EDWARD A. DUFRESNE, JR., Chief Judge.Page 2
In January of 2008, a Jefferson Parish Grand Jury returned an indictment charging defendant, Rony O. Arias-Chavarria, with second degree murder in violation of LSA-R.S. 14:30.1. At the arraignment, defendant pled not guilty. Defendant then filed motions to suppress evidence, identification, and confession, which were heard and denied by the trial judge on August 6, 2008.
Defendant was provided with a Spanish language interpreter at every substantive court appearance, including the arraignment, the motion to suppress hearing, the trial, and the sentencing proceedings.
On August 18 and 19, 2009, the matter proceeded to trial before a twelve person jury. After considering the evidence presented, the jury found defendant guilty as charged. On August 25, 2009, the trial judge sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant now appeals.
FACTS
On the morning of September 10, 2007, Thomas Dimm, an excavating contractor, was clearing out trash and weeds from an overgrown vacant lot in the 2400 block of Helena Street in Kenner, Louisiana. While cutting the grass, he discovered the partially nude body of a white woman in the lot. Upon seeing this, Mr. Dimm immediately called the police.
Detective Herbert Hille of the Kenner Police Department, Criminal Investigations Division, responded to the scene. Upon his arrival, Detective Hille observed the deceased female lying in the uncut grass approximately forty feet from the doors of the back side of the businesses adjacent to the vacant lot, nearest to doors that opened into an auto body shop called Medina's One Stop. The victim was subsequently identified as twenty-one year old Bobbie Jo Hulsey.
During the course of his investigation, Detective Hille discovered that the victim had last been seen entering Medina's One Stop during the early morning hours of September 10, 2007. As a result of this information, Detective Hille prepared a search warrant for Medina's One Stop, which was executed on September 12, 2007. During their search of the business, officers found defendant in the restroom and detained him while the search was being conducted. Defendant, who had been employed at Medina's for approximately two weeks, identified himself as "Jose Luis Flores Castillo" and advised the officers that he was temporarily living at the business.
On a table in the office, the officers located a piece of paper with the victim's name and cell phone number on it. The information was written on stationary from the Studio Lodge, the hotel where the victim had been living prior to her death. The officers also found the victim's cell phone and cell phone charger in defendant's backpack, which was discovered behind a couch in the office.
Subsequent to the search, the officers interviewed defendant at the Criminal Investigations Division. In this initial interview, defendant claimed that he had met the victim outside a convenience store the day before her body was discovered and that she had given defendant her cell phone number and told him he could call her for sex. Defendant stated that he called the victim later that night, that she went to Medina's One Stop, that they had sex, and that she left, leaving her cell phone behind.
After further investigation, the officers interviewed defendant again on September 13, 2007, at which point he provided the officers with his real name, Rony Omar Arias-Chavarria, and agreed to give a statement. During this second interview, defendant admitted that he took the victim to Medina's and that he paid her to have sex with him. Defendant claimed that when they began to have sex, the victim laughed at him and told him that his penis was small. Defendant became angry, removed his penis, and inserted four fingers into the victim's vagina. The victim told him to stop, and when defendant removed his fingers, they were covered in blood. Defendant contends that he continued to have sex with the victim, but the victim kept laughing. Defendant put his arm around the victim's neck, squeezing until she fell to the ground. Defendant carried the victim to the field behind the shop and left her body lying in the grass. Defendant cleaned the blood from the floor with cleaning solution from the office. Defendant admitted that he did not try to call for help after the victim fell to the ground, but later called a man named Benito about an unrelated matter. After the interview was concluded, defendant was arrested for second degree murder.
In order to corroborate defendant's statement, Detective Hille secured the phone records for both the victim's cell phone and the business phone at Medina's One Stop. The phone records from Medina's One Stop confirmed that a call was placed from Medina's to the victim's cell phone at 1:35 a.m. on September 10, 2007. The records further reflected that there was a call placed from the victim's phone to a prepaid account in the name of Benito Hernandez at 5:25 a.m. on that same date.
At trial, Mr. Medina confirmed that defendant worked at Medina's One Stop and that he was living in the office when the victim's body was discovered in the vacant lot. Mr. Medina testified that defendant had a key to Medina's and that he was the only person living at the shop. When Mr. Medina arrived at the shop the day after the victim was discovered, he observed that the shop was clean and neat, and that the office smelled of Clorox cleaning solution.
An autopsy performed by Dr. Karen Ross, a forensic pathologist and Assistant Coroner at the Jefferson Parish Coroner's Office, established the cause of the victim's death as strangulation associated with blunt force injuries. During her examination, Dr. Ross also observed "gaping lacerations of the vaginal and perianal area" and a "perforation between the vagina and the anus" that extended for six inches from the vagina. Dr. Ross opined that the injuries to both the neck and the vaginal/anal areas contributed to the victim's cause of death.
In an effort to obtain a possible match from DNA evidence collected from the victim, Detective Hille obtained and executed a search warrant to take a saliva sample from defendant using a buccal swab. Bonnie Dubourg, a forensic DNA analyst for the Jefferson Parish Sheriffs Office, tested the samples taken from both the victim and defendant, and concluded that defendant could not be excluded as a possible DNA donor. Based on a statistical analysis performed on the source profile, Ms. Dubourg testified that the odds of someone other than defendant having that profile would be greater than one in one hundred billion, with the exception of identical twins. SUFFICIENCY OF THE EVIDENCE
On appeal, defendant challenges the sufficiency of the evidence used to convict him of second degree murder. Specifically, he contends that the evidence proved that the killing was committed in the heat of passion and, as such, constituted manslaughter. Defendant requests that this Court set aside the verdict rendered by the jury and enter a verdict for the responsive charge of manslaughter.
In reviewing the sufficiency of the evidence pursuant to the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), an appellate court must determine whether the evidence, either direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. State v. Ortiz, 96-1609 (La. 10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Lawson, 08-123 (La.App. 5 Cir. 11/12/08), 1 So.3d 516, 522.
