Socorro Berenguer v. Jo Anne B Barnhart

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 1 of 27 Page ID #:69 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALI...

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Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 1 of 27 Page ID #:69

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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10 11 12 13 14 15 16

SOCORRO BERENGUER,

) ) Plaintiff, ) ) v. ) ) JO ANNE B. BARNHART, Commissioner) of Social Security, ) ) Defendant. ) )

No. CV 05-04134-SS MEMORANDUM DECISION AND ORDER

17 18

Plaintiff Socorro Berenguer brings this action seeking to overturn

19

the decision of the Commissioner of the Social Security Administration

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(hereinafter the “Commissioner” or the “Agency”) denying her application

21

for Supplemental Security Income (“SSI”).

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a remand.

23

U.S.C. § 636(c), to the jurisdiction of the undersigned United States

24

Magistrate Judge. This matter is before the Court on the parties’ Joint

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Stipulation (“JS”) filed on February 10, 2006.

26

below, the decision of the Commissioner is REVERSED AND REMANDED.

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\\

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Alternatively, she asks for

On October 12, 2005, the parties consented, pursuant to 28

For the reasons stated

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 2 of 27 Page ID #:70

PROCEDURAL HISTORY

1 2

On January 6, 2003, Plaintiff protectively filed an application for

3 4

SSI benefits.

(Administrative Record (“AR”) 83-95).

She claimed that

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she became unable to work on August 15, 2001 due to arthritis, diabetes,

6

high blood pressure, dizziness, chronic allergies, a broken knee cap,

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abnormal heart beats and tumors on her head.

(AR 108).

8 The Agency denied Plaintiff’s application on June 26, 2003.1

9

Thereafter,

Plaintiff

requested

10

64-67).

11

Administrative Law Judge (“ALJ”).

12

Joel B. Martinez was conducted on September 2, 2004.2

13

Plaintiff, who was represented by counsel, testified on her own behalf.

14

(AR 355-69).

15

On October 14, 2004, the ALJ issued a decision denying benefits.

16

44-55).

17

request for review and the ALJ’s decision became the final decision of

18

the Commissioner. (AR 5-7). Plaintiff subsequently filed her Complaint

19

on June 10, 2005.

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\\

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(AR 68-69).

a

hearing

before

(AR an

A hearing before ALJ

A vocational expert (“VE”) also testified.

(AR 352-76).

(AR 369-70). (AR

On April 15, 2005, the Appeals Council denied Plaintiff’s

24 25 26 27 28

1

This being a prototype case, the next level of review was before an Administrative Law Judge. (AR 47, 65). 2

The hearing was originally set for April 19, 2004, but Plaintiff did not attend the hearing because she was being held in a psychiatric facility during this time. (AR 82, 244). 2

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 3 of 27 Page ID #:71

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FACTUAL BACKGROUND

2 3

A.

Plaintiff’s Testimony and Daily Activities Questionnaire

4 5

Plaintiff testified at the hearing with the help of a translator.

6

She was born on June 28, 1945, and was fifty-nine years old at the time

7

of the hearing.

8

she was thirty years old and spoke only a “little bit” of English.

9

finished twelve years of education in Cuba.

(AR 355-56).

She stated that she moved from Cuba when

(AR 356).

She

She was

10

divorced, had five children, and lived by herself in a studio apartment

11

in Glendale.

12

she claimed that she drove only “a little,” not “long way,” and that one

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of her daughters drove her when she needed to go to the hospital or

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anywhere else.

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through welfare.

16

month.

(AR 357-58).

Although she had a valid driver’s license,

Plaintiff testified that she now supported herself She received about $221 and $140 in food stamps a

(AR 359; see also AR 90).

17 Plaintiff worked for twenty years as a housekeeper for Prudential

18 19

Insurance Company, cleaning offices.

20

time taking caring of elderly people in their homes and also took care

21

of her granddaughter.

22

364).

(AR 362-64).

(AR 360).

She also worked full-

She has not worked since 2001.

(AR

23 24

Plaintiff testified to having numerous ailments, including bunions,

25

shortness of breath, hearing voices, crying, sleep problems, and “very

26

bad” nerves.

(AR 365).

She also stated that she had “a lot of pain” in

27 28 3

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 4 of 27 Page ID #:72

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her shoulders.3

2

she answered, “I hear voices.”

3

receiving mental health treatment for this problem and was prescribed

4

Prozac and Risperdal.

5

of her daughter’s death, she heard voices “telling [her] to kill

6

[herself].”

7

“afraid to look [at herself] in the mirror” because she would have

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visual hallucinations of her “face with wrinkles.”

(AR 365, 368).

When asked what was her worst problem, (AR 364-67).

(AR 365-66).

(AR 367).

She stated that she was

She asserted that, after learning

In addition, Plaintiff claimed that she was

(AR 366-67).

9 10

Plaintiff stated that, on April 12, 2004, she was admitted into a

11

psychiatric facility (Olive View) for twelve days because she was

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“hearing voices” and had suicidal impulses.

13

Plaintiff testified that the prescriptions helped her and she did not

14

want to kill herself anymore.

15

she did not have the financial resources to continue receiving the

16

medications.4

(AR 366, 367).

(AR 244, 366, 369).

However, she stated that

(AR 367-69).

17 18

Plaintiff testified that even after she started hearing voices, she

19

continued to live alone. However, she stated that her daughter lived in

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the house in front of her.

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own cooking, Plaintiff stated that she drank soup that she “already

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made,” or ate sandwiches.

