UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION
January 26, 2009
GUADALUPE PADILLA, PLAINTIFF,
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.
The opinion of the court was delivered by: Paul L. Abrams United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff filed this action on February 6, 2008, seeking review of the Commissioner's denial of her applications for Supplemental Security Income payments and Disability Insurance Benefits. The parties filed Consents to proceed before the undersigned Magistrate Judge on February 22, 2008, and February 29, 2008. Pursuant to the Court's Order, the parties filed a Joint Stipulation on October 23, 2008, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation under submission without oral argument.
Plaintiff was born on February 17, 1953. [Administrative Record ("AR") at 75, 89.] She has a sixth grade education from Mexico*fn1 [AR at 218], and has past relevant work experience as an ironer and a hospital room cleaner. [AR at 16, 212-13, 220-21, 231-33, 681.]
On March 3, 2004, plaintiff filed her applications for Disability Insurance Benefits and Supplemental Security Income payments, alleging that she had been unable to work since March 16, 2000, due to high blood pressure, back and neck pain, arthritis, a stroke, and diabetes. [AR at 31, 89-91, 211-19, 224-26, 671-73, 682, 710.] After her applications were denied initially and on reconsideration, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). [AR at 30-32, 52-63.] A hearing was held on March 25, 2005, at which time plaintiff appeared with counsel and testified, through an interpreter, on her own behalf. [AR at 676-90.] On May 17, 2005, the ALJ determined that plaintiff was not disabled. [AR at 13-20.] Plaintiff requested review of the hearing decision. [AR at 11, 674-75.] The Appeals Council denied plaintiff's request for review on January 21, 2006. [AR at 7-10.]
Plaintiff then filed an action in District Court, Case No. ED CV 06-154-PLA, challenging the Commissioner's decision. On February 1, 2007, the Court remanded the matter with instructions to consider the statements of plaintiff's daughter. [AR at 695-703.] On March 14, 2007, the Appeals Council vacated the ALJ's decision and remanded the case for further proceedings consistent with the Court's 2007 Order. [AR at 691-93.] On October 10, 2007, a second hearing was held, at which time plaintiff appeared with counsel and testified, through an interpreter, on her own behalf. [AR at 767-75.] A vocational expert also testified. [AR at 772-74.] On November 7, 2007, the ALJ once again determined that plaintiff was not disabled. [AR at 704-15.] This action followed.
III. STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
In this context, the term "substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 1257. When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258.
IV. THE EVALUATION OF DISABILITY
Persons are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257.
A. THE FIVE-STEP EVALUATION PROCESS
The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of non-disability is made and the claim is denied. Id. If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient "residual functional capacity" to perform her past work; if so, the claimant is not disabled and the claim is denied. Id. The claimant has the burden of proving that she is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie case of disability is established. The Commissioner then bears the burden of establishing that the claimant is not disabled, because she can perform other substantial gainful work available in the national economy. The determination of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.
B. THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS
In this case, at step one, the ALJ found that plaintiff had not engaged in any substantial gainful activity since the alleged onset date of the disability.*fn2 [AR at 712.] At step two, the ALJ concluded that plaintiff has the following "severe" impairments: "degenerative changes in the musculoskeletal system, non-insulin dependent diabetes mellitus, an old left ankle fracture and an old cerebral vascular accident." [Id.] At step three, the ALJ determined that plaintiff's impairments do not meet or equal any of the impairments in the Listing. [AR at 712.] The ALJ further found that plaintiff retained the residual functional capacity ("RFC")*fn3 to "perform the full range of medium work." [AR at 713.] At step four, the ALJ concluded that plaintiff is capable of performing her past relevant work as an ironer and a hospital room cleaner. [AR at 715.] Accordingly, the ALJ found plaintiff not disabled, and did not proceed to step five in the sequential evaluation process. [Id.]