In the present case, defendant was convicted of second degree murder in violation of LSA-R.S. 14:30.1. To support a conviction for second degree murder, the State was required to prove (1) the killing of a human being, and (2) that the defendant had specific intent to kill or inflict great bodily harm. LSA-R.S. 14:30.1 A(1); State v. Bauman, 08-1169 (La.App. 5 Cir. 5/12/09), 15 So.3d 177, 184, writ denied, 09-1533 (La.5/23/10), 34 So.3d 300.
Specific intent is defined as "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." LSA-R.S. 14:10(1). The determination of specific criminal intent is a question of fact. Specific intent may be inferred from the circumstances surrounding the offense and from the defendant's action, and the intent to kill or to inflict great bodily harm may be inferred from the extent and severity of the victim's injuries. State v. Lawson, 1 So.3d at 522.
Our review reveals that the evidence, both direct and circumstantial, was sufficient to support the conclusion that defendant had the specific intent to kill or inflict great bodily harm on the victim. In the instant case, the events described in defendant's confession were corroborated by the autopsy report and DNA testing results, phone records, and the testimony of Dr. Ross, Detective Hille, and Ivan Medina. Specifically, the evidence presented at trial showed that defendant worked at Medina's One Stop and was living in the office at Medina's when the victim's body was discovered in the vacant lot nearby. The body was discovered approximately forty feet from the doors that opened into Medina's One Stop.
Additionally, defendant admitted that he took the victim to Medina's and that he paid her to have sex with him. Defendant stated that he became angry when the victim laughed at the size of his penis, that he inserted four fingers into the victim's vagina, and that when he removed his fingers, they were covered in blood. When the victim continued to laugh at defendant, he put his arm around the victim's neck, squeezing until she fell to the ground. After he realized the victim was dead, defendant admitted that "[t]he first idea is, I throw her away some place," and he carried the victim to the field behind the shop and left her body lying in the grass. Finally, defendant admitted to cleaning the blood from the office floor, but did not call anyone or attempt to get help for the victim.
The phone records offered at trial corroborate the information contained in defendant's statement regarding defendant's meeting with the victim. The records from Medina's One Stop confirmed that a call was placed from Medina's to the victim's cell phone at 1:35 a.m. on September 10, 2007.
The testimony offered by Dr. Ross established that the cause of the victim's death was strangulation associated with blunt force injuries, which is consistent with defendant's statement. In Dr. Ross' opinion, the injuries sustained to the victim's vaginal and perianal area could have been caused by the insertion of four fingers into that area, and the injuries to the victim's neck could have been caused by defendant using his arm to strangle the victim. Finally, the severity of the injuries sustained by the victim was highlighted by testimony of Dr. Ross, who stated that the victim had "really gaping lacerations of the vaginal and perianal area," and that "there was a perforation between the vagina and the anus" that "extended for six inches from the vagina." Finally, the evidence offered by the forensic DNA analyst showed not only that defendant could not be excluded as a possible DNA donor, but that the odds of someone other than defendant having that profile would be greater than one in one hundred billion, with the exception of identical twins.
Based on the foregoing, we conclude that the evidence presented at trial was constitutionally sufficient to support the jury's finding that defendant had the specific intent to kill or inflict great bodily harm on the victim. Despite our finding that the evidence was sufficient to establish second degree murder, we will nonetheless address defendant's argument that the evidence at trial proved at most that he was guilty of manslaughter because the killing was committed in the heat of passion.
LSA-R.S. 14:31 A(1) defines manslaughter as a homicide which would be first or second degree murder, "but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed."
"Sudden passion" and "heat of blood" are not elements of the offense of manslaughter; rather, they are mitigatory factors that may reduce the grade of the offense. In order to be entitled to the lesser verdict of manslaughter, the defendant is required to prove the mitigatory factors by a preponderance of the evidence. Provocation and time for cooling are questions for the jury to determine under the standard of the average or ordinary person, one with ordinary self-control. The question for this Court on review is whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that the mitigatory factors were not established by a preponderance of the evidence. State v. Bauman, 15 So.3d at 185; State v. Lawson, 1 So.3d at 523.
The evidence presented at trial does not support defendant's claim that he killed the victim in "sudden passion" or "heat of blood." By defendant's own admission, the victim's only provocation was that she laughed at him while they were having sex and told him that he had a small penis. Defendant also admitted that he became angry and "lost control" when the victim insulted him. It has been held that mere words or gestures, however offensive or insulting, will not reduce a homicide from murder to manslaughter. State v. Mitchell, 39, 202 (La.App.2d Cir. 12/15/04), 889 So.2d 1257, 1263, writ denied, 05-0132 (La.4/29/05), 901 So.2d 1063.
Considering the circumstances, defendant's actions, and the extent of the victim's injuries, we find that the evidence was sufficient under Jackson to support the jury's finding that defendant had specific intent to kill or inflict great bodily harm on the victim and was, thus, guilty of second degree murder. Accordingly, the arguments raised by defendant in this assigned error are without merit.
PENIAL OF MOTION TO SUPPRESS STATEMENT
In this assigned error, defendant argues that the trial court erred in denying his motion to suppress statement because the State failed to prove that his waiver of rights and subsequent confession were knowing and intelligent, considering defendant's inability to communicate fluently in English. Specifically, in his appellate brief, defendant contends that "the overall circumstances of the taking of the statement, with the obvious language barrier, the ad hoc provision of a translator for the waiver of critical constitutional rights, and the failure even to translate as much as 70 of appellant's recorded responses, shows that the state failed to carry its heavy burden of proving a knowing and intelligent waiver of rights." As such, defendant argues that his confession should have been suppressed.
Detective Herbert Hille, who investigated the murder of Bobbie Jo Hulsey, and Officer Ninoska Guggenheim, who read defendant his rights in Spanish and assisted with translation during defendant's interview, testified at the suppression hearing. With regard to her translating ability, Officer Guggenheim testified that she has an Hispanic background, that her parents are from Honduras, that defendant advised her that he was from Honduras, and that she spoke Spanish in her household as child. Officer Guggenheim took Spanish classes in high school and a semester of Spanish in college, and has participated in translating over one hundred cases during her time with the Kenner Police Department. However, Officer Guggenheim has never been qualified as an expert in translation, and she does not have a language degree.
