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Allen v. Astrue


October 7, 2009


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


Plaintiff Cynthia Allen filed a complaint on August 18, 2008, seeking review of the Commissioner's decision denying her application for disability benefits. On January 13, 2009, the Commissioner answered the complaint, and the parties filed a joint stipulation on March 11, 2009.



On March 25, 2005 (protective filing date), 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 November 1, 2004, due to hearing loss, back pain, osteoarthritis, stress, migraine headaches, and severe breathing problems. Certified Administrative Record ("A.R.") 72, 74-76, 121-22. The plaintiff's application was initially denied on June 14, 2005, A.R. 40-45, and was denied again on August 17, 2005, following reconsideration. A.R. 46-52. The plaintiff then requested an administrative hearing, A.R. 54, which was held before Administrative Law Judge Bernard A. Trembly ("ALJ Trembly") on March 19, 2007. A.R. 358-80. On June 7, 2007, ALJ Trembly issued a decision finding plaintiff is not disabled. A.R. 30-37.

The plaintiff appealed the decision to the Appeals Council, A.R. 29, which granted review on September 21, 2007, vacated ALJ Trembly's decision, and remanded the case to an ALJ to:

* Obtain additional evidence concerning the claimant's musculoskeletal, asthma and mild hearing loss conditions in order to complete the administrative record in accordance with the regulatory standards regarding consultative examinations and existing medical evidence (20 CFR [§] 416.912-913). The additional evidence should include updated records from High Desert, and may include, if warranted and available, a consultative orthopedic examination and medical source statements about what the claimant can still do despite the impairments.

* Further evaluate the claimant's subjective complaints and provide rationale in accordance with the disability regulations pertaining to evaluation of symptoms (20 CFR [§] 416.929) and Social Security Ruling 96-7p.

* Give further consideration to the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations (20 CFR [§] 416.945 and Social Security Ruling 96-8p).

* If warranted by the expanded record, obtain evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base (Social Security Rulings 83-14, 85-15 and 96-6p). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. . . .

A.R. 27-28.

On May 5, 2008, ALJ F. Keith Varni ("the ALJ") held a new administrative hearing, A.R. 381-89, and on May 28, 2008, the ALJ issued a decision finding plaintiff is not disabled. A.R. 8-16. The plaintiff appealed this decision to the Appeals Council, A.R. 7, which denied review on July 8, 2008. A.R. 4-6.


The plaintiff, who was born on September 10, 1955, is currently 54 years old. A.R. 74, 363. She has a tenth-grade education, A.R. 127, and has previously worked as a janitor and waitress, A.R. 122, 146, but has not worked within the past 15 years. A.R. 364.

On October 21, 2003, John C. Barker, M.S., a clinical audiologist at the Desert Knolls Hearing and Speech Center, evaluated plaintiff, conducted audiological testing, and found plaintiff has "[h]earing loss [in] both ears. Difficulty understanding speech, especially in noise. Occasional tinnitus [in] both ears." A.R. 163-65. Tympanometry was normal in both ears with no evidence of middle ear pathology, audiometry revealed mild sensorineural loss in both ears, and acoustic reflex testing demonstrated the ipsilateral acoustic reflexes were absent in the right ear, but within normal limits in the left ear. A.R. 163. Mr. Barker recommended binaural hearing aids. Id. Mr. Barker conducted a follow-up audiological evaluation on December 21, 2004, at which time "ipsilateral acoustic reflexes were absent in both ears," but otherwise the findings and recommendations were the same as in 2003. A.R. 166-67.

Between November 15 and 21, 2004, plaintiff was admitted to Victor Valley Community Hospital, where she was examined by physician Mukeschandra M. Patel, M.D., who diagnosed her with asthmatic bronchitis and diarrhea, and prescribed Albuterol*fn1 and Azmacort,*fn2 among other medication. A.R. 177-201.

