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Carlos Romero v. Michael J. Astrue


April 8, 2011


The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge


Plaintiff filed a Complaint on March 29, 2010, seeking review of the denial by the Social Security Commissioner (the "Commissioner") of plaintiff's application for social security income ("SSI").*fn1 On April 21, 2010, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on December 1, 2010, in which: plaintiff seeks an order reversing the Commissioner's decision and remanding this case for the payment of benefits or, alternatively, for further administrative proceedings; and defendant requests that the Commissioner's decision be affirmed or, alternatively, remanded for further administrative proceedings. The Court has taken the parties' Joint Stipulation under submission without oral argument.


Plaintiff filed an application for SSI on May 9, 2007. (Administrative Record ("A.R.") 110-16.) Plaintiff claims to have been disabled since May 1, 2007, due to psoriasis, psoriatic arthritis, osteoporosis, bodily pains, dermatitis, fatigue, hypertension, high blood pressure, mental health problems, depression, obsessive-compulsive disorder (OCD), anxiety, and problems concentrating. (A.R. 9, 51, 73-74, 110, 134.) Plaintiff has past relevant work experience as a construction worker, delivery truck driver, and assembler. (A.R. 17, 142-48.)

After the Commissioner denied plaintiff's claim initially and upon reconsideration (A.R. 74-78, 80-84), plaintiff requested a hearing (A.R. 87, 90-99). On September 21, 2009, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Elizabeth R. Lishner (the "ALJ"). (A.R. 43-70.) Vocational expert Gregory S. Jones also testified. (Id.) On October 6, 2009, the ALJ denied plaintiff's claim (A.R. 9-19), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 1-3). That decision is now at issue in this action


The ALJ found that plaintiff has not engaged in substantial gainful activity since May 9, 2007, the date of plaintiff's application for SSI. (A.R. 11.) The ALJ determined that plaintiff has the following severe impairments: psoriasis, psoriatic arthritis, and osteoporosis. (Id.) The ALJ also determined that plaintiff does not have an impairment or combination of impairments that meets or equals in severity any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, and 416.926). (A.R. 14-15.)

After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform "'light' work as defined in 20 C.F.R. § 416.967(b)." (A.R. 15.) The ALJ limited plaintiff, however, "to standing and/or walking no more than 2 hours total per 8-hour workday (but must be able to get up at will); sitting 6 hours total per 8-hour workday; no crouching, climbing ladders, ropes or scaffolds; and occasional stooping and stair climbing." (Id.)

The ALJ concluded that plaintiff is unable to perform his past relevant work. (A.R. 17.) However, having considered plaintiff's age, education, work experience, RFC, as well as the testimony of the vocational expert, the ALJ found that jobs exist in the national economy that plaintiff can perform, including that of bench assembler. (A.R. 18.) Accordingly, the ALJ concluded that plaintiff has not been disabled within the meaning of the Social Security Act since May 9, 2007, the date plaintiff filed his application. (A.R. 9, 19.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "While inferences from the record can constitute substantial evidence, only those 'reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.


Plaintiff makes the following claims: (1) the ALJ did not properly consider the opinion of the physician assistant who assessed plaintiff; (2) the ALJ did not properly assess plaintiff's RFC; and (3) the ALJ did not pose a complete hypothetical question to the vocational expert. (Joint Stip. at 2-3.) The Court will address plaintiff's first and second claims together.

I. The ALJ Did Not Properly Consider The Opinion Of Physician Assistant Cheridah Seely Regarding Plaintiff's Absenteeism.

Pursuant to 20 C.F.R. § 416.913(d), an ALJ may use information from non-acceptable medical sources, such as physician assistants, "to show the severity of [claimant's] impairment(s) and how it affects [claimant's] ability to work." See Social Security Ruling ("SSR") 06-03p, 2006 SSR Lexis 5, at *8 (noting that "[o]pinions from [non-acceptable medical sources] . . . are important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file"). "With the growth of managed health care in recent years and the emphasis on containing medical costs, medical sources who are not 'acceptable medical sources,' such as . . . physician assistants . . . , have increasingly assumed a greater percentage of the treatment and evaluation functions previously handled primarily by physicians and psychologists." Id. Accordingly, while opinions from physician assistants may be given less weight than those from acceptable medical sources, a disability "adjudicator generally should explain the weight given to opinions from these 'other sources,' or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when such opinions may have an effect on the outcome of the case." Id. at *15-*16.

In determining plaintiff's RFC, the ALJ gave "significant weight" to the opinions of the State Agency's medical consultant and physician assistant Cheridah Seely ("PA Seely"). (A.R. 17.) The ALJ "limit[ed]" her reliance on PA Seely's opinion,*fn2 however, to the extent that opinion was "inconsistent with [plaintiff's] testimony at the hearing" regarding "the amount of time [plaintiff] can sit/stand before needing to move around." (Id.)

Curiously, although the ALJ gave "significant weight" to PA Seely's opinion and specifically delineated the portion of the opinion with which she did not agree, the ALJ failed to discuss PA Seely's opinion regarding plaintiff's need to be absent from work three to four days a month.*fn3 While it is true that an ALJ need not specifically reject or accept the opinion of a physician assistant,*fn4 having elected to give PA Seely's opinion "significant weight," the ALJ should discuss what weight, if any, she gave, in determining plaintiff's RFC, to PA Seely's opinion regarding plaintiff's likely absenteeism from work. Without any comment from the ALJ regarding the absenteeism issue, it is impossible for the Court to determine whether the ALJ rejected or simply ignored that portion of the physician assistant's opinion.*fn5 See, e.g., Fernandez v. Astrue, 2010 U.S. Dist. LEXIS 44831, at *12 (C.D. Cal. May 7, 2010)(remanding matter to the ALJ for clarification of his RFC assessment when the ALJ "generally adopted" opinion of plaintiff's doctor, but failed to incorporate all of the doctor's restrictions). Accordingly, remand is appropriate.*fn6

II. The ALJ Must Review And Reconsider The Hypothetical Question Posed To The Vocational Expert.

Because the ALJ needs to deal on remand with the issue of plaintiff's potential absenteeism from work, the Court does not reach plaintiff's third claim, to wit, that the ALJ failed to pose a complete hypothetical question to the vocational expert. If, after properly addressing the opinion of PA Seely regarding plaintiff's likely absenteeism, the ALJ determines that reassessment of plaintiff's RFC is appropriate, then additional testimony from a vocational expert likely will be required to determine whether plaintiff can perform work other than his past relevant work.

III. Remand Is Required.

The decision whether to remand for further proceedings or order an immediate award of benefits is within the district court's discretion.

Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no useful purpose would be served by further administrative proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. at 1179 ("[T]he decision of whether to remand for further proceedings turns upon the likely utility of such proceedings."). However, where there are outstanding issues that must be resolved before a determination of disability 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. at 1179-81.

Remand is the appropriate remedy to allow the ALJ the opportunity to remedy her failure to address the absenteeism issue and, if necessary thereafter, to obtain further testimony from a vocational expert. See, e.g., Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for further proceedings is appropriate if enhancement of the record would be useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (remand appropriate to remedy defects in the record).


Accordingly, for the reasons stated above, IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with this Memorandum Opinion and Order.

IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant.


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