Edward Khalil Kakish v. Michael J. Astrue, No. 2:2009cv08056 - Document 25 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision. (bem)
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Edward Khalil Kakish v. Michael J. Astrue Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 EDWARD KHALIL KAKISH, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 17 Defendant. ) Case No. CV 09-8056 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 I. 20 INTRODUCTION AND SUMMARY 21 On November 9, 2009, plaintiff Edward Khalil Kakish (“Plaintiff”) filed a 22 complaint against defendant Michael J. Astrue (“Defendant” or “Commissioner”), 23 seeking review of a denial of disability insurance benefits (“DIB”) and supplemental 24 security income benefits (“SSI”). [Docket No. 3.] On March 25, 2010, Defendant filed his answer, along with a certified copy of 25 26 the administrative record. [Docket Nos. 18, 19.] Pursuant to a November 10, 2009 case management order, the parties 27 28 submitted a detailed, 29-page joint stipulation for decision on May 6, 2010. [Docket Dockets.Justia.com 1 No. 20.] 2 On December 1, 2010, this matter was transferred to the calendar of the 3 undersigned Magistrate Judge. [Docket No. 21.] Both Plaintiff and Defendant 4 subsequently consented to proceed for all purposes before the Magistrate Judge 5 pursuant to 28 U.S.C. § 636(c). [Docket Nos. 22, 23.] The Court deems the matter 6 suitable for adjudication without oral argument. 7 In sum, having carefully studied, inter alia, the parties’ joint stipulation and 8 the administrative record, the Court concludes that the ALJ failed to develop the 9 record fully and fairly with respect to Plaintiff’s mental impairments. As the Ninth 10 Circuit instructs, an ALJ bears the burden to scrupulously and conscientiously 11 explore the relevant facts, particularly where the claimant is self-represented and 12 may suffer from mental impairments. The Court thus remands this matter to the 13 Commissioner in accordance with the principles and instructions enunciated in this 14 Memorandum Opinion and Order. 15 II. 16 PERTINENT FACTUAL AND PROCEDURAL BACKGROUND Plaintiff, who was 39 years of age on the date of his administrative hearing, 17 18 has a high school education. (Administrative Record (“AR”) at 31, 34, 35, 65, 94.) 19 His past relevant work includes employment as a gas station attendant and stock 20 checker. (Id. at 17, 45.) Plaintiff protectively filed for DIB and SSI on September 17, 2007, alleging 21 22 that he has been disabled since February 3, 2006 due to mental impairments and pain 23 in his legs and feet. (AR at 57, 65-67, 68-71, 78.) Plaintiff’s applications, which 24 were designated as a “prototype” case,1/ were denied on February 25, 2008, after 25 26 1/ A “prototype case” designates a single decision maker to make the initial determination and eliminates the reconsideration step in the administrative review 28 process. 20 C.F.R. §§ 404.906(a) & 416.1406(a). 27 2 1 which he filed a timely request for a hearing. (Id. at 52, 53, 57-61, 63.) 2 On March 30, 2009, Plaintiff, proceeding pro se, appeared and testified at a 3 hearing before an Administrative Law Judge (“ALJ”). (AR at 31, 33-44.) Elizabeth 4 Ramos-Brown, a vocational expert (“VE”) also testified. (Id. at 10, 31, 44-49.) 5 On May 20, 2009, the ALJ issued an unfavorable decision denying Plaintiff’s 6 request for benefits. (AR at 10-19.) Applying the five-step sequential evaluation 7 process, which is discussed in detail below, the ALJ found, at step one, that Plaintiff 8 has not engaged in substantial gainful activity since his alleged onset date of 9 disability. (Id. at 12.) 10 At step two, the ALJ found that Plaintiff suffers from severe impairments 11 consisting of a “history of back pain; history of hepatits A and hepatitis B; history of 12 foot pain; history of shortness of breath; obesity; mood disorder, not otherwise 13 specified, and history of polysubstance abuse, in early remission.” (AR at 13 14 (emphasis and citations omitted).) 15 At step three, the ALJ determined that the evidence does not demonstrate that 16 Plaintiff’s impairment, either individually or in combination, meet or medically 17 equal the severity of any listing set forth in the Social Security regulations.2/ (AR at 18 13.) The ALJ then assessed Plaintiff’s residual functional capacity3/ (“RFC”) and 19 20 determined that he can “perform the full range of medium work . . . [and i]n the 21 mental realm, [Plaintiff] can perform simple, repetitive work that is solitary and non22 23 24 2/ See 20 C.F.R. pt. 404, subpt. P, app. 1. 3/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n. 5 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant’s 27 residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n. 2 (9th 28 Cir. 2007). 3 1 public.” (AR at 14 (emphasis omitted).) 