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Vickie Jean Lillard v. Michael J. Astrue

April 7, 2011


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


Plaintiff Vickie Jean Lillard seeks judicial review of the Commissioner's final decision denying her application for Social Security Disability Insurance ("SSDI") and Supplemental Security Income ("SSI") benefits. For the reasons set forth below, the decision of the Social Security Commissioner is reversed, and the matter is remanded for further proceedings consistent with this opinion.

I. Background

Plaintiff was born on September 6, 1950 and was 58 years old at the time of the administrative hearing. (AR 67, 118.) She has a high school education and has work experience as a cashier, data entry clerk, dishwasher and stock clerk. (AR 64, 71.)

Plaintiff filed her application for SSDI and SSI benefits on July 7, 2006, alleging disability commencing January 2, 2005 due to lower back pain, arthritis, and depression. (Administrative Record ("AR") 43-45, 60.) Plaintiff's application was denied initially on January 3, 2007 and upon reconsideration on February 20, 2008. (AR 32-36, 40-42.) An administrative hearing was held via video on July 9, 2009 before Administrative Law Judge ("ALJ") Patti L. Hunter. Plaintiff, who was represented by a non-attorney representative, testified, as did a vocational expert ("VE"). (AR 375-400.)

On August 3, 2009, ALJ Hunter denied Plaintiff's application for benefits. (AR 17-24.) The ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date. (AR 19.) The ALJ found that Plaintiff had the following severe impairments: depression, anxiety, mild degenerative arthritis of the knees and hands, degenerative arthritis of the lumbar spine, and substance abuse in sustained remission. (Id.) However, the ALJ determined that Plaintiff's impairments did not meet or were not medically equal to, one of the listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. (AR 20.)

The ALJ found that Plaintiff retained the residual functional capacity ("RFC") to perform light work with the following exceptions: "no frequent stooping, kneeling, crouching, crawling, climbing ropes, ladders, scaffolding, or balancing and moderate limitations: dealing with the public; maintaining attention and concentration; understanding, remembering, and carrying out complex and detailed job instructions; and in her ability to maintain a persistent work pace." (AR 22.) It was determined that Plaintiff was able to perform her past relevant work as a data entry clerk and as a retail cashier. (AR 24.) Therefore, the ALJ concluded that Plaintiff was not disabled within the meaning of the Social Security Act. 20 C.F.R. § 416.920(f). (Id.)

On July 20, 2010, the Appeals Council denied review (AR 6-8), and Plaintiff timely commenced this action for judicial review. On April 1, 2011, the parties filed a Joint Stipulation ("Joint Stip.") of disputed facts and issues, in which Plaintiff claims that (1) the ALJ improperly evaluated Plaintiff's RFC and her ability to perform past relevant work; (2) the ALJ failed to fully and properly develop the record; and (3) the ALJ improperly discredited Plaintiff's testimony and that of a third party. (Joint Stip. 3.) Plaintiff asks the Court to order an award of benefits, or in the alternative, remand for further proceedings. (Joint Stip. 31.) The Commissioner requests that the ALJ's decision be affirmed. (Joint Stip. 32.)

After reviewing the parties' respective contentions and the record as a whole, the Court finds that the ALJ erred by failing to include the mental limitations found by the examining psychologist in the RFC, or alternatively, by failing to explain why she did not include these limitations in the RFC despite giving great weight to the examining psychologist's opinion. Accordingly, this matter shall be remanded 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 Commissioner's decision to deny benefits. The Commissioner's or ALJ's decision must be upheld unless "the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial evidence supports the ALJ's 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

Plaintiff contends the ALJ erred by failing to include certain mental limitations found to exist by the examining psychologist in the RFC finding. (Joint Stip. 4.) Plaintiff further argues that, as a result of the ALJ's failure to include these limitations in the hypothetical question posed to the VE, the ALJ also erred in finding her capable of performing her past relevant work. (Id.)

The ALJ rejected the opinions of Plaintiff's treating physicians, both of whom opined that Plaintiff was disabled, finding that they were inconsistent with the evidence in the record. (AR 23, 307-309, 352.) The ALJ stated that she was giving "greater weight" to the opinion of the ...

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