Schneider v. Commissioner of Social Security

Filing 25

FINDINGS and RECOMMENDATIONS recommending that Plaintiffs appeal from the administrative decision of the Commissioner of Social Security be GRANTED and that JUDGMENT be entered for Plaintiff Donald Schneider and against Defendant Michael J. Astrue; r e 1 Social Security Complaint filed by Donald Schneider. referred to Judge Chief District Judge Anthony W. Ishii. Objections to F&R due by 9/12/2012, Replies to the objections shall be served and filed within fourteen (14) days after service of the objections, signed by Magistrate Judge Dennis L. Beck on 8/28/2012. (Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DONALD SCHNEIDER,

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Plaintiff,
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vs.
MICHAEL J. ASTRUE, Commissioner of
Social Security,

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Defendant

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Case No.: 1:11cv0707 AWI DLB
FINDINGS AND RECOMMENDATIONS
REGARDING PLAINTIFF’S SOCIAL
SECURITY COMPLAINT

BACKGROUND

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Plaintiff Donald Schneider (“Plaintiff”) seeks judicial review of a final decision of the

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Commissioner of Social Security (“Commissioner”) denying his application for Disability

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Insurance Benefits (“DIB”) pursuant to Title II of the Social Security Act. The matter is

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currently before the Court on the parties’ briefs, which were submitted, without oral argument, to

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the Magistrate Judge for findings and recommendations to the District Court.

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FACTS AND PRIOR PROCEEDINGS1

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Plaintiff filed for DIB on September 25, 2007. AR 136-40. He alleged disability since
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August 31, 2007, due to arm numbness, depression and anxiety. AR 155. After being denied

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References to the Administrative Record will be designated as “AR,” followed by the appropriate page number.

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initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law
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Judge (“ALJ”). AR 82-85, 90-94, 96-97. On November 17, 2009, ALJ James P. Berry held a
hearing. AR 27-65. ALJ Berry denied benefits on January 7, 2010. AR 12-22. On March 3,
2011, the Appeals Council denied review. AR 1-5.

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Hearing Testimony

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ALJ Berry held a hearing on November 17, 2009. Plaintiff appeared with his attorney,

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Jeff Milam. Vocational expert (“VE”) Thomas Dachelet also appeared and testified. AR 29.
Plaintiff’s Testimony
Plaintiff was born in 1959. He is 5’1” and weighs approximately 190 pounds. He has a
VA disability of 40 percent, which is service connected, as he broke his arm in Italy and has
nerve damage in the right arm, along with tinnitus. AR 31-33.
Plaintiff completed the 12th grade and can read and write. After 12th grade, Plaintiff
received a heavy equipment operator’s license and was in the Marine Corps for six years. AR

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33. Plaintiff did not believe that he could return to any of his past jobs on a full time basis. He
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last worked at the Internal Revenue Service (“IRS”) as a mail clerk, but stopped working because
of pain after a fall in December 2004. AR 35. Since that time, he has had problems with his
back. AR 54-55. He tried to work as a janitor at the veteran’s halfway house, but could not
sweep and mop because his arm hurt. AR 39-41.
Plaintiff claimed he cannot work because of his back, right shoulder, left arm and

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depression. He receives treatment for these issues at the VA Medical Center in Fresno,

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California. AR 35-36.

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Plaintiff has been seeing Dr. Howsepian since 2002 or 2003 for his depression. Plaintiff

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experiences anger, distrust of people and low energy. He sleeps an average of 10 hours a day,

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some of it during the daytime, and he wakes up between one and three o’clock in the afternoon.

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AR 39. He also uses a CPAP machine for apnea. AR 55.

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Plaintiff explained that there is nothing they can do to treat his low back. He has tried
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physical therapy and occupational therapy, but nothing seems to work. He has constant,
throbbing pain and cannot get comfortable. AR 42-44. Plaintiff also has hearing aids, which he
wears all the time. If there is a lot of background noise, he has trouble hearing. AR 44.

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Plaintiff estimated that he could probably lift five to ten pounds. On a good day, he can

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sit for half an hour and can stand or walk for 15 minutes. In an eight-hour day, he can lie down

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two or three hours, sit four hours and stand two hours. He has trouble reaching overhead with

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his left arm. In an eight-hour day, he can reach out and grab things for one or two hours because

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of his back, shoulders and wrist. He can wash dishes for 15 or 20 minutes. He can concentrate

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for 5 or 10 minutes. Due to his depression, he gets irritated very easily and the stress of getting

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to work on time and dealing with an eight-hour day would be a problem for him. AR 44-49.
Plaintiff has a history of substance abuse and last used alcohol or drugs about three and a
half years before the hearing. He attended an outpatient Chemical Dependency Treatment

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Program, but has stopped attending AA meetings. AR 49-51.
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On a normal day, Plaintiff can get himself something to eat, take care of his dressing and
bathing, and watch TV or visit one of his friends. He sometimes reads, but not for very long. He
also is involved with his synagogue. He takes care of and cleans his own apartment. AR 51-54.

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He has a driver’s license and drives. He likes to golf and to watch T.V. and movies. He was

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restoring a 1948 Dodge truck, but had to sell it. AR 56-59.

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Plaintiff clarified that he resigned from his job in 2007 because of pain. He also was

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having some issues at the IRS involving other people, which was one of the major reasons he

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stopped working. AR 56.

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Vocational Expert’s Testimony

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The VE identified Plaintiff’s past relevant work at the IRS as a clerk, which was light,

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SVP three, and semiskilled. AR 60.

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For the first hypothetical, the ALJ asked the VE to assume an individual 50 years of age
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with a 12th grade education and Plaintiff’s past relevant work experience. The ALJ asked the VE
to assume that this individual could lift and carry 100 pounds occasionally, 50 pounds frequently,
could stand, walk and sit six hours each, could perform simple repetitive tasks, could maintain

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attention, concentration, persistence and pace, could relate to and interact with others, could

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adapt to usual changes in work setting and could adhere to safety rules. However, this individual

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must avoid concentrated exposure to loud noise. Given these limitations, the VE testified that

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this individual could not perform Plaintiff’s past work, but could perform other jobs in the

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national economy. AR 60-61.
For the second hypothetical, the ALJ asked the VE to assume an individual with the same
vocational background who could lift and carry five to ten pounds, could stand two hours and sit
four hours, would have difficulty maintaining attention, concentration and interaction with
others, would need frequent rest breaks lasting approximately two hours, could not reach

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overhead with the left, non-dominant extremity, would have difficulty reaching more than one
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hour per day and would have difficulty using the dominant, right upper extremity more than 15
to 20 minutes at a time. Given these limitations, the VE testified that such an individual could
not perform Plaintiff’s past work or any other work in the national economy. AR 62-63.

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Medical Record

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Physical Impairments

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On July 25, 2005, Plaintiff underwent a neurological evaluation by Dr. Arvind Mehta.

