Opinion
Civil No. 05cv0639 WQH (RBB).
March 7, 2006
Plaintiff Joseph Alexander seeks judicial review of Social Security Commissioner Jo Anne B. Barnhart's determination that he is not entitled to disability benefits. On August 5, 2005, Alexander filed his Motion for Reversal and/or Remand [doc. no. 7] and Memorandum in Support of Motion [doc. no. 8] requesting reversal of Administrative Law Judge ("ALJ") Edward D. Steinman's May 28, 2004, finding that he was not disabled. Plaintiff argues: (1) The ALJ erred when he found Alexander could perform his past relevant work because this contradicted the testimony of two vocational experts and was not supported by substantial record evidence; (2) "Defendant failed to adequately discount [sic] the opinions of several of Plaintiff's treating physicians "; and (3) "Defendant failed to discredit [sic] evidence of [Alexander]'s excess pain and limitations." (Pl.'s Mem. 4, 10, 20.)
The decision became final on March 10, 2005, when the Social Security Administration ("SSA") Appeals Council denied Plaintiff's request for review. (Admin. R. at 5.) Alexander asks the Court to reverse the Commissioner's determination and remand his case for the payment of benefits, although he acknowledges that "[t]he decision whether to remand the case for additional evidence, or simply to award benefits is within the discretion of the Court." (Pl.'s Mem. 25 (citing Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985)).)
On August 31, 2005, the Commissioner filed a Cross-Motion for Summary Judgment [doc. no. 10] and a Memorandum in Support of Cross-Motion and in Opposition to Plaintiff's Motion [doc. no. 11]. On September 28, 2005, the Court found the matter suitable for decision without oral argument and vacated the October 3, 2005, hearing [doc. no. 14]. See S.D. Cal. Civ. L.R. 7.1(d)(1). The Defendant supplied pages missing from the administrative record in supplemental filings on February 2, and February 24, 2006 [doc. nos. 17, 19].
I. BACKGROUND
Plaintiff was forty-nine years old at the time of the ALJ's decision. (Admin. R. at 36.) He is currently fifty-one. (See id. at 106.) Alexander has a college education and past work experience as an optician and optical store manager. (Id. at 36.) Plaintiff filed an application for Disability Insurance Benefits and Social Security Income ("SSI") on September 13, 2002, alleging his disability began on October 2, 2000, due to thoughts of suicide, clinical depression, agoraphobia, high anxiety, panic attacks, migraine headaches, and leg pain. (Id. at 153-54, 163.)
Alexander's application was denied on November 27, 2002. (Id. at 108.) On February 4, 2003, he filed a request for reconsideration, which was denied on March 18, 2003. (Id. at 112-13.) On April 28, 2003, Alexander filed a timely request for an administrative hearing. (Id. at 118.) Judge Edward D. Steinman conducted the hearings on Plaintiff's application on October 31, 2003, and April 13, 2004. (Id. at 47, 62.) Anne Stein, a nonattorney, represented Alexander at both hearings. (Id. at 35, 47, 62.) Bonnie Sinclair and Lynton Stewart, vocational experts, testified regarding Plaintiff's ability to work. (Id. at 47, 62.)
On May 28, 2004, Judge Steinman issued his decision denying the application for benefits. (Id. at 44.) Plaintiff requested review of the decision on June 14, 2004. (Id. at 19.) The Appeals Council denied Alexander's request for review on March 10, 2005. (Id. at 5.)
II. MEDICAL EVIDENCE
A. Plaintiff's Mental Impairments
Plaintiff relocated to San Diego from San Francisco in late 2000, and his relevant medical records begin with a visit to Dr. Calvin Small on December 15, 2000. (Id. at 321, 325.) The doctor's notes indicate Plaintiff was taking Prozac (an antidepressant) and Ativan (an antianxiety drug) at the time of this visit. (Id.); A-Z Health Guides from WebMD: Drugs, Prozac Oral, http://www.webmd.com/drugs/drug-6997-Prozac+Oral.aspx (last visited Mar. 1, 2006); A-Z Health Guides from WebMD: Drugs, Ativan Oral, http://www.webmd.com/drugs/drug-6685-Ativan+Oral.aspx (last visited Feb. 17, 2006).
Small referred Alexander to Robert Simon, Ph.D., a clinical psychologist. In a letter to Dr. Small, dated January 25, 2001, Dr. Simon recounted that Alexander had been receiving psychiatric treatment in San Francisco prior to relocating to San Diego and was taking Prozac, Xanax (for anxiety), and Viagra. (Admin. R. at 325); A-Z Health Guides from WebMD: Drugs, Xanax Oral, http://www.webmd.com/drugs/drug-9824-Xanax+ Oral.aspx (last visited Feb. 17, 2006). The letter indicates Plaintiff had a stable work history in San Francisco but became paralyzed with anxiety once he moved to San Diego. (Admin. R. at 325.) Dr. Simon viewed Alexander as a person with a chronic "characterological dysfunction." (Id. at 325-26.)
Alexander also met with Dr. David Bobrow for treatment of depression. (Id. at 319.) After meeting with Dr. Bobrow, Plaintiff decided to continue therapy with Dr. Simon, but Dr. Bobrow changed Alexander's antidepressant medication from Prozac to Paxil. (Id.); A-Z Health Guides from WebMD: Drugs, Paxil Oral, http://www.webmd. com/drugs/mono-9095-PAROXETINE+-+ORAL.aspx (last visited Feb. 17, 2006). Dr. Bobrow assessed Plaintiff with a global assessment of functioning ("GAF") score of thirty-eight, which corresponds with "[s]ome impairment in reality testing or communication . . . OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. . . ." (Admin. R. at 319); Diagnostic and Statistical Manual of Mental Disorders: Fourth Edition Text Revision ("DSM-IV-TR") 34 (rev. 4th ed. 2000).
Plaintiff was seen by Dr. Randall Hicks beginning May 24, 2001, for increased depression and anxiety. (Admin. R. at 228-29.) Alexander reported taking Prozac, which he did not find helpful. (Id. at 229.) Dr. Hicks increased Plaintiff's dosage of Prozac and added Trazodone (also an antidepressant). (Id. at 230); A-Z Health Guides from WebMD: Drugs, Trazodone Oral, http://www.webmd.com/drugs/drug-11188-Trazodone+Oral.aspx (last visited Feb. 17, 2006). He also recommended that Alexander stop using stimulants and decrease his intake of alcohol. (Admin. R. at 229-30.)
Alexander returned to Dr. Hicks on June 21, 2001, and reported using speed two weeks earlier to increase his mood and energy. (Id. at 230.) Dr. Hicks again told Plaintiff to stop using stimulants and noted that Alexander had experienced no improvements in his mood disorder. (Id. at 230-31.)
At a visit with Dr. Hicks on August 24, 2001, Plaintiff's antidepressant medication was changed to Effexor due to increased anxiety and no improvement in mood. (Id. at 231); A-Z Health Guides from WebMD: Drugs, Effexor Oral, http://www.webmd. com/drugs/drug-1836-Effexor+Oral.aspx (last visited Feb. 17, 2006). Alexander had decreased his intake of alcohol to five ounces per week. (Admin. R. at 231.)
When Plaintiff returned to Dr. Hicks on October 26, 2001, he reported no benefit from the medication, and he had decreased the dosage. (Id. at 231.) Dr. Hicks recommended that Alexander increase his dose of Effexor and use behavioral techniques to decrease paranoia. (Id.); Neil M. Davis, Medical Abbreviations: 10,000 Conveniences at the Expense of Communications and Safety 158 (7th ed. 1995) (listing "PA" as abbreviation for "paranoid").
Plaintiff saw Dr. Hicks again on December 20, 2001, stating he still was not benefitting from Effexor, had no libido, was not sleeping well, and had "no joy." (Admin. R. at 231.) He was placed on Nortriptyline (another antidepressant). (Id.); Davis,supra, at 152; A-Z Health Guides from WebMD: Drugs, Nortriptyline Oral, http://www.webmd.com/drugs/drug-10710-Nortriptyline+Oral.aspx (last visited Feb. 17, 2006). In a telephone conversation with Dr. Hicks on January 15, 2002, Alexander reported he was no longer taking Effexor but had not started taking the Nortriptyline. (Admin. R. at 231.)
At a follow-up visit on March 1, 2002, Plaintiff complained that Nortriptyline was not helping, but Dr. Hicks recommended Alexander continue taking it. (Id. at 232.) Finally, on April 5, 2002, Plaintiff stated he felt less anxiety and an increased mood on 125 milligrams of Nortriptyline. (Id.)
Plaintiff began seeing Mel Mackler on July 11, 2002, for weekly psychotherapy sessions. (Id. at 276.) Initially, Alexander suffered from anxiety — which resulted in an inability to look for work, go outside alone, sleep, or interact socially — and depression, which resulted from the death of his dog. (Id.)
Months later, in a March 20, 2003, letter to the Department of Social Services ("DSS"), Mackler listed Plaintiff's diagnoses as bereavement, panic disorder with agoraphobia, and shingles. (Id.) Mackler assigned Alexander a past GAF score of fifty, indicating "[s]erious symptoms . . . OR any serious impairment in social, occupational or school functioning. . . ." (Id.);DSM-IV-TR, supra, at 34.
