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SKINNER v. BARNHART

United States District Court, S.D. California


October 5, 2005.

HOLLIS SKINNER, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: RUBEN BROOKS, Magistrate Judge

REPORT AND RECOMMENDATION RE GRANTING, IN PART, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [DOC. NO. 10] AND DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT [DOC. NO. 17]
Plaintiff Hollis Skinner seeks judicial review of Social Security Commissioner Jo Anne B. Barnhart's determination that he is not entitled to disability benefits. On June 20, 2005, Skinner filed his Motion for Summary Judgment [doc. no. 10] and Memorandum of Points and Authorities in Support of Motion [doc. no. 11], requesting reversal of Administrative Law Judge ("ALJ") Albert Tom's March 28, 2003, finding that he was not disabled. Plaintiff argues that the ALJ erred by improperly relying on the responses of a vocational expert to an incomplete hypothetical question. (Pl.'s Mem. at 11.) Skinner asks the Court to reverse the ALJ's decision or remand the case to a different ALJ for further proceedings. (Id. at 13.) Plaintiff also requests an award of attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C.A. § 2412 (West 1994 & Supp. 2005). (Id.)

On August 22, 2005, the Commissioner filed her cross-motion for summary judgment, arguing that the findings of the ALJ should be affirmed [doc. no. 17].

  I. BACKGROUND

  Plaintiff was sixty-one years old, qualifying as a "person of advanced age," at the time of the ALJ's decision. (Admin. R. at 21); 20 C.F.R. § 404.1563(e) (2003). He is currently sixty-four. (See Admin. R. at 70.) Skinner has a college degree in sociology. (Id. at 137.) He served in the army for three years and has worked in the past as an industrial specialist, corrections officer, corrections case manager, golf ball inspector, and assembly line worker. (Id. at 21, 137-42, 145.) Skinner has not engaged in substantial gainful employment since June 26, 2001, although he was working part-time taking surveys for a marketing company at the time of the administrative hearing. (Id. at 21, 143.)

  Plaintiff filed an application for disability insurance benefits on April 16, 2002, claiming disability based on a back disorder, patellofemoral narrowing in both knees, bilateral upper leg disorder, tinnitus, and hearing loss. (Id. at 54-56, 61.) The claim was denied on May 30, 2002. (Id. at 30.) Skinner filed a request for reconsideration on June 25, 2002, which was denied on October 24, 2002. (Id. at 34-35.) Plaintiff filed a timely request for an administrative hearing on November 5, 2002. (Id. at 39.) Administrative Law Judge ("ALJ") Albert Tom conducted a hearing on February 12, 2003. (Id. at 133.) Skinner was represented at the hearing by attorney David M. Shore. (Id.) John Kilcher, M.A., a vocational expert, testified regarding Plaintiff's ability to work. (Id. at 51, 133.) On March 28, 2003, Judge Tom issued his decision denying Skinner's application for benefits. (Id. at 27.) Plaintiff requested review of the decision on April 30, 2003. (Id. at 11.) The Appeals Council denied the request on October 4, 2004. (Id. at 4.)

  II. MEDICAL EVIDENCE

  The earliest medical evidence in the record is a note dated March 17, 2000. (Id. at 94.) Dr. Chris Guerin, a doctor of internal medicine, wrote that Plaintiff was seen by his office on February 21, 2000, and March 17, 2000, for right knee pain. (Id.) Dr. Guerin referred Skinner to an orthopedic specialist. (Id.) However, there are no records of any orthopedic examination performed prior to May 2002. (See id. at 95.)

  On May 10, 2002, at the request of the Department of Social Services, Dr. Thomas R. Dorsey performed an orthopedic consultation. (Id.) Skinner's chief complaint was lower back pain with bilateral lower extremity pain radiating to his feet. (Id.) He also complained of bilateral knee pain with swelling, clicking, and popping. (Id.) He reported that the pain was worse when bending or lifting, but he used no assistive devices, such as crutches, a cane, or a brace. (Id.) Dr. Dorsey's report also indicated that Plaintiff suffered from hypertension and prostate problems. (Id.) Despite Skinner's complaints of low back pain, the doctor found no evidence of splinting or spasm in Plaintiff's lumbar spine, and he found the range of motion for Skinner's cervical and lumbar spine was normal. (Id. at 96.) Skinner's right knee showed a full range of motion, with crepitus (crackling sound), diffuse tenderness, and bony swelling medially. (Id.); Stedman's Medical Dictionary 409 (Marjory Spraycar et al. eds., 26th ed. 1995). Plaintiff's left knee showed a full range of motion, with crepitus and diffuse tenderness but no swelling. (Admin. R. at 97.) X-rays showed slightly decreased medial joint space with moderate patellofemoral narrowing and osteophyte (bony outgrowth) formation on the patella in both knees. (Id. at 97-98); Stedman's Medical Dictionary, supra, at 1270. An x-ray of Skinner's lumbar spine showed a markedly decreased L4-L5 disc space. (Admin. R. at 98.) Dr. Dorsey diagnosed Plaintiff with moderate degenerative joint disease in both knees and mild degenerative disc disease of the lumbar spine. (Id.) He opined that with these impairments Skinner could lift, carry, push, or pull twenty pounds occasionally and ten pounds frequently, stand and walk for four hours out of an eight-hour workday, and occasionally stoop and crouch. (Id.)