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Following an examination and review of nerve conduction studies, Dr. Mehta diagnosed Plaintiff

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with residual hephalgesia in an oval shaped area on the left forearm due to residual right radial

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nerve findings. Plaintiff also had mild left median carpal tunnel syndrome and borderline

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median carpal tunnel syndrome. Plaintiff also had chronic pain symptoms in the left upper
extremity with spread of pain into the neck, left should blade area, upper back and in the

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bioccipital and bitemporal head regions. Dr. Mehta opined that Plaintiff’s complaints of a right

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shoulder condition were totally subjective and were difficult to evaluate objectively because
there were no physical findings. Plaintiff’s reported headaches were not frustrating and he
continued to function. AR 238-39.

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In December 2005, Plaintiff underwent surgery for a right wrist fracture. AR 285-86.

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On June 27, 2007, Plaintiff sought emergency treatment for upper back and shoulder pain

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radiating to his chest. On physical exam, Plaintiff’s spine was tender at T8/9, but he had full

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range of motion in both shoulders with normal power and tone. He was diagnosed with a back

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sprain and chest wall pain. AR 273-79.
On July 9, 2007, Plaintiff was diagnosed with sleep apnea by history. AR 264-65.
On July 30, 2007, Plaintiff complained of pain in his neck and shoulders. On exam,
Plaintiff’s neck and shoulders were tight, consistent with a diagnosis of fibromyalgia made worse
by stress at work and the repetitive motion and lifting involved in sorting and delivering mail at

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work. He also had hypertension and obesity. Plaintiff was considering disability. AR 257.
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In October 2007, Plaintiff underwent reconstructive surgery of his jaw and chin related to
obstructive sleep apnea. AR 296, 299-73.
On November 12, 2007, Dr. Judith Miller completed a consultative internal medicine

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evaluation. Plaintiff primarily complained of left arm numbness, chronic depression and anxiety.

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He reported his activities of daily living to include light house work, such as vacuuming and

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mopping, and light yard work. As a hobby, he was restoring a 1948 Dodge Truck. There were

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no abnormal findings on physical examination. Dr. Miller opined that Plaintiff was able to

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demonstrate heavy activity with standing and/or walking and no restrictions with sitting, lifting

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and carrying. He had no postural, manipulative, communicative or environmental difficulties.

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AR 374-78.
A January 2008 sleep study showed mild sleep apnea. AR 465.

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On February 11, 2008, Dr. Mehta performed a compensation and pension examination.
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Dr. Mehta diagnosed left arm numbness, which was stable and unchanged, moderate left-sided
carpal tunnel syndrome not requiring surgery or brace, mild right sided carpal tunnel syndrome
minimally symptomatic and not requiring any operation or treatment, and muscle tension
headaches induced by physical exertion in the upper extremity muscles. AR 457-60.
On February 25, 2008, Plaintiff complained of left neck and shoulder pain. On exam, he

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was tender in muscles around the shoulder. AR 455. The next day, Plaintiff was issued a left

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wrist splint for carpal tunnel syndrome. AR 554.

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On March 21, 2008, Plaintiff was approved for chiropractic treatment and physiotherapy
for 12 visits. AR 551. On April 16, 2008, Plaintiff reported that the chiropractic regimen had
been helpful, but as soon as he started using his left hand, his shoulder became painful. AR 776.
On May 2, 2008, Plaintiff sought emergency room treatment for left side shoulder and
neck pain. Plaintiff had run out of Vicodin. On examination, Plaintiff was tender to the left very

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superior aspect of trapezius with no direct left shoulder tenderness. His range of motion was
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intact, but with discomfort. Plaintiff received a Toradol injection. AR 762-66.
On May 27, 2008, Plaintiff sought treatment from Dr. Vishal Pall for consideration of a
left shoulder steroid injection. Plaintiff reported progressive pain in the left shoulder, with

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associated neck pain, scapular pain and numbness. On examination, Plaintiff had pain limited

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neck range of motion and pain limited left shoulder abduction. Dr. Pall assessed left shoulder

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impingement, subacromial bursitis, cervical spine degenerative disc disease and rule out cervical

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spine stenosis. Plaintiff was given a steroid injection. AR 753-54.

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On June 16, 2008, Plaintiff sought treatment for pain to his left shoulder. AR 744.

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On July 3, 2008, a left shoulder x-ray showed no fracture, dislocation or osseous

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abnormality. AR 515. On the same day, Dr. John Kwock completed an orthopedic surgery
consult for left shoulder impingement. Plaintiff was prescribed a trial of NSAIDS. AR 546-47.

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On July 5, 2008, Plaintiff sought emergency room treatment after he fell and bruised the
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left side of his body, low back and hips. X-rays of Plaintiff’s hips and ribs showed no fracture.
He was to continue NSAIDS. AR 735-40.
On August 4, 2008, Dr. Kwock saw Plaintiff for left shoulder abduction pain. Plaintiff

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reported that it was not abduction of the arm that caused pain, but pain in the base of the neck

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that radiated into the left shoulder and was aggravated with rotational movement of the head. Dr.

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Kwock believed that Plaintiff’s complaints had a peripheral nerve quality although an EMG in

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2007 was not suggestive of it. Dr. Kwock requested a bone scan and a MRI of the left shoulder.

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AR 725-26.
A cervical spine x-ray completed on August 4, 2008, showed minimal degenerative
changes and a subsequent bone scan suggested degenerative arthritis and degenerative changes
of the first cervical vertebrae. AR 508-12. MRI results completed the next day suggested mild
supraspinatus tendinosis of the left shoulder. AR 507.
On August 12, 2008, Dr. Kwock considered Plaintiff’s c-spine x-rays, bone scan and

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MRI and believed Plaintiff might have a shoulder impingement of some degree. Plaintiff was to
have an injection. AR 723-24.
On August 20, 2008, Plaintiff complained of ongoing shoulder pain. Dr. Alan Cohen, a

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primary care physician, assessed chronic shoulder impingement/rotator cuff and referred Plaintiff

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to orthopedics. AR 720.

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On November 5, 2008, Dr. Kwock evaluated Plaintiff’s shoulder abduction issues. On

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exam, Plaintiff had painful abduction of the shoulder. A review of a c-spine series and a MRI

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were “not very suggestive of a disc protrusion.” Plaintiff was referred to neurosurgery for

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possible radiculopathy before surgical treatment. AR 703-04.