From July 11, 2002, to March 20, 2003, Plaintiff improved to the point where he had begun going outside on his own and had made attempts to apply for work. (Admin. R. at 276.) Alexander's diagnosis changed to social phobia, major depressive disorder in partial remission, and a GAF of sixty, which corresponds with moderate symptoms or difficulty functioning. (Id.);DSM-IV-TR, supra, at 34. In March 2003, Mackler wrote that while Alexander is able to walk, sit, and stand, and it is important for him to find work, "it is questionable [whether] he would be able to function successfully for a long enough period . . . to sustain [a] job." (Admin. R. at 277.)
Alexander began seeing Dr. Bruce Hubbard on July 22, 2002. (Id. at 236.) He prescribed Amitriptyline and Lexapro (antidepressants), Trazodone, Viagra, and Ativan. (Id. at 239-40); see also A-Z Health Guides from WebMD: Drugs, Amitriptyline Oral, http://www. webmd.com/drugs/drug-8611-Amitriptyline+Oral.aspx (last visited Feb. 17, 2006); A-Z Health Guides from WebMD: Drugs, Lexapro Oral, http://www.webmd.com/drugs/drug-63990- lexapro+Oral. aspx (last visited Feb. 17, 2006).
On November 27, 2002, Plaintiff saw Dr. Mark Capobianco, of UCSD Outpatient Psychiatric Services, complaining of increased appetite, decreased energy, and decreased concentration. (Id. at 287.) Alexander feared getting up in the morning and was afraid of going outside since his dog had died. (Id. at 247.) He also reported that he had previously abused alcohol and drugs. (Id. at 289.) Dr. Capobianco diagnosed Alexander with anxiety and benzodiazepine dependency and gave him a GAF score of fifty. (Id. at 290.)
Dr. Capobianco evaluated Plaintiff again on December 23, 2002, and proscribed Prozac, Trazodone, and Ativan. (Id. at 255.) On January 27, 2003, Plaintiff expressed suicidal ideation, although he gave no indication of a plan. (Id. at 286.) Alexander was continued on Prozac, Restoril (a sleep aid), and Ativan. (Id.); A-Z Health Guides from WebMD: Drugs, Restoril Oral, http://www.webmd.com/drugs/drug-9667-Restoril+Oral.aspx (last visited Feb. 17, 2006).
At the request of DSS, on March 6, 2003, Plaintiff had a psychiatric consultation with Dr. H. Douglas Engelhorn. (Admin. R. at 264.) Dr. Engelhorn's evaluation was based on Alexander's subjective complaints, as well as a psychiatric examination. (See id. at 264-66.) Plaintiff denied any history of serious illness but admitted he was being treated at UCSD for depression and anxiety and was taking Ativan, Prozac, Restoril and Trazodone. (Id. at 265.) Dr. Engelhorn diagnosed Plaintiff with "[p]robable major depression, recurrent type" and "[p]ossible anxiety disorder." (Id. at 266.) He assigned Alexander a GAF score of sixty-five to seventy, indicating he thought Plaintiff exhibited "[s]ome mild symptoms . . . OR some difficulty in social, occupational, or school functioning . . ., but [that he was] generally functioning pretty well [and] ha[d] some meaningful interpersonal relationships." (Id.); DSM-IV-TR, supra, at 34. The doctor opined that Alexander "could certainly do simple, repetitive tasks[,] . . . could adequately relate to peers and supervisors in the workplace[,] . . . could also be expected to make routine adjustments in the workplace[,] . . . is fully capable of driving to and from the workplace[,] . . . [and] could handle his own funds. . . ." (Admin. R. at 266.)
Plaintiff returned to Dr. Capobianco on March 11, 2003. (Id. at 285.) The doctor noted that he had spoken to Alexander's psychotherapist, Mel Mackler, and Mackler felt Plaintiff was more functional than he presented and had no suicidal intent or plan. (Id. at 285.) Dr. Capobianco discontinued Alexander's Prozac and started him on Zoloft, a different antidepressant. (Id.); A-Z Health Guides from WebMD: Drugs, Zoloft Oral, http://www.webmd. com/drugs/mono-8095-SERTRALINE+-+ORAL.aspx (last visited Feb. 21, 2006).
After receiving a case summary from DSS, Dr. O'Malley reported that based on Alexander's affective and anxiety-related disorders, a residual functional capacity assessment was needed. (Admin. R. at 272.) Dr. O'Malley performed the assessment on March 14, 2003, and found Alexander was not significantly limited in most activities and only moderately limited in his abilities to understand, remember, and carry out detailed instructions and to interact appropriately with the general public). (Id. at 267-68.) Dr. O'Malley noted Plaintiff could "understand, remember, and carry out a two-step command involving simple instructions." (Id. at 269.) He assessed Alexander as having mood and anxiety disorders. (Id. at 273-74.) The doctor also indicated Plaintiff has mild limitations performing daily activities and maintaining concentration, persistence, and pace. (Id. at 275.)
When Alexander returned to UCSD on May 5, 2003, he reported that his application for SSI had been denied, and he was working part-time cleaning offices at night. (Id. at 283.) Dr. Capobianco increased Plaintiff's Zoloft dose and discontinued his Ativan and Restoril. (Id.) On June 10, 2003, Alexander reported that he was taking 200 milligrams of Zoloft per day and tolerating it well, although there had been no improvement in his mood. (Id. at 282.)
At Alexander's last visit to Dr. Capobianco, on July 22, 2003, it was noted that Plaintiff was concerned about his disability hearing and was focused on securing SSI or disability insurance benefits. (Id. at 281.) Alexander complained of exhaustion, headaches, and tingling in his left leg. (Id.) He was still complaining of chronic suicidality and feelings of uselessness. (Id.) Plaintiff stated he quit his job due to fatigue and because his attorney told him he should not be working if he was applying for SSI. (Id.)
On September 25, 2003, Dr. Capobianco prepared a report that summarized his treatment of Plaintiff and assessed his diagnoses and limitations. (Id. at 295.) Alexander had been Dr. Capobianco's patient since November 27, 2002; at that time he was very depressed and irritable and had not been employed in two years. (Id.) Plaintiff had slightly improved since then, but his short-term memory had deteriorated; he was chronically, persistently anxious; and he was depressed and felt emotionally injured when he was corrected or criticized by others, which made working relationships difficult. (Id.) Alexander had not obtained meaningful employment since moving to San Diego, and his agitation, anxiety, and depression, along with his feelings of worthlessness, prevented him from working full-time. (Id.)
Plaintiff also complained of fatigue, headaches, nausea, and vertigo secondary to HIV. (Id. at 296.) Alexander's physical ailments compounded his emotional problems. (Id.) Dr. Capobianco gave a guarded prognosis, although Alexander was taking Zoloft and Lorazepam (Ativan), both of which offered some relief and seemed to work better than other antidepressant medications. (Id.) Dr. Capobianco's diagnoses for Plaintiff were recurrent, moderate major depression, anxiety disorder, HIV, headaches of unknown origin, and a GAF of forty-five, indicating severe symptoms or serious impairment. (Admin R. at 296);DSM-IV-TR, supra, at 34.
At the conclusion of the first administrative hearing on October 31, 2003, the ALJ ordered a psychiatric consultative exam, internal medicine exam and orthopedic consultative exam. (Admin. R. at 104.) DSS requested an adult psychiatric evaluation from Dr. Matthew Carroll, who wrote a report on December 11, 2003. (Id. at 346.) His report was based on a review of all the records provided by DDS and a mental status examination of Alexander. (Id. at 346, 348.) Dr. Carroll concluded that Plaintiff had no limitations in his ability to socially interact, understand instructions, sustain an ordinary routine without supervision, complete simple tasks, concentrate for two-hour increments, avoid normal hazards, and handle his own funds. (Id. at 349, 352.) Dr. Carroll found only a slight limitation in Alexander's ability to complete detailed or complex tasks due to Plaintiff's memory and concentration problems, and the doctor discovered no evidence of social phobia or panic disorder. (Id. at 349-51.) Dr. Carroll's only psychiatric diagnosis for Alexander was depressive disorder. (Id. at 349.) He assessed Plaintiff with a GAF of sixty-five and attributed some of Plaintiff's depression to being unable to find a job. (Id. at 349-50.)
In a letter dated February 7, 2004, Dr. Small stated Alexander had a history of anxiety and depression, and he recently had been diagnosed with moderate to severe dementia. (Id. at 353.) Dr. Small believed Plaintiff to be one hundred percent "disabled from dementia that interferes with his ability to learn new concepts and routines and . . . unable to effectively function even in a highly structured environment." (Id.)
Two days later, during a February 9, 2004, visit to Dr. Small, Plaintiff's confusion was no better, and he was forgetting to take his medications. (Id. at 357.) At a follow-up visit on March 10, 2004, Plaintiff continued to have problems with memory. (Id. at 354.) Alexander also complained of severe fatigue, night sweats, and problems completing simple tasks. (Id.) Dr. Small noted Plaintiff had worsening neurological symptoms, increased headaches, and decreased memory. (Id.)
