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PUGH v. BARNHART

United States District Court, N.D. California


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 by Dr. Butowski, (see Tr. at 17),*fn2 and, accordingly, the ALJ necessarily rejected the opinion of Pugh's treating physician. The ALJ, however, failed to set forth any reasons for rejecting the opinion of Dr. Filgas.

  If a treating physician's opinion is contradicted by that of another physician, the Commissioner may not reject the treating physician's opinion without providing "specific and legitimate reasons" supported by substantial evidence in the record. See Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Consistent therewith, Social Security Ruling 96-5p provides that while "treating source opinions on issues that are reserved to the Commissioner are never entitled to controlling weight or significance," these opinions "must never be ignored." SSR 96-5p, 1996 WL 374138 *3.

  Here, as noted, the ALJ failed to set forth any reasons, let alone specific and legitimate reasons, for rejecting the opinion of Pugh's treating physician. Accordingly, the ALJ erred with respect to his finding that Pugh could engage in medium work, and remand is necessary in order that this error may be corrected. See McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (holding where "[t]here may be evidence in the record to which the Secretary can point to provide the requisite specific and legitimate reasons for disregarding the [opinions] of [a] treating physician," the case is properly remanded for further proceedings.)

  B. ALJ's Hypothetical to Vocational Expert

  At the hearing, Robert A. Raschke appeared as a VE at the request of the ALJ. Pugh contends that the ALJ's hypothetical questions to the VE were inadequate because the ALJ omitted consideration of Pugh's mental limitations.

  In order for the testimony of a VE to be considered reliable, the hypothetical posed by the ALJ must include all of the claimant's functional limitations, both physical and mental. See Thomas, 278 F.3d at 956. In that regard, "to constitute substantial evidence, testimony from a VE must be based on a properly phrased hypothetical question," which should precisely set out the claimant's particular physical and mental impairments; however, "the hypothetical need not use specific diagnostic terms, where other descriptive terms adequately describe the claimant's impairments." See Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999).

  Here, the ALJ found that one of Pugh's severe impairments is a "mood disorder," (see Tr. at 17), and that, as a result thereof, Pugh is "moderately limited with regard to maintaining concentration, persistence, and pace," (see Tr. at 18). At the hearing, the ALJ presented the VE with a hypothetical candidate for employment and asked the VE to "assume we have an individual of Mr. Pugh's age, vocational, and educational background and let's say can perform at the medium level but he's precluded from any more . . . than rare extension or rotation of the neck . . . and also he's precluded from any jobs which are deemed high concentration jobs. He should not work at heights or around dangerous machinery." (See Tr. at 127-28.) In response, the VE identified alternate occupations which exist in the regional and national economy that such a person could perform, such as "general assembly." (See Tr. at 128.) As noted, the ALJ relied on the VE's testimony to find Pugh could perform other work.

  Pugh argues that the VE's testimony was not reliable, because the ALJ did not include in the hypothetical all of Pugh's functional limitations, specifically those limitations existing as a result of Pugh's severe impairment of "mood disorder." Although Pugh acknowledges that the ALJ asked the VE to consider jobs that were not "high concentration jobs," (see Tr. at 128), Pugh argues that the term "high concentration" is too vague and ambiguous to describe his mental limitations. The Court disagrees. Pugh's mental impairment does not preclude him from performing jobs involving concentration per se; rather, Pugh is "moderately limited" as to the ability to concentrate. (See Tr. at 18.) In describing the hypothetical applicant as one "precluded" from jobs requiring "high concentration," the ALJ employed a descriptive term in a manner that adequately incorporated Pugh's mental limitation. See Warburton, 188 F.3d at 1050.

  Accordingly, Pugh fails to show the ALJ erred in the manner in which he posed the hypothetical to the VE.*fn3

  C. Lack of Counsel

  As noted, Pugh was not represented by counsel at any of his administrative hearings.*fn4 (See Tr. at 21-134.) Pugh argues that his lack of representation prejudiced the presentation of his claim.

  "Lack of counsel does not affect the validity of the hearing and hence warrant remand, unless the claimant can demonstrate prejudice or unfairness in the administrative proceedings." Vidal v. Harris, 637 F.2d 710, 713 (9th Cir. 1981). Thus, "the issue is not whether the right to representation was knowingly waived, rattier, it is whether, in the absence of representation, the administrative law judge met the heavy burden imposed by [Cox v. Califano, 587 F.2d 988 (9th Cir. 1978).]" Id. at 714. In Cox, the Ninth Circuit held that where a claimant is not represented by counsel, "it is incumbent upon the ALJ to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." Cox, 587 F.2d at 991 (internal quotation and citation omitted). Although an ALJ always has a duty to develop the record, where the claimant is unrepresented, the ALJ "must be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." See id. (internal quotation and citation omitted).

  Here, under the circumstances presented, the ALJ did not take sufficient steps to discharge his "heavy burden" to elicit all relevant facts. See Vidal, 637 F.2d at 714; see also 20 C.F.R. § 404.1512(d) (setting forth SSA's responsibility to "make every reasonable effort" to develop claimant's complete medical history for at least 12 months preceding month in which application filed; defining "reasonable effort" as including making initial requests for "evidence from [claimant's] medical sources"). Had Pugh been represented by counsel, it is highly likely that counsel, at a minimum, would have procured Pugh's updated medical records, and thus addressed the ALJ's observation that the record, while containing extensive medical evidence regarding Pugh's treatment in the years 1993 to 1998, included "very little evidence regarding any current medical treatment." (See Tr. at 17.) For example, Pugh submitted to the SSA a declaration indicating he was treated by several doctors subsequent to the time he filed his June 2001 request for hearing. (See Tr. at 512.)

  In sum, because Pugh was not represented and the ALJ "did not `scrupulously and conscientiously probe into, inquire of and explore for all relevant facts,'" see Vidal, 637 F.2d at 715 (quoting Cox, 587 F.2d at 988), remand for further proceedings is necessary, specifically, for the ALJ to obtain any updated medical records if such records exist.

  D. Remand

  As noted, Pugh seeks remand for further proceedings. "If additional proceedings can remedy defects in the original administrative proceeding, a social security case should be remanded." Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (internal quotation and citation omitted).

  Here, the ALJ did not set forth specific and legitimate reasons for rejecting the opinion of Dr. Filgas regarding Pugh's lifting restrictions and did not fully develop the record. Because these errors can be corrected by additional proceedings, a remand for such purposes is appropriate.

  CONCLUSION

  For the reasons stated:

1. Pugh's motion for summary judgment is hereby GRANTED and defendants cross-motion for summary judgment is DENIED.
2. The matter is hereby REMANDED to the Commissioner for further proceedings consistent with this order.
The Clerk shall close the file.
IT IS SO ORDERED.


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