Dora Green v. Jo Anne B Barnhart, No. 2:2006cv03942 - Document 27 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Pursuant to sentence four of 42 U.S.C. section 405(g), It is hereby Ordered that Plaintiff's motion for summary judgment is denied, Defendant's motion for remand is granted, and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 DORA GREEN, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY ADMINISTRATION, ) ) Defendant. ) ___________________________________) NO. CV 06-3942-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff s motion for summary judgment is denied, 20 Defendant s motion for remand is granted, and this matter is remanded 21 for further administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on June 26, 2006, seeking review of 26 the Commissioner s denial of benefits. The parties filed a consent to 27 proceed before Magistrate Judge Johnson on August 7, 2006. 28 /// 1 Plaintiff and Defendant filed the Parties Joint Stipulation for 2 Disposition of Claim for Relief from Decision of the Commissioner 3 ( Joint Stipulation ) on May 11, 2007. 4 parties agreed that the present record is insufficient to support the 5 Commissioner s denial of benefits. 6 immediate payment of benefits, while Defendant seeks a remand for 7 further administrative proceedings. In the Joint Stipulation, both Plaintiff seeks an order for the 8 9 On July 23, 2009, this case was transferred from Magistrate Judge 10 Johnson to Magistrate Judge Eick. On August 5, 2009, the parties 11 filed a consent to proceed before Magistrate Judge Eick. 12 13 BACKGROUND 14 15 By Judgment and Order entered March 16, 2005, Magistrate Judge 16 Johnson reversed a prior administrative decision in Plaintiff s case, 17 holding that the Administrative Law Judge ( ALJ ) had erred in deeming 18 not fully credible Plaintiff s subjective complaints of pain 19 (Administrative Record ( A.R. ) 222-35). 20 Judge Johnson remanded the matter for further administrative 21 proceedings, ordering that the Administration credit Plaintiff s 22 subjective complaints of pain as a matter of law. At that time, Magistrate Id. 23 24 On remand, the ALJ failed to credit in the hypothetical 25 questioning of the vocational expert certain of Plaintiff s pain- 26 related subjective complaints. 27 questioning failed to credit Plaintiff s complaints that she can only 28 walk half a block, stand for 10 minutes at a time, and sit for Specifically, the hypothetical 2 1 20 minutes at a time (A.R. 255-57). In response to the ALJ s 2 deficient hypothetical questioning, the vocational expert identified 3 the light work jobs of office helper, bench packer, and bench 4 inspector as jobs Plaintiff assertedly could perform (A.R. 257-58). 5 Plaintiff s counsel cross-examined the vocational expert, but did not 6 pose a hypothetical question that included the subjective complaints 7 omitted by the ALJ (A.R. 258-60). 8 9 DISCUSSION 10 11 When there exists error in an administrative determination, the 12 proper course, except in rare circumstances, is to remand to the 13 agency for additional investigation or explanation. 14 537 U.S. 12, 16 (2002) (citations and quotations omitted); compare 15 Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) ( [I]n the 16 unusual case in which it is clear from the record that the claimant is 17 unable to perform gainful employment in the national economy, even 18 though the vocational expert did not address the precise work 19 limitations established by the improperly discredited testimony, 20 remand for an immediate award of benefits is appropriate. ); 21 Ghokassian v. Shalala, 41 F.3d 1300, 1304 (9th Cir. 1994) 22 ( [G]enerally, we direct the award of benefits in cases where no 23 useful purpose would be served by further administrative proceedings, 24 or where the record has been thoroughly developed ) (citations and 25 quotations omitted). INS v. Ventura, 26 27 28 In this Court s view, the instant case does not present one of the rare or unusual circumstances in which an order for the 3 1 immediate payment of benefits is appropriate. Plaintiff s entitlement 2 to benefits remains unclear, and additional administrative proceedings 3 could remedy the defects in the most recent administrative decision. 4 Specifically, it is not clear from the present record that a person 5 limited to walking for half a block, standing for 10 minutes at a time 6 and sitting for 20 minutes at a time would be incapable of performing 7 the light work jobs identified by the vocational expert. 