Dwayne L. Jackson v. Michael J. Astrue
Filing
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MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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DWAYNE L. JACKSON,
)
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Plaintiff,
)
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v.
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CAROLYN W. COLVIN,1
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Acting Commissioner of Social
)
Security,
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Defendant.
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___________________________________)
NO. EDCV 12-00606-MAN
MEMORANDUM OPINION
AND ORDER
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Plaintiff filed a Complaint on May 3, 2012, seeking review of the
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denial of plaintiff’s application for a period of disability, disability
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insurance
benefits
(“DIB”),
and
supplemental
security
income
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(“SSI”). On June 15, 2012, the parties consented, pursuant to 28 U.S.C.
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§ 636(c), to proceed before the undersigned United States Magistrate
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Judge.
The parties filed a Joint Stipulation on January 31, 2013, in
which:
plaintiff seeks an order reversing the Commissioner’s decision
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Carolyn W. Colvin became the Acting Commissioner of the Social
Security Administration on February 14, 2013, and is substituted in
place of former Commissioner Michael J. Astrue as the defendant in this
action. (See Fed. R. Civ. P. 25(d).)
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and
remanding
this
case
for
further
administrative
proceedings,
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including, but not limited to, the taking of additional vocational
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testimony; and the Commissioner requests that his decision be affirmed
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or, alternatively, remanded for further administrative proceedings.
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SUMMARY OF ADMINISTRATIVE PROCEEDINGS
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Plaintiff filed an application for a period of disability, DIB, and
SSI
on
August
20,
2007.
(Administrative
Record
(“A.R.”)
20.)
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Plaintiff, who was born on April 22, 1960,2 claims to have been disabled
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since February 1, 2001 (A.R. 22), due to chronic pain in his back and
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legs, right foot pain, left shoulder pain, nervousness, and depression
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(A.R. 35, 67, 73).
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school bus driver.
Plaintiff has past relevant work experience as a
(A.R. 25.)
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After the Commissioner denied plaintiff’s claims initially and upon
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reconsideration (A.R. 67-71, 73-78), plaintiff requested a hearing (A.R.
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79).
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appeared and testified at a hearing before Administrative Law Judge
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Mason D. Harrell, Jr. (the “ALJ”).
(A.R. 32-62.)
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David A. Rinehart also testified.
(Id.)
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denied
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subsequently denied plaintiff’s request for review of the ALJ’s decision
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(A.R. 1-4). That decision is now at issue in this action.
On April 29, 2010, plaintiff, who was represented by counsel,
plaintiff’s
claim
(A.R.
20-27),
Vocational expert
On May 20, 2010, the ALJ
and
the
Appeals
Council
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On the alleged onset date, plaintiff was 40 years old, which
is defined as a younger individual.
(A.R. 25; citing 20 C.F.R.
§§ 404.1563, 416.963.)
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SUMMARY OF ADMINISTRATIVE DECISION
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The ALJ found that plaintiff met the insured status requirements of
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the Social Security Act through March 31, 2003, and has not engaged in
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substantial gainful activity since February 1, 2001, the alleged onset
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date of his disability.
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has the severe impairments of status post gunshot wound to the left
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shoulder and depression.
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plaintiff does not have an impairment or combination of impairments that
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meets or medically equals one of the listed impairments in 20 C.F.R.
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Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525,
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404.1526, 416.920(d), 416.925, and 416.926).
(A.R. 22.)
(Id.)
The ALJ determined that plaintiff
The ALJ concluded, however, that
(Id.)
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The ALJ determined that plaintiff has the residual functional
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capacity (“RFC”) to perform less than the full range of medium work as
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defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c) with the following
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limitations:
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[plaintiff] is limited to simple repetitive tasks.
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lift up to 20 pounds with his left arm but he cannot use his
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left arm to do work above shoulder level.
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fast paced work or work that requires hypervigilance.
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cannot work with the public and his interactions with co-
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workers and supervisors should be non-intense.
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work 2 or less times per month.
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(A.R. 23.)