(AR 368).

When asked whether she did her

Sometimes, her neighbor gave her some food.

23 24 25 26 27 28

3

Plaintiff asserted to having additional impairments, including the inability to “walk very much” and “shortness of breath.” (AR 365). However, Plaintiff has not raised any issues pertaining to these impairments, and therefore the Court will not address them. 4

Plaintiff stated that her doctor at the Verdugo Mental Health Center required Medi-Cal or another form of payment in order to continue prescribing the medications. (AR 367-69). 4

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 5 of 27 Page ID #:73

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(AR 368).

2

that she prepared and cooked her own meals, including “soup, vegetables,

3

and sandwiches.”

4

times a week and was able to do the laundry and cleaning without

5

assistance. Plaintiff indicated that she went out of her home about two

6

or three times a week, either driving herself or catching a ride.

7

went to the market, to the doctor’s offices, to the hospital, and to the

8

welfare office.

9

about three hours and reading for about an hour each day.

10

131).

11

(AR 130).

In her Daily Activities Questionnaire, Plaintiff confirmed

(AR 129).

She also went grocery shopping one or two

(AR 130).

She

Plaintiff spent the day watching TV for (AR 130,

She remembered the programs she watched and the books she read.

12 13

Plaintiff also indicated that she did not have difficulties getting

14

along with family, friends, neighbors, co-workers or others.

(AR 131).

15

She visited with family or friends on a daily basis.

16

not have any difficulties in following written or verbal instructions.

17

(AR 131).

18

and concentrating.

(AR 131).

She did

However, she claimed that she sometimes had trouble sleeping (AR 129, 131).

19 20

B.

Treating Physicians’ Evaluations

21 1.

22

Verdugo Mental Health Center

23 24 25

Dr.

Richard

Ciasca,

a

psychiatrist,

was

Plaintiff’s

treating

physician at the Verdugo Mental Health Center from May 17, 2004 to

26 27 28 5

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 6 of 27 Page ID #:74

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January 18, 2005.5

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major depressive disorder with psychotic features.

3

In addition, Dr. Ciasca conducted a mental status examination (“MSE”) on

4

May 17, 2004 and determined the following:

(AR 276-285).

Dr. Ciasca diagnosed Plaintiff with (AR 276-81, 284).

5 6

MSE: O[riented] times three.

7

contact.

8

[suicidal] ideation.

Not tangential or circumstantial.

9

racing or pressured.

Memory intact.

Normal

flow

and

Mood depressed. content

of

Gi[v]es good

thought.

Denies Not

10 11

(AR 276).

12 13

Throughout the course of treatment, Dr. Ciasca noted Plaintiff’s

14

complaints of depression.

15

became depressed after hearing of her daughter’s death on August 2003.6

16

(AR 276-77). Dr. Ciasca also recorded Plaintiff’s statements concerning

17

her visual and auditory hallucinations.

18

asserted

19

[Plaintiff] to join [the daughter].”

that

she

heard

(AR 276-81, 284).

her

Plaintiff stated that she

(AR 276-81, 284).

deceased

daughter’s

(AR 277).

voice

Plaintiff “asking

Plaintiff also stated

20 21 22 23 24

5

Plaintiff first began receiving treatment from the Verdugo Mental Health Center on April 28, 2004. (AR 270-85). On that day, Dr. Hsing-Fang Chang conducted an intake assessment and diagnosed Plaintiff’s with major depressive disorder with psychotic features. (AR 270-75). Dr. Chang also concluded that Plaintiff’s GAF was 30. (AR 275). 6

25 26 27 28

Plaintiff has experienced other episodes of depression. For example, Plaintiff stated that her divorce in 1982 led to depression and auditory hallucinations. (AR 276). Additionally, Plaintiff stated that she felt depressed and had psychotic symptoms on the first week of April 2004, after her daughter “want[ed] to kick [her] out” of the apartment. (AR 277). Plaintiff lives alone in the back unit of her daughter’s property. (AR 94, 273). 6

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that she was having visual hallucinations of wrinkles on her face and of

2

appearing very old.

(AR 279).

3 Plaintiff reported that medications helped her sleep better and

4 5

helped control her depression and psychotic symptoms.

6

On October 6, 2004, Dr. Ciasca recorded that Plaintiff was not currently

7

hearing

8

Plaintiff denied having suicidal ideations.

9

Dr. Ciasca noted that Plaintiff missed two consecutive appointments.

10

voices.

(AR

281).

Throughout

the

(AR 276, 279).

course

of

(AR 276-80).

treatment,

In addition,

(AR 282-83).

11 12

On January 18, 2005, Dr. Ciasca completed a mental impairment

13

questionnaire. (AR 260-68). He concluded that, “due to [the] nature of

14

[her]

15

maintaining work.”

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moderate

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difficulties in maintaining social functioning; frequent deficiencies of

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concentration,

19

deterioration in work settings.7

20

Plaintiff’s Global Assessment of Functioning (“GAF”) score at that time

21

was 45.8

illness

and

disabil[i]ty, (AR 263).

restrictions

in

persistence

(AR 260).

her

or

[Plaintiff]

would

have

problems

Specifically, Plaintiff would have daily

pace;

living

and

(AR 263).

activities;

repeated

marked

episodes

of

Dr. Ciasca determined that

The clinical findings were based on Plaintiff’s

22 23 24

7

263).

“Marked” means more than moderate but less than extreme. “Repeated” means three or more. (AR 263).

