
    Jose Tello RAMON, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
    No. EDCV 07-1541-RC.
    United States District Court, C.D. California.
    Feb. 19, 2009.
    
      Bill LaTour, Bill LaTour Law Offices, Loma Linda, CA, for Plaintiff.
    Assistant US Attorney LA-SSA, Office of the General Counsel for Social Security Adm., San Francisco, CA, Sharia Cerra, AUSA-Office of US Attorney, Los Angeles, CA, for Defendant.
   OPINION AND ORDER

ROSALYN M. CHAPMAN, United States Magistrate Judge.

Plaintiff Jose Tello Ramon filed a complaint on December 7, 2007, seeking review of the Commissioner’s decision denying his application for disability benefits. The Commissioner answered the complaint on April 21, 2008, and the parties filed a joint stipulation on June 11, 2008.

BACKGROUND

I

On February 18, 2003 (protective filing date), plaintiff applied for disability benefits under the Supplemental Security Income program (“SSI”) of Title XVI of the Social Security Act (“the Act”), 42 U.S.C. § 1382(a), claiming an inability to work since January 1, 2000, due to hypothyroidism, diabetes mellitus, vision difficulties, and back pain. Certified Administrative Record (“A.R.”) 71-74, 84. The plaintiffs application was initially denied on June 13, 2003, and was denied again on July 23, 2003, following reconsideration. A.R. 28-38. The plaintiff then requested an administrative hearing, which was held on September 1, 2005, before Administrative Law Judge F. Keith Varni (“the ALJ”). A.R. 39-41, 49-51, 160-71. On November 3, 2005, the ALJ issued a decision finding plaintiff is not disabled. A.R. 11-19. The plaintiff appealed this decision to the Appeals Council, which denied review on February 2, 2006. A.R. 6-10.

The plaintiff then filed a civil complaint challenging the Commissioner’s decision: Ramon v. Astrue, case no. EDCV 06-0191-RC (“Ramon 7”). On September 7, 2006, pursuant to the parties’ stipulation, judgment was entered remanding the application for further proceedings under sentence four, 42 U.S.C. § 405(g). A.R. 203-09. On July 25, 2007, the ALJ held a new administrative hearing, A.R. 478-84, and on August 29, 2007, the ALJ issued a decision again finding plaintiff is not disabled. A.R. 172-84.

II

The plaintiff, who was born on November 5, 1939, is currently 69 years old. A.R. 72, 225, 231. He has a third-grade education and cannot read, write or speak English. A.R. 83, 87. He has previously worked repairing pallets. A.R. 84-85, 90-92.

Since March 25, 2003, plaintiff has received treatment at the Rialto Clinica Medica Familiar, where Ruben Ruiz, M.D., diagnosed plaintiff with lower back pain, renal insufficiency, diabetes mellitus, hypothyroidism, hypertension, and peripheral neuropathy, among other conditions. A.R. 115-46, 366-449. On December 8, 2005, plaintiff’s diabetes was uncontrolled, and he was placed off work through December 31, 2005. A.R. 410. On July 31, 2006, Dr. Ruiz opined plaintiff was permanently incapacitated due to congestive heart failure, diabetes mellitus complicated by congestive heart failure, retinopathy, and hypertension. A.R. 409.

On June 12, 2003, Bahaa B. Girgis, M.D., examined plaintiff and diagnosed him with type II diabetes mellitus with no evidence of diabetic retinopathy or neuropathy, decreased right eye visual acuity, which was 20/200 due to glaucoma, and a history of hypertension and chronic liver disease. A.R. 112-14. Dr. Girgis opined plaintiff can occasionally lift and/or carry up to 50 pounds, frequently lift and/or carry up to up to 25 pounds, and can stand/walk and sit for 6 hours each in an 8-hour day. A.R. 114.

