorable decision. [AR 278-84.] 20 Plaintiff s request for review and again remanded the case to the ALJ. 21 [AR 309-311.] A third hearing was held on May 18, 2010, before a 22 different ALJ. [AR 694-99.] 23 hearing on July 27, 2010. 24 supplemental (fifth) hearing on October 20, 2010. [AR 723-35.] On 25 December 23, 2010, the ALJ issued an unfavorable decision. [AR 264- 26 75.] 27 the Commissioner s final decision. The Appeals Council granted The ALJ held a supplemental (fourth) [AR 700-22.] The ALJ then held another When the Appeals Council denied review the ALJ s decision became These proceedings followed. 28 2 IV. 1 2 STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 3 Commissioner s decision to deny benefits. The Commissioner s (or 4 ALJ s) findings and decision should be upheld if they are free of 5 legal error and supported by substantial evidence. 6 court determines that a finding is based on legal error or is not 7 supported by substantial evidence in the record, the court may reject 8 the finding and set aside the decision to deny benefits. 9 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. However, if the See Aukland 10 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 11 F.3d 1157, 1162 (9th Cir. 12 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 13 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 14 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 15 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a Reddick, 157 F.3d at 720. It is relevant evidence 16 preponderance. 17 which a reasonable person might accept as adequate to support a 18 conclusion. 19 a finding, a court must review the administrative record as a whole, 20 weighing both the evidence that supports and the evidence that 21 detracts from the Commissioner s conclusion. 22 can reasonably support either affirming or reversing, the reviewing 23 court may not substitute its judgment for that of the Commissioner. 24 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. To determine whether substantial evidence supports V. 25 Id. If the evidence DISCUSSION 26 A. 27 To be eligible for disability benefits a claimant must 28 THE FIVE-STEP EVALUATION demonstrate a medically determinable impairment which prevents the 3 1 claimant from engaging in substantial gainful activity and which is 2 expected to result in death or to last for a continuous period of at 3 least twelve months. 4 721; 42 U.S.C. § 423(d)(1)(A). 5 Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at Disability claims are evaluated using a five-step test: 6 Step one: Is the claimant engaging in substantial 7 gainful activity? 8 disabled. 9 If so, the claimant is found not If not, proceed to step two. Step two: Does the claimant have a severe impairment? 10 If so, proceed to step three. 11 If not, then a finding of not disabled is appropriate. 12 Step three: Does the claimant s impairment or 13 combination of impairments meet or equal an impairment 14 listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? 15 so, the claimant is automatically determined disabled. 16 not, proceed to step four. 17 If If Step four: Is the claimant capable of performing his 18 past work? 19 proceed to step five. If so, the claimant is not disabled. If not, Step five: Does the claimant have the residual 20 21 functional capacity to perform any other work? 22 claimant is not disabled. If so, the If not, the claimant is disabled. 23 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 24 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 25 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 26 C.F.R. § 404.1520, § 416.920. 27 not disabled at any step, there is no need to complete further 28 steps. If a claimant is found disabled or Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 4 Claimants have the burden of proof at steps one through four, 1 2 subject to the presumption that Social Security hearings are non- 3 adversarial, and to the Commissioner s affirmative duty to assist 4 claimants in fully developing the record even if they are represented 5 by counsel. 6 1288. 7 made, and the burden shifts to the Commissioner (at step five) to 8 prove that, considering residual functional capacity ( RFC )1, age, 9 education, and work experience, a claimant can perform other work Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at If this burden is met, a prima facie case of disability is 10 which is available in significant numbers. Tackett, 180 F.3d at 1098, 11 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. 12 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 13 In the relevant hearing decision, the ALJ found Plaintiff had not 14 engaged in substantial gainful activity since April 21, 2005, the 15 application date (step one); that Plaintiff had severe impairments 16 of major depressive disorder, personality disorder, degenerative 17 arthritis involving the spine and right shoulder, and cervical 18 radiculopathy (step two); and that Plaintiff did not have an 19 impairment or combination of impairments that met or equaled a 20 listing (step three). [AR 269.] 21 The ALJ found that Plaintiff had the following RFC: 22 [T]o perform medicum work as defined in 20 CFR 416.967(c) 23 1 24 25 26 27 28 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 except that [Plaintiff] can stand, walk and/or sit no more 2 than six hours out of eight with normal breaks such as every 3 two hours, lift and/or carry no more than 40 pounds 4 occasionally and 20 pounds frequently and can no more than 5 occasionally stoop and bend. 6 occasional work above shoulder level on the right and is 7 without limitation on the left. 8 stairs but not ladders, work at heights or balance and her 9 work environment should be air-conditioned and free of 10 excessive inhaled pollutants such as an office or this 11 hearing room. 12 repetitive work requiring no interaction with the general 13 public, hypervigilance or fast paced type work. 14 [AR 271.] He then found Plaintiff is not capable of performing her 15 past relevant work as a kindergarten teacher (step four). 