The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge
AMENDED MEMORANDUM OPINION AND ORDER
On June 30, 2009, Magistrate Judge Jennifer T. Lum issued a Memorandum Opinion and Order, and Judgment, remanding this case for further administrative proceedings in a manner consistent with the Memorandum Opinion and Order.
On July 9, 2009, the Commissioner filed a Motion for Reconsideration pursuant to Local Rule 7-18(c).
On July 14, 2009, the Clerk issued a Notice of Reassignment of Case Due to Unavailability of Judicial Officer. The matter was reassigned Case No. CV 08-06409-CJC (VBK).
On September 4, 2009, Plaintiff filed his Reply to the Commissioner's Motion for Reconsideration ("Reply").
Pursuant to 28 U.S.C. §636(c), the parties have consented to proceed before United States Magistrate Judge Victor B. Kenton.
In the Joint Stipulation ("JS") filed by the parties, Issue No. 3 addressed, "Whether the Administrative Law Judge ("ALJ") erred in the assessment of Plaintiff's mental limitations." As briefed by Plaintiff, the State Agency physician, Dr. Gregg, completed a Psychiatric Review Technique form ("PRT"). (Administrative Record ["AR"] 378-391.) In the PRT, Dr. Gregg found "moderate" limitations in the following areas: social functioning, and concentration, persistence or pace. (AR 386.) In a Mental Residual Functional Capacity form, Dr. Gregg assessed moderate limitations in the following areas: ability to understand and remember detailed instructions; ability to carry out detailed instructions; ability to maintain attention and concentration for extended periods; and ability to complete a normal workday and work week without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. (AR 389-390.)
Plaintiff also received a consultative psychiatric evaluation ("CE") from Dr. Woodard, on August l8, 206, at the request of the Department of Social Services. (AR 374-377.) Dr. Woodard arrived at the following conclusion:
"Impairments are slight for withstanding normal stresses and pressures in the workplace, for interacting with supervisors, co-workers and the public, for maintaining concentration and attention and for performing detailed, complex tasks and none for performing simple, repetitive tasks. Incapacity is none for working on a continuous basis without special supervision and slight for completing a normal workweek without interruption." (AR 376.)(Emphasis added.)
The ALJ agreed with Dr. Woodard's conclusion that Plaintiff has the ability to perform simple, repetitive tasks, but, in consideration of Dr. Gregg's mental residual functional capacity assessment, found Plaintiff to be "slightly more limited, as asserted by [Dr. Gregg], who considered and evaluated the entire medical evidence including the findings and decision of the prior Administrative Law Judge decision dated April 6, 1999, ..." (AR 20.)
At the hearing before the ALJ held on March 19, 2008 (AR 35-87), testimony was taken from a vocational expert ("VE"). The ALJ posed a hypothetical question to the VE which assumed both a physical residual functional capacity ("RFC"), and a mental RFC of an ability to perform simple repetitive tasks. (AR 77.) The VE responded that Plaintiff would not be able to perform any of his past relevant work, but could perform work in the regional or national economy, which the VE identified. (AR 42.)
The VE was also examined by Plaintiff's attorney at the hearing. The attorney attempted to ask a hypothetical question which posited additional limitations of moderate difficulties and ability to maintain concentration, persistence and pace; however, the ALJ would not allow the question "unless you phrase it in vocationally relevant terms. In other words, how it affects the work, the actual work performed." (AR 81.) Plaintiff's attorney argued that these limitations (that is, moderate limitations in mental functional areas) had been found by Dr. Gregg, which the ALJ acknowledged. (Id.) The ALJ differentiated Dr. Gregg's PRT, noting that, "It's utilized to [sic] purposes of a clinical assessment. It's not used for functional capacity assessment. Functional capacity assessment is listed in [Exhibit] BF9, 3, where the [Plaintiff] is ... limited to simple repetitive tasks." (AR 82.)
In response, Plaintiff's counsel again attempted to pose a hypothetical question which posited moderate limitations and ability to maintain attention and concentration for extended periods of time and a moderate limitation in the ability to complete a work day and work week without interruptions from psychologically based symptoms. The ALJ again interrupted and would not permit this hypothetical question, noting, "The same, the same problem, counselor." (AR 83.) The ALJ noted that such limitations were "not vocationally relevant, so I'm not allowing this vocational expert to ...