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examining the requirements of the GED reasoning level of 2 and finding that "[t]he need to follow 'detailed' and 'involved' instructions exceeds the ALJ's limitation of plaintiff to 'simple, routine tasks.' Such instructions are not simple and uncomplicated, or limited to one or two steps."
Summary of this case from Ober v. Comm'r of the Soc. Sec. Admin.Opinion
No. C-02-3315EDL
August 28, 2003
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMANDING
I. INTRODUCTION
On February 24, 1998, Plaintiff James Paul Allen ("Allen") filed his application for disability insurance benefits under Title n of the Social Security Act, alleging neck, left shoulder and interscapular pain, as well as anxiety and depression, resulting from an injury at work on May 16, 1995. AR 150-1158, 198, 293. Plaintiff also suffers depression and anxiety as a result of killing someone while driving drunk in 1992. AR 33. On January 11, 2000, plaintiff appeared with counsel at a hearing before the ALJ. On March 17, 2000, the Administrative Law Judge ("ALJ") issued a "partially favorable" decision, finding that plaintiff's physical and mental impairments rendered him disabled from August 31, 1995, through March 31, 1998. AR 28-43. However, the ALJ found that on April 1, 1998, plaintiff regained the residual functional capacity ("RFC") to perform a limited range of light and sedentary work. AR42. The ALJ noted that plaintiff was restricted from lifting objects above shoulder level; repetitive bending or stooping; complex, varied or complicated mental tasks; and direct contact with the public. AR 42. A vocational expert testified that with these restrictions plaintiff could still perform a significant number of jobs in the regional and national economy. AR 42-43.
On May 16, 2000, plaintiff filed a request for review of the ALJ's hearing decision, and he submitted evidence to the Appeals Council six times between May 2000 and April 2002. On May 6, 2002, July 10, 2002, and September 25, 2002, the Appeals Council denied plaintiff's request for review, each time concluding that there was no basis under the Social Security Administration regulations for granting a review. AR 8-19.
On May 27, 2003, plaintiff filed a motion for summary judgment and/or remand ("Motion") challenging the final decision of the Commissioner of Social Security denying his benefits. On June 24, 2003, defendant opposed the motion and filed a cross-motion for summary judgment ("Cross-motion"). On July 22, 2003, plaintiff filed a reply.
II. STANDARD OF REVIEW
The district court reviews the findings of fact in the final decision to determine whether they are supported by substantial evidence in the whole record and not based on legal error. 42 U.S.C. § 4O5(g);Desrosiers v. Secretary of H.H.S., 840 F.2d 573, 575-76 (9th Cir. 1988). A proposition supported by substantial evidence is one that a reasonable mind might accept as adequate to support a conclusion.Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997); seealso Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997) ("Substantial evidence is more than a scintilla, but less than a preponderance.").
The court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Jamerson, 112 F.3d at 1066 (quoting Magallenes v. Bowen. 881 F.2d 747, 750 (9th Cir. 1997)). If "the evidence is susceptible to more than one rational interpretation," the Commissioner's decision should be upheld.Sandgathe, 108 F.3d at 980. The court should not reweigh the evidence on review. Id.
III. SUMMARY OF EVIDENCE BEFORE ALJ
1. Dr. Fox
A. Physical Impairments
On January 28, 1998, plaintiff had an MRI scan of the neck, which showed that "there was a solid fusion at C5-C6 with resolution of the prior disc problem, but there was a new, small central disc bulge at C4-C5." AR 244. Dr. Fox, plaintiff's treating neurologist, stated on February 17, 1998 that surgery was not warranted. AR 331. Dr. Fox further opined that it was reasonable for plaintiff to "enter a work simulation and exercise program . . . with the goal to return him to his usual and customary occupation . . . as a pipe fitter/plumber." AR 331.
On April 1, 1998, Dr. Fox noted that plaintiff was encouraged by the work hardening and work simulation and was pursuing an independent gym membership because he was denied authorization for physical therapy. AR 328-329. Dr. Fox's May, July and August 1998 reports are similar. AR 322-327.
2. Dr. Shortz
On July 10, 1996, neurosurgeon Roger Shortz, M.D., F.A.C.S., performed surgery on plaintiff-cervical spine, anterior cervical diskectomy and fusion at C5-6. AR 196-97. In February 1997, Dr. Shortz reported that plaintiff was temporarily totally disabled, but that his condition had "improved" since the surgery. AR 293-295. On June 25, 1998, Dr. Shortz reported that plaintiff's condition had changed from "temporarily totally disabled" to "permanent and stationary." AR 283.
