Grant Brown v. Michael J Astrue

Filing 22

MEMORANDUM OPINION and ORDER by Magistrate Judge Marc L. Goldman: Forthe reasons discussed below, the Commissioners decision is reversed andremanded for further proceedings. (See document for details.) Accordingly, pursuant to sentence four of 42 U.S .C. § 405(g), IT IS HEREBY ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security, and remanding this matter for further proceedings consistent with this decision and the decision in Grant v. Barnhart, Case No. CV 04-9734-MLG. (rla)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Plaintiff v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. Grant Brown GRANT BROWN, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 07-06139-MLG MEMORANDUM OPINION AND ORDER UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

("Plaintiff")

seeks

review

of

the

20 Commissioner's final decision denying his applications for Disability 21 Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). For 22 the reasons discussed below, the Commissioner's decision is reversed and 23 remanded for further proceedings. 24 25 I. 26 Factual and Procedural Background On July 29, 2002, Plaintiff filed claims for DIB and SSI benefits. The Commissioner denied the

27 (Administrative Record ("AR") at 70-76).

28 applications initially and upon reconsideration. (AR at 48-51, 58-62).

1 On

February

11,

2004,

an

administrative

hearing

was

held

before

2 Administrative Law Judge Edward C. Graham ("ALJ Graham"). (AR at 1893 204). On March 19, 2004, ALJ Graham issued a decision ("Decision #1") On May 12,

4 concluding that Plaintiff was not disabled. (AR at 22-30).

5 2004, Plaintiff requested review before the Appeals Council. (AR at 166 21). The request was denied. (AR at 6-9). Plaintiff then sought review

7 in this Court.

On April 24, 2006, this Court remanded the matter to the The Court found that

8 Commissioner for further proceedings. (AR at 237).

9 ALJ Graham failed to properly consider the medical evidence, specifically 10 a state agency psychiatric consultation report prepared by Dr. Brian S. 11 Taylor, M.D. 12 complete The Court also found that ALJ Graham failed to propound a to the Vocational Expert ("VE") because the

hypothetical

13 hypothetical did not take into account the great difficulty Plaintiff's 14 stuttering would cause in a work environment in general, not just in 15 interacting with the public. Grant v. Barnhart, Case No. CV 04-9734-MLG 16 (AR at 239-244). 17 On April 4, 2007, a second administrative hearing was held, this On

18 time before ALJ Mary L. Everstine ("ALJ Everstine"). (AR at 294).

19 April 18, 2007, ALJ Everstine issued a decision finding that Plaintiff 20 was not disabled ("Decision #2"). (AR at 219-225). Specifically, ALJ

21 Everstine found that Plaintiff suffered from the severe impairments of 22 lumbar sprain and speech dysfluency, but that Plaintiff's impairments did 23 not meet or medically equal one of the listed impairments in 20 C.F.R., 24 Part 404, Subpart P, Appendix 1. (AR at 222). The ALJ determined that 25 Plaintiff retained the residual functional capacity ("RFC") to perform 26 a limited range of light work with the following limitations: "unable to 27 perform work requiring any verbal interaction with the general public; 28 and unable to perform activities solely dependent upon verbal responses, 2

1 but able to communicate and/or acknowledge communication nonverbally with 2 hand gestures and/or nodding." (AR at 222). Based on this RFC and the

3 described limitations, the ALJ concluded that Plaintiff would not be 4 capable of performing his past relevant work, but that Plaintiff would 5 be able to perform other work activity, specifically that of a toy 6 assembler (AR at 224-225). The ALJ therefore found that Plaintiff was The Appeals

7 not disabled under the Social Security Act. (AR at 225).

8 Council denied review and Decision #2 became the final decision of the 9 Commissioner. (AR at 205-208). 10 Plaintiff then filed this action for judicial review. Plaintiff

11 raises the following arguments by way of a Joint Stipulation of disputed 12 issues: 13 14 15 16 17 18 19 20 21 3. 2. 1. ALJ Everstine erred by disregarding the medical evidence. (Joint Stipulation ("Joint Stip.") at 511). ALJ Everstine erred in her assessment of Plaintiff's credibility. (Joint Stip. at 14-17). ALJ Everstine erred in determining that Plaintiff could perform the identified alternative work based on the RFC as assessed by the ALJ. (Joint Stip. at 21-24).

22 Plaintiff seeks a remand for payment of benefits, or alternatively a 23 remand for further proceedings (Joint Stip. at 27). 24 requests that Decision #2 be affirmed. (AR at The Commissioner The Joint

27-28).

