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McCloud v. Astrue

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


August 3, 2009

FRANKLIN MCCLOUD, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge

OPINION AND ORDER

Plaintiff Franklin McCloud filed a complaint on August 18, 2008, seeking review of the Commissioner's decision denying his application for disability benefits. On January 15, 2009, the Commissioner answered the complaint, and the parties filed a joint stipulation on February 2, 2009.

BACKGROUND

I.

On June 23, 2006, plaintiff applied for disability benefits under the Supplemental Security Income program ("SSI") of Title XVI of the Social Security Act ("Act"), 42 U.S.C. § 1382(a), claiming an inability to work since June 16, 2006, due to arthritis, anxiety, shoulder pain, and seizures. Certified Administrative Record ("A.R.") 63-69, 81. The plaintiff's application was initially denied on December 5, 2006, and was denied again on January 22, 2007, following reconsideration. A.R. 29-32, 36-41. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge Joseph D. Schloss ("the ALJ") on January 14, 2008. A.R. 16-26, 33. On May 19, 2008, the ALJ issued a decision finding plaintiff is not disabled. A.R. 5-15. The plaintiff appealed this decision to the Appeals Council, which denied review on June 27, 2008. A.R. 1-4.

II.

The plaintiff, who was born on October 30, 1951, is currently 57 years old. A.R. 63. He has a B.A. in political science from Southern Methodist University, and has previously worked as a cab driver, food server, day laborer, maintenance worker and custodian. A.R. 82, 86, 88-95, 254.

On September 14, 2006, Nicholas N. Lin, M.D., an internist, examined plaintiff and diagnosed him with seizure disorder, hypertension, hyperlipidemia, and anxiety and depression, by history.*fn1

A.R. 241-46. Dr. Lin opined:

[plaintiff] can lift or carry 50 pounds occasionally and 25 pounds frequently. He can stand or walk for 6 hours in an 8-hour workday and sit for 6 hours in an 8-hour workday. He can bend, stoop, crouch, kneel, and climb stairs frequently. There are no manipulative, communicative, or environmental limitations. His visual limitation is as per the visual acuity test by Snellen chart. He is to avoid hazardous measures such as driving, operating machines, handling fires, working at unprotected heights, or swimming given the history of seizure disorder.

A.R. 245-46.

On October 31, 2006, psychiatrist Romualdo R. Rodriguez, M.D., examined plaintiff and diagnosed him as having marijuana abuse/ dependence, rule out polysubstance dependence, and a dysthymic disorder, and determined plaintiff's Global Assessment of Functioning ("GAF") was 60.*fn2 A.R. 252-59. Dr. Rodriguez opined plaintiff: is able to understand, remember, and carry out simple one or two-step job instructions and detailed and complex instructions; and is "slightly limited" in his ability to: relate and interact with supervisors, co-workers, and the public, maintain concentration, attention, persistence and pace, associate with day-to-day work activity, including attendance and safety, adapt to the stresses common to a normal work environment, maintain regular attendance in the work place and perform work activities on a consistent basis, and perform work activities without special or additional supervision. A.R. 258.

DISCUSSION

III.

The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner's decision denying plaintiff disability benefits to determine if his findings are supported by substantial evidence and whether the Commissioner used the proper legal standards in reaching his decision. Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009); Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009).

The claimant is "disabled" for the purpose of receiving benefits under the Act if he is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).

The Commissioner has promulgated regulations establishing a five-step sequential evaluation process for the ALJ to follow in a disability case. 20 C.F.R. § 416.920. In the First Step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. § 416.920(b). If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment or combination of impairments significantly limiting him from performing basic work activities. 20 C.F.R. § 416.920(c). If so, in the Third Step, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals the requirements of the Listing of Impairments ("Listing"), 20 C.F.R. § 404, Subpart P, App. 1. 20 C.F.R. § 416.920(d). If not, in the Fourth Step, the ALJ must determine whether the claimant has sufficient residual functional capacity despite the impairment or various limitations to perform his past work. 20 C.F.R. § 416.920(f). If not, in Step Five, the burden shifts to the Commissioner to show the claimant can perform other work that exists in significant numbers in the national economy. 20 C.F.R. § 416.920(g).

