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General Order of the Court regarding Public Access to Electronic Case Files, pursuant to the

REPORT AND RECOMMENDATION RE:

SOCIAL SECURITY DISABILITY APPEAL

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JANE LABORDE,

Plaintiff,

v.

JO ANNE B. BARNHART, Commissioner

of Social Security,

Defendant.

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CASE NO. C05-0829-RSM

REPORT AND RECOMMENDATION

RE: SOCIAL SECURITY

DISABILITY APPEAL

Plaintiff Jane LaBorde proceeds through counsel in her appeal of a final decision of the

Commissioner of the Social Security Administration (Commissioner). The Commissioner denied

plaintiff’s application for Supplemental Security Income (SSI) and Disability Insurance (DI)

benefits after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ’s

decision, the administrative record (AR), and all memoranda of record, it is recommended that this

matter be REMANDED for further administrative proceedings.

FACTS AND PROCEDURAL HISTORY

Plaintiff was born on XXXX, 1956.1 She completed the tenth grade and did not attain a

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22 official policy on privacy adopted by the Judicial Conference of the United States.

REPORT AND RECOMMENDATION RE:

SOCIAL SECURITY DISABILITY APPEAL

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GED. Plaintiff received training as a certified nurse’s assistant. Her past work experience includes

employment as a certified nursing assistant, an occupational therapy assistant, a physical therapy

assistant, and a laborer.

Plaintiff applied for SSI and DI in August 2001, alleging disability since April 13, 2001 due

to hepatitis C, depression, pain disorder, and left eye blindness. Her application was denied

initially and on reconsideration, and she timely requested a hearing.

An ALJ held a hearing on May 4, 2004, taking testimony from plaintiff and a vocational

expert, Olof Elofson. (AR 515-564.) On July 26, 2004, the ALJ issued a decision finding plaintiff

not disabled. (AR 15-26.)

Plaintiff appealed the ALJ’s decision. On March 12, 2005, the Appeals Council denied

plaintiff’s request for review. (AR 5-7.) Plaintiff appealed this final decision of the Commissioner

to this Court. The parties agree that the matter should be remanded for further administrative

proceedings as set forth below.

JURISDICTION

The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g).

DISCUSSION

The Commissioner follows a five-step sequential evaluation process for determining

whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must

be determined whether the claimant is gainfully employed. The ALJ found plaintiff had not

engaged in substantial gainful activity since her alleged onset date. At step two, it must be

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REPORT AND RECOMMENDATION RE:

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determined whether a claimant suffers from a severe impairment. The ALJ found plaintiff’s

hepatitis C, depression, pain disorder/somatoform disorder and blindness in the left eye to be

severe impairments. Step three asks whether a claimant’s impairments meet or equal a listed

impairment. The ALJ found that plaintiff’s impairments did not meet or equal the criteria for any

listed impairments. If a claimant’s impairments do not meet or equal a listing, the Commissioner

must assess residual functional capacity (RFC) and determine at step four whether the claimant

has demonstrated an inability to perform past relevant work. The ALJ found plaintiff able to

perform simple, repetitive tasks with limited public and co-worker contact, and was exertionally

limited to light work, thus precluding a return to her past work. She has no binocular vision. If

a claimant demonstrates an inability to perform past relevant work, the burden shifts to the

Commissioner to demonstrate at step five that the claimant retains the capacity to make an

adjustment to work that exists in significant levels in the national economy. Based on the

testimony of a vocational expert, the ALJ concluded there were a significant number of jobs in

the national economy plaintiff could perform and, therefore, that she was not disabled.

Vocational Testimony

The parties agree that certain errors at step five of the sequential evaluation process require

remand and reconsideration.

1. Vision

One of plaintiff’s severe impairments is blindness in her left eye. (AR 17.) In posing a

hypothetical, however, the ALJ apparently misspoke and, although noting plaintiff had been blind

in the left eye since childhood, asked the vocational expert to assume binocular vision. (AR 559.)

Although the error might seem obvious, it is not appropriate to assume the vocational expert

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REPORT AND RECOMMENDATION RE:

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correctly understood the hypothetical, because the expert testified, in response to the hypothetical,

that plaintiff could perform the job of bottling-line attendant, a position that requires “frequent use

of depth perception.” Dictionary of Occupational Titles 920.687-042 (4th ed. 1991).

2. Consistency with Dictionary of Occupational Titles (DOT)

The ALJ found that plaintiff “has no transferable skills from any past relevant work and/or

transferability of skills is not an issue in this case.” (AR 25.) The second job the vocational expert

found appropriate for plaintiff to perform was assembler, DOT job number 782.684-058 (AR

560), with a Specific Vocational Preparation Level (SVP) of 3. However, a job with an SVP of

3 is semi-skilled, not unskilled work, see Social Security Ruling (SSR) 00-4p, and, therefore, in

conflict with the ALJ’s finding that plaintiff did not have transferrable skills. The vocational expert

either identified the assembler job in error, or had in mind an assembler job that departed from the

DOT’s description of the job. If the latter is the case, the record does not include either a

“reasonable explanation” for the inconsistency between the job as proposed and the job as

described in the DOT, id., or “persuasive evidence” to support the deviation, Johnson v. Shalala,

60 F.3d 1428, 1425 (9th Cir. 1995).

The step five finding that plaintiff was capable of performing other significant work lacks

the support of substantial evidence. If additional vocational evidence is obtained on remand, the

ALJ should assure that any conflict with the DOT is reasonably explained.