  On May 23, 2002, medical consultant Dr. G.E. Tiedeman completed a Physical Residual Functional Capacity Assessment. (Id. at 101-08.) The assessment was based on a primary diagnosis of degenerative joint disease of the knees and a secondary diagnosis of degenerative disc disease of the lumbar spine. (Id. at 101); Neil M. Davis, Medical Abbreviations: 10,000 Conveniences at the Expense of Communications and Safety 63, 66 (7th ed. 1995). Dr. Tiedeman concluded that Plaintiff could lift and/or carry twenty pounds occasionally and ten pounds frequently, stand and walk for four hours, and sit for six hours in an eight-hour workday. (Admin. R. at 102, 108.) He also concluded that Skinner had occasional postural limitations for climbing, balancing, stooping, kneeling, crouching, and crawling. (Id. at 103.) Plaintiff had no other limitations. (Id. at 104-05.)

  Dr. Tiedeman stated that Skinner's allegations regarding the nature and severity of his symptoms were partially credible and supported by medical evidence, but Plaintiff's contentions regarding the severity of his related functional restrictions were not supported by the record. (Id. at 106.) The doctor stated that a hearing impairment could be ruled out because Skinner was able to converse over the phone. (Id. at 108.) Dr. Joseph Hartman reviewed and affirmed Dr. Tiedeman's assessment on October 24, 2002. (Id. at 108-09.)

  On May 24, 2002, Plaintiff was seen by Dr. Osvaldo Lopez at the VA (Veteran's Administration) Medical Center for a comprehensive exam. (Id. at 129-32.) Skinner reported knee pain and swelling. (Id. at 131.) He denied suffering other problems, including ear pain or discharge, tinnitus, decreased hearing, and back pain. (Id.. at 131-32.) Plaintiff's physical examination was within normal limits. (Id. at 130-31.) He was prescribed ibuprofen (for osteoarthritis), Zantac (for gastroesophageal reflux disease), Viagra (for sexual dysfunction), and a trial of prazosin (for hypertension). (Id. at 130); see Medical Abbreviations, supra, at 91, 153; WebMD Health: Drugs and Herbs, Prazosin HCI Oral, at http://my.webmd.com/drugs/drug-8695-Prazosinᰭ Oral.aspx?. Dr. Lopez also ordered x-rays of Skinner's knees, physical therapy, lab tests, and a sigmoidoscopy (internal examination of the colon). (Admin. R. at 129-30); Medical Abbreviations, supra, at 216; Stedman's Medical Dictionary, supra, at 1614.

  Plaintiff had a physical therapy consultation with Florence Freeland on July 8, 2002. (Admin. R. at 123-26.) Skinner reported a pain level in his knees of five to seven out of ten and stated that his knee pain began in 1963 as the result of an injury suffered while serving in the military. (Id. at 124, 126.) He also reported aching and stiffness in his left knee upon waking in the morning, and the pain sometimes kept him awake at night. (Id. at 124.) Plaintiff stated that sitting or standing for longer than one hour bothered him, and if he stood for too long, his knees would buckle. (Id. at 125.) However, Skinner climbs the thirteen steps in his two-story home and walks nearly one-quarter mile each day without an assistive device. (Id. at 124-25.) Freeland concluded that Plaintiff suffered from osteoarthritis of the medial and patellofemoral joint spaces. (Id. at 124.) His rehabilitation potential was good, and she started him on stretching exercises. (Id. at 123-24.)

  Skinner attended physical therapy again on July 15, 2002. (Id. at 122.) Freeland recommended knee exercises and suggested that Plaintiff elevate the left knee and apply ice when at home to reduce the swelling. (Id.) Skinner did not attend any more physical therapy sessions. (See id.)

  Plaintiff saw Dr. Lopez for a focused appointment on September 10, 2002. (Id. at 122-23.) Dr. Lopez reviewed x-rays of Skinner's knees taken on May 28, 2002, which showed mild osteoarthritis of the medial and patellofemoral joint spaces. (Id. at 110, 122.) Dr. Lopez added Zostrix to Plaintiff's medications to treat the osteoarthritis and increased his Prazosin to twice per day. (Id. at 121.)

  Skinner saw Dr. Lopez again on October 25, 2002. (Id. at 120.) Plaintiff reported knee pain from behind with knee effusion (escape of fluid from blood vessels into tissues or a cavity). (Id.); Stedman's Medical Dictionary, supra, at 547. He also complained of a pain level of eight out of ten. (Admin. R. at 120.) Dr. Lopez recommended Zostrix and physical therapy for Skinner's osteoarthritis. (Id. at 118.)

  At a follow-up appointment on November 20, 2002, Dr. Brent Greenberg noted that Plaintiff had been through two physical therapy sessions and had taken high dose ibuprofen without improvement. (Id.) The pain in Skinner's knees was worse with ambulation, and it was difficult for him to stand from a sitting position. (Id.) However, Plaintiff's knees had no swelling, effusion, locking, or instability. (Id.) McMurray and Lachman tests were negative, indicating there were no injuries to the meniscal structres or deficiency of the anterior cruciate ligament. (Id.); Stedman's Medical Dictionary, supra, at 1780. Dr. Greenberg gave Plaintiff an orthopedic referral for steroid injections. (Admin. R. at 118.)

  On February 11, 2003, Skinner saw Dr. Mongeon at Shadowridge Medical Center for x-rays and lab tests. (Id. at 116-17.) He was diagnosed with osteoarthritis in his knees, the left knee worse than the right, type II diabetes, and hypertension. (Id.) He was told to walk for exercise, lose thirty pounds, and follow a diabetic diet. (Id.)

  III. THE ADMINISTRATIVE HEARING

  A. Plaintiff's Testimony

  Plaintiff testified at the administrative hearing on February 12, 2003. (Id. at 136-75.) He stated that his highest level of education was a college degree in sociology. (Id. at 137.) He received retirement income from a government job he held for thirty-two years until retiring in 1994. (Id.)