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He can
He cannot perform
He
He would miss
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The ALJ found that plaintiff is unable to perform his past relevant
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work.
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and after having considered plaintiff’s age, education,3 work experience,
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and the testimony of the vocational expert, the ALJ found “there are
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jobs that exist in significant numbers in the national economy that
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[plaintiff] can perform,” including “electronics worker” and “sewing
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machine operator.”
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plaintiff has not been under a disability, as defined in the Social
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Security Act, from February 1, 2001, through the date of the ALJ’s
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(A.R. 25.)
decision.
However, based upon his RFC assessment for plaintiff
(A.R. 26.)
Accordingly, the ALJ concluded that
(A.R. 27.)
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STANDARD OF REVIEW
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Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s
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decision to determine whether it is free from legal error and supported
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by substantial evidence in the record as a whole.
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F.3d 625, 630 (9th Cir. 2007).
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evidence as a reasonable mind might accept as adequate to support a
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conclusion.’”
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a mere scintilla but not necessarily a preponderance.”
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Barnhart, 340 F.3d 871, 873 (9th Cir. 2003).
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record can constitute substantial evidence, only those ‘reasonably drawn
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from the record’ will suffice.”
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1066 (9th Cir. 2006)(citation omitted).
Orn v. Astrue, 495
Substantial evidence is “‘such relevant
Id. (citation omitted).
The “evidence must be more than
Connett v.
“While inferences from the
Widmark v. Barnhart, 454 F.3d 1063,
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Although this Court cannot substitute its discretion for that of
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The ALJ found that plaintiff has at least a high school
education and is able to communicate in English. (A.R. 26.)
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the Commissioner, the Court nonetheless must review the record as a
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whole, “weighing both the evidence that supports and the evidence that
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detracts from the [Commissioner’s] conclusion.”
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Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also
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Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
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responsible for determining credibility, resolving conflicts in medical
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testimony, and for resolving ambiguities.”
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1035, 1039 (9th Cir. 1995).
Desrosiers v. Sec’y of
“The ALJ is
Andrews v. Shalala, 53 F.3d
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The Court will uphold the Commissioner’s decision when the evidence
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is susceptible to more than one rational interpretation.
Burch v.
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Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
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review only the reasons stated by the ALJ in his decision “and may not
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affirm the ALJ on a ground upon which he did not rely.”
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at 630; see also Connett, 340 F.3d at 874.
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the Commissioner’s decision if it is based on harmless error, which
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exists only when it is “clear from the record that an ALJ’s error was
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‘inconsequential to the ultimate nondisability determination.’” Robbins
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v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v.
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Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d
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at 679.
However, the Court may
Orn, 495 F.3d
The Court will not reverse
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DISCUSSION
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Plaintiff
claims
the
ALJ
erred
by
not
considering
properly:
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(1) plaintiff’s subjective symptom testimony; and (2) the RFC assessment
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for plaintiff.
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23.)
(Joint Stipulation (“Joint Stip.”) at 4-6, 13-17, 22-
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I.
The ALJ Failed To Provide Clear And Convincing Reasons
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For Finding Plaintiff’s Subjective Symptom Testimony To
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Be Not Credible.
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Once a disability claimant produces objective medical evidence of
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an underlying impairment that is reasonably likely to be the source of
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claimant’s subjective symptom(s), all subjective testimony as to the
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severity of the symptoms must be considered.
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F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 346
Cir.
1991);
10
(9th
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(explaining how pain and other symptoms are evaluated).
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ALJ makes
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thereof, he or she may only find an applicant not credible by making
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specific findings as to credibility and stating clear and convincing
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reasons for each.”
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considered in weighing a claimant’s credibility include:
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claimant’s reputation for truthfulness; (2) inconsistencies either in
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the claimant’s testimony or between the claimant’s testimony and her
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conduct; (3) the claimant’s daily activities; (4) the claimant’s work
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record; and (5) testimony from physicians and third parties concerning
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the nature, severity, and effect of the symptoms of which the claimant
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complains.