At the suppression hearing, the officers testified that defendant was initially interviewed on September 12, 2007, and agreed to give a statement. Although the officers were able to converse with defendant in English, and though both officers noted that defendant could understand their conversations in English, Officer Guggenheim was called to assist with the interview. Prior to the interview, Officer Guggenheim read defendant his rights in both English and Spanish, and defendant signed the rights of arrestee form and acknowledged that he understood his rights. Both officers testified that they did not force, threaten, coerce, intimidate, or make any promises or inducements to defendant to get him to give a statement. Additionally, Officer Guggenheim testified that defendant was advised that if he did not understand what was being asked, they would translate the questions for him.
The officers interviewed defendant again on September 13, 2007, at which point defendant provided the officers with his real name and agreed to give a statement. Officer Guggenheim read defendant his rights again, in both English and Spanish, and defendant signed another advice of rights form in his own name. Defendant acknowledged that he understood his rights and wished to waive them. Both officers testified that they did not force, threaten, coerce, or intimidate defendant, nor did they make any promises or inducements to defendant in order to obtain his statement.
Ms. Trigueros, the Spanish speaking crime scene technician, also assisted with translation during this interview.
After considering the evidence presented at the hearing, the trial court denied defendant's motion to suppress, holding that the statements were constitutionally obtained. Defendant now challenges this ruling.
The State has the burden of proving the admissibility of a purported confession or statement by the defendant. LSA.C.Cr.P. art. 703(D). Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived his Miranda rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement, or promises. State v. Franklin, 03-287 (La.App. 5 Cir. 9/16/03), 858 So.2d 68, 70, writ denied, 03-3062 (La.3/12/04), 869 So.2d 817; see also LSA-R.S. 15:451.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)
A determination of voluntariness is made on a case-by-case basis, depending on the totality of the facts and circumstances of each situation. The admissibility of a confession or statement is a determination for the trial judge and the judge's conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. State v. Franklin, 858 So.2d at 70.
Testimony of the interviewing police officer alone may be sufficient proof that a defendant's statements were freely and voluntarily given. State v. Mackens, 35, 350 (La.App. 2 Cir. 12/28/01), 803 So.2d 454, 463, writ denied, 02-0413 (La.1/24/03), 836 So.2d 37. In the present case, defendant was advised of his Miranda rights, including the right to remain silent, on two separate occasions, in both English and Spanish. Defendant signed waiver of rights forms, in both English and Spanish, prior to both interviews. On both forms, defendant indicated that, though he did not have the ability to read or to write English, he understood the rights that had been read to him, was willing to answer questions without a lawyer, and waived his right to remain silent. Defendant further indicated that he had not been threatened or induced to waive his rights. In addition, the officers testified that they did not threaten, force, or coerce defendant into giving a statement.
Given these circumstances, we find that defendant's statements were freely and voluntarily made after a knowing and intelligent waiver of his constitutional rights. Accordingly, the trial court did not abuse its discretion in denying defendant's motion to suppress statements. This assigned error is without merit.
ERROR PATENT DISCUSSION
We have also reviewed the record for errors patent in accordance with LSA.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975). Our review reveals that the trial court failed to advise defendant of the time period within which to apply for post-conviction relief, as required by LSA.C.Cr.P. art. 930.8. In accordance with the procedure employed in State v. Neely, 08-707 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09), 21 So.3d 272, and State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473, we advise defendant by this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA.C.Cr.P. arts. 914 or 922.
Accordingly, for the reasons set forth herein, we affirm defendant's conviction and sentence.
DEFENDANT'S CONVICTION AND SENTENCE AFFIRMED.
standard of review has been described as "highly deferential."
Valentine v. Comm'r of Soc. Sec. Admin.,
574 F.3d 685, 690 (9th Cir. 2009). "`Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"
Bray v. Comm'r of Soc. Sec. Admin.,
554 F.3d 1219, 1222 (9th Cir. 2009) (quoting
Andrews v. Shalala,
53 F.3d 1035, 1039 (9th Cir. 1995)). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities."
Andrews,
53 F.3d at 1039;
see also Tommasetti v. Astrue,
533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."). Findings of fact that are supported by substantial evidence are conclusive.
42 U.S.C. § 405(g);
see also McCarthy v. Apfel,
221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's."
Bray,
554 F.3d at 1222 (citing
Massachi v. Astrue,
486 F.3d 1149, 1152 (9th Cir. 2007));
see also Ryan v. Comm'r of Soc. Sec.,
528 F.3d 1194, 1198 (9th Cir. 2008) ("`Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting
Burch v. Barnhart,
400 F.3d 676, 679 (9th Cir. 2005)). However, the court "must consider the entire record as a whole and may not affirm simply by isolating a `specific quantum of supporting evidence.'"
Ryan,
528 F.3d at 1198 (quoting
Robbins v. Soc. Sec. Admin.,
466 F.3d 880, 882 (9th Cir. 2006)).
III. ANALYSIS
A. Whether the ALJ Impermissibly Failed To Characterize Evidence in the Record
Plaintiff claims that the ALJ erred by omitting from his "summary of the medical evidence" several pieces of evidence and/or functional limitations assessed by plaintiff's treating, examining, or non-examining physicians. (See Pl.'s Mot. for Summ. J. at 21-25.) Each piece of evidence and opinion will be addressed in turn below.
1. The 2004 Report and 2006 Letter from United Cerebral Palsy
Plaintiff contends that the ALJ erred by omitting certain materials from United Cerebral Palsy ("UCP") in his summary of medical evidence. UCP had performed a nine-day assessment of plaintiff's work abilities in July 2004, and plaintiff later attempted to find suitable work through UCP. Specifically, plaintiff argues that the ALJ failed to discuss: (1) portions of a "Performance and Observations" report completed by a job coach with UCP in 2004; and (2) a letter from UCP, dated January 10, 2006. (Pl.'s Mot. for Summ. J. at 21-22; AT 284-85, 293.)