On June 23, 2004, Alvin Chang, M.D., examined plaintiff at the Arrowhead Regional Medical Center, where he diagnosed plaintiff with Type II diabetes mellitus under moderate control, stable congestive heart failure, stable hypertension, stable hypothyroidism and obesity, among other conditions, and referred plaintiff to a podiatrist. A.R. 308-10. On June 29, 2004, Sang D. Lee, D.P.M., a podiatrist, examined plaintiff and diagnosed him as having diabetes mellitus with neuropathy and ankle joint pain. A.R. 307. Dr. Lee continued to treat plaintiff, diagnosing him at various times with degenerative joint disease, left foot cellulitis, plantar fasciitis, gout, and Morton’s neuroma, among other conditions. A.R. 293-306, 355-65. Nerve conduction velocity studies obtained on January 15, 2007, were consistent with mild sensory peripheral neuropathy and demyelination pathology consistent with a history of diabetes mellitus. A.R. 355-60.

On February 21, 2006, Kimberley R. Clements, M.D., examined plaintiff and diagnosed him with complaints of back, knee and feet pain and bad vision. A.R. 280-85. Plaintiffs vision without correction was less than 20/200 in his right eye and 20/30 in his left eye, but with pinhole correction, it was 20/100 in his right eye and 20/40 in his left eye. A.R. 286. Dr. Clements opined plaintiff can occasionally lift 50 pounds, frequently lift 25 pounds, sit without limitation, stand and walk for 6 hours in an 8-hour day, and push and pull without limitation. A.R. 284.

On December 28, 2006, Nicholas N. Lin, M.D., examined plaintiff and concluded plaintiff can: occasionally lift and/or carry up to 50 pounds; frequently lift and/or carry up to 25 pounds, bend, stoop, crouch, kneel, and climb stairs; stand or walk for 6 hours in an 8-hour workday with appropriate breaks; and sit for 6 hours in an 8-hour workday. A.R. 320-26. A visual acuity test was 20/100 in both eyes, less than 20/200 in both eyes tested individually and in the right eye with pinhole correction, and 20/200 in the left eye with pinhole correction. A.R. 326.

On April 6, 2007, Sean S. To, M.D., an internist, examined plaintiff and diagnosed him as having advanced diabetes with evidence of retinopathy, peripheral neuropathy, nephropathy and leg ulcers, back pain with marked tenderness in the lumbosacral area and decreased range of motion, and mild joint pain. A.R. 450-61. Plaintiffs visual acuity was 20/100 in both eyes, 20/200 in the right eye and 20/100 in the left eye, both before and after pinhole correction. A.R. 455. Dr. To concluded plaintiff: can never lift and/or carry greater than 20 pounds; can occasionally lift and/or carry up to up to 20 pounds; can frequently lift and/or carry up to 10 pounds; can sit for 4 hours at a time and 6 hours in an 8-hour day; can stand for two hours at a time and 4 hours in an 8-hour day; can walk for 1 hour at a time and 2 hours in an 8-hour day; can continuously use his hands and arms; can occasionally operate foot controls, climb stairs, balance, stoop, kneel, crouch, crawl, work in humidity and wetness, work around dust, odors, fumes and pulmonary irritants, work in extreme cold or heat, and work around vibrations; can never work at unprotected heights, around moving mechanical parts, or operate a motor vehicle; and can tolerate exposure to moderate noise. A.R. 456-61.

DISCUSSION

III

The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner’s decision denying plaintiff disability benefits to determine if his findings are supported by substantial evidence and whether the Commissioner used the proper legal standards in reaching his decision. Sam v. Astrue, 550 F.3d 808, 809 (9th Cir.2008) (per curiam); Vasquez v. Astrne, 547 F.3d 1101, 1104 (9th Cir.2008).

The claimant is “disabled” for the purpose of receiving benefits under the Act if he is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). “The claimant bears the burden of establishing a prima facie case of disability.” Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir.1995), cert. denied, 517 U.S. 1122, 116 S.Ct. 1356, 134 L.Ed.2d 524 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir.1996).