  Plaintiff was employed at the time of the administrative hearing by Edimoll, a marketing research firm. (Id. at 143, 171.) He worked at a shopping mall asking people if they would participate in market research surveys. (Id.) Skinner had held this job for a little over two months, and he worked three or four days per week for two to eight hours each day. (Id. at 143-44, 171.) This job required Plaintiff to stand on his feet the entire shift and direct people to a nearby office to complete surveys. (Id. at 143, 171-72.)

  Prior to that job, in November 2002, Skinner worked for Sony through a temporary employment agency doing assembly-line material handling. (Id. at 172-73.) Plaintiff moved and loaded palettes of computers and television screens. (Id. at 145, 173.) His shifts were twelve hours long, and he worked three to four days per week. (Id. at 174.) Skinner testified that this job required him to lift fifty pounds regularly and remain on his feet for the entire twelve hour shift. (Id. at 173-74.) When asked how he managed to stand and walk for twelve hours in a day with his knee problems, Skinner stated that he tried to manage the pain with ibuprofen and resting during breaks, but his legs still felt like they were "locking." (Id. at 174-75.)

  From March to June of 2001, Plaintiff worked in the golf ball inspection department of Callaway Golf. (Id. at 137-38.) After the golf balls were manufactured, they were placed in large drums, and Skinner's job was to move the drums to an inspection area. (Id. at 138.) He did this by placing the full drums on a palette and pulling the palette to the inspection area, where he would remove the drum and put the balls into a machine for inspection. (Id. at 138, 153-55.) The full drums weighed over 3,000 pounds. (Id. at 138.) Plaintiff did not lift the 3,000-pound drums, but he would sometimes have to lift mostly empty drums weighing approximately 200 pounds. (Id.) Skinner stated that while working at Callaway Golf his knees were swollen and strained, but not to a degree that would keep him from working. (Id. at 170.)

  Prior to his job as a golf ball inspector, Skinner worked from June 1998 to August 2000 as a corrections officer in a federal prison. (Id. at 139.) As a corrections officer, Plaintiff was on his feet a majority of the time, walking around the yards and the buildings to check on the prisoners. (Id.) Skinner testified that he was on his feet for eighty-five percent of his shift. (Id.) The job also required occasional lifting of equipment weighing twenty-five to 100 pounds. (Id.)

  Skinner worked as a corrections case manager from April 1997 to June 1998. (Id. at 140.) As a case manager, Plaintiff handled all paperwork for approximately 125 inmates. (Id.) Skinner spent half of his time doing desk work and the other half on his feet walking around the facility. (Id.) Only light lifting of files was required. (Id.)

  From 1966 to 1994, Plaintiff worked as an industrial specialist, first for the Department of the Army and then for Defense Management Services. (Id. at 141, 161.) In this capacity, Skinner evaluated contractors who had existing government contracts or were bidding for contracts. (Id. at 141.) Plaintiff conducted precontract surveys to determine whether contractors had the technical and production capabilities to perform the contracts. (Id. at 62, 141-42.) Skinner testified that as an industrial specialist he spent two to three hours per day in an office doing desk work and the remaining five to six hours in the field interviewing people and inspecting facilities. (Id. at 141, 163-64.) The job involved some occasional lifting. (Id. at 142-43, 165-66.)

  Plaintiff testified that he is unable to work because he has problems with his knees; his left is worse than the right. (Id. at 144.) He stated that both knees are swollen, and he has difficulty walking up and down stairs and standing up from a sitting position. (Id.) Skinner also has difficulty standing for more than fifteen to twenty minutes and sitting for more than thirty minutes at a time. (Id. at 146.) He spends a lot of time lying down because the pain in his knees is so severe. (Id.) The pain also affects Plaintiff's ability to focus and concentrate. (Id.)

  Skinner testified he was diagnosed with osteoarthritis. (Id. at 167-68.) He first took ibuprofen as prescribed by the VA doctors but switched to Tylenol on the advice of his private physician, Dr. Mongeon. (Id. at 147, 166, 168.) Dr. Mongeon also planned to inject Cortisone into Plaintiff's knees. (Id. at 148.) Skinner's VA doctor recommended physical therapy, but Dr. Mongeon did not agree that physical therapy would be beneficial. (Id. at 148, 167.)

  In addition to knee problems, Plaintiff testified that he suffers from back and prostate problems. (Id. at 148.) He has pain in his lower back and difficulty bending over. (Id. at 169-70.) The prostate problem affects Skinner's ability to work because it causes pain and a need to urinate once every hour and a half. (Id. at 148.) Plaintiff also reported taking Ranitidine for gastroesophageal reflux disease. (Id. at 168.)

  Skinner stated that he is able to do minor housework such as vacuuming, washing dishes, and shopping for groceries. (Id. at 149, 151.) While doing household activities, Plaintiff has to lie down with his knees propped up two or three times a day, for a couple of hours each time. (Id. at 149-50.) Skinner also picks up his granddaughter from school. (Id. at 149.) He is able to drive for short periods of time, but he cannot drive for over an hour due to the pain in his knees. (Id.) Plaintiff stated that he attends church once a month and is able to sit through the service without difficulty because it only lasts an hour. (Id. at 151.)

  B. The Vocational Expert's Testimony

  The ALJ heard testimony from John Kilcher, a vocational expert. (Id. at 175-85.) Kilcher characterized the skill level and exertional demands of Skinner's past work as follows: (1) Plaintiff's job as a golf ball inspector is classified at the light exertional level, although Skinner performed it at the very heavy level, and it is semiskilled; (2) his job as a corrections officer is classified as requiring medium exertion and is semiskilled; (3) his job as an industrial specialist is classified as light and skilled; and (4) his job as a case manager is classified as sedentary, although he performed it at the light level, and it is skilled. (Id. at 176.)