On April 12, 2004, Dr. Capobianco completed a psychiatric review of Alexander for the period from November 2002 to April 12, 2004, and found Plaintiff moderately limited in his daily activities and social functioning. (Id. at 437-50.) Alexander was markedly limited in maintaining concentration, persistence, or pace. (Id. at 447.) He had experienced one or two episodes of decompensation of extended duration. (Id.) Plaintiff had the following "psychological or behavioral abnormalities associated with a dysfunction of the brain": memory impairments, perceptual or thinking disturbances, change in personality, disturbances in mood, and emotional lability and impairment in impulse control. (Id. at 438.) Dr. Capobianco also noted that Plaintiff had a depressive syndrome characterized by sleep disturbances, psychomotor agitation or retardation, decreased energy, feelings of guilt or worthlessness, difficulty concentrating or thinking, and thoughts of suicide. (Id. at 440.) Plaintiff's psychiatric impairments were severe enough that "even a minimal increase in mental demands or change in the environment would be predicted to cause [Alexander] to decompensate." (Id. at 448.)
Dr. Capobianco submitted an additional assessment of Plaintiff on June 14, 2004. (Id. at 23-30.) The diagnoses and general comments are essentially the same as the assessment he prepared on September 25, 2003. (Compare id. at 296, with id. at 24.) However, he notes that Plaintiff's symptoms are worsening. (Id. at 23.)
Although Dr. Capobianco's assessment was submitted after the ALJ's decision, this Court may consider "both the ALJ's decision and the additional material submitted to the Appeals Council." Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993).
On June 16, 2004, Dr. Capobianco submitted additional mental assessment forms. (Id. at 25-30.) He indicated Plaintiff's understanding and memory were moderately limited, although Alexander could understand and remember very short, simple instructions. (Id. at 25.) The doctor found Alexander's sustained concentration and persistence moderately to markedly limited in most respects. (See id. at 25-26.) Plaintiff's social interaction abilities were either not limited or only slightly limited. (Id. at 26.) The doctor also indicated Alexander's ability to adapt would only be slightly limited, except for marked limitations in traveling to unfamiliar places or using public transportation. (Id. at 27.) B. Plaintiff's Physical Impairments
At the request of DSS, on February 25, 2003, Plaintiff received an internal medicine evaluation from Dr. Alexandre Mihelson. (Id. at 257-61.) Alexander complained of lower extremity pain, with a history of varicose veins and operations in 1997. (Id. at 257.) The examination revealed varicose veins in Plaintiff's lower extremities. (Id. at 259.) Dr. Mihelson restricted Plaintiff from pushing, pulling, lifting, or carrying more than fifty pounds occasionally and twenty-five pounds frequently. (Id. at 261.)
On March 13, 2003, at the request of DSS, Dr. Meek reviewed Plaintiff's case summary. (Id. at 270-71.) Dr. Meek concluded that there was "[n]o evidence of a severe physical impairment." (Id. at 270.)
Plaintiff saw Dr. Small on June 20, 2003, complaining of acid reflux, headaches (with a prior migraine diagnosis), increased fatigue, and depression. (Id. at 305.) He also stated he was having unprotected sex. (Id.) Dr. Small referred Alexander for an HIV test, which resulted in a positive detection of the HIV antibody. (Id. at 306.) Plaintiff then had a follow-up visit with Dr. Small on July 8, 2003. (Id. at 375.)
Tests taken on July 22, 2003, showed that Plaintiff's T-cell ratio was low, and his HIV was progressing. (Id. at 383-84.) His x-ray was normal, however. (Id. at 386.) On July 30, 2003, Alexander complained to Dr. Small of fatigue and shortness of breath. (Id. at 374.) He was referred for an x-ray and lab tests. (Id.) On August 25, 2003, Plaintiff saw Dr. Small because of left arm pain and was diagnosed with tendinitis. (Id. at 372.) He was prescribed a wrist splint, ice, and Naprosyn (an anti-inflammatory). (Id.); A-Z Health Guides from WebMD: Drugs, Naprosyn Oral, http://www.webmd. com/drugs/momo-1289-NAPROXEN+-+ ORAL.aspx (last visited Feb. 21, 2006).
In a letter dated October 21, 2003, Dr. Small indicated that Plaintiff's HIV diagnosis was causing him "a great degree of stress . . . which likely contributes to his underlying mental condition." (Admin. R. at 207.) Additionally, the doctor indicated that Alexander's epicondylitis of the left arm made "it very difficult to do any manual labor." (Id.) Plaintiff received an MRI of his brain on November 6, 2003. (Id. at 385.) The MRI showed "multiple small, nonenhancing white matter lesions" scattered throughout both hemispheres of his brain. (Id.) Dr. Small referred Plaintiff to neurologist and psychiatrist, Dr. Licht, on November 11, 2003, due to his headaches and an abnormal MRI. (Id. at 397.)
Alexander saw Dr. Jonathan Licht on November 25, 2003, complaining of headaches and memory disturbance. (Id. at 387.) Four to five months prior to this, Plaintiff's headaches began occurring on a daily basis, and his short-term memory had become worse. (Id.) Plaintiff informed Dr. Licht he had long-standing problems with anxiety and depression. (Id.) Alexander also complained of vertigo, left arm pain, joint aches, impaired vision and hearing, and varicose veins. (Id.) Dr. Licht believed Alexander's problems possibly stemmed from HIV dementia, but a secondary opportunistic infection needed to be ruled out by performing a lumbar puncture. (Id. at 389.)
Plaintiff had an orthopedic consultation with Dr. Thomas Sabourin on November 25, 2003; Plaintiff's chief complaints were pain in the neck, left shoulder, left elbow, left upper back, both ankles, and lower back. (Id. at 337.) After examining Alexander, Dr. Sabourin determined Plaintiff had mild adhesive capsulitis of the left shoulder, lateral epicondylitis, and hyperreflexia of the left upper extremity. (Id. at 338-41.) Dr. Sabourin stated that capsulitis and epicondylitis were relatively normal minor problems. (Id. at 341.) The doctor thought Plaintiff's hyperreflexia might indicate a central nervous system problem. (Id.) Nevertheless, Dr. Sabourin found Alexander able to occasionally lift twenty pounds, frequently lift ten pounds, stand for six hours in an eight-hour workday, and frequently reach overhead. (Id. at 341-42, 344.) Additionally, the doctor stated Plaintiff could climb, balance, kneel, crouch, crawl, or stoop frequently, and he had no limitations on sitting, pushing, or pulling. (Id. at 341, 343.) Dr. Sabourin did not impose any visual, communicative, or environmental limitations on Alexander. (Id. at 344-45.)
At the request of DSS, Plaintiff received an internal medicine evaluation from Steven Gerson, D.O., on November 26, 2003. (Id. at 327, 337.) Alexander's chief complaint related to his HIV diagnosis; he also complained of daily headaches which caused nausea, vomiting, and photophobia. (Id. at 327.) He mentioned intermittent dizziness, sweatiness, shortness of breath, cough, left elbow pain, shoulder pain, weakness, and fatigue. (Id.) After examining Alexander and reviewing his medical records (except the MRI and neurological exam, which were not yet available), Dr. Gerson found Plaintiff could lift ten pounds frequently and twenty pounds occasionally; stand, walk, and sit for up to six hours in an eight-hour workday; perform pushing and pulling with his upper extremities on a limited basis; occasionally climb, balance, kneel, crouch, stoop, reach, handle, and feel; and frequently perform fingering tasks. (Id. at 331, 333-35.) Dr. Gerson found no visual or communicative limitations. (Id. at 335-36.)
Lab tests ordered by Dr. Small showed that Plaintiff's T-cell count decreased between July and December 2003. (See id. at 377, 383.) Alexander saw Dr. Small on January 26, 2004, and was diagnosed as having HIV with worsening dementia. (Id. at 358.) Alexander started new medications for the treatment of HIV — Viread, Sustiva, and 3TC. (Id.); A-Z Health Guides from WebMD: Drugs, Viread Oral, http://www.webmd.com/drugs/drug-22106-Viread+Oral.aspx (last visited Feb. 23, 2006); A-Z Health Guides from WebMD: Drugs, Sustiva Oral, http://www.webmd.com/drugs/drug-16567-Sustiva+Oral.aspx (last visited Feb. 23, 2006); Drug Information for Lamivudine (Systemic), http://www.drugs.com/cons/3tc_systemic. html (last visited Feb. 22, 2006).
In a report dated January 26, 2004, Dr. Licht confirmed that "demylinating [sic] type" lesions were found on Plaintiff's MRI scan, a lumbar puncture proved positive for "multiple sclerosis type markers," and a mini-mental state examination showed Alexander experienced "mild to moderate dementia." (Admin. R. at 409); see Stedman's Medical Dictionary 455 (26th ed. 1995) (defining "central demyelination" as the loss of myelin that may be seen with multiple sclerosis). The doctor believed Plaintiff did not have clinical evidence of multiple sclerosis; rather, the test results may have been caused by his untreated HIV. (Admin. R. at 409.) Dr. Licht recommended that Alexander start antiviral therapy to see if his clinical situation improved and concluded Plaintiff was disabled from a neurological standpoint based on his headaches and memory disorder. (Id.)
