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Perez v. Astrue


June 5, 2009


The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge

Plaintiff filed a Complaint on March 18, 2008, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for supplemental security income ("SSI"). On April 17, 2008, the parties consented to proceed before the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The parties filed a Joint Stipulation on October 23, 2008, in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits or, in the alternative, remanding the matter for further proceedings; and defendant seeks an order affirming the Commissioner's decision. The Court has taken the parties' Joint Stipulation under submission without oral argument.


On June 28, 2005, plaintiff filed an application for SSI, alleging an inability to work since April 1, 2004, due to avascular necrosis of the right hip and depression.*fn1 (Administrative Record ("A.R.") 22, 89-94, 96.) Plaintiff, who has a high school education obtained in El Salvador, has work experience as a dishwasher, cook, field worker, janitor, and laborer. (A.R. 21, 52, 61-62, 97, 114, 125.)

On November 2, 2005, after his application was denied initially, plaintiff requested a hearing on his claim. (A.R. 74, 81-85.) On June 26, 2006, plaintiff, who was represented by counsel and aided by a Spanish language interpreter, testified at a hearing before Administrative Law Judge Jan Dansbach ("ALJ Dansbach"). (A.R. 39-56.) ALJ Dansbach retired before issuing a decision on plaintiff's case. (A.R. 61.) Accordingly, on December 20, 2006, plaintiff, who again was represented by counsel and aided by a Spanish language interpreter, testified at a supplemental hearing before Administrative Law Judge Robert A. Evans ("ALJ"). (A.R. 57-72.) On January 18, 2007, the ALJ denied plaintiff's claim, and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision. (A.R. 4-8, 21-26.)

In his written decision, the ALJ found that plaintiff, who was 43 years old at the time of the hearing, has not engaged in substantial gainful activity since June 28, 2005. (A.R. 25.) The ALJ determined that plaintiff suffers from "degenerative joint disease of the left hip and depression, NOS," but "does not have a severe mental impairment." (Id.) The ALJ further found that plaintiff has the residual functional capacity to: "perform medium exertion with occasional climbing, balancing, kneeling, stooping, crouching, crawling, working at heights, or operating machinery. He also has mild restriction of activities of daily living, mild difficulties in maintaining social functioning, mild difficulties in maintaining concentration, persistence or pace with no episodes of decompensation, each of extended duration." (Id.)

Based on the ALJ's residual functional capacity assessment and the testimony of a vocational expert, the ALJ found that plaintiff was not able to perform his past relevant work, but could perform jobs, such as a hand-packager, that exist in significant numbers in the national economy. (A.R. 25.) Accordingly, the ALJ concluded that plaintiff was not disabled within the meaning of the Social Security Act during the time period in issue. (A.R. 26.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the record can constitute substantial evidence, only those "'reasonably drawn from the record'" will suffice. Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.


Plaintiff raises a single issue: whether the ALJ properly considered plaintiff's treating physician's opinion. (Joint Stipulation ("Joint Stip.") at 4.)

I. The ALJ Failed To Provide A Legitimate Reason For Disregarding The Opinion Of Plaintiff's Treating Physician

A treating physician's conclusions "must be given substantial weight." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). Generally, a treating physician's opinion is given greater weight, because "'he is employed to cure and has a greater opportunity to know and observe the patient as an individual.'" Magallanes v. Brown, 881 F.2d 747, 751 (9th Cir. 1989)(citation omitted). If a treating physician's opinion is "well-supported by medically-acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record, [the Commissioner] will give it controlling weight." 20 C.F.R. § 416.927(d)(2). Even where the treating physician's opinions are contradicted, "if the ALJ wishes to disregard the opinion[s] of the treating physician he . . . must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987); see also McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989)("broad and vague" reasons for rejecting the treating physician's opinion do not suffice).

In the instant case, the ALJ rejected the opinion of plaintiff's treating physician, Terie Lee, M.D. (A.R. 23.) The ALJ provided one reason for his rejection of Dr. Lee's opinion, namely that "[i]t appears that [Dr. Lee] based his assessment merely on [plaintiff's] subjective complaints without any independent judgment." (Id.) The ALJ's single articulated reason mischaracterizes the record and is not a legitimate reason for rejecting Dr. Lee's opinion.