Although an ALJ is required to develop the record and interpret medical evidence, and cannot selectively analyze the evidence, he or she "does not need to discuss every piece of evidence" in order to demonstrate that such evidence was considered and credited. See Howard ex. rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). "However, if the ALJ rejects significant probative evidence, he [or she] must explain why." Lusardi v. Astrue, 350 Fed. App'x 169, 173 (9th Cir. 2009) (citing Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984)).
The ALJ discussed portions of the 2004 report from UCP in his decision. (AT 18.) The ALJ stated:
A performance and observation report from United Cerebral Palsy, where the claimant was sent to work, stated that he had the ability to learn. The evaluator saw no reason why the claimant could not work without the proper training and coaching although he may need some accommodation, particularly for his bad feet. The claimant was disciplined enough to get to work on time and perform his assigned tasks.
(AT 18.)
Plaintiff contends, however, that the ALJ provided an incomplete summary of UCP's report and, essentially, that the ALJ painted a selective, rosy picture of the report. He alleges that the ALJ erred by not addressing the following portion of the report:
[Jonathan] had a great deal of trouble with his feet. It was very difficult
for him to stand or move around a lot. Although, he did perform the tasks assigned to him; it was difficult for him.
Stamina: His stamina was affected because of, 1, his bad feet and 2, his total lack of any work experience. He tired easily; and after four (4) hours he seemed to be extremely tired. After five (5) hours, he was even more tiered [
sic]; by his own admission, at the end of the assessment he was exhausted.
(AT 284 (emphasis in original).) Plaintiff also notes the evaluator's assessment that plaintiff "performed most of these tasks [ sic] some show of skill; however, he did need a great deal of instruction and coaching." (AT 284.)
Curiously, the Commissioner cursorily opposes plaintiff's argument only on the grounds that the positive portions of the 2004 report cited by the ALJ, and quoted above, are consistent with the opinions of the following mental health providers: (1) Dr. Von Bolschwing, an examining psychologist who evaluated plaintiff (AT 314-18); Philip M. Cushman, Ph. D., who performed psychological testing on plaintiff (AT 286-92); and Daniel Bruce, L.C.S.W., a licensed social worker whose work Dr. Cushman reviewed. (Def.'s Opp'n at 3-4.) The Commissioner does not address the portion of the UCP report cited by plaintiff and does not argue that the ALJ was not required to address this portion of the report because it was not significant or probative. The Commissioner appears to have ignored plaintiff's argument.
The undersigned concludes that the evidence cited by plaintiff is significant and appears to be probative of plaintiff's physical abilities and ability to perform in a work setting. At a minimum, it offers information regarding plaintiff's stamina over the course of a workday. However, the ALJ did not address these portions of the report and implicitly rejected the limitations stated therein but without any explanation. Accordingly, the ALJ erred, and the undersigned will remand this matter for further proceedings including re-consideration of the 2004 UCP report.
Plaintiff also claims that the ALJ erred by not referencing or discussing a letter from UCP, dated January 10, 2006, which concluded that despite plaintiff's attempts to find work through UCP's Employment Preparation Program, he "was unable to obtain suitable employment that would accommodate his limitations." (AT 293.) The Commissioner does not address this argument in his opposition. Nevertheless, the undersigned concludes that the ALJ did not err by omitting any reference to this 2006 letter. This conclusory letter is not probative of plaintiff's functional limitations or ability to do work. It states that plaintiff was unable to find suitable work, but does not explain the possible reasons for this inability, or which limitations were the likely cause. Accordingly, the ALJ did not err in omitting the 2006 letter from his summary of evidence.
This letter notes that plaintiff left the program in May 2005.
2. The Opinions of Drs. Von Bolschwing, Aquino, and Morgan
Plaintiff further contends that the ALJ erroneously disregarded without explanation certain functional limitations found by: Dr. Von Bolschwing, an examining psychologist (AT 314-21); Dr. Aquino, an examining physician (AT 322-37); and Dr. Morgan, an examining psychologist (AT 301-12). The ALJ summarized, at least in part, all of these examining providers' assessments (see AT 18-19), and relied on the opinions of Drs. Von Bolschwing and Aquino in assessing plaintiff's RFC, stating:
I give substantial weight to the assessments of the State Agency medical consultants to the effect that plaintiff can perform simple, repetitive tasks at the sedentary exertional level (16F, 17F, 18F). These assessments are wholly consistent with the weight of the evidence of record and rendered by physicians, who are experts in the evaluation of the medical issues in disability claims under the Social Security Act.
(AT 22.)
Plaintiff contends, however, that the ALJ selectively ignored limitations found by Drs. Von Bolschwing, Aquino, and Morgan without providing reasons for rejecting those limitations. He argues, in essence, that as a result of the omissions of these limitations, the ALJ's RFC was incomplete and the ALJ's determination that plaintiff did not meet or equal Listing 12.10 was erroneous. Specifically, plaintiff contends that the ALJ rejected a portion of Dr. Von Bolschwing's opinion that plaintiff had "marked" restrictions with respect to his ability to "[r]espond appropriately to usual work situations and to changes in a routine work setting." (AT 320.) Plaintiff further claims that the ALJ rejected portions of Dr. Aquino's medical opinion, which opined that as a result of his ankle impairment, plaintiff: (1) was limited in his ability to stand/walk for 15 minutes at a time for a total of less than two hours during an eight-hour workday, and (2) would need to elevate his leg periodically. (AT 325, 327.) Plaintiff also argues that the ALJ "completely disregarded" Dr. Morgan's opinion that plaintiff had a "marked" impairment insofar as his ability to maintain social functioning was concerned, and the Global Assessment of Functioning ("GAF") score of 50 assigned by Dr. Morgan. (AT 311, 312.)
