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James v. Astrue

March 4, 2010


The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge


Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act").

For the reasons that follow, plaintiff's Motion for Summary Judgment is granted, the Commissioner's Cross Motion for Summary Judgment is denied, and this case is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further development and reconstruction of the record.


Plaintiff was born on July 6, 1973. (Tr. at 33). Plaintiff applied for disability benefits on September 26, 2005. (Tr. at 47). Plaintiff alleged that he was unable to work due to severe neck and back pain, leg injury, weakness on left side, gout and arthritis in both feet and diabetes. (Tr. at 41. ) In a decision dated February 20, 2008, ALJ L. Kalei Fong made the following findings:*fn1

1. The claimant met the insured status requirements of the Social Security Act through December 31, 2005.

2. The claimant has not engaged in substantial gainful activity since April 19, 2000, the alleged onset date (20 CFR 404.1520(b), 404,1571 et seq., 416.920(b) and 416.971 et seq.).

3. The claimant has the following severe impairments: diabetes, hypertension, herniated cervical disc, seizures, headaches, lumbago and obesity. (20 CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work tasks that allow for the avoidance of hazardous heights and machinery.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on July 6, 1973, and was 26 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).

8. The claimant has a high school education and is able to communicate in English. (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1560(c), 404.1566(c), and 416.966).

11. The claimant has not been under a disability as defined by the Social Security Act, from April 19, 2000 through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. at 17-23.)


Plaintiff has raised the following issues: A) whether the ALJ failed to develop the record by failing to recontact Dr. Martin for clarification; B) whether the ALJ failed to credit plaintiff's testimony and third party statements regarding his pain and functional limitations without clear and convincing reasons for doing so; C) whether the ALJ failed to properly assess plaintiff's Residual Functional Capacity (RFC), failed to utilize the expertise of a vocational expert, and as a result found plaintiff capable of performing light work.


The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). ANALYSIS

A. Whether the ALJ Failed to Develop

Plaintiff argues that the ALJ failed to develop the record by recontacting the consulting physician, Dr. Martin, for clarification of his report. Dr. Martin's report is the only report in the record by either a consulting or treating physician.

An ALJ has an independent duty to develop the record when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence. Mayes v. Massanari, 276 F.3d 453,459 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001);*fn2 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). The ALJ also has an independent duty to contact reporting medical sources to resolve ambiguities and adequately evaluate the evidence. 20 C.F.R. §§ 404.1512(e)(1), 416.912(e)(1); Social Security Ruling SSR 96-5p ("For treating sources, the rules also require that we make every reasonable effort to recontact such sources for clarification when they provide opinions on issues reserved to the Commissioner and the bases for such opinions are not clear to us").

Dr. Martin examined plaintiff on April 25, 2007. (Tr. at 207). He was not provided with any of plaintiff's medical records. (Tr. at 207.) Dr. Martin stated that plaintiff's chief complaints were diabetes, headaches and low back pain. (Tr. at 207.) Dr. Martin's report contains plaintiff's description of his medical history:

Claimant reports being identified and treated for diabetes about 2004. Emergency room attention and hospitalization was required at that time due to extremely high blood sugar and subsequent ER visits had been required due to similar elevations. Medication compliant was report[ed] to be good and claimant has apparently not been identified to have related end-organ damage. The claimant has not had heart attack and does not experience angina. The claimant has been using insulin recently and checks fingersticks about once a day, which run approximately 230. The claimant reports occasionally forgetting to take my "insulin." A recent ophthalmologic check was "O.K."

The claimant notes frequent headaches for the last four years for which some sort of evaluation seems to have occurred. The claimant suspects it relates to low back injury, which was evaluated at one point and this included imaging. Axial spine injections have been given which offered little relief. Two collapsed discs have been identified. Weakness, numbness, radiation, and incontinent were not reported and no additional specific treatment is scheduled at this time. The claimant has been instructed to avoid foods such as "beef and hamburger" and these dietary maneuvers seem to curtail arthralgies and flares.

The claimant has been treated for which sounds like essential hypertension as well since 2004 without objective evidence of related end organ damage. (Tr. at 207.)

In his report, Dr. Martin made the following observations. He noted that plaintiff had no obvious difficulty getting on or off the examining table or moving about the site. (Tr. at 207). Plaintiff did not use any assistive devices. (Tr. at 207.) The cardiac examination of plaintiff revealed a regular rate and rhythm without murmurs, rubs or gallops. (Tr. at 208.) Plaintiff did not grimace or make pain vocalizations during the musculoskeletal examination. (Tr. at 208.) The examination of plaintiff's cervical spine revealed the following results:

MovementObserved Degrees of MovementNormal forward flexion4550 extension3060 right lateral flexion4545 left lateral flexion4545 right rotation6080 left rotation6080

(Tr. at 208.)

The examination of plaintiff's dorsolumbar spine revealed the following results:

MovementObserved Degrees of MovementNormal flexion6090 extension2525 right lateral flexion2525 left lateral flexion2525

(Tr. at 208.)

Dr. Martin found that plaintiff was able to squat and arise from the sitting position. (Tr. at 208). His examination of plaintiff's shoulder revealed the following results:

MovementObserved Degrees of Movement Normal  RightLeft  abduction15090150 adduction303030 forward elevation15090150 extension404040

(Tr. at 208.)

The results of the examinations of plaintiff's elbow, wrist, hip, knee and ankle were all within the ...

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