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Mark Frice v. Michael J. Astrue


January 10, 2011


The opinion of the court was delivered by: Carla M. Woehrle United States Magistrate Judge


The parties have consented, under 28 U.S.C. § 636(c), to the jurisdiction of the undersigned Magistrate Judge. Plaintiff seeks review of the Commissioner's denial of disability benefits. As discussed below, the court finds that the Commissioner's decision should be reversed and this matter remanded for further proceedings.


Plaintiff Mark Frice was born on April 8, 1963, and was forty-five years old at the time of his most recent administrative hearing. [AR 23.] He has a high school education and past relevant work experience as a self-employed landscaper and corrections officer.

[Id.] Plaintiff alleges disability on the basis of problems with his ankles, feet, wrists, and hands. [AR 171, 192, 196, 198, 208, 210, 217, 220, 221, 223.]


Plaintiff's complaint was filed on June 26, 2009. On January 21, 2010, Defendant filed Plaintiff's Administrative Record ("AR"). On March 31, 2010, the parties filed their Joint Stipulation ("JS") identifying matters not in dispute, issues in dispute, the positions of the parties, and the relief sought by each party. This matter has been taken under submission without oral argument.


Plaintiff applied for a period of disability and disability insurance benefits ("DIB") on March 13, 2006, alleging disability since March 22, 2003. [JS 2.] Plaintiff met the insured status requirements of the Social Security Act through March 31, 2008. [AR 20.] After the application was denied initially and on reconsideration, an administrative hearing was held on January 14, 2008, before an Administrative Law Judge ("ALJ"). [AR 27-28.] Plaintiff appeared with counsel, and testimony was taken from Plaintiff and a vocational expert. [Id.] Because the ALJ retired, a second hearing, through video, was held before a new ALJ on June 10, 2008. [AR 49-51.] Plaintiff appeared with counsel, and testimony was taken from Plaintiff and a vocational expert. [Id.] The ALJ denied benefits in a decision issued on June 24, 2008. [AR 15-25.] When the Appeals Council denied review on February 5, 2009, the ALJ's decision became the Commissioner's final decision. [AR 11-14.]


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) findings and decision should be upheld if they are free of legal error and supported by substantial evidence. However, if the court determines that a finding is based on legal error or is not supported by substantial evidence in the record, the court may reject the finding and set aside the decision to deny benefits. See Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). "Substantial evidence is more than a scintilla, but less than a preponderance." Reddick, 157 F.3d at 720. It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Id. To determine whether substantial evidence supports a finding, a 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." Id. "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162.



To be eligible for disability benefits a claimant must demonstrate a medically determinable impairment which prevents the claimant from engaging in substantial gainful activity and which is expected to result in death or to last for a continuous period of at least twelve months. Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 721; 42 U.S.C. § 423(d)(1)(A).

Disability claims are evaluated using a five-step test:

Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.

Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.

Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four.

Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.

Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 C.F.R. § 404.1520, § 416.920. If a claimant is found "disabled" or "not disabled" at any step, there is no need to complete further steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520.

Claimants have the burden of proof at steps one through four, subject to the presumption that Social Security hearings are non-adversarial, and to the Commissioner's affirmative duty to assist claimants in fully developing the record even if they are represented by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 1288. If this burden is met, a prima facie case of disability is made, and the burden shifts to the Commissioner (at step five) to prove that, considering residual functional capacity ("RFC")*fn1 , age, education, and work experience, a claimant can perform other work which is available in significant numbers. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920.


Here, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged disability onset date (step one); that Plaintiff had "severe" impairments, namely status post traumatic sprain and torn ligaments of the ankle and surgical repair, with mild talofibular arthritis and plantar fascitis (step two); and that Plaintiff did not have an impairment or combination of impairments that met or equaled a "listing" (step three). [AR 20-21.] The ALJ determined that Plaintiff had an RFC to lift/carry twenty pounds occasionally and ten pounds frequently; sit unlimited hours during an eight-hour workday; stand or walk for four hours in an eight-hour workday; never climb ropes, ladders or scaffolding; occasionally crawl; occasionally climb stairs or ramps; occasionally balance, work at heights, or walk on uneven terrain; perform no frequent running or jumping; and never perform prolonged walking or standing; and needs sit breaks from standing or walking for fifteen minutes each hour. [AR 21.] Plaintiff's RFC precluded him from returning to his past relevant work (step four). [AR 23.] The vocational expert testified that a person with Plaintiff's RFC and acquired work skills could perform work in the national economy, such as information clerk (step five). [AR 24.] Accordingly, Plaintiff was found not "disabled" as defined by the Social Security Act. [AR 25.]


