United States District Court, S.D. California
October 5, 2005.
HOLLIS SKINNER, Plaintiff,
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].
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
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.
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
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
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
(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
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.
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,
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.
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
[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
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
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
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
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
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
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
IT IS SO ORDERED.
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