Smith v. Astrue

Filing 33

ORDER DENYING 28 , 31 CROSS MOTIONS FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS. Signed by Judge Claudia Wilken on 11/3/2011. (ndr, COURT STAFF) (Filed on 11/3/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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KELVIN SMITH,
Plaintiff,

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v.

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MICHAEL J. ASTRUE,
Commissioner of Social Security,

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No. C 10-4463 CW

_______

ORDER DENYING
CROSS MOTIONS FOR
SUMMARY JUDGMENT
AND REMANDING FOR
FURTHER
PROCEEDINGS

Defendant.
_______________________/

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United States District Court
For the Northern District of California

Plaintiff Kelvin Smith moves for summary judgment or, in the
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alternative, requests that the case be remanded to the
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Commissioner of the Social Security Administration (SSA) for
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further proceedings.

Defendant Michael Astrue, in his capacity as

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the Commissioner, opposes the motions and cross-moves for summary
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judgment affirming the Commissioner’s denial of Supplemental
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Security Income (SSI).

The Court DENIES both motions for summary

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judgment, GRANTS Plaintiff’s motion to remand, and REMANDS the
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case to the Commissioner for further proceedings.
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BACKGROUND
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I.

Procedural History
Plaintiff filed an application for SSI on August 29, 2007,

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claiming that he had been disabled since June 1, 1993.

AR 74.

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After this claim was denied he requested a hearing, which took
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place December 1, 2009 before an Administrative Law Judge (ALJ).
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The ALJ determined that Plaintiff was not disabled within the
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meaning of the Social Security Act and was capable of performing
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jobs that exist in the national and local economy.
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Plaintiff

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filed a Request for Review of the Hearing Decision; the Appeals

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Council denied it.

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in the alternative, remand for further proceedings.

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opposes the motions and cross-moves for summary judgment to affirm

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the Commissioner’s denial of SSI.

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II.

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Plaintiff now moves for summary judgment or,
Defendant

Plaintiff's Personal History

Plaintiff was born on May 25, 1963, and has two young

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children.

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attended a trade school for electronics training.

AR 37, 38.

He graduated from high school and, in 1981,
Id.

He has

United States District Court
For the Northern District of California

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some history of substance abuse but has been in recovery since

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1986.

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school of ministry to become a worship leader.

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worked as a forklift operator, and most recently, from 2005 to

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2006, was a customer service trainer for at-risk youth.

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According to his testimony, Plaintiff held an unpaid position as

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pastor and executive director at a church between 1997 and 2006.

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AR 42-43.

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AR 408.

He completed a year-long uncertified training at a
AR 39.

He also

AR 40-43.

III. Plaintiff's Medical History
Plaintiff began seeing doctors at Kaiser Redwood City in

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February 2007, complaining of back pain that worsened with

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prolonged sitting or driving, but no numbness or weakness.

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264, 266.

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2006, when he was thrown down by police after being mistaken for a

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suspect.

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ailments as chronic pain, neck pain, low back pain, cervical

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radiculopathy, sleep apnea disorder, and degeneration of lumbar

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invertebral disc.

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symptoms with physical therapy, Motrin, Vicodin, ice and a TENS

AR

He stated that the onset date of his back pain was in

AR 258, 264.

Medical records from 2007 list Plaintiff's

AR 249-252.

Throughout 2007 he treated his

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machine.

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chiropractor and receiving acupuncture.

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AR 258, 266, 267, 269-272.

He also reported visiting a
AR 264, 356.

In 2007 Plaintiff had a MRI at Kaiser which showed a

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posterior disc bulge at C5-6, lumbar spondylosis at L3-4 and

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minimal spondylosis of L5-S1.

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in September 2007, which showed cervical cord abnormality at L2-3

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and bulge and hypertrophy at L5 but there was no change to the

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treatment at that time.

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given an epidural steroid injection to control the pain in his

AR 276, 277.

AR 284-286.

He had a second MRI

In March 2008 Plaintiff was

United States District Court
For the Northern District of California

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back.

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of pain at seven or eight out of ten, at some doctor visits he

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noted improvement due to use of the TENS machine, exercise and

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Vicodin.

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was able to do household chores and walk up to a mile every day.

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AR 274.

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medication was not controlling the pain, or it had gotten worse.

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AR 348, 355, 428, 604, 669.

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AR 421-422.

While Plaintiff has usually reported his level

AR 274, 428, 360, 369.

He also reported periods when he

However, during other doctor visits he reported that the

In November 2007 Plaintiff was examined for the SSA by Dr.

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Lightfoot, who found him to have a light RSF with postural

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limitation.

