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Aviles v. Astrue

August 6, 2010

RITA ESTELA AVILES, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge

MEMORANDUM OPINION AND ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS PROCEEDINGS

On April 24, 2009, Plaintiff Rita Estela Aviles ("Plaintiff") filed a Complaint seeking review of the decision by the Commissioner of the Social Security Administration ("Commissioner") denying Plaintiff's application under Title II of the Social Security Act for Social Security Disability Insurance benefits. On July 6, 2009, the Commissioner filed an Answer to the Complaint. On November 13, 2009, the parties filed a Joint Stipulation ("JS") setting forth their positions and the issues in dispute.

Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before the Magistrate Judge. The matter is now ready for decision. After reviewing the pleadings, transcripts, and administrative record ("AR"), the Court concludes that the Commissioner's decision should be reversed and remanded for further proceedings in accordance with law and with this Memorandum Opinion and Order.

BACKGROUND

Plaintiff was born on June 24, 1959. (AR 40, 486).*fn1 She was 45 years old on February 17, 2005, when she protectively filed an application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. (See AR 40, 112-14, 481, 484.) Plaintiff had been working as a "wax molder" for several years, operating a machine used to make jewelry, when she allegedly developed limitations and pain in her upper extremities. (AR 32.) As a result, she has not worked since July 12, 2002, her claimed disability date. (See id.) Plaintiff is from El Salvador originally; she came to the United States and started working in approximately 1985. (AR 486.) As of June 2004, Plaintiff was 5'1" tall and weighed about 125 pounds. (See AR 379, 392.)

Plaintiff's claim was denied at the initial level on June 10, 2005 (AR 46), and at the reconsideration level on September 9, 2005. (AR 53.) On February 3, 2006, Plaintiff filed a late request for a hearing, claiming her request was late because the reconsideration denial was mailed to an incorrect address. (AR 58-66.) In an Order dated February 24, 2006, Administrative Law Judge ("ALJ") Alexander Weir III denied Plaintiff's request for a hearing and dismissed her application. (AR 42-45.) On April 23, 2006, Plaintiff filed a request for review of the ALJ's order of dismissal. (AR 67-69.) On June 13, 2006, the Appeals Council vacated the ALJ's order of dismissal, finding that Plaintiff's had good reason for her late filing, based on the incorrect mailing address, and remanded the case to the ALJ for a hearing. (AR 70-73.)

On January 23, 2007, the ALJ held an initial hearing; Plaintiff was 47 years old at that time. (AR 479-526.) At the hearing, the ALJ questioned the authenticity of the records from Plaintiff's primary treating physician, Dr. Howard Marans. (See AR 509-12.) The ALJ telephoned Dr. Marans' office from the hearing, and when the ALJ was informed that Dr. Marans was unavailable, the ALJ stated his intention to subpoena Dr. Marans' records and to have Dr. Marans testify at a supplemental hearing. (See id.)

On June 12, 2007, the ALJ held a second, supplemental hearing, by which time the ALJ had verified the authenticity of Dr. Marans' records. (See AR 527-80.) Dr. Marans did not testify at the second hearing.*fn2 (See AR 527, et seq.)

Vocational experts ("VEs") appeared and testified at both the initial and the supplemental hearing, and a Spanish language interpreter assisted Plaintiff at both hearings. (AR 479, 527.) A non-examining medical expert, Dr. William Clayton, reviewed Plaintiff's records and testified by telephone at the request of the ALJ at the supplemental hearing. (AR 527.)

On July 18, 2007, the ALJ issued a decision denying Plaintiff's DIB application at step four of the five-step sequential evaluation. (See AR 18-38.) The ALJ found that Plaintiff had the severe impairments of medial epicondylitis and a history of carpal tunnel syndrome with bilateral surgical releases performed on both of Plaintiff's wrists.*fn3 (AR 32-33.)

Nevertheless, the ALJ found that Plaintiff had the Residual Functional Capacity ("RFC")*fn4 to perform medium work with some limitations. (AR 35.) The ALJ noted that the VEs at both the initial and the supplemental hearings testified that Plaintiff had the RFC to perform her past relevant work ("PRW") as a "wax molder," a job which the Dictionary of Occupational Titles ("DOT"), no. 549.685-038, describes as light, unskilled work, and which the VE at the supplemental hearing testified is sometimes performed at a sedentary level.*fn5 (AR 37, 515, 574.) Based on these factors, the ALJ found that Plaintiff had the RFC to perform her past relevant work as a wax molder, and was capable of performing the job both as she actually performed it and as it is generally performed throughout the economy. (AR 37-38.)

On August 15, 2007, Plaintiff filed a request for review of the ALJ's decision with the Appeals Council. (AR 15, 275-78.) On March 13, 2009, the Appeals Council denied Plaintiff's request for review and affirmed the ALJ's decision. (AR 6-9.) As noted, on April 24, 2009, Plaintiff commenced the instant action.

DISPUTED ISSUES

As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as grounds for reversal or remand of the ALJ's decision:

1. Whether the ALJ erred in rejecting the opinion of the medical expert Dr. Clayton, who testified at the supplemental hearing, and, in particular, erred in rejecting Dr. Clayton's opinion that Plaintiff's condition met the criteria for a listed impairment.

2. Whether the ALJ erred in rejecting the opinions of Plaintiff's treating physicians and, in particular, the opinion of Dr. Marans.

3. Whether the ALJ erred by presenting incomplete hypothetical questions to the VEs.

4. Whether the ALJ erred by discounting the credibility of Plaintiff's subjective complaints.

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision to determine whether the ALJ's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "'more than a mere scintilla' but less than a preponderance." Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (internal quotations and citations omitted). This Court must review the record as a whole and consider adverse as well as supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Where evidence is susceptible to more than one rational interpretation, the ALJ's decision must be upheld. Morgan v. Comm'r, 169 F.3d 595, 599 (9th Cir. 1999). "However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Robbins, 466 F.3d at 882 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

DISCUSSION

The Court concludes that the ALJ's determination that Plaintiff was able to perform her past relevant work is not supported by substantial evidence and that reversal and ...


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