The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
DECISION AND ORDER ON SOCIAL SECURITY COMPLAINT (DOC. 1)
ORDER DIRECTING REMAND PURSUANT TO SENTENCE FOUR of 42 U.S.C. § 405(g)
ORDER DIRECTING THE CLERK TO ENTER JUDGMENT FOR PLAINTIFF JOEANN COLEMAN AND AGAINST DEFENDANT MICHAEL J. ASTRUE
Plaintiff Joeann Coleman ("Plaintiff") seeks judicial review of an administrative decision denying her claim for disability insurance benefits ("DIB") under Title II of the Social Security Act (the "Act"). Pending before the Court is Plaintiff's appeal from the administrative decision of the Commissioner of Social Security ("Commissioner"). The decision under review is that of Social Security Administration (SSA) Administrative Law Judge (ALJ) Bert C. Hoffman, Jr., dated July 17, 2008 (A.R. 13-21), issued after a hearing held on May 13, 2008. (A.R. 13, 34-83).*fn1
On November 13, 2008, Plaintiff's complaint was filed in the United States District Court for the Eastern District of California. (Doc. 2). Plaintiff filed her opening brief on July 2, 2009.
(Doc. 16). The Commissioner filed his opposition brief on September 2, 2009. (Doc. 18). Plaintiff filed a reply brief on September 17, 2009. (Doc. 19). The matter has been submitted without oral argument to the Magistrate Judge.
Plaintiff timely filed her complaint on November 3, 2008. This Court has subject matter jurisdiction pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g).
II. Standard and Scope of Review
Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The Court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion; it may not simply isolate a portion of evidence that supports the decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). It is immaterial that the evidence would support a finding contrary to that reached by the Commissioner; the determination of the Commissioner as to a factual matter will stand if supported by substantial evidence because it is the Commissioner's job, and not the Court's, to resolve conflicts in the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th Cir. 1975).
In weighing the evidence and making findings, the Commissioner must apply the proper legal standards.Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must review the whole record and uphold the Commissioner's determination that the claimant is not disabled if the Commissioner applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If the Court concludes that the ALJ did not use the proper legal standard, the matter will be remanded to permit application of the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th Cir. 1987).
In order to qualify for benefits, a claimant must establish that she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 1382c(a)(3)(A). A claimant must demonstrate a physical or mental impairment of such severity that the claimant is not only unable to do the claimant's previous work, but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden of establishing a disability is initially on the claimant, who must prove that the claimant is unable to return to her former type of work; the burden then shifts to the Commissioner to identify other jobs that the claimant is capable of performing considering the claimant's residual functional capacity, as well as her age, education and last fifteen years of work experience. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).
The regulations provide that the ALJ must make specific sequential determinations in the process of evaluating a disability: 1) whether the applicant engaged in substantial gainful activity since the alleged date of the onset of the impairment, 20 C.F.R. § 404.1520;*fn2 2) whether solely on the basis of the medical evidence the claimed impairment is severe, that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities, 20 C.F.R. § 404.1520(c); 3) whether solely on the basis of medical evidence the impairment equals or exceeds in severity certain impairments described in Appendix I of the regulations, 20 C.F.R. § 404.1520(d); 4) whether the applicant has sufficient residual functional capacity, defined as what an individual can still do despite limitations, to perform the applicant's past work, 20 C.F.R. §§ 404.1520(e), 404.1545(a); and 5) whether on the basis of the applicant's age, education, work experience, and residual functional capacity, the applicant can perform any other gainful and substantial work within the economy, 20 C.F.R. § 404.1520(f).
With respect to SSI, the five-step evaluation process is essentially the same. See 20 C.F.R. § 416.920.
The ALJ concluded that although there had been an earlier, unfavorable decision dated October 13, 2006, Plaintiff had presented new and material evidence warranting a change in her residual functional capacity (RFC). As a result, the presumption of continuing non-disability that would otherwise apply*fn3 was not applicable, although the earlier decision was res judicata as to the period through the date of decision. Thus, the ALJ considered the period beginning October 14, 2006. (A.R. 13l.)
The ALJ found that Plaintiff had severe impairments of right knee internal derangement, back pain, degenerative joint disease, headaches, depression, and moderate obesity. However, the ALJ determined that Plaintiff had no impairment or combination of impairments that met or medically equaled a listed impairment. (A.R. 15-16.) Plaintiff retained the RFC to lift and carry twenty pounds occasionally and ten pounds frequently, to stand and walk two hours and sit six hours in an eight-hour workday, and to perform simple, repetitive tasks with limited contact with co-workers. (A.R. 17.) Plaintiff could not perform her past relevant work as an IHSS care provider, but considering Plaintiff's age (forty-four years old at the time of the alleged onset of disability), her limited education, and her ability to communicate in English, the ALJ concluded that Plaintiff's exertional and non-exertional limitations had little or no effect on the occupational base of unskilled sedentary work. Therefore, the ALJ found that she had not been under a disability from October 14, 2006 through July 17, 2008, the date of decision. (A.R. 20-21.)
C. Plaintiff's Contentions
Plaintiff argues that with respect to Plaintiff's RFC that, 1) the ALJ failed to state reasons for apparently rejecting limitations assessed by consulting examining psychologist Dr. Greg Hirokawa although the ALJ relied upon this opinion significantly, and 2) the record did not contain substantial evidence to support the physical RFC. Further, in light of her multiple limitations that could have affected the unskilled sedentary occupational base, including but not limited to a need to use a cane to ambulate, Plaintiff contends that the ALJ erred at step five by failing to obtain necessary vocational expert testimony to permit an informed assessment of the occupational base.