8

25 26 27 28

(AR

A GAF score is the clinician’s judgment of the individual’s overall level of functioning. It is rated with respect only to psychological, social and occupational functioning, without regard to impairments in functioning due to physical or environmental limitations. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed. 2000) (hereinafter “DSM IV”). 7

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 8 of 27 Page ID #:76

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history of depression with psychotic symptoms and her complaints of

2

experiencing auditory hallucinations, dysphoria and depression.9

3

261).

4

Plaintiff’s mental health, but that she still had symptoms of illness.10

5

(AR 261).

(AR

Dr. Ciasca noted that the medications had slightly improved

6 7

2.

Broadway Family Medical Center

8 9

Plaintiff received treatment from the Broadway Family Medical

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Center from October 23, 2002 to January 21, 2005.

11

record contains treatment notes from Drs. Leonardo Garduno and Vardui

12

Arutyunyan.

13

having problems with her family and that she was tearful.

14

However, Plaintiff denied having suicidal ideation.

(AR 307-45).

The

On January 2, 2005, Dr. Garduno noted that Plaintiff was (AR 308).

(AR 308).

15 16

Throughout the course of treatment, Drs. Garduno and Arutyunyan

17

diagnosed Plaintiff with numerous physical ailments, including non-

18

insulin dependent diabetes mellitus, hypertension and left “frozen

19 20 21 22 23 24 25 26

A GAF of 41-50 denotes “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” DSM IV at 34. 9

Dr. Ciasca noted that Plaintiff had the following symptoms: poor memory, sleep disturbance, mood disturbance, delusions or hallucinations, perceptual disturbances, social withdrawal or isolation, decreased energy, anhedonia or pervasive loss of interests and feelings of guilt/worthlessness. (AR 260-61). However, contrary to his finding of “poor memory,” Dr. Ciasca concluded, after conducting the MSE, that Plaintiff’s memory was “intact.” (AR 276).

27 10

28

10mg.

Plaintiff was being treated with Risperdal 1mg and Prozac (AR 261, 263). 8

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 9 of 27 Page ID #:77

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shoulder.”

(AR 308, 312, 316, 318, 321, 323, 325, 327, 329, 336, 338,

2

341).

3

of motion of Plaintiff’s left shoulder was limited to 90° in all

4

directions.

In particular, on June 3, 2003, Dr. Garduno noted that the range

(AR 327).

5 3.

6

Olive View - UCLA Medical Center

7 Plaintiff received medical care from Olive View from October 25,

8 9

2002 to April 12, 2004.

(AR 167-80, 237-39, 243-44).

On January 30,

10

2003, Dr. Katherine Yu noted a multitude of medical problems, including

11

uncontrolled diabetes, left leg pain and left shoulder pain. A physical

12

exam showed limited range of motion in Plaintiff’s left shoulder.

13

Yu referred Plaintiff to physical therapy for the shoulder pain. Dr. Yu

14

also noted depression after Plaintiff reported feeling “abandoned” by

15

her children.

16

Medical Center, the doctors at this facility also diagnosed Plaintiff

17

with diabetes mellitus and hypertension.”

18

In addition, on April 12, 2004, Plaintiff was involuntarily admitted

19

into Olive View because she stated that she was going to kill herself.

20

(AR 295).

(AR 167).

Dr.

Similar to the doctors at the Broadway Family

(AR 167, 169, 170,

176-80).

21 C.

22

Consultative Evaluations

23 24

Plaintiff underwent multiple consultative examinations.

On April

2003,

medicine

25

12,

Dr.

Alexandre

26

evaluation.

27

Plaintiff’s left shoulder was “50% of the predicted.”

28

Mihelson opined that Plaintiff could push, pull, lift and carry about

(AR 181-186).

Mihelson

conducted

an

internal

He determined that the range of motion of

9

(AR 184).

Dr.

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 10 of 27 Page ID #:78

1

fifty pounds occasionally and about twenty-five pounds frequently; could

2

stand and walk for six hours and sit unlimitedly in an eight-hour

3

workday;

4

stooping, crouching and crawling; had no environmental restrictions; and

5

had no restrictions in the use of her hands for fine and gross

6

manipulations.

had

postural

restrictions

including

bending,

kneeling,

(AR 185).

7 8

On June 5, 2003, Dr. Albert Shnaider conducted a psychiatric

9

evaluation and determined that Plaintiff had an adjustment disorder with

10

depression and anxiety, due to family difficulties.11

11

Shnaider reasoned that Plaintiff’s symptoms were consistent with his

12

diagnosis because Plaintiff’s physical complaints did not appear to

13

significantly

14

Specifically, Plaintiff stated that she had been depressed and anxious

15

since September 2002 due to conflicts with her daughter and financial

16

difficulties.

17

move out of her daughter’s apartment, her psychiatric problems would

18

resolve.

19

treated by a mental health physician and was able to maintain an

20

independent lifestyle, i.e., could take care of her activities of daily

21

living independently unless limited by pain.

influence

(AR 188).

(AR 188-89).

her

psychological

(AR 192).

conditions.

(AR

Dr.

192).

Plaintiff thought that if she were able to

Despite her complaints, she had never been

(AR 192).

22 23

The MSE did not reveal any evidence of deficiencies in Plaintiff’s

24

attitude

25

concentration, abstract thinking, judgment or reality contact (i.e.,

and

behavior,

intellectual

functioning

and

sensorium,

26 27 11

28

Due to Plaintiff’s inability to proficiently communicate in English, an interpreter was used. (AR 188). 10

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 11 of 27 Page ID #:79

1

Plaintiff did not have auditory or visual hallucinations).12

2

92). However, Plaintiff’s mood was described as depressed but Plaintiff

3

did not have suicidal ideation.