3. Dr. Sigurdson
On March 23, 1998, consulting orthopedic surgeon Jon F. P. Sigurdson, M.D., F.R.C.S., diagnosed plaintiff with cervical disc degeneration, postlaminectomy syndrome and depression. AR 246. Dr. Sigurdson reported that, while the injury precluded plaintiff from performing heavy lifting and repeated bending or stooping, plaintiff's "condition [was] permanent, stationary and ratable, and [had] just become so as of [the March 28, 1998] evaluation." AR 246.
4. Dr. Ross
On April 1, 1998, Dr. William Ross conducted a consultative orthopedic evaluation of plaintiff. Dr. Ross noted a "limited range of motion of [plaintiff's] left shoulder and significant limited range of motion of his neck." AR 252. Dr. Ross diagnosed plaintiff with "[s]tatus post-op C5-6 diskectomy and fusion," and noted "MRI evidence of a small central disk bulge of C4-5 and a spinal senosis at C5-6." AR 252. Dr. Ross concluded that plaintiff's condition would "significantly limit any prolonged positioning of his neck," that he "would have some difficulty doing any work at or above shoulder level," that he "would have some limitation in terms of lifting more than 20 lbs.," b that he "could frequently lift and carry objects weighing up to 10 lbs. His combined condition wou seemingly impose severe restrictions on his ability to work." AR 252.
5. Dr. Schmitz
Thomas D. Schmitz, M.D., an orthopedic surgeon, testified at the hearing as an expert witness but he did not complete a report for the record. Dr. Schmitz opined that plaintiff's cervical spine conditions do not equal the level of severity in the Appendix 1, Subpart P, Regulations No. 4 listing for purposes of establishing disability. AR 34. Dr. Schmitz agreed with Dr. Shortz that plaintiff was totally disabled from the time he stopped working on August 31, 1995, through when he had spine fusion surgery in July 1996, and for at least a year after surgery. AR 35.
B. Mental Impairments
1. North State Medical Clinic Psychological Evaluation
On April 28, 1998, the California Department of Social Services, Disability Evaluation Division, sent plaintiff for an examination by the North State Medical Clinic. AR 261. The North State Medical Clinic psychologists found that plaintiff is able to sustain focused attention sufficiently to execute simple and uncomplicated routine one or two step job instructions, interact appropriately with peers, supervisors or co-workers in a satisfactory manner provided he is not under the influence of drugs or alcohol, execute basic daily activity routines and manage transitions or the minor stressors associated with employment. AR 264.
2. Dr. Cole
On September 2, 1998, Dr. Alan R. Cole, M.D., conducted a psychiatric interview and psychological testing of plaintiff, and, on November 25, 1998, Dr. Cole submitted his evaluation. AR 388-418. Dr. Cole diagnosed plaintiff with dysthymic and personality disorders, and a Global Functional Assessment ("GAF") score of 65. AR 417. Dr. Cole reported that, despite this ailment, plaintiff was "not considered a qualified injured worker from a purely psychiatric perspective [and] he [was] cleared psychiatrically for participation in vocational rehabilitation." AR 417.
3. Dr. Goldstein
On February 8, 2000, Harris S. Goldstein, M.D., from Lake County Mental Health Services, diagnosed plaintiff with Major Depressive Disorder and Post Traumatic Stress Disorder. AR 477. Dr. Goldstein noted an onset of hearing voices, troubles sleeping because he fears someone will kill him, feelings of depression, and frequent suicidal thoughts. AR 476. Specifically, plaintiff had "planned on taking his life by asphyxiating himself two weeks [prior], but said he stopped because o; a contract to call his therapist, which he did." AR 476.