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the condition of Plaintiff's back largely unchanged, except that

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bulging at the L2-3 level was "slightly worse than the last

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examination."

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primarily treated by Drs. Hom and Hutchison at Kaiser, as well as

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various physical therapists, and he was not working.

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visited Kaiser twenty-one times and at one point attended a series

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of chronic pain management group meetings there.

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662.

AR 288-294.

AR 309.

An MRI performed in February 2008 found

Throughout this time Plaintiff was

In 2008 he

AR 547, 661,

In May 2008, Plaintiff was examined by Dr. Gonick-Hallows, a
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consulting psychologist, who found some mild deficits in his

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short-term memory and slight impairments in occupational function,

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but no psychiatric diagnosis.

AR 407-411.

Plaintiff's two treating physicians, Drs. Hom and Hutchison,

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each filled out questionnaires assessing his ability to function.

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Dr. Hutchison, his pain management provider, said that Plaintiff

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could not lift, push or pull more than ten pounds and had only

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partial capacity for continuous sitting, standing, overhead work

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and squatting.

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United States District Court
For the Northern District of California

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of his hands.

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Dr. Hutchison opined that Plaintiff had full use
AR 553.

His primary treating physician, Dr. Hom, reported that

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Plaintiff suffered from serious limitations.

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Plaintiff would need to take unscheduled breaks lasting ten to

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fifteen minutes every fifteen to twenty minutes and alternate

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between sitting and standing at will.

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Plaintiff could only sit, stand or walk for less than two hours

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total during an eight hour work day and would miss more than four

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days of work per month due to his impairments.

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noted that Plaintiff "occasionally" suffered from depression and

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anxiety and opined that he was incapable of even low stress jobs.

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AR 548.

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IV.

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He opined that

He further asserted that

AR 548, 549.

He

Proceedings Below

At the hearing Plaintiff testified that he lives in a three

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bedroom apartment with a friend and her son and is able to do his

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own cooking, cleaning, and laundry.

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is taking online college courses but sometimes watches them on

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videotape because he does not feel well enough to participate at

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the correct time.

AR 52-54.
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AR 50.

He testified that he

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Lynda Berkly, a Vocational Expert (VE), testified at the

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hearing that an individual capable of performing sedentary work

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who can only walk and stand for up to two hours in a day would be

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able to work as an assembler of optical goods, listed in the

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Dictionary of Occupational Titles (DOT) as code 713.684-014 or a

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bench inspector of electronic components, listed in the DOT as

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726.684-014, even with mild restrictions on concentration,

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persistence and pace.

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moderate limitation on concentration, persistence and pace would

AR 66.

However, she testified that a

United States District Court
For the Northern District of California

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eliminate all sedentary production type jobs.

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both of these positions offer a sit/stand option.

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questioning by Plaintiff's attorney, the VE testified that,

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although the DOT does not state that either position has a

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sit/stand option, based on her professional experience they do.

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AR 70-71.

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survey at Lens-Crafters carried out two years earlier.

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She asserted that
AR 66.

Upon

She based her opinion on job site analyses, including a
Id.

In his February 17, 2010 decision, the ALJ addressed the

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five-step evaluation process outlined in 20 C.F.R. § 416.920 and

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found that Plaintiff was not disabled within the meaning of the

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Social Security Act.

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analysis, the ALJ found that Plaintiff had not engaged in

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substantial gainful activity since the alleged disability onset

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date.

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degenerative disc disease of the lumbar and cervical spine; sleep

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apnea; and myofascial pain syndrome are severe impairments within

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the meaning of the regulations.

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that Plaintiff’s impairments were not severe enough to meet or

AR 12.

AR 10.

At step one of the five-part

At step two, the ALJ found that Plaintiff’s

Id.

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At step three, the ALJ found

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medically equal any of the impairments listed in Appendix 1 of the

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regulations.

Id.

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Prior to steps four and five of the analysis, the ALJ weighed

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the medical and other evidence in the record to assess Plaintiff’s

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residual functional capacity (RFC).

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physical impairments that can be reasonably expected to produce

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the symptoms alleged.

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representations as to the intensity, persistence and limiting

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effects of these symptoms were not credible or substantiated by

AR 13.

He found that Plaintiff has

However, he found that Plaintiff's

United States District Court
For the Northern District of California

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objective medical evidence.

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Dr. Hom's conclusions as to the extent of Plaintiff's impairments,

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finding that the doctor's own reports failed to reveal the

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clinical abnormalities that one would expect to find with a

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disability.

