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Thomas Koerner v. Michael J. Astrue


January 21, 2011


The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") under Titles XVI and II, respectively, of the Social Security Act ("Act"). This case involves the all too familiar situation in Social Security cases where there are no treatment records of any long-term significance, but the case is decided at the administrative level based upon a one-shot consultative examination, and on an even less probative, a State Agency (SA) reviewer's analysis.*fn1 The undersigned is less than confident that a correct determination either way can be made with respect to "permanent" disability. But a determination must be made, and it must be made on the little evidence on the record, not on a patent misinterpretation of the evidence by the ALJ. For the reasons that follow, this court recommends that plaintiff's Motion for Summary Judgment be granted, the Commissioner's Cross Motion for Summary Judgment be denied, the matter be remanded under sentence four of 42 U.S.C. § 405(g) for payment of benefits, and the Clerk be directed to enter judgment for plaintiff.*fn2


Plaintiff, born May 25, 1963, applied on August 10, 2007 for disability benefits. (Administrative Transcript "Tr." at 24-26, 108-114.) Plaintiff alleged he was unable to work since August 15, 2004*fn3 due to hearing voices and foot, shoulder, knee and abdominal pain. (Tr. at 18, 24, 40, 135, 190.) In a decision dated February 13, 2009, ALJ L. Kalie Fong determined that plaintiff was not disabled. (Id. at 14-23.) The ALJ made the following findings:*fn4

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2009.

2. The claimant has not engaged in substantial gainful activity since August 15, 2004, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. The claimant has the following severe impairments: ankle pain due to possible posttraumatic arthritis, recurrent, severe; major depression with psychosis; and hallucinatory psychosis, possibly depression (20 CFR 404.1521 et seq. and 416.921 et seq.).

4. 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 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except mentally limited to simple, routine, repetitive tasks with limited contact with the public and others.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on May 25, 1963 and was 41 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).

9. 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).

10. 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 404.1569, 404.1560a, 416.969, and 416.969a).

11. The claimant has not been under a disability, as defined in the Social Security Act, from August 15, 2004 through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. at 16-23.)


Plaintiff has raised the following issues: A. Whether the ALJ's Mental RFC Finding Was Supported by Substantial Evidence; B. Whether the ALJ Properly Applied the Psychiatric Review Technique and Found that Plaintiff Did Not Meet or Equal a Listing; C. Whether the ALJ Posed Hypotheticals to the Vocational Expert that Were Properly Based on Substantial Evidence in the Record; and D. Whether the ALJ Properly Assessed Plaintiff's Credibility and Third Party Statements Regarding Plaintiff's Functional Limitations. Plaintiff's argument with respect to "C" -- the vocational expert testimony is persuasive -- requires remand of this matter for payment of benefits. No other issues need be addressed.


The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999).

Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "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). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).


Plaintiff contends that a hypothetical posed by plaintiff's representative at the hearing establishes that plaintiff cannot engage in gainful employment. Hypothetical questions posed to a vocational expert must include all the substantial, supported physical and mental functional limitations of the particular claimant. Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir.1995); see Light v. Social Sec. Admin., 119 F.3d 789, 793 (9th Cir.1997). If a hypothetical does not reflect all the functional limitations, the expert's testimony as to available jobs in the national economy has no evidentiary value. DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). But see Thomas v. Barnhart, 278 F.3d 947 (9th Cir. 2002) (approving hypothetical directing VE to credit specific testimony which VE had just heard); Matthews v. Shalala, 10 F.3d 678 (9th Cir. 1993) (failing to include all limitations in a hypothetical may be harmless error if the ALJ's conclusions are supported by other reliable evidence). While the ALJ may pose to the expert a range of hypothetical questions, based on alternate interpretations of the evidence, substantial evidence must support the hypothetical which ultimately serves as the basis for the ALJ's determination. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). Similarly, "[t]he ALJ is not bound to accept as true the restrictions presented in a hypothetical question propounded by a claimant's counsel." Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989). The ALJ is free to accept them if they are supported by substantial evidence or reject them if they are not. Id. at 756-757.

A consultative psychiatric exam was performed on plaintiff by Richard Hicks, M.D. on November 18, 2007. (Tr. at 244-248.) Plaintiff's global assessment of functioning ("GAF")*fn5 was assessed as 50. (Tr. at 247.) While the GAF does not correlate to the severity assessments utilized in Social Security disability determinations and is not dispositive of a disability issue, the plaintiff's GAF was consistently assessed as 50 throughout the scant record medical evidence by the treating and examining psychiatrists. (Tr. at 247, 302, 303.) The ALJ, in summarizing Dr. Hicks' mental functional assessment, repeatedly mischaracterized Dr. Hicks' GAF assessment as 65,*fn6 not 50, whereas Dr. Hicks only estimated that with treatment, plaintiff might have a GAF of 65, (Tr. at 19, 20, 247); but as seen below, such did not occur with treatment in 2008. Although the ALJ accorded "great weight" to Dr. Hicks' evaluation, there is no explanation in the ALJ's decision as to why the GAF of 50 was disregarded. (Tr. at 21.) Thus, the hypothetical relied upon by the ALJ was not based on substantial evidence.

A hypothetical was posed to the vocational expert which included a GAF of 50 and with moderate limitations in maintaining social functioning and moderate difficulties in maintaining concentration, persistence, or pace. (Tr. at 65-66). These limitations are based on substantial evidence in the record in that Dr. Hicks assessed a GAF of 50, plaintiff's treating psychiatrist, Dr. Han Nguyen, M.D., assessed a GAF of 50, and the state agency psychiatrist, Adrianne Gallucci, Psy.D., in performing the psychiatric review technique, rated plaintiff's functional limitations as moderate for both difficulties in maintaining social functioning and difficulties in maintaining concentration, persistence, or pace. (Tr. at 247, 264, 302, 303.) In response to this hypothetical, the vocational expert testified that plaintiff could not engage in competitive employment. (Tr. at 66.) Because the hypothetical was based on substantial evidence, indeed the only evidence of record, it was error for the ALJ to reject the vocational expert's testimony based on the proper evidence.

The decision whether to remand a case for additional evidence or simply to award benefits is within the discretion of the court. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). In general, the court will consider factors such as the completeness of the record, the weight of evidence in plaintiff's favor, and the potential harm to plaintiff due to further delay. In terms of the completeness of the record, the court will determine whether additional administrative proceedings would remedy the defects in the decision, which the court cannot remedy based on the present record. See Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); Barbato v. Commissioner of Social Security Admin., 923 F. Supp 1273, 1277-78 (C.D.Cal. 1996). Here, the testimony of the vocational expert in response to a hypothetical based on substantial record evidence establishes that plaintiff cannot engage in competitive employment. Because the record is complete*fn7 and there is no justification for further delay, the undersigned will recommend this matter be remanded under sentence four of 42 U.S.C. § 405(g) for payment of benefits.*fn8



1. Plaintiff's motion for summary judgment be granted;

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

3. This action be remanded to the Commissioner for payment of benefits with an onset date of August 10, 2007; and

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

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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