IV. DISCUSSION
A. ALJ's Findings
To qualify for disability insurance benefits, the claimant must demonstrate that he is unable to engage in substantial gainful activity due to the effect of a medically-determinable physical or mental impairment, which is expected to result in death or last for a continuous period of at least twelve months. See 42 U.S.C. § 423(d)(1)(A). Social Security disability cases involve a five-step sequential evaluation process. 20 C.F.R. § 404.1520(a). First, if the claimant is engaging in substantial gainful activity, he is not disabled. 20 C.F.R. § 404.1520(b). If the claimant is not engaging in substantial gainful activity, the case moves forward. Second, if the claimant's impairment(s) are not severe, that is, they do not significantly limit basic work activities, claimant is not disabled. 20 C.F.R. § 404, 1520(c). If the claimant's impairment(s) are severe, the case moves forward. Third, if the claimant's impairment(s) meet or equal one found in the Listing of Impairments (the "listings"), at 20 C.F.R. Part 404, Subpt. P, App.1 (these impairments are of such severity that they presumptively preclude any gainful work activity), he is disabled. 20 C.F.R. § 404, 1520(d). If the claimant does not meet or equal the listings, the case moves forward. Fourth, if the claimant can perform his past relevant work, both as he performed it in specific settings and as such work is generally performed, he is not disabled. 20 C.F.R. § 1520(e). If the claimant cannot perform his past relevant work, the case moves forward. Fifth, if the claimant cannot perform other jobs existing in significant numbers in the national economy, claimant is disabled. 20 C.F.R. § 404.1520(f). If the Commissioner produces evidence that the claimant can perform a significant number of jobs in the national economy, claimant is not disabled.
On March 17, 2000, the ALJ issued a decision that plaintiff was entitled to Title n disability insurance benefits and a period of disability from August 31, 1995 to March 31, 1998. AR 41. As of April 1, 1998, the ALJ found that plaintiff was no longer disabled. AR 41. At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since August 31, 1995, his alleged onset date. AR 41. At step two, the ALJ found that plaintiff had severe residual pain and disc disease of the cervical spine, as well as depression. AR 41. At step three, however, the ALJ found that, while plaintiff was disabled from August 31, 1995 to March 31, 1998, the evidence established that, as of April 1, 1998, plaintiff's medical improvement enabled him to return to substantial gainful activity. AR 41. The ALJ noted that "[t]he medical evidence of record revealed there are physical impairments which significantly limit the claimant's residual functional capacity, but do not meet or equal the level of severity required for disability under any impairment listed in Appendix 1, Subpar P, Regulations No. 4." AR 34. Thus, the ALJ concluded that
commencing on April 1, 1998, and thereafter, medical improvement related to the ability to work [had] been shown to have occurred, rendering the claimant capable of substantial gainful activity which does not require him to life more than 15 pounds frequently, do heavy lifting, repetitively bend or stoop, life above shoulder level or do more than simple, routine, one or two-step tasks in a work environment where there is no contact with the general public.
AR 38.
The ALJ's findings with respect to plaintiff's physical impairments are supported by substantia evidence on the record before him at the time. The ALJ relied on Dr. Shortz' progress reports, which reflected slow but consistent physical improvement. AR 35. In August 1996, Dr. Shortz reported that plaintiff's condition had improved significantly; in October 1996, Dr. Shortz reported that plaintiff's neck pain had improved; and Dr. Shortz' records showed an eleven month gap in medical treatment from July 1997 to June 1998. AR 35-36, Moreover, in October 1996 and February 1997, plaintiff denied any arm pain; in May 1997, plaintiff said he was without radicular pain and his cervical radiculitis was improved; and, in July 1997, he reported that his left shoulder pain was lessening. AR 35-36. The ALJ further noted that the January 1998 MRI scan showed a solid fusion of the C5-6 disc and no need for operation; Dr. Ross's neurological examination in April 1998 was "normal" in all respects; and Dr. Fox's December 1998 examination showed no loss in plaintiff's reflexes or sensation in any extremity. AR 34.
In assessing plaintiff's residual physical functional capacity after medical improvement was shown, the ALJ gave weight to Dr. Schmitz' opinion, finding that plaintiff was precluded from heavy lifting or repeated bending or stooping, plaintiff would have difficulty doing above shoulder level work, and plaintiff was not capable of lifting greater than fifteen pounds on a regular and frequent basis. AR 36. The ALJ gave little or no weight to "Dr. Fox's functional capacity assessment, made on June 18, 1999 [that plaintiff lacked full use of his left hand], as Dr. Schmitz noted inconsistencie in the assessment which were not based on medical findings and contrasted sharply with the other evidence of record." AR37.
The Court notes that Dr. Schmitz was a consultant, while Dr. Fox was plaintiff's treating neurologist for many years. Regulations admonish the trier of fact to generally give treater's opinions more weight than opinions based on less substantial contact, inasmuch as treating opinions provide a "detailed, longitudinal picture" of the claimant's condition. 20 C.F.R. § 404.1527(d).
