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White v. Astrue

September 30, 2009



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying an application for Disability Income Benefits ("DIB") under Title II of the Social Security Act ("Act"). For the reasons discussed below, the court will deny plaintiff's motion for summary judgment, deny the Commissioner's cross-motion for summary judgment, and remand this matter under sentence four of 42 U.S.C. § 405(g).

I. Factual and Procedural Background

In a decision dated October 20, 2006, the ALJ determined plaintiff was not disabled.*fn1 The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. The ALJ found plaintiff has severe impairments of post surgical wrist condition, bilateral carpal tunnel syndrome, thoracolumbar sprain/strain back, kidney stones and depressionbut these impairments do not meet or medically equal a listed impairment; plaintiff is not totally credible; plaintiff has the residual functional capacity to perform unskilled light work tasks that involve occasional postural activities, minimal use of the non-dominant left arm/hand and minimal contact with the public and that allow for the avoidance of exposure to machinery and driving; there are a significant number of jobs in the national economy that plaintiff could perform; and plaintiff is not disabled. Administrative Transcript ("AT") 26-27. Plaintiff contends the ALJ improperly rejected the opinion of a treating physician, made improper credibility determinations, and failed to properly credit the testimony of a vocational expert.*fn2

II. Standard of Review

The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards under 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Copeland v. Bowen, 861 F.2d 536, 538 (9th Cir. 1988) (citing Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 575-76 (9th Cir. 1988)). Substantial evidence means more than a mere scintilla of evidence, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996) (citing Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975)). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 402 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ's conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the ALJ's decision simply by isolating a specific quantum of supporting evidence. Id.; see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a finding of either disability or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

III. Analysis

A. Vocational Expert

Plaintiff challenges the ALJ's finding at the fifth step of the sequential evaluation, contending that the ALJ relied on an incomplete hypothetical. Hypothetical questions posed to a vocational expert must set out all the substantial, supported limitations and restrictions of the particular claimant. Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989). If a hypothetical does not reflect all the claimant's limitations, the expert's testimony as to jobs in the national economy the claimant can perform has no evidentiary value. DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). While the ALJ may pose to the expert a range of hypothetical questions, based on alternate interpretations of the evidence, the hypothetical that ultimately serves as the basis for the ALJ's determination must be supported by substantial evidence in the record as a whole. Embrey v. Bowen, 849 F.2d 418, 422-23 (9th Cir. 1988).

The ALJ found there were a significant number of jobs plaintiff could perform, including that of surveillance system monitor and oiler. AT 26. This finding was predicated on the testimony of the vocational expert. AT 728-729, 734. When additional limitations related to a moderate impairment in the ability to maintain concentration, persistence and pace were added to the hypothetical by plaintiff's attorney, the vocational expert testified that plaintiff would not be able to perform the identified jobs. AT 736-737. The additional limitations are supported by substantial evidence of the opinions of the examining psychiatrist, Dr. Roux, and the state agency physicians. AT 262, 284-285. The ALJ accorded "significant" and "great" weight to these opinions. AT 22, 23. There is no explanation as to why the ALJ rejected the moderate limitation in maintaining concentration, persistence and pace in the hypothetical relied on in finding plaintiff could perform the jobs of surveillance system monitor and oiler. Under these circumstances, the ALJ committed error.

B. Remand and Credibility

Regarding whether to remand this case to the ALJ or to order the payment of benefits, "[t]he decision whether to remand the case for additional evidence or simply to award benefits is within the discretion of the court." Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985). Generally, the court will direct the award of benefits "in cases where no useful purpose would be served by further administrative proceedings or where the record has been thoroughly developed." Varney v. Secretary of Health and Human Services, 859 F.2d 1396, 1399 (9th Cir. 1988).

Although plaintiff contends the matter should be remanded for payment of benefits, the court cannot conclude that such a remand is appropriate here. Although the vocational expert testified plaintiff could not perform the identified jobs when the additional limitations were included in the hypothetical, there was no follow up question posed as to whether any other jobs would be available if all of the limitations were included. Further testimony in this regard should be taken.

With respect to the credibility issue, on remand, if plaintiff's testimony regarding his subjective complaints is discredited, the ALJ must, in the absence of affirmative evidence showing that plaintiff is malingering, set forth clear and convincing reasons for rejecting plaintiff's testimony. Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). If laywitness testimony is discounted, reasons that are germane to that witness must be set forth in the opinion. See Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993).

For the foregoing reasons, this matter will be remanded under sentence four of 42 U.S.C. ยง 405(g) for further development of the record and further ...

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