Josephine Mora v. Jo Anne B Barnhart

Case 5:06-cv-00027-PJW Document 16 Filed 06/07/07 Page 1 of 18 Page ID #:58 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CAL...

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Case 5:06-cv-00027-PJW Document 16 Filed 06/07/07 Page 1 of 18 Page ID #:58

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JOSEPHINE MORA, Plaintiff,

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v.

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JO ANNE B. BARNHART, Commissioner of the Social Security Administration,

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Defendant.

) ) ) ) ) ) ) ) ) ) ) )

Case No. ED CV 06-00027-PJW MEMORANDUM OPINION AND ORDER

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I.

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INTRODUCTION

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Plaintiff brings this action, challenging the decision by

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defendant Social Security Administration (“the Agency”), denying her

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application for Supplemental Security Income (“SSI”).

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Court to reverse the Agency’s decision and award benefits, or, in the

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alternative, to remand the case to the Agency for further proceedings.

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For the reasons discussed below, the Agency’s decision is REVERSED and

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the case is REMANDED for further proceedings.

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She asks the

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II.

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FACTS

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A.

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Plaintiff’s Personal History and Work History Plaintiff was born on December 15, 1954, and was 50 years old at

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the time of the hearing.

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She has an eighth-grade education and prior work experience as a

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housekeeper in a convalescent facility.

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that, beginning in September 2000, her physical ailments rendered her

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unable to work.

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B.

(Administrative Record (“AR”) 55, 257.)

(AR 257.)

Plaintiff contends

(AR 55.)

Plaintiff’s Medical Condition and Treatment In her disability report, Plaintiff stated that she suffered from

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degenerative joint disease, two hernia repair surgeries, and other

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conditions.

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limited her ability to work because they caused her aches and pains in

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all parts of her body, numbness in her left arm, loss of strength and

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balance, fatigue, and depression.

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report, Plaintiff stated that she had been diagnosed with diabetes and

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arthritis, and that she slept “all the time.”

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(AR 64.)

Plaintiff asserted that these conditions

(AR 64, 70.)

In a later disability

(AR 94.)

Plaintiff sought medical care from her physician, Dr. Frederick

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Curlin, and Dr. Curlin’s physician’s assistant Ezequiel Martinez.

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Although the record contains minimal evidence regarding testing or

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examination findings, Dr. Curlin made a variety of diagnoses,

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including obesity, osteoarthritis, fibromyalgia, asthma, cervical

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degenerative disc disease, cervical radiculopathy, lumbar spinal

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stenosis, lumbar degenerative disc disease, hepatomegaly (fatty

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liver), anxiety, and depression.

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188-89, 249, 251, 253.)

(AR 162-68, 170-71, 174-182, 185-86,

In 2005, Plaintiff was diagnosed with breast

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cancer, and underwent a lumpectomy approximately one month before the

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administrative hearing.

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C.

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(AR 222-23).

The Administrative Proceedings Plaintiff filed an application for SSI on September 3, 2003.

(AR

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87-90.)

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again on reconsideration on March 4, 2004.

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Thereafter, Plaintiff requested a hearing before an administrative law

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judge (“ALJ”), which was granted, and a hearing was held on June 10,

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2005.

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The application was initially denied on January 20, 2004, and (AR 22-25, 27-31.)

(AR 39-43, 254-284.) At the hearing, Plaintiff testified that her only work in the

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preceding fifteen years was as a housekeeper.

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testified that she stopped working because of pain in her neck, back,

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arms, and legs.

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she took for pain provided some relief, and that they did not cause

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side effects.

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pain, she had numbness and tingling in both arms and hands, and

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swelling in her ankles.

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headaches, for which she took Tylenol.

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that she had been treated for hernias, which still caused pain

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sometimes with moving or bending.

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(AR 262-63.)

(AR 258, 263).

(AR 257.)

She

She told the ALJ that the medications

She explained that, in addition to

(AR 265, 267.)

She also complained of (AR 266.)

Plaintiff testified

(AR 268).

Plaintiff also testified that she had suffered from asthma for a

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long time, and had started using Albuterol spray to control it.

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268.)