A review of the record reveals that Dr. Lee saw plaintiff every two months from July 2005, through at least July 2006. (A.R. 231.) In a July 7, 2006 Physical Residual Functional Capacity Questionnaire (the "Questionnaire"), Dr. Lee diagnosed plaintiff with bilateral avascular necrosis of the hip, depression, and rule out obstructive sleep apnea. (A.R. 231-34.) In the Questionnaire, Dr. Lee clearly identified clinical findings and objective signs supporting his diagnosis, including the MRI of plaintiff's hip and orthopedic consultations.*fn2 (A.R. 231.) Dr. Lee opined that plaintiff: could not stand at any one time for more than 15 minutes before needing to sit down, walk around, or lie down; could stand/walk less than a total of two hours in an eight-hour day; could sit for six hours in an eight-hour day, but would require additional, unscheduled breaks; could not sit for more than five minutes at any one time; could lift less than ten pounds on an occasional basis; could lift 20 pounds; could never climb ladders or stairs, and could rarely twist, stoop/bend, or crouch; and would have difficulty performing repetitive reaching, handling, or fingering. (A.R. 232-34.) Dr. Lee further opined that plaintiff's pain and symptoms frequently interfered with his attention and concentration, and stated that plaintiff's pain complaints were reasonably consistent with his symptoms and functional limitations. (A.R. 232.) Dr. Lee confirmed that plaintiff was awaiting authorization for hip replacement surgery and concluded that plaintiff was "incapable of even 'low stress' work." (A.R. 231-32.)

In his portion of the Joint Stipulation, defendant advances various bases to support the ALJ's rejection of Dr. Lee's opinion. (See Joint Stip. at 9-12.) However, a reviewing court cannot affirm the denial of benefits based on a reason not stated or finding not made by the ALJ, and defendant's after-the-fact attempt to supply acceptable bases for the ALJ's decision is unavailing. See, e.g., Connett, 340 F.3d at 874 (noting that a reviewing court is "constrained to review the reasons the ALJ asserts," and an ALJ's decision cannot be affirmed on the basis of evidence he did not discuss); Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001)(an agency decision cannot be affirmed on the basis of a ground that the agency did not invoke in making its decision); see also Barbato v. Comm'r of Soc. Sec. Admin., 923 F. Supp. 1273, 1276 n.2 (C.D. Cal. 1996)(remand is appropriate when a decision does not adequately explain how a decision was reached, "[a]nd that is so even if [the Commissioner] can offer proper post hoc explanations for such unexplained conclusions," because "the Commissioner's decision must stand or fall with the reasons set forth in the ALJ's decision, as adopted by the Appeals Council")(citation omitted).

Accordingly, remand is required to allow the ALJ the opportunity to provide legally sufficient reasons for rejecting the opinion of Dr. Lee. On remand, the ALJ also may wish to develop the record further regarding the status of plaintiff's hip replacement surgery.

II. Remand Is Required.

The decision whether to remand for further proceedings or order an immediate award of benefits is within the district court's discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no useful purpose would be served by further administrative proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. at 1179 ("the decision of whether to remand for further proceedings turns upon the likely utility of such proceedings"). However, where there are outstanding issues that must be resolved before a determination of disability can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate. Id.

Here, remand is the appropriate remedy to allow the ALJ the opportunity to remedy the above-mentioned deficiencies and errors. See, e.g., Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for further proceedings is appropriate if enhancement of the record would be useful); McAllister, 888 F.2d at 603 (remand appropriate to remedy defects in the record).

Although plaintiff has not challenged the ALJ's conclusion that plaintiff's mental impairment is not severe, the record is replete with references to and diagnoses of depression, and plaintiff is taking medication for depression. (See e.g., A.R. 100, 128, 142, 164-67, 182, 186, 197, 232, 240.) Even the ALJ notes that plaintiff has been diagnosed with "depression, NOS" and assessed with a GAF of 55. (A.R. 23.) On remand, the ALJ must consider the impact of all of plaintiff's impairments, whether severe or not, on his ability to engage in and sustain full-time work. See Erickson v. Shalala, 9 F.3d 813, 817 (9th Cir. 1993)(ALJ must consider "all factors" that might have a significant impact on claimant's ability to work); see also 20 C.F.R. § 416.945(e) ("we will consider the limiting effects of all your impairment(s), even those that are not severe").


Accordingly, for the reasons stated above, IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with this Memorandum Opinion and Order.

IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant.


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