Scott Rose v. Jo Anne B Barnhart

Case 2:06-cv-01010-VBK Document 19 Filed 11/15/06 Page 1 of 9 Page ID #:69 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA W...

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Case 2:06-cv-01010-VBK Document 19 Filed 11/15/06 Page 1 of 9 Page ID #:69

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

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SCOTT ROSE,

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Plaintiff,

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v. JO ANNE B. BARNHART, Commissioner of Social Security,

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Defendant.

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

No. CV 06-01010-VBK MEMORANDUM OPINION AND ORDER (Social Security Case)

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This matter is before the Court for review of the decision by the

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Commissioner of Social Security denying Plaintiff’s application for

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disability benefits.

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consented that the case may be handled by the Magistrate Judge.

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action arises under 42 U.S.C. §405(g), which authorizes the Court to

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enter judgment upon the pleadings and transcript of the record before

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the

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supporting memoranda, and the Commissioner has filed the certified AR.

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After reviewing the matter, the Court concludes that the decision of

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the Commissioner must be reversed and the matter remanded for further

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hearing.

Commissioner.

Pursuant to 28 U.S.C. §636(c), the parties have

The

parties

have

filed

their

pleadings

The

and

Case 2:06-cv-01010-VBK Document 19 Filed 11/15/06 Page 2 of 9 Page ID #:70

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Plaintiff raises one issue, that the Administrative Law Judge

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(“ALJ”)

did

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physician.

not

properly

consider

the

opinion

of

his

treating

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The Court also identified a second issue concerning Plaintiff’s

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“past relevant work” (“PRW”), and in a Minute Order dated October 18,

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2006, ordered the parties to file supplemental briefs.

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received and reviewed those briefs.

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addressed first.

The Court has

The issue of PRW will be

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In his decision, the ALJ limited Plaintiff to a range of light

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work, and thus found that he is unable to perform his PRW of plumber,

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which requires heavy exertion. (See Decision, Administrative Record

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[“AR”] at 29.)

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asked

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Plaintiff’s

and

vocational

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profile could perform Plaintiff’s PRW as a “contractor.”

Relying on

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the VE’s testimony that such an individual could not perform this

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occupation as Plaintiff performed it, but could perform it as the

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occupation

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Plaintiff retains the RFC to perform his PRW as a “contractor (sales

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proprietor)”

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Decision, AR at 30, and Finding 7.)

the

This was, however, not the end of the matter.

vocational residual

exists

as

expert

functional

in

it

(“VE”)

the

is

whether

capacity

national

performed

the

individual

(“RFC”)

economy,

in

an

The ALJ

the

ALJ

national

found

economy.

with

that

(See

This finding is erroneous.

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In Plaintiff’s Disability Report Adult he identified his job

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title as “plumbing contractor,” and type of business as “plumber.” (AR

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130.) Plaintiff identified the job he did the longest as “plumber.”

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In describing what he did all day, Plaintiff identified a variety of

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tasks which all involved physical labor.

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machines,

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knowledge and skills, and he did write reports and perform duties like

tools

and

equipment,

in

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He stated that he used

addition

to

using

technical

Case 2:06-cv-01010-VBK Document 19 Filed 11/15/06 Page 3 of 9 Page ID #:71

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that. (Id.)

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the heaviest weight he lifted was 100 pounds or more and that he

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frequently lifted 25 pounds. He indicated that at times he supervised

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two people, but stated that he never hired and fired employees.

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Although he checked “no” in response to the question, “Were you a lead

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worker?”, this would appear to be inconsistent with the fact that he

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was a sole proprietor.

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entirely consistent with the work of a plumber:

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He described extensive lifting and carrying, noting that

Indeed, his testimony at the hearing was

“Q

Okay.

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A

I was a plumbing contractor.

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Q

Okay.

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A

For about 22 years.

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Q

In the last 15 years is that the only type of job you had?

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A

Yes.

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Q

Okay.

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And what was your job?

And how long did you do that?

And as a plumber what did you do, what were your

duties? A

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I did home residents [sic] repair. I did remodeling.

Q

Okay.

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A

Yes.

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Q

–- is that correct?

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A

Very much so.”

That sort of thing.

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I did new construction.

So it was pretty manual labor --

(AR 359-360.)

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The VE elicited the following explanation from Plaintiff as to the nature of his work: “Q

Mr. Rose, as a plumbing contractor, did you employ other people to do the hands on work or did you do both the 3

Case 2:06-cv-01010-VBK Document 19 Filed 11/15/06 Page 4 of 9 Page ID #:72

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contracting and the actual plumbing work?

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A

I did everything.

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Q

All right.

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A

Yes.”

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I was a sole proprietor.

At all times?

(AR 366.)