On February 9, 2004, Dr. Small added Epivir to Alexander's regimen, or cocktail, of HIV drugs. (Id. at 357); A-Z Health Guides from WebMD: Drugs, Lamivudine Solution — Oral, http:// www.webmd.com/drugs/mono-7268-LAMIVUDINE+SOLUTION+-+ORAL.aspx (last visited Mar. 1, 2006). Alexander continued to complain of pain in both thighs radiating down his legs, as well as continued headaches and memory trouble. (Admin. R. at 355.)
On April 6, 2004, Plaintiff returned to Dr. Licht. (Id. at 423.) He was in the second month of his current HIV cocktail and feeling weak; his left arm jerked at times; he stated he was confused and on an emotional roller coaster; his headaches were not better; and he always felt hot. (Id.) Dr. Licht diagnosed Plaintiff with psychosocial depression. (Id.) He asked Alexander to return in two months for a follow-up MRI. (Id.)
Dr. Licht submitted an additional post-hearing assessment on June 30, 2004, and diagnosed Plaintiff with HIV with dementia and demyelination. (Id. at 10.) The doctor indicated that Alexander could sit, stand, walk, lift, or carry less than ten pounds frequently and less than twenty pounds occasionally for more than one hour at a time, or two hours total in a eight-hour workday, but he was unable to climb, kneel, crouch, crawl, stoop, or balance at all. (Id.) Confusingly, the doctor also checked a box indicating that Plaintiff could complete these functions occasionally. (Id. at 11.) Dr. Licht noted that Plaintiff was unable to maintain a consistent pace, work for more than an hour without a break, or complete a normal workday or workweek without disruption from his physical symptoms. (Id. at 10.) The doctor found Plaintiff's ability to maintain attention and concentration for greater than two hours at a time and maintain a schedule with regular attendance and punctuality "moderately" limited. (Id. at 16.)
See supra note 1.
C. Other Evidence of Plaintiff's Impairments
On October 1, 2002, DSS conducted an interview with Alexander. (Id. at 163-66.) The interviewer noted Plaintiff had difficulty with understanding, coherency, and concentrating, and had noticeable memory problems. (Id. at 165.)
The record includes a February 13, 2003, letter from Alan Palmer, case manager at North Park Family Health Center, which stated that Alexander was not able to work due to "chronic health considerations." (Id. at 408.) Palmer refers to Plaintiff's medical records, which show clinical markers for multiple sclerosis and "severe dementia that has a strong probability of being AIDS related." (Id.) As his case manager since August, 2003, Palmer noticed a decline in Alexander's health (including short-term memory, attention span, fatigue, and disorientation). (Id.)
On September 23, 2003, Jason Ruff, Alexander's employer, also wrote a letter on Plaintiff's behalf. (Id. at 46.) Alexander had worked for him since March 2003 cleaning office suites for a maximum of seven hours a week, two hours a day. (Id.) Ruff stated he had reduced Plaintiff's workload because he felt seven hours was the most Alexander could work. (Id.)
III. THE ADMINISTRATIVE HEARINGS
A. Plaintiff's TestimonyAlexander testified at the first administrative hearing on October 31, 2003. (Id. at 64-101.) He was represented by nonattorney Anne Stein. (Id. at 64.) A second administrative hearing was held on April 13, 2004, but Plaintiff did not testify at that time. (Id. at 47-48.)
Plaintiff testified that he had worked full-time as an optician for almost thirty years. (Id. at 66-67.) Four or five months prior to the hearing, Alexander had been working sixteen to eighteen hours a week doing light cleaning. (Id. at 66.) During that time, he often stopped in the middle of his shift because he was too tired to continue. (Id. at 96.) His employer suggested reducing his hours, so Plaintiff was working only seven to ten hours per week. (Id. at 65, 96.)
Plaintiff testified that he has HIV, which causes him to experience chronic fatigue, headaches, weight change, and night sweats with fevers of 101 or 102 degrees. (Id. at 68-69.) Alexander is taking Zoloft, for depression; Lorazepam (also known as Ativan), for anxiety; Risperdal, for sleep; Viagra; Cortisone injections, for pain in his left elbow; Protonix, for acid reflux; and Advert, for vertigo. (Id. at 69-73.)
He has headaches every day, which he measures as eight on a pain scale of one to ten. (Id. at 76-77.) The headaches last "most of the rest of the day," unless he takes Advil, which causes the headaches to subside but return later. (Id. at 77.) Alexander also suffers daily episodes of dizziness for five to ten minutes at a time. (Id. at 78.)
Alexander has pain in his elbow, back, legs, feet, and stomach. (Id. at 79-81.) His left elbow has been treated with Cortisone shots, and he wears a brace on his left hand. (Id. 78-79.) Plaintiff writes with his right hand, but he does everything else with his left hand. (Id. at 79.) Approximately twice a week, the pain in Alexander's back radiates into his legs for three to four hours. (Id. at 80.) Additionally, every day, for about an hour, Plaintiff has pain in his feet. (Id. at 81.) Plaintiff also has varicose veins, which were treated with a vein strip operation about nine years prior to the hearing. (Id. at 83.) He testified that if he stands for more than fifteen minutes, his legs are in pain, and the pain does not diminish for six to seven hours. (Id. at 84.) Alexander testified that he has problems with his hands shaking. (Id.) People have asked him to fix their glasses — a task he used to be able to do — but he is unable to do so now. (Id. at 101.)
Besides his physical ailments, Alexander testified that he suffers from depression, extreme anxiety, social anxiety, panic attacks, and hallucinations. (Id. at 88-89, 95.) The panic attacks occur about twice a week and last anywhere from five to thirty minutes. (Id. at 89.) Plaintiff testified that when a panic attack occurs he is unable to move and has to have someone come pick him up. (Id.) Most days, he does not leave the house because he is so anxious. (Id. at 98.) Alexander also testified that he thinks about suicide a lot and has planned on committing suicide, but he has "never carried it out." (Id. at 90.) He also suffers from dementia and memory loss. (See id. at 99-100.)
Plaintiff can shower himself, but his landlord does the household chores, including washing Alexander's laundry and making most of his meals. (Id. at 94-95.) About three to four months before the hearing, Alexander became too tired to do any household tasks. (Id. at 95.)
B. The First Vocational Expert's Testimony
Bonnie Sinclair, a certified vocational expert, testified at the October 31, 2003, hearing. (Id. at 67-68, 101-04, 134.) Sinclair classified Plaintiff's past work as that of an optician. (Id. at 67.) She testified that the optician position is a skilled, light job, with a specific vocational preparation ("SVP") of 8. (Id. at 68.)
Judge Steinman posed four hypothetical questions to Sinclair to determine what jobs would be available to Alexander. (See id. at 101-04.) The first hypothetical was based on DSS findings that Plaintiff, having no severe physical impairment, could do simple repetitive tasks in a nonpublic setting. (Id. at 101, 269.) Sinclair stated that, with these limitations, Alexander could not do his previous job, but he could perform other work in the national economy. (Id. at 102.)
The judge's second hypothetical was based on the limitations found by Drs. Mihelson (internal medicine) and Engelhorn (psychiatry), both of whom evaluated Plaintiff at the request of DSS. (Id. at 102, 261, 266.) Plaintiff was limited to pushing, pulling, lifting, and carrying fifty pounds occasionally and twenty-five pounds frequently; standing and walking six hours in an eight-hour workday. (See id. at 102, 261.) Under this hypothetical, Alexander had no hearing or vision restrictions, no cognitive impairments, and no limitations on the use of his hands for fine or gross manipulations. (Id. at 261, 266.) He could do "simple repetitive tasks," adequately relate to peers and supervisors in the workplace, and drive himself to and from work. (Id. at 266.) Sinclair stated that, based on these limitations, Alexander could not perform his previous employment. (Id. at 102.) However, Plaintiff could perform other work (including ninety percent of medium exertional level jobs) in the national economy. (Id.)
The third hypothetical the ALJ posed was based on treating physician, Dr. Capobianco's psychiatric evaluation of Plaintiff. (Id. at 103, 296.) In this hypothetical, Alexander would be unable to focus on even minor tasks. (Id. at 103.) Sinclair stated that, given these limitations, Plaintiff could not perform his previous work or any other work. (Id.)
As a fourth hypothetical, the ALJ asked Sinclair whether the limitations Alexander testified to at the hearing would preclude his former work or other work. (Id. at 104.) Sinclair stated those limitations would preclude any work. (Id.)
Because of Alexander's recent HIV diagnosis, the ALJ ordered additional psychiatric, orthopedic, and internal medical examinations. (Id. at 76, 104.) Judge Steinman also approved submission of the results of a recently authorized MRI exam and scheduled a supplemental hearing. (Id. at 49.)
C. The Second Vocational Expert's Testimony
The ALJ held a second administrative hearing on April 13, 2004. (Id. at 49.) Lynton Stewart, a certified vocational rehabilitation counselor, testified at this hearing. (Id. at 50-52, 54-59, 143.)
The ALJ posed a fifth hypothetical question to Stewart with a variety of modifications. (Id. at 50.) Hypothetical five was based on the results of the new psychiatric, orthopedic, and internal medicine evaluations by Drs. Carroll, Sabourin, and Gerson, respectively. (Id. at 50, 331-36, 341-45, 350.) The ALJ assumed that Alexander does not have social phobia or a panic disorder, has slight limitations for completing detailed or complex tasks, is limited to light work with a mix of sitting and standing six to eight hours each workday, and is able to frequently do overhead work with the upper left extremity. (Id. at 50.) Stewart found that with these limitations, Plaintiff could perform his past work as an optician. (Id. at 50-51.)