16 Considering Plaintiff s age, education, work experience, RFC and work 17 skills acquired from past relevant work, the ALJ found that Plaintiff 18 could perform other work existing in significant numbers in the 19 national economy (step five). [AR 274.] 20 found not disabled as defined by the Social Security Act. [Id.] She is limited to no more than The [Plaintiff] can climb Mentally the [Plaintiff] is limited to simple [AR 273.] Accordingly, Plaintiff was 21 C. 22 The Joint Stipulation identifies as disputed issues whether: 23 1. ISSUES IN DISPUTE The ALJ complied with the order of the Appeals Council 24 requiring the ALJ to properly consider Plaintiff s 25 subjective complaints; and 26 2. The hearing decision is inconsistent with the Dictionary of 27 Occupational Titles ( DICOT ) in that the ALJ found 28 Plaintiff can perform the job of Hand Packager. 6 1 [Joint Stipulation JS 3.] 2 D. ISSUE ONE: APPEALS COUNCIL REMAND ORDER 3 The first issue turns on whether the ALJ adequately followed the 4 Appeals Council remand order and considered Plaintiff s subjective 5 symptoms, and, particularly, whether she suffers from adverse side 6 effects from medications. [AR 310.] 7 As an initial matter, while it is correct that the Appeals 8 Council order directed the ALJ to address these issues, by its terms 9 the order did so to comply with this court s instructions on remand. 10 [See AR 309.] However, Plaintiff s prior matter was remanded for 11 further development of the record only with respect to the narrow 12 issue of whether the ALJ adequately evaluated the record with respect 13 to Plaintiff s depression, and not with respect to Plaintiff s 14 subjective complaints or side effects. 15 [See AR 285-93.] In any event, the ALJ adequately addressed Plaintiff s subjective 16 complaints and any alleged side effects. First, after laying out and 17 assessing the medical evidence that relates to Plaintiff s subjective 18 complaints, the ALJ directly summarized and discounted her testimony 19 and complaints as follows: 20 [Plaintiff] was not a fully credible witness. [She] testified 21 that she was currently undergoing psychiatric treatment for 22 depression and is prescribed Wellbutrin, Celexa and Amblify. She 23 said that she sees her therapist once a month which helps. Her 24 testimony over several hearings has ranged from complaints of 25 shortness of breath, asthma, pneumonia, chronic back and joint 26 pain, chronic fatigue and depression over her physical condition. 27 There have been no specific findings of an orthopedic impairment 28 or limitations imposed despite her allegations of back and joint 7 1 pain. She testified that her back pain did not bother her in 2 April 2005 and that her neck and back pain started only three 3 months ago. 4 hour, stand a little less than 45 minutes and lift a maximum of 5 20 pounds. 6 tests and chest x-rays and despite her testimony that she has had 7 asthma for 20 years has only seen a physician for this problem 8 since April 2005. [Plaintiff] has conceded that she applied for 9 disability due to a physical not a mental impairment. From late 2005, she estimated that she could sit one The medical records show normal pulmonary function She 10 voluntarily left work in June 2005 when she was working for a 11 friend labeling gemstones and despite not really describing any 12 significant daily activities there is no impairment credibly 13 established in the record which would significantly limit her 14 daily activities. 15 16 [AR 273.] Plaintiff does not persuasively point to any subjective statement 17 or limitation that the ALJ ignored in this discussion, or that would 18 alter the finding of nondisability in this case. 19 notwithstanding Plaintiff s allegations here, the ALJ explicitly 20 discussed Plaintiff s subjective evaluation of her own ability to sit, 21 stand, and lift and rejected her assessment based on his findings that 22 (1) her statements were inconsistent with the medical record as a 23 whole; (2) that she was not credible overall; and (3) the medical 24 evidence established lesser limitations than those to which she 25 testified. 26 based upon substantial record evidence, the law does not require more. 27 See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)( The ALJ must 28 specify what testimony is not credible and identify the evidence that In particular, [See AR 269-73.] Because these findings were specific and 8 1 undermines the claimant s complaints. . . . ); Tommasetti v. Astrue, 2 533 F.3d 1035, 1039 (9th Cir. 2008)(the ALJ is required to make a 3 credibility determination with findings sufficiently specific to 4 permit the court to conclude that the ALJ did not arbitrarily 5 discredit the claimant s testimony. ) 6 To the extent Plaintiff contends the ALJ should have addressed 7 the side effects of her medications, for the most part the record 8 reflects that Plaintiff reported no side effects to her physicians and 9 that, to the extent she did, her complaints were of mild and sporadic 10 problems that would not have impacted her RFC. [See AR 672-735, 636, 11 644.] 