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medication.

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recommended exercise for weight loss, and that she had started walking

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for periods of about ten minutes.

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(AR

She offered that her diabetes was also controlled with (AR 268-69.)

She told the ALJ that her doctor had

(AR 269-70.)

According to Plaintiff, her conditions had affected her ability to do things around the house.

She testified that she would sometimes 3

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drop things such as a five-pound bag of sugar or plates.

She offered

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that she still washed dishes, but that she was slow, and did not do as

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much housework.

(AR 271-72.)

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Plaintiff testified that, not long before the hearing, she had

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been diagnosed with breast cancer and had undergone surgery for the

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cancer, but had not yet started chemotherapy.

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explained that she was depressed and was taking medication for

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depression and anxiety, but had not obtained any mental health

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treatment.

(AR 258-59, 273.)

She

(AR 273-74.)

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Dr. Doren, the medical expert, testified that Plaintiff’s medical

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records lacked significant objective findings to support the diagnoses

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of her treating doctor.

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medical evidence, including the findings and opinions of state agency

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and consulting physicians, Dr. Doren agreed with state agency

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physicians Dr. George Spellman and Dr. Albert Lizarraras that

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Plaintiff could perform light duty.

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(AR 275-79.)

Based upon his review of the

(AR 282.)

Vocational expert Sandra Fioretti testified about Plaintiff’s

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past work.

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convalescent facility, and that it was light, unskilled work with an

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SVP of 2.

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person with the limitations testified to by the Plaintiff could find

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work, Ms. Fioretti testified that the combination of upper extremity

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problems and other limitations would eliminate all work.

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She explained that this work was in housekeeping in a

(AR 284.)

In response to a hypothetical as to whether a

(AR 284.)

The ALJ issued a decision denying Plaintiff’s application for DIB

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on August 23, 2005.

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under the Agency’s five-step sequential evaluation process.

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one, he found that Plaintiff had not engaged in substantial gainful

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activity since her alleged onset date.

(AR 12-19.)

The ALJ analyzed Plaintiff’s claims

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(AR 13, 18.)

At step

At step two, he

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found that Plaintiff suffered form severe impairments of the back,

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neck, arms, and legs, following two hernia repair surgeries, and also

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was afflicted with diabetes, obesity, atypical chest pain, and

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depression.

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the impairments alone or in combination met or equaled a Listed

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impairment.

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(AR 13, 18.)

At step three, he determined that none of

(AR 13-14.)

The ALJ analyzed the medical evidence, including evidence from

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Plaintiff’s treating physician and physician’s assistant, state agency

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doctors, and consulting examiners, including an internist, an

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orthopedist, and a psychiatrist.

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Plaintiff’s alleged limitations were not fully credible, citing lack

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of objective medical support, conservative treatment, and

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inconsistency between her complaints and her daily activities.

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16-17.)

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in-law in a third-party activities questionnaire, finding her sister-

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in-law not credible because of her personal relationship with

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Plaintiff and because her observations were not supported by the

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medical evidence.

(AR 14-15.)

He found that

(AR

The ALJ also rejected the statements of Plaintiff’s sister-

(AR 17.)

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The ALJ determined that Plaintiff could perform “light work,”

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further limited by occasional postural limitations and no climbing

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ladders, ropes, or scaffolds.

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specific mental limitations, but found that Plaintiff retained the

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mental capacity to perform “simple, repetitive tasks.”

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Based on the vocational expert’s testimony that Plaintiff’s past work

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was light and unskilled, and that Plaintiff could perform her past

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work as previously performed, the ALJ found that Plaintiff was able to

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perform her past work as a housekeeper.

(AR 18.)

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The ALJ did not identify any

(AR 17-18.)

(AR 17-18.)

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Plaintiff requested that the Appeals Council review the ALJ’s

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decision.

(AR 7.)

On December 17, 2005, the Appeals Council denied

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Plaintiff’s request for review.

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instant Complaint.

(AR 4-6.)

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III.

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ANALYSIS

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Plaintiff then filed the

Plaintiff argues that the ALJ erred when he concluded that

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Plaintiff could perform her past work as a housekeeper.