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2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c).
a
see
also
finding of
20
C.F.R.
§§
Moisa v. Barnhart, 367
malingering based
404.1529(a),
on
Robbins, 466 F.3d at 883.
416.929(a)
“[U]nless an
affirmative
evidence
The factors to be
(1) the
See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir.
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25
At the April 29, 2010 administrative hearing, plaintiff testified
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that he has:
major depression; chronic back pain; aching legs; bad
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circulation in his knees; and arthritis in his right ankle.
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37-38.)
(A.R. 35,
Plaintiff also testified that he was shot in his left shoulder
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and “can’t function with it like [he] normally could.”
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Plaintiff indicated that he presently is taking Darvocet4 for his pain
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and Lexapro for his depression.
(A.R. 46, 50.)
With respect to his
4
physical
testified
he
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sitting for long periods of time due to his impairments.
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also testified that he has problems using his left hand.
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47.)
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anything that weighs 20 pounds, because “it strains [his] back shoulder
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section.”
limitations,
plaintiff
that
has
(A.R. 44.)
difficultly
(A.R. 46.)
He
(A.R.
For example, plaintiff stated that he has difficulty lifting
(Id.)
He also stated that he limits himself to “smaller
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tasks around the house so that [he does not] continue to reinjure or re-
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aggravate [his] shoulder.”
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plaintiff testified that:
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up
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[him]self”; he has problems concentrating; he has “very low confidence”
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and is “always in fear . . . of someone finding something or [a] reason
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to fire [him]”; he has no motivation; he does not trust anyone; and he
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has crying spells.
[and]
get
going
in
(Id.)
With respect to his depression,
he has no energy; it is hard for him to “get
the
morning”;
he
“pretty
much
stay[s]
to
(A.R. 50-54.)
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The ALJ found that plaintiff has the severe impairments of “status
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post gunshot wound to the left shoulder, and depression.”
(A.R. 22.)
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The ALJ cited no evidence of malingering by plaintiff. Accordingly, the
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ALJ’s reasons for discrediting plaintiff’s subjective complaints must be
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clear and convincing.
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In his decision, the ALJ found that “[plaintiff]’s allegations were
not fully credible.”
(A.R. 25.)
In finding plaintiff to be not fully
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Plaintiff indicated that the Darvocet causes him to sleep for
a few hours during the day. (A.R. 50-51.)
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credible, the ALJ stated that “[plaintiff]’s statements concerning the
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intensity, persistence and limiting effects of the alleged symptoms are
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credible only to the extent that they are consistent with [the ALJ’s RFC
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assessment for plaintiff].”
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contention,
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plaintiff to be not credible.5
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various
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allegations to be not credible, the ALJ’s boilerplate statement is not
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“sufficiently specific” to allow this Court to determine whether the ALJ
no
others
symptoms
and
(Id.)
reasons
were
Contrary to the Commissioner’s
cited
by
the
ALJ
for
finding
As noted supra, plaintiff testified to
limitations.
While
the
ALJ
may
find
these
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rejected plaintiff’s statements on permissible grounds.
Therefore, the
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ALJ’s reasoning does not constitute a clear and convincing reasons, as
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required, for finding plaintiff to be not credible.
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Accordingly, because the ALJ failed to give clear and convincing
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reasons for finding plaintiff to be not credible, the ALJ committed
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reversible error.
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II.
The ALJ Failed To Consider Properly The Opinion Of
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Plaintiff’s Treating Physician, And Therefore, On Remand,
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The ALJ Needs To Revisit Plaintiff’s RFC.
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Plaintiff claims that the ALJ erred in failing to include in his
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assessment of plaintiff’s RFC the opinion of consultative psychiatrist
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Ernest A. Bagner, M.D., that plaintiff would have mild to moderate
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While the Commissioner now offers other reasons to explain the
ALJ’s credibility determination, the Court cannot entertain these post
hoc rationalizations. See, e.g., Connett, 340 F.3d at 874 (finding that
“[i]t was error for the district court to affirm the ALJ’s credibility
decision based on evidence that the ALJ did not discuss”).