4

Plaintiff’s GAF at 60 to 65.13

(AR 191).

(AR 191-

Dr. Shnaider assessed

(AR 192).

5 6

Dr. Shnaider noted that, during the examination, Plaintiff became

7

briefly tearful while she was describing her stressors, but was able to

8

reconstitute herself quickly and effectively. (AR 192). Therefore, Dr.

9

Shnaider concluded that Plaintiff might do particularly well if she

10

worked in a fairly isolated work environment.

(AR 193).

Still, she

11

should be able to interact with other individuals appropriately, as she

12

has the capacity to reconstitute herself from tearfulness quickly and

13

effectively.

(AR 193).

14 15

Dr. Schnaider concluded that Plaintiff should be able to follow

16

simple to moderately complex oral and written directions appropriately

17

and work without supervision. (AR 193). Additionally, Plaintiff should

18

be able to adapt appropriately to routine changes in the work setting

19

and,

if

properly

motivated,

she

should

be

able

to

maintain

an

20 21 22 23 24 25 26 27 28

12

Additionally, when asked about her history of illnesses, Plaintiff denied having psychotic symptoms. (AR 189). 13

A GAF of 51-60 indicates “[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).” See DSM IV at 34. A GAF of 61-70 denotes “[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationship).” Id. 11

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1

appropriate mental pace, grooming and attendance for a simple work

2

environment.

(AR 193).

3 4

On June 4, 2004, Dr. Edward Ritvo conducted another psychiatric

5

evaluation and diagnosed Plaintiff with depressive reaction due to her

6

mourning the loss of her daughter.

7

since learning of her daughter’s death in the summer of 2003, she had

8

been crying daily and hearing the deceased daughter’s voice in her head.

9

(AR

246).

Dr.

Ritvo

opined

(AR 245-50).

that

Plaintiff

Plaintiff stated that

was

not

having

true

10

hallucinations, but rather that this was part of her grieving process.

11

(AR 246).

12 The MSE revealed that Plaintiff’s thought process was coherent and

13 14

organized,

thought

content

was

15

pleasant and cheerful, intellectual functioning was “at least average”

16

and insight and judgment were intact.

17

that Plaintiff “cried in an appropriate manner” when Plaintiff discussed

18

her daughter’s death.

19

60.

20

understand, remember or complete simple or complex commands.

21

Plaintiff should be able to interact appropriately with supervisors, co-

22

workers or the public, and properly respond to changes in the workplace

23

setting.

(AR 249).

not

psychotic,

mood

(AR 248-49).

was

friendly,

Dr. Ritvo noted

Dr. Ritvo assessed Plaintiff’s GAF at

He concluded that Plaintiff had no impairment in her ability to (AR 250).

(AR 250).

24 25

D.

Radiologists’ Evaluations

26 27

On June 5, 2003, Dr. Marvin Weiner x-rayed Plaintiff’s left

28

shoulder and found no evidence of fracture, dislocation, or other 12

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 13 of 27 Page ID #:81

1

osseous or articular abnormality.

2

appeared normal.

(AR 194).

The regional soft tissue

(AR 194).

3 E.

4

Non-Examining Physician’s Evaluation

5 6

On

April

23,

2003,

a

physical

residual

functional

capacity14

7

(hereinafter “RFC”) assessment was completed by Dr. Cohenzadeh, a state

8

Disability Determination Service (hereinafter “DDS”) physician.

9

197-204).

(AR

Dr. Cohenzadeh concluded that Plaintiff could conduct medium

10

work. (AR 197-204). Specifically, Plaintiff could occasionally lift or

11

carry fifty pounds; frequently lift or carry twenty-five pounds; stand

12

or walk for about six hours; and sit for about six hours.

13

Dr. Cohenzadeh opined that Plaintiff had no limitations in her ability

14

to reach.

(AR 198).

(AR 200).

15 16

On

June

26,

2003,

Dr.

Stone

completed

a

psychiatric

opined

that

Plaintiff

17

technique

18

adjustment disorder but that the impairment was not severe.

19

209, 211, 218).

20

work.

form.

(AR

206-19).

He

review had

an

(AR 206,

Therefore, Plaintiff was capable of performing complex

(AR 218).

21 22

F.

Vocational Expert’s Testimony

23 24 25

Ms. Elizabeth Brown testified at the hearing as a VE. She asserted that

Plaintiff’s

past

relevant

position

as

a

cleaner/housekeeper

26 27 28

14

RFC is “what [one] can still do despite [his] limitations” and represents an “assessment based upon all of the relevant evidence.” 20 C.F.R. §§ 404.1545(a), 416.945(a). 13

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 14 of 27 Page ID #:82

1

required light exertion and was considered to be unskilled.

2

Plaintiff’s past position as a caregiver required medium exertion and

3

was

4

hypothetical to Ms. Brown involving an individual of the same age,

5

education and vocational background as Plaintiff, with the RFC to

6

perform medium work.15

7

the individual would have occasional postural limitations, and could

8

perform simple to moderately complex work but could not perform above-

9

shoulder work with the left arm.

considered

to

be

semiskilled.

(AR 370).

(AR

370).

The

ALJ

(AR 370).

posed

a

The ALJ’s hypothetical indicated that

(AR 370).

Ms. Brown opined that the

10

individual could not perform Plaintiff’s past relevant work as a

11

caregiver because of the limitation in above-shoulder lifting.

