Tate v. Astrue

• Decision Date: 11 April 2012
• Docket Number: No. CV 11-3213 CW,CV 11-3213 CW
• Parties: REGINA LAURA TATE, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner, Social Security Administration, Defendant.
• Court: U.S. District Court — Central District of California

REGINA LAURA TATE, Plaintiff,

v.MICHAEL J. ASTRUE, Commissioner, Social Security Administration, Defendant.

No. CV 11-3213 CW

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

DATED: April 11, 2012

DECISION AND ORDER

The parties have consented, under 28 U.S.C. § 636(c), to the jurisdiction of the undersigned Magistrate Judge. Plaintiff seeks review of the Commissioner's denial of disability insurance benefits and supplemental security income. For the reasons stated below, the Magistrate Judge finds that this matter should be reversed and remanded for further administrative proceedings consistent with this decision and order.

I. BACKGROUND

Plaintiff Regina Laura Tate was born on May 15, 1950, and was 59-years old at the time of her administrative hearing. [Administrative Record ("AR") 17.] She has at least some high school education and past work experience as a caterer and an in-home care giver. [AR 89.]

Plaintiff alleges disability due to severe migraines; obesity; sciatic nerve damage; high blood pressure; an inability to lift heavy objects; an inability to sit, stand or walk for more than ten or fifteen minutes at a time; and rotator cuff damage. [AR 87-88.]

II. PROCEEDINGS IN THIS COURT

Plaintiff's complaint in this matter was lodged on April 15, 2011, and filed on April 25, 2011. On November 9, 2011, defendant filed an answer and the certified administrative record. On February 21, 2012, the parties filed their Joint Stipulation ("JS") identifying matters not in dispute, issues in dispute, the positions of the parties, and the relief sought by each party. This matter has been taken under submission without oral argument.

III. PRIOR ADMINISTRATIVE PROCEEDINGS

On December 27, 2007, Plaintiff filed an application for a period of disability and disability insurance benefits and supplemental security income, alleging disability beginning December 1, 2006. [AR 75.] After the applications were denied initially and upon reconsideration, Plaintiff requested an administrative hearing, which was held on May 12, 2010, before Administrative Law Judge ("ALJ") Robert A. Evans. [AR 17-26.] Plaintiff appeared with counsel, and testimony was taken from Plaintiff, vocational expert ("VE") Ruth Arnish, and medical expert ("ME") Barbara Falcons. [AR 298.] The ALJ denied benefits in an administrative decision dated June 4, 2010. [AR 26.] When the Appeals Council denied review on February 15, 2011 [AR 4], the ALJ's decision became the Commissioner's final decision. This action followed.

IV. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), a district court may review theCommissioner's decision to deny benefits. The Commissioner's (or ALJ's) findings and decision should be upheld if they are free of legal error and supported by substantial evidence. However, if the court determines that a finding is based on legal error or is not supported by substantial evidence in the record, the court may reject the finding and set aside the decision to deny benefits. See Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam).

"Substantial evidence is more than a scintilla, but less than a preponderance." Reddick, 157 F.3d at 720. It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Id. To determine whether substantial evidence supports a finding, a court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Id. "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162.

V. DISCUSSION

A. THE FIVE-STEP EVALUATION

To be eligible for disability benefits a claimant must demonstrate a medically determinable impairment which prevents the claimant from engaging in substantial gainful activity and which is expected to result in death or to last for a continuous period of atleast twelve months. Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 721; 42 U.S.C. § 423(d)(1)(A).

Disability claims are evaluated using a five-step test:

Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.

Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.

Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four.

Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.

Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 C.F.R. § 404.1520, § 416.920. If a claimant is found "disabled" or "not disabled" at any step, there is no need to complete further steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520.

Claimants have the burden of proof at steps one through four, subject to the presumption that Social Security hearings are non-adversarial, and to the Commissioner's affirmative duty to assist claimants in fully developing the record even if they are represented by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 1288. If this burden is met, a prima facie case of disability is made, and the burden shifts to the Commissioner (at step five) to prove that, considering residual functional capacity ("RFC")¹ , age, education, and work experience, a claimant can perform other work which is available in significant numbers. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520, 416.920.

B. THE ALJ'S EVALUATION IN PLAINTIFF'S CASE

Here, the ALJ found that Plaintiff met the insured status requirements of the Social Security Act through October 10, 2008, and that Plaintiff had not engaged in substantial gainful activity since the alleged onset date, December 1, 2006 (step one); that Plaintiff had the "severe" impairments of: migraines, diabetes mellitus, hypertension, low back pain, obesity, and affective mood disorder (step two); and that Plaintiff did not have an impairment or combination of impairments that met or equaled a "listing" (step three). [AR 19-22.]

The ALJ found that Plaintiff retained the RFC to perform a limited range of light work, and that she had the following additional limitations:

[O]nly occasionally climb, crawl and perform overhead reaching with the right upper extremity. She must never climb ladders, ropes or scaffolds, as well as must avoid moving machinery and unprotected heights. [Plaintiff] must avoid even moderate exposure to fumes, harsh chemicals and extreme concentration of heat and/or cold.

[AR 22-25.]

The ALJ concluded that Plaintiff is capable of performing past relevant work as a Companion (Dictionary of Occupational Titles, "DICOT," 309.677-101) and Residence Counselor (DICOT 187-167-186) (step four). [AR 25-26.] Accordingly, Plaintiff was found not to be "disabled" as defined by the Social Security Act. [AR 26.]

C. ISSUES IN DISPUTE

The JS identifies as disputed issues whether the ALJ properly:

1. Determined that Plaintiff could return to her past relevant work [JS 3-12];

2. Developed the record [JS 12-16].

Issue two is dispositive.

D. ISSUE ONE: PAST RELEVANT WORK

In issue one, Plaintiff contends that the step four finding is in error because the ALJ failed properly to assess and determine the nature and requirements of her past relevant work, and to compare her RFC to those requirements. Plaintiff indicated that in the 1990s she worked as an in-house counselor at a women's home and from 1994 to 2006 she worked as an in-home caregiver [AR 94.] The ALJ found that Plaintiff's past relevant work consisted of work as a residence counselor (DICOT 187.167-186) and companion (DICOT 309.677-101).

At step four, a plaintiff has the burden of showing that shecould no longer perform her past relevant work. Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). Nonetheless, the ALJ had the duty "to make the requisite factual findings to support his conclusion." Id. This duty requires an ALJ to examine plaintiff's "'residual functional capacity and the physical and mental demands' of [plaintiff's] past relevant work." Id. at 844-45 (quoting 20 C.F.R. §§ 404.1520(e), 416.920(e)). The plaintiff must be able to perform her past relevant work either as actually performed or as generally performed in the national economy. Id. at 845 ("[w]e have never required explicit findings at step four regarding a claimant's past relevant work both as generally performed and as actually performed") (emphasis in original).

Here, though the court does not decide whether remand would be warranted based solely upon the step four finding, because the hearing decision is insufficient to permit the court to gauge whether the findings with respect to past relevant work are well supported, these findings should be revisited on remand. See Lewin v. Schweiker, 654 F.2d 631, 634-35 (9th Cir. 1981)(an ALJ must make full and detailed findings of fact which are essential to the ALJ's conclusion so that a reviewing court may determine the basis for the decision and whether...