When a nontreating physician's opinion contradicts that of the treating physician — but is not based on independent clinical findings, or rests on clinical findings also considered by the treating physician — the opinion of the treating physician may be rejected only if the ALJ gives specific, legitimate reasons for doing so that are based on substantial evidence in the record.Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999). Here, the ALJ found that "[t]he extreme functional limitations indicated by Dr. Fox appear[ed] to be based on the subjective report of symptoms and limitations provided by the claimant." AR 37. The ALJ suggested that Dr. Fox was motivated to assist plaintiff because he treated him with strong narcotic medication for many years which resulted in plaintiff's "addiction to prescription narcotic medication for which he underwent a 12-step chemical dependency and alcohol dependency rehabilitation program." AR 37. Thus, the ALJ gave specific, legitimate reasons based on substantial evidence in the record. AR 340, 343. "The trier of fact and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). Thus, the Court accepts the ALJ's findings as to plaintiff's physical impairments.
The ALJ also found that plaintiff's mental condition improved as of March 31, 1998. AR 35. "At that time, as stated by Dr. Cole, the claimant's depression was permanent and stationary and he was cleared for vocational rehabilitation." AR 35. The ALJ accepted the April 24, 1998 evaluation of a consultative psychologist finding that, while plaintiff often experienced deficiencies in concentration, persistence or pace in the timely completion of tasks, he "was able to sustain focused attention sufficiently to execute simple and uncomplicated tasks and routines involving one or two-step job instructions." AR 35, 38-39, 264. In light of Dr. Schmitz' opinion that plaintiff has poor impulse control with anger and the indication by Tim Sherrell, a Licensed Clinical Social Worker, that plaintiff has marked limitations in interacting appropriately with the general public, the ALJ added to plaintiff's functional assessment the preclusion from work requiring contact with the general public. AR 38.
The ALJ found that there was nothing in the record since March 31, 1998 to support a total psychiatric disability of twelve continuous months. AR 38. The ALJ indicated that no psychiatric conclusions could be drawn from the Lake County Mental Health Services intake assessment in July 1999 because it contained a list of complaints without an examination by a psychiatrist, and no treatment was indicated. AR 38. However, the ALJ did not address, much less provide reasons for discounting, Dr. Goldstein's February 8, 2000 evaluation from the Lake County Mental Health Service, which concluded with the diagnostic impression that plaintiff suffered from major depressive disorder and post traumatic stress disorder. AR 477. While the ALJ received Dr. Goldstein's report after the hearing, he did not address it, even though he discussed other evidence, such as the Lake County Mental Health Services intake form, submitted after the hearing. AR 5. He expressly discounted the intake form as merely a list of self-reported symptoms, which was a legitimate reason. However, Dr. Goldstein's opinion went beyond the intake form. The Court need not decide if the ALJ's failure to consider Dr. Goldstein's report would by itself require remand, however, because remand is required to allow the ALJ to consider additional evidence submitted to the Appeals Council, as set forth below.
B. Appeals Council Review
"The regulations . . . provide that where new and material evidence is submitted with the request for review, the entire record will be evaluated and review will be granted where the Appeals Council finds that the Administrative Law Judge's actions, findings, or conclusion is contrary to the weight of the evidence currently of record." AR 8 (citing 20 C.F.R. § 404.970.) To serve as a basis for remand, after-hearing evidence must be "new and material" and must "relate to the period" before the ALJ hearing. 20 C.F.R. § 404.970(b); see also Burton v. Heckler, 724 F.2d 1415, 1417 (9th Cir. 1984) (holding that evidence of mental deterioration after the ALJ's decision was probative of plaintiff's condition at the hearing because plaintiff's psychological condition was an issue before the ALJ"). To be considered "new," evidence must not have been before the prior adjudicator. HALLEX I-2-940(C)(1). "Material" evidence is that which would warrant a change, favorable or unfavorable, in any finding pertinent to any matter at issue or in the ultimate decision. Id. To show materiality, the plaintiff must prove to the district court that there is a "reasonable possibility" that the new evidence would have changed the ALJ's decision. Mayes v. Massanari. 276 F.3d 453, 462 (9th Cir. 2001): see also Booz v. Secretary of Health and Human Services, 734 F.2d 1378. 1381 (9th Cir. 1984). The district court reviews evidence that both supports and detracts from the ALJ's conclusion. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
On May 16, 2000, plaintiff filed a request for review of the ALJ's hearing decision, noting that the updated records indicate that plaintiff's "continued complaints of left neck and shoulder pain probably relate to the findings of a recent MRI of 1 to 2 mm central posterior protrusions of the C4-5 and C6-7 discs" and his "mental impairment continues to worsen and has lasted well over 12 months." AR 26. Plaintiff submitted evidence to the Appeals Council six times between May 2000 and April 2002. AR 19-26. On May 6, 2002, July 10, 2002, and September 25, 2002, however, the Appeals Council concluded that there was no basis for granting plaintiff's request for review. AR 16.
