Mark Frice v. Michael J. Astrue, No. 2:2009cv04651 - Document 14 (C.D. Cal. 2011)
Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is REVERSED. 2. This action is REMANDED to Defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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Mark Frice v. Michael J. Astrue Doc. 14 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 13 14 15 16 17 MARK FRICE, ) ) Plaintiff, ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner, Social Security ) Administration, ) ) Defendant. ) ) No. CV 09-4651 CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned Magistrate Judge. 21 review of the Commissioner’s denial of disability benefits. 22 discussed below, the court finds that the Commissioner’s decision 23 should be reversed and this matter remanded for further proceedings. I. 24 25 Plaintiff seeks As BACKGROUND Plaintiff Mark Frice was born on April 8, 1963, and was forty- 26 five years old at the time of his most recent administrative hearing. 27 [AR 23.] 28 experience as a self-employed landscaper and corrections officer. He has a high school education and past relevant work 1 Dockets.Justia.com 1 [Id.] 2 ankles, feet, wrists, and hands. [AR 171, 192, 196, 198, 208, 210, 3 217, 220, 221, 223.] Plaintiff alleges disability on the basis of problems with his 4 II. 5 PROCEEDINGS IN THIS COURT Plaintiff’s complaint was filed on June 26, 2009. On January 21, 6 2010, Defendant filed Plaintiff’s Administrative Record (“AR”). 7 March 31, 2010, the parties filed their Joint Stipulation (“JS”) 8 identifying matters not in dispute, issues in dispute, the positions 9 of the parties, and the relief sought by each party. 10 On This matter has been taken under submission without oral argument. 11 III. 12 PRIOR ADMINISTRATIVE PROCEEDINGS Plaintiff applied for a period of disability and disability 13 insurance benefits (“DIB”) on March 13, 2006, alleging disability 14 since March 22, 2003. 15 requirements of the Social Security Act through March 31, 2008. [AR 16 20.] 17 reconsideration, an administrative hearing was held on January 14, 18 2008, before an Administrative Law Judge (“ALJ”). 19 Plaintiff appeared with counsel, and testimony was taken from 20 Plaintiff and a vocational expert. [Id.] 21 second hearing, through video, was held before a new ALJ on June 10, 22 2008. [AR 49-51.] 23 taken from Plaintiff and a vocational expert. [Id.] 24 benefits in a decision issued on June 24, 2008. 25 Appeals Council denied review on February 5, 2009, the ALJ’s decision 26 became the Commissioner’s final decision. 27 28 [JS 2.] Plaintiff met the insured status After the application was denied initially and on [AR 27-28.] Because the ALJ retired, a Plaintiff appeared with counsel, and testimony was IV. The ALJ denied [AR 15-25.] When the [AR 11-14.] STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 2 1 Commissioner’s decision to deny benefits. The Commissioner’s (or 2 ALJ’s) findings and decision should be upheld if they are free of 3 legal error and supported by substantial evidence. 4 court determines that a finding is based on legal error or is not 5 supported by substantial evidence in the record, the court may reject 6 the finding and set aside the decision to deny benefits. 7 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 8 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 9 F.3d 1157, 1162 (9th Cir. However, if the See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, 10 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 11 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 12 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 13 “Substantial evidence is more than a scintilla, but less than a 14 preponderance.” Reddick, 157 F.3d at 720. 15 which a reasonable person might accept as adequate to support a 16 conclusion.” 17 a finding, a court must review the administrative record as a whole, 18 “weighing both the evidence that supports and the evidence that 19 detracts from the Commissioner’s conclusion.” 20 can reasonably support either affirming or reversing,” the reviewing 21 court “may not substitute its judgment” for that of the Commissioner. 22 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. To determine whether substantial evidence supports V. 23 It is “relevant evidence Id. “If the evidence DISCUSSION 24 A. THE FIVE-STEP EVALUATION 25 To be eligible for disability benefits a claimant must 26 demonstrate a medically determinable impairment which prevents the 27 claimant from engaging in substantial gainful activity and which is 28 expected to result in death or to last for a continuous period of at 3 1 least twelve months. Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 2 721; 42 U.S.C. § 423(d)(1)(A). 