The ALJ then altered the fifth hypothetical question and limited Alexander to nonpublic, simple repetitive tasks, with an option of either sitting or standing while working due to fatigue and mild weakness (hypothetical 5A). (Id.) Stewart stated Plaintiff would not be able to perform his past work with these limitations, but he would be able to perform approximately thirty percent of light jobs. (Id.) Examples of jobs available to Alexander under hypothetical "5A" were garment sorter, small product assembler, and agricultural produce washer. (Id. at 51-52.)
The ALJ then asked the vocational expert to include the limitations stated by Alexander's psychiatrist, Dr. Capobianco. (Id. at 52, 296, 437-50.) The doctor stated that Plaintiff "is unable to focus on even minor tasks and needs reminders and refocusing from others." (Id. at 296.) He also opined that Alexander is moderately limited in his daily activities and ability to maintain social functioning and has a marked limitation in maintaining concentration, persistence, and pace. (Id. at 447.) With these limitations, the vocational expert found that Alexander would not be able to perform any work. (Id. at 52.)
IV. THE ALJ'S DECISION
In his decision, the ALJ recounted Plaintiff's medical, work, and educational history, as well as the evidence presented at the administrative hearing, and applied the five-step sequential evaluation process prescribed by federal regulations to the facts in this case. (Id. at 36-42.) Judge Steinman then made the following findings:
1. The claimant meets the nondisability requirements for a period of disability and Disability Insurance Benefits set forth in Section 216(I) of the Social Security Act and is insured for benefits through the date of this decision.
2. The claimant has not engaged in substantial gainful activity since the alleged onset of disability.
3. The claimant is HIV positive, and has depressive disorder NOS, chronic lateral epicondyltis, left shoulder adhesive capsulitis, impairments that are considered "severe" based on the requirements in the Regulations 20 CFR §§ 404.1520(c) and 416.920(b).
4. These medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix I, Subpart P, Regulation No. 4.
5. The undersigned finds the claimant's allegations regarding his limitations are not totally credible for the reasons set forth in the body of the decision.
6. The claimant has the residual functional capacity to lift and/or carry 10 pounds frequently or 20 pounds occasionally. He is able to sit, stand and/or walk about six hours each in a typical workday, but he is limited to no more than frequent use of his left upper extremity for overhead work. He is able to frequently climb, kneel, crouch, crawl, or stoop. Because of mild fatigue and weakness, he should also be allowed the option to sit or stand as needed. He is fu[r]ther limited to simple repetitive tasks in a non-public setting with limited peer and supervisory contact.
7. The claimant's past relevant work as an optician did not require the performance of work-related activities precluded by his residual functional capacity ( 20 CFR §§ 404.1565 and 416.965).
8. The claimant's medically determinable HIV, depressive disorder NOS, chronic lateral epicondylitis, left shoulder adhesive capsulitis do not prevent the claimant from performing his past relevant work.
9. Even if the claimant were unable to perform any past work activity, considering the range of work that the claimant is still capable of performing, in combination with his age, education, and work experience, he is able to perform a significant number of other jobs in the regional and national economy. Examples of such jobs include work as a garment sorter, assembler of small products, and washer of agricultural produce.
10. The claimant was not under a "disability" as defined in the Social Security Act, at any time through the date of this decision ( 20 CFR §§ 404.1520(f) and 416.920(f)).
(Id. at 42-43.) Based on all of the above, the ALJ concluded that Alexander is not eligible for Disability Insurance Benefits or Supplemental Security Income. (Id. at 44.)
V. STANDARD OF REVIEW
To qualify for disability benefits under the Social Security Act, an applicant must show that: (1) He or she suffers from a medically determinable impairment that can be expected to last for a continuous period of twelve months or more or result in death, and (2) the impairment renders the applicant incapable of performing the work that he or she previously performed or any other substantially gainful employment that exists in the national economy. See 42 U.S.C.A. § 423 (d) (1) (A), (2) (A) (West Supp. 2005). An applicant must meet both requirements to be classified as "disabled." Id.
Sections 205(g) and 1631(c)(3) of the Social Security Act allow unsuccessful applicants to seek judicial review of the Commissioner's final agency decision. 42 U.S.C.A. §§ 405(g), 1383(c)(3) (West Supp. 2005). This Court should affirm the Commissioner's decision unless "it is based upon legal error or is not supported by substantial evidence." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n. 1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support [the ALJ's] conclusion[,]" considering the record as a whole. Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). It means "`more than a mere scintilla but less than a preponderance'" of the evidence.Bayliss, 427 F.3d at 1214 n. 1 (quoting Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). The Court must consider the evidence that supports and the evidence that detracts from the ALJ's decision. Frost v. Barnhart, 314 F.3d. 359, 366-67 (9th Cir. 2002) (citations omitted).
To determine whether a claimant is "disabled," the Social Security regulations use a five-step process outlined in 20 C.F.R. § 404.1520. If an applicant is found to be "disabled" or "not disabled" at any step, there is no need to proceed further.Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th Cir. 2005) (citations omitted). Although the ALJ must assist the applicant in developing a record, the applicant bears the burden of proof during the first four steps. Tackett v. Apfel, 180 F.3d 1094, 1098 n. 3 (9th Cir. 1999). If the fifth step is reached, however, the burden shifts to the Commissioner. Id. at 1098. The steps for evaluating a claim are:
Step 1. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is "not disabled" within the meaning of the Social Security Act and is not entitled to disability insurance benefits. If the claimant is not working in a substantially gainful activity, then the claimant's case cannot be resolved at step one and the evaluation proceeds to step two.
Step 2. Is the claimant's impairment severe? If not, then the claimant is "not disabled" and is not entitled to disability insurance benefits. If the claimant's impairment is severe, then the claimant's case cannot be resolved at step two and the evaluation proceeds to step three.
Step 3. Does the impairment "meet or equal" one of a list of specific impairments described in the regulations? If so, the claimant is "disabled" and therefore entitled to disability insurance benefits. If the claimant's impairment neither meets nor equals one of the impairments listed in the regulations, then the claimant's case cannot be resolved at step three and the evaluation proceeds to step four.
Step 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is "not disabled" and is not entitled to disability insurance benefits. If the claimant cannot do any work he or she did in the past, then the claimant's case cannot be resolved at step four and the evaluation proceeds to the fifth and final step.
Step 5. Is the claimant able to do any other work? If not, then the claimant is "disabled" and therefore entitled to disability insurance benefits. If the claimant is able to do other work, then the Commissioner must establish that there are a significant number of jobs in the national economy that claimant can do. There are two ways for the Commissioner to meet the burden of showing that there is other work in "significant numbers" in the national economy that claimant can do: (1) by the testimony of a vocational expert, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. If the Commissioner meets this burden, the claimant is "not disabled" and therefore not entitled to disability insurance benefits. If the Commissioner cannot meet this burden, then the claimant is "disabled" and therefore entitled to disability benefits.Id. at 1098-99 (footnotes and citations omitted); see also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001) (giving an abbreviated version of the five steps).
Section 405(g) permits this Court to enter a judgment affirming, modifying, or reversing the Commissioner's decision. 42 U.S.C. § 405(g). The matter may also be remanded to the Social Security Administrator for further proceedings. Id.
VI. DISCUSSION
A. The ALJ Erred in Finding Plaintiff Could Perform His Past Relevant Work.The ALJ did not resolve Alexander's case through the first three steps of the five-step process laid out in Tackett. (See Admin. R. at 36-41.) At step four, Judge Steinman concluded Plaintiff could perform his past relevant work as an optician. (Id. at 43.)
Alexander argues "[t]he ALJ erred in finding that Plaintiff could perform his past relevant work which was contradict[ed] [by] the testimony of two vocational experts and was not supported by substantial evidence from the record." (Pl.'s Mem. 4.)
At step four of the disability determination, the claimant has the burden of proving he cannot return to his past relevant work.Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002) (citingPinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001)). "Although the burden of proof lies with the claimant at step four, the ALJ still has a duty to make the requisite factual findings to support his conclusion." Pinto v. Massanari, 249 F.3d 840, 844 9th Cir. 2001) (citations omitted). The ALJ's conclusion that Alexander can perform his past relevant work as an optician will be upheld if supported by "substantial evidence" in the record.See Bayliss, 427 F.3d at 1217 (citations omitted). To support the conclusion that Alexander could return to his past work, Judge Steinman was required to examine and compare Plaintiff's "residual functional capacity and the physical and mental demands of [Alexander's] past relevant work." Lewis, 281 F.3d at 1083 (citations and footnotes omitted).
The ALJ stated that Alexander is limited "to simple, repetitive work tasks in a non-public work setting, with limited peer and supervisory contact." (Admin. R. at 41 (emphasis added).) Judge Steinman found Plaintiff could return to work as an optician, but he made no findings regarding public contact or the reasoning level required by this position. (See id. at 41, 225.) Furthermore, the ALJ did not distinguish between an "optician" and a "dispensing optician", although vocational expert Sinclair characterized Alexander's past relevant work as an optician, and vocational expert Stewart characterized it as a dispensing optician. (Compare id. at 221-22 (analyzing work as optician), with id. at 225-26 (analyzing work as dispensing optician).) The distinction is important.
