The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Luis Chavez seeks judicial review of the Commissioner's final decision denying his application for Social Security Disability Insurance ("DIB") and Supplemental Security Income ("SSI") benefits. For the reasons set forth below, the decision of the Social Security Commissioner is reversed, and the matter is remanded for further proceedings consistent with this opinion.
Plaintiff was born on May 24, 1962. (Administrative Record ("AR") at 8.) He completed the fourth grade and has no other educational or vocational training. (AR at 8, 163.) Plaintiff was employed for eleven years as a forklift operator. (AR at 15, 167.)
Plaintiff filed an application for benefits on August 21, 2007, alleging that he had been disabled since May 1, 2003 due to a right ankle fracture (AR at 40, 118-120.) Plaintiff's application was denied initially on November 20, 2007, and upon reconsideration on April 18, 2008. (AR at 45-49, 53-57.) An administrative hearing was held on February 4, 2009, before Administrative Law Judge ("ALJ") Lowell Fortune at which Plaintiff was represented by attorney Bill LaTour. (AR at 5-20.) Plaintiff testified at the hearing (AR at 8-9, 14-15, 17), as did Medical Expert ("ME") Dr. Landau (AR at 10-13), and Vocational Expert ("VE") Alan E. Cummings (AR at 16-19).
On February 24, 2009, ALJ Fortune denied Plaintiff's application for benefits. (AR at 37-44.) The ALJ found that Plaintiff had not engaged in substantial gainful activity during the period at issue. (AR at 39.) The ALJ further found that the medical evidence established that Plaintiff suffered from the severe impairment of a right ankle disorder. (Id.) However, the ALJ concluded that Plaintiff's impairments did not meet, or were not medically equal to, one of the listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. (Id.) The ALJ next found that Plaintiff retained the residual functional capacity ("RFC") to: perform a full range of light work as defined in 20 C.F.R. 404.1567(b) except as according to the medical expert at the hearing, the claimant can stand/walk 2 hours of an 8-hour workday for 15-30 minutes at a time, with the use of a cane as needed and uneven surfaces should be avoided. He can sit 6 hours of an 8-hour workday with normal breaks such as every 2 hours. He can lift/carry 10 pounds frequently and 20 pounds occasionally. He can occasionally stoop and bend. He can climb stairs, but he cannot climb ladders, work at heights, or balance. He cannot operate foot pedals or controls with the right lower extremity." (Id.)
The ALJ determined that Plaintiff was unable to perform his past relevant work as a forklift operator. (AR at 42.) However, the ALJ found that there were jobs that exist in significant numbers in the national economy that Plaintiff could perform (20 C.F.R. 404.1569, 404.1569a), such as inspector, packager and assembler. (AR at 42-43.) The ALJ concluded that Plaintiff was not disabled within the meaning of the Social Security Act. See 20 C.F.R. § 416.920(f).
On June 22, 2009, the Appeals Council denied review (AR at 1-3) and Plaintiff timely commenced this action for judicial review. On April 20, 2010, the parties filed a Joint Stipulation ("Joint Stp.") of disputed facts and issues. Plaintiff contends that the ALJ erred by: (1) failing to include in the hypothetical question posed to the VE Plaintiff's use of a cane and his preclusion from walking on uneven surfaces; (2) improperly determining that Plaintiff could perform the job of hand packager/inspector; (3) failing to elicit a reasonable explanation from the VE regarding the inconsistency between the Directory of Occupational Titles ("DOT") and Plaintiff's ability to communicate in English, marginal education, illiteracy and language skills; (4) finding that Plaintiff could perform dowel inspector and assembler jobs despite his inability to speak English; and (5) failing to give clear and convincing reasons for discounting Plaintiff's credibility. (Joint Stp. at 3.) Plaintiff seeks a reversal of the Commissioner's denial of his application and payment of benefits or, in the alternative, remand for a new administrative hearing. (Joint Stp. at 45-46.) The Commissioner requests that the ALJ's decision be affirmed. (Joint Stp. at 46-47.)
After reviewing the parties' respective contentions and the record as a whole, the Court finds Plaintiff's contention regarding the ALJ's failure to make a proper credibility determination to be meritorious and remands this matter for further proceedings consistent with this opinion.*fn1
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's or ALJ's decision must be upheld unless "the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can support either affirming or reversing the ALJ's conclusion," the reviewing court "may not substitute its judgment for that of the ALJ." Robbins, 466 F.3d at 882.
Plaintiff contends the ALJ improperly discredited his subjective symptom testimony. (Joint Stp. at 35.) To determine whether a claimant's testimony about subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the alleged pain or other symptoms. Lingenfelter, 504 F.3d at 1036. "[O]nce the claimant produces objective medical evidence of an underlying impairment, an adjudicator may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain." Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). To the extent that an individual's claims of functional limitations and restrictions due to alleged pain is reasonably consistent with the objective medical evidence and other evidence in the case, the claimant's allegations will be credited. SSR 96-7p, 1996 WL 374186 at *2 (explaining 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4)).*fn2
Unless there is affirmative evidence showing that the claimant is malingering, the ALJ must provide specific, clear and convincing reasons for discrediting a ...