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Dr. Hutchison, Plaintiff's pain management provider, were more

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consistent with the objective medical evidence.

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opinion of Dr. Gonick-Hallows, the psychological consultant, was

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afforded the most weight by the ALJ, along with the objective

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medical evidence and Plaintiff's admitted functional ability.

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The ALJ thus found that Plaintiff has the RFC to perform

AR 14-15.

AR 13, 15.

He also largely rejected

He noted that the limitations provided by

AR 15.

The

Id.

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sedentary work with some accommodations.

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Plaintiff must be able to alternate between sitting and standing

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as needed; not climb ropes, ladders or scaffolds; and only

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occasionally climb stairs or ramps, balance, stoop, kneel, crouch

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or crawl.

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limitation in the ability to maintain concentration, persistence

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and pace.

AR 12-13.

AR 12-13.

Specifically,

He further found that Plaintiff has a mild

AR 13.

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Because the ALJ found that Plaintiff would be unable to

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perform either his past relevant work or the full range of

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sedentary work, at step five he determined the extent that his

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additional limitations erode the unskilled sedentary occupational

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base.

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Plaintiff was capable of performing sedentary jobs such as those

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identified by the VE.

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Relying on the VE’s testimony, the ALJ concluded that

AR 16.

Plaintiff now moves for summary judgment on the grounds that
the ALJ erred because he 1) failed to provide adequate reasons for

United States District Court
For the Northern District of California

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discounting the treating physician's opinion and 2) failed to

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resolve the conflict between the testimony of the VE and the

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requirements of the jobs listed in DOT.

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DISCUSSION
I.

Legal Standard

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The Commissioner's decision to deny benefits “will be

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disturbed only if it is not supported by substantial evidence or

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it is based on legal error."

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(9th Cir. 1989); Brawner v. Secretary of Health & Human Services,

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839 F.2d 432, 433 (9th Cir. 1987), quoting Green v. Heckler, 803

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F.2d 528, 529 (9th Cir. 1986).

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than a mere scintilla but less than a preponderance.”

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Heckler, 868 F.2d 323, 325–26 (9th Cir. 1989)(quotations omitted).

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"It means such relevant evidence as a reasonable mind might accept

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as adequate to support a conclusion."

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substantial evidence to support the decision of the ALJ, it is

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well-settled that the decision must be upheld even when there is

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evidence on the other side, Hall v. Secretary of Health, Ed. and

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Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979), or when the evidence

Magallanes v. Bowen, 881 F.2d 747

“Substantial evidence means more

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Id.

Davis v.

If there is

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is susceptible of more than one rational interpretation, Gallant

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v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984).

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To determine whether substantial evidence exists to support

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the ALJ's decision, a court reviews the record as a whole, not

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just the evidence supporting the decision of the ALJ.

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Matthews, 546 F.2d 814, 818 (9th Cir. 1976).

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affirm the ALJ's decision simply by isolating a specific quantum

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of supporting evidence.

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Cir. 1989).

Walker v.

A court may not

Hammock v. Bowen, 879 F.2d 498, 501 (9th

In short, a court must weigh the evidence that

United States District Court
For the Northern District of California

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supports the Commissioner's conclusions and that which does not.

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Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).

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II.

Discussion
A. Opinion of the Treating Physician

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The ALJ states in his findings that he afforded "little

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weight to the medical source opinion of Dr. Hom as it is not

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supported by the substantial weight of the objective medical

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evidence."

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disregarded Dr. Hom's opinion when determining that Plaintiff's

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RFC was sedentary with additional limitations because he failed to

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provide any specific rationale for his decision.

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AR 14.

Plaintiff argues that the ALJ improperly

Generally, greater weight is given to a treating physician's

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opinion because “he is employed to cure and has a greater

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opportunity to know and observe the patient as an individual.”

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Magallanes, 881 F.2d at 750; Sprague v. Bowen, 812 F.2d 1226, 1230

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(9th Cir. 1987).

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necessarily conclusive as to either a physical condition or the

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ultimate issue of disability, an ALJ must provide "specific and

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legitimate reasons for rejecting the opinion of the treating

Although the treating physician's opinion is not

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physician."

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The ALJ can meet this burden by setting out a detailed and

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thorough summary of the facts and conflicting clinical evidence,

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stating an interpretation thereof, and making findings.

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Magallanes, 881 F.2d at 751.

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Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983).

Here, the ALJ's statement of his reasons for rejecting Dr.

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Hom's report was insufficient.

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opinion is not supported by enough objective findings does not

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achieve the level of specificity our prior cases have required,

"Merely to state that a medical

United States District Court
For the Northern District of California

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even when the objective factors are listed seriatim.”