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that the ALJ: (1) failed to properly consider the opinion of the

She contends

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consultative psychiatrist; (2) posed an incomplete hypothetical to the

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vocational expert; (3) improperly discounted the statements of

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Plaintiff’s sister-in-law; and (4) failed to give proper weight to the

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opinion of Plaintiff’s treating physician.

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2.)

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finding that Plaintiff could perform her past work was not supported

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by substantial evidence and is reversed.

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A.

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(Joint Stipulation (“JS”)

For the following reasons, the Court concludes that the ALJ’s

Standard Of Review “Disability” under Agency regulations is defined as the inability

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to perform any substantial gainful activity due to any “medically

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determinable physical or mental impairment which can be expected to

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result in death or which has lasted or can be expected to last for a

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continuous period of not less than 12 months.”

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§ 423(d)(1)(A).

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claimant is not disabled only if the decision is not supported by

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substantial evidence or if the decision is based on legal error.

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Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)(quoting Green

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v. Heckler, 803 F.2d 528, 529 (9th Cir. 1986)).

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evidence” is such “relevant evidence as a reasonable mind might accept

See 42 U.S.C.

The Court may overturn the ALJ’s decision that a

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“Substantial

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as adequate to support a conclusion.”

Magallanes, 881 F.2d at 750.

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It is “more than a mere scintilla but less than a preponderance.”

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Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998).

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B.

The ALJ Properly Considered The Opinion Of Plaintiff’s Treating

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Physician

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In his fourth claim of error (which the Court elects to address

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first), Plaintiff contends that the ALJ failed to give due weight to

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the disability opinion of her treating physician, Dr. Frederick J.

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Curlin, and improperly credited the opinion of the non-examining

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medical expert, Dr. Walter W. Doren.

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Court disagrees.

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For the following reasons, the

Although a treating physician’s opinion is generally afforded

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more weight in disability cases than a non-treating physician’s

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opinion, it is not binding on an ALJ.

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1144, 1148 (9th Cir. 2001).

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physician’s opinion which is brief and conclusionary in form with

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little in the way of clinical findings to support [its] conclusion."

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Magallanes, 881 F.2d at 751 (internal quotations omitted); see also

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Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995).

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uncontroverted opinion of a treating physician, an ALJ must set forth

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clear and convincing reasons for doing so.

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751.

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contradicted, and the opinion of a nontreating source is based on

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independent clinical findings that differ from those of the treating

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physician, the opinion of the nontreating source may itself be

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substantial evidence; it is then solely the province of the ALJ to

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resolve the conflict.”

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Cir. 1995)(emphasis added).

Tonapetyan v. Halter, 242 F.3d

The ALJ “need not accept a treating

To reject the

Magallanes, 881 F.2d at

“Where the opinion of the claimant’s treating physician is

Andrews v. Shalala, 53 F.3d 1035, 1041 (9th If, on the other hand, the nontreating 7

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source relies on the same findings as the treating source, the ALJ

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must provide specific and legitimate reasons for disbelieving the

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treating source.

Id.

The ALJ noted that Plaintiff’s treatment records consisted

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principally of examination records and diagnoses--mostly prepared by a

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physician’s assistant and co-signed by Dr. Curlin--without evidence of

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any significant objective testing.

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discussed the lack of objective findings by consultative examiners and

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state agency doctors, as highlighted by the testimony of the medical (AR 14-15.)

(AR 15.)

The ALJ additionally

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expert.

Accordingly, the ALJ concluded that the

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disability opinions of Dr. Curlin were not controlling and could not

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be given “substantial persuasive weight.”

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with this analysis.

(AR 15.)

The Court agrees

As noted by the ALJ, Plaintiff’s treatment records are

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conspicuously devoid of objective findings, such as examination

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findings or test results, to support the diagnoses by her treating

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doctor.

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Ezequiel Martinez and co-signed by Dr. Curlin repeatedly referred to

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diagnoses of osteoarthritis, cervical disc disease, lumbar disk

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disease, and spinal stenosis, without any objective findings (such as

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MRI, radiological studies, or lab tests) other than occasional

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tenderness.

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253.)