12

370).

13

Plaintiff’s past work as a cleaner/housekeeper.

(AR

However, Ms. Brown concluded that the individual could perform (AR 370).

14 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

15 16 17

To qualify for disability benefits, a claimant must demonstrate a

18

medically determinable physical or mental impairment that prevents him

19

from engaging in substantial gainful activity16 and that is expected to

20

result in death or to last for a continuous period of at least twelve

21

months.

22

U.S.C. § 423(d)(1)(A)).

23

incapable of performing the work he previously performed and incapable

Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 The impairment must render the claimant

24 25

15

At the time of the hearing, Plaintiff was fifty-nine years old, thereby placing her in the advanced age category. (AR 369-70).

26 16

27 28

Substantial gainful activity means work that involves doing significant and productive physical or mental duties, and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 14

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 15 of 27 Page ID #:83

1

of performing any other substantial gainful employment that exists in

2

the national economy.

3

1999) (citing 42 U.S.C. § 423(d)(2)(A)).

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.

4 5 6

To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry.

20 C.F.R. §§ 404.1520, 416.920.

The steps are:

7 8

(1)

9

activity? If so, the claimant is found not disabled. If

10 11

Is the claimant presently engaged in substantial gainful

not, proceed to step two. (2)

Is

the

claimant’s

impairment

12

claimant is found not disabled.

13

three.

14

(3)

severe?

If

not,

the

If so, proceed to step

Does the claimant’s impairment meet or equal one of a

15

list of specific impairments described in 20 C.F.R. Part

16

404, Subpart P, Appendix 1? If so, the claimant is found

17

disabled.

18

(4)

If not, proceed to step four.

Is the claimant capable of performing his past work?

19

so, the claimant is found not disabled.

20

to step five.

21

(5)

If

If not, proceed

Is the claimant able to do any other work?

If not, the

22

claimant is found disabled. If so, the claimant is found

23

not disabled.

24 25

Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d

26

949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098-99); 20

27

C.F.R. §§ 404.1520(b) - 404.1520(f)(1) & 416.920(b) - 416.920(f)(1).

28 15

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 16 of 27 Page ID #:84

1

The claimant has the burden of proof at steps one through four, and

2

the Commissioner has the burden of proof at step five.

3

F.3d at 953-54 (citing Tackett, 180 F.3d at 1098).

4

ALJ has an affirmative duty to assist the claimant in developing the

5

record at every step of the inquiry.

6

claimant meets his burden of establishing an inability to perform past

7

work, the Commissioner must show that the claimant can perform some

8

other work that exists in “significant numbers” in the national economy,

9

taking into account the claimant’s RFC, age, education, and work

Id. at 954.

Bustamante, 262

Additionally, the

If, at step four, the

Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721;

10

experience.

11

20 C.F.R. §§ 404.1520(f)(1), 416.920(f)(1).

12

by the testimony of a vocational expert or by reference to the Medical-

13

Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P,

14

Appendix 2 (commonly known as “the Grids”).

15

F.3d 1157, 1162 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1100-01).

16

When a claimant has both exertional (strength-related) and nonexertional

17

limitations, the Grids are inapplicable and the ALJ must take the

18

testimony of a vocational expert.

19

(9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir.

20

1988)).

The Commissioner may do so

Osenbrock v. Apfel, 240

Moore v. Apfel, 216 F.3d 864, 869

21 22

THE ALJ’S DECISION

23 24

The

ALJ

employed

the

five-step

sequential

evaluation

process

25

discussed above.

26

not engaged in substantial gainful activity since her alleged onset of

27

disability.

28

Plaintiff

At the first step, the ALJ found that Plaintiff had

(AR 48, 54).

had

the

At the second step, the ALJ determined that

medically

determinable 16

impairments

of

diabetes

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 17 of 27 Page ID #:85

1

mellitus,

hypertension,

small

osteophytes

of

the

thoracic

spine,

2

arthralgias and age-related osteoarthritis, a depressive disorder, a

3

history of “left frozen shoulder” and a sacralized L5.

4

These impairments, in combination, were deemed to be “severe.”

5

54).

6

or medically equal any of the impairments set forth in 20 C.F.R. Part

7

404, Subpart P, Appendix 1.

(AR 49, 54). (AR 49,

At the third step, the ALJ found that the impairments did not meet

(AR 49, 54).

8 9

At the fourth step, the ALJ found that Plaintiff was able to

10

perform her past relevant work as a cleaner/housekeeper.

(AR 49, 54).

11

This determination was based on the ALJ’s finding that Plaintiff

12

retained the physical RFC to occasionally lift and carry fifty pounds;

13

frequently lift and carry twenty-five pounds; stand and/or walk for six

14

hours and sit for six hours in an eight-hour workday; and occasionally

15

climb, balance, stoop, kneel, crouch and crawl.

16

the ALJ determined that Plaintiff was unable to perform above-shoulder

17

work with her upper left extremity.

18

concluded that Plaintiff retained the mental RFC to perform simple to

19

moderately complex work.17

(AR 52, 54).

(AR 52, 54).

However,

In addition, the ALJ

(AR 52, 54).

20 21

Because Plaintiff’s past work as a cleaner/housekeeper did not

22

require the performance of work-related activities precluded by her RFC,

23 24 25 26 27 28

17

The ALJ found that, based on the objective medical evidence before him, Plaintiff had no mental limitations. (AR 51). However, the ALJ gave Plaintiff “the greatest benefit of the doubt” on account of her history of depression and her mourning the loss of her daughter and accepted Dr. Schnaider’s opinion that Plaintiff was limited to the performance of simple to moderately complex work. (AR 51). 17

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 18 of 27 Page ID #:86

1

the ALJ concluded that Plaintiff was not disabled at any time through

2

the date of the decision.