On June 1, 2005, non-examining physician Joseph Hartman, M.D., diagnosed plaintiff with mild sensorineural hearing loss and lumbar spine osteoarthritis, and opined plaintiff: can occasionally lift and/or carry up to 20 pounds, climb, balance, stoop, kneel, crouch and crawl; can frequently lift and/or carry up to 10 pounds; can stand, walk and sit about 6 hours in an 8-hour workday, with normal breaks; and has limited hearing due to mild sensorineural hearing loss and should "avoid even moderate exposure" to noise. A.R. 249-56. Dr. Hartman concluded plaintiff can perform light work with appropriate postural and environmental limitations. A.R. 256.

On May 5, 2006, plaintiff had difficulty breathing and was examined at Victor Valley Community Hospital, where she was diagnosed with acute bronchitis/pharyngitis, treated with a nebulizer and Albuterol, and prescribed medication. A.R. 272-82.

On February 16, 2008, Warren David Yu, M.D., an orthopedic surgeon, examined plaintiff, diagnosed her with lumbar spine myofascial pain, and opined that plaintiff: can walk without an assistive device; can occasionally lift and/or carry up to up to 20 pounds, climb, balance, stoop, kneel, crouch, crawl, work at unprotected heights or around moving mechanical parts, operate a motor vehicle, and be exposed to humidity, wetness, dust, odors, fumes, pulmonary irritants, extreme cold or heat, and vibrations; can frequently lift and/or carry up to 10 pounds, operate foot controls, and use her upper extremities for pushing, pulling, reaching, fine finger motor movements, handling and fingering; can sit for up to two hours at a time and six hours in an eight-hour day; can stand or walk for one hour at a time and up to six hours in an eight-hour day; and can tolerate exposure to loud noise. A.R. 330-39. Dr. Yu did not evaluate plaintiff's hearing. A.R. 337.



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. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009).

The claimant is "disabled" for the purpose of receiving benefits under the Act if she 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 her 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 her 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).

Applying the five-step sequential evaluation process, the ALJ found plaintiff has not engaged in substantial gainful activity since March 25, 2005, the application date. (Step One). The ALJ then found plaintiff "has a severe impairment of the musculoskeletal and respiratory systems[,]" but does not have a severe hearing impairment or mental health impairment (Step Two); and plaintiff does not have an impairment or combination of impairments that meets or equals a Listing. (Step Three). The ALJ next found plaintiff has no past relevant work. (Step Four). Finally, the ALJ determined plaintiff can perform a significant number of jobs in the national economy; therefore, she is not disabled. (Step Five).


As an initial matter, plaintiff primarily complains that the ALJ failed to comply with the Appeals Council's remand order. Jt. Stip. at 2:16-24. That is certainly true. However, "federal courts only have jurisdiction to review the final decisions of administrative agencies. When the Appeals Council denied review of the ALJ's second decision, it made that decision final, and declined to find that the ALJ had not complied with its remand instructions." Tyler v. Astrue, 305 Fed. Appx. 331, 332 (9th Cir. 2008) (citations omitted). Thus, this Court "decline[s] to evaluate whether the ALJ's . . . decision satisfied the demands of the Appeals Council's remand." Id.


A claimant's residual functional capacity ("RFC") is what she can still do despite her physical, mental, non-exertional, and other limitations. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); see also Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009) (The RFC is "a summary of what the claimant is capable of doing (for example, how much weight he can lift)."). Here, the ALJ found plaintiff has the RFC "to perform light work defined in 20 CFR [§] 416.967(b)."*fn3 A.R. 13. However, plaintiff contends the RFC finding, and ultimate Step Five determination, are not supported by substantial evidence because the ALJ improperly rejected the opinion of nonexamining physician Dr. Hartman. The plaintiff is correct.*fn4

"The Commissioner may reject the opinion of a nonexamining physician by reference to specific evidence in the medical record." Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). However, while "not bound by findings made by State agency or other program physicians and psychologists, [the ALJ] may not ignore these opinions and must explain the weight given to the opinions in their decisions." S.S.R. 96-6p, 1996 WL 374180, *2 (S.S.A.);*fn5 see also 20 C.F.R. § 416.927(f) ("20 C.F.R. § 416.927(f)(2)(i) ("State agency medical and psychological consultants and other program physicians and psychologists are highly qualified physicians and psychologists who are also experts in Social Security disability evaluation. Therefore, administrative law judges must consider findings of State agency medical and psychological consultants or other program physicians or psychologists as opinion evidence. . . ."); Sawyer v. Astrue, 303 Fed. Appx. 453, 455 (9th Cir. 2008) ("An ALJ is required to consider as opinion evidence the findings of state agency medical consultants; the ALJ is also required to explain in his decision the weight given to such opinions."); Haynes v. Barnhart, 416 F.3d 621, 630 (7th Cir. 2005) ("[T]he regulations require an ALJ to consider opinions offered by medical experts, [but] an ALJ is not bound by those opinions and must evaluate them in the context of the expert's medical specialty and expertise, supporting evidence in the record, and other explanations regarding the opinion.").