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explanation or findings supporting the diagnosis.

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167, 170, 175, 176, 179, 180.)1

Examination reports prepared by physician’s assistant

(AR 162-68, 170-71, 174-182, 185-86, 188-89, 249, 251,

Similarly, the reports indicate fibromyalgia without any (AR 162, 164, 166,

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Generally, fibromyalgia is exhibited by “‘multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be 8

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In addition to the lack of clinical findings to support his

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diagnoses, Dr. Curlin’s disability opinions were conclusory and

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unsupported by explanations or findings.

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any evaluation of Plaintiff’s residual functional capacity or provide

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any explanation of limitations on Plaintiff’s abilities.

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disability opinions Plaintiff contends were improperly discounted were

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set forth on short, check-the-box forms.

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completed by physician’s assistant Ezequiel Martinez on December 4,

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2002, indicates permanent incapacitation from work due to degenerative

Dr. Curlin did not complete

The

The first such form,

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joint disease and fibromyalgia, which caused chronic pain.

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On January 15, 2003, Mr. Martinez signed another form, again

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indicating permanent disability, however, no condition or specific

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limitations were identified.

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Martinez again assessed Plaintiff as permanently disabled, due to

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asthma, arthritis, and depression.

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Curlin both signed an April 7, 2004, form indicating that Plaintiff

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was permanently disabled due to fibromyalgia, osteoarthritis, and

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degenerative disc disease, causing “moderate to severe pain and muscle

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stiffness.”

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completed a form, indicating only that Plaintiff was permanently

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disabled, without specifying her conditions or limitations.

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(AR 249.)

(AR 252.)

(JS 253.)

On November 18, 2003, Mr.

(AR 251.)

Mr. Martinez and Dr.

Finally, on March 21, 2005, Mr. Martinez again

(AR 248.)

Plaintiff does not contest the ALJ’s finding that her doctor’s

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diagnoses appeared to be based on minimal objective findings.

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she argues that Social Security Ruling (“SSR”) 96-2p mandated

Rather,

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diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.’” Rollins v. Massanari, 261 F.3d 853, 855 (9th Cir. 2001)(quoting Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). 9

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consideration of several factors before discounting the treating

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doctor’s opinion.

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clarified that the Agency could not substitute its judgment for the

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opinion of a treating source when the opinion was “well-supported by

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medically acceptable clinical and laboratory diagnostic techniques.”

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SSR 96-2p, 1996 WL 374188 at *1 (July 2, 1996); see also 20 C.F.R.

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§ 416.927(d)(2).

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whether an opinion is entitled to controlling weight: (1) it must come

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from a treating source; (2) it must be a “medical opinion” about the

(JS at 15-16.)

The Court disagrees.

That ruling

The ruling sets forth four criteria for determining

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nature and severity of an impairment; (3) it must be well-supported by

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medically acceptable clinical and laboratory diagnostic techniques;

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and (4) even if well-supported, it must be not inconsistent with other

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substantial evidence in the record.

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these criteria are not met, the opinion is not entitled to controlling

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weight.

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It appears that most of the work was done by a physician’s assistant,

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not the doctor.

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and the lack of any discussion of severity or identification of

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limitations attributable to those diagnoses, the disability opinion

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barely qualifies as a “medical opinion” regarding the nature and

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severity of Plaintiff’s impairments.

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expert and the ALJ, the opinion is not even minimally supported by

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clinical and laboratory diagnostic techniques.

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inconsistent with other substantial evidence, most notably, the

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opinion of the examining orthopedist, who found “no evidence of any

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orthopedic problem” or any functional limitations.

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Andrews, 53 F.3d at 1041 (holding that findings of consultative

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examiner may be “substantial evidence).

SSR 96-2p at *2.

If any one of

In Plaintiff’s case, arguably none of the criteria are met.

Moreover, given the extremely conclusory diagnoses,

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Further, as noted by the medical

Finally, it is also

(AR 146.)

See

Accordingly, the ALJ did not

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err in finding that Dr. Curlin’s opinion was not entitled to

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controlling weight.