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limitations with respect to handling normal stresses at work -- the
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inclusion of which could have affected the ALJ’s determination that
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plaintiff can perform other work.
(Joint Stip. at 4-6, 13-14.)
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5
It is the responsibility of the ALJ to analyze evidence and resolve
6
conflicts in medical testimony.
Magallanes v. Bowen, 881 F.2d 747, 750
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(9th Cir. 1989).
8
assessing a social security claim, “[g]enerally, a treating physician’s
9
opinion carries more weight than an examining physician’s, and an
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examining physician’s opinion carries more weight than a reviewing
11
physician’s.”
12
2001); 20 C.F.R. §§ 404.1527(d), 416.927(d).
In the hierarchy of physician opinions considered in
Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir.
13
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An ALJ must provide “clear and convincing reasons” for rejecting
15
the uncontradicted opinion of an examining physician. Lester v. Chater,
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81 F.3d 821, 830 (9th Cir. 1995).
17
an examining physician, an ALJ must provide “specific and legitimate
18
reasons that are supported by substantial evidence in the record.”
19
at 830-31.
20
substantial
21
claimant’s RFC, if it is properly supported by the medical evidence.
22
See,
23
2001)(consultative examiner’s opinon on its own constitute substantial
24
evidence, because it rested on independent examination of claimant).
e.g.,
To reject the contradicted opinion of
Id.
The opinion of an examining physician may constitute
evidence
Tonapetyan
upon
v.
which
an
Halter,
ALJ
242
may
F.3d
rely
1144,
in
assessing
1149
(9th
a
Cir.
25
26
In determining a claimant’s RFC, an ALJ will consider all the
27
relevant
evidence
28
416.945(a)(1).
in
the
record.
20
C.F.R.
§§
404.1545(a)(1),
In so doing, the ALJ will consider all claimant’s
9
1
medically
determinable
impairments,
including
those
that
2
“‘severe.’”
3
will consider “any statement about what [the claimant] can still do that
4
have been provided by medical sources.”
5
416.945(a)(3).
20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2).
are
not
The ALJ also
20 C.F.R. §§ 404.1545(a)(3),
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7
In a March 27, 2008 psychiatric evaluation, Dr. Bagner diagnosed
8
plaintiff
with,
inter
alia,
9
depressive
specified, and alcohol abuse.
disorder,
(A.R. 235.)
not
otherwise
Dr. Bagner opined that
10
plaintiff would have:
11
peers
12
concentration
13
limitations completing complex tasks and completing a normal workweek
14
without interruption”; and “mild to moderate limitations handling normal
15
stresses at work.”
or
the
“no limitations interacting with supervisors,
public”;
and
“zero
attention
to
limitations
completing
and
mild
simple
maintaining
tasks”;
“mild
(A.R. 236; emphasis added.)
16
17
In his decision, the ALJ summarized the various medical opinions
18
regarding plaintiff’s mental impairment and resulting limitations.
19
example, the ALJ noted:
20
regarding plaintiff’s mental impairment and functional limitations; (2)
21
treatment notes from Stuart Finkelstein, M.D., which indicated that
22
plaintiff was depressed and drinking alcohol; and (3) the opinion of the
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State Agency psychiatrist who opined that plaintiff’s mental impairment
24
was non-severe.
25
the ALJ stated that notwithstanding the opinion of the State Agency
26
psychiatrist, the ALJ was giving plaintiff “the benefit of the doubt by
27
finding
28
limitations.”
that
(1) Dr. Bagner’s diagnoses and opinions
(A.R. 24-25.)
his
depression
(A.R. 25.)
For
After summarizing the various opinions,
results
in
some
work-related
mental
Notably, however, the ALJ never specifically
10
1
indicated the physician’s opinion upon which he relied in determining
2
the extent of plaintiff’s mental limitations.
3
4
Although not entirely clear, it appears that the ALJ afforded the
5
greatest weight to the opinion of Dr. Bagner, because many of Dr.
