Kathy D. Harris v. Michael J. Astrue, No. 2:2008cv01582 - Document 16 (C.D. Cal. 2008)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied 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 KATHY D. HARRIS, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY ADMINISTRATION, ) ) ) Defendant. ) __________________________________) NO. CV 08-1582-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 and Defendant s motions for summary 20 judgment are denied and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on March 10, 2008, seeking review 26 of the Commissioner s denial of benefits. The parties filed a consent 27 to proceed before a United States Magistrate Judge on April 17, 2008. 28 Plaintiff filed a motion for summary judgment on August 12, 2008. 1 Defendant filed a cross-motion for summary judgment on September 10, 2 2008. 3 argument. The Court has taken both motions under submission without oral See L.R. 7-15; Order, filed March 14, 2008. 4 5 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 6 7 Plaintiff asserts disability since August 1, 2004, based on, 8 inter alia, alleged anemia (Administrative Record ( A.R. ) 33-248). 9 In an opinion dated April 27, 2005, Dr. J.R. Sturich, Plaintiff s 10 treating physician, opined Plaintiff is unable to work due to her 11 dizziness and fatigue caused by severe anemia (A.R. 180). 12 13 The Administrative Law Judge ( ALJ ) found Plaintiff has the 14 severe impairments of obesity and symptomatic anemia, but also found 15 Plaintiff is not disabled from work (A.R. 28-32). 16 denied review (A.R. 3-5). 17 mentioned Dr. Sturich s opinion (A.R. 3-5, 26-32). The Appeals Council Neither the ALJ nor the Appeals Council 18 19 STANDARD OF REVIEW 20 21 Under 42 U.S.C. section 405(g), this Court reviews the 22 Commissioner s decision to determine if: (1) the Commissioner s 23 findings are supported by substantial evidence; and (2) the 24 Commissioner used proper legal standards. 25 763 F.2d 1061, 1064 (9th Cir. 1985). 26 /// 27 /// 28 /// 2 See Swanson v. Secretary, DISCUSSION 1 2 A treating physician s conclusions must be given substantial 3 4 weight. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see 5 Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ( the ALJ must 6 give sufficient weight to the subjective aspects of a doctor s opinion 7 . . . 8 physician ) (citation omitted). 9 opinions are contradicted,1 if the ALJ wishes to disregard the This is especially true when the opinion is that of a treating Even where the treating physician s 10 opinion[s] of the treating physician he . . . must make findings 11 setting forth specific, legitimate reasons for doing so that are based 12 on substantial evidence in the record. 13 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); 14 see also Rodriquez v. Bowen, 876 F.2d at 762 n.7 (9th Cir. 1989) ( We 15 do not draw a distinction between a medical opinion as to a physical 16 condition and a medical opinion on the ultimate issue of 17 disability. ). Winans v. Bowen, 853 F.2d 18 19 The Administration plainly erred in failing to mention 20 Dr. Sturich s opinion. Id.; see Lingenfelter v. Astrue, 504 F.3d 21 1028, 1038 n.10 (9th Cir. 2007) ( Of course, an ALJ cannot avoid these 22 requirements [to state specific, legitimate reasons] by not mentioning 23 the treating physician s opinion and making findings contrary to 24 it. ); Salvadore v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990) 25 (implicit rejection of treating physician s opinion cannot satisfy 26 1 27 28 Rejection of an uncontradicted opinion of a treating physician requires a statement of clear and convincing reasons. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984). 3 1 Administration s obligation to set forth specific, legitimate 2 reasons ). 3 Dr. Sturich s opinion may be incorrect, such arguments are not 4 cognizable by the Court. 5 (9th Cir. 2003) (district court cannot affirm on the basis of reasons 6 the ALJ failed to assert); Pinto v. Massanari, 249 F.3d 840, 847 (9th 7 Cir. 2001) (same).2 To the extent the Defendant now offers arguments why See Connett v. Barnhart, 340 F.3d 871, 874 8 9 When a court reverses an administrative determination, the 10 proper course, except in rare circumstances, is to remand to the 11 agency for additional investigation or explanation. 12 537 U.S. 12, 16 (2002) (citations and quotations omitted). 13 proper where, as here, additional administrative proceedings could 14 remedy the defects in the decision. 15 599, 603 (9th Cir. 1989); see generally Kail v. Heckler, 722 F.2d 16 1496, 1497 (9th Cir. 1984). INS v. Ventura, Remand is McAllister v. Sullivan, 888 F.2d 17 18 The Ninth Circuit s decision in Harman v. Apfel, 211 F.3d 1172 19 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) ( Harman ) does not 20 compel a reversal rather than a remand of the present case. 21 Harman, the Ninth Circuit stated that improperly rejected medical 22 opinion evidence should be credited and an immediate award of benefits 23 directed where (1) the ALJ has failed to provide legally sufficient 24 reasons for rejecting such evidence, (2) there are no outstanding 25 issues that must be resolved before a determination of disability can 26 be made, and (3) it is clear from the record that the ALJ would be In 27 2 28 Contrary to Defendant s argument, the Court cannot confidently conclude that the Administration s error was harmless. 4 1 required to find the claimant disabled were such evidence credited. 2 Harman at 1178 (citations and quotations omitted). 3 arguendo, the Harman holding survives the Supreme Court s decision in 4 INS v. Ventura, 537 U.S. 12, 16 (2002),3 the Harman holding does not 5 direct reversal of the present case. 6 resolved before a determination of disability can be made.4 7 it is not clear from the record that the ALJ would be required to find 8 Plaintiff disabled for the entire claimed period of disability were 9 the opinion of Dr. Sturich credited. 10 /// 13 Further, /// 12 Outstanding issues still must be /// 11 Assuming, /// 14 CONCLUSION 15 3 16 17 18 19 20 21 22 23 24 25 26 27 28 The Ninth Circuit has continued to apply Harman, despite INS v. Ventura. See Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). 4 To the extent the Administration impliedly believed Dr. Sturich s brief opinion to be ambiguous or inadequately supported, the Administration should recontact Dr. Sturich. See 20 C.F.R. § 404.1512(e) (the Administration will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all of the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques ; Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) ( If the ALJ thought he needed to know the basis of Dr. Hoeflich s opinions in order to evaluate them, he had a duty to conduct an appropriate inquiry, for example, by subpoenaing the physicians or submitting further questions to them. He could also have continued the hearing to augment the record ) (citations omitted); see also Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) ( the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant s interests are considered ). 5 1 For all of the foregoing reasons, Plaintiff s and Defendant s 2 motions for summary judgment are denied and this matter is remanded 3 for further administrative action consistent with this Opinion. 4 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 7 DATED: September 12, 2008. 8 9 10 ______________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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