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Robinson v. Colvin

United States District Court, Ninth Circuit

September 4, 2013

NANCY ROBINSON, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, [1]) Defendant.

MEMORANDUM OPINION AND ORDER OF REMAND

CHARLES F. EICK, Magistrate Judge.

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 December 3, 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 January 8, 2013. Plaintiff filed a motion for summary judgment on June 26, 2013. Defendant filed a cross-motion for summary judgment on August 26, 2013. The Court has taken the motions under submission without oral argument. See L.R. 7-15; "Order, " filed December 6, 2012.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

Plaintiff, a former physical fitness instructor, asserts disability since March 2, 2002, based on a combination of alleged physical impairments (Administrative Record ("A.R.") 40-97, 102-04, 257-58, 283, 333). Plaintiff's last insured date was September 30, 2006 (A.R. 122).

The Administrative Law Judge ("ALJ") determined that Plaintiff suffers from "the following severe impairments: degenerative disc disease involving the cervical and lumbar spine and migraine headaches" (A.R. 123). The ALJ found that, through the date last insured, Plaintiff retained the residual functional capacity to perform light work, "except that [Plaintiff] could perform occasional overhead reaching and perform all postural activities occasionally." (Id.).

The ALJ consulted a vocational expert in connection with evaluating whether a person having Plaintiff's residual functional capacity could perform Plaintiff's past relevant work as a physical fitness instructor (A.R. 98-100, 128). In a hypothetical question posed to this vocational expert, however, the ALJ referenced a person who could perform the full range of light work (A.R. 99). The hypothetical question failed to include any restriction on overhead reaching or any restriction on postural activities (Id.). The vocational expert testified that a person who could perform the full range of light work could perform Plaintiff's past relevant work as a physical fitness instructor "as she has described her past work in file, and as it is described by the Dictionary of Occupational Titles" (A.R. 99-100).

In express reliance on the testimony of the vocational expert, the ALJ found that Plaintiff had been capable of performing Plaintiff's past relevant work as a physical fitness instructor through the date last insured (A.R. 128). The ALJ stated that "[t]he vocational expert testified that a hypothetical claimant with [Plaintiff's] residual functional capacity would be able to perform [Plaintiff's] past relevant work as generally and actually performed." (Id.) 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

The ALJ's decision mischaracterizes the vocational expert's testimony. Contrary to the ALJ's decision, the vocational expert did not testify that "a hypothetical claimant with [Plaintiff's] residual functional capacity would be able to perform [Plaintiff's] past relevant work as generally and actually performed." In fact, the vocational expert was never asked whether a hypothetical claimant with Plaintiff's residual functional capacity, including her limitations on overhead reaching and postural activities, would be able to perform Plaintiff's past relevant work as generally and actually performed.

Where, as here, a hypothetical question fails to "set out all of the claimant's impairments, " the vocational expert's answers to the question cannot constitute substantial evidence to support the ALJ's decision. See, e.g., DeLorme v. Sullivan , 924 F.2d 841, 850 (9th Cir. 1991); Gamer v. Secretary , 815 F.2d 1275, 1280 (9th Cir. 1987); Gallant v. Heckler , 753 F.2d 1450, 1456 (9th Cir. 1984); see also Social Security Ruling 96-8p (in assessing residual functional capacity, the ALJ must consider all limitations imposed by all impairments, even non-severe impairments; "the limitations due to such a not severe' single impairment may prevent an individual from performing past relevant work..."); 20 C.F.R. ยง 404.1545(e) ("we will consider the limiting effects of all your impairment(s), even those that are not severe, in determining your residual functional capacity"); accord Carmickle v. Commissioner , 533 F.3d at 1164. The ALJ thus erred by failing to include all of Plaintiff's limitations in the hypothetical question and by mischaracterizing ...


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