Here, the ALJ rejected Dr. Hartman's limitation that plaintiff must "avoid even moderate noise[,]" stating plaintiff's "mild degree of decreased hearing in both ears does not justify the preclusion from even a moderate exposure to 'noise.'" A.R. 13. The ALJ then explained his reasoning, stating:

The [plaintiff] need not avoid high frequency, high intensity sound to a degree greater than any member of the general population. The [plaintiff] showed adequate speech reception threshold at 35 dB (right ear) and 40 dB (left ear), and very adequate speech discrimination at 80% in both ears. The [plaintiff] never wore and never needed aids. . . .

A.R. 13-14. Thus, in making the RFC determination, and rejecting any noise limitation therein, the ALJ acted as his own medical expert, substituting his opinion for Dr. Hartman's professional interpretation of the clinical audiologist's examination results, which is improper. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975); see also Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (As a lay person, an ALJ is "not at liberty to ignore medical evidence or substitute his own views for uncontroverted medical opinion"; he is "simply not qualified to interpret raw medical data in functional terms."); Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) ("'[T]he ALJ cannot arbitrarily substitute his own judgment for competent medical opinion. . . .'" (citations omitted)); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (ALJ "must not succumb to the temptation to play doctor and make [his] own independent medical findings."); Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985) (ALJ may not substitute his interpretation of laboratory reports for that of physician). Moreover, even if otherwise proper, the ALJ's rationale that plaintiff has "never needed [hearing] aids" is belied by the record, which shows that the clinical audiologist in 2003, and again in 2004, recommended binaural hearing aids for plaintiff. See A.R. 163, 166.

Additionally, Dr. Hartman's opinion is consistent with the opinions of plaintiff's treating physicians, Dr. Krider of the Formula Medical Group, who noted in plaintiff's records that she has "hearing loss sensorineural," A.R. 204, 206, 212, 220, and Dr. Samuel Wilson of the High Desert Community Care Center, who noted in plaintiff's records that she is "nerve deaf" and has "sensorineural hearing loss."*fn6 A.R. 300, 353; see also Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) ("The opinions of . . . non-examining physicians may . . . serve as substantial evidence when the opinions are consistent with independent clinical findings or other evidence in the record.").

Hypothetical questions posed to a vocational expert must consider all of the claimant's limitations, Bray v. Astrue, 554 F.3d 1219, 1228 (9th Cir. 2009); Thomas, 278 F.3d at 956, 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, since the ALJ's hypothetical question to vocational expert Joseph Mooney set forth an individual who could perform a limited range of light work, without any limitation to "avoid even moderate noise," the vocation expert's responses that plaintiff could perform the jobs of hand packager, Dictionary of Occupational Titles ("DOT") 920.587-018, assembler, DOT 706.684-030, and cleaner or housekeeper, DOT 323.687-014, A.R. 388, are not based on substantial evidence. Moreover, the job of hand packager requires medium work and exposure to "loud" noise, U.S. Dep't of Labor, Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles, 316 (1993), and although the jobs of assembler and cleaner or housekeeper require only sedentary or light work, respectively, both require exposure to "moderate" noise. Id. at 132, 283. Therefore, the ALJ's erroneous RFC assessment is not harmless error. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) ("A decision of the ALJ will not be reversed for errors that are harmless.").


Since substantial evidence does not support the ALJ's RFC assessment or Step Five determination, Lingenfelter v. Astrue, 504 F.3d 1028, 1040-41 (9th Cir. 2007), 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 properly consider plaintiff's hearing loss and augment the record as necessary.*fn7

Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1167 (9th Cir. 2008); Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 2006).


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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