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.
IT IS SO ORDERED AND ADJUDGED. ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, DENYING
DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT, AND REMANDING FOR
PAYMENT OF BENEFITS
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,
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 ...