8 vocational expert volunteered that these jobs would afford an 9 opportunity to vary sitting, standing and walking throughout a normal Indeed, the 10 work day (A.R. 257). Under the specific circumstances of this case, 11 therefore, remand is appropriate. 12 Commissioner, 304 Fed App x 520 at *2 (9th Cir. Dec. 17, 2008) (where, 13 after crediting the plaintiff s testimony, the record was unclear 14 whether the plaintiff would be disabled from all employment, remand 15 was appropriate); Alfaro v. Astrue, 2009 WL 425627 at *6 (E.D. Wash. 16 Feb. 13, 2009) ( It is not clear from the record that Plaintiff is 17 disabled; therefore, remand for additional proceedings is required. ); 18 compare Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004) (remand 19 for award of benefits is appropriate where it is clear from the 20 record that the ALJ would be required to find [the claimant] disabled 21 if [the claimant s] testimony were credited ). Id.; see, e.g., Page v. 22 23 Plaintiff cites cases from other circuits in arguing that a court 24 should grant benefits where the delay occasioned by repeated remands 25 has become unconscionable, or where the Administration has displayed 26 obduracy in complying with the law of the case (Joint Stipulation at 27 5-6). 28 benefits merely because a claimant has been waiting a long time or However, it is uncertain whether courts may grant disability 4 1 because the Administration has been obdurate. In a case cited by 2 Plaintiff, the First Circuit declined to decide when delay alone might 3 justify the granting of benefits. 4 (1st Cir. 2001). 5 Supreme Court has noted that Congress was fully aware of the serious 6 delays in resolution of disability claims yet declined to impose 7 deadlines . . . 8 (1984). 9 automatically awarded disability benefits based on the Seavey v. Barnhart, 276 F.3d 1, 13 The Seavey Court observed, however, that the Id. at 13 n.14 (citing Heckler v. Day, 467 U.S. 104 Although Plaintiff argues that the Seventh Circuit 10 Administration s obduracy in Wilder v. Apfel, 153 F.3d 799 (7th Cir. 11 1998) ( Wilder ), the Seventh Circuit itself later rejected such an 12 interpretation of Wilder. 13 obduracy alone could ever warrant an award of benefits. 14 rel. Taylor v. Barnhart, 425 F.3d 345, 356 (7th Cir. 2005). 15 to the Seventh Circuit: Wilder did not hold, however, that Briscoe ex According 16 17 It remains true that an award of benefits is appropriate 18 only if all factual issues have been resolved and the record 19 supports a finding of disability . . . This is so because a 20 court does not have the authority to award disability 21 benefits on grounds other than those provided under 42 22 U.S.C. ยง 423. 23 claimant must be disabled under the Act in order to qualify 24 for benefits. 25 Personnel Management v. Richmond, payment from the U.S. 26 Treasury must be authorized by a statute. 27 424, 110 S. Ct. 2465, 110 L.Ed. 2d 387 (1990). 28 not a ground on which to award benefits; the evidence Subsection (a)(1)(E) requires that the As the Supreme Court stated in Office of 5 496 U.S. 414, Obduracy is 1 properly in the record must demonstrate disability. 2 Id. at 356-57 (citations and quotations omitted). 3 4 Although the Ninth Circuit has not spoken directly to these 5 issues, the Circuit has appeared to suggest that delay and obduracy 6 sometimes should factor into the analysis. 7 Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) ( Allowing the 8 Commissioner to decide the issue again would create an unfair heads 9 we win; tails, let s play again system of disability benefits See, e.g., Benecke v. 10 adjudication. . . . Remanding a disability claim for further 11 proceedings can delay much needed income for claimants who are unable 12 to work and are entitled to benefits, often subjecting them to 13 tremendous financial difficulties while awaiting the outcome of their 14 appeals and proceedings on remand ) (citations and quotations 15 omitted). 16 17 This Court need not and does not determine whether, in an 18 appropriate case, the law would permit the granting of disability 19 benefits to a likely non-disabled claimant based on the 20 Administration s unconscionable delay or obduracy. 21 case, the Administration acted relatively promptly following 22 Magistrate Judge Johnson s prior remand.1 23 Administration did not evidence obduracy in complying with the law of 24 the case. 25 stated: 26 /// In the present For the most part, the For example, in examining the medical expert, the ALJ 27 1 28 Regrettably, the Court has been responsible for most of the post-remand delay the parties have experienced. 