At the outset, the undersigned concludes that the ALJ did not err by omitting reference to the GAF score assigned by Dr. Morgan. Plaintiff's argument is unpersuasive because "[a]n ALJ does not commit legal error by failing to incorporate a GAF score into his disability assessment." Speelman v. Astrue, No. EDCV 09-1222 CW, 2010 WL 3001664, at *4 (C.D. Cal. July 29, 2010) (unpublished) (concluding that ALJ's failure to discuss a GAF score assigned by a treating physician was not legal error); see also McFarland v. Astrue, 288 Fed. Appx. 357, 359 (9th Cir. 2008) (holding that the "ALJ's failure to address the three GAF scores specifically does not constitute legal error" where the RFC assessment took into account the claimant's mental impairments, was not inconsistent with the claimant's three limited duration GAF scores, and was supported by substantial evidence in the record); Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002) ("While a GAF score may be of considerable help to the ALJ in formulating the RFC, it is not essential to the RFC's accuracy. Thus, the ALJ's failure to reference the GAF score in the RFC, standing alone, does not make the RFC inaccurate.")
The medical opinions of three types of medical sources are recognized in social security cases: "(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians)." Lester, 81 F.3d at 830. Generally, a treating physician's opinion should be accorded more weight than opinions of doctors who did not treat the claimant, and an examining physician's opinion is entitled to greater weight than a non-examining physician's opinion. Id. Where a treating or examining physician's opinion is uncontradicted by another doctor, the Commissioner must provide "clear and convincing" reasons for rejecting the treating physician's ultimate conclusions. Id. If the treating or examining doctor's medical opinion is contradicted by another doctor, the Commissioner must provide "specific and legitimate" reasons for rejecting that medical opinion, and those reasons must be supported by substantial evidence in the record. Id. at 830-31; accord Valentine, 574 F.3d at 692. "`The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [her] interpretation thereof, and making findings.'" Tommasetti, 533 F.3d at 1041 (modification in original, citation and quotation marks omitted).
Here, the ALJ adopted portions of Dr. Von Bolschwing's and Dr. Aquino's opinions, but tacitly rejected the portions cited by plaintiff without explanation. The assigned RFC did not incorporate Dr. Aquino's assessed limitations related to plaintiff's ability to stand/walk and his need to elevate his leg. Additionally, the RFC does not incorporate Dr. Von Bolschwing's observation of plaintiff's marked difficulty with responding appropriately to usual work situations and to changes in a routine work setting. The ALJ did not otherwise address the implicit rejection of these limitations in his decision. Although an ALJ need not adopt or discuss every portion of a doctor's opinion, the undersigned cannot deduce what treatment the ALJ gave to these limitations. On the particular facts of this case, the undersigned is left with the feeling that the ALJ selectively adopted portions of the opinions that would favor a finding of "not disabled," while selectively ignoring portions that might favor plaintiff. This may well not be the case, but the undersigned cannot so conclude on this record. Accordingly, the undersigned will remand this matter for further evaluation and discussion of the limitations raised by plaintiff.
Conversely, the ALJ did not err with respect to consideration of Dr. Morgan's opinion. Dr. Morgan had concluded that plaintiff met the criteria in Listing 12.10, which would render plaintiff presumptively disabled. (AT 311.) The ALJ rejected Dr. Morgan's conclusion in this regard, stating: "I give little weight to the assessment of Robert L. Morgan, Ph.D., to the effect that the claimant meets the criteria of listing 12.10. . . . Dr. Morgan's own evaluation of the severity of the claimant's limitations does not support that finding as the claimant is found with only one marked area of impairment." (AT 22.) This statement indicates that the ALJ considered and did not reject Dr. Morgan's assessment that plaintiff had marked difficulty with respect to his ability maintain social functioning. The ALJ noted "one marked area of impairment." Thus, the ALJ did not ignore or reject Dr. Morgan's assessment as alleged by plaintiff and, as a result, did not err.
3. Dr. Egelston's Opinion
Plaintiff also alleges that the ALJ erred by rejecting the opinion of an orthopedic surgeon, William Egelston, M.D., without addressing or expressly rejecting that opinion in his decision. (Pl. Mot. for Summ. J. at 24.) Dr. Egelston completed a "Functional Capacities Evaluation" form, dated December 19, 2006, based on an examination of plaintiff. (AT 313.) He noted that plaintiff had left foot congenital coalition of the subtalar joint and that although plaintiff had undergone surgery for that condition, some bone spurs remained at the site that possibly continued to cause symptoms at the site. He opined that plaintiff could work only four hours in an eight-hour workday and could stand or walk for only five to ten minutes at a time during the workday. He also concluded that plaintiff could not use his left foot for "repeated movements." The ALJ did not address Dr. Egelston's opinion and, thus, offered no specific and legitimate reasons for rejecting it. This was error.
The Commissioner concedes that the ALJ "did not address" Dr. Egelston's opinion. (Def.'s Opp'n at 6.) Nevertheless, he attempts to save the ALJ's decision in two ways. First, the Commissioner offers several post-hoc justifications in support of the rejection of Dr. Egelston's opinion. (See id.) However, this court declines the invitation to review the Commissioner's after-the-fact reasons for rejecting Dr. Egelston's opinion because the court is constrained to review the reasons relied on by the ALJ. See Tommasetti, 533 F.3d at 1039 n. 2 (refusing to consider a reason for discounting the plaintiff's credibility that was offered by the district court, but was not relied on by the ALJ); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (stating that a reviewing court may only review the reasons provided by the ALJ in the disability determination and "may not affirm the ALJ on a ground upon which he did not rely"); Stout v. Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006) ("[W]e cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision" (citation and quotation marks omitted).); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (stating that the Court of Appeals could not rely on the independent findings of the district court, and stating that "[w]e are constrained to review the reasons the ALJ asserts");Barbato v. Comm'r of Soc. Sec. Admin., 923 F. Supp. 1273, 1276 n. 2 (C.D. Cal. 1996) (refusing to consider reasons for rejecting a medical opinion offered by the Commissioner in his motion for summary judgment that were not relied on by the ALJ); see also Ceguerra v. Sec'y of Health Human Servs., 933 F.2d 735, 738 (9th Cir. 1991) ("A reviewing court can evaluate an agency's decision only on the grounds articulated by the agency."); Vista Hill Found., Inc. v. Heckler, 767 F.2d 556, 559 (9th Cir. 1985) (stating that "an agency's decision can be upheld only on a ground upon which it relied in reaching that decision").
