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September 12, 2004.

THOMAS D. JACKS, Plaintiff,
JOANNE B. BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge


Plaintiff's motion for summary judgment has been granted and this matter has been remanded to the Commissioner for payment of benefits. Judgment is entered accordingly.

  Plaintiff Thomas D. Jacks brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by defendant Commissioner of Social Security Jo Anne B. Barnhart, in which the Commissioner denied plaintiff's claim for disability insurance benefits under Title II of the Social Security Act. Plaintiff moved for summary judgment and defendant filed a cross-motion for summary judgment. This Court reviews the Commissioner's decision to determine whether it is free of reversible error and supported by substantial evidence. Upon review, the Court GRANTS plaintiff's motion for summary judgment, DENIES defendant's cross-motion for summary judgment, and REMANDS for payment of benefits.


  1. Plaintiff's history and medical condition

  Plaintiff Jacks was born on December 15, 1947. Tr. at 115. He has a high school education and has worked as both a telephone line splicer and a road paving operator. Tr. at 17, 55. Secondary to degenerative arthritis of the right hip, he underwent surgical hip replacement in December 1994 by Dr. James M. Talcott, an orthopedic surgeon. Tr. at 40. In 1998, the hip prosthesis may have been damaged in an automobile accident caused by an acute allergic reaction to a bee sting. Tr. at 202-210. Following the hip replacement, he continued to work part time at the paving company until January 1, 2000. Charles Hall, plaintiff's supervisor at the paving operation, testified that after the operation, plaintiff was unable to work more than two to three days per week due to pain, and that his ability to perform some of his prior duties, such as lying down on pavement to maintain equipment, was hindered. Tr. at 63-68. Hall assigned plaintiff to "light duty" tasks such as replacing lights and delivering parts, and stated that the company "didn't force him" to report to work on certain days "because we knew that he was hurting." Tr. at 64, 66.

  After the hip replacement, plaintiff was treated by Dr. Talcott three times. On January 31, 2000, more than five years after the surgery, Dr. Talcott observed muscle wasting in plaintiff's right leg and a leg length discrepancy of three quarters of an inch. Tr. at 231. Dr. Talcott ordered x-rays and diagnosed "painful right hip prosthesis," noting that plaintiff "is no longer able to do the job working for a paving company." Tr. at 231. Plaintiff was treated by Dr. Talcott again on May 2, 2001 in the emergency room of the Queen of the Valley Hospital in Napa, due to an acute onset of shingles in the area of the hip replacement. Tr. at 252. Although Dr. Talcott did not indicate on the examination report that plaintiff reported pain during this visit, an x-ray revealed that the acetabular angle had grown "very steep" and that three of the surgically implanted screws had been sheared off since the January 2000 x-ray. Tr. at 251-252. The x-ray technician noted on the radiology report that the x-ray had been ordered due to pain. Tr. at 251. Dr. Talcott also noted probable reconstruction of the hip in the future. Tr. at 252. 2. Procedural history

  On December 15, 1999, plaintiff filed a claim for disability insurance benefits that was subsequently denied. Pl.'s Mot. for Summ. J. at 1-2. Following plaintiff's request for reconsideration, the Social Security Administration (SSA) notified plaintiff that he was again denied benefits. Id. at 2. At plaintiff's request, a hearing was held before Administrative Law Judge Catherine Lazuran on August 30, 2001. Id. At the close of the hearing, plaintiff's attorney requested that plaintiff be sent to Dr. Talcott for another evaluation in order to clarify Dr. Talcott's opinion as to whether plaintiff's condition limited his ability to "sit, stand, walk and the like." Tr. at 75. ALJ Lazuran agreed, noting Dr. Talcott's May 2001 report made medical findings but did not relate these to plaintiff's vocational abilities. Id.

  Plaintiff was not directed to see Dr. Talcott for another examination, but ALJ Lazuran instead sent Dr. Talcott a "Medical Source Statement of Ability to Do Work-Related Activities (Physical)" (MSS) questionnaire that he returned to the ALJ on October 22, 2001. Tr. at 253-59. On November 29, 2001, ALJ Lazuran issued a decision finding plaintiff not disabled at "Step Four" of the SSA Sequential Evaluation Process. Id. In her decision, she specifically rejected Dr. Talcott's October 2001 MSS. Tr. at 18-20. The Appeals Council declined to review the ALJ's decision. Tr. at 5.*fn1 Plaintiff now seeks judicial review pursuant to 42 U.S.C. § 405(g). LEGAL STANDARD

  The Social Security Act authorizes judicial review of final decisions made by the Commissioner. 42 U.S.C. § 405(g). Here, because the Appeals Council declined review, the decision of the ALJ stands as the final decision of the Commissioner. 20 C.F.R. § 416.1481. The court may enter a judgment affirming, modifying or reversing the decision of the Commissioner, with or without remanding the cause for a rehearing. 42 U.S.C. § 405(g).

  Factual findings of the Commissioner are conclusive if supported by substantial evidence. Id. The court may set aside the Commissioner's final decision when that decision is based on legal error or where the findings of fact are not supported by substantial evidence in the record taken as a whole. See Tackett v. Apfel, 180 F.3d 1094, 1097-98 (9th Cir. 1999). Even if substantial evidence supports the Commissioner's factual findings, the decision must be set aside if improper legal standards were applied in weighing the evidence and reaching the decision. See Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978). Legal error lies if an ALJ rejects a treating physician's uncontradicted opinion without providing "clear and convincing" reasons supported by the record. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Where the ALJ fails to provide adequate reasons for rejecting the opinion of a treating or examining physician, a reviewing court will credit the physician's opinion as a matter of law. See Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir. 1989).


  Plaintiff argues that the ALJ committed legal error in rejecting the October 2001 MSS submitted by Dr. Talcott, which plaintiff contends supported a finding of disability. Because the ALJ did not offer "clear and convincing" reasons for rejecting the report, plaintiff contends that the Court should find him disabled as a matter of law. Pl's. Mot. for Summ. J. at 18. Defendant responds that the ALJ presented specific, legitimate reasons for discounting Dr. Talcott's October 2001 report. Def.'s Mot. for Summ. J. at 4. This Court must decide whether the ALJ committed legal error in rejecting the October 2001 MSS. If so, the Court must also determine: (1) whether the MSS, combined with other evidence in the record, is sufficient for this Court to find plaintiff disabled at "step four" of the SSA ...

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