SANDRA L. KVAMME, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration,  Defendant.
REPORT AND RECOMMENDATION ON PLAINTIFF'S COMPLAINT
J. RICHARD CREATURA, Magistrate Judge.
This matter has been referred to United States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1) and Local Magistrate Judge Rule MJR 4(a)(4), and as authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261, 271-72 (1976). This matter has been fully briefed ( see ECF Nos. 16, 17, 18).
After considering and reviewing the record, the Court finds that the ALJ erred when reviewing the medical evidence. The ALJ failed to provide a specific and legitimate reason for failing to credit fully a doctor's opinion that plaintiff likely only could engage in part time work. Also, the ALJ erroneously discounted a doctor's opinion because that opinion was outside her specialty area, which also is not a specific and legitimate reason.
Plaintiff, SANDRA LEE KVAMME, was born in 1956 and was 51 years old on the alleged date of disability onset of May 21, 2007 ( see Tr. 169, 172). Plaintiff is a high school graduate (Tr. 52) and at the time of the hearing had been taking some college art classes through the Disability Access Program (Tr. 55-57, 65). Plaintiff worked in the construction industry doing hazardous waste clean-up from 1992 to May 21, 2007 (Tr. 228).
Plaintiff has at least the severe impairments of "history of trauma to the left temple, status post left parietal skull fracture and subdural hematoma; vertigo with migraines; degenerative disc disease; left acetabular labrum tear; personality disorder not otherwise specified with primarily cluster B features and traits; substance abuse; and cognitive disorder (20 CFR 404.1520(c) and 416.920(c))" ( see Tr. 17).
At the time of plaintiff's administrative hearing, she was homeless, but had lived with her brother for awhile, and then, was living with her parents (Tr. 58-59).
On August 23, 2010, plaintiff filed an application for disability insurance ("DIB") benefits pursuant to 42 U.S.C. § 423 (Title II) (Tr. 13, 50-52) and two applications for Supplemental Security Income ("SSI") benefits pursuant to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act ( see Tr. 169-174). The applications were denied initially and following reconsideration (Tr. 101-111). Plaintiff's requested hearing was held before Administrative Law Judge Larry Kennedy ("the ALJ") on August 12, 2010 ( see Tr. 44-100). On October 7, 2010, the ALJ issued a written decision concluding that plaintiff was disabled from May 21, 2007 through June 26, 2009 (Tr. 14); but also concluding that plaintiff experienced improvement on June 27, 2009 (Tr. 24); and hence, concluding that plaintiff was not disabled pursuant to the Social Security Act as of June 27, 2009 ( see Tr. 13-33).
On June 26, 2012, the Appeals Council denied plaintiff's request for review, making the written decision by the ALJ the final agency decision subject to judicial review (Tr. 1-3). See 20 C.F.R. § 404.981. Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's written decision in August, 2012 ( see ECF Nos. 1, 4). Defendant filed the sealed administrative record regarding this matter ("Tr.") on January 14, 2013 ( see ECF Nos. 10, 11).
In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Whether or not the ALJ properly evaluated the medical evidence regarding plaintiff's medical condition since June 27, 2009; (2) Whether or not the ALJ properly evaluated plaintiff's testimony; (3) Whether or not the ALJ properly evaluated plaintiff's residual functional capacity for the time period beginning June 27, 2009; and (4) Whether or not the ALJ erred by basing his step five finding for the time period beginning June 27, 2009 on a residual functional capacity assessment that did not include all of plaintiff's limitations ( see ECF No. 15, pp. 1-2).
STANDARD OF REVIEW
Plaintiff bears the burden of proving disability within the meaning of the Social Security Act (hereinafter "the Act"); although the burden shifts to the Commissioner on the fifth and final step of the sequential disability evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 140, 146 n. 5 (1987). The Act defines disability as the "inability to engage in any substantial gainful activity" due to a physical or mental impairment "which can be expected to result in death or which has lasted, or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is disabled pursuant to the Act only if claimant's impairment(s) are of such severity that claimant is unable to do previous work, and cannot, considering the claimant's age, education, and work experience, engage in any other substantial gainful activity existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) ( citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). "Substantial evidence" is more than a scintilla, less than a preponderance, and is such "relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) ( quoting Davis v. Heckler, 868 F.2d 323, 325-26 (9th Cir. 1989)). Regarding the question of whether or not substantial evidence supports the findings by the ALJ, the Court should "review the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion.'" Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) ( citing Magallanes, supra, 881 F.2d at 750).
In addition, the Court must independently determine whether or not "the Commissioner's decision is (1) free of legal error and (2) is supported by substantial evidence.'" See Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2006) ( citing Moore v. Comm'r of the Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002) (collecting cases)); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) ( citing Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985)). According to the Ninth Circuit, "[l]ong-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and actual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking." Bray v. Comm'r of SSA, 554 F.3d 1219, 1225-26 (9th Cir. 2009) ( citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (other citation omitted)); see also Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) ("we may not uphold an agency's decision on a ground not actually relied on by the agency") ( citing Chenery Corp, supra, 332 U.S. at 196). In the context of social security appeals, legal errors committed by the ALJ may be considered harmless where the error is irrelevant to the ultimate disability conclusion when considering the record as a whole. Molina, supra, 674 F.3d at 1117-1122; see also 28 U.S.C. § 2111; Shinsheki v. Sanders, 556 U.S. 396, 407 (2009).
1. Whether or not the ALJ properly evaluated the medical evidence regarding plaintiff's medical ...