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On December 3, 2008, Plaintiff sought emergency room treatment for chronic bilateral
shoulder pain. Plaintiff reported no relief from Vicodin and requested a Ketorolac shot. On

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exam, he had limited range of motion in both shoulders and was given a Ketorolac shot. AR
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698-701.
On December 5, 2008, Plaintiff sought treatment for complaints of chronic pain in his
neck and shoulder. He reported receiving a shot two days prior for pain. As Plaintiff was on a
high dose Vicodin, he was given a Toldol injection. AR 693-95.
On December 8, 2008, Plaintiff complained to Dr. Cohen that his shoulder pain was
worsening. AR 690.
On January 5, 2009, Dr. Cohen met with Plaintiff regarding his chronic low back and

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shoulder pain. Due to the pain, Plaintiff could not do the tasks that he enjoyed. He had disturbed

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concentration, depression, anger and irritability. Dr. Cohen commented that medication was less

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risk than alternative therapies. AR 680-81.
On February 6, 2009, Plaintiff saw De Davis, a nurse practitioner, during a pre-operative
appointment for his shoulder. Plaintiff doubted that surgery would help him. Nurse Davis had
the impression that Plaintiff’s motives for surgery were based on his homelessness, financial

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stressors and other stressors, including his belief that disability would be curtailed if he did not
have surgery. During his discussion with Nurse Davis, Plaintiff became agitated and used
profanity. Plaintiff also used profanity when Dr. Kwock attempted a consultation. AR 671-73.

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On June 10, 2009, Dr. Gopi Kasturi completed a neurological examination. On exam,

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Plaintiff has multiple tender points in the left trapezius, 4/5 strength in his left upper extremity

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and decreased sensation to pinprick in the left upper extremity. Dr. Kasturi diagnosed left

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cervical radiculopathy based on MRI results and physical examination. Plaintiff also had left

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neck/shoulder myofascial pain. Plaintiff received a myofascial trigger point injection in the left

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trapezius and rhomboid. AR 534-37.

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On July 8, 2009, Plaintiff underwent a physical therapy evaluation for C spine
strengthening and stabilization, along with cervical traction. Plaintiff reported left-sided neck

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pain for more than five years, along with headache, left shoulder pain and intermittent numbness
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down to his left hand. On exam, Plaintiff was dysthymic with a flat affect. His c-spine range of
motion was limited by subjective pain and he had diminished sensation in his left upper
extremity. He also had tightness in his left trapezius, levator, rhomboids, supraspinatus and

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suboccipitals. The physical therapist opined that Plaintiff’s subjective symptoms were consistent

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with chronic cervical spine radiculopathy with resultant myofascial pain syndrome. Plaintiff had

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significant tightness throughout the cervical spine and thoracic musculature, which should

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improve with therapeutic exercise and stretching. AR 527-29.

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Plaintiff attended physical therapy five times between July and August 2009. AR 845,
850-51, 852, 854-55, 862. However, on September 8, 2009, the physical therapist noted that
Plaintiff had not attended any physical therapy sessions since August 19, 2009, and if there was
no word from Plaintiff by September 21, 2009, he would be discharged from physical therapy for
his c-spine. AR 836.

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On July 16, 2009, Dr. Martin Lauber completed a general medical evaluation. On
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examination, Plaintiff’s shoulders did not reveal any incapacitation, reduction in joint excursion,
fatigability or loss of coordination. Dr. Lauber diagnosed cervical radiculopathy affecting the
left arm, dysesthesia and hypoesthesia to the left upper arm and carpal tunnel syndrome based on

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earlier nerve conduction studies. Dr. Lauber commented that radiographs showed degenerative

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disease with disc herniation at two levels, which appeared to correspond with Plaintiff’s pain.

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Plaintiff was not limited in terms of walking and did not have issues of unemployability or

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limitations of his daily activities due to a prior leg injury while in the service. AR 569-74.

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On July 17, 2009, Dr. Mehta completed a neurological evaluation. Plaintiff complained
of daily headaches for which he took Oxycodone. He also complained of numbness in his upper
extremities and in both legs, but this did not limit his walking, standing or sitting and doing all
other activities. AR 565. On exam, Plaintiff’s neck movements were performed fairly well and

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he had normal power and coordination in both upper and lower extremities. He had reduced
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sensation to pinprick on the lateral aspect of his left forearm distally corresponding to left
regional nerve distribution. He also had reduced sensation to pinprick in stocking distribution in
both lower extremities. Tinel signs were positive on the left median nerve. Following nerve

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conduction studies, Dr. Mehta concluded that Plaintiff had normal findings in both upper

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extremity nerves and there was no evidence of carpal tunnel syndrome on either side. In his

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lower extremity nerves, there was evidence of peripheral neuropathy. Dr. Mehta diagnosed

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chronic headaches of muscle tension type, idiopathic polyneuropathy metabolic in origin causing

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paresthesia in both lower extremities and reduced reflexes and sensation. Plaintiff did not have

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any cervical radiculopathy symptoms despite cervical spondylosis and bulging disc on a MRI

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scan. Dr. Mehta commented that Plaintiff’s headaches were not causing any functional

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impairment or disability and that Plaintiff did not have physical limitations from polyneuropathy.
AR 564-69.

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On October 5, 2009, Plaintiff received follow-up care from Dr. Singh for chronic left
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sided neck and shoulder pain. On exam, the left side of his neck, shoulder and pectoral muscle
were stiff and tender to deep palpation. Dr. Singh assessed shoulder and neck muscle strain,
cervical radiculopathy, hypertension, hearing loss, hypothyroidism, obesity and sleep apnea. AR
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On October 19, 2009, Plaintiff received follow-up treatment with Dr. Kasturi. Plaintiff

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continued to be in significant pain. On exam, he had multiple tender points in the entire

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paraspinal musculature. Plaintiff wondered if medical marijuana would help him, but Dr.

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Kasturi explained it would not help affect the basic pathology. AR 825.

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Mental Impairments
On July 25, 2005, Plaintiff saw clinical psychiatrist, Dr. Avak A. Howsepian and
discussed behavioral dyscontrol. Plaintiff’s problems at work appeared insoluble and he felt he

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was going to “get screwed.” AR 260. On mental status, Plaintiff was more depressed, dysphoric

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and irritable. Dr. Howsepian diagnosed dysthymic disorder with adjustment overlay, anxiety
nos, pain disorder and rule out delayed onset PTSD. Plaintiff’s venlafaxine and buspirone were
increased to the maximum dosage. AR 260.
Between June 2006 and July 2009, Plaintiff attended a Chemical Dependency Treatment

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Program, which included counseling and maintenance. AR 205-33. In group counseling,

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Plaintiff routinely was noted to be reasonable, responsive and appropriate and cooperative with

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staff and with peers. AR 241-43, 245, 449, 452-53, 457, 462-63, 469, 555.

