The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge
This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C. §405(g), which authorizes the court to enter judgment upon the pleadings and transcript of the record before the Commissioner. Plaintiff and Defendant have filed their respective pleadings, Defendant has filed the certified transcript of the record, and the parties have filed a Joint Stipulation. After reviewing the matter, the Court concludes that the decision of the Commissioner should be reversed and remanded.
On December 14, 2000, July, 23, 2002, and August 9, 2002, plaintiff Douglas A. Wilson filed applications for supplemental security income benefits ("SSI") alleging an inability to work since July 1, 2000 due to knee, ankle, and shoulder pain, cardiac and mental problems. His claims were denied initially, and upon reconsideration by the Commissioner. A hearing was held on February 5, 2004 (AR 35-68), and on March 25, 2004 an Administrative Law Judge ("ALJ") issued a decision affirming the decision of the Commissioner, finding that Plaintiff was capable of other work (AR 19-28). The decision was affirmed by the Appeals Council, and Plaintiff appealed to this Court, which reversed on two grounds. The Court found that the ALJ failed to address and consider the opinions of Dr. Aquino, an examining physician, constituting error. (AR 659-60). The court also found that the ALJ failed to address or discredit Plaintiff's subjective complaints of fatigue. Id. In turn, the Appeals Council remanded the matter to the ALJ for further proceedings, with direction to consolidate a subsequent application for SSI filed on April 27, 2006. (AR 664).
On remand, an ALJ found that Plaintiff had the residual functional capacity to perform the full range of light work physically, but was limited to simple repetitive tasks mentally. (AR 638-49). The ALJ used Medical-Vocational Guidelines Rule 202.14 as a basis for finding that Plaintiff could perform other work. (AR 648). On April 7, 2008, the ALJ determined that Plaintiff did not suffer from disability. (AR 649).
Plaintiff makes three challenges to the ALJ's determination. Plaintiff alleges that the ALJ erred by: (1) deviating from the prior residual capacity assessment; (2) rejecting Plaintiff's request to cross-examine the consulting psychologist; and (3) applying the Medical-Vocational Guidelines despite Plaintiff's severe non-exertional impairments.
Under 42 U.S.C. § 405(g)(1998), the Court reviews the Commissioner's decision to determine if: (1) the Commissioner's findings are supported by substantial evidence; and (2) the Commissioner used proper legal standards. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla", Richardson v. Perales, 402 U.S. 389, 401 (1971), but "less than a preponderance." Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988).
This court cannot disturb the Commissioner's findings if those findings are supported by substantial evidence, even though other evidence may exist which supports plaintiff's claim. See Torske v. Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. denied, Torske v. Weinberger, 417 U.S. 933 (1974); Harvey v. Richardson, 451 F.2d 589, 590 (9th Cir. 1971). The Court is required to uphold the decision of the Commissioner where evidence is susceptible to more than one rational interpretation. Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984).
2. Deviation from Prior Residual Functional Capacity Assessment was Permitted
When the Appeals Council vacates a final decision of the Commissioner, the ALJ must consider all pertinent issues de novo, which means the ALJ is required to perform a new five-step sequential evaluation to determine claimant's eligibility for disability. Hearings, Appeals and Litigation Law Manual § I-2-8-18. No published opinion of the Ninth Circuit has applied the doctrines of law of the case or the rule of mandate to preclude ALJs from revisiting issues settled in the district court's orders. Ishchay v. Barnhart, 383 F.Supp.2d 1199, 1215 (C.D. Cal. 2005). Thus, in deciding on a claimant's eligibility for disability, the ALJ must consider all evidence in the record. 20 C.F.R. § 416.920(a)(3).
In its Order of Remand, the Court directed the ALJ to give specific and legitimate reasons for discrediting Plaintiff's complaints of fatigue, and to give weight to the opinions of Dr. Aquino due to their probative nature. (AR 659-60). Unlike in Ishchay, where the Order of Remand specifically required a review of the fifth step in the sequential evaluation, here, the District Court's order required the ALJ to go back to step two and examine the severity of Plaintiff's impairments by examining Plaintiff's fatigue testimony and the report of Dr. Aquino. (AR 658-60). By starting at step two of the sequential evaluation, the ALJ was required to take in all evidence regarding the Plaintiff's impairments, including a bicycle accident in 2005 and Plaintiff's testimony at the 2007 hearing.
In the case at hand, the ALJ provided specific and legitimate reasons for changing Plaintiff's residual functional capacity assessment from sedentary to light work. First, the ALJ noted that his previous residual capacity assessment was completely unsupported by objective medical evidence, and there was uncontroverted medical evidence that Plaintiff was capable of performing light work. (AR 317-24, 444-51, 644). Then, the ALJ looked to the bike riding accident of 2003 (AR 425-30), and the more recent accident in 2005 (AR 752-63), finding that such levels of activity were consistent with a residual functional capacity to perform light work. (AR 645). Finally, as Plaintiff's coronary artery disease had remained stable, and Plaintiff had been examined and found ...