  Judge Tom posed a series of hypothetical questions to Kilcher to determine what types of jobs would be available to Skinner given his limitations. (See id. at 177-79, 182-85.) The first hypothetical was based on Plaintiff's description of his impairments. (Id. at 177-78.) The ALJ asked Kilcher if a sixty-one or sixty-two year old man could perform the type of work previously described if he had knee problems, back problems and prostate disease, could lift twenty pounds, and could do a combination of sitting, standing, and walking for a total of two hours in an eight-hour workday. (Id.) Kilcher stated that, under those circumstances, the man could not perform any work. (Id. at 178.)

  The second hypothetical was based on Dr. Dorsey's evaluation of Skinner. (Id. at 178; see also id. at 98.) Judge Tom asked Kilcher if a man could do the past work described if he could lift ten pounds frequently and twenty pounds occasionally, stand and walk four hours out of an eight-hour workday, with no restriction on sitting. (Id. at 178.) Kilcher testified that, under those circumstances, Plaintiff's past work as a case manager would be available. (Id.)

  In the third hypothetical, the ALJ asked Kilcher if a man could perform the past work described if he could lift and carry ten pounds frequently and twenty pounds occasionally, stand and walk at least two hours in an eight-hour workday, and sit six hours out of an eight-hour day. (Id. at 178-79; see also id. at 102.) Kilcher stated that, under those conditions, Skinner could only perform the job of case manager. (Id. at 179.) Kilcher also testified that the case manager job skills are not transferable to another job because the work is industry-specific. (Id.)

  Skinner's attorney, David Shore, asked Kilcher some follow-up questions on the hypotheticals posed by Judge Tom. (Id. at 179-83.) Shore asked whether, under the second hypothetical, the case manager job could be performed the way it was described by Plaintiff (as light) or only as it is described in the Dictionary of Occupational Titles ("DOT") (as sedentary). (Id. at 179-80.) Kilcher stated that under the hypothetical, the job would not be available as Skinner described it, but only as it was listed in the DOT. (Id. at 179, 182.)

  Shore then posed another hypothetical, in which knee pain caused a loss of concentration, focus, and pace up to one-third of the time, and required one to take breaks to stretch the knees. (Id. at 182.) Kilcher stated that, under those circumstances, a person could not perform work as a case manager. (Id. at 182-83.) Shore asked Kilcher if one would be precluded from employment if he had to take two or three breaks of two hours each during the day to lie down. (Id. at 183.) Kilcher testified that situation would preclude all employment. (Id.)

  IV. THE ALJ'S DECISION

  In his decision, the ALJ recounted Plaintiff's medical, work, and educational history, as well as the evidence presented at the administrative hearing. (Id. at 21-24.) He then made the following findings:

1. The claimant met the disability insured status requirements of the Act on June 26, 2001, the date the claimant stated he became unable to work, and continues to meet them through December 31, 2006.
2. The claimant has not engaged in substantial gainful activity since June 26, 2001.
3. The medical evidence establishes that the claimant has "severe" osteoarthritis of the knees bilaterally, worse on the left than on the right, and mild lumbar degenerative disc disease, but that he does not have an impairment or combination of impairments listed in or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's allegations of debilitating pain and dysfunction are not fully credible, for the reasons set forth in the body of the decision.
5. The claimant has the residual functional capacity to perform work-related activities except for work involving lifting and carrying no more than 10 pounds frequently and 20 pounds occasionally and standing/walking for no more than 4 hours in an 8-hour workday (20 CFR § 404.1545).
6. The claimant's past relevant work as a corrections case manager did not require the performance of work-related activities precluded by the above limitation(s) (20 CFR § 404.1565).
7. The claimant's impairments do not prevent the claimant from performing his past relevant work as a corrections case manager, as this job is generally done in the national economy. This finding is supported by vocational expert testimony.
8. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of the decision (20 CFR § 404.1520 [e]).
(Id. at 26.) Based on all of the above, the ALJ concluded that Skinner is not entitled to a period of disability or Disability Insurance Benefits. (Id. at 27.) V. STANDARD OF REVIEW

  To qualify for disability benefits under the Social Security Act, an applicant must show that: (1) He or she suffers from a medically determinable impairment that can be expected to last for a continuous period of twelve months or more or result in death, and (2) the impairment renders the applicant incapable of performing the work that he or she previously performed or any other substantially gainful employment that exists in the national economy. See 42 U.S.C.A. § 423(d)(1)(A), (2)(A) (West Supp. 2005). An applicant must meet both requirements to be classified as "disabled." Id.

  Sections 205(g) and 1631(c)(3) of the Social Security Act allow unsuccessful applicants to seek judicial review of the Commissioner's final agency decision. 42 U.S.C.A. §§ 405(g), 1383(c)(3) (West Supp. 2005). This Court should affirm the Commissioner's decision "if it is supported by substantial evidence and if the Commissioner applied the correct legal standards." Howard ex. rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003) (citing Paqter v. Massanari, 250 F.3d 1255, 1258 (9th Cir. 2001)).

  Substantial evidence is what "`a reasonable person might accept as adequate to support [the ALJ's] conclusion,'" considering the record as a whole. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (quoting Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). It means "`more than a scintilla but less than a preponderance'" of the evidence. Id. (quoting Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). The Court considers the record as a whole, including the evidence that supports and the evidence that detracts from the ALJ's decision. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (citing Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997); Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir. 1990)).