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On July 23, 2007, Plaintiff’s wife called Dr. Howsepian. She stated that they had an
argument and Plaintiff turned over furniture, broke things, tried to dump the fish tank and was
out of control. He also did not go to work, did not call in and was AWOL. AR 262.
On August 6, 2007, according to notes from Thomas O’Rourke, an addiction therapist,
Plaintiff reported that he told the Fresno IRS Director that “he was a piece of [excrement] and
deserved or needed to be flushed” and that “he ought to be put under the jailhouse.” Plaintiff

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believed his words were misunderstood as a threat. Three detectives came to his home and took
his IRS badge, and Plaintiff was placed on leave. AR 254-55.
On August 7, 2007, Plaintiff sought emergency psychiatry treatment for depression. AR

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252-53. Dr. Tirath Gill indicated that Plaintiff was under increased stress because of arguments

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with a supervisor at work. Plaintiff was “on the max of meds” and tended “to deny usefulness of

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meds or any suggestions.” AR 251.

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On August 13, 2007, Plaintiff reported in group therapy that he had made statements,

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which were interpreted as threats, to an IRS supervisor. Plaintiff described himself as “the kind

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of fellow who will state and speak his mind in [ ] a direct, rather blunt fashion, if he is so moved

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by events.” AR 250. Therapist O’Rourke noted that Plaintiff’s mood was within his normal

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limits, he was reasonable and responsive and he was appropriate and cooperative with staff and
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peers. AR 250.
On August 16, 2007, Plaintiff called Dr. Howsepian and reported that the IRS wanted to
get rid of him because he said something that was taken as a threat. Plaintiff stated that he
should never have returned to work and that he wanted to go out on medical retirement. AR 249.
On August 20, 2007, Plaintiff expressed to Dr. Howsepian that he was thinking about

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resigning and seeking medical retirement. Plaintiff also asked whether he had PTSD, stating that

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his depression and anxiety were no better and that his sleep was suboptimal. On mental status,

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Plaintiff was dysphoric, depressed and subdued with a blunted affect. Dr. Howsepian diagnosed

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dysthymic disorder with adjustment overlay, anxiety disorder NOS, pain disorder (shoulder) and

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rule out delayed onset PTSD. AR 247-48.
On August 27, 2007, Plaintiff attended group counseling for his addiction and reported
that he met with his psychiatrist regarding his decision to resign. His doctor had encouraged him

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to resign quite some time back and he felt resigning was the correct decision. Therapist
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O’Rourke noted that Plaintiff’s mood was within his normal limits, he was reasonable and
responsive and he was appropriate and cooperative with staff and peers. AR 247.
On August 29, 2007, Plaintiff informed Dr. Howsepian that he had resigned from the IRS

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and was seeking disability. They discussed that Dr. Howsepian had “not (yet) diagnosed him

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with PTSD.” On mental status exam, Plaintiff was angry and dysphoric. His depression screen

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was positive. AR 245-46.

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On September 20, 2007, therapist O’Rourke noted that Plaintiff’s mood was within its
normal limits and that he was appropriate and cooperative with staff and peers. AR 245.
On September 11, 2007, Dr. Howsepian wrote a letter regarding Plaintiff’s psychiatric
status. According to the letter, Plaintiff had current diagnoses of dysthymic disorder (with
significant adjustment overlay), anxiety disorder NOS, learning disorder NOS, pain disorder and

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obstructive sleep apnea. Dr. Howsepian opined that Plaintiff’s psychiatric condition had

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worsened appreciably over the past four years. Plaintiff was “exquisitely sensitive” to stress,
exhibiting both somatic symptoms (tachycardia and hypertension) and myriad psychiatric
symptoms in the face of occupational stressors (perceived repeated harassment resulting in a

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hostile work environment). Plaintiff’s symptoms included depression, anxiety, dysphoria,

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hopelessness, helplessness, anger, irritability, explosivity, psychomotor retardation, frustration,

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tearfulness, pessimism, fatigue, sleep disturbance and marital discord. Plaintiff had “violently

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broken multiple items in his home.” AR 244. Dr. Howsepian opined that the “protracted

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exacerbation” of Plaintiff’s anxiety and depressive disorders were “clearly causally linked to

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stresses at the IRS caused by repeated instances of harassment resulting in a perceived hostile

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work environment.” AR 244.

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On January 3, 2008, Steven C. Swanson, Ph.D., completed a consultative psychological
evaluation. Plaintiff reported resigning from the IRS because “it was a hostile work
environment” and “the Director was a piece of shit.” He stated that he could complete all

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activities of daily living, could drive, could work on his 1948 Dodge pickup, and could attend
AA groups. On exam, Plaintiff had no signs of vegetative depression, his short-term, recent and
remote memories were within normal limits and he maintained satisfactory attention and

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concentration. Psychological tests showed average range of intellectual ability and no relative

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weakness in memory functioning. There was no evidence of any serious psychological

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disturbance and Plaintiff’s mental and emotional functioning fell within normal limits. Dr.

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Swanson diagnosed alcohol dependence and cannabis abuse in remission and assigned a Global

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Assessment of Functioning (“GAF”) of 70. Dr. Swanson opined that Plaintiff could maintain

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concentration or relate appropriately to others in a job setting, could understand, carry out and

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remember simple instructions and could respond appropriately to usual work situations, such as

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attendance and safety. Dr. Swanson further opined that changes in routine would not be very
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problematic and there did not appear to be substantial restrictions in daily activities. AR 387-93.
On January 18, 2008, J. Levinson, Ph.D., a state agency medical consultant, opined that
Plaintiff did not have a severe mental impairment. AR 395-408.
On February 11, 2008, Plaintiff saw Dr. Howsepian and reported that he had resumed

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going to Temple. He talked about possible PTSD and complained about not having friends. On

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mental status exam, Plaintiff appeared resigned and somewhat depressed, but less angry, irritable

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and anxious. Dr. Howsepian assessed dysthymic disorder, anxiety and pain disorder. Plaintiff

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was to continue medications and supportive psychotherapy. AR 460.
On March 12, 2008, Plaintiff’s wife called Dr. Howsepian regarding her concern that
Plaintiff was more depressed. She reported that he does not get up all day and he feels the IRS
has won because he had to sell his truck. AR 452.
In April 2008, Plaintiff believed that a motorcycle accident in Italy and head injury might

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be the cause of his PTSD. AR 780. He met with Garry Bredefeld, Ph.D., a clinical psychologist
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for mental health therapy. Plaintiff reported stress due to his finances. He claimed a long history
of depression and felt he could not return to work due to back pain. Dr. Bredefeld diagnosed
dysthymic disorder by history and anxiety disorder, NOS, by history. AR 871.

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On June 9, 2008, Dr. Howsepian opined to Plaintiff that he could not return to work at the

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IRS. On mental status, Plaintiff was frustrated and angry about his financial and work situations.

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He was dysphoric with a restricted affect. Dr. Howsepian diagnosed dysthymic disorder, PTSD,

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adjustment disorder with anxiety and depression, learning disorder and pain disorder. AR 749.

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On June 10, 2008, Dr. Howsepian addressed a follow-up letter to the disability,

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reconsideration and appeals group regarding Plaintiff’s denial for disability retirement. Dr.

