Opinion
No. CIV S-08-2013 KJM.
September 30, 2009
ORDER
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying an application for Disability Income Benefits ("DIB") under Title II of the Social Security Act ("Act"). For the reasons discussed below, the court will deny plaintiff's motion for summary judgment, deny the Commissioner's cross-motion for summary judgment, and remand this matter under sentence four of 42 U.S.C. § 405(g).
I. Factual and Procedural Background
II. Standard of Review
42 U.S.C. § 405Copeland v. Bowen861 F.2d 536538Desrosiers v. Secretary of Health and Human Services 846 F.2d 573575-76Saelee v. Chater94 F.3d 520521Sorenson v. Weinberger514 F.2d 11121119Richardson v. Perales402 U.S. 389402Consolidated Edison Co. v. N.L.R.B.305 U.S. 197229Howard v. Heckler 782 F.2d 14841487See Jones v. Heckler760 F.2d 993995Id. see also Hammock v. Bowen879 F.2d 498501see Sprague v. Bowen 812 F.2d 12261229-30see Burkhart v. Bowen856 F.2d 13351338
Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. § 401et seq. Supplemental Security Income ("SSI") is paid to disabled persons with low income. 42 U.S.C. § 1382 et seq. Under both provisions, disability is defined, in part, as an "inability to engage in any substantial gainful activity" due to "a medically determinable physical or mental impairment." 42 U.S.C. §§ 423(d)(1)(a) 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. §§ 423(d)(1)(a), 416.920 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1995).
The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n. 5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.
As discussed below, the ALJ's reliance on an incomplete hypothetical posed to the vocational expert requires remand of this matter with direction regarding credibility determinations on remand. The court finds no error in the weight assigned by the ALJ to the opinion of the treating physician.
III. Analysis
A. Vocational Expert
Plaintiff challenges the ALJ's finding at the fifth step of the sequential evaluation, contending that the ALJ relied on an incomplete hypothetical. Hypothetical questions posed to a vocational expert must set out all the substantial, supported limitations and restrictions of the particular claimant.Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989). If a hypothetical does not reflect all the claimant's limitations, the expert's testimony as to jobs in the national economy the claimant can perform has no evidentiary value. DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). While the ALJ may pose to the expert a range of hypothetical questions, based on alternate interpretations of the evidence, the hypothetical that ultimately serves as the basis for the ALJ's determination must be supported by substantial evidence in the record as a whole.Embrey v. Bowen, 849 F.2d 418, 422-23 (9th Cir. 1988).
The ALJ found there were a significant number of jobs plaintiff could perform, including that of surveillance system monitor and oiler. AT 26. This finding was predicated on the testimony of the vocational expert. AT 728-729, 734. When additional limitations related to a moderate impairment in the ability to maintain concentration, persistence and pace were added to the hypothetical by plaintiff's attorney, the vocational expert testified that plaintiff would not be able to perform the identified jobs. AT 736-737. The additional limitations are supported by substantial evidence of the opinions of the examining psychiatrist, Dr. Roux, and the state agency physicians. AT 262, 284-285. The ALJ accorded "significant" and "great" weight to these opinions. AT 22, 23. There is no explanation as to why the ALJ rejected the moderate limitation in maintaining concentration, persistence and pace in the hypothetical relied on in finding plaintiff could perform the jobs of surveillance system monitor and oiler. Under these circumstances, the ALJ committed error.
B. Remand and Credibility
Regarding whether to remand this case to the ALJ or to order the payment of benefits, "[t]he decision whether to remand the case for additional evidence or simply to award benefits is within the discretion of the court." Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985). Generally, the court will direct the award of benefits "in cases where no useful purpose would be served by further administrative proceedings or where the record has been thoroughly developed." Varney v. Secretary of Health and Human Services, 859 F.2d 1396, 1399 (9th Cir. 1988).
Although plaintiff contends the matter should be remanded for payment of benefits, the court cannot conclude that such a remand is appropriate here. Although the vocational expert testified plaintiff could not perform the identified jobs when the additional limitations were included in the hypothetical, there was no follow up question posed as to whether any other jobs would be available if all of the limitations were included. Further testimony in this regard should be taken.
With respect to the credibility issue, on remand, if plaintiff's testimony regarding his subjective complaints is discredited, the ALJ must, in the absence of affirmative evidence showing that plaintiff is malingering, set forth clear and convincing reasons for rejecting plaintiff's testimony. Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). If laywitness testimony is discounted, reasons that are germane to that witness must be set forth in the opinion. See Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993).
For the foregoing reasons, this matter will be remanded under sentence four of 42 U.S.C. § 405(g) for further development of the record and further findings addressing the deficiencies noted above.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment is denied;
2. The Commissioner's cross motion for summary judgment is denied; and
3. This matter is remanded for further proceedings consistent with this order.