  To determine whether a claimant is "disabled," the Social Security regulations use a five-step process outlined in 20 C.F.R. § 404.1520. If an applicant is found to be "disabled" or "not disabled" at any step, there is no need to proceed further. Schneider v. Comm'r of Soc. Sec. Admin., 223 F.3d 968, 974 (9th Cir. 2000) (citing 20 C.F.R. § 416.920 (1991); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). Although the ALJ must assist the applicant in developing the record, the applicant bears the burden of proof during the first four steps. Tackett v. Apfel, 180 F.3d 1094, 1098 & n. 3 (9th Cir. 1999). If the fifth step is reached, however, the burden shifts to the Commissioner. Id. at 1098. The steps for evaluating a claim are:

Step 1. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is "not disabled" within the meaning of the Social Security Act and is not entitled to disability insurance benefits. If the claimant is not working in a substantially gainful activity, then the claimant's case cannot be resolved at step one and the evaluation proceeds to step two.
Step 2. Is the claimant's impairment severe? If not, then the claimant is "not disabled" and is not entitled to disability insurance benefits. If the claimant's impairment is severe, then the claimant's case cannot be resolved at step two and the evaluation proceeds to step three.
Step 3. Does the impairment "meet or equal" one of a list of specific impairments described in the regulations? If so, the claimant is "disabled" and therefore entitled to disability insurance benefits. If the claimant's impairment neither meets nor equals one of the impairments listed in the regulations, then the claimant's case cannot be resolved at step three and the evaluation proceeds to step four. Step 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is "not disabled" and is not entitled to disability insurance benefits. If the claimant cannot do any work he or she did in the past, then the claimant's case cannot be resolved at step four and the evaluation proceeds to the fifth and final step.
Step 5. Is the claimant able to do any other work? If not, then the claimant is "disabled" and therefore entitled to disability insurance benefits. If the claimant is able to do other work, then the Commissioner must establish that there are a significant number of jobs in the national economy that claimant can do. There are two ways for the Commissioner to meet the burden of showing that there is other work in "significant numbers" in the national economy that claimant can do: (1) by the testimony of a vocational expert, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. If the Commissioner meets this burden, the claimant is "not disabled" and therefore not entitled to disability insurance benefits. If the Commissioner cannot meet this burden, then the claimant is "disabled" and therefore entitled to disability benefits.
Id. at 1098-99 (footnotes and citations omitted).

  Section 405(g) permits this Court to enter a judgment affirming, modifying, or reversing the Commissioner's decision. 42 U.S.C. § 405(g). The matter may also be remanded to the Social Security Administrator for further proceedings. Id.

  VI. DISCUSSION

  A. The ALJ's Hypotheticals to the Vocational Expert Included All Limitations Supported by Substantial Evidence.

  Plaintiff claims the ALJ erred by improperly relying on the testimony of the vocational expert in response to an incomplete hypothetical. (Pl.'s Mem. at 11.) He asserts that the ALJ did not consider Skinner's constant knee pain, which affects his ability to focus and concentrate. (Id. at 13.)

  The ALJ posed three hypotheticals to the vocational expert. (Admin. R. at 176-79.) When claimant's attorney examined the expert, he modified the ALJ's hypothetical to include an assumed inability to concentrate and focus because of pain. (Id. at 182.) With this added assumption, the expert testified that Skinner could not perform his past work. (Id. at 182-83.) However, other than Plaintiff's testimony (id. at 146-47), there is no evidence, medical or otherwise, of an inability to focus or concentrate. (See id. at 72, 80, 108, 128, 130.)

  "Hypothetical questions to vocational experts ordinarily must include all limitations supported by medical evidence in the record." Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir. 2002); see also Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). If a hypothetical does not include all of the plaintiff's limitations, the vocational "`expert's testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy.'" Matthews, 10 F.3d at 681 (quoting DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991) (citations omitted)). However, the ALJ does not have to include limitations in a hypothetical question if the limitations are based on the claimant's subjective complaints, and the ALJ has specific and legitimate reasons supported by substantial evidence for disbelieving the claimant's complaints regarding those limitations. Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988) (citing Varney v. Sec'y of Health and Human Servs., 846 F.2d 581, 585 (9th Cir. 1988)); see also Lewis v. Barnhart, No. C-99-0895 MMC, 2003 WL 22682487, at *4 (N.D. Cal. Nov. 7, 2003).

  Subjective complaints of pain will not establish disability unless the claimant has a medically determinable impairment that could reasonably be expected to produce pain. Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995); Titles II and XVI: Evaluation of Symptoms in Disability Claims, 61 Fed. Reg. 34,483, 34,484 (S.S.R. 96-7p, July 2, 1996). Once the underlying impairment is established, the ALJ must evaluate "the intensity, persistence, and functionally limiting effects of the symptoms . . . to determine the extent to which the symptoms affect the individual's ability to do basic work activities." Titles II and XVI: Evaluation of Symptoms in Disability Claims, 61 Fed. Reg. at 34,484.

  When a claimant's statements about the intensity, persistence, or functional limitations of pain are not supported by objective medical evidence, the ALJ must examine the record as a whole to determine whether the claimant's statements are credible. Id.; Johnson, 60 F.3d at 1433. When rejecting a claimant's subjective pain testimony, the ALJ must make "specific findings justifying that decision." Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989) (citing Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989); Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir. 1989)); see also Matthews, 10 F.3d at 679.

  If Skinner presented objective medical evidence of an impairment that could reasonably be expected to cause the claimed pain or symptoms, the ALJ would be required to "`make specific findings stating clear and convincing reasons'" justifying his decision to reject Plaintiff's subjective symptom testimony. See Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004) (quoting Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)). Plaintiff presented objective medical evidence of degenerative joint disease and osteoarthritis in both knees. (See Admin. R. at 98, 117, 121, 122, 124, 130.) Common symptoms of osteoarthritis are "[J]oint aching and soreness, especially with movement" and "[p]ain after overuse or after long periods of inactivity." Arthritis: Osteoarthritis Basics, at http://my. webmd.com/content/article/78/95594.htm.