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Howsepian reported that Plaintiff’s symptoms of depression, anxiety, irritability, dysphoria,

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explosivity, his shutting down emotionally, his exquisite sensitivity to stress, his substantial

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elevations in blood pressure as a result of stress and anxiety and his having days when he
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scarcely gets out of bed “certainly qualifies as a disabling, serious psychiatric disturbance with
significant deterioration from a prior level of functioning that can clearly causally be traced to
stressors at the IRS.” Dr. Howsepian indicated that he had written multiple letters to the IRS

6

stating that, due to profound psychiatric reaction to stress in that context, Plaintiff was “wholly

7

and completely disabled from employment at that institution.” AR 745-46. .

8
9
10
11
12
13
14

On July 7 and 22, 2008, Plaintiff and his wife attended therapy sessions. Plaintiff’s mood
remained dysphoric. He was assessed with dysthymic disorder by history and anxiety disorder
by history. AR 730-31, 733.
On July 28, 2008, Dr. Howsepian reported that Plaintiff was profoundly dysphoric,
tearful, on the verge of decompensating, profoundly frustrated and hopeless and angry to the
point of being rageful. He was out of money and on the verge of losing his home. Plaintiff
denied suicidal ideation, stating he was more at risk of exploding and becoming violent if in a

15

confrontation. Dr. Howsepian believed that Plaintiff was at significant risk of further
16
17
18
19
20

decompensation. Plaintiff reportedly believed that whatever Dr. Kwock told him would
determine which direction he needed to go, either definitive treatment so he can return to work or
no treatment with persisting disability. AR 727-28.
On August 18, 2008, Dr. Howsepian stated that Plaintiff remained dysphoric and

21

pessimistic. Plaintiff believed he was going to lose his house. Dr. Howsepian diagnosed

22

anxiety and depression, dysthymic disorder, learning disorder and pain disorder. AR 722.

23

On September 9, 2008, Dr. Howsepian indicated that Plaintiff remained dysphoric and

24

upset about his situation. Plaintiff reportedly became “especially angry” when any discussion of

25

his returning to work was broached, claiming he would be fired after he called in sick. Plaintiff

26

continued to hold out hope for disability. On mental status exam, Plaintiff was dysphoric, angry,

27
28

15

1

upset, depressed, hopeless and helpless. Dr. Howsepian diagnosed “Anx and Dep adjustment,

2
3
4
5

chronic,” along with dysthymic disorder, learning disorder and pain disorder. AR 713-14.
On December 15, 2008, Dr. Howsepian reported that Plaintiff was relatively stable and
less angry, depressed and on edge than he had seen “in quite a while.” AR 684.

6

On January 21, 2009, Plaintiff sought treatment from Dr. Howsepian. Plaintiff reported

7

that neither he nor his primary care physician believed that the pain he was having (upper back,

8

neck) were the result of shoulder pathology, but the surgeon wanted to proceed. Although

9

Plaintiff felt trapped, he was willing to have surgery so he did not appear to be refusing

10

recommended treatment. Plaintiff repeatedly asked why someone did not have the courage to

11

put him on disability. On mental status exam, Plaintiff was angry, frustrated and depressed. Dr.

12
13
14

Howsepian diagnosed dysthymic disorder, learning disorder, pain disorder, PTSD, and chronic
adjustment disorder. AR 676-77.
On July 14, 2009, Dr. Trevor Glenn conducted a compensation and pension examination

15

to establish, if appropriate, a posttraumatic stress disorder diagnosis. Dr. Glenn indicated that
16
17
18
19

any conclusions in the examination report were provisional until completion of a c-file review.
Plaintiff provided a symptomology to include depression, sadness and crying spells.
Additionally, he experienced anhedonia, decreased energy and degreased initiative. He also

20

reported anger and irritability, losing control of his anger about once a week. He had no other

21

spontaneous symptomology. Dr. Glenn indicated that Plaintiff seemed to equate the concept of

22

depression with the concept of posttraumatic stress disorder. On mental status, Plaintiff had

23

difficulty focusing and was easily distractible. He had impairment in his thought processes and

24

communication in terms of concentration, focus and effort. Dr. Glenn explained that the

25

requirement for a stressor event in posttraumatic stress disorder is a person who actually

26
27

experienced, witnessed or was confronted with an event or events that involved actual or threated
death or serious injury or a threat to the physical integrity of self or others. Plaintiff identified

28

16

1

the Lebanon bombing of barracks as a stressor event, but he was stationed in Italy at the time. It
2
3
4
5

did not appear that he was a witness or experienced a traumatic event. Dr. Glenn diagnosed
major depression, recurrent, chronic in nature, moderate in degree. Plaintiff did not appear to
meet the criteria for posttraumatic stress disorder, but Dr. Glenn believed that Plaintiff showed a

6

personality disorder not otherwise specified. Plaintiff had a GAF of 55, which equated in social

7

and occupational impairment “to a level of reduced reliability and productivity due to the major

8

depression because of decrease in concentration, decrease in focus activity, irritability, anger

9

control problems once a week and difficulty getting along in a work setting with much in the

10

way of conflict.” AR 901. Plaintiff also showed difficulty in establishing and maintaining

11

effective work and social relationships. AR 891-902.

12
13
14

On July 15, 2009, Dr. Glenn also conducted a comprehensive review of Plaintiff’s C-file
psychological records. On examination, Plaintiff complained of depression, anger and
irritability. Dr. Glenn could not find any intrusive recollections that would enable Plaintiff to

15

meet the criteria of posttraumatic stress disorder. Based upon the records and an examination,
16
17
18
19

Dr. Glenn opined that no diagnosis of posttraumatic stress disorder could be made because of a
lack of linkage to specific stressor events. However, Plaintiff had chronic dysthymia of
longstanding duration, polysubstance dependence in full sustained remission and learning

20

disorder not otherwise specified having to do with written expression, mathematics and spelling.

21

Plaintiff also had somatizing tendencies, but no personality disorder. AR 574-84.

22

On July 20, 2009, Plaintiff complained to Anne Walker, a licensed clinical social worker

23

in the Health Care for Homeless Veterans Program, about his housing setting. He felt he was not

24

being listened to and that he was “being singled out for more than the usual number of random

25

toxicology test[s], especially since he does not believe he has a problem with alcohol or

26

substances and only uses marijuana.” Plaintiff claimed that he was experiencing disturbed sleep,

27

but he denied any significant disturbances related to his depression and anxiety. He reportedly

28

17

1

was “slightly paranoid most of the time,” but not delusional. His insight was superficial and his

2
3
4
5
6

judgment impaired. AR 563.
On July 31, 2009, Plaintiff asked Ms. Walker to prepare a letter for his Social Security
attorney. Plaintiff exhibited a degree of paranoia and a significant attitude of entitlement. He
was argumentative and easily offended. AR 856-57.