(AR 54-55).

3 STANDARD OF REVIEW

4 5 Under

6

42

U.S.C.

§

405(g),

a

district

court

may

review

the

7

Commissioner’s decision to deny benefits.

The court may set aside the

8

Commissioner’s decision when the ALJ’s findings are based on legal error

9

or are not supported by substantial evidence in the record as a whole.

10

Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing

11

Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th

12

Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)).

13 “Substantial evidence is more than a scintilla, but less than a

14 15

preponderance.”

16

112 F.3d 1064, 1066 (9th Cir. 1997)).

17

reasonable person might accept as adequate to support a conclusion.”

18

Reddick, 157 F.3d at 720 (citing Jamerson, 112 F.3d at 1066; Smolen, 80

19

F.3d at 1279).

20

finding, the court must “‘consider the record as a whole, weighing both

21

evidence

22

[Commissioner’s] conclusion.’”

23

v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).

24

reasonably support either affirming or reversing that conclusion, the

25

court may not substitute its judgment for that of the Commissioner.

26

Reddick, 157 F.3d at 720-21 (citing Flaten v. Sec’y of Health & Human

27

Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)).

28

\\

that

Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, It is “relevant evidence which a

To determine whether substantial evidence supports a

supports

and

evidence

that

detracts

from

the

Aukland, 257 F.3d at 1035 (citing Penny

18

If the evidence can

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 19 of 27 Page ID #:87

1 2

DISCUSSION

3 4

A.

Plaintiff’s

5

Shoulder

Limitations

Did

Not

Prevent

Her

From

Performing Her Past Relevant Work As A Housekeeper

6 7

Plaintiff argues that the ALJ erred in finding that Plaintiff could

8

work as a cleaner/housekeeper because this work necessarily requires the

9

use

10

of

her

upper

left

extremity,

inability to perform such work.

which

is

inconsistent

with

her

(JS at 5).

11 12

At step four of the sequential evaluation, claimants have the

13

burden of showing that they can no longer perform their past relevant

14

work.

15

the claimant at step four, the ALJ “still has a duty to make the

16

requisite

17

Massanari, 249 F.3d 840, 844 (9th Cir. 2001) (citing Social Security

18

Ruling (hereinafter “SSR”) 82-62).

19

functional

20

claimant’s past work and make findings of fact as to the past work’s

21

requirements. 20 C.F.R. § 404.1520(e); SSR 82-62. The claimant must be

22

able to perform the job as he actually performed it, or as it is

23

generally performed in the national economy.

24

SSR 82-61.

25

testimony that contradicts the DOT if the record contains persuasive

26

evidence to support the deviation.

27

1428, 1435 (9th Cir. 1995).

20 C.F.R. § 404.1520(e).

factual

findings

capacity

and

the

Although the burden of proof lies with

to

support

his

decision.”

Pinto

v.

The ALJ must look at the “residual

physical

and

mental

demands”

of

the

Pinto, 249 F.3d at 844;

In making his assessments, the ALJ may rely on the VE’s

28 19

See Johnson v. Shalala, 60 F.3d

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 20 of 27 Page ID #:88

According

1

to

DOT

code

323.687-014,

the

occupation

of

a

2

cleaner/housekeeper requires the ability to “frequently” reach.18

3

257).

4

rebuttable presumption regarding certain jobs and require that the ALJ

5

take notice of the DOT’s classifications.

6

(5)(e).

7

the DOT, because Plaintiff is unable to perform the act of “frequently

8

reaching” due to the limitations of her left shoulder.19

9

Plaintiff concedes that the DOT is silent as to whether bilateral

(AR

The regulations provide that DOT classifications provide a

20 C.F.R. § 404.1566(d)(2)-

Here, Plaintiff contends that the VE’s testimony deviated from

(JS at 5).

10

reaching is a required element of a cleaner/housekeeper.

(JS at 13).

11

However, she contends that the burden is on the ALJ to inquire further

12

of the VE as to whether bilateral reaching is required.

(JS at 13-14).

13 14

In his hypothetical, the ALJ asked the VE, Ms. Brown, whether an

15

individual possessing Plaintiff’s limitations (e.g., the inability to

16

perform above-shoulder work) could work as a cleaner/housekeeper or

17

caregiver. (AR 370). Ms. Brown testified that such an individual could

18

perform the occupation of a cleaner/housekeeper but not that of a

19

caregiver because of the preclusion from performing above-shoulder work.

20

(AR 370).

21

could perform her past relevant work as a cleaner/housekeeper. (AR 54).

Based on Ms. Brown’s testimony, the ALJ ruled that Plaintiff

22 23 24 25

18

“Frequently” means that the activity or condition exists from one-third to two-thirds of the time. (AR 257).

26 19

27 28

Plaintiff initially argued that “a reasonable and commonsense understanding of this occupation demonstrates that you need to be able to reach with both arms to perform this occupation satisfactorily.” (JS at 5). 20

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 21 of 27 Page ID #:89

Here, Plaintiff is making the assumption that the occupation of a

1 2

cleaner/housekeeper requires the ability to reach with both arms.

(JS

3

at 5).

4

statement that frequent reaching is required to mean that bilateral

5

reaching is required.

