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Miranda v. Astrue

September 4, 2009


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


Plaintiff filed a Complaint on April 11, 2008, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's applications for a period of disability ("POD"), disability insurance benefits ("DIB"), and supplemental security income ("SSI"). On June 12, 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 December 19, 2008, in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits or, in the alternative, remanding the matter for further administrative 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 February 8, 2002, plaintiff filed applications for a POD, DIB, and SSI, alleging an inability to work since December 20, 2000, due to blindness in his left eye and depression. (Administrative Record ("A.R.") 55-57, 219-22, 285.) Plaintiff has past relevant work experience as a machine operator. (A.R. 15, 286, 505.)

Plaintiff's claims were denied initially, upon reconsideration, and by Administrative Law Judge F. Keith Varni ("ALJ Varni") in a written decision dated December 2, 2003. (A.R. 14-18.) On December 3, 2003, plaintiff filed a request for review of the hearing decision (A.R. 9), and on August 5, 2004, the Appeals Council denied review of the decision (A.R. 4-6). On September 2, 2004, plaintiff filed a Complaint in this Court in Case No. EDCV 04-1069, which resulted in a Stipulated Order and Judgment of Remand on February 22, 2005. (A.R. 341-45.) On April 7, 2005, the Appeals Council remanded the case back to ALJ Varni for further administrative proceedings. (A.R. 346.)

On February 24, 2006, a remand hearing was held before ALJ Varni. (A.R. 438-52.) On May 26, 2006, ALJ Varni issued an unfavorable decision. (A.R. 242-46.) On August 17, 2006, plaintiff filed another Complaint in this Court in Case No. EDCV 06-821, which resulted in a Stipulated Judgment of Remand on April 4, 2007.*fn1 (A.R. 483-87.) On June 9, 2007, the Appeals Council remanded the case to a different Administrative Law Judge for compliance with this Court's Order. (A.R. 480-82.)

On November 27, 2007, a remand hearing was held before Administrative Law Judge Jay E. Levine ("ALJ"). (A.R. 500-30.) On January 11, 2008, the ALJ denied plaintiff's claims; that decision is now at issue. (A.R. 456-63.)


In his written decision, the ALJ found that plaintiff meets the insured status requirements of the Social Security Act through December 31, 2007, and has not engaged in substantial gainful activity since December 20, 2000, plaintiff's alleged disability onset date. (A.R. 458.) The ALJ further found that plaintiff suffers from the following "severe" impairments: blindness in the left eye and depression. (Id.)

The ALJ determined that plaintiff has the residual functional capacity to "perform heavy work except no work at unprotected heights or around dangerous unguarded moving machinery or work requiring binocular vision. There are no mental limitations." (A.R. 460.) The ALJ also determined that, although plaintiff was "a generally credible witness," plaintiff's "statements concerning the intensity, persistence and limiting effects of [his] symptoms are not entirely credible." (A.R. 461.) In reliance on the opinion of the medical expert, the ALJ gave "little weight" to the opinion of Romeo D. Villar, M.D., plaintiff's treating physician. (A.R. 461-62.)

The ALJ determined that plaintiff is unable to perform his past relevant work, but having considered plaintiff's age, education, work experience, and residual functional capacity, and in reliance on testimony from a vocational expert, the ALJ found that jobs exist in significant numbers in the national economy that plaintiff can perform, such as a hand packager, cleaner, and kitchen helper. (A.R. 462-63.) Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined in the Social Security Act, since December 30, 2000, through the date of his decision. (A.R. 463.)


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 alleges the following five issues: (1) whether the ALJ complied with the remand orders requiring him to properly consider Dr. Villar's opinion; (2) whether the ALJ properly considered plaintiff's testimony; (3) whether the ALJ considered the lay witness statements; (4) whether the ALJ considered the findings of the State agency psychiatrist; and (5) whether the ALJ posed a complete hypothetical question to the vocational expert. (Joint Stipulation ("Joint Stip.") at 3.)

I. The ALJ Failed To Comply With The Remand Orders Directing Proper Consideration Of The Opinion Of Plaintiff's Treating Physician, Romeo D. Villar, M.D.

A treating physician's conclusions "must be given substantial weight." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). Even when 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). The ALJ can meet this burden "by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Magallanes v. Brown, 881 F.2d 747, 751 (9th Cir. 1989).

Pursuant to 20 C.F.R. § 416.912(e)(1), the Commissioner "will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques." Thus, the Commissioner has a duty to develop the record in appropriate circumstances. See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)("If the ALJ thought he needed to know the basis of the treating physician's opinions in order to evaluate them, he had a duty to conduct an appropriate inquiry, for example, by subpoenaing the physicians or submitting further questions to them.")(citations omitted). Moreover, it is well-settled that, pursuant to the Commissioner's Regulations, an ALJ is bound to follow the Appeals Council's order and "may take any additional action that is not inconsistent with the Appeals Council's remand order." 20 C.F.R. § 416.1477(b). (See 20 C.F.R. § 416.1483 providing that the procedures in 20 C.F.R. § 416.1477 should be followed if the Appeals Council returns a court-remanded case to an ALJ).

The Court remanded this case on April 4, 2007, pursuant to a stipulation of the parties, and ordered the ALJ to evaluate the opinion of plaintiff's treating physician, Dr. Villar, and provide reasons for the weight assigned to his opinion. (A.R. 484.) In effectuating the Court's ...

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