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PUGH v. BARNHART

April 26, 2004.

BOBBY J. PUGH, Plaintiff,
v.
JO ANNE B BARNHART, Commissioner of Social Security Defendant



The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS CROSS-MOTION FOR SUMMARY JUDGMENT
Plaintiff Bobby J. Pugh ("Pugh") brings this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") that he is not disabled and thus not entitled to disability benefits under Title II of the Social Security Act. Before the Court are Pugh's motion for summary judgment and the Commissioner's cross-motion for summary judgment. Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having considered the papers filed in support of and in opposition to the motions, the Court rules as follows.

BACKGROUND

  On December 29, 1994, Pugh, who was then 46 years old, filed an application for disability benefits. (See Certified Transcript of Administrative Proceedings ("Tr.") at 138-40.) Pugh alleged disability as a result of whiplash injuries to his head and neck. (See Tr. at 170.) After Pugh's application was denied initially and on reconsideration by the Social Security Administration ("SSA"), Pugh requested a hearing before an Administrative Law Judge ("ALT). (See Tr. at 152-64.)

  On August 21, 1996, ALJ Elizabeth Price conducted a hearing, at which time Pugh was not represented by counsel, and, on October 4, 1996, issued a decision denying Pugh's application. (See Tr. 323-35.) On November 23, 1996, Pugh filed a request for review. (See Tr. at 339.) On March 2, 1998, the Appeals Council vacated the decision and remanded the case for further proceedings, on the ground that, inter alia, there were "inconsistencies in the ALJ's decision." (See Tr. at 343-46.)

  On October 7, 1998, ALJ Price conducted a second hearing, at which time Pugh was again unrepresented, (see Tr. at 443), and on October 29, 1998, ALJ Price rendered a second unfavorable decision (see Tr. at 452-66). On December 28, 1998, Pugh filed a request for review of the second decision by the ALJ. (See Tr. at 476.) On March 25, 2000 the Appeals Council granted review and, to avoid the appearance of impropriety, vacated the ALJ's second decision based on circumstances concerning the ALJ unrelated to the particular merits of Pugh's claim, and found Pugh was entitled to a hearing de novo before a different ALJ. (See Tr. at 479-81.)

  A third hearing was scheduled for May 21, 2001, before ALJ John J. Flanagan. (See Tr. at 490-95.) On May 25, 2001, ALJ Flanagan issued an Order of Dismissal because Pugh did not appear at the scheduled hearing. (See Tr. at 496-99.) On June 19, 2001. Pugh filed with the Appeals Council a request for review, alleging that he "did not get any dismissal letter." (See Tr. at 502.) On August 14, 2001, the Appeals Council vacated the Order of Dismissal and directed the ALJ to give Pugh "another opportunity for a hearing." (See Tr. at 504-06.)

  On April 1, 2002, an administrative hearing was held before ALJ Richard D. Wurdeman. (See Tr. at 598-601.) At that hearing, the ALJ took testimony from Pugh, who appeared without counsel, as well as from Pugh's girlfriend and a vocational expert ("VE"). (See Tr. at 12.) Following the hearing, ALJ Wurdeman rendered an unfavorable decision. (See Tr. at 9-19.) In that decision, filed June 28, 2002, the ALJ analyzed Pugh's application under the five-step sequential evaluation process set forth in the Code of Federal Regulations.*fn1 At step one, the ALJ determined that Pugh had not been engaged in substantial gainful activity since his alleged onset date of April 27, 1994. (See Tr. at 18.) At step two, the ALJ found that Pugh had severe impairments, specifically, "chronic neck pain" and "mood disorder." (See id.) At step three, the ALJ determined that Pugh did not have an impairment or combination of impairments that met or medically equaled a listed impairment. (See id.) At step four, the ALJ found that Pugh could not perform his past relevant work as a welder and "heavy duty repairer in the construction industry." (See Tr. at 14, 19.) At step five, the ALJ determined that Pugh has the residual functional capacity for "medium work with no more than rare extension or rotation of the neck, no work involving high mental concentration, and no exposure to heights or dangerous machinery." (id.) Based on the VE's testimony, the ALJ found that Pugh "is able to perform other jobs that exist in significant numbers in the regional and national economies, considering his vocational profile and residual functional capacity." (See id.) Accordingly, the ALJ denied Pugh's application at the fifth step of the sequential evaluation process.

  On August 5, 2002, Pugh filed another request for review. (See Tr. at 7.) On September 4, 2002, the Appeals Council denied review. (See Tr. at 5-6.) Subsequently, Pugh filed the present action for judicial review pursuant to 42 U.S.C. § 405(g). STANDARD OF REVIEW

  The Commissioner's determination to deny disability benefits will not be disturbed if it is supported by substantial evidence and based on the application of correct legal standards. See Mayes v. Massanari, 276 F.3d 453. 459 (9th Cir. 2001) Substantial evidence has been defined as "more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." De la Fuente v. F.D.I.C., 332 F.3d 1208, 1220 (9th Cir. 2003) (internal quotation and citation omitted). The reviewing court must consider the administrative record as a whole and weigh the evidence both supporting and detracting from the ALJ's decision. See Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). If the evidence is susceptible to more than one rational interpretation, the reviewing court will uphold the decision of the ALJ. See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

  DISCUSSION

  In his motion for summary judgment, Pugh seeks an order remanding the action to the Commissioner for further administrative proceedings. (See Pl.'s Mem. at 21:22-24.) Specifically, Pugh argues that the action must be remanded because (1) the ALJ, in concluding that Pugh could perform all of the physical demands of "medium work," failed to give appropriate weight to the opinions of Pugh's treating physician; (2) the ALJ's hypothetical questions posed to the VE were inadequate because the ALJ omitted consideration of Pugh's mental limitations; and (3) Pugh's lack of representation prejudiced the presentation of his claim.

  A. Medical Opinions

  Pugh argues the ALJ erred in concluding that Pugh could perform all of the physical demands of "medium work." The ALJ found that Pugh was capable of performing "medium work," specifically medium work "with no more than rare extension or rotation of the neck, no work involving high mental concentration, and no exposure to heights or dangerous machinery." (See Tr. at 19.) The Code of Federal Regulations and Social Security Ruling 83-10 define "medium work" as "lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." 20 C.F.R. § 404.1567(c); SSR 83-10, 1983 WL 31251 *6. Social Security Ruling 83-10 elaborates that "[b]eing able to do frequent lifting or carrying of objects weighing up to 25 pounds is often more critical than being able to lift up to 50 pounds at a time." See SSR 83-10, 1983 WL 31251 *6. Thus, the ALJ necessarily found that Pugh can frequently lift or carry up to 25 pounds.

  The medical evidence before the ALJ on that point was contradictory. In a report dated January 17, 2002, an examining physician, Nicholas Butowski, M.D. ("Dr. Butowski"), offered the opinion that, inter alia. Pugh "should be able to lift up to 50 pounds occasionally and 25 pounds frequently." (See Tr. at 592.) Pugh's treating physician, D. Dee Filgas, M.D. ("Dr. Filgas"), in a "Comprehensive Medical Evaluation" dated November 18, 1996, provided a conflicting opinion, specifically that "Mr. Pugh should be restricted from lifting and carrying anything weighing over 25 pounds and this only on an occasional basis." (See Tr. at 429.) In his decision, the ALJ, in finding that Pugh could perform medium work, appeared to rely on the opinion of Dr. Butowski, as the only opinion set forth by the ALJ addressing Pugh's lifting ability was that offered ...


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