6

such bilateral capabilities, Ms. Brown specifically testified that

7

Plaintiff could perform as a cleaner/housekeeper without the use of her

8

left arm.

9

Plaintiff’s other past relevant work as a caregiver was not feasible

10

reinforces that cleaner/housekeeper work, unlike caregiver work, can be

11

accomplished despite the presence of Plaintiff’s shoulder limitations.

12

(AR 370).

13

careful consideration before making her decision.

However, the Plaintiff incorrectly interprets the DOT’s general

Not only does the DOT never expressly require

(AR 257, 370).

Furthermore, Ms. Brown’s assessment that

Accordingly, Ms. Brown took Plaintiff’s limitations into

14 15

Moreover, the x-rays on Plaintiff’s left shoulder revealed no

16

evidence of a fracture, a dislocation, or other osseous or articular

17

abnormality.

18

(AR 194).

19

the x-rays and Dr. Mihelson’s report, concluded that Plaintiff had no

20

limitations in her ability to reach.

21

suggest that Plaintiff could perform above-shoulder work.20 In addition,

22

when asked by the ALJ why she stopped working, Plaintiff focused on

23

other impairments but did not mention her shoulder problem.

24

365).

(AR 194).

The regional soft tissue also appeared normal.

In fact, the DDS physician, Dr. Cohenzadeh, after reviewing

(AR 196, 200).

Such findings

(See AR

25 26 20

27 28

However, the ALJ rejected Dr. Cohenzadeh’s findings. (AR 52). The ALJ instead opined that Plaintiff could not perform above-shoulder work based on Plaintiff’s “documented history of a ‘frozen left shoulder.’” (AR 52). 21

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 22 of 27 Page ID #:90

1

Plaintiff’s contention that the ALJ has the burden to inquire about

2

whether bilateral reaching was required is also meritless.

SSR 00-4p

3

states that “[w]hen there is an apparent unresolved conflict between

4

[the] VE...and the DOT, the [ALJ] must elicit a reasonable explanation

5

for the conflict before relying on the VE...to support a determination

6

...about whether the claimant is disabled.” SSR 00-4p (emphasis added).

7

Here, there is no apparent conflict as neither Plaintiff nor her counsel

8

raised this issue at the hearing.

9 10

At the hearing, the ALJ asked Ms. Brown whether an individual

11

possessing Plaintiff’s limitations, including the inability to perform

12

“above[-]shoulder...work with the left upper extremity[,]” would be able

13

to perform either of the Plaintiff’s prior work.

14

added). Ms. Brown responded by opining that the hypothetical individual

15

“would not be able to perform the work as . . . a caregiver, which . .

16

. could . . . require above[-]shoulder lifting, but . . . the individual

17

.

18

cleaner/housekeeper[.]”

19

conflict between Ms. Brown’s testimony and the DOT was not deemed

20

sufficient to merit adversarial development, as Plaintiff raises this

21

implied conflict only after the decision was rendered.

.

.

would

still

be (AR

able

to

370)

perform

(emphasis

(AR 370) (emphasis

the

added).

work

of

The

[a]

implied

(AR 370-76).

22 23

Although the Ninth Circuit has never reached this specific fact

24

pattern, one panel in the Fifth Circuit has done so.

In Carey v. Apfel,

25

the claimant argued that the ALJ erred in relying on the VE’s testimony

26

that the claimant could perform certain identified jobs with only one

27

arm, because the DOT necessarily requires the use of both arms for those

28

jobs.

Carey v. Apfel, 230 F.3d 131, 145-46 (5th Cir. 2000). 22

The court

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 23 of 27 Page ID #:91

1

affirmed the ALJ’s decision by reasoning that the DOT did not specify

2

whether the use of both arms was required and the VE’s testimony was

3

clear and unchallenged.

Id. at 146-47.

4 5

Here,

the

VE’s

testimony

that

Plaintiff

could

work

as

a

6

cleaner/housekeeper, without the ability to reach with her left arm, was

7

similarly

8

specifically testified that Plaintiff could perform her past work as a

9

cleaner/housekeeper, given her limitations. given

clear

an

and

unchallenged.

opportunity

to

As

10

when

object

11

Plaintiff’s counsel did not do so.

12

properly relied on the VE’s testimony.

13

(5th Cir. 2000).

or

stated

above,

(AR 370). cross-examine

(AR 370-76).

Ms.

Brown

In addition, Ms.

Brown,

Therefore, the ALJ

See Carey, 230 F.3d 131, 146-47

14 It is not the province of the Court to re-weigh the factual and

15 16

credibility determinations of the ALJ.

Holohan v. Massanari, 246 F.3d

17

1195, 1201 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097).

18

Court must affirm the Commissioner’s decision if it is supported by

19

substantial evidence and if the Commissioner applied the correct legal

20

standards.

21

ALJ did not err, based on the record as it existed before the ALJ, in

22

finding that Plaintiff’s shoulder limitations did not prevent her from

23

performing her past relevant work.

24

\\

25

\\

26

\\

27

\\

28

\\

Id. (citing Tackett, 180 F.3d at 1097).

23

The

Accordingly, the

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 24 of 27 Page ID #:92

1

B.

2

The Appeals Council Failed To Give Specific and Legitimate Reasons for Rejecting Dr. Ciasca’s Opinion

3 4

The ALJ found Plaintiff to retain the mental capacity to perform

5

simple to moderately complex work.

(AR 51, 54).