1. After-Hearing Evidence of Physical Impairments
On April 14, 2000, treating neurologist Dr. Fox recommended that plaintiff be placed on total temporary disability, effective March 16, 2000, two years after the ALJ found plaintiff no longer disabled. AR 481. A January 26, 2000 MRI of plaintiff s cervical spine showed solid fusion of the C5-6 disc, but new disc protrusions at C4-5 and C6-7 (AR 487, 493, 497), and on June 21, 2000, the Agreed Medical Evaluator, Dr. Sigurdson, found that "[plaintiff] is not permanent and stationary since he needs surgery" and agreed "With Dr. Fox that [plaintiff] went to a total temporary disability status as of March 16, 2000." AR 494.
On September 26, 2000, Dr. Shortz performed a second surgery on plaintiff's spine: "Anterior cervical diskectomy with interbody fusion, utilizing Rabea cages and Atlantis cervical plate." AR 499. Contrary to his previous opinion after plaintiff's first surgery, Dr. Shortz explained in November 2000 that plaintiff had remained totally disabled since his initial evaluation in May 1996 and would remain temporary totally disabled for approximately four to six months post operatively. AR 497-498, 529. Dr. Shortz's progress reports indicated that plaintiff remained temporary totally disabled for more than four to six months, through October 2001. AR 526-536. Up until May 2001, the progress reports note that plaintiff's condition was steadily improving, although he remained I totally disabled, and then from May 2001 through August 2001, plaintiff's condition was unchanged. AR 526-536. However, on September 7, 2001, plaintiff's condition had worsened and he was scheduled to obtain cervical spine series prior to his next visit. AR 526-536.
On October 16, 2001, Dr. Sigurdson could not confirm whether plaintiff was permanent and stationary, as it depended on whether the CT myelogram showed a need for further surgery. AR 511. Dr. Sigurdson limited plaintiff to light work. AR 511.
On May 25, 2001, Dr. Fox noted that plaintiff had fallen in the dark, struck his forehead, and hyperextended and twisted his neck. AR 516. Dr. Fox found that, while the fall resulted in worsening of symptoms, it was not a serious new injury. AR 517. On March 26, 2002, Dr. Fox reviewed a February 4, 2002 MRI, and diagnosed "dramatic spinal stenosis due to a combination of multilevel degenerative disc disease particularly at L2-3, L3-4, and L4-5 plus a congenitally small spinal canal." AR 575. Dr. Fox recommended treatment, including possible surgery, "for his now discovered lower back condition." AR 575. Dr. Fox also changed his mind about the cause of plaintiff's past pain: "In my opinion, these findings reflect symptoms that were caused by the May 16, 1995 injury. I have notes to that effect, but thought lower back symptoms and lower leg numbness were more due to his obesity." AR 575.
There does not appear to be a reasonable possibility that the ALJ would have changed his mind in light of Dr. Fox's opinions and recommendations alone, as the ALJ had already properly discredited Dr. Fox for uncritically relying on plaintiff's self assessments and contradicting other medical evidence. AR37. However, in view of plaintiff's September 26, 2000 surgery performed only six months after the ALJ's decision, and Dr. Shortz's opinion that plaintiff would remain disabled for four to six months thereafter, there is a reasonable possibility that the after-hearing evidence of physical impairments would have changed the ALJ's decision. The ALJ based his decision in part on the fact that the medical expert, Dr. Schmitz, agreed with Dr. Shortz that plaintiff was disabled through the time of his cervical spine fusion surgery in July 1996 and for at least a year thereafter to recuperate. AR 35. However, on November 10, 2000, Dr. Shortz opined that plaintiff had not been permanent and stationary, but rather had remained totally disabled since May 1996 from a cervical disc disease and chronic situational depression resulting from his industrial injury. AR 498. It is possible that the ALJ would ultimately decide that treating Dr. Shortz's reevaluation o his prior opinion based on the new information that plaintiff still needed further surgery was not creditable for specific reasons, and instead plaintiff had two periods of disability separated by a period starting in April 1998 during which he could work. Yet there remains a reasonable possibility that Dr. Shortz's revised opinion after additional surgery would have changed the ALJ's decision.