2 The ALJ found, at step four, that Plaintiff lacks the ability to perform his past 3 relevant work. (AR at 16-17.) 4 At step five, based on Plaintiff’s RFC and the VE’s testimony, the ALJ found 5 that “there are jobs that exist in significant numbers in the national economy that 6 [Plaintiff] can perform,” including rack loader, recycler, and rug cutter. (AR at 177 18 (emphasis omitted).) Thus, the ALJ concluded that Plaintiff was not suffering 8 from a disability as defined by the Act. (Id. at 11, 18.) 9 Plaintiff filed a timely request for review of the ALJ’s decision, which was 10 denied by the Appeals Council. (AR at 1-3, 20.) The ALJ’s decision stands as the 11 final decision of the Commissioner. 12 III. 13 APPLICABLE LEGAL STANDARDS 14 A. Five-Step Inquiry to Ascertain a Cognizable Disability 15 A claimant must satisfy three fundamental elements to be eligible for 16 disability benefits: (1) a medically-determinable impairment; (2) the impairment 17 prevents the claimant from engaging in substantial gainful activity; and (3) the 18 impairment is expected to result in death or to last for a continuous period of at least 19 12 months. 42 U.S.C. § 423(d)(1)(A); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th 20 Cir. 1999). A well-established five-step sequential inquiry is utilized to assess 21 whether a particular claimant satisfies these three elements. The inquiry proceeds as 22 follows: 23 First, is the claimant engaging in substantial gainful activity? If so, the 24 claimant cannot be considered disabled. 25 Second, does the claimant suffer from a “severe” impairment, to wit, one 26 continuously lasting at least 12 months? If not, the claimant is not disabled. 27 Third, does the claimant’s impairment or combination of impairments meet or 28 equal an impairment specifically identified as a disability by the Commissioner 4 1 under 20 C.F.R. part 404, subpart P, appendix 1? If so, the claimant is automatically 2 determined to be disabled. 3 Fourth, is the claimant capable of performing his past work? If so, the 4 claimant is not disabled. 5 Fifth, does the claimant have the so-called “residual functional capacity” to 6 perform some other type of work? The critical question posed here is whether the 7 claimant can, in light of the impairment and his or her age, education and work 8 experience, adjust to another form of gainful employment? 9 If a claimant is found “disabled” or “not disabled” along any of these steps, 10 there is no need to complete the remaining inquiry. 20 C.F.R. §§ 404.1520(a)(4) & 11 416.920(a)(4); Tackett, 180 F.3d at 1098-99. 12 B. Standard of Review on Appeal 13 This Court is empowered to review decisions by the Commissioner to deny 14 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 15 Administration must be upheld if they are free of legal error and supported by 16 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as 17 amended Dec. 21, 2001). If the court, however, determines that the ALJ’s findings 18 are based on legal error or are not supported by substantial evidence in the record, 19 the court may reject the findings and set aside the decision to deny benefits. 20 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 21 242 F.3d 1144, 1147 (9th Cir. 2001). 22 “Substantial evidence is more than a mere scintilla, but less than a 23 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such “relevant 24 evidence which a reasonable person might accept as adequate to support a 25 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 26 at 459. To determine whether substantial evidence supports the ALJ’s finding, the 27 reviewing court must review the administrative record as a whole, “weighing both 28 the evidence that supports and the evidence that detracts from the ALJ’s 5 1 conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be affirmed 2 simply by isolating a specific quantum of supporting evidence.’” Aukland, 257 F.3d 3 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 4 evidence can reasonably support either affirming or reversing the ALJ’s decision, 5 the reviewing court “‘may not substitute its judgment for that of the ALJ.’” Id. 6 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 7 IV. 8 ISSUES PRESENTED 9 10 Three disputed issues are presented for decision here: 1. whether the ALJ failed to fully and fairly develop the record with 11 respect to Plaintiff’s physical and mental impairments, (see Joint Stip. at 4-5, 10-14); 12 13 2. whether the ALJ properly assessed Plaintiff’s credibility, (Id. at 14-16, 14 21-24); and 15 3. whether the ALJ improperly discounted a laywitness’s statements. (Id. 16 at 24-26, 28.) 17 Under the circumstances here, the Court finds the issue of the ALJ’s failure to 18 fully and fairly develop the record with respect to Plaintiff’s mental impairments to 19 be dispositive of this matter, and does not reach the remaining issues. 