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Thro v. Astrue

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 30, 2010

JONATHAN THRO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income disability benefits under Title XVI of the Social Security Act. For the reasons discussed below, the court will remand the case for payment of benefits.

I. BACKGROUND

Plaintiff filed an application for supplemental security income on February 23, 2006, alleging a disability onset date of November 2, 1992. Administrative Record ("AR") 16. His application was denied initially and upon reconsideration. Id. A hearing was held on April 1, 2008 before Administrative Law Judge ("ALJ") Sandra K. Rogers. Id. Plaintiff, who was represented by attorney Jonathan A. Hendricks, and vocational expert David M. Dettner, testified at the hearing. Id. In a decision dated July 21, 2008, the ALJ determined plaintiff was not disabled.*fn1 Id. at 16-26.

The ALJ made the following specific findings:

1. The claimant has not engaged in substantial gainful activity since February 23, 2006, the application date (20 CFR 416.920(b) and 416.971 et seq.).

2. The claimant has the following severe impairments: lumbar strain/sprain, chronic anterior cruciate ligament tear, and affective mood disorder (20 CFR 416.920(c)). . . .

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

4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a) except he is limited to unskilled work. . . .

5. The claimant is unable to perform any past relevant work. . . .

6. The claimant was born May 17, 1964 and was 41 years old, which is defined as a younger individual age 18-44, on the date the application was filed (20 CFR 416.963).

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

8. 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).

9. 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 416.960(c) and 416.966). . . .

10. The claimant has not been under a disability, as defined in the Social Security Act, since February 23, 2006, the date the application was filed (20 CFR 416.920(g)).

Id. at 18-26.

Plaintiff requested that the Appeals Council review the ALJ's decision. However, on February 27, 2009, the Appeals Council denied review, leaving the ALJ's decision as the final decision of the Commissioner of Social Security. Id. at 5.

II. LEGAL STANDARDS

The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).

The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). "'It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).

"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). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

III. ANALYSIS

Plaintiff argues that although the ALJ purported to credit the opinions of Drs. Smith and Pierce, the hypothetical that he posed to the vocational expert (VE) failed to reflect the specific psychological limitations assessed by those doctors. Moreover, plaintiff argues, the ALJ failed to properly credit the testimony of the VE in response to questions which accurately reflected his functional limitations.*fn2 Dckt. No. 16 at 21-30.

The relevant portion of the ALJ's opinion reads: Dr. Pierce reported on June 21, 2006, that the claimant retained the capacity to complete simple and repetitive to higher demand vocational skills and adapt to minimal changes in a work environment. He was found to have potential difficulty working effectively with others and could concentrate adequately for a regular work schedule for a full workweek. (Exhibit 1F page 5).

Dr. Kumar reported on August 25, 2006, that the claimant could stand and walk at least four hours; lift and carry fifty pounds occasionally and twenty five pounds frequently; was unable to walk on uneven ground; can occasionally bend, stoop, kneel, and climb; and was unrestricted in upper extremity activities and sitting. (Exhibit 2F page 6.)

Pursuant to 20 CFR § 404.1527, the undersigned assigns significant weight to these opinions, as they are well-supported by the medical evidence, including the claimant's medical history and clinical and objective signs and findings as well as detailed treatment notes, which provides a reasonable basis for claimant's chronic symptoms and resulting limitations. Moreover, the opinions are not inconsistent with other substantial evidence of record. In addition, these physicians are examining sources that are familiar with Social Security Rules and Regulations and legal standards set forth therein and are best able to provide a superior analysis of the claimant's impairments and resulting limitations . . . .

A Physical Residual Functional Capacity Assessment dated September 25, 2006 by B.N. Sheehy, M.D., a State medical consultant, found that objective medical evidence supported a finding that the claimant could perform a significant range of light work. The claimant was found to [be] limited in pushing and pulling with the lower extremities and be only occasionally able to climb stairs, ramps, ladders, ropes or scaffolds and occasionally balance, stoop, kneel, couch and crawl. He was found to need to avoid all exposure to hazards (machinery, heights, etc.). (Exhibit 5F.) The undersigned has assigned significant weight to the state agency medical consultant's opinion with regard to the claimant's physical limitations pursuant to 20 CFR § 404.1527 and SSR 96-6p because it was based upon a thorough review of the evidence and familiarity with Social Security Rules and Regulations and legal standards set forth therein. It is well-supported by the medical evidence, including the claimant's medical history and clinical and objective signs and findings as well as detailed treatment notes, which provides a reasonable basis for claimant's chronic symptoms and resulting limitations. Moreover, this opinion is not inconsistent with other substantial evidence of record, but the claimant is given the benefit of the doubt and found to be able to perform sedentary work.

A Psychiatric Review Technique dated September 19, 2006 by Craig A. Smith, M.D., a state psychiatric consultant, found that the objective medical evidence supported a finding that the claimant had [a] medically determinable affective disorder not otherwise specified. The claimant was found to be mildly limited in activities of daily living, have moderate difficulties maintaining social functioning, have mild difficulties in maintaining concentration, persistence or pace, and have [had] one or two episodes of decompensation. The claimant was not found to have a history of chronic organic mental disorder. (Exhibit 3F).

A Mental Residual Functional Capacity Assessment of the same date by Dr. Smith found that the objective medical evidence supported a finding that the claimant was moderately limited in his ability to: understand, remember, and carry out detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance and be punctual with customary tolerances; complete a normal workday and work week without an unreasonable number and length of rest periods; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; and get along with co-workers or peers without distracting them or exhibiting behavioral extremes[].