12 the ALJ must consider the combined effect of the claimant s 13 impairments, the ALJ need not discuss every piece of 14 evidence. (citing Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 15 1984))); Vincent, 739 F.3d at 1394 (The ALJ is required only to 16 explain why evidence that is significant and probative of a disability 17 has been rejected). Indeed, the only alleged report of a side-effect 18 Plaintiff points to in her portion of the joint stipulation [see JS at 19 7] was an ambiguous reference in Plaintiff s testimony before the ALJ, 20 i.e., that additional medication had been recently added because she 21 was sleeping a lot and because it would help her with her mood. [AR 22 706.] While this testimony could conceivably support the inference 23 that Plaintiff s sleepiness was a side-effect of her current 24 medication, it could equally support the inference that the sleepiness 25 was a symptom of Plaintiff s long-standing complaints of chronic 26 fatigue and depression. 27 more than one rational interpretation, it is the Commissioner's 28 conclusion which must be upheld. Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003)(while Where the evidence is thus susceptible of Key v. Heckler, 754 F.2d 1545, 1549 9 1 2 (9th Cir. 1985). For all these reasons, any error here would be harmless. Stout 3 v. Commissioner of Soc. Security Admin., 454 F.3d 1050, 1056 (9th Cir. 4 2006)(holding that an error may be harmless when it is inconsequential 5 to the ultimate nondisability determination)(citing, inter alia, 6 Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993)(as concluding 7 that an error was harmless that occurred during hypothetical the ALJ 8 was not required to ask)). 9 this issue. 10 E. 11 In issue two, Plaintiff contends the decision is in error because Remand is not warranted with respect to ISSUE TWO: DICOT 12 she is unable to perform the job of hand packager, DICOT 920.587-018, 13 which was proposed by the Vocational Expert ( VE ) and adopted by the 14 ALJ at step five of the hearing decision. [See AR 274-75, 732-33.] 15 Although Plaintiff is incorrect to suggest that this job exceeds her 16 ability to lift and carry, in that the VE eroded the numbers to 17 account for her limitations in that regard [AR 732-33], reversal is 18 nonetheless warranted because other requirements of this job, and the 19 alternate job opined by the VE but not addressed in the decision, 20 facially exceed Plaintiff s capacities. 21 Defendant does not dispute that by its terms the DICOT definition 22 of the hand packager job exceeds Plaintiff s RFC. [JS at 18.] 23 Specifically, for example, the job requires Plaintiff to balance 24 occasionally and calls for frequent exposure to extreme heat, see 25 DICOT 920.587-018, 1991 WL 687916, whereas Plaintiff s RFC precludes 26 her from both [AR 272, 732]. 27 28 Defendant contends, however, that the error is harmless because the VE also opined that Plaintiff could perform work as a hospital 10 1 cleaner [AR 733], DICOT 323.687-010, 1991 WL 672782, which job exists 2 in significant numbers even when eroded to account for Plaintiff s 3 inability to engage in the full range of medium work. [See AR 733.] 4 This argument is unpersuasive. The requirements for the hospital 5 cleaner job likewise exceed Plaintiff s RFC. 6 example, a hospital cleaner is required to stoop frequently, DICOT 7 323.687-010, 1991 WL 672782, whereas Plaintiff retains the ability to 8 stoop only occasionally [AR 271]. 9 Specifically, for When, as here, the opinion of the VE deviates from or conflicts 10 with the DICOT definitions, the ALJ may adopt the VE s testimony only 11 if the record contains persuasive evidence to support the 12 deviation. Pinto v. Massanari, 249 F.3d 840, 846 (9th Cir. 13 2001)(quoting Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 14 1995)(additional citations omitted)). 15 address this discrepancy, it is unclear whether there is persuasive 16 evidence supporting the VE s deviation from the DICOT and, therefore, 17 whether there remain jobs in significant numbers that Plaintiff could 18 perform. 19 record in this limited respect. Because the ALJ failed to Consequently, reversal is warranted to further develop the 20 F. REMAND FOR FURTHER PROCEEDINGS 21 The decision whether to remand for further proceedings is within Harman v. Apfel, 211 F.3d 1172, 22 the discretion of the district court. 23 1175-1178 (9th Cir. 2000). 24 further proceedings, or where the record has been fully developed, it 25 is appropriate to exercise this discretion to direct an immediate 26 award of benefits. 27 remand for further proceedings turns upon their likely utility). 28 However, where there are outstanding issues that must be resolved Where no useful purpose would be served by Harman, 211 F.3d at 1179 (decision whether to 11 1 before a determination can be made, and it is not clear from the 2 record that the ALJ would be required to find the claimant disabled if 3 all the evidence were properly evaluated, remand is appropriate. 4 Id. Here, the ALJ erred in failing to discuss the apparent deviation 5 between the VE s testimony and the DICOT and whether significant 6 numbers of jobs exist that Plaintiff can perform notwithstanding that 7 deviation. 8 be made, and remand for further administrative proceedings is 9 appropriate. Thus, outstanding issues remain before a determination can See e.g., Strauss v. Comm r of Soc. Sec. Admin., 635 10 F.3d 1135, 1136 (9th Cir. 2011) (remand for automatic payment of 11 benefits inappropriate unless evidence unequivocally establishes 12 disability). VI. 13 ORDERS 14 Accordingly, IT IS ORDERED that: 15 1. The decision of the Commissioner is REVERSED. 16 2. This action is REMANDED to defendant, pursuant to Sentence 17 Four of 42 U.S.C. §405(g), for further administrative proceedings 18 consistent with instructions set forth in the body of the decision. 19 20 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 21 22 23 24 DATED: January 3, 2012 ________________________________ CARLA M. WOEHRLE United States Magistrate Judge 25 26 27 28 12

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