Moreover, where there is evidence of a mental impairment that may prevent a claimant from working, the Commissioner has supplemented the five-step sequential evaluation process with additional regulations addressing mental impairments. Maier v. Comm'r of the Soc. Sec. Admin., 154 F.3d 913, 914 (9th Cir. 1998) (per curiam). First, the ALJ must determine the presence or absence of certain medical findings relevant to the ability to work. 20 C.F.R. § 416.920a(b)(1). Second, when the claimant establishes these medical findings, the ALJ must rate the degree of functional loss resulting from the impairment by considering four areas of function: (a) activities of daily living; (b) social functioning; (c) concentration, persistence, or pace; and (d) episodes of decompensation. 20 C.F.R. § 416.920a(c)(2-4). Third, after rating the degree of loss, the ALJ must determine whether the claimant has a severe mental impairment. 20 C.F.R. § 416.920a(d). Fourth, when a mental impairment is found to be severe, the ALJ must determine if it meets or equals a Listing. 20 C.F.R. § 416.920a(d)(2). Finally, if a Listing is not met, the ALJ must then perform a residual functional capacity assessment, and the ALJ's decision "must incorporate the pertinent findings and conclusions" regarding plaintiff's mental impairment, including "a specific finding as to the degree of limitation in each of the functional areas described in [§ 416.920a(c)(3)]." 20 C.F.R. § 416.920a(d)(3), (e)(2).

Applying the five-step sequential evaluation process, the ALJ found plaintiff has not engaged in substantial gainful activity since the application date, June 23, 2006. (Step One). The ALJ then found plaintiff has the severe impairments of a dysthymic disorder,*fn3 marijuana abuse, pseudo-seizure disorder, and degenerative disc disease (Step Two); however, plaintiff does not have an impairment or combination of impairments that meets or equals a Listing. (Step Three). Finally, the ALJ determined plaintiff can perform his past relevant work as a cab driver and as a custodian; therefore, he is not disabled. (Step Four).

IV.

"At Step Four, claimants have the burden of showing that they can no longer perform their past relevant work." Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001); Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). "Although the burden of proof lies with the claimant at step four, the ALJ still has a duty to make the requisite factual findings to support his conclusion." Pinto, 249 F.3d at 845. To determine whether a claimant has the residual functional capacity ("RFC") to perform his past relevant work,*fn4 the ALJ "must ascertain the demands of the claimant's former work and then compare the demands with his present capacity." Villa v. Heckler, 797 F.2d 794, 797-98 (9th Cir. 1986); Marcia v. Sullivan, 900 F.2d 172, 177 n.6 (9th Cir. 1990). "This requires specific findings as to the claimant's [RFC], the physical and mental demands of the past relevant work, and the relation of the residual functional capacity to the past work."

Pinto, 249 F.3d at 845.

The ALJ found plaintiff retains the RFC to perform the full range of medium work except he can only occasionally climb, but not climb ladders, and he cannot work at unprotected heights or operate hazardous machines. A.R. 12. However, plaintiff contends the ALJ's finding is not supported by substantial evidence because the ALJ did not properly consider the opinions of examining physicians Drs. Lin and Rodriguez, and did not properly establish plaintiff can perform his past relevant work as a cab driver or custodian. The plaintiff is correct.