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The VE described Plaintiff’s work as a “hybrid job.” (AR 366.)

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Thus, he identified Plaintiff as both a plumber, DOT Code 862381030,

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work which entails heavy exertion, and also as a “sole proprietor

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contractor” under DOT Code 182.167-010. (See AR at 367.)

That work

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was described as light in exertion.

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occupation, the VE described it as heavy and skilled. (Id.)

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response to the ALJ’s hypothetical, the VE indicated Plaintiff could

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not perform any of his PRW as he performed it, but, “could perform the

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occupation, contractor, as defined by the Dictionary of Occupational

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Titles.” (Id.)

As Plaintiff performed his In

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20 C.F.R. §§404.1520(e), (f) identifies the expression “past

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relevant work” as an operative concept at the fourth step of the

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sequential evaluation process.

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§404.1560(b)(1), as, “... work that you have done within the past 15

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years, ...” Further assistance is provided in Social Security Rulings

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(“SSR”) 82-61 and 82-62.

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the force and effect of law, they are relevant to construe the Social

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Security Administration’s interpretation of its own regulations and

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the statutes which it is empowered to administer.

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three possible alternative tests are set forth for determining whether

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or not a claimant retains the capacity to perform his or her PRW.

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//

The definition of PRW is set forth in

While Social Security Rulings do not carry

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Under SSR 82-61,

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The first is described as,

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“Whether the claimant retains the capacity to perform

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a past relevant job based on a broad generic, occupational

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classification of that job, e.g., ‘delivery job,’ ‘packaging

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job,’ etc.”

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A second alternative definition is,

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“Whether the claimant retains the capacity to perform

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the particular functional demands and job duties peculiar to

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an individual job as he or she actually performed it.”

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Finally, a third alternative is described as,

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“Whether the claimant retains the capacity to perform

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the

functional

demands

and

job

duties

of

the

job

as

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ordinarily required by employers throughout the national

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economy.”

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In the Ninth Circuit, PRW is defined as not just encompassing a

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claimant’s former job, but his former type of work.

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Heckler, 797 F.2d 794, 798 (9th Cir. 1986).

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See Villa v.

Additional assistance is provided by reference to SSR 82-62, which provides in pertinent part that,

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“The term ‘work experience’ means skills and abilities

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acquired through work previously performed by the individual

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which indicates the type of work the individual may be

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expected to perform.

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demonstrated a capability is the best indicator of the kind

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of work that the individual can be expected to do.”

Work for which the individual has

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Case 2:06-cv-01010-VBK Document 19 Filed 11/15/06 Page 6 of 9 Page ID #:74

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The occupation of “contractor (construction)” identified in DOT

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Code 182.167-010 does not describe Plaintiff’s PRW.

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this

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specialized craft work, such as... plumbing.”

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does not correspond with Plaintiff’s past occupation.

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nothing

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employees; indeed, the record is clear that he did not.

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did all the manual work himself.

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plumber must fill out paperwork, such as invoices and purchase orders,

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and must comply with building codes and the like in performing his

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physical tasks. But Plaintiff’s own self-description of his past work

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as

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contractor.

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converted it into two separate occupations - plumber and contractor -

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and then found that although he could not work as a plumber, he could

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work as a contractor.

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relationship to Plaintiff’s true occupation as a plumber. The fact

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that Plaintiff described himself in part as a “plumbing contractor” is

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insufficient

to

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contractor.

As the occupation is described in the DOT, and as the

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Court has already noted, a contractor subcontracts specialized craft

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work.

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case from the case cited to the Court by the Commissioner in her

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supplemental brief, Andrade v. Secretary of Health and Human Services,

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985 F.2d 1045, 1050 (10th Cir. 1993).

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adduced in the record clearly indicate that the claimant did both

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heavy physical labor and also functioned as a contractor, with

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employees who performed the heavy labor.

job

description

in

the

“plumbing

record

states

to

contractor”

that

the

indicate

does

that

In particular,

contractor

“subcontracts

It is clear that this

Plaintiff

There is

ever

had

any

In fact, he

It is common knowledge that a

not

translate

into

a

PRW

as

a

In effect, the ALJ took Plaintiff’s PRW as a plumber,

allow

This is simply word alchemy, without any

the

ALJ

to

elevate

his

PRW

to

that

of

Plaintiff never did this, which factually distinguishes his

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In that case, the facts as

The fact that Mr. Andrade

Case 2:06-cv-01010-VBK Document 19 Filed 11/15/06 Page 7 of 9 Page ID #:75

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also chose to be “hands on” and do some of the heavy labor involved in

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construction was relevant to identifying his PRW as, in effect, a

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hybrid occupation encompassing both the heavy exertional requirements

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of a laborer, and the light exertional demands of a contractor.