Defendant relies on Johnson v. Shalala. 60 F.3d 1428 (9th Cir. 1995), and Magallanes v. Bowen, 881 F.2d 747, 754 (9th Cir 1989) as showing that Dr. Shortz's opinion cannot constitute substantial evidence simply because it is retrospective. Those cases do not automatically discount all retrospective opinions, however, but only those not based on objective evidence. In Johnson, the issue was whether the plaintiff had been disabled between 1981, when she first injured her back, and 1986, when her disability insurance expired. 60 F.3d at 1432. The ALJ properly discredited the 1991 opinion of her treating doctor because it was conclusory and did not specifically assess her functional capacity during the relevant time period. InMagallanes, the issue was the onset date, not the date that the disability terminated. 881 F.2d at 751. There, the ALJ properly rejected the opinion of a treating doctor based on the fact that he had no direct personal knowledge of the onset date, having first seen the plaintiff two years after the date that he opined her condition began, and had no objective medical evidence to support his position. Id. at 754. Indeed, his retrospective opinion was contradicted by the findings of doctors who did examine the plaintiff during the relevant period. Id. Here, Dr. Shortz continued to treat the plaintiff and relied on objective medical evidence. There is a reasonable possibility that the ALJ would credit Dr. Shortz's revised post-surgical opinion that plaintiff had continued to be disabled after his first surgery and would remain so for at least four to six months after his September 2000 surgery. Given Dr. Shortz's continuous findings of disability i his progress reports, plaintiff may have remained disabled through October 2001.
2. After-Hearing Evidence of Psychiatric Impairments
In his May 16, 2000 request for review of the ALJ's decision, plaintiff's counsel explained that the relative brevity of the psychiatric records was due to plaintiff's inability to afford regular psychiatric treatment. AR 26-27. plaintiff's counsel also pointed out that, although the Lake County Mental Health Services facility where plaintiff was treated originally provided little data, Lake County's psychiatrist Donald B. Dean had since provided a narrative report. AR 27. On May 11, 2000, Dr. Dean diagnosed plaintiff, on the basis of a fifty-five minute interview, with "Mood Disorder NOS Depression severe with mixed depressive and paranoid features" and a history of "Polysubstance Drug abuse in remission." AR 490. Dr. Dean concluded that plaintiff's "sustained depressive symptoms, paranoid ideation, [and] auditory hallucinations with impaired impulse control . . . make him unable to be employed on either a part-time or full-time basis." AR 490. Dr. Dean noted that plaintiff had a crisis visit with Dr. Andrada from Lake County Medical Services on March 24, 2000 for severe depression and anxiety and reported chronic low energy, low self esteem, and intrusive paranoid thoughts of worthless feeling and pain. AR 488-89. After a March 28, 2000 visit. Dr. Andrada diagnosed plaintiff with Psychosis with depressive features. AR 488.
On October 22, 2001, psychiatrist Grant Beloof, M.D. from Lake County Mental Health Services reported in a short letter that plaintiff "remains disabled[,]" as he "suffers from a severe and disabling mental illness" AR 504. Dr. Beloof noted that plaintiff's "auditory hallucinations, insomnia, irritability and depression render him totally disabled." AR 504.
On December 3, 2001, Victoria Bently, PsyD, found that plaintiff suffered from depression and had suicidal ideation, plan and intent (AR 505), and on December 12, 2001, based on administration of the Minnesota Multiphasic Personality Inventory — 2 (MMPI-2) test, Janet Warner, Ph.D., confirmed that plaintiff suffered from significant anxiety, significant depressive symptoms, sleeping and/or eating disturbances, possibility of suicidal ideation, and a paranoid predisposition. AR 571-573. In addition to the above-cited evidence, the Appeals Council further considered a February 24 2000 report from plaintiff's neurologist, Dr. Fox, which stated that "[a]fter treating [plaintiff] over a period of time, I believe he has developed an increasing tendency for depression and has had occasional thoughts of suicide." AR 478.