The claimant was found not [to] be significantly limited in all other areas of mental activity. The claimant was found able to understand and remember in order to perform simple tasks or unskilled work, attend and concentrate in order to maintain pace and persistence for simple tasks or unskilled work on an extended basis, relate to peers but would probably work better with limited public contact, and able to adjust when necessary. (Exhibit 4F).*fn3 The State psychiatric consultant opined that the claimant functions in a generally independent fashion and can meet various personal needs from a mental standpoint. The claimant is capable of completing daily living functions with the constraints of their medical condition. The claimant manages with a basic routine. The claimant can relate to others and is capable of showing socially appropriate behaviors and negotiating in the community. The claimant is capable of functioning in a competitive work environment. The undersigned, per SSR 96-6p has assigned significant weight to these opinions because they were based upon a thorough review of the evidence and familiarity with Social Security Rules and Regulations and legal standards set forth therein. They are well-supported by the medical evidence, including the claimant's medical history and clinical and objective signs and findings as well as detailed treatment notes, which provides a reasonable basis for claimant's chronic symptoms and resulting limitations.

Moreover, the opinions are not inconsistent with other substantial evidence of record.

AR 24-25. As noted above, the ALJ then found that plaintiff had the residual functional capacity (RFC) to perform sedentary work, except that he was limited to unskilled work.

The ALJ's conclusory finding that plaintiff could perform all unskilled sedentary work, despite her crediting of Dr. Smith's opinion that plaintiff was moderately limited in his ability to "understand, remember, and carry out detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance and be punctual with customary tolerances; complete a normal workday and work week without an unreasonable number and length of rest periods; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; and get along with co-workers or peers without distracting them or exhibiting behavioral extremes," and her crediting of Dr. Pierce's opinion that plaintiff could adapt to "minimal" changes in his work environment but would have potential difficulty working effectively with others, is not supported by substantial evidence in the record. The ALJ's opinion provides no explanation of how all of these mental limitations fall within the simple umbrella of unskilled sedentary work.*fn4

That the mental limitations assessed by Drs. Smith and Pierce are not adequately accounted for by the RFC of unskilled sedentary labor is illustrated by the colloquy between the ALJ, the VE, and plaintiff's attorney at the hearing. First, the ALJ asked the VE whether a person of the same education and work experience as plaintiff who was limited to sedentary work could do any of the claimant's past work.*fn5 Id. at 71. The VE responded that such a person could not. The ALJ then asked if there was other work that such a person could perform. Id. The VE testified that, if the person was limited to unskilled sedentary work, there were a number of jobs that the person could perform. Id. The ALJ asked no further questions of the VE. Id.

Plaintiff's attorney asked the VE to add to the judge's hypothetical the following limitations: the individual could stand and walk four hours in an eight-hour day, but after each hour the individual would require more than a two-minute sit break; the individual could occasionally climb, balance, stoop, crouch, kneel and crawl, and avoid all exposure to hazards and machinery; and the individual would be moderately restricted in his ability to understand, remember, and carry out detailed instructions, to maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance and be punctual, complete a normal work day and work week without interruptions from psychologically based symptoms, "perform at a consistent pace without a[n] [un]reasonable number and length of rest periods," interact appropriately with the public, accept instructions and respond to criticism by supervisors, and get along with co-workers without distracting them or exhibiting behavioral extremes.*fn6 Id. at 73-74. The VE testified: ". . . cumulatively this many moderate difficulties, I think, would preclude them being tolerated in unskilled types of work where they're readily replaceable, so I don't think they would be able to hold competitive jobs with that many moderate difficulties." Id. at 74.

Hypothetical questions posed to a vocational expert must set out all the substantial, supported limitations and restrictions of the particular claimant. Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989). If a hypothetical does not reflect all the claimant's limitations, the expert's testimony as to jobs in the national economy has no evidentiary value. DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). While the ALJ may pose to the expert a range of hypothetical questions, based on alternate interpretations of the evidence, the hypothetical that ultimately serves as the basis for the ALJ's determination must be supported by substantial evidence in the record as a whole. Embrey v. Bowen, 849 F.2d 418, 422-23 (9th Cir. 1988).

Here, the ALJ's single hypothetical question to the VE did not include the limitations from the physicians' opinions that the ALJ purported to credit. It is clear that the ALJ's RFC determination was erroneous based on the different answers the VE gave in response to the ALJ's and the attorney's hypothetical questions. When asked whether unskilled sedentary jobs existed, the VE said that they did. But when the VE was asked whether there were any unskilled sedentary jobs that could be performed by an individual with plaintiff's specific physical limitations, as assessed by Dr. Sheehy (who's opinion was credited by the ALJ), and plaintiff's specific mental limitations, as assessed by Dr. Smith (who's opinion was also credited), the VE testified that he thought such an individual would not be able to hold a job.*fn7

As the ALJ credited the opinions of Drs. Smith and Sheehy, the hypothetical posed by the attorney is the correct hypothetical, and the VE's testimony that no jobs existed for such an individual commands a step-five finding of disability.

IV. CONCLUSION

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment or remand is granted;

2. The Commissioner's cross-motion for summary judgment is denied;

3. The case is remanded for payment of benefits; and

4. The Clerk is directed to enter judgment for plaintiff.


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