V. THE ALJ'S DECISION
Plaintiff contends that the ALJ: (1) failed to properly consider the consultative orthopedic surgeon's findings; (2) misrepresented the record and failed to properly consider the consultative psychiatric evaluator's opinion; (3) failed to properly consider the mental and physical demands of plaintiff's past relevant work; (4) failed to establish that plaintiff could perform her past relevant work as an ironer and a hospital room cleaner; and (5) failed to pose a complete hypothetical question to the vocational expert. Joint Stipulation ("Joint Stip.") at 3. As set forth below, the Court agrees with plaintiff, in part, and remands the matter for further proceedings.
EXAMINING PHYSICIAN'S OPINION
Plaintiff contends that the ALJ failed to consider the limitations assessed by consultative orthopedic evaluator Dr. Warren David Yu. Specifically, plaintiff asserts that the ALJ did not provide specific and legitimate reasons for rejecting the opinion of Dr. Yu. Joint Stip. at 3-4.
In evaluating medical opinions, the case law and regulations distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (non-examining physicians). See 20 C.F.R. §§ 404.1502, 416.927; see also Lester, 81 F.3d at 830. As a general rule, the opinions of treating physicians are given greater weight than those of other physicians, because treating physicians are employed to cure and therefore have a greater opportunity to know and observe the claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). Although the treating physician's opinion is entitled to great deference, it is not necessarily conclusive as to the question of disability. Rodriguez v. Bowen, 876 F.2d 759, 761-62 (9th Cir. 1989).
"'The administrative law judge is not bound by the uncontroverted opinions of the claimant's physicians on the ultimate issue of disability, but he cannot reject them without presenting clear and convincing reasons for doing so.'" Matthews v. Shalala, 10 F.3d at 678, 680 (9th Cir. 1993) (quoting Montijo v. Secretary of Health & Human Servs., 729 F.2d 599, 601 (9th Cir. 1984)); see also Lester, 81 F.3d at 830. Even if a treating physician's opinion on disability is controverted, it can be rejected only with specific and legitimate reasons supported by substantial evidence in the record. Lester, 81 F.3d at 830. The opinion of an examining physician is, in turn, entitled to greater weight than the opinion of a non-examining physician. Lester, 81 F.3d at 830. As is the case with the opinion of a treating physician, the ALJ must provide "clear and convincing" reasons for rejecting the uncontradicted opinion of an examining physician, and specific and legitimate reasons supported by substantial evidence in the record to reject the contradicted opinion of an examining physician. Id. at 830-31.
At the request of the Social Security Administration, Dr. Yu performed an orthopedic evaluation of plaintiff on October 30, 2000. [AR at 619-22.] Dr. Yu found that plaintiff should be able to sit for up to six hours in an eight-hour day, and stand or walk for four hours in an eight-hour day. [AR at 622.] Dr. Yu further found that plaintiff "should occasionally be allowed to pick up 20 pounds, and frequently 10 pounds." [Id.] Although Dr. Yu determined that plaintiff "should have free use of the upper extremities," he concluded that plaintiff "should be limited from uneven ground, squatting, stooping, kneeling, crawling and climbing." [AR at 622.] The ALJ in the decision did not discuss Dr. Yu's findings.*fn4
The ALJ's failure to provide specific and legitimate reasons that are supported by substantial evidence for completely ignoring Dr. Yu's opinion regarding plaintiff's limitations warrants remand. See Lester, 81 F.3d at 830-31 (the opinion of an examining doctor, even if contradicted by another doctor, can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record); see also Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996) (ALJ erred in failing to explicitly reject an opinion and set forth specific, legitimate reasons for crediting another opinion). Although the ALJ in the decision agreed with the residual functional capacity assessed by internal medicine consultative evaluator Dr. Bryan H. To [AR at 714, 730-42], the ALJ's reliance on Dr. To's opinion, without even a mention of the opinion of Dr. Yu, is insufficient.*fn5 Even assuming that the ALJ implicitly rejected the opinion of Dr. Yu by accepting the opinion of Dr. To, he did not provide any legally sufficient reasons in the decision for such rejection. See Lester, 81 F.3d at 830; see also 20 C.F.R. §§ 404.1527(d), 416.927(d); Brown v. Bowen, 794 F.2d 703, 708 (D.C. Cir. 1986) ("ALJ's implicit rejection . . . violated the elementary requirement that [ALJs] not only state their findings but explicate the reasons for their decision.").