Plaintiff contends

6

that the mental health treatment record submitted to the Appeals Council

7

demonstrates the existence of a more restrictive mental RFC. (JS at 4).

8

As the record was not submitted to the ALJ, the ALJ’s decision did not

9

reflect it.

Thereafter, the Appeals Council denied review of the ALJ’s

10

decision after considering the additional evidence.

11

Plaintiff argues that the ALJ erred in determining her mental RFC, she

12

is actually challenging the Appeals Council’s denial to review the ALJ’s

13

decision.

14

Appeals Council’s rejection of the additional evidence.

(JS at 4).

(AR 5).

Though

Specifically, Plaintiff is challenging the (JS at 4).

15 16

As noted above, this evidence was not before the ALJ.

Rather, it

17

was submitted to the Appeals Council only after the ALJ’s denial of

18

benefits. This court considers, however, the materials submitted to and

19

considered by the Appeals Council in its determination of whether to

20

grant a request for review.

21

(9th Cir.), cert. denied, 531 U.S. 1038, 121 S. Ct. 628, 148 L. Ed. 2d

22

537 (2000); Ramirez v. Shalala, 8 F.3d 1449, 1451-52 (9th Cir. 1993).

See Harman v. Apfel, 211 F.3d 1172, 1179-80

23 24

The Appeals Council considered this additional report. However, it

25

concluded that it did not provide a basis for changing the ALJ’s

26

decision. It thus denied Plaintiff request for review, making the ALJ’s

27

decision the final decision of the Commissioner.

28 24

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 25 of 27 Page ID #:93

1

In disability cases, greater weight is afforded to the opinion of

2

a treating physician than to a non-treating physician because the

3

treating physician is hired to cure and has a better opportunity to know

4

and observe the claimant as an individual.

5

F.2d

6

contradicts the opinion of a treating physician, the ALJ can reject the

7

treating

8

legitimate” reasons for doing so, supported by substantial evidence in

9

the record.

747,

751

(9th

physician’s

Cir.

1989).

opinion

When

only

by

Magallanes v. Bowen, 881 another

setting

doctor’s

forth

opinion

“specific

and

Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as

10

amended).

This standard applies to the Appeals Council as well.

11

Ramirez, 8 F.3d at 1453-54.

See

12 Here,

13

Dr.

Ciasca’s

opinion

contradicts

the

opinion

of

the

14

consultative examining physician, Dr. Shnaider.

(See AR 188-93, 276-

15

85).

16

with psychotic features and a GAF of 45.

17

Ciasca determined that Plaintiff would have problems maintaining work.21

18

(AR 263).

Dr. Ciasca concluded that Plaintiff had major depressive disorder (AR 260-61).

Furthermore, Dr.

19 20

Conversely, Dr. Shnaider, whose opinion the ALJ adopted in his

21

findings, diagnosed Plaintiff with depression and anxiety and assessed

22

a GAF of 60 to 65.

23

perform simple to moderately complex work.

(AR 51, 192).

He determined that Plaintiff could (AR 193).22

The evidence of

24 25 26

21

As noted above, Dr. Ciasca opined that Plaintiff would have marked difficulties in maintaining social functioning; frequent deficiencies of concentration, persistence or pace; and repeated episodes of deterioration in work settings. (AR 263)

27 22

28

In addition, Dr. Ritvo, a consultative examining physician, opined that Plaintiff had no mental limitations, while Dr. Stone, a 25

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 26 of 27 Page ID #:94

1

Dr. Ciasca’s opinion was submitted to the Appeals Council on February 1,

2

2005.

(AR 259).

3 4 5

After receiving this new evidence, the Appeals Council denied review of the ALJ’s decision by stating the following:

6 7

In looking at your case, we considered the reasons you

8

disagree with the decision and the additional evidence listed

9

on the enclosed Order of Appeals Council.

10 11

We found that this information does not provide a basis

12

for changing the Administrative Law Judge’s decision.

13 14

(AR 5-6).

15 16

Here, neither the ALJ nor the Appeals Council gave any reasons, let

17

alone specific and legitimate reasons based on substantial evidence, for

18

rejecting the new evidence.

19

issue reserved to the Commissioner, see 20 C.F.R. § 404.1527(e)(1), Dr.

20

Ciasca’s opinion is still an opinion that needs to be explicitly

21

rejected with specific and legitimate reasons. See Reddick, 157 F.3d at

22

725 (ALJ needs to provide specific and legitimate reasons, supported by

23

substantial evidence, to reject treating doctor’s credible opinion on

24

ultimate issue of disability).

25

the additional report is an appropriate remedy.

26

1180 (remanding to ALJ where additional records were presented only to

Although a finding of disability is an

A remand to allow the ALJ to consider Harman, 211 F.3d at

27 28

consultative nonexamining physician, determined that Plaintiff’s mental impairments were not severe. (AR 206, 250). 26

Case 2:05-cv-04134-SS Document 18 Filed 07/05/06 Page 27 of 27 Page ID #:95

1

the Appeals Council).

As such, this case is remanded to the ALJ to give

2

him the opportunity to consider the new evidence.

3 4

CONCLUSION

5 6

Consistent with the foregoing, IT IS ORDERED that Judgment be

7

entered REVERSING the decision of the Commissioner and REMANDING this

8

case to the Commissioner for further action consistent with this

9

decision.

10

The Clerk of the Court shall serve copies of this Order and

the Judgment on counsel for both parties.

11 12

DATED: July _5_, 2006.

13 14 15

___________/s/___________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE

16 17 18 19 20 21 22 23 24 25 26 27 28 27