The Dictionary of Occupational Titles ("DOT") describes a dispensing optician as a clerical and sales occupation with a General Educational Development ("GED") reasoning level of four, which requires "[application of] principles of rational systems to solve practical problems and deal with a variety of concrete variables. . . ." U.S. Dep't of Labor, 1 Dictionary of Occupational Titles § 299.361.010, at 237 (rev. 4th ed. 1991); 2 id. app. C at 1009-11. The position also requires public contact. 1 id. § 299.361.010 (assisting clients in selecting frames, measuring clients' eyes, instructing clients in care of lenses, and selling optical goods).
Alexander's testimony suggests that he was a "dispensing optician," who dealt with the public. He stated that people ask him to fix their glasses which he used to be able to do. (Admin. R. at 101.) The DOT describes an "optician" as a benchwork occupation, with almost no public contact and a GED reasoning level of four. U.S. Dep't of Labor, 2 Dictionary of Occupational Titles § 716.280-014, at 719.
The reasoning level for both occupations is higher than the level for performing simple repetitive tasks, which would correspond to a GED reasoning level of one. 2 id. app. C at 1009-11; see Hall v. Barnhart, No. 03-299-P-C, 2004 U.S. Dist. LEXIS 16928, at *6-8 (D. Me. Aug. 25, 2004) (finding jobs with GED reasoning levels of two and three "inconsistent with a limitation to repetitive work entailing simple instruction"). The DOT listing cited by the ALJ is inconsistent with the limitations he placed on Alexander's residual functional capacity.
Judge Steinman relied on vocational expert testimony to find Plaintiff capable of returning to his past work. (Admin. R. at 41.) However, the ALJ's determination is not supported by the record. The first vocational expert, Bonnie Sinclair, testified that Alexander's past work "exceeds simple repetitive tasks." (Id. at 101-02.) In response to the second hypothetical question limiting Alexander to medium work and simple repetitive tasks, she again responded that Plaintiff could not perform his past relevant work. (Id. at 102.)
The ALJ presented the second vocational expert, Lynton Stewart, with a hypothetical question in which Plaintiff only had mild physical limitations and no social phobia or panic disorder. (Id. at 50.) Stewart responded Alexander would be able to perform his past relevant work. (Id. at 50-51.) The ALJ then altered the hypothetical to add that Plaintiff would be limited to simple repetitive tasks in a nonpublic setting. (Id. at 51.) Stewart testified Alexander "would not be able to perform his past work." (Id.)
The determination that Plaintiff was able to perform his past relevant work is not supported by substantial evidence in the record. The ALJ stated that Plaintiff was limited to simple repetitive tasks in a nonpublic setting. This finding precludes the conclusion that Alexander could perform his past relevant work.
Judge Steinman also decided that given Alexander's limitations — age, education, and work experience — he would be able to perform other jobs in the regional and national economy. (Id. at 43.) Both vocational experts testified that, with the limitations assumed by the ALJ, Plaintiff would be able to perform other work in the national economy. (See id. at 43, 102-03.)
If substantial evidence in the record supports the experts' conclusions that Alexander could perform other work in the national economy, an unsupported finding that Plaintiff is able to perform his past relevant work is harmless error. See Smith v. Barnhart, 388 F.3d 251, 253 (7th Cir. 2004) (stating that remand after ALJ's erroneous fourth step determination would be futile if vocational expert testimony established that claimant could perform other jobs); Curry v. Sullivan, 925 F.2d 1127, 1129 (9th Cir. 1990) (holding the harmless error rule applies in Social Security Disability cases). "`The testimony of [a] vocational expert is substantial evidence that [the Plaintiff] is capable of engaging in substantial gainful activity which exists in the national economy.'" Hall v. Sec'y of Health, Educ. Welfare, 602 F.2d 1372, 1376 (9th Cir. 1979) (quoting Chavies v. Finch, 443 F.2d 356, 358 (9th Cir. 1971)); see also Strongson v. Barnhart, 361 F.3d 1066, 1073 (8th Cir. 2004).
To determine whether the ALJ had an adequate basis for deciding whether Alexander could perform other jobs in the economy, the Court must evaluate the assumptions contained in the hypotheticals.
Hypothetical questions posed to the vocational expert must set out all the limitations and restrictions of the particular claimant. . . . The testimony of a vocational expert "is valuable only to the extent that it is supported by medical evidence." The vocational expert's opinion about a claimant's residual functional capacity has no evidentiary value if the assumptions in the hypothetical are not supported by the record.Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989). The hypothetical must include pain and other limitations supported by the record. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). But the ALJ need not include limitations that he finds do not exist. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
As discussed below, this Court recommends a remand to the ALJ to consider the weight to be given to the opinion of Alexander's treating psychiatrist, Dr. Capobianco. See discussion supra Part VI.B. That proceeding may impact the ALJ's assessment of Alexander's subjective complaints of pain and the limitations that are properly included in questions to vocational experts. The proceedings on remand may require a corresponding modification here.
B. The ALJ Improperly Rejected the Opinion of Plaintiff's Treating Psychiatrist.
Alexander contends that the ALJ failed to adequately weigh the opinions of Plaintiff's treating psychiatrist, Dr. Capobianco. (Pl.'s Mem. 10-20.) The Ninth Circuit categorizes physicians and their opinions as follows:
(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians). As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant. . . . Even if the treating doctor's opinion is contradicted by another doctor, the Commissioner may not reject this opinion without providing "specific and legitimate reasons" supported by substantial evidence in the record for so doing.Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citingMurray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)).
Dr. Capobianco's most recent (April 12, 2004) opinion was that Alexander's mental impairments (memory impairment, depression, and anxiety) resulted in moderate restrictions on daily living, moderate difficulties in maintaining social functioning, marked difficulties in maintaining concentration, persistence, and pace, and one to two episodes of decompensation. (Admin. R. at 438, 440, 442, 447.) Both vocational experts answered to hypothetical questions which included these restrictions and testified that Plaintiff would not be able to perform any work. (Id. at 52, 103.)
In contrast, Dr. Carroll, the nontreating examining psychiatrist, found only a slight limitation in Alexander's ability to complete detailed and complex tasks, and the doctor saw no evidence that Plaintiff suffered from social phobia or panic disorder. (Id. at 349-50.) Dr. Carroll concluded Alexander had the ability to interact appropriately with the public and coworkers. (Id. at 350.) He believed some of Plaintiff's depression was due to his unemployment. (Id.) The medical source statement completed by Dr. Carroll notes a slight restriction in Alexander's ability to carry out detailed instructions, but no other impairments were noted. (Id. at 351-52.)
The ALJ rejected Dr. Capobianco's assessment in favor of the opinion of Dr. Carroll, a nontreating examining physician. The opinions of treating physicians, including Dr. Capobianco, are entitled to deference. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Still, "the ALJ may reject the opinion of a treating physician in favor of a conflicting opinion of an examining physician if the ALJ makes `findings setting forth specific, legitimate reasons for doing so that are based upon substantial evidence in the record.'" Id. (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 2002)); see Lester, 81 F.3d at 830. "The ALJ can `meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.'" Thomas, 278 F.3d at 957 (citation omitted).
The ALJ gave four reasons for rejecting Dr. Capobianco's opinion. First, it is "extreme." (Admin. R. at 40.) Second, the doctor is "following the efforts of his patient to secure disability benefits." (Id.) Third, the treating physician did not submit current notes to support his assessment and simply "indicated a number of mental status findings on a checklist form. . . ." (Id.) Fourth, Dr. Capobianco's assessment was "inconsistent with the objective mental status findings or the findings of [Dr. Carroll]." (Id.)
The ALJ's first reason is not legitimate. He "rejects Dr. Capobianco's assessment as extreme." (Id.) However, the April 12, 2004, Psychiatric Review Technique form filled out by Dr. Capobianco was not exaggerated. (Id. at 437-50.) In describing Alexander's functional limitations on a scale from "none" to "extreme," two were designated "moderate" and one was "marked." (Id. at 447.) This is not an instance where the doctor's recommendations were "so extreme as to be implausible and were not supported by any findings made by any doctor. . . ." Rollins v. Massanari, 261 F.3d at 856. A conclusion that the physician's opinion is "extreme" must be supported by evidence. Id. The ALJ does not specify any improprieties in Dr. Capobianco's assessment of Plaintiff.
Judge Steinman's second criticism of Dr. Capobianco is that "[i]t is apparent from reviewing his records that this treating psychiatrist is following the efforts of his patient to secure disability benefits." (Admin. R. at 40.) If the ALJ is implying an ulterior motive, there is no support for it in the record.
In Lester v. Chater, the ALJ had rejected the examining psychologist's opinion because his reports "`were clearly obtained by claimant's attorney for the purpose of litigation.'" The court explained: "The purpose for which medical reports are obtained does not provide a legitimate basis for rejecting them."Lester, 81 F.3d at 832. The ALJ "`may not assume that doctors routinely lie in order to help their patients collect disability benefits.'" (Id. (quoting Ratto v. Sec'y, 839 F. Supp. 1415, 1426 (D. Or. 1993)). Judge Steinman's second reason is not a specific, legitimate reason supported by the evidence.
