CHARLES F. EICK

MEMORANDUM OPINION

AND ORDER OF REMAND

Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.

PROCEEDINGS

Plaintiff filed a complaint on August 6, 2013, seeking review of the Commissioner's denial of disability benefits. The parties filed a consent to proceed before a United States Magistrate Judge on August 21, 2013. Plaintiff filed a motion for summary judgment on January 6, 2014. Defendant filed a cross-motion for summary judgment on February 5, 2014. The Court has taken the motions under submission without oral argument. See L.R. 7-15; "Order," filed August 13, 2013.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

Plaintiff, a former dispatcher, asserts disability based on a combination of alleged mental and physical impairments (Administrative Record ("A.R.") 46-446). The Administrative Law Judge ("ALJ") found Plaintiff "has the following severe impairments: degenerative disc disease of the cervical and lumbar spine, bilateral carpal tunnel syndrome, and depressive disorder" (A.R. 16). The ALJ also found, however, that Plaintiff retains the residual functional capacity to perform a limited range of light work with only the following mental limitations: "mild-to-moderate limitations in understanding and remembering tasks, sustaining concentration and persistence, socially interacting with the general public and adapting to workplace changes" (id.). A vocational expert testified that a person retaining such a capacity could perform Plaintiff's past relevant work as a dispatcher (A.R. 58-59). The ALJ appears to have relied on this testimony in finding Plaintiff not disabled (A.R. 23). The Appeals Council denied review (A.R. 1-3).

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).

DISCUSSION

Plaintiff contends, inter alia, that the ALJ erred in failing to explain why the residual functional capacity assessment did not adopt certain opinions of the consultative examining psychiatrist (Plaintiff's Motion at 7-9). As discussed below, the Court agrees.

Consultative examining psychiatrist Dr. Jarvis Ngati opined, in pertinent part, that Plaintiff's

ability to interact with coworkers . . . may be moderately limited. . . . Her ability to maintain regular attendance in the workplace and complete a normal workday and workweek without interruptions from a psychiatric condition is moderately limited . . . and her ability to deal with the usual stresses encountered in the workplace is moderately
limited. . . . (A.R. 391).

Plaintiff contends that the ALJ should have adopted these limitations (and perhaps others) into the ALJ's assessment of Plaintiff's residual functional capacity. Plaintiff contends that the ALJ erred by implicitly rejecting Dr. Ngati's opinions regarding these limitations. Plaintiff cites cases including Regennitter v. Commissioner, 166 F.3d 1294 (9th Cir. 1999), Lester v. Chater, 81 F.3d 821 (9th Cir. 1995) and Andrews v. Shalala, 53 F.3d 1035 (9th Cir. 1995) for the proposition that "the failure to provide specific and legitimate reasons . . . supported by substantial evidence in the record for rejecting the opinion of an examining doctor when contradicted by another doctor is reversible error. . . ." (Plaintiff's Motion at 7) (citations and quotations omitted).

Defendant responds to Plaintiff's contentions as follows:

Plaintiff contends that the ALJ failed to explain why he did not accept Dr. Ngati's opinion that Plaintiff might have moderate limitations in her ability to interact with co-workers and the public, maintain regular attendance in the workplace and to complete a normal workday and workweek without interruption, and to deal with the usual stresses encountered in the workplace (Pl's MSJ, p. 8). However, the ALJ's RFC finding encompasses these limitations. Although Dr. Ngati opined that Plaintiff had moderate limitations in
these areas (social interaction, concentration and persistence (such as that needed to complete a workday), and ability to respond to changes in a routine), Drs. Khan and Salib opined that Plaintiff would have little, if any limitations. Accordingly, the ALJ resolved the conflict in the medical evidence as he is charged with doing, and found Plaintiff had mild-to-moderate limitations in these mental functional areas. . . .

Defendant's response is not well taken. Contrary to the response, "the ALJ's RFC finding" does not "encompass[ ]" "moderate limitations in [Plaintiff's] ability to interact with co-workers . . . maintain regular attendance in the workplace[,] . . . complete a normal workday and workweek without interruption and . . . deal with the usual stresses encountered in the workplace." Compare Defendant's Motion at 7 and A.R. 391 with A.R. 16. Separate and apart from the case law. Social Security Ruling 96-8p provides: "[i]f the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." The ALJ's decision does not contain any specific explanation regarding why the ALJ failed to adopt into "the RFC assessment" the omitted opinions of Dr. Ngati (A.R. 16-23). The ALJ thereby erred. See id. The nature of the omitted opinions, the vocational expert's reliance on the ALJ's residual functional capacity assessment, and the ALJ's apparent reliance on the vocational expert's testimony preclude the Court from deeming the error harmless.

Because the circumstances of this case suggest that further administrative review could remedy the ALJ's error, remand is appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see generally INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative determination, the proper course is remand for additional agency investigation or explanation, except in rare circumstances).

CONCLUSION

For all of the foregoing reasons, Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.

LET JUDGMENT BE ENTERED ACCORDINGLY.

__________

CHARLES F. EICK

UNITED STATES MAGISTRATE JUDGE