Opinion
No. EDCV 09-1897 (CW).
March 21, 2011
DECISION AND ORDER
The parties have consented, under 28 U.S.C. § 636(c), to the jurisdiction of the undersigned Magistrate Judge. Plaintiff seeks review of the Commissioner's denial of disability benefits. As discussed below, the court finds that the Commissioner's decision should be reversed and this matter remanded for further proceedings.
I. BACKGROUND
Plaintiff Alfred Reaza was born on July 19, 1954, and was fifty-four years old at the time of his administrative hearing. [Administrative Record ("AR") 15, 41.] He has at least a high school education and past relevant work experience as an office assistant. [AR 15.] Plaintiff alleges disability on the basis of post-traumatic stress disorder, diabetes, and degenerative bone disease. [AR 85.]
II. PROCEEDINGS IN THIS COURT
Plaintiff's complaint was lodged on October 8, 2009, and filed on October 19, 2009. On April 20, 2010, Defendant filed an answer and Plaintiff's administrative record. On June 24, 2010, the parties filed their Joint Stipulation ("JS") identifying matters not in dispute, issues in dispute, the positions of the parties, and the relief sought by each party. This matter has been taken under submission without oral argument.
III. PRIOR ADMINISTRATIVE PROCEEDINGS
Plaintiff applied for a period of disability and disability insurance benefits on February 12, 2008, alleging disability since December 1, 2003. [AR 7.] After the application was denied initially and on reconsideration, Plaintiff requested an administrative hearing, which was held on April 9, 2009, before an administrative law judge ("ALJ"). [AR 41.] Plaintiff appeared with counsel, and testimony was taken from Plaintiff, two medical experts, and a vocational expert. [AR 40.] The ALJ denied benefits in a decision dated May 28, 2009. [AR 7-17.] When the Appeals Council denied review on September 11, 2009, the ALJ's decision became the Commissioner's final decision. [AR 1.]
IV. 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) findings and decision should be upheld if they are free of legal error and supported by substantial evidence. However, if the court determines that a finding is based on legal error or is not supported by substantial evidence in the record, the court may reject the finding and set aside the decision to deny benefits.See Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001);Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001);Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam).
"Substantial evidence is more than a scintilla, but less than a preponderance." Reddick, 157 F.3d at 720. It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Id. To determine whether substantial evidence supports a finding, a 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." Id. "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner.Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162.
V. DISCUSSION
A. THE FIVE-STEP EVALUATION
To be eligible for disability benefits a claimant must demonstrate a medically determinable impairment which prevents the claimant from engaging in substantial gainful activity and which is expected to result in death or to last for a continuous period of at least twelve months. Tackett, 180 F.3d at 1098;Reddick, 157 F.3d at 721; 42 U.S.C. § 423(d)(1)(A).
Disability claims are evaluated using a five-step test:
Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1995, asamended April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 C.F.R. § 404.1520, § 416.920. If a claimant is found "disabled" or "not disabled" at any step, there is no need to complete further steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520.
Claimants have the burden of proof at steps one through four, subject to the presumption that Social Security hearings are non-adversarial, and to the Commissioner's affirmative duty to assist claimants in fully developing the record even if they are represented by counsel. Tackett, 180 F.3d at 1098 and n. 3;Smolen, 80 F.3d at 1288. If this burden is met, a prima facie case of disability is made, and the burden shifts to the Commissioner (at step five) to prove that, considering residual functional capacity ("RFC"), age, education, and work experience, a claimant can perform other work which is available in significant numbers. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920.
Residual functional capacity measures what a claimant can still do despite existing "exertional" (strength-related) and "nonexertional" limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993);Cooper, 800 F.2d at 1155 n. 7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c).
B. THE ALJ'S EVALUATION IN PLAINTIFF'S CASE
Here, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged disability onset date (step one). [AR 9.] Plaintiff had the following "severe" impairments: "overweight with diabetes mellitus II under variable control and no significant end-organ disease"; degenerative disc disease of the lumbar spine and sacroiliitis; right shoulder impingement; sensori-neureal hearing loss, mild; depressive disorder, not otherwise specified, with some features of anxiety; a somatoform disorder, a psychiatric reaction to his physical condition; a personality disorder, not otherwise specified; and a history of alcohol dependence (step two). [Id.] Plaintiff did not have an impairment or combination of impairments that met or equaled a "listing" (step three). [AR 10.] The ALJ determined that Plaintiff had an RFC for light work, with a notable limitation to "moderately complex tasks with four to five steps in a habituated setting," without fast-paced work or responsibility for the safety of others. [AR 10-11.] The ALJ adopted the testimony of the vocational expert, who stated that a person with Plaintiff's RFC could not perform his past relevant work (step four) but could perform other work in the national economy, such as office helper, information clerk, and electronics worker (step five). [AR 15-16.] Accordingly, Plaintiff was found not "disabled" as defined by the Social Security Act. [AR 16.]