Earlier, on March 28, 2000, based on a review of plaintiff s records, Dr. Cole (who had originally performed an agreed medical examination of plaintiff in November 1998) recommended that plaintiff be seen by a psychiatrist on an extended basis, in response to Dr. Fox's concerns about plaintiff's "profound depression." AR 484. After a December 10, 2001 psychiatric reevaluation interview of plaintiff, while Dr. Cole noted some evidence of exaggeration, Dr. Cole concluded that plaintiff was probably worse psychologically than when he had last seen him on September 2, 19981 AR 564. In other words, while Dr. Cole had not found plaintiff's psychiatric condition severe when he first saw him in September 1998, a year and a half before the ALJ's decision in March 2000, in December 2001, twenty-one months after the ALJ's decision, he concluded that plaintiff's psychological state had probably worsened. Therefore, Dr. Cole's later opinion was not inconsistent with the treating doctor's new evidence that plaintiff's condition had already deteriorated by the time of the ALJ's decision. Dr. Cole also noted that it may not be possible to eliminate plaintiff's cognitive complaints given the unlikelihood of successfully reducing plaintiff's use of medication for his depression and pain. AR 564. Dr. Cole found that plaintiff was temporarily disabled on a psychiatric basis. AR 565. plaintiff's highest level of GAF for the past year had dropped from 65, i 1998, to 60, in 2001. AR 417, 566.
The Court finds that there is a reasonable possibility that the after-hearing psychiatric evidence that plaintiff submitted would have changed the ALJ's decision. Defendant argues that Dr. Dean's May 11, 2000 report opining that plaintiff's chronic depressive symptoms, paranoid ideation, auditory hallucinations, and impaired impulse control would make him unemployable is very similar to the Lake County Mental Health Clinic July 1999 data that the ALJ considered. AR 463-466. However, the ALJ specifically discounted the July 1999 Lake County Mental Health Services data a merely an intake assessment that contained a list of complaints without a psychiatric examination c a treatment protocol AR38.
Moreover, the ALJ relied on the April 24, 1998 evaluation of a consultative psychologist finding that plaintiff was "able to sustain focused attention sufficiently to execute simple and uncomplicated, routine tasks." AR 38. As discussed above, however, more weight is given to a treating physician's statement than to an examining or non-examining physician's statement because the treating doctor "is employed to cure and has a greater opportunity to know and observe the patient as an individual." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Thus, Dr. Dean's opinion that plaintiff was unemployable and Dr. Beloof s October 22, 2001 report that plaintiff was totally disabled as a result of auditory hallucinations, insomnia, irritability, and depression may have changed the ALJ's decision.
The ALJ further based his finding that plaintiff's mental condition had improved as of March 31, 1998 on Dr. Cole's finding that plaintiff's depression at that time was permanent and stationary and plaintiff was cleared for vocational rehabilitation. AR 35. However, on January 10, 2002, Dr. Cole found that plaintiff "probably is worse psychologically than when [Dr. Cole] last saw him [in September 1998]." AR 564. Dr. Cole stated that he "would defer rating him as permanent and stationary psychiatrically" unless and until he is physically stable, "and would consider him temporarily disabled psychiatrically." AR 564.
C. The ALJ erred in finding plaintiff can work "significant numbers" of jobs
The ALJ found that plaintiff could not perform his past work as manager of a dry dock marina, window repairer or plumber, as these jobs required a heavy to medium level of exertion of which plaintiff was not capable. AR 42, 88-89. If a claimant cannot perform his past job, he is considered disabled if there is no "substantial gainful work that exists" in "significant numbers" in the national economy. 42 U.S.C. § 423(d)(2)(A). The ALJ found that
Since April 1, 1998, the claimant has had the residual functional capacity to perform the exertional and nonexertional requirements of work including the ability to lift 15 pounds frequently, stand and walk at least six hours, and sit six hours in an eight-hour workday on a sustained basis. However, he cannot lift objects above shoulder level, repeatedly bend or stoop, or perform complex, varied or complicated mental tasks. He can do simple, routine tasks where no interaction or contact with the general public is required.
AR 42. The ALJ concluded that based on these limitations and the testimony of the vocational expert ("VE"), Dr. James Rago, that claimant could perform jobs which exist in significant numbers in the national economy.
