C. Plaintiff's Residual Functional Capacity
The ALJ found that Plaintiff had the residual functional capacity to
perform light work.*fn1 In making this determination, the ALJ relied upon
Plaintiff's testimony, records of treating and examining physicians, and
the testimony of the DDS medical advisors. After evaluating this
testimony and evidence ALJ listed certain limitations to Plaintiff's
ability to perform light work. These limitations included "only
occasional balancing and stooping, no kneeling, crouching, crawling, or
climbing on ladders or ropes, the need to be near a restroom, and the
need for a sit/stand option." The ALJ then relied on the vocational
expert in identifying jobs that Plaintiff could perform given these
Plaintiff asserts that the ALJ did not consider all relevant evidence
in the record in setting the limitations concerning Plaintiff's Koch
pouch. Plaintiff asserts that to evacuate his Koch pouch, he requires
eight to 10 restroom trips in a work day, each lasting up to fifteen
minutes. Other evidence presented contained different estimates of the
frequency and duration of required excavation. Plaintiff argues that
instead of "need to be near a restroom," the ALJ should have included a
limitation that included his need for frequent and prolonged trips to the
restroom and that she should have presented the details of such
limitation to the vocational expert.
The Court agrees. The ALJ's failed to clearly determine the precise
nature of Plaintiff's limitations due to his Koch pouch. It is unclear
from the record whether the failure to discuss in detail Plaintiff's Koch
pouch-related limitations reflects a determination that such limitations
do not exist based on the evidence, or was merely an omission. The
failure to make that determination, and to discuss these details with the
vocational expert constitutes error.
If a claimant shows he cannot perform his previous occupation, the
burden shifts to the Commissioner to show that he can still perform
substantial, gainful work. Rodriguez v. Bowen, 876 F.2d 759, 761 (9th
Cir. 1989). In meeting this burden, the Commissioner must take into
consideration the requirements of specified jobs as well as a claimant's
age, education, and background. Kornock v. Harris, 648 F.2d 525, 526-27
(9th Cir. 1980) (citing 42 U.S.C. § 423 (d)(2)(A); Johnson v.
Harris, 625 F.2d 311, 312 (9th Cir. 1980)).
The record does not reflect due consideration of the evidence presented
concerning Plaintiff's Koch pouch. Evidence was presented regarding the
number of times and length of time that Plaintiff would need to evacuate
his pouch. However, the ALJ focused on the lack of evidence of treatment
for diarrhea. The ALJ did not consider whether Plaintiff required
numerous lengthy trips to the restroom in the absence of an episode of
diarrhea. The ALJ did not present this to the vocational expert.
Hypothetical questions posed to a vocational expert must fairly reflect
the impairments and capabilities of the claimant, taking into
consideration all the claimant's impairments, limitations, and
restrictions. Russell v. Sullivan, 930 F.2d 1443 (9th Cir. 1991). While
the ALJ's inquiry to the vocational expert contained some of Plaintiff's
limitations, she did not discuss
Plaintiff's Koch pouch-related limitations with the expert.
There exists a considerable question in the Court's mind whether, given
Plaintiff's particular limitations regarding the number of times he must
evacuate his pouch, jobs are present in significant numbers in the
national economy that Plaintiff could fulfill. The Court finds the record
ambiguous on this point, and concludes that remand is appropriate. On
remand, the ALJ shall make a determination as to the precise nature of
Plaintiff's limitations regarding his Koch pouch. Such limitations shall
include the required frequency and duration of Plaintiff's pouch
evacuations under normal conditions. After considering all of the
evidence and making such determination, the ALJ shall include the precise
nature of Plaintiff's these Koch pouch-related limitations in the
examination of the vocational expert. The ALJ shall then consider whether
a person with Plaintiff's exact limitations should be considered "not
The ALJ's findings that Plaintiff retained the residual capacity to
perform light work and that such work existed "in significant numbers in
the national economy are not supported by substantial evidence.
Accordingly, Plaintiff's appeal on the grounds that the ALJ's decision is
not supported by substantial evidence and that the ALJ improperly
assessed the medical evidence is DENIED.
The ALJ's findings are not supported by substantial evidence.
Accordingly, for the reasons set forth above, it is hereby ORDERED that:
(1) Plaintiff's Motion for Summary Judgment, or in the
Alternative for Remand is GRANTED IN PART and DENIED
(2) Defendant's Motion for Summary Judgment is
IT IS SO ORDERED.