Second, the Commissioner contends that any error resulting from the ALJ's silent rejection of Dr. Egelston's opinion was harmless "because it consisted of checked boxes on a form, did not involve detailed analysis, and was and [ sic] inconsistent with the record as a whole, and, moreover, the ALJ and Dr. Aquino took into account Plaintiff's surgeries and limitations." (Def.'s Opp'n at 6-7.) The undersigned disagrees. Harmless error exists where it is "clear from the record that an ALJ's error was `inconsequential to the ultimate nondisability determination.'"Robbins, 466 F.3d at 885 (citing Stout, 454 F.3d at 1055-56). The undersigned cannot conclude from the ALJ's decision and the remaining record that the ALJ's error was harmless. As an initial matter, case law in this Circuit supports the proposition that the silent rejection of a doctor's opinion is not harmless error.See Pham v. Astrue, 695 F. Supp. 2d 1027, 1031-32 (C.D. Cal. 2010) (concluding that the ALJ's failure to address medical opinions was legal error that was not harmless); cf. Stout, 454 F.3d at 1053 (holding that the ALJ's silent rejection of competent lay witness testimony was not harmless error). In any event, the undersigned cannot conclude that the ALJ's silent rejection of Dr. Egelston's opinion was inconsequential to the ultimate disability determination because Dr. Egelston clearly assessed limitations that would potentially alter the ALJ's RFC. Moreover, the Commissioner's harmless error argument requires that the court consider the Commissioner's post-hoc reasons for discounting Dr. Egelston's opinion, which the court declines to do.
B. Whether the Appeals Council Erred In Rejecting Dr. Davis's Opinion
Plaintiff further contends that the Appeals Council erred by not providing specific and legitimate reasons for rejecting the opinion of Dr. Davis (AT 348-51), which plaintiff submitted after the ALJ issued his second decision finding that plaintiff was not disabled. Dr. Davis is a licensed clinical psychologist specializing in disability assessments, anxiety disorders, and depressive conditions. (AT 346.) In summarizing his examination results, Dr. Davis opined:
Mr. John Luckett (with information corroborated by Kathleen Luckett), a clinical interview, a Mental Status Examination, Behavioral Observations and the Asperger's Check-off Symptom list all converged upon the diagnosis of Asperger's Syndrome. This is a subtle yet severely incapacitating condition which renders Mr. Luckett incapable of gainful employment in my professional opinion as a Clinical Psychologist with over 4 years in the field of Developmental Disabilities and a total of 20 years in Clinical Practice.
(AT 347.)
The Appeals Council indicated in its "Notice of Appeals Council Action" that it had considered plaintiff's claims of error and Dr. Davis's newly offered opinion, but concluded that "this information does not provide a basis for changing the Administrative Law Judge's decision." (AT 7-8.) Thus, the Appeals Council denied plaintiff's request for review.
With respect to the Appeals Council's review of a case, the Commissioner's regulations state:
(a) The Appeals Council will review a case if —
(1) There appears to be an abuse of discretion by the administrative law judge;
(2) There is an error of law;
(3) The action, findings or conclusions of the administrative law judge are not supported by substantial evidence; or
(4) There is a broad policy or procedural issue that may affect the general public interest.
(b) If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision. The Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision. It will then review the case if it finds that the administrative law judge's action, findings, or conclusion is contrary to the weight of the evidence currently of record.
20 C.F.R. § 404.970.
In its opposition, the Commissioner suggests that the Appeals Council expressly found that Dr. Davis's opinion "was not contrary to the weight of all the evidence, and the new evidence was not material and did not relate to the period on or before the date of that decision." (Def.'s Opp'n at 5.) Although such a finding may be implied from the result of the Appeals Council's work, it made no such express findings.
Decisions in this Circuit support the proposition that where the Appeals Council considers a treating doctor's opinion submitted after issuance of the ALJ's decision and rejects that opinion or denies review after consideration of that opinion, it must provide reasons for doing so consistent with the standards applicable to the rejection of medical opinions generally. See Ramirez v. Shalala, 8 F.3d 1449, 1453-54 (9th Cir. 1993) (holding that the ALJ and Appeals Council erred by failing to provide any reasons, let alone specific and legitimate reasons, for rejecting a treating physician's opinion); Brent v. Astrue, No. EDCV 09-519-MAN, 2010 WL 3521788, at *5-6 (C.D. Cal. Sept. 7, 2010) (unpublished) (concluding that the Appeals Council erred by summarily rejecting the later-submitted opinion of an examining physician without providing specific reasons supporting such rejection); Jenkins v. Astrue, No. EDCV 09-0158-JEM, 2010 WL 368877, at *4 (C.D. Cal. Jan. 27, 2010) (unpublished) ("The bald conclusion that Dr. Peterson's statement did not provide a basis for changing the ALJ's decision is legally insufficient. The Appeals Council should have set forth specific and legitimate reasons supported by substantial evidence for rejecting Dr. Peterson's statement or remanded the case back to the ALJ to consider it."); Castillo v. Astrue, No. CV 07-4744-RC, 2008 WL 4330253, at *4 (C.D. Cal. Sept. 18, 2008) (unpublished) (same); Siska v. Barnhart, No. C 00-4788 MMC, 2002 WL 31750220, at *5 (N.D. Cal. Dec. 4, 2002) (unpublished) ("[T]he Appeals Council considered the opinions of Dr. Chua and Cook, but found those opinions did not provide a basis for changing the ALJ's decision. . . . In so ruling, the Appeals Council did not provide any specific and legitimate reasons for its conclusion, and thus erred."); compare Jesus v. Astrue, No. EDCV 07-1247-MAN, 2009 WL 2900290, at *5-6 (C.D. Cal. Sept. 3, 2009) (unpublished) (concluding that the Appeals Council properly rejected a medical opinion submitted after entry of the ALJ's decision by offering specific and legitimate reasons for doing so).
Here, the Appeals Council provided a non-specific reason for disregarding Dr. Davis's opinion, which plaintiff reasonably characterizes as "boilerplate." The Appeals Council did not state, even in cursory terms, a specific reason for rejecting Dr. Davis's opinion. Accordingly, the Appeals Council erred and this matter will be remanded for further consideration of Dr. Davis's opinion.