7

On August 5, 2009, Ms. Walker affirmed that Plaintiff was participating in ongoing

8

treatment for homeless veterans and was in a clean and sober housing setting. Plaintiff was

9

eligible for residential treatment because he was homeless and without any income. He had

10

diagnoses of dysthymic disorder, cervical radiculopathy, posttraumatic stress disorder, childhood

11

abuse, disorders of bursae and tendons in shoulder region and adjustment disorder with mixed

12
13
14

anxiety and depressed mood. AR 504.
On August 27, 2009, Ms. Walker noted that Plaintiff continued to create disruption and
discontent with his complaints in the housing setting. Plaintiff denied any significant

15

disturbances from depression and anxiety. AR 839.
16
17
18
19

On September 22, 2009, Ms. Walker met with Plaintiff following perceived threats to his
housing roommate. Plaintiff was almost inarticulate because of anger and declined to discuss
most subjects. He sat with his arms crossed and tolerated no discussion about issues. He

20

admitted making statements to the house manager to warn his roommate and that he had anger

21

control issues. Plaintiff was not sure he would be able to refrain from harming someone else.

22

Ms. Walker scheduled Plaintiff an appointment with Dr. Howsepian. AR 834-35.

23

On September 22, 2009, Dr. Howsepian received communication from Ms. Walker, who

24

was concerned that Plaintiff had access to a gun and might harm his roommate. Plaintiff assured

25

Dr. Howsepian that he would not use his gun to harm himself or others. He did not threaten to

26
27

harm his ex-roommate with a gun, but did threaten to harm him with his hands. On mental
status, Plaintiff was quiet, dysphoric, depressed, irritable and angry. Dr. Howsepian diagnosed

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18

1

dysthymic disorder, PTSD, learning disorder and adjustment overlay. Plaintiff’s mirtazapine
2
3
4
5
6
7

was increased. AR 833-34.
On October 6, 2009, Ms. Walker indicated that Plaintiff had located housing via the HUD
VASH program. When asked about depression and anxiety, Plaintiff denied any significant
disturbances. His insight and judgment were adequate. AR 826.
On October 8, 2009, Ms. Walker indicated that Plaintiff was paranoid at some level, on

8

an ongoing basis. Plaintiff believed he was “frequently the sole object of someone ‘not

9

providing services . . .’ or that that this person singles him out and picks on him.” His belief

10
11
12
13
14

structure was unlikely to change significantly. AR 825-26.
On October 21, 2009, Plaintiff was angry, irritable, frustrated, tense and depressed. Dr.
Howsepian diagnosed dysthymic disorder, PD NOS (provisional) and adjustment overlay.
Plaintiff was prescribed a trial of Abilify. AR 822. Plaintiff reportedly had opted to discontinue
his involvement with his drug treatment maintenance program to spend time with his medically

15

compromised brother. AR 823.
16
17
18
19

On October 22, 2009, Dr. Howsepian prepared a Complete Medical Report (Mental)
form. He identified clinical findings of longstanding depression, anger, irritability, explosivity
and emotional lability. Plaintiff had diagnoses of dysthymic disorder, personality disorder NOS,

20

obstructive sleep apnea, alcohol dependence (remission), pain disorder (chronic) and

21

posttraumatic stress disorder. Although Plaintiff was prescribed multiple medications, his

22

response to treatment and prognosis were poor. AR 812.

23

Dr. Howsepian also completed a Medial Assessment of Ability to Do Work-Related

24

Activities (Mental) form. He opined that Plaintiff had poor ability to follow work rules and to

25

maintain attention/concentration. Plaintiff had no ability to relate to co-workers, deal with

26
27

public, use judgment, interact with supervisors or deal with work stress. Dr. Howsepian
explained that Plaintiff’s intense anger, irritability, cognitive distortions, explosivity and

28

19

1

emotional instability resulted in “his reacting to perceived injustices & slights in a manner that is

2
3
4
5

incompatible with gainful employment.” Plaintiff’s interpersonal conflicts also were
incompatible with “adequate functioning of the systems in which he is placed.” Dr. Howsepian
noted that Plaintiff’s anger and irritability impaired his judgment and disturbed his concentration.

6

He was exquisitely vulnerable to stress and “when substantially stressed & confronted by those

7

in authority, he [was] prone to become violent.” AR 813. Plaintiff had no ability to behave in an

8

emotionally stable manner, relate predictably in social situations or demonstrate reliability. Dr.

9

Howsepian concluded that even if Plaintiff were given a task that isolated him from others, “his

10

perception of work rules, the system in which he is placed, & the work arrangements of others

11

that might differ from his are subject to intense scrutiny and if/when problems are found, he is

12

liable to react strongly.” AR 814.

13
14

Dr. Howsepian also completed a Medical Source Statement Psychiatric form. He opined
that Plaintiff had extreme limitations in the ability to relate and interact with supervisors and co-

15

workers, in the ability to deal with the public, in the ability to maintain concentration and
16
17
18
19

attention for at least two hour increments, in the ability to withstand the stress and pressures
associated with an eight-hour workday and day-to-day work activity. Plaintiff also had marked
limitations in the ability to understand, remember and carry out an extensive variety of technical

20

and/or complex job instructions and moderate limitations in the ability to understand, remember,

21

and carry out simple one-or-two job instructions. AR 815.

22
23

The same day, therapist O’Rourke completed a discharge summary from chemical
dependence maintenance treatment and assigned Plaintiff a GAF of 68-70. AR 821.

24

ALJ’s Findings

25

The ALJ found that Plaintiff met the insured status requirements through September 30,

26
27

2011, and had not engaged in substantial gainful activity since August 31, 2007. The ALJ
further found that Plaintiff had the severe impairments of depressive disorder and hearing loss.

28

20

1

Despite these impairments, the ALJ determined that Plaintiff retained the residual functional
2
3
4
5

capacity (“RFC”) to perform the full range of work at all exertional levels with limitation to
simple, repetitive tasks and avoiding concentrated exposure to loud noise. With this RFC, the
ALJ concluded that Plaintiff could perform jobs existing in the national economy. AR 15-22.
SCOPE OF REVIEW

6
7

Congress has provided a limited scope of judicial review of the Commissioner’s decision

8

to deny benefits under the Act. In reviewing findings of fact with respect to such determinations,

9

the Court must determine whether the decision of the Commissioner is supported by substantial

10

evidence. 42 U.S.C. 405(g). Substantial evidence means “more than a mere scintilla,”

11

Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v.