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v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (quotation marks

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omitted).

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Rodriguez

In his cross-motion, Defendant argues that Dr. Hom based his

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opinion on subjective reports that the ALJ had determined not to

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be credible.

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pain can be disregarded to the extent that it is based on the

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claimant's unreliable self reporting.

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F.3d 1035, 1040-41 (9th Cir. 2008).

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A treating physician's opinion about a claimant's

Tommasetti v. Astrue, 533

The ALJ in this case fails to provide any detailed findings

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to support his decision.

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Plaintiff's statements completely credible as to the intensity,

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persistence and limiting effects of his impairment, he does not

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cite this in support of his decision to discount Dr. Hom.

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The ALJ also notes the conservative nature of the treatment and

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Plaintiff's ability to engage in other daily activities as

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inconsistent with disabling pain.

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Plaintiff of malingering, despite finding his functional abilities

While he asserts that he does not find

AR 13.

However, he does not accuse

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"to be in excess of his alleged limitations."

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gives Plaintiff "all benefit of the doubt."

AR 15.

Rather, he

Id.

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Despite Dr. Hom's assertion that Plaintiff would be incapable

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of even "low stress" jobs, his records do not support a finding of

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substantial mental or psychological limitations and he performed

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no relevant tests.

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based on the Plaintiff's statement that he could "not function

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with any stress."

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justified in giving the most weight to the report of Dr. Gonick-

His records indicate that this opinion was

AR 548.

Defendant thus argues that the ALJ was

United States District Court
For the Northern District of California

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Hallows, the consulting psychologist.

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given by the ALJ to explain his decision to discount the treating

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physician in favor of an examining doctor.

This rationale was not

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Where the ALJ failed to provide clear and convincing reasons

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for discounting the opinion of the claimant's treating physician,

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courts have accepted the physician's uncontradicted testimony as

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true and awarded benefits.

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(9th Cir.1988).

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that may be sufficient to discount the treating physician's

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opinion.

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for further proceedings to determine whether the treating

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physician's opinion can properly be discounted in this case.

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Winans v. Bowen, 853 F.2d 643, 647

Here, however, the ALJ has cited some factors

Therefore, the Court DENIES summary judgment and REMANDS

B. Testimony of the Vocational Expert
Plaintiff contends that the ALJ erred during the hearing by

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failing to ask the VE whether her testimony departed from the DOT

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and to explain any contradictions.

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ALJ was required to explain in his written decision any conflicts

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between the VE's testimony and the DOT.

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00-4p requires that ALJs identify and obtain a reasonable
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He further asserts that the

Social Security Ruling

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explanation for any conflicts between occupational evidence

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provided by VE's information and the DOT.

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they explain in their decision how any identified conflict was

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resolved.

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VE asserted that both the positions of optical assembler and bench

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inspector allow for a sit/stand option, which is not part of the

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DOT descriptions.

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explanation, Plaintiff's attorney elicited a response from the VE

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that she based this opinion on her professional experience,

United States District Court
For the Northern District of California

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SSR 00-4p.

It also requires that

During the hearing in the instant case, the

AR 66.

While the ALJ never asked for an

including a two-year-old study at Lens crafters.

AR 70, 71.

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The Ninth Circuit has allowed that failure to inquire about

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conflicts with the DOT could be deemed harmless where there were

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"no unresolved potential inconsistenc[ies] in the evidence."

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Massachi v. Astrue, 486 F.3d 1149, 1153, n.19 (9th Cir. 2007)

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(quotation marks omitted).

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that the record is clear as to why the ALJ relied on the VE's

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testimony, particularly in cases where the VE's testimony

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conflicts with the DOT.

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the DOT may be upheld where there is persuasive testimony

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supporting the deviation.

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(9th Cir. 1995); see also, Tommasetti, 533 F.3d at 1042.

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The purpose of the rule is to ensure

Id.

Expert testimony that contradicts

Johnson v. Shalala, 60 F.3d 1428, 1435

Here, the ALJ fails to mention the departure in his written

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decision and, in fact, says that the occupations cited are

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consistent with the DOT title without further discussion.

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However, because the VE explained the basis for her departure from

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the DOT, the Court finds no prejudice from this error.

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CONCLUSION

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The ALJ's decision is vacated and REMANDED for further

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proceedings to consider whether there are substantial grounds for

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rejecting Dr. Hom's opinion.

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IT IS SO ORDERED.

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Dated: 11/3/2011

CLAUDIA WILKEN
United States District Judge

United States District Court
For the Northern District of California

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