Moreover, the ALJ's failure to include the restrictions found by Dr. Yu in his RFC assessment, or to properly reject those restrictions, undercuts his reliance on the opinion of Dr. To, and thus his determination of plaintiff's RFC.*fn6 The RFC assessment must be made "based on all the relevant evidence in [the] case record." 20 C.F.R. §§ 404.1545, 416.945. Examples of the types of evidence required to be considered in making an RFC assessment include medical history, medical signs, laboratory findings, recorded observations, and medical source statements. See SSR 96-8p. The RFC assessment must always consider and address medical source opinions, and if the assessment conflicts with an opinion from a medical source, the ALJ must explain why the opinion was not adopted.*fn7 See SSR 96-8p; see also Gastil v. Astrue, 2008 WL 754199, at *7 (D. Kan. Mar. 18, 2008) ("According to SSR 96-8p, the ALJ must always consider and address medical source opinions."); Thompson v. Barnhart, 2006 WL 709795, at *13 (E.D. Pa. Mar. 15, 2006) ("'Since it is apparent that the ALJ cannot reject evidence for no reason or for the wrong reason, an explanation from the ALJ of the reason why probative evidence has been rejected is required so that a reviewing court can determine whether the reasons for rejection were improper.'") (quoting Cotter v. Harris, 642 F.2d 700, 706-07 (3rd Cir. 1981)).
In determining plaintiff's RFC, the ALJ failed to discuss Dr. Yu's findings that plaintiff was: (1) limited to sitting for a maximum of six hours in an eight-hour day, and standing or walking for four hours in an eight-hour day; (2) limited to occasional lifting of 20 pounds, and frequent lifting of 10 pounds; and (3) limited from uneven ground, squatting, stooping, kneeling, crawling and climbing. [AR at 622.] The ALJ's failure in this regard is significant because the limitations found by Dr. Yu do not support the ALJ's conclusion that plaintiff is able to "perform the full range of medium work."*fn8 [AR at 713.] The ALJ in the RFC assessment failed to include the limitations found by Dr. Yu and did not provide any explanation for his failure to do so. [AR at 167, 252.] The ALJ may not point to and discuss only those portions of the record that favor his ultimate conclusion. See Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (error for an ALJ to ignore or misstate the competent evidence in the record in order to justify his conclusion); see also Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983) (while the ALJ is not obligated to "reconcile explicitly every conflicting shred of medical testimony," he cannot simply selectively choose evidence in the record that supports his conclusions); Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir. 1982) ("[A]n ALJ must weigh all the evidence and may not ignore evidence that suggests an opposite conclusion.") (citation omitted); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ is not permitted to reach a conclusion "simply by isolating a specific quantum of supporting evidence"). Given that the ALJ did not provide specific and legitimate reasons supported by substantial evidence in the record to reject the findings of Dr. Yu, or include Dr. Yu's findings in the RFC assessment, the ALJ's determination of plaintiff's RFC is deficient.*fn9
Plaintiff further contends that the ALJ's hypothetical question posed to the vocational expert at the October 10, 2007, hearing was incomplete in that it did not accurately describe plaintiff's restrictions, and that the vocational expert could not appropriately assess whether plaintiff "could perform and sustain full time competitive work" in light of the extent of her limitations. Joint Stip. at 19-20. Notably, plaintiff argues that the hypothetical question "did not include any of the limitations determined by Dr. Yu." Joint Stip. at 19. In light of the Court's conclusion that the ALJ failed to consider Dr. Yu's findings, the ALJ is instructed on remand to pose a hypothetical question that contains all relevant limitations. Accordingly, remand is warranted.*fn10
VI. REMAND FOR FURTHER PROCEEDINGS
As a general rule, remand is warranted where additional administrative proceedings could remedy defects in the Commissioner's decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir.), cert. denied, 531 U.S. 1038 (2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). In this case, remand is appropriate to consider the opinion of Dr. Yu. The ALJ is instructed to take whatever further action is deemed appropriate and consistent with this decision.
Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further proceedings consistent with this Memorandum Opinion.