12

Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a

13
14
15

reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at
401. The record as a whole must be considered, weighing both the evidence that supports and
the evidence that detracts from the Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993,

16
17
18
19

995 (9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must
apply the proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).
This Court must uphold the Commissioner’s determination that the claimant is not disabled if the

20

Commissioner applied the proper legal standards, and if the Commissioner’s findings are

21

supported by substantial evidence. See Sanchez v. Sec’y of Health and Human Serv., 812 F.2d

22

509, 510 (9th Cir. 1987).

23
24
25
26
27

REVIEW
In order to qualify for benefits, a claimant must establish that he is unable to engage in
substantial gainful activity due to a medically determinable physical or mental impairment which
has lasted or can be expected to last for a continuous period of not less than 12 months. 42
U.S.C. § 1382c (a)(3)(A). A claimant must show that he has a physical or mental impairment of

28

21

1

such severity that he is not only unable to do his previous work, but cannot, considering his age,
2
3
4
5
6

education, and work experience, engage in any other kind of substantial gainful work which
exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989).
The burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th
Cir. 1990).
In an effort to achieve uniformity of decisions, the Commissioner has promulgated

7
8

regulations which contain, inter alia, a five-step sequential disability evaluation process. 20

9

C.F.R. § 404.1520(a)-(g). Applying the process in this case, the ALJ found that Plaintiff: (1) had

10

not engaged in substantial gainful activity since his alleged onset date; (2) has an impairment or a

11

combination of impairments that is considered “severe” (depressive disorder and hearing loss)

12
13
14

based on the requirements in the Regulations (20 C.F.R. § 404.1520(c)); (3) does not have an
impairment or combination of impairments which meets or equals one of the impairments set
forth in Appendix 1, Subpart P, Regulations No. 4; (4) cannot perform his past relevant work;

15

but (5) can perform jobs that exist in significant numbers in the national economy. AR 15-22.
16

Here, Plaintiff contends that the ALJ erred by: (1) improperly evaluating medical

17
18
19

evidence of Plaintiff’s mental and physical impairments; (2) improperly rejecting lay witness
testimony; and (3) improperly finding that Plaintiff could perform other jobs in the national

20

economy at Step Five of the sequential evaluation. Additionally, Plaintiff argues that the ALJ

21

was biased.
DISCUSSION

22
23
24
25
26
27

A.

Evaluation of Medical Evidence
1. Mental Impairments
Plaintiff first argues that the ALJ improperly evaluated medical evidence of his mental

impairments. In particular, Plaintiff asserts that the ALJ erroneously rejected the opinion of his
treating psychiatrist, Dr. Howsepian. The Court agrees.

28

22

1

The opinions of a claimant’s treating physicians are entitled to more weight than the

2
3
4
5

opinions of doctors who do not treat the claimant. 20 C.F.R. § 404.1527(d)(2); Orn v. Astrue,
495 F.3d 625, 631-32 (9th Cir. 2007). Only if there is substantial evidence in the record
contradicting the opinion of the treating physicians are their opinions no longer entitled to

6

controlling weight. Id. at 632. Even in that instance, the opinions of treating physicians are still

7

entitled to deference. Id. If the ALJ disregards the opinions of the treating physicians, he must

8

make findings setting forth specific and legitimate reasons for doing so. Id.

9

Here, Dr. Howsepian opined in October 2009 that Plaintiff had no ability to follow work

10

rules, to maintain attention/concentration, to relate to co-workers, to deal with the public, to use

11

judgment, to interact with supervisors, to deal with work stress, to behave in an emotionally

12
13
14
15

stable manner, to relate predictably in social situations or to demonstrate reliability. AR 813.
The ALJ assigned this opinion “little, if any weight,” stating that it was “not consistent with the
claimant’s admitted history of functioning” because he was able to work full time in 2003, 2004
and 2005. AR 20. This is not a legitimate reason to reject Dr. Howsepian’s opinion. As a

16
17
18
19

general matter, a treating physician’s opinion may be discounted where it is inconsistent with a
claimant’s daily functioning. See, e.g., Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001).
Contrary to the ALJ’s statement, however, evidence that Plaintiff was able to work full time well

20

before his alleged onset date in 2007 is not inconsistent with Dr. Howsepian’s 2009 assessment

21

of Plaintiff’s functional limitations.

22

The ALJ also purported to assign little weight to Dr. Howsepian’s opinion because it was

23

not consistent with medical records from the Veteran’s Administration. AR 20. Ordinarily,

24

inconsistency with the medical record is a specific and legitimate reason for affording a treating

25

physician’s opinion less weight. See, e.g., Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir.

26
27

2001); Magallanes v. Bowen, 881 F.2d 747, 751-52 (9th Cir. 2001). In this instance, however,
the ALJ identified only one record to suggest an inconsistency; that is, a group therapy discharge

28

23

1

summary assigning Plaintiff a GAF of 68-70 on the same date of Dr. Howsepian’s 2009 opinion.

2
3
4
5

AR 20, 821. This is not legitimate for several reasons.
First, as outlined above, Dr. Howsepian’s opinion is supported by objective medical
findings in his own treatment records, along with record evidence from Dr. Glenn. AR 891-902.

6

Second, the GAF of 68-70 was assigned by Thomas O’Rourke, an addiction therapist, who is not

7

considered an acceptable medical source. 20 C.F.R. § 404.1513(a), (d) (“acceptable medical

8

sources” include licensed physicians and psychologists, but not therapists). Non-acceptable

9

medical sources cannot establish the existence of a medically determinable impairment, cannot

10

give medical opinions, and cannot be considered treating sources whose opinions are entitled to

11

controlling weight. Social Security Ruling 06-03p. Third, and finally, a GAF score is not

12

determinative of mental disability or a claimant’s limitations for social security purposes. See,

13
14
15

e.g., Lillard v. Astrue, 2011 WL 1344556, *2 n. 2 (C.D. Cal. Apr. 7, 2011) (citing 65 Fed. Reg.
50746, 50764-50765 (Aug. 21, 2000)).
The Commissioner counters that the ALJ properly rejected Dr. Howsepian’s opinion in

16
17
18
19

favor of the consultative examiner, Dr. Swanson, who assigned Plaintiff a GAF of 70 and
concluded that Plaintiff could understand, remember and carryout simple instructions. AR 20,
293. The ALJ assigned Dr. Swanson’s opinion “substantial weight,” stating that it was

20

consistent with the overall evidence of record. AR 20. Generally, the opinions of non-treating

21

physicians may “serve as substantial evidence when the opinions are consistent with independent

22

clinical findings or other evidence on the record.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th

23

Cir.2002). In this case, however, the ALJ failed to explain how Dr. Swanson’s opinion was

24

consistent with the overall evidence of record. This failure is particularly significant given that

25

Dr. Swanson’s opinion was inconsistent with substantial evidence in the record from Plaintiff’s

26
27

treating physician, Dr. Howsepian. As discussed above, the ALJ erred in discounting Dr.
Howsepian’s opinion.

