Keel v. Commissioner of Social Security

Filing 20

ORDER on Social Security Appeal, signed by Magistrate Judge Jeremy D. Peterson on 3/5/19. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHARLES KEEL,
Plaintiff,

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v.

Case No. 1:17-cv-01522-JDP
ORDER ON SOCIAL SECURITY APPEAL
ECF Nos. 12, 13, 14

COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,

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Defendant.

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This matter is before the court on Charles Keel’s (“claimant”) complaint for judicial

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review of an unfavorable decision by the Commissioner of the Social Security Administration

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regarding claimant’s application for Disability Insurance Benefits. The parties have consented to

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entry of final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C.

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§ 636(c), with any appeal to the U.S. Court of Appeals for the Ninth Circuit. ECF Nos. 6, 7. At a

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hearing on March 1, 2019, the court heard argument from the parties. Having reviewed the

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record, administrative transcript, briefs of the parties, and applicable law, and having considered

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arguments raised at the hearing, the court finds as follows:

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Claimant suffers from various physical and mental limitations, some of which may be
traceable to trauma experienced during his stint with the Army. The Administrative Law Judge

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(“ALJ”) found that claimant has six severe impairments: “cervical and lumbar degenerative disc

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disease; asthma; chronic obstructive pulmonary disease; bipolar disorder; posttraumatic stress

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disorder; and polysubstance abuse disorder.” AR. 27.1 The ALJ found, however, that claimant

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was not disabled and could perform jobs that exist in significant numbers in the national

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economy—including jobs as a marker, cashier,2 and cafeteria attendant. AR 37-38. We remand

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because (1) the ALJ misread MRI evidence that played an important role in her non-disability

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determination and (2) the ALJ’s hypothetical posed to the vocational examiner (“VE”) omitted

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the moderate limitations in claimant’s concentration, pace, and persistence.
In evaluating claimant’s spinal impairment, the ALJ relied heavily on MRI evidence,

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describing in narrative form the results of at least four MRIs. See AR 31-32. The ALJ seems to

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have been relying on her own interpretation of these MRIs: The consulting physicians on whom

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the ALJ partly relied in making her findings do not appear to have reviewed the MRIs, and,

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although Mr. Keel’s principal treating physician interpreted the MRIs, the ALJ give his opinion

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“little weight.” AR 36. While it may not be improper for an ALJ to read and interpret MRI

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evidence, in this case, the ALJ did not do so properly. The ALJ stated—apparently in reliance on

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MRI evidence—that “The claimant does not have a spine impairment that compromises the nerve

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root or spinal cord.” AR 28. However, MRI findings from June 2015 appear to state the

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opposite, documenting “compressed nerve roots of the cauda equina.”3 Given the apparent

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centrality of MRI evidence in the ALJ’s finding, we cannot know whether the ALJ’s evaluation

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of claimant’s impairments would have differed, had the ALJ properly interpreted the MRI

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evidence. Remand is therefore required.

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Separately, the ALJ ran afoul of Ninth Circuit precedent in posing a hypothetical to the

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VE. Under Brink v. Comm’r Soc. Sec. Admin., “A hypothetical question posed to a vocational

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expert must include all of the claimant’s functional limitations, both physical and mental. 343 F.

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All “AR” citations refer to the administrative record. See ECF No. 8.

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The ALJ identified “cashier II, DOT #211.462-101.”

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The MRI report also referenced “Constricted, narrowed appearance of the spinal canal.”

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App’x 211, 212 (9th Cir. 2009) (internal quotation marks omitted). In a case where an ALJ has

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found that a claimant has “moderate difficult maintaining concentration, persistence, or pace,”

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any hypothetical question posed to a VE must take into account such a limitation, or the

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hypothetical is incomplete and the VE’s resulting opinion is not substantial evidence. Id. In this

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case, the ALJ found that claimant has moderate difficulties in concentration, persistence, or

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pace,” AR 28, but the first hypothetical individual that the ALJ described to the VE did not

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necessarily have these limitations.4 The ALJ appears to have relied on the VE’s response to this

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hypothetical in finding that an individual with claimant’s residual functional capacity could work

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as a marker, cashier II or cafeteria attendant. See AR 38. Notably, the ALJ also asked the VE

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whether a hypothetical individual with the limitations described in the first hypothetical, but with

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an additional inability to “sustain concentration for two-hour blocks throughout an eight hour

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workday,” could perform the described jobs, and the ALJ answered in the negative. AR 70.

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Given that, under Brinks, limitations in concentration, persistence and pace identified at step three

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of the disability-evaluation process—when evaluating whether an impairment equates in severity

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to a listed impairment—must be factored into hypotheticals posed to a VE, we find that the VE’s

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opinion in this case was based on an incomplete hypothetical and thus that the ALJ’s decision that

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in part relied on it was not based on substantial evidence.5
For the foregoing reasons and those stated on the record, claimant’s request for remand is

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granted.

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Order

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The decision of the Commissioner of the Social Security Administration is reversed, and
the matter is remanded for further administrative proceedings consistent with this opinion.

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The ALJ stated: “Hypothetical individual can understand, remember and carry out detailed but
not complex instructions. Limited to occasional decision making, and occasional changes in the
work setting.” AR 69.
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Claimant raises several other objections to the ALJ’s opinion. We need not reach them here.

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IT IS SO ORDERED.

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Dated:

March 5, 2019
UNITED STATES MAGISTRATE JUDGE

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No. 200.

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