3 Disability claims are evaluated using a five-step test: 4 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 5 6 7 8 9 10 11 12 13 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 14 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 15 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 16 C.F.R. § 404.1520, § 416.920. If a claimant is found “disabled” or 17 “not disabled” at any step, there is no need to complete further 18 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 19 Claimants have the burden of proof at steps one through four, 20 subject to the presumption that Social Security hearings are non21 adversarial, and to the Commissioner’s affirmative duty to assist 22 claimants in fully developing the record even if they are represented 23 by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 24 1288. If this burden is met, a prima facie case of disability is 25 made, and the burden shifts to the Commissioner (at step five) to 26 27 28 4 1 prove that, considering residual functional capacity (“RFC”)1, age, 2 education, and work experience, a claimant can perform other work 3 which is available in significant numbers. 4 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098, 5 B. THE ALJ’S EVALUATION IN PLAINTIFF’S CASE 6 Here, the ALJ found that Plaintiff had not engaged in substantial 7 gainful activity since his alleged disability onset date (step one); 8 that Plaintiff had “severe” impairments, namely status post traumatic 9 sprain and torn ligaments of the ankle and surgical repair, with mild 10 talofibular arthritis and plantar fascitis (step two); and that 11 Plaintiff did not have an impairment or combination of impairments 12 that met or equaled a “listing” (step three). 13 determined that Plaintiff had an RFC to lift/carry twenty pounds 14 occasionally and ten pounds frequently; sit unlimited hours during an 15 eight-hour workday; stand or walk for four hours in an eight-hour 16 workday; never climb ropes, ladders or scaffolding; occasionally 17 crawl; occasionally climb stairs or ramps; occasionally balance, work 18 at heights, or walk on uneven terrain; perform no frequent running or 19 jumping; and never perform prolonged walking or standing; and needs 20 sit breaks from standing or walking for fifteen minutes each hour. [AR 21 21.] 22 relevant work (step four). [AR 23.] The vocational expert testified [AR 20-21.] The ALJ Plaintiff’s RFC precluded him from returning to his past 23 1 24 25 26 27 28 Residual functional capacity measures what a claimant can still do despite existing “exertional” (strength-related) and “nonexertional” limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 that a person with Plaintiff’s RFC and acquired work skills could 2 perform work in the national economy, such as information clerk (step 3 five). [AR 24.] 4 defined by the Social Security Act. [AR 25.] Accordingly, Plaintiff was found not “disabled” as 5 C. 6 The parties’ Joint Stipulation identifies the following disputed 7 issues: 8 1. 9 chiropractor under Social Security Ruling 06-3p”; 2. 12 13 “Whether the ALJ improperly rejected the opinions of Plaintiff’s treating nurse practitioner and treating 10 11 PLAINTIFF’S PRESENT CLAIMS “Whether the ALJ failed in the duty to fully and properly develop the record by pursuing all relevant evidence”; 3. “Whether the ALJ failed to properly analyze the effects of 14 Plaintiff’s obesity on his physical impairments under SSR 15 02-1p”; 16 4. “Whether the ALJ’s findings on Plaintiff’s residual 17 functional capacity is not supported by substantial evidence 18 and whether the relied-upon hypothetical question to the 19 vocational expert was incomplete and inaccurate”; and 20 5. 21 “Whether the ALJ improperly discredited the testimony of Plaintiff.” 22 [JS 4.] 23 As discussed below, Issue Two is dispositive. 24 D. 25 26 ISSUE TWO: DEVELOPMENT OF THE RECORD Background During the administrative hearing of June 10, 2008, Plaintiff 27 testified that he had two surgeries for carpal tunnel syndrome 28 approximately twenty years earlier. [AR 54.] 6 Plaintiff testified that 1 the condition was “still very painful.” [Id.] 2 Plaintiff who was treating him for that condition, and Plaintiff 3 responded, “I see my family doctor, Dr. Leese.” [Id.] 4 hearing, Plaintiff testified that he sees Dr. Leese “every three 5 months or so.” [AR 69.] 6 surgeries gave him “[b]rief relief, and once I started activities, it 7 returned.” [Id.] 8 arms precluded him from using a keyboard for more than ten to fifteen 9 minutes and from holding onto items. [AR 70.] The ALJ next asked Later in the He also testified that the carpal tunnel Plaintiff specified that problems in his wrists and The record does not include any treatment records by Dr. Leese. 10 11 However, during the hearing, the ALJ asked Plaintiff’s counsel whether 12 any additional records needed to be considered before a decision was 13 made, and counsel responded, “No, your honor.” [AR 53.] 