In response to plaintiff's argument, the Commissioner offers several reasons that would purportedly support the rejection of Dr. Davis's opinion. (Def.'s Opp'n at 5.) However, the undersigned has not considered these newly proffered reasons because, as stated above, "an agency's decision can be upheld only on a ground upon which it relied in reaching that decision."Vista Hill Found., Inc., 767 F.2d at 559; see also Orn, 495 F.3d at 630.
C. Whether the ALJ Improperly Discounted Plaintiff's Testimony
Plaintiff also claims that the ALJ improperly found plaintiff to be less than entirely credible. In Lingenfelter v. Astrue, the Ninth Circuit Court of Appeals summarized the ALJ's task with respect to assessing a claimant's credibility:
To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis. First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged. The claimant, however, need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some
degree of the symptom. Thus, the ALJ may not reject subjective symptom testimony . . . simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged.
Second, if the claimant meets this first test, and there is no evidence of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so. . . .
504 F.3d at 1035-36 (citations and quotation marks omitted). In weighing a claimant's credibility, an ALJ may consider, among other things, the "`[claimant's] reputation for truthfulness, inconsistencies either in [claimant's] testimony or between [her] testimony and [her] conduct, [claimant's] daily activities, [her] work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which [claimant] complains."
Thomas v. Barnhart,
278 F.3d 947, 958-59 (9th Cir. 2002) (modification in original) (quoting
Light v. Soc. Sec. Admin.,
119 F.3d 789, 792 (9th Cir. 1997)). If the ALJ's credibility finding is supported by substantial evidence in the record, the court "may not engage in second-guessing."
Id. at 959.
The ALJ found that plaintiff's medically determinable impairments could reasonably be expected to produce some of the symptoms alleged by plaintiff, but that plaintiff's statements concerning the intensity, persistence, and limiting effects of those symptoms were not entirely credible. (AT 21.) Given the absence of evidence of malingering, the ALJ was required to provide clear and convincing reasons in support of his adverse credibility finding. He offered several reasons in this regard.
For example, the ALJ relied on the fact that the "record reflects no actual treatment for the claimant's alleged mental impairments." (AT 21.) Relatedly, the ALJ stated that "there are no treatment records whatsoever prior to October 3, 2003, shortly before this application was filed." (AT 21.) The ALJ's statement appears to be technically true insofar as mental health records are concerned, but it does not paint a complete picture. Plaintiff's mother testified that plaintiff had been prescribed a medication for a social phobia in the third grade. (AT 54.) Additionally, plaintiff's parents attempted to accommodate his mental impairments by placing him in special education classes and controlled classroom environments. (AT 54.) These actions appear to be consistent with behavioral treatments for autism spectrum disorders.
See Merck Manual 2487 (discussing treatment for autism spectrum disorders and stating, in part: "Treatment is usually multidisciplinary, and recent studies show measurable benefits from intensive, behaviorally based approaches that encourage interaction and meaningful communication. Psychologists and educators typically focus on behavioral analysis and then match behavioral management strategies to the person's specific behavioral problems at home and at school.").
The ALJ also reasoned that "[n]o initial allegation was made regarding his allegedly disabling foot impairment." (AT 21.) It appears, based on this statement, that the ALJ did not believe that plaintiff had a foot impairment. However, the record supports that plaintiff had three surgeries to repair bones in his left foot. Moreover, Dr. Aquino, whose opinion the ALJ relied on to some extent, found that plaintiff had "significant findings of the left ankle corresponding to his complaints." (AT 325.) Dr. Aquino also assessed a standing/walking limitation of 15 minutes at one time, which was related to plaintiff's ankle problems. These facts would at least appear to substantiate that plaintiff had some ankle impairment that caused symptoms. The ALJ did not explain why the absence of an "initial" allegation of a disabling foot impairment was not overcome by the medical records.
Furthermore, the ALJ stated: "The claimant has never worked, which raises some questions as to whether the current unemployment is truly the result of medical problems." (AT 21.) It is unclear why plaintiff's unemployment suggests that he is not credible. The record supports that plaintiff had attempted to find suitable employment, but had failed, at least in part, because of his potentially disabling impairment. The ALJ's attempt to discount plaintiff's credibility on this basis is neither clear nor convincing based as set forth in the ALJ's present decision.
The ALJ also reasoned that plaintiff's completion of high school and community college classes, and his ability to drive and supervise a younger cousin undermined his credibility. These reasons, especially plaintiff's ability to supervise a younger child, support the ALJ's credibility finding. However, on the whole, the undersigned cannot conclude that the reasons provided in support of the ALJ's credibility finding are "clear and convincing." Accordingly, the ALJ should reassess the credibility finding on remand.
D. Whether the ALJ Improperly Rejected Third Party Lay Witness Testimony
Plaintiff also claims that the ALJ improperly rejected the lay witness testimony and/or statements of Kathleen A. Luckett, plaintiff's mother. (Pl.'s Mot. for Summ. J. at 31-34.) Ms. Luckett testified regarding plaintiff's functional limitations, including, among other things, plaintiff's ability to complete tasks without supervision or instruction and the impact of his congenital bone defect; she also provided written reports regarding plaintiff's limitations. (See AT 49-57, 155-63, 198-206.)
The Ninth Circuit Court of Appeals has long-held that "`[i]n determining whether a claimant is disabled, an ALJ must consider lay witness testimony concerning a claimant's ability to work.'"Bruce, 557 F.3d at 1115 (quoting Stout, 454 F.3d at 1053); see also 20 C.F.R. §§ 404.1513(d), 416.913(d). Such testimony " cannot be disregarded without comment." Id. (citation omitted). "When an ALJ discounts the testimony of lay witnesses, `he [or she] must give reasons that are germane to each witness.'" Valentine, 574 F.3d at 694 (modification in original) (quoting Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)). "[T]he reasons `germane to each witness' must be specific." Bruce, 557 F.3d at 1115 (citing Stout, 454 F.3d at 1054).