28

24

1

For the reasons stated, the Court finds that the ALJ erred in his evaluation of the medical
2
3

evidence regarding Plaintiff’s mental impairments.
2. Physical Impairments

4

Plaintiff next argues that the ALJ improperly evaluated medical evidence of his physical

5
6

limitations. Specifically, Plaintiff argues that the ALJ erred at step two by finding that Plaintiff

7

“did not have any severe physical impairments other than hearing loss.” Opening Brief, p. 27.

8

Plaintiff believes that the ALJ should have found severe impairments resulting from his neck and

9

shoulder pain at step two. The Ninth Circuit has defined the step-two inquiry as “a de minimis

10

screening device to dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1272, 1290 (9th

11

Cir. 1996). An impairment or combination of impairments can be found “not severe” only if the

12

evidence establishes a slight abnormality that has “no more than a minimal effect on an

13
14

individual’s ability to work.” Id. Here, substantial evidence supports the ALJ’s step two
determination that Plaintiff’s neck and shoulder pains were nonsevere impairments. AR 17. In

15

November 2007, a consultative internal medical exam revealed no abnormal physical findings or
16
17
18
19

limitations. AR 374-78. In July 2009, Dr. Mehta found that Plaintiff did not have any
limitations in his activities, his neck movements were performed fairly well, he had normal
power and coordination in both upper and lower extremities and had no cervical radiculopathy

20

symptoms despite cervical spondylosis and bulging disc on a MRI scan. AR 564-69. In October

21

2009, Dr. Singh diagnosed only shoulder and neck “strain.” AR 830. Plaintiff has not identified

22

any contrary opinions to establish that his neck and shoulder pain resulted in more than a

23

minimal effect on his ability to work.

24

B.

25

Plaintiff next argues that the ALJ improperly rejected the lay testimony of his ex-wife,

26
27

Lay Testimony

Victoria Howard. Ms. Howard provided a third party report of Plaintiff’s functioning. She
indicated that Plaintiff “does some housework, pet care, some cooking, plays on computer” and

28

25

1

sometimes visits friends. Although his pain levels affected his sleep, Plaintiff had no problem
2
3
4
5

with personal care, sometimes cooked whole meals, vacuumed, ironed, cleaned cages, washed
dishes, shopped, watched TV, read, and regularly attended Temple, along with hockey and
baseball games. Ms. Howard also reported that Plaintiff had difficulty lifting, reaching, hearing,
AR 169-76. An ALJ “must consider competent

6

completing tasks and following instructions.

7

lay testimony” and may only discount such testimony by providing reasons that are “germane” to

8

the witness. Carmickle v. Comm’r, Social Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008).

9

Here, the ALJ not only considered the testimony of Plaintiff’s ex-wife, but also afforded it

10

“substantial weight.” AR 20. Indeed, the ALJ credited Ms. Howard’s report of Plaintiff’s

11

activities of daily living, his limited ability to follow instructions and his hearing loss. AR 20-

12

21. Although Plaintiff disagrees with the ALJ’s interpretation of this evidence, the court will not

13
14

disturb the ALJ’s rational findings of fact. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.
2008).

15

C.

Step Five

16
17
18
19

Plaintiff argues that the ALJ erred at step five of the sequential evaluation by failing to
incorporate all of his functional limitations in the RFC assessment. As discussed above, the ALJ
erroneously assessed the evidence regarding Plaintiff’s mental impairments. Accordingly, the

20

Court finds that the RFC assessment may have been flawed, along with the ALJ’s step five

21

findings.

22

D.

ALJ Bias

23
24

Plaintiff contends that ALJ Berry is biased because of his systematic denial of claims brought

25

by Plaintiff’s counsel. However, ALJs “are presumed to be unbiased.” Rollins, 261 F.3d at 857.

26

A claimant asserting bias must “show that the ALJ’s behavior, in the context of the whole case,

27
28

was ‘so extreme as to display clear inability to render fair judgment.’” Id. at 858 (quoting Liteky

26

1
2

v. United States, 510 U.S. 540, 555-56 (1994)).

According to the record, the ALJ did not

engage in any behavior so extreme as to display a clear inability to render fair judgment.

3
4
5
6
7
8

Plaintiff has failed to point to any evidence of bias in the context of this case.
E.

Remand
Section 405(g) of Title 42 of the United States Code provides: “the court shall have

power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying,
or reversing the decision of the Commissioner of Social Security, with or without remanding the

9
10

cause for a rehearing.” In social security cases, the decision to remand to the Commissioner for

11

further proceedings or simply to award benefits is within the discretion of the court. McAllister

12

v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). “If additional proceedings can remedy defects in

13

the original administrative proceedings, a social security case should be remanded. Where,

14

however, a rehearing would simply delay receipt of benefits, reversal and an award of benefits is
15
16

appropriate.” Id. (citation omitted). Indeed, it is appropriate to credit evidence and direct an

17

award of benefits where: (1) the ALJ has failed to provide legally sufficient reasons for rejecting

18

such evidence, (2) there are no outstanding issues that must be resolved before a determination of

19

disability can be made, and (3) it is clear from the record that the ALJ would be required to find

20
21
22
23
24

the clamant disabled were such evidence credited. Harman v. Apfel, 211 F.3d 1172, 1178 (9th
Cir. 2000).
As there are conflicting medical opinions regarding Plaintiff’s mental impairments and
because substantial evidence suggests that Plaintiff may have greater restrictions, outstanding

25

issues remain that must be resolved before a determination of benefits can be made. The Court
26
27

therefore finds that remand is appropriate to allow proper consideration of the medical evidence

28

27

1
2

of Plaintiff’s mental impairments and to make a new determination regarding Plaintiff’s
entitlement to disability benefits.

3

RECOMMENDATION

4
5

Based on the foregoing, the Court finds that the ALJ’s decision was not supported by

6

substantial evidence and was not based on proper legal standards. Accordingly, the Court

7

RECOMMENDS that Plaintiff’s appeal from the administrative decision of the Commissioner of

8

Social Security be GRANTED and that JUDGMENT be entered for Plaintiff Donald Schneider

9
10
11
12
13

and against Defendant Michael J. Astrue.
These Findings and Recommendations are submitted to the Honorable Anthony W. Ishii,
United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 631(b)(1)(B) and
Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of

14

California. Within fourteen (14) days after being served with a copy, any party may serve on
15
16

opposing counsel and file with the court written objections to such proposed findings and

17

recommendations. Such a document should be captioned "Objections to Magistrate Judge's

18

Findings and Recommendations." Replies to the objections shall be served and filed within

19

fourteen (14) days after service of the objections. The Court will then review the Magistrate

20
21

Judge's ruling pursuant to 28 U.S.C. § 636(b)(1).

22
23

IT IS SO ORDERED.

24

Dated:

/s/ Dennis

August 28, 2012

25

UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

26
27

L. Beck

3b142a

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28