Opinion of Examining Psychologist

The parties agree that the ALJ should re-evaluate the opinion of Dr. Frank Hammer, an

examining psychologist. Dr. Hammer performed three examinations of plaintiff for the state

agency, as well as a report and examination following the administrative hearing at the request of

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REPORT AND RECOMMENDATION RE:

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plaintiff’s attorney. (AR 171-83, 492-510.) Where not contradicted by another physician, a

treating or examining physician’s opinion may be rejected only for “clear and convincing” reasons.

Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Where contradicted, a treating or examining

physician’s opinion may not be rejected without “‘specific and legitimate reasons’ supported by

substantial evidence in the record for so doing.” Id. at 830-31 (quoting Murray v. Heckler, 722

F.2d 499, 502 (9th Cir. 1983)).

In discussing Dr. Hammer’s opinions, the ALJ stated:

I give no weight to his conclusions for the following reasons. First, Dr. Hammer is

somewhat the psychologist du jour of late for this law firm, with his reports nearly

universally commissioned by Counsel in support of disability applications, with a

universal finding of profound limitations, which certainly detracts from the weight to

be given such opinions in any given case. Saelee v. Chater, 94 F.3d 520 (9th Cir.

1996), cert. denied, 519 U.S. 1113 (1997). Specifically, the final evaluation at Exhibit

13F was sought by Counsel and performed after the hearing, meaning Dr. Hammer

had a read of the entire proceedings and could adjust his conclusions accordingly, in

favor of the claimant. This examination was not in an attempt to seek treatment for

symptoms, but rather, through Counsel referral and in connection with an effort to

generate evidence for the current appeal. Further, he was presumably paid for the

report. Although such evidence is certainly legitimate and deserves due consideration,

the context in which it was produced cannot be entirely ignored. Saelee, supra.

(AR 21.)

A determination that utilizes speculation founded on information outside the record

deprives a claimant of the ability to cross-examine or rebut the assumptions relied on, and is

impossible to review on appeal. Burkhart v. Barnhart, 856 F.2d 1335, 1341 (9th Cir. 1988). See

also Miles v. Chater, 84 F.3d 1397, 1399-1401 (11th Cir. 1996) (remanding a case to a different

ALJ because of comments that a doctor’s determinations “almost invariably” were favorable to

the claimant’s attorney’s clients). Furthermore, “in the absence of other evidence to undermine

the credibility of a medical report, the purpose for which the report was obtained does not provide

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REPORT AND RECOMMENDATION RE:

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a legitimate basis for rejecting it.” Reddick v. Chater, 157 F.3d 715, 727 (9th Cir. 1998). Plaintiff

also raises other criticisms of the ALJ’s treatment of Dr. Hammer’s report, arguing that the timing

and consistency of the report enhanced, rather than detracted from, its weight, see 20 C.F.R. §

404.1527(d)(4), that the ALJ failed to identify any actual improprieties in the preparation of the

report, and that the ALJ erroneously stated that Dr. Hammer’s opinions lacked objective support

and erroneously discounted Dr. Hammer’s consideration of her physical condition in formulating

his opinion.

On remand, the ALJ should reevaluate Dr. Hammer’s opinions based on legally sufficient

grounds.

Evaluation of Mental Condition

Another issue on which the parties agree is that, on remand, the ALJ should follow 20

C.F.R. §§ 404.1520a and 416.920a when evaluating plaintiff’s mental condition, rating the severity

of her mental impairments by evaluating pertinent symptoms, signs, and laboratory findings that

substantiate the presence of the impairment(s), and rating the degree of functional limitations in

the four broad functional areas: activities of daily living; social functioning; concentration,

persistence, or pace; and episodes of decompensation.

Credibility Assessment of Plaintiff

Absent evidence of malingering, an ALJ must provide clear and convincing reasons to

reject a claimant’s testimony. See Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). See

also Thomas, 278 F.3d at 958-59. In finding a social security claimant’s testimony unreliable, an

ALJ must render a credibility determination with sufficiently specific findings, supported by

substantial evidence. “General findings are insufficient; rather, the ALJ must identify what

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testimony is not credible and what evidence undermines the claimant’s complaints.” Lester, 81

F.3d at 834. “We require the ALJ to build an accurate and logical bridge from the evidence to her

conclusions so that we may afford the claimant meaningful review of the SSA’s ultimate findings.”

Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003). “In weighing a claimant’s credibility, the

ALJ may consider his reputation for truthfulness, inconsistencies either in his testimony or between

his testimony and his conduct, his daily activities, his work record, and testimony from physicians

and third parties concerning the nature, severity, and effect of the symptoms of which he

complains.” Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).

The parties agree that the ALJ should reassess plaintiff’s credibility upon remand.

Assignment to Different ALJ

The Appeals Council should determine the assignment of the case on remand.

CONCLUSION

For the reasons described above, this matter should be REMANDED for further

administrative proceedings. A proposed order accompanies this Report and Recommendation.

DATED this 10th day of February, 2006.

A

Mary Alice Theiler

United States Magistrate Judge 

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