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SSR 96-2p provides further that, even if the opinion of a

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treating source is not entitled to controlling weight, it must be

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considered under all the factors set forth in 20 C.F.R. §§ 404.1527

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and 416.927.

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extent of the treatment relationship, consistency with evidence in the

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record, the source’s specialization, and “any factor” the Agency is

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aware of or alerted to.

These factors take into account the length, nature, and

20 C.F.R. §§ 404.1527(d), 416.927(d).

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Despite Plaintiff’s assertions to the contrary, the ALJ specifically

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referenced and considered these factors, noting inconsistencies in the

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record, the lack of diagnostic testing, and diagnoses given based upon

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minimal examinations.

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factor that was improperly considered by the ALJ or to explain how

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additional consideration would have led the ALJ to a different

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conclusion.

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Tellingly, Plaintiff fails to identify any

Based upon his consideration of the factors set forth in 20

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C.F.R. §§ 404.1527 and 416.927, the ALJ concluded that Dr. Curlin’s

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opinions were not entitled to “substantial persuasive weight.”

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15.)

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opinion, and the ALJ’s consideration of the relevant factors, the

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Court finds that the ALJ did not err in his evaluation of Dr. Curlin’s

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opinion, or in concluding that the opinion was not entitled to

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controlling or substantial weight.

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(AR

In light of the lack of objective support for Dr. Curlin’s

Having found that Plaintiff’s treating source was not entitled to

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substantial weight, it was not error for the ALJ to credit the

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opinions of medical expert Dr. Doren, who had thoroughly reviewed the

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record, and testified regarding all the medical evidence before the

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ALJ.

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C.

20 C.F.R. § 416.927(f). The ALJ’s Finding That Plaintiff Could Perform Past Work Was Not

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Supported By Substantial Evidence

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Plaintiff challenges the ALJ’s finding that she could perform her

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past work as a housekeeper, arguing that the ALJ failed to properly

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incorporate her mental impairments in his residual functional capacity

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assessment, and, in turn, failed to obtain necessary testimony from

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the vocational expert.

The Court agrees.

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1.

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Plaintiff contends that the ALJ failed to give adequate weight to

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the opinion of examining psychiatrist Dr. Divy J. Kikani, who examined

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Plaintiff in connection with a previous application in 2000, and again

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on December 8, 2003.

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“excessive anxiety” and symptoms of depression, had a poor fund of

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knowledge, and impaired abstracting ability and judgement.

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Dr. Kikani gave Plaintiff a global assessment of functioning (“GAF”)

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score of 49.

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recurrent type major depressive disorder.

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Plaintiff had moderate impairments in social functioning, daily

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activities of living, and the ability to respond appropriately to

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others in the work place.

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Plaintiff had mild to moderate impairment in concentration,

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persistence, and pace, and that Plaintiff could be expected to have

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moderate episodes of emotional deterioration under customary work

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pressure.

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Plaintiff’s Mental Impairments

In 2003, Dr. Kikani noted that Plaintiff showed

(AR 150.)

Dr. Kikani assessed Plaintiff as suffering from a

(AR 151.)

(AR 151.)

He opined that

Dr. Kikani also opined that

(AR 151.)

The ALJ found that Plaintiff suffered from depression.

(AR 13.)

He also described Dr. Kikani’s findings, and summarized Dr. Kikani’s 12

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opinion as that Plaintiff was “moderately psychiatrically impaired.”

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(AR 14-15.)

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however, the ALJ did not identify any functional limitations related

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to her psychiatric impairment, and merely concluded that Plaintiff

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retained the capacity for “simple, repetitive tasks.”

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Court finds that this assessment failed to take into account all of

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Plaintiff’s mental impairments as established by the evidence, and

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that, in making this assessment, the ALJ improperly rejected the

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opinion of Dr. Kikani.

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When evaluating Plaintiff’s residual functional capacity,

(AR 16.)

The

The ALJ summarized Dr. Kikani’s opinion, but implicitly rejected

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it, finding only that Plaintiff retained the capacity to perform

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“simple, repetitive tasks.”2

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Kikani’s opinion inasmuch as it failed to incorporate Plaintiff’s

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mental impairments as noted by Dr. Kikani.