  At the administrative hearing, Skinner testified that his knee pain affected his ability to focus or concentrate. (Admin. R. at 146.) Plaintiff's medical condition could reasonably be expected to produce pain in his knees, and that pain could reasonably be expected to affect his ability to focus and concentrate. However, other than Plaintiff's testimony, there is no evidence in the record to support Skinner's hypothetical that Plaintiff cannot focus or concentrate one-third of the time. (See id. at 182.) The Court must determine whether the ALJ made specific findings and stated clear and convincing reasons supporting his rejection of Plaintiff's testimony.

  Judge Tom outlined a number of reasons for rejecting as not fully credible Skinner's "allegations of debilitating pain[,]" including reports that Plaintiff "is in constant back and knee pain . . . [and] must lie down for about 6 hours during the day." (Id. at 24.) Regarding Skinner's claims of disabling knee pain, the ALJ first stated that x-rays taken of Plaintiff's knees showed only mild osteoarthritis. (Id.) However, even mild arthritis can cause some degree of pain, and an ALJ may not require objective medical evidence of the severity of the pain alleged. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (quoting Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (citations omitted)).

  Judge Tom noted that Skinner's gait is normal, and he has no neurologic deficits. (Admin. R. at 24.) Also, Plaintiff has no swelling, effusion, locking, or instability of his knees, as evidenced by Dr. Greenberg's notes from his November 20, 2002 appointment with Skinner. (Id. at 24, 118.) However, these findings are contradicted elsewhere in the record. On July 8, 2002, Plaintiff's physical therapist, Florence Freeland, noted that Skinner's knees buckle when he stands for long periods of time. (Id. at 125.) Freeland also stated that one of Plaintiff's goals for physical therapy was to reduce swelling in his knee. (Id. at 124.) Skinner's knee was still swollen when he saw Freeland again on July 15, 2002. (Id. at 122.) However, after two visits, Skinner did not return for additional physical therapy and was discharged. (Id.) On October 25, 2002, Plaintiff complained to Dr. Lopez of knee effusion. (Id. at 120.) Dr. Mongeon also found knee effusion on February 11, 2003. (Id. at 117.) At the administrative hearing, Skinner testified that while working twelve-hour shifts at Sony his knees would lock up. (Id. at 144, 174.)

  Dr. Greenberg's notes, on which the ALJ relied to find that Plaintiff has no swelling, effusion, locking, or instability in his knees, are contradicted by other evidence in the record. Thus, this is not a clear and convincing reason for rejecting Skinner's subjective pain testimony.

  The ALJ stated that Skinner "has required minimal, conservative treatment for his impairments." (Id. at 24.) "When the claimant saw Dr. Dorsey on May 10, 2002, he was not taking any medications, even though he alleges an onset date of June 26, 2001." (Id.) Dr. Greenberg did give Plaintiff an orthopedic referral for steroid injections. (Id. at 118.) However, there is nothing in the record which suggests that Skinner sought this treatment. Even when Plaintiff began taking medication, he did not take any strong narcotic pain medications; instead, Dr. Lopez prescribed ibuprofen, and at the time of the hearing Skinner was taking Tylenol. (Id. at 130, 147.) Judge Tom also remarked that no surgery was ever recommended, and no doctor prescribed the use of a cane, brace, or other assistive device, although the physical therapist noted that she talked to Skinner about his limp and he refused the assistance of a cane. (Id. at 24, 124.)

  "Plaintiff's relatively limited and recent use of non-narcotic medications . . . [is a] valid factor[] supporting the ALJ's excess pain evaluation." Ruiz v. Apfel, 24 F. Supp. 2d 1045, 1049 (C.D. Cal. 1998) (citing Matthews, 10 F.3d at 679-80; Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986)). When a physician fails to prescribe more potent, narcotic pain relievers, it can be presumed that the patient's symptoms did not require them. Id. Also, prescription of "conservative treatment" rather than more severe measures (such as surgery) suggests a lower level of pain and functional limitation. Johnson, 60 F.3d at 1434. These are clear and convincing reasons for disregarding Skinner's subjective pain testimony.

  Judge Tom disregarded Plaintiff's excess pain complaints because Skinner failed to follow a prescribed course of treatment — physical therapy. (See Admin. R. at 24-25.) "[A]n unexplained, or inadequately explained, failure to . . . follow a prescribed course of treatment" can be used to cast doubt on the credibility of a plaintiff's pain allegations. Fair, 885 F.2d at 603. Dr. Lopez prescribed physical therapy to increase strength and decrease pain in Plaintiff's knees. (Admin. R. at 126, 130.) Skinner stopped attending physical therapy after two sessions, even though the physical therapist believed he had a good potential for rehabilitation. (Id. at 124.) Likewise, Plaintiff did not pursue getting steroid injections, recommended by Dr. Greenberg. (Id. at 118.)

  The ALJ found Plaintiff's allegations regarding the severity of his knee pain were not entirely credible. Skinner disregarded the course of treatment prescribed by Dr. Lopez, a doctor of internal medicine, to follow the advice of Dr. Mongeon, a general practitioner whom Plaintiff saw only once. (Id. at 24-25.) The ALJ stated:

[A]lthough the claimant testified that his private or primary treating doctor is Dr. Munger [sic] and that Dr. Munger [sic] did not feel physical therapy would help him, which is why he does not go, the claimant only saw Dr. Munger [sic] once, on February 11, 2003. Moreover, Dr. Munger [sic] is a general practitioner, and not an orthopedist.
(Id.) Furthermore, Skinner saw Dr. Mongeon on February 11, 2003, almost seven months after Plaintiff's only two physical therapy visits on July 8 and 15, 2002. (Id. at 122-25, 117.)