The parties' Joint Stipulation identifies the following disputed issues:

1. "Whether the ALJ improperly rejected the opinions of Plaintiff's treating nurse practitioner and treating chiropractor under Social Security Ruling 06-3p";

2. "Whether the ALJ failed in the duty to fully and properly develop the record by pursuing all relevant evidence";

3. "Whether the ALJ failed to properly analyze the effects of Plaintiff's obesity on his physical impairments under SSR 02-1p";

4. "Whether the ALJ's findings on Plaintiff's residual functional capacity is not supported by substantial evidence and whether the relied-upon hypothetical question to the vocational expert was incomplete and inaccurate"; and

5. "Whether the ALJ improperly discredited the testimony of Plaintiff."

[JS 4.]

As discussed below, Issue Two is dispositive.


During the administrative hearing of June 10, 2008, Plaintiff testified that he had two surgeries for carpal tunnel syndrome approximately twenty years earlier. [AR 54.] Plaintiff testified that the condition was "still very painful." [Id.] The ALJ next asked Plaintiff who was treating him for that condition, and Plaintiff responded, "I see my family doctor, Dr. Leese." [Id.] Later in the hearing, Plaintiff testified that he sees Dr. Leese "every three months or so." [AR 69.] He also testified that the carpal tunnel surgeries gave him "[b]rief relief, and once I started activities, it returned." [Id.] Plaintiff specified that problems in his wrists and arms precluded him from using a keyboard for more than ten to fifteen minutes and from holding onto items. [AR 70.]

The record does not include any treatment records by Dr. Leese. However, during the hearing, the ALJ asked Plaintiff's counsel whether any additional records needed to be considered before a decision was made, and counsel responded, "No, your honor." [AR 53.]

In the administrative decision, the ALJ found that Plaintiff's carpal tunnel syndrome was a "medically determinable but not severe impairment." [AR 21.] In so finding, the ALJ acknowledged Plaintiff's allegations that he had two surgical corrections for the condition and that the condition was increasingly interfering with his manipulative abilities. [Id.] On the other hand, the ALJ determined that, "The claimant has not sought or obtained ongoing care for this condition" . . . "which entirely undermines his complaints of a severe condition." [Id.] Accordingly, Plaintiff's carpal tunnel syndrome was excluded at step two of the five-step disability evaluation. [Id.]


Because the step two finding with regard to Plaintiff's claim of carpal tunnel syndrome was based on an incorrect reading of Plaintiff's testimony, reversal of the Commissioner's decision is mandated. The ALJ's determination that Plaintiff's carpal tunnel syndrome was a medically determinable but not severe impairment depended on the finding that Plaintiff "has not sought or obtained ongoing care for this condition." However, the hearing transcript reflects that the ALJ specifically asked Plaintiff who was treating him for this condition, and Plaintiff responded that it was Dr. Leese. [AR 54.] Under such circumstances, the court cannot determine that the ALJ's decision is supported by substantial evidence, and reversal for further proceedings is required.

Because the record contains no records by Dr. Leese, upon remand, the record should be further developed as to this portion of Plaintiff's claim. See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)(ALJ has a "duty to fully and fairly develop the record and to assure that the claimant's interests are considered")(quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir.1983)); see also Widmark v. Barnhart, 454 F.3d 1063, 1069 (9th Cir. 2006)(ALJ has a duty to develop the record where there is a "gap" in the medical evidence). Although Defendant argues, in part, that the record was adequately developed because Plaintiff's counsel indicated at the hearing that there were no other records that needed to be considered before the ALJ made his decision, this circumstance did not eliminate the ALJ's duty to ensure that Plaintiff's interests were adequately considered. See Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003)(ALJ has duty to develop the record "'even when the claimant is represented by counsel'")(quoting Brown, 713 F.3d at 443); see also Sims v. Apfel, 530 U.S. 103, 110-111, 120 S. Ct. 2080, 147 L. Ed. 2d 80 (2000)("Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits").

Accordingly, this issue calls for reversal of the Commissioner's decision and for further proceedings to develop the record.


The decision whether to remand for further proceedings is within the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 1175-1178 (9th Cir. 2000). Where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Harman, 211 F.3d at 1179 (decision whether to remand for further proceedings turns upon their likely utility). However, where there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate. Id. Here, as set out above, outstanding issues remain before a finding of disability can be made. Accordingly, remand is required.*fn2


Accordingly, IT IS ORDERED that:

1. The decision of the Commissioner is REVERSED.

2. This action is REMANDED to Defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above.

3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel.

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