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“simple, repetitive tasks” may incorporate limitations on

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concentration, persistence, and pace, it plainly does not incorporate

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moderate impairment in dealing with co-workers, supervisors, and the

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public, nor does it incorporate impairments related to the inability

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to work under customary pressures.

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explanation for his decision not to incorporate Dr. Kikani’s opinion

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and these limitations in his findings.

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This finding implicitly rejected Dr.

While a limitation to

The ALJ did not provide any

The Agency argues that there was no error because “Dr. Kikani

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never expressed an opinion of Plaintiff’s residual functional

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capacity.”

(JS at 6-7.)

The Court is not persuaded by this argument.

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2

The ALJ also noted that the State Agency doctors opined that Plaintiff should be further limited to working in a non-public setting. (AR 16.) The ALJ omitted the “non-public” restriction from his findings without explanation. (AR 18.) 13

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As the Agency well knows, the determination of residual functional

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capacity is reserved for the Agency, which looks to medical sources to

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provide opinions on the nature and severity of a claimant’s

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impairments.

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did not complete a psychiatric review technique form, his evaluation

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set forth opinions regarding Plaintiff’s mental limitations in terms

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similar to those in the form, specifically that Plaintiff showed:

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moderate impairment in social functioning and daily activities; mild

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to moderate impairment of concentration, persistence, and pace;

20 C.F.R. § 416.927(e)(2).

Moreover, while Dr. Kikani

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moderate impairment in the ability to respond appropriately to co-

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workers, supervisors, and the public; moderate impairment in the

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ability to persist in a work situation under customary pressure; and a

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likelihood to have moderate episodes of emotional deterioration in a

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work situation under customary pressure.

(AR 151.)

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While the Court is mindful of the fact that determination of

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residual functional capacity at step four of the sequential evaluation

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process is the province of the ALJ, the ALJ’s assessment must take

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into account all of Plaintiff’s impairments.

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§§ 416.920a(c), 416.927(e)(2), 416.945, 416.946(b).

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may not reject the opinion of an examining doctor in favor of the

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opinion of a non-examining doctor without setting forth specific,

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legitimate reasons for doing so, which are supported by substantial

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evidence in the record.

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(remanding ALJ’s decision implicitly rejecting opinion of examining

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psychiatrist); and Moore v. Comm’r of the Soc. Sec. Admin., 278 F.3d

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920, 924 (9th Cir. 2002).

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less specific reasons supported by substantial evidence, for rejecting

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Dr. Kikani’s opinion, and, therefore, erred.

20 C.F.R. Moreover, an ALJ

See Nguyen v. Chater, 100 F.3d 1462, 1466

The ALJ failed to give any reasons, much

14

This error requires

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remand for further consideration of Plaintiff’s mental impairments and

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residual functional capacity.

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2.

Assessment of Past Relevant Work

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Plaintiff argues that the ALJ erred in finding that Plaintiff

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could perform her past relevant work because that work encompasses

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more than “simple, repetitive tasks.”

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complains that the ALJ failed to comply with the requirement of SSR

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82-62, which mandate specific factual findings regarding a claimant’s

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prior work.

(JS at 4-6.)

(JS at 3-4).

Plaintiff further

Because the Court has found that the ALJ’s

10

assessment of Plaintiff’s mental residual functional capacity failed

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to incorporate all of Plaintiff’s mental impairments, and that the ALJ

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improperly disregarded Dr. Kikani’s opinion regarding those

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impairments, the Court need not resolve these issues.

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ALJ should perform the step-four analysis and decide whether Plaintiff

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can perform her past work as a housekeeper based upon his conclusion

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on remand as to Plaintiff’s residual functional capacity, and in

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accordance with applicable regulations and rulings.

On remand, the

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3.

19

Plaintiff contends that the ALJ presented an incomplete

Vocational Expert Testimony

20

hypothetical to the vocational expert by failing to include

21

Plaintiff’s specific limitations.

22

inasmuch as the ALJ did not rely on his very restrictive hypothetical,

23

in response to which the vocational expert testified that Plaintiff

24

could not perform any work.