  The length of the treatment relationship is a factor to be considered in deciding how much weight to give the opinions of treating doctors. See 20 C.F.R. § 404.1527(d)(2)(I) (2004) (stating that more weight will be given to the opinions of doctors with longer treatment relationships). The record here is inadequate to determine how long Dr. Mongeon treated Plaintiff. Although Skinner's medical records only contain notes from one appointment with Dr. Mongeon (on the day before the administrative hearing), Plaintiff testified that he had been seeing the doctor for a year and a half. (Admin. R. at 117, 167.) However, when seen by Dr. Lopez for the first time on May 24, 2002, Skinner reported that his last doctor's appointment had been with Dr. Guerin, not Dr. Mongeon. (Id. at 132.) The only record from Dr. Guerin is dated March 17, 2000. (Id. at 94.) Thus, the medical records do not support Plaintiff's testimony that he had been seeing Dr. Mongeon before he sought treatment from Dr. Lopez, less than nine months before the hearing.

  Although Judge Tom was correct in stating that Dr. Mongeon is a general practitioner rather than a specialist, there is no evidence that Dr. Lopez is an orthopedic specialist. Dr. Lopez is a doctor of internal medicine, but the records do not indicate his specialty. (See id. at 129.) An ALJ may give more weight to the opinion of a specialist over the opinion of a nonspecialist. 20 C.F.R. § 404.1527(d)(5). However, there is not enough evidence in the record to justify Judge Tom's decision to give less weight to the opinion of Dr. Mongeon, because there is no evidence that Dr. Lopez is an orthopedic specialist. Therefore, Plaintiff's failure to follow Dr. Lopez's prescription for physical therapy is not a clear and convincing reason for Judge Tom to disregard Skinner's subjective symptom testimony.

  Additionally, the ALJ stated that Skinner did not tell any of his doctors that he needed to lie down six hours each day, and none of the doctors indicated that Skinner needed to rest that amount of time. (Id. at 25.) To the contrary, Dr. Dorsey opined on May 10, 2002, that Plaintiff could stand and walk for four hours out of an eight-hour day. (Id. at 98.) Even Skinner was inconsistent about the need to rest. In his April 29, 2002, Exertional Daily Activities Questionnaire, Skinner wrote that he must rest two to three hours during the day. (Id. at 82.) However, five months later, in his October 3, 2002, Questionnaire, Plaintiff wrote that he does not require any rest periods during the day. (Id. at 91.) These inconsistencies provide a clear and convincing reason for rejecting Plaintiff's allegations of excess pain. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2003) (finding inconsistent statements, together with uncooperativeness and a tendency to exaggerate, constitute clear and convincing reasons for a negative credibility determination by the ALJ).

  The majority of these facts, when taken together with all other evidence in the record, constitute specific findings supported by substantial evidence justifying the ALJ's decision that Skinner's complaints of knee pain rising to a level that would greatly interfere with focus and concentration were not credible. In addition, the medical evidence does not indicate any problem with concentration or focus. The ALJ's hypothetical was not incomplete; it contained all limitations supported by evidence in the record.

  B. The ALJ Improperly Found Plaintiff to Be Capable of Performing His Past Relevant Work as a Corrections Case Manager.

  Plaintiff also claims that the ALJ erred by failing to give adequate weight to Skinner's testimony regarding the job requirements of a case manager. (Pl.'s Mem. at 12-13.) He asserts that Judge Tom gave too much weight to the vocational expert's description of the case manager position, which was based on the DOT and the expert's personal knowledge from visiting correctional facilities. (Id.) Plaintiff acknowledges that the vocational expert, John Kilcher, testified that Plaintiff could perform the case manager position as it is described in the DOT and performed in the national economy. (Id. at 12.) Skinner claims, however, that he cannot perform the position as it was actually performed. (Id.) Although the DOT classifies the position as skilled and sedentary, Plaintiff testified that he was on his feet at least fifty percent of the time, thus performing the job at the light exertional level. (Id.)

  The transcript of Kilcher's testimony regarding Skinner's ability to perform his past work as a case manager is confusing. The witness testified that if Plaintiff is limited to standing and walking no more than four hours out of an eight-hour day, Skinner could perform "the case manager's job that he did before." (Admin. R. at 178.) Similarly, Kilcher stated that if Plaintiff was limited to only standing two hours out of an eight-hour day and sitting six hours, "the only job [Plaintiff] could do is the job as a case manager." (Id. at 179.)

  From the remainder of his testimony, it is unclear whether Kilcher intended to testify that Plaintiff could perform the case manager position as Skinner described it or only perform the position as it is described in the DOT. Skinner's attorney questioned the vocational expert as follows:

ATTY: . . . Am I assuming case manager would be performable as, as described under the DOT versus as performed?
VE: That's correct. The way he described it, it would be more towards, towards the light.
. . . .
VE: . . . I'm saying that the DOT describes the job the way he, the way he described it. ATTY: As light?
VE: No, as sedentary. He described it, he just said he had to get up and walking around —
ATTY: I see, I see.
VE: — but the actual job duties, as described in the DOT, pretty well fit the way he describes the job.
ATTY: Okay, I think I understand what you're saying. Are you saying he performed it as light, but the way he described it for the most part it was sedentary that he performed?
VE: Yes, the only, the only part of the job that he described, he said he had to, walking around to, to talk to the inmates.
(Id. at 179-80 (emphasis added).) Plaintiff's attorney tried again to clarify Kilcher's testimony, but his questions were answered by the ALJ rather than the expert witness. (Id. at 182.)