The ALJ's third reason for rejecting the treating psychiatrist's opinion is that Dr. Capobianco did not submit current treating notes to support his "checklist" assessment. (Admin. R. at 40.) However, the record reflects several pages of treatment notes from Dr. Capobianco. (Id. at 248-55, 281-94.) His records begin with an initial assessment workup on November 27, 2002, and include notes for sessions on January 27, March 11, March 20, May 5, June 10, and July 22, 2003. (Id.)
On April 12, 2004, Dr. Capobianco completed a Psychiatric Review Technique form addressing Plaintiff's organic mental disorders, affective disorders, and anxiety-related disorders. (Id. at 437-48.) The doctor subsequently supplied a summary report of Plaintiff's condition, dated June 14, 2004, which was consistent with an earlier report, dated September 25, 2003. (Compare id. at 23-24, with id. at 295-96.) On June 21, 2004, he also completed a mental assessment review form on Alexander. (Id. at 25-30.)
It is true that the most recent treatment notes from Dr. Capobianco are dated July 22, 2003. (Id. at 281.) However, those notes and preceding notes contain many of the same diagnoses, assessments, and symptoms found in the doctor's April and June 2004 assessments. (Compare id. at 281-86, with id. at 23-30, and 437-48.) Under these circumstances, the failure to submit current treating notes is not a legitimate reason for rejecting Dr. Capobianco's opinion, especially when the earlier treating notes are consistent with the doctor's subsequent assessments. Cf. Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (holding that treating psychiatrist's opinion was properly rejected where psychiatrist gave opinion without having examined the claimant in several years).
The objection to Dr. Capobianco's "checklist" assessment is not a legitimate reason for discrediting the opinion. This criticism incorrectly suggests that there are no detailed analyses in the records. The reliability of "[f]orm reports in which a physician's obligation is only to check a box or fill in a blank" is suspect when the forms "`are unaccompanied by thorough written reports. . . .'" Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993); accord Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (holding that ALJ properly rejected therapist's evaluations which were in the form of check-off reports with no explanation for the bases of their conclusions). Dr. Capobianco's 2004 assessments, however, are accompanied by detailed treating records which are not stale and corroborate his reports.
The ALJ's fourth reason for rejecting Dr. Capobianco's opinion is that it was inconsistent with objective mental status findings and the findings of Dr. Carroll, the consulting psychiatrist. (Admin. R. at 41.) Judge Steinman does not identify the objective mental status findings he believes are inconsistent with Dr. Capobianco's assessment. Still, the stated reason is legitimate. The question is whether it is specific and supported by substantial evidence in the record.
There is authority holding that opinions of nonexamining or nontreating physicians may serve as "substantial evidence when they are consistent with independent clinical findings or other evidence in the record." Thomas, 278 F.3d at 957. However, other cases hold that a conclusory statement that a treating physician's opinion is "contrary to the clinical findings in the record and the claimants activities and interests," is not specific and is "too broadly stated." McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (citing Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988)).
Here, the ALJ's assertion that Dr. Capobianco's opinion is inconsistent with objective mental status findings lacks specificity and appears to be contrary to the bulk of the medical evidence. The treating physician's assessment is corroborated by Alexander's other treating physicians.
In a letter dated January 25, 2001, Dr. Simon indicated he believes Plaintiff to be "an individual with categorical dysfunction that is chronic and fairly entrenched." (Admin. R. at 325.) Over the course of Alexander's treatment with Dr. Hicks from May 24, 2001, until July 11, 2002, Plaintiff was prescribed a variety of drugs to treat anxiety and depression. (Id. at 228-34.) The GAF score assigned to Alexander by Dr. Hicks on May 24, 2001, was fifty-one, which indicates "moderate difficulty in social, occupational, and school functioning." (Id. at 229);DSM-IV-TR, supra, at 34. This is consistent with Dr. Capobianco's finding that Plaintiff was moderately limited in his activities of daily living and maintaining social functioning. (Admin. R. at 447.)
Dr. Hubbard, who saw Alexander on July 22, 2002, and October 14, 2002, prescribed an antidepressant and an antianxiety medication. (Id. at 239.) Mel Mackler evaluated Plaintiff on a weekly basis from July 11, 2002, through March 20, 2003, and diagnosed Alexander with social phobia and major depressive disorder. (Id. at 276.) On March 11, 2003, Mackler told Dr. Capobianco that Alexander "is more functional than he presents — no suicidal intent or plan." (Id. at 285.) Nine days later, on March 20, 2003, Mackler wrote that it was questionable whether Plaintiff would ever be able to function successfully for a long enough period to sustain a job. (Id. at 277.) Finally, Dr. Small's February 7, 2004, opinion and Dr. Licht's reports from November 25, 2003, and January 26, 2004, corroborate Dr. Capobianco's assessment of Alexander's memory problems. (See id. at 353, 409, 412, 438.)
Dr. Carroll's assessment, on which the ALJ bases his decision, diagnosed Alexander with a depressive disorder and psychosocial and environmental problems, but found no evidence of social phobia or panic disorder. (Id. at 349-50.) The doctor acknowledged that Plaintiff had a slight limitation in following complex or detailed tasks. (Id.)
The decision to credit Dr. Carroll's opinion over that of Dr. Capobianco is "too broadly stated" and requires more specificity.McAllister, 888 F.2d at 603. Therefore, this case should be remanded to the ALJ for consideration of the opinions of Dr. Capobianco and whether there are specific "inconsistencies with objective mental status findings" that justify crediting the opinion of Dr. Carroll over the opinion of the treating physician, Dr. Capobianco.
C. The ALJ Improperly Rejected Plaintiff's Subjective Complaints.
Plaintiff argues that Judge Steinman rejected Alexander's subjective claims of pain and limitations for "three invalid reasons — Plaintiff's activities of daily living, a lack of medical evidence and a lack of evidence of sleep deprivation." (Pl.'s Mem. 21.)
The ALJ concluded that Alexander's "allegations of disabling limitations are not credible to the extent alleged." (Admin. R. at 42.) Judge Steinman found "[t]he evidence fails to establish the presence of a mental impairment which may result in limitations to a degree which would preclude sustained, entry level work, at any exertional level." (Id.) He also believed there was "no clinical evidence of significant sleep deprivation[,]" and Plaintiff's daily activities were inconsistent with "significant subjective limitations." (Id.)
An ALJ may reject a claimant's subjective pain or symptom testimony entirely if the claimant fails to produce any objective medical evidence of an impairment that could reasonably be expected to produce the claimed symptoms or pain. Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986). The severity of pain need not be proved by objective medical evidence; the medical evidence must only show that some degree of the claimed symptom could result from the impairment. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (citing Orteza v. Shalala, 50 F.3d 748, 749-50 (9th Cir. 1994); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). The level of pain experienced from a given physical impairment varies from person to person. Id. (citing Fair v. Bowen, 885 F.2d at 601). The severity of the pain is an individual, subjective phenomenon that no social security claimant is required to prove through objective medical evidence. Id. n. 2.
Plaintiff presented objective medical evidence of HIV, depressive disorder, chronic lateral epicondylitis, and left shoulder adhesive capsultis, all of which Judge Steinman found severe. (Admin. R. at 37.) Once Alexander establishes an impairment which "`could reasonably be expected to produce pain or other symptoms[,]'" the ALJ may not reject his subjective testimony without "`specific findings stating clear and convincing reasons for doing so.'" Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004) (quotingSmolen, 80 F.3d at 1281-82, 1284). "Unless there is affirmative evidence showing that the claimant is malingering, the Commissioner's reasons for rejecting the claimant's testimony must be `clear and convincing.'" Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citations omitted).
Judge Steinman did not find that Alexander was malingering. (See Admin. R. at 50.) Therefore, he was required to give specific, clear and convincing reasons supported by the record for rejecting Plaintiff's subjective complaints. See Regennitter v. Comm'r of the Soc. Sec. Admin., 166 F.3d 1294, 1296 (9th Cir. 1999) (finding reasons given by ALJ not sufficient when not supported by substantial evidence in the record).
The ALJ must also state with specificity the symptoms he is rejecting as not credible and the facts in the record on which he is basing his decision. Smolen, 80 F.3d at 1284; see also Varney v. Sec'y of Health Human Servs. (Varney I), 846 F.2d 581, 584 (9th Cir. 1988) (holding that ALJ's failure to "isolate particular complaints of pain and discuss the evidence suggesting that those complaints [we]re not credible. . . . [was] improper as a matter of law"), modified on reh'g, Varney v. Sec'y of Health Human Servs. (Varney II), 859 F.2d 1396, 1401 (9th Cir. 1988).
In weighing a claimant's credibility, the ALJ may consider his reputation for truthfulness, inconsistencies either in his testimony or between his testimony and his conduct, his daily activities, his work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which he complains.Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). The ALJ must also consider the claimant's work record, observations of physicians and other third parties, precipitating and aggravating factors, and functional restrictions caused by the symptoms. Smolen, 80 F.3d at 1284.
Judge Steinman stated that "[t]he evidence fails to establish the presence of a mental impairment which may result in limitations to a degree which would preclude sustained, entry level work, at any exertional level." (Id. at 42.) This conclusion appears to be premised upon rejecting the opinions held by Plaintiff's treating physician. However, as discussed above, the ALJ improperly rejected the opinion of Dr. Capobianco.See discussion supra Part VI.B.