The Commissioner has promulgated regulations establishing a five-step sequential evaluation process for the ALJ to follow in a disability case. 20 C.F.R. § 416.920. In the First Step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. § 416.920(b). If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment or combination of impairments significantly limiting him from performing basic work activities. 20 C.F.R. § 416.920(c). If so, in the Third Step, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals the requirements of the Listing of Impairments (“Listing”), 20 C.F.R. § 404, Subpart P, App. 1. 20 C.F.R. § 416.920(d). If not, in the Fourth Step, the ALJ must determine whether the claimant has sufficient residual functional capacity despite the impairment or various limitations to perform his past work. 20 C.F.R. § 416.920(f). If not, in Step Five, the burden shifts to the Commissioner to show the claimant can perform other work that exists in significant numbers in the national economy. 20 C.F.R. § 416.920(g).

Applying the five-step sequential evaluation process, the ALJ found “no credible evidence that [plaintiff] ever ceased engaging in substantial gainful activity[,]” but nevertheless did not deny the claim based on substantial gainful activity. (Step One). The ALJ then found plaintiff has the severe impairments of: diabetes; glaucoma; hypertension; and a degree of renal insufficiency (Step Two); however, he does not have an impairment or combination of impairments that meets or equals a Listing. (Step Three). The ALJ next determined plaintiff can perform his past relevant work as a recycling helper or pallet maker; therefore, he is not disabled. (Step Four).

IV

A claimant’s residual functional capacity (“RFC”) is what he can still do despite his physical, mental, nonexertional, and other limitations. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir.2001); Cooper v. Sullivan, 880 F.2d 1152, 1155 n. 5 (9th Cir.1989). Here, the ALJ found plaintiff has the RFC to perform a full range of medium work. A.R. 181. However, plaintiff contends the ALJ’s RFC determination is not supported by substantial evidence because, among other things, the ALJ erroneously rejected the opinions of examining physician Dr. To. The plaintiff is correct.

The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted opinion of an examining physician, Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir.2006), and “[e]ven if contradicted by another doctor, the opinion of an examining doctor can be rejected only for specific and legitimate reasons that are supported by substantial evidence in the record.” Regennitter v. Comm’r of the Soc. Sec. Admin., 166 F.3d 1294, 1298-99 (9th Cir.1999).

As set forth above, Dr. To opined, among other things, that plaintiff cannot perform medium work, as he can: never lift and/or carry greater than 20 pounds; occasionally lift and/or carry up to up to 20 pounds; frequently lift and/or carry up to 10 pounds; sit for 4 hours at a time and 6 hours in an 8-hour day; stand for two hours at a time and 4 hours in an 8-hour day; and walk for 1 hour at a time and 2 hours in an 8-hour day. A.R. 456-61. Here, the ALJ failed to explicitly address Dr. To’s opinions, and in determining plaintiff has the RFC to perform medium work, implicitly rejected his opinions. This was clear legal error. Lingenfelter v. Astrue, 504 F.3d 1028, 1038 n. 10 (9th Cir.2007); Smolen, 80 F.3d at 1286.

Nevertheless, the Commissioner contends the ALJ’s error was harmless because Dr. To rendered his opinions after plaintiff turned 65 and was no longer eligible for SSI disability benefits. Jt. Stip. at 4:9-6:1. The Court disagrees. For an error to be harmless, it must be “clear from the record that the ALJ’s error was inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.2008) (citations and internal quotation marks omitted). Here, because “the ALJ’s error in rejecting [Dr. To’s] opinion ultimately led to an adverse disability finding, it was not harmless.” Widmark v. Barnhart, 454 F.3d 1063, 1069 n. 4 (9th Cir.2006). In other words, due to the ALJ’s legal error, plaintiff may have been deprived of SSI disability benefits for a period of time before he turned 65; thus, the ALJ’s legal error clearly is not harmless error. Cf. Lingenfelter, 504 F.3d at 1033-34 n. 3 (“ ‘[R]eports containing observations made after the period for disability are relevant to assess the claimant’s disability.’ ” (citation omitted)). Since it was “legal error for the ALJ to discount the opinions of [Dr. To] without providing specific and legitimate reasons for doing so[,]” the ALJ’s RFC assessment, and Step Four determination, are not supported by substantial evidence. Lingenfelter, 504 F.3d at 1038 n. 10; Aukland v. Massanari, 257 F.3d 1033, 1037 (9th Cir.2001).