25

Plaintiff could perform light work, and used the vocational expert’s

Plaintiff’s argument is confusing,

(AR 284.)

26 27 28 15

Rather, the ALJ found that

Case 5:06-cv-00027-PJW Document 16 Filed 06/07/07 Page 16 of 18 Page ID #:73

1

testimony that Plaintiff’s past work as a housekeeper was light work

2

to support his step-four conclusion that Plaintiff could perform her

3

past work.3

4

(AR 17-18, 284.)

An ALJ is not required to obtain vocational expert testimony to

5

support his finding that a claimant can perform past work.

Crane v.

6

Shalala, 76 F.3d 251, 255 (9th Cir. 1996).

7

ALJ elected to rely upon expert testimony, implying that he believed

8

that the testimony was necessary in Plaintiff’s case.

9

troubled by the fact that the ALJ relied on this testimony despite the

10

fact that his assessment of Plaintiff’s capacity was more limited than

11

simply “light work,” adding postural, climbing, and mental

12

restrictions not presented to the vocational expert.

In this case, however, the

The Court is

Nevertheless, as

13 14 15 16 17 18 19 20 21

3

The ALJ relied upon his characterization of the vocational expert's testimony regarding Plaintiff's past work, stating that the vocation expert testified that Plaintiff's past work was "light level, unskilled work." (AR 17.) The actual testimony was that: There was work in housekeeping in a convalescent facility, that is light, unskilled, SVP 2. The housekeeping that she mentioned I believe would fall under a category of medium work and unskilled, SVP 2.

22

(AR 284.)

23

Plaintiff testified only about one prior job--as a housekeeper for eight months. (AR 257.) The Court finds this testimony ambiguous, and, therefore, finds it difficult to assess the ALJ’s reliance on it. While the Ninth Circuit has not required an ALJ to make explicit findings at step four regarding past work both as generally performed in the economy and as actually performed by Plaintiff (See Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001), on remand, the ALJ should clarify the record and make specific findings of fact with respect to Plaintiff’s past work in compliance with SSR 82-62.

24 25 26 27 28

16

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1

discussed above, the Court need not decide this issue, as a new step-

2

four analysis must be performed based upon the determination of

3

Plaintiff’s residual functional capacity on remand.

4

D.

5

The ALJ Improperly Discredited Lay Witness Evidence The ALJ rejected the statements of Plaintiff’s sister-in-law in a

6

third-party activities questionnaire on the grounds that she was

7

“colored by affection for the claimant,” and, therefore, not

8

impartial, and that her statements were inconsistent with the medical

9

evidence.

(AR 17.)

Neither ground is a proper basis for rejecting

10

lay testimony.

11

be ground for rejecting his or her testimony.”

12

F.3d 1273, 1289 (9th Cir. 1996).

13

was a family member and saw Plaintiff frequently over an extended

14

period of time, she had particular insight into Plaintiff’s

15

impairments.

16

see the claimant daily, such as family members, are of particular

17

value).

18

“The fact that a lay witness is a family member cannot Smolen v. Chater, 80

In fact, because the sister-in-law

See id. (noting that testimony from lay witnesses who

The ALJ also found that the sister-in-law’s testimony was not

19

credible because it was inconsistent with the preponderance of medical

20

evidence.

This is likewise an improper basis to reject lay witness

21

evidence.

It is precisely this situation--when pain is a significant

22

factor of the claimed disability, and such pain is not supported by

23

objective medical evidence--where the Agency is directed to seek

24

information from knowledgeable third parties regarding daily

25

activities, the claimant’s pain, and its effects on the claimant.

26

88-13; see also Smolen, 80 F.3d at 1289.

27

rejection of the sister-in-law’s statements regarding Plaintiff’s

28

daily activities was in error and should be reconsidered on remand. 17

SSR

Accordingly, the ALJ’s

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1

IV.

2

CONCLUSION

3

For all the foregoing reasons, the Court hereby REVERSES and

4

REMANDS this case to the Agency for further proceedings consistent

5

with this opinion.

6 7

IT IS SO ORDERED.

8 DATED:

June

7

, 2007.

9 10 11 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE

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