Alexander was seen by Dr. Capobianco and was diagnosed with anxiety and depressive disorders. (Id. at 255.) The treating physician noted that Plaintiff had a depressive syndrome which resulted in sleep disturbance, psychomotor agitation or retardation, decreased energy, feelings of guilt or worthlessness, difficulty concentrating or thinking and thoughts of suicide. (Id. at 440.) Both vocational experts testified that Alexander would not be able to do any work under Dr. Capobianco's assessment. (Id. at 52, 103.)
Judge Steinman's first stated reason for rejecting Alexander's subjective pain testimony is incomplete. As discussed above, the Court is recommending that this matter be remanded to provide more specificity in determining the weight to be given to Dr. Capobianco's opinion. That analysis impacts the ALJ's statement that "[t]he evidence fails to establish the presence of a mental impairment which may result in limitations to a degree which would preclude sustained, entry level work, at any exertional level." (Id. at 42.) Consequently, this rationale cannot serve as a clear and convincing reason for rejecting Plaintiff's subjective symptom testimony.
The ALJ also held that "[Alexander's] allegations of significant limitations are not borne out in the medical evidence." (Id. at 42.) Judge Steinman is required to "point to specific facts in the record which demonstrate that [Alexander] is in less pain than [he] claims." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The only symptom the ALJ rejects with specificity is sleep deprivation. He found "no clinical evidence of significant sleep deprivation." (Admin. R. at 42.) This is not supported by the record.
Mel Mackler, Plaintiff's therapist, states in his March 20, 2003, summary to the DSS that Alexander suffers from insomnia. (Id. at 276.) Although barely decipherable, in his December 20, 2001, and June 28, 2002, treating notes, Dr. Hicks appears to state that Alexander is "not sleeping well" and antidepressants were not helping. (Id. at 231, 233.) Dr. Capobianco diagnosed Plaintiff with sleep disturbances in his psychiatric evaluation on April 12, 2004, and had previously prescribed Restoril, a sleep aid, for sleep deprivation. (Id. at 286, 440.) Even Dr. Carroll, whose opinion the ALJ relied on in determining Alexander's mental residual capacity, noted that Plaintiff was taking Temazepam, the generic form of Restoril. (Admin. R. at 41, 348); A-Z Health Guides from WebMD: Drugs, Temazepam Oral, http://www.webmd.com/ drugs-8715-Temazepam+Oral.aspx (last visited Feb. 28, 2006.)
Finally, although the ALJ refers to the absence of clinical evidence of sleep disturbances, he did not discuss other evidence corroborating sleep deprivation. For example, the third-party Daily Activities Questionnaires from David Tworkowski state that sometimes Alexander "can't sleep for days." (Id. at 180-81, 208-09.) Judge Steinman's second reason for rejecting Alexander's subjective complaints is not clear and convincing. In any event, "a finding that the claimant lacks credibility cannot be premised wholly on a lack of medical support for the severity of his pain." Light, 119 F.3d at 792 (citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)).
The ALJ's final reason for rejecting Plaintiff's pain testimony is that Alexander's activities of daily living (part-time work, watching television, caring for his dogs, going to the park, occasionally shopping with friends, and doing household chores such as dishes, laundry, and cooking) are inconsistent with "significant subjective limitations." (Admin. R. at 42.) "With respect to the claimant's daily activities, the ALJ may reject a claimant's symptom testimony if the claimant is able to spend a substantial part of [the] day performing household chores or other activities that are transferable to a work setting." Smolen, 80 F.3d at 1284 n. 7 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). However, "many home activities may not be easily transferable to a work environment where it might be impossible to rest periodically or take medication." Id. (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
At the October 31, 2003, hearing, Plaintiff testified that he works part-time (seven to ten hours per week), goes to the park occasionally, and makes his own lunch. (Admin. R. at 65, 90, 93.) Questionnaires filled out by Alexander and his landlord confirm that he spends a considerable amount of time watching television and that he sometimes goes grocery shopping. (Id. at 169, 174-76, 180-81, 183, 209.)
However, there are a number of inconsistencies regarding Alexander's daily activities, and the ALJ's determinations are not entirely reflected in the record. In the reconsideration disability report dated January 3, 2003, Plaintiff wrote that he did not leave the house anymore, except to walk his dog. (Id. at 169.) Plaintiff only walked his neighbor's dog for a couple of weeks. (Id. at 97.) Judge Steinman's reference to Alexander's caring for "[multiple] dogs" is not persuasive. (See id. at 42.)
Additionally, Alexander stated that if he goes shopping alone, he has panic attacks and has to have a friend pick him up and finish shopping for him. (Id. at 89, 169.) The basis for the ALJ's characterization, on the other hand, that Plaintiff is comfortable shopping with friends is not apparent from the record.
Judge Steinman also stated Alexander does chores, such as dishes, laundry, and cooking. (Id. at 42.) However, Plaintiff no longer does household tasks. (Id. at 95.) He still occasionally makes himself meals and cleans his room, but his landlord prepares some of Alexander's meals, does his laundry and most of the household chores. (Id. at 93-95.) Alexander also stated that he does not bathe or change his clothes as much as he used to. (Id. at 94-95.) There is no evidence that Plaintiff does dishes, and the record is ambiguous regarding whether he or his landlord does the laundry. (Compare id. at 175, with id. at 94.)
The Ninth Circuit held in Curry v. Sullivan, 925 F.2d at 1130 (citing Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989), that "tak[ing] care of . . . personal needs, prepar[ing] easy meals, do[ing] light housework, and shop[ing] for some groceries . . . [are] such activities [that] may be seen as inconsistent with the presence of a condition which would preclude all work activity." However, in Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001), the plaintiff shopped for groceries, socialized, walked at the mall, and swam; the court still found her complaints credible because some of these activities were not transferable to a work setting, and she did not engage in them for a substantial part of the day.
Likewise, Plaintiff does not appear to do anything for a substantial part of the day. (Admin. R. at 65, 87-90, 93, 169). He describes a typical day as one in which he wakes up, gets out of bed two hours later, showers, brushes his teeth, makes himself lunch, and goes for a short walk. (Id. at 93.) Then, he comes home and sometimes just lies around. (Id.)
Additionally, Alexander complains of chronic fatigue. (Id. at 68.) The activities the ALJ lists are ones which allow Plaintiff to periodically rest. (See id. at 42); see Smolen, 80 F.3d at 1284 n. 7 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)) (reminding that daily activities that allow periodic rest may not easily transfer to a work environment).
From the record, the only activity that Alexander engages in which may be transferable to a work setting is the light cleaning he does between two to three hours a day, totaling seven to ten hours a week, as part-time employment. (Admin. R. at 46, 88.) Two to three hours is not a "substantial part of the day." Even when performing part-time work, Plaintiff was tired and stopped in the middle of the job to rest; he would also call in sick twice a week. (Id. at 96.) Sporadic activities followed by periods of rest are not inconsistent with subjective complaints of severe pain. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). The ALJ's reference to Plaintiff's daily activities is not a clear and convincing reason to discredit his subjective pain testimony.See Batson, 359 F.3d at 1196.
Two of the three reasons given by Judge Steinman for rejecting Alexander's subjective complaints and symptoms testimony are not clear and convincing or supported by substantial record evidence. However, as discussed above, because the ALJ rejected the opinion of the treating physician and relied on the absence of evidence to establish a mental impairment which would preclude sustained, entry level work, a remand is required. See discussion Part VI.B. D. This Matter Should Be Remanded For Further Proceedings.
It is within the Court's discretion to reverse and remand for further proceedings or for an award of benefits. See Winans v. Bowen, 853 F.2d at 647; see 42 U.S.C.A. § 405(g). "If additional proceedings can remedy defects in the original proceedings, a social security case should be remanded." Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (quoting Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)).
At the first administrative hearing, the ALJ posed a hypothetical to the vocational expert which included limitations based on Alexander's testimony. (Admin. R. at 104.) Sinclair stated that the limitations would preclude Alexander from his former work or any other work. (Id.) Additionally, the ALJ posed a hypothetical to both vocational experts based on Dr. Capobianco's assessment, and both found the Plaintiff unable to work at all. (Id. at 52, 103.) If Plaintiff's subjective testimony and Dr. Capobianco's opinion are accepted as true, the vocational experts' testimony establish that Alexander is unable to work.
Alternatively, if the Commissioner provides the requisite specific and legitimate reasons for concluding that the testimony of Alexander's treating physician is "inconsistent with objective mental status findings," the ALJ can attribute the appropriate weight to Dr. Capobianco's opinions. In turn, the ALJ can assess the credibility of Alexander's subjective limitations in light of any mental impairment that might preclude any work in the national economy.
VII. CONCLUSION
For the reasons set forth above, Plaintiff's Motion for Reversal and/or Remand should be GRANTED; Defendant's Cross-Motion for Summary Judgment should be DENIED. This matter should be remanded to the Administrative Law Judge for further proceedings.This Report and Recommendation will be submitted to the United States District Court judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b) (1). Any party may file written objections with the Court and serve a copy on all parties on or before March 20, 2006. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed on or before March 27, 2006. The parties are advised that failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.