C. ISSUES IN DISPUTE
The parties' Joint Stipulation identifies the following disputed issues:
1. Whether the ALJ properly considered the medical opinion of Dr. Mark Pierce, a psychological consultative examiner;
2. Whether, if the ALJ improperly considered Dr. Pierce's opinion, the error was harmless;
3. Whether the ALJ properly considered lay witness testimony;
4. Whether the ALJ should have ordered a consultative orthopedic examination; and
5. Whether there was an inconsistency between the ALJ's RFC finding and the Dictionary of Occupational Titles ("DOT").
[JS at 2-3.]
As discussed below, Issues One and Two are dispositive.
D. DISCUSSION
In May 2008, Dr. Pierce conducted an evaluation of Plaintiff that included a series of psychological tests. [AR 238-43.] Throughout the evaluation, Dr. Pierce found that Plaintiff did not give full effort during the tests, which included a malingering-sensitive memory test. [AR 238, 240, 241, 243.] Dr. Pierce concluded that, "[d]espite today's limited test performance, [Plaintiff] does not finally convince that he would be significantly cognitively limited in completing simple and repetitive to higher demand vocational skills or from adapting to minimal changes in a work environment." [AR 243.] More specifically, Dr. Pierce stated that Plaintiff "can remember and comply with simple one and two part instructions" in a work setting. [Id.]
Based on Dr. Pierce's evaluation, a state agency review physician completed a mental RFC ("MRFC") assessment that stated, in pertinent part, that Plaintiff was "capable of understanding, remembering and carrying out one and two step instructions." [AR 258.] The MRFC assessment was affirmed in full by a separate agency physician. [AR 318.]
During the administrative hearing, a psychological medical expert testified that, based on Dr. Pierce's evaluation and other evidence in the record, Plaintiff was capable of work that involved "moderately complex tasks consistent with his physical abilities" and that involved "four to five step instructions." [AR 56.] The ALJ adopted the medical expert's opinion as to Plaintiff's RFC and posed a hypothetical question to the vocational expert that reflected these limitations; the vocational expert's response that other work in the national economy was available was the basis of the ALJ's finding of non-disability. [AR 73-74.]
Plaintiff argues that the ALJ's reliance on the medical expert's opinion was improper because the opinion differed in significant respects from the record evidence, without any apparent explanation. [JS 4-5.] Plaintiff's point is well-taken. It is well-established that the opinion of a non-examining medical expert cannot, by itself, constitute substantial evidence to support the Commissioner's disability determination unless it is supported by other evidence in the record and is consistent with it. See Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir. 1995); Pitzer v. Sullivan, 908 F.2d 502, 506 n. 4 (9th Cir. 1990); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984). Here, the medical expert's testimony that Plaintiff could perform moderately complex tasks involving four to five step instructions was not supported by or consistent with other evidence in the record. In fact, it was plainly inconsistent with the opinion of the examining physician, Dr. Pierce, and the two state agency review physicians that Plaintiff should be limited to performing simple one and two part instructions in a work setting. Under these circumstances, the medical expert's opinion was not substantial evidence to support the non-disability finding. See Gallant, 753 F.2d 1454 ("A report of a non-examining, non-treating physician should be discounted and is not substantial evidence when contradicted by all other evidence in the record.").
Defendant's argument that the medical expert's less restrictive opinion constituted a substantial basis for the ALJ's opinion because the record showed that Plaintiff was suspected of malingering during the evaluation by Dr. Pierce is not well-taken. Rather, it is evident that Dr. Pierce based his conclusion about Plaintiff's mental functional capacity despite any malingering behavior.
Finally, the error was not harmless. A hypothetical question that posed a functional limitation to one or two step work tasks, consistent with Dr. Pierce's opinion, would preclude all of the jobs cited by the vocational expert as evidence of Plaintiff's ability to work. According to the DOT, those jobs require a reasoning level of at least "two." See DOT 237.367-018 (information clerk), 239-567-010 (office helper), 726.687-010 (electronics worker). However, Plaintiff's limitation to simple one and two part instructions is consistent with a reasoning level of "one." See Meissl v. Barnhart, 403 F. Supp. 2d 981, 984 (C.D. Cal. 2005) (DOT describes Level One reasoning as ability to "[a]pply commonsense understanding to carry out simple one-or twostep instructions" in "standardized situations with or no variables"); Grisby v. Astrue, No. EDCV 08-1413 AJW, 2010 WL 309013 at *4 (C.D. Cal. Jan. 22, 2010) ("The restriction to jobs involving no more than two-step instructions is what distinguishes Level 1 reasoning from Level 2 reasoning."). Under these circumstances, remand for redetermination of Plaintiff's ability to perform other work in the national economy is appropriate. See Harman v. Apfel, 211 F.3d 1172, 1175-1178 (9th Cir. 2000) (where there are outstanding issues that must be resolved before a determination 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).
None of the remaining issues raised by Plaintiff, even if they had merit, would warrant a finding of disability on the basis of the current record.
VI. ORDERS
Accordingly, IT IS ORDERED that:
1. The decision of the Commissioner is REVERSED.
2. This action is REMANDED to defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above.
3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel.