Tyrone Campbell v. Jo Anne B Barnhart

Case 2:04-cv-09565-MLG Document 18 Filed 11/17/05 Page 1 of 6 Page ID #:54 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALI...

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Case 2:04-cv-09565-MLG Document 18 Filed 11/17/05 Page 1 of 6 Page ID #:54

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

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TYRONE CAMPBELL,

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Plaintiff,

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

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

17 Defendant. 18 19

I.

Case No. CV 04-09565-MLG MEMORANDUM OPINION AND ORDER

Procedural History

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This

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Commissioner's

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Supplemental Security Income benefits (“SSI”) under Title XVI of the

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Social Security Act. 42 U.S.C. § 1381 et seq.

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below,

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proceedings.

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is

the

an

action

final

matter

for

decision

is

judicial denying

remanded

to

review

of

Plaintiff's

the

the

Defendant

application

for

For the reasons stated

Commissioner

for

further

Plaintiff, Tyrone Campbell was born on January 2, 1947 and was 57

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years old at the time of the administrative hearing.

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Record (“AR”) at 17, 116).

(Administrative

He testified that he completed the 11th

Case 2:04-cv-09565-MLG Document 18 Filed 11/17/05 Page 2 of 6 Page ID #:55

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grade, although other evidence in the record indicates that he has a 12th

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grade education.1

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(AR at 17).

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(AR at 17, 117).

He has no relevant work history.

Plaintiff filed an application for SSI benefits on May 9, 2003.

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(AR at 45-49).

He alleges that he is disabled and unable to work due to

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osteoarthritis, lower back pain, and a hernia.

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was held on March 11, 2004, before Administrative Law Judge (“ALJ”)

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Sandra Rogers.

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testified at this hearing.

(AR at 114-26).

(AR at 54).

A hearing

Plaintiff, represented by counsel,

Vocational expert (“VE”) Lynne Tracy also

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testified.

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walk for 10 to 15 minutes and that standing, walking, and sitting caused

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him pain.

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number of such jobs in the economy for a person of Plaintiff’s age,

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education, and work experience who could perform a full range of work at

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the medium exertional level.

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Plaintiff testified that he had the ability to stand and

(AR at 121).

The VE testified that there were a significant

(AR at 122).

In a decision dated April 12, 2004, the ALJ determined that

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Plaintiff’s

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significantly

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activities.

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credible.

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Plaintiff was not entitled to SSI benefits.

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impairments limit

his

(AR at 20).

were

not

ability

severe to

because

perform

they

basic

did

not

work-related

In doing so, she also found Plaintiff not

(AR at 19). Based on these findings, the ALJ concluded that (AR at 20).

Plaintiff filed a Request for Review with the Appeals Council,

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which was denied on September 24, 2004.

Plaintiff then commenced this

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action for judicial review.

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Management Order, the parties have filed a joint stipulation of disputed

In accordance with the Court’s Case

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Because this case is to be remanded, the ALJ should establish Plaintiff’s educational level with a reasonable degree of certainty as that factor is essential to the disability determination. 2

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issues.

Plaintiff raises two claims of error.

He contends that the ALJ

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erred, first, in determining that his impairment was not severe; and

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second, in finding his testimony not credible.

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(“JS”) at 2).

(Joint Stipulation

This matter is ready for decision.

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II.

Standard of Review Under

42

U.S.C.

§

405(g),

a

district

court

may

review

the

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Commissioner’s final decision to deny benefits.

The findings and

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decision should be upheld if they are free from legal error and are

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supported by substantial evidence based on the record as a whole.

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U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971);

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Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001).

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evidence means such evidence as a reasonable person might accept as

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adequate to support a conclusion.

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v. Chater, 157 F.3d 715, 720 (9th Cir. 1996).

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scintilla, but less than a preponderance.

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determine whether substantial evidence supports a finding, the reviewing

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court “must review the administrative record as a whole, weighing both

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the evidence that supports and the evidence that detracts from the

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Commissioner’s conclusion.”

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support either affirming or reversing,” the reviewing court “may not

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substitute its judgment” for that of the Commissioner.

Substantial

Richardson, 402 U.S. at 401; Reddick

Id.

It is more than a

Reddick, 157 F.3d at 720.

To

“If the evidence can reasonably

Id. at 720-21.

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III. Discussion and Analysis

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After reviewing the parties’ respective contentions and the record

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as a whole, the Court finds that the ALJ’s conclusion that Plaintiff’s

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impairments are not non-severe is not supported by substantial evidence.

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The existence of a severe impairment is demonstrated when the evidence 3

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establishes that the impairment has more than a minimal effect on an

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individual’s ability to perform basic work activities. Smolen v. Chater,

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80

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416.921(a).

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abilities and aptitudes necessary to do most jobs,” which include

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physical

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carrying; capacities for seeing, hearing and speaking; understanding and

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remembering simple instructions; responding appropriately in a work

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setting; and dealing with changes in a work setting. 20 C.F.R. §

F.3d

1273,

1290

(9th

Cir.

1996);

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C.F.R.

§§

404.1521(a),

The regulations define “basic work activities” as “the

functions

such

as

walking,

standing,

sitting,

pushing,

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404.1521(b).

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device to dispose of groundless claims.” Smolen, 80 F.3d at 1290 (citing

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Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987)).

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severe only if it is a slight abnormality with “no more than a minimal

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effect on an individual’s ability to work.” See SSR 85-28; Yuckert v.

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Bowen, 841 F.2d 303, 306 (9th Cir. 1988).

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The inquiry at this stage is “a de minimis screening

An impairment is not

Here, during a consultative internal medicine examination, Dr.

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Joseph

Sedgh,

M.D.,

found

that

although

straight

leg

testing

was

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negative, Plaintiff has decreased range of motion of the back and a

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slightly antalgic gait. (AR at 76). A radiological consultation report

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shows degenerative change at L2 and mild atherosclerosis.

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Based upon this objective medical evidence, Dr. Sedgh concluded that

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Plaintiff was “capable of carrying and lifting 50 pounds occasionally

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and 25 pounds frequently.

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hours in an eight-hour workday.”

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Plaintiff was limited to work at the medium exertional level.

(AR at 78).

The patient can stand, walk and sit for six (AR at 76).

Thus, he found that

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A state agency medical consultant examined the evidence and also

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concluded that Plaintiff’s allegation of a back impairment was credible

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and was based on objective findings. 4

He similarly limited Plaintiff to

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work at the medium exertional level.

(AR at 87).

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Thus, based upon the objective medical evidence, both evaluating

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doctors found Plaintiff limited to work at a medium exertional level.

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In doing so, the doctors found that Plaintiff’s osteoarthritis, lower

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back pain, and inguinal hernia could reasonably limit Plaintiff’s

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ability to perform basic work activities.

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impairments

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evidence.

are

not

severe

is

thus

The determination that these

not

supported

by

substantial

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Plaintiff’s impairments and complaints of pain, while likely not

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preclusive of all exertional activity, are consistently and objectively

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documented in his medical records. Given the minimal threshold required

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to show that an impairment is severe, the ALJ’s determination that

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Plaintiff’s impairments were not severe was not supported by substantial

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evidence.

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V.

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Conclusion The decision whether to remand for further proceedings is within

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this Court’s discretion.

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Cir. 2000).

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administrative

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developed, it is appropriate to exercise this discretion to direct an

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immediate award of benefits.

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remand for further proceedings turns upon the likely utility of such

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proceedings”); Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004).

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However, where there are outstanding issues that must be resolved before

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a determination of disability can be made, and it is not clear from the

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record that the ALJ would be required to find the claimant disabled if

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all

the

Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th

Where no useful purpose would be served by further proceedings,

evidence

were

or

where

the

record

has

been

fully

Id. at 1179 (“the decision of whether to

properly

evaluated, 5

remand

is

appropriate.

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Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003); see also

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Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003)(remanding case

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for reconsideration of credibility determination).

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The

Court

finds

that

the

ALJ

erroneously

found

Plaintiff’s

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impairments to be non-severe and the case is remanded for further

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evaluation in accordance with the five-step sequential process. ORDER

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For the reasons stated above, the Court finds that the ALJ’s decision is not supported by substantial evidence. Accordingly, it is ORDERED that this case be remanded to the Commissioner for further proceedings consistent with this opinion. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel.

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Dated: November 17, 2005

/S/ Marc L. Goldman _______________________________ Marc L. Goldman United States Magistrate Judge

English