14 In the administrative decision, the ALJ found that Plaintiff’s 15 carpal tunnel syndrome was a “medically determinable but not severe 16 impairment.” [AR 21.] 17 allegations that he had two surgical corrections for the condition and 18 that the condition was increasingly interfering with his manipulative 19 abilities. [Id.] 20 claimant has not sought or obtained ongoing care for this condition” 21 . . . 22 condition.” [Id.] 23 excluded at step two of the five-step disability evaluation. [Id.] On the other hand, the ALJ determined that, “The “which entirely undermines his complaints of a severe Accordingly, Plaintiff’s carpal tunnel syndrome was Discussion 24 25 In so finding, the ALJ acknowledged Plaintiff’s Because the step two finding with regard to Plaintiff’s claim of 26 carpal tunnel syndrome was based on an incorrect reading of 27 Plaintiff’s testimony, reversal of the Commissioner’s decision is 28 mandated. The ALJ’s determination that Plaintiff’s carpal tunnel 7 1 syndrome was a medically determinable but not severe impairment 2 depended on the finding that Plaintiff “has not sought or obtained 3 ongoing care for this condition.” 4 reflects that the ALJ specifically asked Plaintiff who was treating 5 him for this condition, and Plaintiff responded that it was Dr. Leese. 6 [AR 54.] 7 the ALJ’s decision is supported by substantial evidence, and reversal 8 for further proceedings is required. 9 However, the hearing transcript Under such circumstances, the court cannot determine that Because the record contains no records by Dr. Leese, upon remand, 10 the record should be further developed as to this portion of 11 Plaintiff’s claim. 12 1996)(ALJ has a “duty to fully and fairly develop the record and to 13 assure that the claimant’s interests are considered”)(quoting Brown v. 14 Heckler, 713 F.2d 441, 443 (9th Cir.1983)); see also Widmark v. 15 Barnhart, 454 F.3d 1063, 1069 (9th Cir. 2006)(ALJ has a duty to 16 develop the record where there is a “gap” in the medical evidence). 17 Although Defendant argues, in part, that the record was adequately 18 developed because Plaintiff’s counsel indicated at the hearing that 19 there were no other records that needed to be considered before the 20 ALJ made his decision, this circumstance did not eliminate the ALJ’s 21 duty to ensure that Plaintiff’s interests were adequately considered. 22 See Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003)(ALJ has duty 23 to develop the record “‘even when the claimant is represented by 24 counsel’”)(quoting Brown, 713 F.3d at 443); see also Sims v. Apfel, 25 530 U.S. 103, 110-111, 120 S. Ct. 2080, 147 L. Ed. 2d 80 26 (2000)(“Social Security proceedings are inquisitorial rather than 27 adversarial. 28 develop the arguments both for and against granting benefits”). See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. It is the ALJ’s duty to investigate the facts and 8 1 Accordingly, this issue calls for reversal of the Commissioner’s 2 decision and for further proceedings to develop the record. 3 E. 4 The decision whether to remand for further proceedings is within REMAND FOR FURTHER PROCEEDINGS 5 the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 6 1175-1178 (9th Cir. 2000). 7 further proceedings, or where the record has been fully developed, it 8 is appropriate to exercise this discretion to direct an immediate 9 award of benefits. Where no useful purpose would be served by Harman, 211 F.3d at 1179 (decision whether to 10 remand for further proceedings turns upon their likely utility). 11 However, where there are outstanding issues that must be resolved 12 before a determination can be made, and it is not clear from the 13 record that the ALJ would be required to find the claimant disabled if 14 all the evidence were properly evaluated, remand is appropriate. 15 Here, as set out above, outstanding issues remain before a finding of 16 disability can be made. 17 // 18 // 19 // 20 // 21 // 22 // 23 // Id. Accordingly, remand is required.2 24 25 26 27 28 2 None of the remaining issues raised by Plaintiff in the Joint Stipulation would warrant a finding of disability on the basis of the current record even if resolved in Plaintiff’s favor. Accordingly, remand is the appropriate disposition of this appeal, and the court does not need to reach the remaining disputed issues. 9 1 VI. ORDERS 2 Accordingly, IT IS ORDERED that: 3 1. The decision of the Commissioner is REVERSED. 4 2. This action is REMANDED to Defendant, pursuant to Sentence 5 Four of 42 U.S.C. § 405(g), for further proceedings as discussed 6 above. 7 8 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 9 10 11 12 DATED: January 10, 2011 ______________________________ CARLA M. WOEHRLE United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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