In the portion of Plaintiff's opening brief relating to medical evidence, Plaintiff states the following:
Joeann Coleman does not dispute the ALJ's finding of a sedentary residual functional capacity prior to September 2007. Coleman disputes the ALJ's failure to find that Coleman required the use of a cane after her injury of September 2007. Coleman also disputes the ALJ's finding regarding the severity of Coleman's mental impairment throughout the time period. The relevant mental medical evidence is Dr. Hirokawa's consultative examination opinion and the treatment records from Fresno Mental Health as we have no distinct treating opinion. (A.R. 229-234, 277-350). The relevant exertional medical evidence includes records and prescriptions for Coleman's cane after September 2007. (A.R. 353-373). (Opening Brief p. 3, ll. 13-21.) In his brief, Defendant Commissioner states, Other than the evidence concerning her knee injury and use of a cane, the evidence of Plaintiff's physical impairments is not relevant because Plaintiff does not challenge the ALJ's determination regarding her physical impairments. In fact, Plaintiff concedes that the physical residual functional capacity assessed by the ALJ was reasonable except for Plaintiff's post September of 2007 knee problems and her use of a cane. Plaintiff's Brief at 12.
(Deft.'s Brief p. 3, n. 1.) Therefore, with respect to Plaintiff's exertional or physical RFC, the Court will summarize the evidence concerning her knee problems beginning in September 2007 as well as any evidence concerning Plaintiff's use of a cane. With respect to Plaintiff's mental impairment, Dr. Hirokawa's report and all pertinent treatment notes will be summarized.*fn4
Treatment records from University Medical Center (UMC) for the period from May 26, 2006 through June 7, 2007, reflect that Plaintiff received treatment in the form of physical therapy and medications (Vicodin, Naproxen, Atenolol, Metoprolol, Tramadol, Elavil, and steroid injection)*fn5 for depression, back and knee pain and swelling, kidney stone, headache, and hypertension. (A.R. 241-50.)
On February 12, 2007, Greg Hirokawa, Ph.D., reviewed medical reports and a marriage family therapist's progress note that opined that Plaintiff had major depressive disorder, recurrent with psychotic features. Dr. Hirokawa then performed a comprehensive psychiatric evaluation of Plaintiff, who was forty-four years old. (A.R. 229-34.) Plaintiff was punctual and cooperative. She was oriented in all three spheres and exhibited fair hygiene, posture, and eye-contact. She exhibited appropriate facial expressions, had a pleasant attitude but a depressed mood and although she showed an appropriate affect, she was tearful at times. She had normal psychomotor functioning, stream of mental activity and association of thought. Her speech was characterized by clear articulation, normal velocity and volume, and appropriate quantity. Her intellectual functioning appeared to be within the below-average range and her recent and remote memory appeared to be intact. She was able to perform a simple, three-step command but could not spell the word "world" backwards. She could perform a simple, two-digit sum but could not accurately perform a multiplication problem. There was no evidence of vocal or motor ticks, delusional thinking or response to internal stimuli. Her contact with reality contact appeared to be intact. She gave fair effort and completed a questionnaire concerning her psycho-social history.
Plaintiff reported feeling depressed and anxious and she reported hearing voices now and then telling her to hurt herself. She reported that she saw shadows. She reported that it was difficult to sleep and be around others; that she had mood swings, memory problems, withdrawal, anger, confusion, fair appetite, and stress. She said she had a long history of anger, depression, and problems getting along with people, with depression worsening for two years because of physical problems (right knee problems, arthritis in the lower back, migraines, diabetes, and high blood pressure), pain, financial issues, and being unable to work. She denied suicidal ideation. She reported that she had been in a psychiatric hospital once in 1994 for depression but had first received mental health treatment during the eight months preceding the hearing. She had completed the eleventh grade with below-average performance in special education classes and a history of fights and conduct problems. Plaintiff reported that she could drive and looked for a job every day.
Plaintiff cooked, did laundry, and swept. However, she relied on her daughter to drive her around, take her out and to help her pay her bills. She reported that she stopped working in April 2006 due to health problems. The longest job she held was performing in-home services for two years, although she had also worked at a packing company, farms, and provided childcare. She had been fired for getting into a fight. She reported that her problems at work were due to getting into fights and arguments with other co-workers. She reported that she was once arrested for assault.
On axis I, Dr. Hirokawa's diagnosis was depressive disorder, not otherwise specified and anxiety disorder, not otherwise specified. On axis II, he diagnosed personality disorder, not otherwise specified, rule out low average intellectual functioning. Also, he determined that Plaintiff's global assessment of functioning (GAF) was 61. (A.R. 232.) The doctor opined that Plaintiff's symptoms of depression and anxiety were within the mild range and primarily due to her physical problems and associated limitations; her reported hallucinations did not appear to reflect a formal thought disorder. Although her intellectual functioning appeared to be at a low-average level, her communication skills and response to treatment for depression, were fair. The likelihood of her mental condition's improving within the next twelve months was fair. She appeared to have a personality disorder consisting of poor interpersonal skills, anger problems, sensitivity to criticism, and misinterpreting others. (A.R. 233.)
Dr. Hirokawa opined that with respect to her psychiatric condition only, Plaintiff was mildly limited in her ability to remember location and work-like procedures, understand and remember very short, simple and detailed instructions, and to carry out very short, simple instructions; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual; and sustain an ordinary routine without special supervision. Her social judgment and awareness of socially appropriate behavior was also mildly limited. (A.R. 233-34.) Plaintiff was mildly to moderately limited in her ability to complete a normal workday and workweek without interruptions from psychologically based symptoms, perform at a consistent pace, withstand the stress of a routine workday, and deal with various changes in the work setting. (Id.) Plaintiff was moderately limited in her ability to accept ...