"[T]he Commissioner must provide 'clear and convincing' reasons for rejecting the uncontradicted opinion of an examining physician[,]" Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006), and "[e]ven if contradicted by another doctor, the opinion of an examining doctor can be rejected only for specific and legitimate reasons that are supported by substantial evidence in the record." Regennitter v. Comm'r of the Soc. Sec. Admin., 166 F.3d 1294, 1298-99 (9th Cir. 1999); Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Dr. Lin opined plaintiff: can lift or carry 50 pounds occasionally and 25 pounds frequently; can stand or walk for 6 hours in an 8-hour workday and sit for 6 hours in an 8-hour workday; can bend, stoop, crouch, kneel, and climb stairs frequently; and must avoid hazardous measures such as driving, operating machines, handling fires, working at unprotected heights, or swimming. A.R. 245 (emphasis added). The ALJ gave "substantial weight" to Dr. Lin's opinions, A.R. 14, except for Dr. Lin's preclusion of plaintiff from driving, which the ALJ did not address and implicitly rejected. This was clear legal error. Smolen, 80 F.3d at 1286. Moreover, since this error was the basis for the ALJ finding plaintiff can perform his past relevant work as a cab driver, the error is not harmless, and the ALJ's Step Four determination that plaintiff can perform his past relevant work as a cab driver is not supported by substantial evidence.

Examining psychiatrist Dr. Rodriguez opined plaintiff is "slightly limited" in his ability to: relate and interact with supervisors, co-workers, and the public; maintain concentration, attention, persistence and pace, associate with day-to-day work activity, including attendance and safety; adapt to the stresses common to a normal work environment; maintain regular attendance in the work place and perform work activities on a consistent basis; and perform work activities without special or additional supervision.

A.R. 258. The ALJ gave "some weight" to Dr. Rodriguez's opinions by finding plaintiff has a severe mental impairment, A.R. 10, 12, but the ALJ did not address and implicitly rejected the mental limitations Dr. Rodriguez found. See Bray v. Astrue, 554 F.3d 1219, 1228 (9th Cir. 2009) ("If an ALJ finds a severe impairment at step two, that impairment must be considered in the remaining steps of the sequential analysis."). Once again, the ALJ committed clear legal error by failing to address and implicitly rejecting the mental limitations Dr. Rodriguez found. Smolen, 80 F.3d at 1286.

Moreover, this error was not harmless. Hypothetical questions posed to a vocational expert must consider all of the claimant's limitations, Bray, 554 F.3d at 1228; Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002), and "[t]he ALJ's depiction of the claimant's disability must be accurate, detailed, and supported by the medical record." Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999).

Here, the ALJ failed to include the mental limitations of plaintiff Dr. Rodriguez found in the hypothetical question to vocational expert Sandra Fioretti, whose response to the hypothetical question was the basis for the ALJ's Step Four determination that plaintiff can perform his past relevant work as a custodian.*fn5 A.R. 15, 23-26. "[B]ecause the ALJ erred in excluding some of [plaintiff's] limitations from the RFC assessment, and thus from the [vocational expert's] hypothetical, the [vocational expert's] testimony 'has no evidentiary value.'" Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008) (citation omitted); see also Edlund v. Massanari, 253 F.3d 1152, 1160 (9th Cir. 2001) (ALJ erred in not including limitations from claimant's mental impairment in hypothetical question posed to vocational expert). For these reasons, the ALJ's RFC assessment, and Step Four determination that plaintiff can perform his past relevant work as a custodian, are not supported by substantial evidence. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1056-57 (9th Cir. 2006); Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004).

V.

When the Commissioner's decision is not supported by substantial evidence, the Court has authority to affirm, modify, or reverse the Commissioner's decision "with or without remanding the cause for rehearing." 42 U.S.C. § 405(g); McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). "Remand for further administrative proceedings is appropriate if enhancement of the record would be useful." Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Here, remand is appropriate so the ALJ can "reassess [plaintiff's] RFC, including all of his relevant limitations[,]... reassess the step-four conclusion in light of [plaintiff's] complete RFC and this opinion, and if necessary, proceed to step five." Carmickle, 533 F.3d at 1167; Widmark, 454 F.3d at 1070.

ORDER

IT IS ORDERED that: (1) plaintiff's request for relief is granted; and (2) the Commissioner's decision is reversed, and the action is remanded to the Social Security Administration for further proceedings consistent with this Opinion and Order, pursuant to sentence four of 42 U.S.C. § 405(g), and Judgment shall be entered accordingly.


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