6 1 This matter has been up to the Federal District Court, and 2 at the Federal District Court, there was a discussion about 3 how much weight the Agency should give to the claimant s 4 testimony about her condition. 5 that and this was in the hearing in 2004, that she can 6 walk a half a block, she can stand for 10 minutes at a time, 7 and sit for 20 minutes at a time. 8 know is that I want you to give that full credibility and I 9 want you to give that your full weight of consideration 10 She testified previously And what I want you to (A.R. 247). 11 12 Similarly, the ALJ acknowledged in the written decision that the 13 District Court credited [Plaintiff s] pain complaints as a matter of 14 law and remanded the case with instructions to re-assess the 15 claimant s residual functional capacity as it is affected by her 16 subjective complaints of pain and to obtain vocational exert [sic] 17 testimony in analyzing the claimant s employability (A.R. 172). 18 ALJ misapplied Magistrate Judge Johnson s remand directive by failing 19 to include certain specific limitations in the hypothetical 20 questioning of the vocational expert, but the ALJ did not wholly 21 ignore or flaunt Magistrate Judge Johnson s directive.2 22 even if, in an appropriate case, factors of delay and obduracy 23 properly could tip the balance of the analysis in favor of an 24 immediate award of benefits rather than a remand for further 25 proceedings, consideration of those factors does not tip the balance Therefore, 26 2 27 28 Although it was not the burden of Plaintiff s counsel to do so, counsel could have remedied the ALJ s omissions at the time of the hearing by posing an alternative hypothetical question to the vocational expert. 7 The 1 in the present case. 2 3 CONCLUSION AND ORDER 4 5 For all of the foregoing reasons, this matter is remanded for 6 further administrative action consistent with this Opinion. 7 Specifically, the Appeals Council shall direct an ALJ to: 8 9 Give further consideration to Plaintiff s maximum residual 10 functional capacity during the entire period at issue, 11 provide appropriate rationale with specific references to 12 evidence of record in support of assessed limitations, and 13 clearly articulate Plaintiff s maximum residual functional 14 capacity in terms consistent with 15 Furthermore, in accordance with the order of remand by the 16 United States District Court for the Central District of 17 California, Western Division, filed March 15, 2005, the 18 Administrative Law Judge shall credit as true and as a 19 matter of law, Plaintiff s subjective complaints that she 20 can walk only half a city block, she can stand for only ten 21 minutes at a time, and she can sit for only twenty minutes 22 at a time. 23 assessment and findings for Plaintiff s residual functional 24 capacity. 20 CFR 416.945. These limitations must be incorporated into the 25 26 Obtain supplemental evidence from a vocational expert to 27 clarify the effect of the assessed limitations on 28 Plaintiff s occupational base, and as necessary, to 8 1 determine whether Plaintiff has acquired any skills that are 2 transferable to other occupations under the guidelines in 3 Social Security Ruling 82-41. 4 must clearly reflect the specific capacity limitations 5 established by the record as a whole and the limitations 6 incorporated into Plaintiff s residual functional capacity, 7 credited as true and as a matter of law. 8 Law Judge shall ask the vocational expert to identify 9 examples of appropriate jobs, if any, and to state the The hypothetical questions The Administrative 10 incidence of any such jobs in the national economy. 11 Further, before relying on the vocational expert evidence, 12 the Administrative Law Judge shall identify and resolve any 13 conflicts between the occupational evidence provided by the 14 vocational expert and information in the Dictionary of 15 Occupational Titles and its companion publication, the 16 Selected Characteristics of Occupations (Social Security 17 Ruling 00-4p).3 18 19 LET JUDGMENT BE ENTERED ACCORDINGLY. 20 DATED: 21 August 5, 2009. 22 ______________/S/___________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 3 Thus, the Court has adopted the substance (and most of the phrasing) of the remand order proposed in Defendant s portion of the Joint Stipulation. 9
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