6
Bagner’s limitations are reflected in the ALJ’s RFC assessment for
7
plaintiff.
8
ALJ’s RFC assessment for plaintiff includes a limitation to simple
9
repetitive
For example, consistently with Dr. Bagner’s opinion, the
tasks
and
no
“fast
paced”
work
or
work
that
requires
10
hypervigilance.
11
Dr.
12
limitations in handling normal stresses at work.
13
accept the full extent of Dr. Bagner’s opinion, the ALJ may not reject
14
it, or significant parts of it, without giving specific and legitimate
15
reasons for so doing.
16
Cir. 1990)(mere summarization and implicit rejection of physician’s
17
opinion does not suffice). The ALJ’s failure to proffer any reason, let
18
alone an appropriate reason, for failing to incorporate properly and/or
19
to
20
constitutes error.6
21
consider Dr.
22
plaintiff.
23
///
24
///
Bagner’s
explain
However, the ALJ’s RFC assessment does not incorporate
opinion
the
that
plaintiff
would
have
mild
to
moderate
While the ALJ need not
See Salvador v. Sullivan, 917 F.2d 13, 14 (9th
dismissal
of
a
portion
of
Dr.
Bagner’s
opinion
Accordingly, on remand, the ALJ needs to properly
Bagner’s
opinion and
revisit
his
RFC
assessment for
25
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26
27
28
Although the Commissioner now offers other reasons to explain
the ALJ’s rejection of the opinion of Dr. Ahmed, the Court cannot
entertain these post hoc rationalizations. See, e.g., Orn, 495 F.3d at
630 (“We review only the reasons provided by the ALJ in the disability
determination and may not affirm on a ground upon which he did not
rely”).
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1
III. Remand Is Required.
2
3
The decision whether to remand for further proceedings or order an
4
immediate award of benefits is within the district court’s discretion.
5
Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000).
6
useful purpose would be served by further administrative proceedings, or
7
where the record has been fully developed, it is appropriate to exercise
8
this discretion to direct an immediate award of benefits.
9
(“[T]he decision of whether to remand for further proceedings turns upon
Where no
Id. at 1179
10
the likely utility of such proceedings.”).
However, where there are
11
outstanding issues that must be resolved before a determination of
12
disability can be made, and it is not clear from the record that the ALJ
13
would be required to find the claimant disabled if all the evidence were
14
properly evaluated, remand is appropriate.
Id. at 1179-81.
15
16
Remand is the appropriate remedy to allow the ALJ the opportunity
17
to remedy the above-mentioned deficiencies and errors.
18
Shalala, 12 F.3d 915, 918 (9th Cir. 1993)(ordering remand so that the
19
ALJ could articulate specific and appropriate findings, if any existed,
20
for rejecting the claimant’s subjective pain testimony). On remand, the
21
ALJ
22
plaintiff’s
23
plaintiff’s testimony is not credible.
24
either credit Dr. Bagner’s opinion or provide appropriate reasons
25
supported by substantial evidence for rejecting it. After doing so, the
26
ALJ may need to reassess plaintiff’s RFC, in which case additional
27
testimony from a vocational expert likely will be needed to determine
28
what work, if any, plaintiff can perform.
must
revisit
plaintiff’s
testimony
or
give
testimony
clear
12
and
and
must
See Dodrill v.
either
convincing
credit
reasons
why
Additionally, the ALJ must
1
CONCLUSION
2
3
Accordingly, for the reasons stated above, IT IS ORDERED that the
4
decision of the Commissioner is REVERSED, and this case is REMANDED for
5
further proceedings consistent with this Memorandum Opinion and Order.
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7
IT IS FURTHER ORDERED that the Clerk of the Court shall serve
8
copies of this Memorandum Opinion and Order and the Judgment on counsel
9
for plaintiff and for defendant.
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LET JUDGMENT BE ENTERED ACCORDINGLY.
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DATED:
May 2, 2013
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15
MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE
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