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Theresa Shea v. Michael J. Astrue

August 10, 2012

THERESA SHEA,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

MEMORANDUM OPINION AND ORDER OF REMAND

Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.

PROCEEDINGS

Plaintiff filed a complaint on January 26, 2012, seeking review of the Commissioner's denial of disability benefits. The parties filed a consent to proceed before a United States Magistrate Judge on February 14, 2012. Plaintiff filed a motion for summary judgment on June 28, 2012. Defendant filed a cross-motion for summary judgment on July 27, 2012. The Court has taken the motions under submission without oral argument. See L.R. 7-15; "Order," filed January 31, 2012.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

Plaintiff, a former housekeeper, asserts disability since January 1, 2008, based on a combination of alleged impairments (Administrative Record ("A.R.") 10-317). The Administrative Law Judge ("ALJ") determined that Plaintiff suffers from "the following severe impairments: bipolar disorder, anxiety, and vertigo" (A.R. 12). The ALJ also determined that Plaintiff has "moderate difficulties" regarding "concentration, persistence or pace" (A.R. 14).

Dr. Linda M. Smith, an examining psychiatrist, opined that Plaintiff is "mildly impaired" in her ability to "interact appropriately with supervisors, co-workers, or the public," "comply with job rules such as safety and attendance," "respond to change in the normal workplace setting," and "maintain persistence and pace in a normal workplace setting" (A.R. 246). Dr. Smith believed Plaintiff "is mildly impaired overall, closer to the moderate end of the mild range" (id.).

The ALJ found that Plaintiff retains the residual functional capacity to work "at all exertional levels but with the following non-exertional limitations: no working at heights; no operating dangerous machinery or motor vehicles; and limited to simple, repetitive tasks with no public contact" (A.R. 14) (emphasis added). The ALJ posed to a vocational expert a hypothetical question embodying this residual functional capacity (A.R. 49). The hypothetical did not mention specifically any mild or moderate limitations in "concentration, persistence or pace," "ability to interact appropriately with supervisors, co-workers, or the public," "ability to comply with job rules such as safety and attendance," or "ability to respond to change in normal workplace setting" (A.R. 49). The vocational expert testified that a person having the limitations assumed in the hypothetical could perform Plaintiff's past relevant work as a housekeeper (A.R. 49-50). The ALJ relied on this testimony in finding Plaintiff not disabled (A.R. 19). The Appeals Council denied review (A.R. 1-3).

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).

DISCUSSION

Plaintiff contends, inter alia, that the ALJ implicitly rejected Dr. Smith's opinions regarding Plaintiff's limitations without stating sufficient reasons for doing so. Plaintiff suggests that the hypothetical question posed to the vocational expert should have included the limitations Dr. Smith found to exist. Defendant contends that the ALJ accepted all of the limitations Dr. Smith found to exist, and that the ALJ accounted for all of these limitations in the residual functional capacity's restriction to "simple, repetitive tasks with no public contact."

The extent to which the ALJ rejected or accepted Dr. Smith's opinions is unclear. The ALJ's decision states:

In determining the claimant's mental residual functional capacity, the undersigned has given significant weight, but not controlling weight, to the opinions of the psychiatric consultative examiner [Dr. Smith], and the State agency review psychiatrists on initial review and on reconsideration. These opinions are all reasonable and supported by the evidence as a whole. No single assessment has been completely adopted as the residual functional capacity determined herein. In order to give the claimant the benefit of the doubt, the undersigned has ...


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