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Lopez v. Astrue

July 1, 2010

JOSE MIGUEL LOPEZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Jose Miguel Lopez seeks judicial review of the Commissioner's denial of his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. For the reasons discussed below, the decision of the Commissioner is REVERSED and the matter REMANDED for further proceedings consistent with this opinion.

I. Factual and Procedural History

Plaintiff was born on February 14, 1953 and was 53 years old at the time of the administrative hearing. (Administrative Record ("AR") 18, 46.) He has two years of education in El Salvador with no other specialized trade or vocational training. (AR 14, 83.) Plaintiff has relevant work experience as a truck driver, courier, punch press operator, construction laborer, and machine operator. (AR 14, 63.)

Plaintiff filed an application for DIB on September 30, 2005, alleging that he had been disabled since January 30, 2004, due to back and left shoulder injuries. (AR 13, 46-48.) Plaintiff's application was denied initially on January 23, 2006. (AR 39-44.) An administrative hearing was held on August 28, 2006 before Administrative Law Judge ("ALJ") Robert J. Grossman. Plaintiff, assisted by a non-attorney representative, testified through an interpreter. Vocational Expert ("VE") Barbara Miksik also testified. (AR 171-205.)

On June 14, 2007, ALJ Grossman denied Plaintiff's application for benefits. (AR 13-20.) The ALJ found that Plaintiff had not engaged in substantial gainful activity during the time period at issue. (AR 19.) The ALJ further found that the medical evidence established that Plaintiff suffered from the following severe impairments: degenerative disc disease of the cervical and lumbar spines and impingement syndrome of the left shoulder. (Id.) However, the ALJ concluded that Plaintiff's impairments did not meet, or were not medically equal to, one of the impairments listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. (Id.) The ALJ concluded that Plaintiff retained the residual functional capacity ("RFC") to "lift 50 pounds occasionally, lift and carry 25 pounds frequently, walk and stand 6 hours in an 8 hour work day, occasional climbing, balancing, stooping, kneeling, crouching and crawling, and no more than occasional pushing, pulling, and overhead reaching with the left upper extremity." (Id.) The ALJ found that Plaintiff has the RFC to perform a significant range of light to medium work. 20 C.F.R. § 404.1567. (Id.) The ALJ determined that Plaintiff was unable to perform his past relevant work. (Id.) However, the ALJ found, based on the VE's testimony, that there were jobs that exist in significant numbers in the national economy that Plaintiff could perform, such as Surveillance System Monitor and Information Clerk. (Id.) Accordingly, the ALJ concluded that Plaintiff was not disabled within the meaning of the Social Security Act. (AR 20.)

On August 17, 2009, the Appeals Council denied review (AR 6-8), and Plaintiff timely commenced this action for judicial review. On June 18, 2010, the parties filed a Joint Stipulation ("Joint Stp.") of disputed facts and issues, including: (1) whether the ALJ failed to provide Plaintiff an opportunity to examine the VE; (2) whether the hypothetical question posed to the VE was incomplete and inaccurate; (3) whether the ALJ failed to resolve a possible conflict between the Dictionary of Occupational Titles ("DOT") and the VE's testimony; (4) whether the ALJ's finding on Plaintiff's RFC was supported by substantial evidence and whether the ALJ failed to properly consider the treating physician's opinion; (5) whether the ALJ failed to properly develop the record; and (6) whether the ALJ improperly discredited Plaintiff's testimony. (Joint Stp. 3-4.) Plaintiff requests that this Court reverse and remand for an award of benefits, or in the alternative, reverse and remand for a new administrative hearing. (Joint Stp. 39.) The Commissioner requests that the ALJ's decision be affirmed. (Id.)

After reviewing the parties' respective contentions and the record as a whole, the Court finds Plaintiff's contention regarding the ALJ's error in failing to pose a complete hypothetical to the VE because he did not include Plaintiff's language limitations and because the hypothetical failed to accurately reflect the RFC to be meritorious and remands this matter for further proceedings consistent with this opinion.*fn1

II. Standard of Review

Under 42 U.S.C. § 405(g), a district court may review the Social Security Commissioner's decision to deny benefits. The Court must uphold the Social Security Administration's disability determination unless it is not supported by substantial evidence or is based on legal error. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)(citing Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)). Substantial evidence means more than a scintilla, but less than a preponderance; it is evidence that "a reasonable person might accept as adequate to support a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)(citing 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.

III. Discussion

The Court agrees with Plaintiff that the ALJ propounded an incomplete hypothetical to the VE because the ALJ did not include in the hypothetical Plaintiff's language limitations and because the hypothetical did not accurately reflect the RFC finding. (Joint Stp. 9.) The Court will address each of these issues in turn.

Because Plaintiff established that he was not able to perform his past relevant work, the Commissioner had the burden of showing that Plaintiff could perform other work that exists in significant numbers in the national economy. Lounsburry v. Barnhart, 468 F.3d 1111, 1114-15 (9th Cir. 2006). The Commissioner can meet this burden in two ways: (1) through the testimony of a VE or (2) by reference to the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, App. 2, §§ 200.00-204.00 ("the grids"). Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001).

Under the governing legal standard, "[i]n order for the testimony of a [VE] to be considered reliable, the hypothetical posed must include all of the claimant's functional limitations, both physical and mental, supported by the record." Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002) (internal quotation marks omitted) (citing Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995)); see also Light v. Soc. Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997). However, the ALJ is not obliged to incorporate restrictions that were not supported by the record. See Osenbrock v. Apfel, 240 F.3d 1157, ...


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