Here, the ALJ considered Ms. Luckett's testimony and written submission. (See AT 21, 22.) However, he assigned "little weight" to Ms. Luckett's statements because she "has a vested interest in the outcome of this matter." (AT 22.)
In defending the ALJ, the Commissioner correctly notes that inGreger v. Barnhart, the Ninth Circuit Court of Appeals affirmed an ALJ's rejection of a lay witness's affidavit attesting to the plaintiff's limitations "in part" on the grounds that the lay witness had a "close relationship" with the plaintiff and was possibly influenced by a desire to help the plaintiff. 464 F.3d 968, 972 (9th Cir. 2006); see Def.'s Opp'n at 8. However, the Court of Appeals also affirmed on the basis of the additional reasons provided by the ALJ; namely, that the lay witness's affidavit was inconsistent with the plaintiff's treatment records during the period at issue and inconsistent with the plaintiff's failure to participate in cardiac rehabilitation. Greger, 464 F.3d at 972. Thus, Greger does not stand for the proposition that an ALJ may reject lay witness testimony or statements solely on the ground that the witness has a close relationship with the plaintiff or a vested interest in assisting the plaintiff. The Court of Appeals did not say as much, and it is unclear what weight it gave to the close relationship between the plaintiff and the lay witness.
The rule proposed by the Commissioner would effectively nullify the Commissioner's own regulations, which provide that the agency may consider "other nonmedical sources" of information in assessing the severity of a claimant's impairments and resulting impacts on a claimant's ability to work, and that such other sources may be "spouses, parents or caregivers, siblings, other relatives, friends, neighbors, and clergy." 20 C.F.R. § 404.1513(d); accord 20 C.F.R. § 416.913(d). If a close relationship between the lay witness and the claimant could alone justify the rejection of that witness's testimony, an ALJ would never be required to consider lay witness testimony offered by a family member. Circuit law does not support such the Commissioner's proposed rule. See Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996) ("The fact that a lay witness is a family member cannot be a ground for rejecting his or her testimony. To the contrary, testimony from lay witnesses who see the claimant every day is of particular value. . . ."); accord Regennitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1298 (9th Cir. 1999).
The ALJ's reason for rejecting Ms. Luckett's testimony is not sufficient, by itself, to support that rejection. Accordingly, the undersigned will remand this matter for the additional reason that the ALJ did not adequately support rejection of Ms. Luckett's testimony and statements.
E. Whether the ALJ Erred By Not Evaluating the Impact of Plaintiff's Obesity
Plaintiff also argues that the ALJ ignored the Commissioner's policy statements and the Appeals Council's remand order by not evaluating the impact of plaintiff's obesity on his functional abilities, consistent with obligations to do so imposed by SSR 02-1p. (Pl.'s Mot. for Summ. J. at 37-38.) SSR 02-1p states that "[o]besity is a complex, chronic disease characterized by excessive accumulation of body fat." It further states that obesity "commonly leads to, and often complicates, chronic diseases of the cardiovascular, respiratory, and musculoskeletal body systems," and "may also cause or contribute to mental impairments such as depression." SSR 02-1p also requires an ALJ to consider an individual's obesity at steps two through five of the sequential evaluation, and requires that obesity be considered in combination with the individual's other impairments. It also states that "[an adjudicator] will not make assumptions about the severity or functional effects of obesity combined with other impairments. Obesity in combination with another impairment may or may not increase the severity or functional limitations of the other impairment. [The adjudicator] will evaluate each case based on the information in the case record." Ninth Circuit case law also requires an ALJ to determine the effect of a claimant's obesity on his or her other impairments. See Celaya v. Halter, 332 F.3d 1177 (9th Cir. 2003).
"The Secretary issues Social Security Rulings to clarify the Secretary's regulations and policy." Bunnell v. Sullivan, 947 F.2d 341, 346 n. 3 (9th Cir. 1991). Although "SSRs do not carry the `force of law,' . . . they are binding on ALJs nonetheless.Bray, 554 F.3d at 1224 (citation omitted).
Consistent with SSR 02-1p, the Appeals Council's order remanding the ALJ's initial decision in this case specifically noted the following:
Evidence of record also shows that the claimant is obese with a weight between 270 and 300 pounds (Exhibit 8F). This was confirmed by the psychologist's report of June 21, 2006. However, the hearing decision contains no evaluation of obesity consistent with SSR 02-1p.
(AT 125.) Although this remand order did not specifically order the ALJ to address SSR 02-1p on remand, the clear implication from that order is that the ALJ had erred in his initial decision by not evaluating plaintiff's obesity consistent with SSR 02-1p.
In his second hearing decision, the ALJ found that plaintiff's obesity was a severe impairment at step two of the sequential analysis. (AT 17.) Thus, the ALJ must have believed that plaintiff's obesity had some material impact on plaintiff's ability to do basic work activities. See Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) ("An impairment or combination of impairments may be found not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work" (citations and quotation marks omitted).). However, the ALJ did not indicate in his decision whether he considered SSR 02-1p at all and, more importantly, did not assess the impact that obesity had on plaintiff's functional abilities or his other impairments. For example, the ALJ did not discuss whether or to what extent plaintiff's obesity exacerbated his foot/ankle problem. In short, it is unclear from the ALJ's decision whether he disregarded the Appeals Council's remand order and SSR 02-1p, or whether he considered, but failed to expressly address, obesity in assessing plaintiff's disability claim at steps three through five of the sequential analysis. In either case, remand is warranted so that a complete analysis of plaintiff's obesity can be properly factored into all steps of the sequential analysis in accordance with SSR 02-1p.
* * *
Because the undersigned will remand this matter to the agency for further proceedings on several issues, the court will not specifically address plaintiff's arguments that the ALJ: (1) erred by finding that he did not meet or equal Listing 12.10, and (2) assessed an inaccurate RFC and thus posed legally inadequate hypothetical questions to the VE. The undersigned need not address those remaining claims of error because they derive, at least in part, from the errors addressed above.
IV. CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment is granted in part.
2. This matter is remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
3. The Clerk of Court enter judgment in favor of plaintiff.
IT IS SO ORDERED.
DATED: September 27, 2010