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Ruth R. Cox v. Michael J. Astrue

November 9, 2012


The opinion of the court was delivered by: Sheri Pym United States Magistrate Judge



On December 16, 2011, plaintiff Ruth R. Cox filed a complaint against defendant Michael J. Astrue seeking a review of a denial of a period of disability and Disability Insurance Benefits ("DIB"). Both plaintiff and defendant have consented to proceed for all purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court deems the matter suitable for adjudication without oral argument.

Plaintiff presents three disputed issues for decision: (1) whether the residual functional capacity ("RFC") assessment was sufficiently specific; (2) whether the administrative law judge ("ALJ") properly considered the opinions of plaintiff's treating physician and consultative examiner; and (3) whether the ALJ properly considered plaintiff's credibility. Plaintiff's Memorandum in Support of Complaint ("Pl. Mem.") at 16-25; Memorandum in Support of Defendant's Answer and in Opposition to Plaintiff's Memorandum in Support of Complaint ("D. Mem.") at 2-19.

Having carefully studied, the parties's written submissions, the Administrative Record ("AR"), and the decision of the ALJ, the court concludes that, as detailed herein, the ALJ's RFC determination was not sufficiently specific, the ALJ failed to properly consider the opinions a treating physician and a consultative examiner, and the ALJ improperly discounted plaintiff's credibility. Therefore, the court remands this matter to the Commissioner of the Social Security Administration ("Commissioner") in accordance with the principles and instructions enunciated in this Memorandum Opinion and Order.


Plaintiff, who was 55 years old on the date of her January 13, 2010 administrative hearing, is a high school graduate and completed vocational training. AR at 53, 112, 137-38. Her past relevant work includes employment as a legal secretary. Id. at 70, 133.

On May 12, 2008, plaintiff filed an application for DIB and a period of disability, alleging an onset date of May 10, 2007, due to a herniated disc, bulging disc in neck, carpal tunnel, and a pinched nerve. Id. at 112, 121, 132. The Commissioner denied plaintiff's application initially, after which she filed a request for a hearing. Id. at 75-80.

On January 13, 2010, plaintiff, represented by counsel, appeared and testified at a hearing before the ALJ. Id. at 53-73. The ALJ also heard testimony from Stephen Berry, a vocational expert. Id. at 70-73. On February 11, 2010, the ALJ denied plaintiff's claim for benefits. Id. at 33-41.

Applying the well-known five-step sequential evaluation process, the ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity since May 10, 2007. Id. at 35.

At step two, the ALJ found that plaintiff suffered from the following severe impairments: degeneration of the cervical spine, thoracic spine, and lumbar spine; and carpal tunnel syndrome. Id.

At step three, the ALJ found that plaintiff's impairments, whether individually or in combination, did not meet or medically equal one of the listed impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the "Listings"). Id. at 36.

The ALJ then assessed plaintiff's RFC and precluded plaintiff from: *fn1 prolonged standing and walking; repetitive bending and twisting ; pushing and *fn2 pulling more than twenty-five pounds; and repetitive lifting, carrying, gripping, and grasping more than twenty-five pounds. Id.

The ALJ found, at step four, that plaintiff was capable of performing her past relevant work. Id. at 40. Consequently, the ALJ concluded that plaintiff did not suffer from a disability as defined by the Social Security Act. Id. at 40-41.

The decision of the ALJ stands as the final decision of the Commissioner.


This court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g). The findings and decision of the Commissioner must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But if the court determines that the ALJ's findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001).

"Substantial evidence is more than a mere scintilla, but less than a preponderance." Aukland, 257 F.3d at 1035. Substantial evidence is such "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d at 459. 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 ALJ's conclusion." Mayes, 276 F.3d at 459. The ALJ's decision "'cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the evidence can reasonably support either affirming or reversing the ALJ's decision, the reviewing court "'may not substitute its judgment for that of the ALJ.'" Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).


A. The RFC Was Not Sufficiently Specific

Plaintiff argues that the RFC assessment was not sufficiently specific because the ALJ failed to make a function-by-function assessment. Pl. Mem. at 16-17. Specifically, plaintiff contends that the ALJ's failure to quantify her limitations and restrictions by hours, weight, and frequency rendered the RFC assessment "impermissibly vague." Id. at 17. The court agrees.

RFC is what one "can still do despite [his or her] limitations." 20 C.F.R. § 416.945(a)(1). An "RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis." Social Security Ruling ("SSR") 96-80, 1996 WL 374184, *1. The ALJ must "describe the maximum amount of each work-related *fn3 activity the individual can perform based on the evidence available in the case record." Id. at *7. An RFC assessment must address both the exertional and non-exertional capacities of the individual. Id. at *5. Exertional capacity relates to the ability to perform sitting, standing, walking, lifting, carrying, pushing, and pulling. Id. Non-exertional capacity refers to all work-related limitations that do not depend on physical strength such as stooping and climbing. Id. at *6.

The Commissioner reaches an RFC determination by reviewing and considering all of the relevant evidence. Id. When the record is ambiguous, the Commissioner has a duty to develop the record. See Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005); see also Mayes, 276 F.3d at 459-60 (ALJ has a duty to develop the record further only "when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence"); Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) ("If the ALJ thought he needed to know the basis of [a doctor's] opinion[ ] in order to evaluate [it], he had a duty to conduct an appropriate inquiry, for example, by subpoenaing the physician[ ] or submitting further questions to [him or her]."). This may include retaining a medical expert or ordering a consultative examination. 20 C.F.R. § 416.919a(a).

Here, the ALJ restricted plaintiff from: pushing and pulling more than twenty-five pounds; repetitive lifting, carrying, gripping, and grasping more than twenty-five pounds; repetitive bending and twisting; and prolonged standing and walking. AR at 36.

The RFC was not sufficiently specific. The ALJ failed to describe the maximum amount of standing and walking plaintiff may engage in an eight-hour work day. The ALJ precluded plaintiff from "prolonged" standing and walking, but he failed to define "prolonged". See Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir. 1994) (stating that the term "prolonged walking" is vague); cf. Gallagher v. Astrue, No. 07-5688, 2009 WL 57033, at *6 (C.D. Cal. Jan. 6, 2009) (holding that the ALJ erred when he failed to adopt a consistent, unambiguous definition of "moderate").

In reaching the determination that plaintiff be restricted from "prolonged" standing and walking, the ALJ relied on a Primary Treating Orthopedic Physician's Narrative Report and a Permanent and Stationary Report dated July 14, 2008 ("WC Report") by Dr. Satish Kadaba, in which he did not define "prolonged." AR at 37, 249-64. Generally, when a physician's opinion is ambiguous, the ALJ has the duty to conduct further inquiry or develop the record. Mayes, 276 F.3d at 459-60; Smolen, 80 F.3d at 1288. But in this instance further development of the record was unnecessary, because in a subsequent opinion Dr. Kadaba precluded plaintiff from standing and walking for more than one to two hours in an eight-hour day. AR at 436. The ALJ could have reasonably defined "prolonged" as no more than two hours. ...

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