V

When the Commissioner’s decision is not supported by substantial evidence, the Court has authority to affirm, modify, or reverse the Commissioner’s decision “with or without remanding the cause for rehearing.” 42 U.S.C. § 405(g); McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir.2002). “Remand for further administrative proceedings is appropriate if enhancement of the record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.2004). Here, remand is appropriate so the ALJ can properly consider Dr. To’s opinions. Widmark, 454 F.3d at 1070; Bunnell v. Barnhart, 336 F.3d 1112, 1116 (9th Cir.2003).

ORDER

IT IS ORDERED that: (1) plaintiffs request for relief is granted and defendant’s request for relief is denied; and (2) the Commissioner’s decision is reversed, and the action is remanded to the Social Security Administration for further proceedings consistent with this Opinion and Order, pursuant to sentence four of 42 U.S.C. § 405(g), and Judgment shall be entered accordingly. 
      
      .On November 23, 2005, plaintiff reapplied for SSI benefits, claiming disability since March 13, 2003, due to cirrhosis, diabetes, thyroid problems, and high blood pressure. A.R. 225-28, 231-37. This application was denied on March 9, 2006, and was denied again on January 22, 2007, following reconsideration. A.R. 213-24.
     
      
      . Pursuant to Fed.R.Evid. 201, this Court takes judicial notice of all documents in Ramon I.
     
      
      . The new administrative hearing addressed both plaintiff's initial application and his 2005 application. A.R. 178-84.
     
      
      .Congestive heart failure is "a clinical syndrome due to heart disease, characterized by breathlessness and abnormal sodium and water retention, often resulting in edema [the presence of abnormally large amounts of fluid in the intercellular tissue spaces of the body]. The congestion may occur in the lungs or peripheral circulation or both, depending on whether the heart failure is right-sided or general.” Dorland’s Illustrated Medical Dictionary at 567, 650.
     
      
      . Diabetic retinopathy is a degenerative condition of the retina associated with diabetes mellitus. Id. at 1567.
     
      
      . Morton's neuroma is "the neuroma [a tumor growing from a nerve or made up largely of nerve cells and nerve fibers] that results from Morton's neuralgiaf,]” which is "a form of foot pain, metatarsalgia caused by compression of a branch of the plantar nerve by the metatarsal heads....” Id. at 1206, 1211.
     
      
      . The medical record also contains a "Medical Opinion Re: Ability to Do Work-Related Activities," dated January 9, 2007, which sets forth several severe limitations for plaintiff. A.R. 475-77. Unfortunately, the signature on this form is illegible, and neither plaintiff nor the ALJ identified who signed the form. A.R. 184, 474. The ALJ gave the form "no weight” because: it is a "check-list form [that] is not accompanied by a physical examination”; "there is no way to tell who signed the statement”; "[t]he form is no more than a parroting of the claimant's subjective complaints”; and the form “is not consistent with the treatment record or the findings of the medical sources....” A.R. 184. Since plaintiff does not challenge the ALJ's findings, the Court will not further discuss this document.
     
      
      . Under Social Security regulations, "[m]edium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 416.967(c).
     
      
      . At the most recent administrative hearing on July 25, 2007, plaintiff's attorney stated plaintiff, who was then more than 65, was receiving SSI old-age benefits. A.R. 480-81; see also Ly v. Sec’y of Health & Human Servs., 629 F.Supp. 1181, 1182 (E.D.Mich.1986) ("Under the Social Security Act, an individual who reaches the age of 65 and [meets the] income [and residency requirements] is entitled to supplemental security income.”).
     
      
      . Having reached this conclusion, it is unnecessary to reach the other claims plaintiff raises, none of which warrant any further relief than herein granted.
     