Examples of such unskilled jobs at a light range of exertion include Bench Assembly of which there are 230,000 such jobs that include Small Products Assembler, Paper Novelty Maker, Toy Assembler, and Joiner. There are 2,300 Inspector jobs in the region that include Lamp Tester, Live Ammunition Inspector, Cloth Inspector, Weld Inspector, and Final Inspector. Examples of the 1,500 sedentary jobs which exist in significant numbers in the region include Polisher, Preparer, Wire Worker, Patcher of Small Appliances, and Gauger. There are 1,100 sedentary Inspector jobs in the local economy. Sedentary Inspector jobs include Table Worker, Egg Processor, Button and Precious Metals Reclaimer, and Check Weigher.
AR 42-43.
All of the jobs that the ALJ listed require a specific vocational preparedness ("SVP") of level two or above. SVP is "the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation." Dictionary of Occupational Titles ("DOT"). Appendix C The DOT indicates that, at SVP 1, a job is learned during a "[s]hort demonstration only," and, at SVP 2, a job is learned during "[a]nything beyond short demonstration up to and including 1 month." Id. Plaintiff's argues that his ability to perform "simple, routine, one or two-step tasks" seems to correspond to the requirements for SVP 1 occupations and not SVP 2 occupations. Defendant responds that, whether the jobs have an SVP of 1 or 2, they are still unskilled work.See 20 C.F.R. § 404.1568(a) ("Unskilled work is work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time. . . . [A] person can usually learn to do the job in 30 days, and little specific vocational preparation and judgment are needed") (emphasis added). The ALJ did not find that plaintiff is unable to learn on the job, only that he has difficulty with all but simple tasks. AR 35. Therefore, the ALJ's finding that plaintiff can complete the SVP for a job for which he meets the Reasoning Level requirements is supported by substantial evidence.
All of the named jobs except three, however, involved a reasoning level of two. Reasoning levels are found under the General Education Development ("GED") and reflect education obtained in elementary school, high school, or college. Dictionary of Occupational Titles, Appendix C. Reasoning level two requires the worker to be able to "[a]pply commonsense understanding to carry out detailed but involved written and oral instructions" and to "[d]eal with problems involving a few concrete variables in or from standardized situations."Dictionary of Occupational Titles, Appendix C. The need to follow "detailed" and "involved" instructions exceeds the ALJ's limitation of plaintiff to "simple, routine tasks." Such instructions are not simple and uncomplicated, or limited t one or two steps. Moreover, while the ALJ noted that plaintiff may be suffering decreased mentatio as a result of his strong pain medications (AR 38), he did not adequately address plaintiff's limitations in concentration and memory in his hypothetical to the vocational expert. The SSA has the burden to accurately set out the claimant's limitations in its hypothetical to the vocational expert Andrews, 53 F.3d 1035, 1043 (9th Cir. 1995) (remand upheld where hypothetical left out categories of plaintiff s limitations).
Reasoning level one requires the worker to "[a]pply commonsense understanding to carry out simple one-or two-step instructions" and to "[d]eal with standardized situations with occasional or no variables in or from these situations encountered on the job." Dictionary of Occupational Titles. Appendix C. Three of the jobs identified were at reasoning level one. Opposition at 6:23; reply at 7:7-8. The ALJ accepted the finding of a consultative psychological evaluation that, after of April 24, 1998, plaintiff was capable of "simple and uncomplicated tasks and routines involving one-or two-step job instructions." Tr. 35.
Defendant contends that the vocational expert need only identify one job to show that plaintiff has the ability to engage in substantial gainful activity which exists in the national economy. However, "work which exists in the national economy means work which exists in significant numbers whether in the region where such individual lives or in several regions of the country." 42 U.S.C. § 423(d)(2)(A) (emphasis added). Neither the ALJ's report, nor the record, specify the number of positions that existed in each of the nineteen job categories the vocational expert listed. Tr. 40. Thus, the record does not indicate how many of the 230,000 positions nationally or 3,200 positions locally are in those three job categories. Tr. 40. Consequently, the record does not provide substantial evidence that the three reasoning level one jobs that fit plaintiff's RFC existed in significant numbers.
V. CONCLUSION
plaintiff's motion for summary judgment is GRANTED and defendant's cross-motion for summary judgment is DENIED, and the case shall be remanded.
IT IS SO ORDERED.