25 Stipulation has been taken under submission without oral argument. 26 // 27 // 28 // 3

1 II. 2

Standard of Review The Court must uphold the Social Security Administrations's

3 disability determination unless it is not supported by substantial 4 evidence or is based on legal error. Ryan v. Comm'r of Soc. Sec., 528 5 F.3d 1194, 1198 (9th Cir. 2008)(citing Stout v. Comm'r of Soc. Sec. 6 Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)). Substantial evidence means 7 more than a scintilla, but less than a preponderance; it is evidence that 8 a reasonable person might accept as adequate to support a conclusion. 9 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)(citing 10 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To

11 determine whether substantial evidence supports a finding, the reviewing 12 court "must review the administrative record as a whole, weighing both 13 the evidence that supports and the evidence that detracts from the 14 Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th 15 Cir. 1996). "If the evidence can support either affirming or reversing

16 the ALJ's conclusion," the reviewing court "may not substitute [its] 17 judgment for that of the ALJ." Robbins, 466 F.3d at 882. 18 19 III. Discussion 20 After reviewing the parties' respective contentions and the record

21 as a whole, the Court finds that ALJ Everstine disregarded this Court's 22 order in Grant v. Barnhart (Case No. CV 04-9734-MLG), which required the 23 ALJ to properly consider the medical evidence and to propound a complete 24 hypothetical to the VE. Therefore, the Court remands this matter for

25 further proceedings consistent with this opinion and this Court's earlier 26 27 28 4

1 opinion in Grant v. Barnhart (Case No. CV 04-9734-MLG).1

First, the ALJ

2 did not, despite this Court's order, address Dr. Taylor's finding of "a 3 marked limitation in [Plaintiff's] ability to maintain social

4 functioning" based upon an organic mental disorder, nor did the ALJ 5 provide any reasons why such a limitation should not be credited and 6 included in the vocational limitations presented in the hypothetical to 7 the VE. (AR at 242). Second, from an examination of the transcript of

8 the hearing held on April 4, 2007, it does not appear that the ALJ 9 constructed a complete hypothetical which adequately reflected

10 Plaintiff's substantial verbal limitations. 11 the increasingly marked combativeness

The reason for this may be ALJ Everstine and

between

12 Plaintiff's counsel during the course of the hearing. In fact, it is the 13 opinion of this Court that ALJ Everstine's conduct at the hearing was so 14 intemperate as to give rise to an appearance of partiality.2

15 Accordingly, the Court orders that the case be assigned to a different 16 17 18 19 20 21 22 23 24 25 26 27 28 As noted above, Plaintiff raises three alleged errors committed by the ALJ in Decision #2: (1) the ALJ disregarded the medical evidence; (2) the ALJ did not properly credit Plaintiff's testimony; and (3) the ALJ incorrectly determined that Plaintiff could perform the identified alternative work based on the RFC. Because the ALJ erred by disregarding this Court's earlier order in Decision #1, the Court does not reach these three issues and will not decide whether these issues would independently warrant relief. For example, the following exchange took place between ALJ Everstine and Plaintiff's counsel, after which the hearing abruptly ended: Atty: Well, she's not answering the question. She never will. ALJ: Well, then, you know what, Mr. Rosales? Just appeal it. You got it? Because this is over. You've just ­ what you're doing is berating her. You're ­ Atty: My God, Your Honor. ALJ: My God nothing, Steven. Get out. Atty: She asked ­ ALJ: We're done. We're done. Get out. (AR at 327). 5
2 1

1 ALJ on remand.3 2 3 IV. 4 Conclusion Accordingly, pursuant to sentence four of 42 U.S.C. § 405(g), IT IS

5 HEREBY ORDERED that Judgment be entered reversing the decision of the 6 Commissioner of Social Security, and remanding this matter for further 7 proceedings consistent with this decision and the decision in Grant v. 8 Barnhart, Case No. CV 04-9734-MLG. 9 10 Dated: October 31, 2008 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In doing so, the Court does not find that the ALJ's behavior was so extreme as to display a clear inability to render a fair judgment, which in itself would warrant a remand or award of benefits. See Bayliss v. Barnhart, 427 F.3d 1211, 1214-15 (9th Cir. 2005), Rollins v. Massanari, 261 F.3d 853, 858 (9th Cir. 2001). 6
3

______________________________ Marc L. Goldman United States Magistrate Judge