  Even after this exchange, the ALJ was confused by Kilcher's testimony and reexamined the vocational expert as follows:

ALJ: I wasn't clear, Mr. Kilcher, about this testimony, as he performed it, and as the DOT described it, with respect to the case manager job here. That way, as I understand it, he did his job, the way he described it, pretty close matches the way you described the DOT, right?
VE: Except, with the exception of where he said that, my understanding, he said that he would, he had to go to the prisoners quite a bit. He was, in other words, he was away from his desk —
ALJ: He said he had to go to visit them in their cells?
VE: Right, yes, he went, he went, he was away from the office, he would have to go out of the office to, to talk to them quite a bit of time. . . .
ALJ: All right. And the DOT doesn't require that?
  VE: The DOT is, it considers it a sedentary job. (Id. at 183-84.) The ALJ asked whether his second hypothetical, in which the Plaintiff could stand and walk four hours out of an eight-hour day, fits Skinner's description of the case manager position. (Id. at 184.) Kilcher stated that the hypothetical was in line with Plaintiff's description of the job. (Id.) Earlier, Kilcher had testified that the job was performable by Skinner with the limitations described in the second hypothetical. (Id. at 178.)

  Kilcher testified that Skinner could not perform the case manager position the way Plaintiff described it. His responses to other hypothetical questions suggested the opposite conclusion.

  Plaintiff testified that when he was a case manager he stood and walked fifty percent of the day. (Admin. R. at 140.) The ALJ's second hypothetical described a person who could stand and walk four hours out of an eight-hour day. (Id. at 178, 184.) Kilcher stated that Skinner could perform the position with the restrictions of that hypothetical even if it required him to stand and walk four hours out of an eight-hour day. (Id. at 184.) This directly contradicts Kilcher's earlier testimony that, under the ALJ's second hypothetical, Plaintiff cannot perform the case manager position as Skinner described it, which includes standing for four hours per day. (See Admin. R. at 179.)

  The vocational expert gave conflicting testimony about whether Plaintiff can perform his past work as a corrections case manager as it was actually performed. However, the Ninth Circuit has "never required explicit findings at step four regarding a claimant's past relevant work both as generally performed and as actually performed." Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001) (emphasis added).

  At step four of the five-step disability determination, the claimant has the burden of proving he cannot return to his past relevant work. Id. at 844 (citing 20 C.F.R. §§ 404.1520(e), 416.920(e); Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir. 1990)). The ALJ may find the claimant capable of performing his past relevant work if either: (1) He can perform "[t]he actual functional demands and job duties of a particular past relevant job; or" (2) he can perform "[t]he functional demands and job duties of the occupation as generally required by employers throughout the national economy." Pinto, 249 F.3d at 845 (quoting Policy Ruling, S.S.R. 82-61 (Cum. Ed. 1982)) (emphasis added). The SSA recognizes:

A former job performed in by the claimant may have involved functional demands and job duties significantly in excess of those generally required for the job by other employers throughout the national economy. Under this test, if the claimant cannot perform the excessive functional demands and/or job duties actually required in the former job but can perform the functional demands and job duties as generally required by employers throughout the economy, the claimant should be found to be "not disabled."
Policy Ruling, S.S.R. 82-61 (Cum. Ed. 1982).

  In Skinner's case, the ALJ ignored the expert's contradictory testimony about whether Plaintiff can perform the case manager job as he had previously performed it. Instead, Judge Tom found that Skinner is capable of working as a corrections case manager job as the job is generally performed in the national economy. Kilcher's testimony on this point is contradictory. Initially, the vocational expert agreed that Plaintiff is able to work as a case manager, as that job is described in the DOT. (Admin. R. at 179.) Skinner's description of the position required light exertion. (Id.) However, Kilcher was asked whether "except for the [case manager] job as [Skinner] described, then would that job be available under that [second] hypothetical?" (Id.) Kilcher replied: "No, it would not." (Id. (emphasis added).) He then stated that the DOT description of case manager was in 1986, and "it pretty well meets the description the way he [Skinner], the way he described it." (Id. at 180.) The job Skinner described, according to Kilcher, was a sedentary position, but Skinner walked around to talk to inmates. (Id.) Still, the vocational expert acknowledged that case managers in the national economy do "on occasion" meet with prisoners at their cells. (Id. at 181.)

  The ALJ's decision that Skinner can perform the corrections case manager job as it is generally performed in the national economy will be upheld if supported by "substantial evidence" in the record. Howard ex. rel. Wolff v. Barnhart, 341 F.3d at 1011. The confusing and contradictory testimony of the vocational expert falls short. It does not satisfy the "`more than a scintilla but less than a preponderance'" test. Id. (quoting Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997). Among other things, the expert testified that Skinner cannot perform the job as he had previously, and Skinner's description of the job matched the DOT. In effect, the expert's testimony suggests that Skinner cannot do the job as generally performed in the national economy. Accordingly, this case should be remanded for further proceedings at step four of the five-step evaluation. C. The Commissioner's Decision Should Be Remanded.

  If the SSA Commissioner's decision is supported by substantial evidence and based on the application of correct legal standards, the district court's proper course of action is to affirm that decision. Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1996). "When the evidence can rationally be interpreted in more than one way, the court must uphold the commissioner's decision." Mayes v. Massanari, 276 F.3d at 459 (citing Aukland v. Massanari, 257 F.3d 1033, 1034-35 (9th Cir. 2001)). There is substantial evidence in the record supporting Judge Tom's decision to reject Skinner's subjective symptom testimony. However, the ALJ's conclusion that Plaintiff retains the functional capacity to perform his past relevant work as a corrections case manager is not supported by substantial evidence. Therefore, the decision should be reversed and remanded for further proceedings consistent with this Report and Recommendation.

  VII. CONCLUSION

  For the reasons set forth above, Plaintiff's Motion for Summary Judgment should be GRANTED IN PART and this matter remanded; Defendant's Cross-Motion for Summary Judgment should be DENIED. Plaintiff's request for an award of attorney's fees should be denied without prejudice at this time.

  This Report and Recommendation will be submitted to the United States District Court judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Any party may file written objections with the Court and serve a copy on all parties on or before October 28, 2005. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed on or before November 15, 2005. The parties are advised that failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

  IT IS SO ORDERED.

20051005

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