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Therefore, the ALJ in that case properly found that the claimant both

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performed actual labor and also discharged all the duties of a general

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contractor. (Id. at 1051.)

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within the ALJ’s purview to conclude that the claimant “retained the

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capacity to perform the job of general contractor as that job is

The appellate court held that it was

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generally performed in the national economy.” (Id.)

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this case, however, does not support such a conclusion, although the

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ALJ similarly attempted to divide Plaintiff’s PRW into one which

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entails heavy exertion (plumber) and one which entails only light

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exertion (contractor).

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four, when the ALJ found that Plaintiff, whose RFC allows him to

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perform

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“contractor.”

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sometimes

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occupation of contractor is defined not by Plaintiff’s description of

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himself, but by the specific requirements and duties, exertional and

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otherwise, described in the DOT Listings.

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convert Plaintiff’s true past occupation into another occupation which

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Plaintiff never performed. On remand, if the matter gets to step four

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of

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identified as plumber.

the

light

work,

The record in

Without doubt, error was committed at step

could

perform

past

relevant

work

as

a

Plaintiff was a plumber who characterized himself as

being

a

sequential

plumbing

contractor.

evaluation

process,

The

point

is

that

the

The Commissioner may not

Plaintiff’s

PRW

will

be

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The Court will now turn to Plaintiff’s stated issue, that the ALJ

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failed to properly evaluate the opinion on his treating physician, Dr.

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Byun.

Plaintiff principally cites a “Medical Questionnaire” (AR 3067

Case 2:06-cv-01010-VBK Document 19 Filed 11/15/06 Page 8 of 9 Page ID #:76

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309), which Dr. Byun completed on December 10, 2003.

This medical

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questionnaire must be considered in context of Plaintiff’s illness of

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Waldenstrom’s Macroglobulinemia, a form of cancer. (See description at

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265-269.)

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symptoms of this illness, which include fatigue, dizziness, and

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blurred vision. The Court has carefully reviewed Dr. Byun’s treatment

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notes,

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abundantly clear that fatigue, likely from Plaintiff’s cancer, has

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been an ongoing issue throughout his treatment from 2001 to 2004. (See

There is no dispute that there are various possible

reflecting

many

consultations

with

Plaintiff,

and

it

is

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citations to the record at Joint Stipulation [“JS”] p. 8.)

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apparently described at times as mild fatigue, it is also chronic and

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unremitting.

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substantial evidence in the record that this fatigue was due to

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Plaintiff’s other severe impairment of Hepatitis C.

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the record in the Commissioner’s portion of the JS do not in any

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manner establish this to a medical certainty. Moreover, in relying on

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the one-time examination of July 16, 2002 by the consultative examiner

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(“CE”),

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chronological record of fatigue which is documented in the record.

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Clearly, there is no way that a one-time examiner could evaluate the

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longitudinal

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impairment, although Dr. Enriquez did note, on physical examination,

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that Plaintiff appeared weak, and the ALJ at least acknowledged this

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in his decision. (See AR at 271, 25.)

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evaluation (see AR at 27, 30, Finding 6) entirely omits any allowance

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pertaining to Plaintiff’s chronic fatigue or weakness, and instead

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posits that he can perform the full range of light work.

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consistent with the hypothetical question posed by the ALJ to the VE

Dr.

Although

Contrary to the Commissioner’s contention, there is no

Enriquez

effects

(see

of

AR

at

weakness

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270-273),

or

the

fatigue

The citations to

ALJ

from

ignored

the

Plaintiff’s

Despite this, the ALJ’s RFC

This is

Case 2:06-cv-01010-VBK Document 19 Filed 11/15/06 Page 9 of 9 Page ID #:77

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(AR 367).

Since the hypothetical question was incomplete, even if

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Plaintiff did have a past occupation as contractor (which the Court

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has found he did not), the hypothetical question would not have

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established his ability to perform even that occupation.

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The Court also notes that at the first hearing in this matter, on

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December 15, 2003 (AR 351-354), Dr. Maxwell, a medical expert (“ME”),

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was present.

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record was closed, and the ALJ thereafter dismissed the matter, only

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to have it reinstated by the Appeals Council.

Because Plaintiff did not appear at that hearing, the

At the hearing held on

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November 19, 2004 (AR 355-369), no ME was present to testify.

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seems to the Court that the assistance of an ME to interpret the

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medical records, and in particular the chronic and residual effects

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from Plaintiff’s cancer, would be necessary in a new hearing.

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For the foregoing reasons, the decision of the ALJ is reversed, and the matter is remanded for a new hearing. IT IS SO ORDERED.

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DATED: November 15, 2006

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It

/s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE

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