20 V. 21 DISCUSSION AND ANALYSIS 22 Plaintiff argues that the “ALJ failed to comply with his duty to develop the 23 record when he did not contact . . . Plaintiff’s Mental Health clinic after . . . Plaintiff 24 informed him at the hearing that he received treatment at those facilities during the 25 period for which he is alleging disability.” (Joint Stip. at 4.) Plaintiff contends that 26 because he “was unrepresented by counsel” and “testified that he received . . . 27 psychiatric care,” the ALJ should have contacted the medical sources and 28 supplemented the record “prior to issuing his decision on the claim.” (Id. at 4-5.) 6 1 Defendant counters that: (1) the “ALJ’s duty to further develop the record is 2 only triggered by ambiguous evidence or if the evidence is insufficient upon which 3 to make a disability determination” but the “evidence here was neither”; 4 (2) “Plaintiff must show that any additional material evidence actually existed” and 5 “new evidence is only material (and thus, relevant) if there is a reasonable possibility 6 that the new evidence would have changed the outcome of the Commissioner’s 7 determination”; and (3) “Plaintiff bears the burden of establishing both the existence 8 of medically determinable impairments and also proving that they prevent him from 9 engaging in all substantial gainful activity.” (Joint Stip. at 6, 8-9.) 10 A. The ALJ’s Duty to Fully and Fairly Develop the Record 11 Although the claimant is ultimately responsible for providing sufficient 12 medical evidence of a disabling impairment, it has “long [been] recognized that the 13 ALJ is not a mere umpire at [an administrative hearing], but has an independent duty 14 to fully develop the record[.]” Higbee v. Sullivan, 975 F.2d 558, 561 (9th Cir. 1992, 15 as amended Sept. 17, 1992) (per curiam); see also Sims v. Apfel, 530 U.S. 103, 16 110-11 (2000) (“Social Security proceedings are inquisitorial rather than adversarial. 17 It is the ALJ’s duty to investigate the facts and develop the arguments both for and 18 against granting benefits[.]”); Tonapetyan, 242 F.3d at 1150 (“The ALJ in a social 19 security case has an independent duty to fully and fairly develop the record and to 20 assure that the claimant’s interests are considered.”) (internal quotation marks and 21 citations omitted). 22 This is especially true where the claimant is unrepresented by counsel. 23 Tonapetyan, 242 F.3d at 1150 (“When the claimant is unrepresented, . . . the ALJ 24 must be especially diligent in exploring for all the relevant facts.”); accord Widmark 25 v. Barnhart, 454 F.3d 1063, 1068-69 (9th Cir. 2006). Indeed, “‘where the claimant 26 is not represented, it is incumbent upon the ALJ to scrupulously and conscientiously 27 probe into, inquire of, and explore for all the relevant facts. He must be especially 28 diligent in ensuring that favorable as well as unfavorable facts and circumstances are 7 1 elicited.’” Higbee, 975 F.2d at 561 (quoting Cox v. Califano, 587 F.2d 988, 991 (9th 2 Cir. 1978)). “The ALJ’s duty to develop the record fully is also heightened where 3 the claimant may be mentally ill and thus unable to protect her own interests.” 4 Tonapetyan, 242 F.3d at 1150; accord Higbee, 975 F.2d at 562. 5 If the evidence is ambiguous or inadequate to permit a proper evaluation of a 6 claimant’s impairments, the ALJ has a duty to “conduct an appropriate inquiry[.]” 7 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); accord Tonapetyan, 242 F.3d 8 at 1150. The ALJ may discharge this duty in several ways, including: 9 (1) subpoenaing the claimant’s physicians; (2) submitting questions to the claimant’s 10 physicians; (3) continuing the hearing; or (4) keeping the record open after the 11 hearing to allow supplementation of the record. Tonapetyan, 242 F.3d at 1150. 12 B. Evidence of Plaintiff’s Mental Impairments 13 On January 30, 2008, examining psychiatrist Ernest A. Bagner III, M.D. (“Dr. 14 Bagner”) completed a complete psychiatric assessment of Plaintiff. (AR at 375-78.) 15 In completing the assessment, Dr. Bagner reviewed psychiatric “notes” from a 16 “social worker, dated 6/30/06 and 6/7/06” and a psychiatric evaluation from a mental 17 health center dated October 4, 2006. (Id. at 376.) 18 Dr. Bagner indicated that Plaintiff stated, he “hear[s] things, see[s] things, 19 can’t sleep, [is] depressed, angry, [has] headaches, pains and [is] worried.” (AR at 20 375 (internal quotation marks omitted).) Dr. Bagner further indicated Plaintiff 21 reported “mood swings, nervousness, feelings of helplessness and hopelessness and 22 difficulty with concentration and memory.” (Id.) 23 Dr. Bagner noted that Plaintiff “reports that he was arrested 12 times,” “lives 24 on the streets,” has a history of polysubstance dependency, and “is not receiving any 25 psychiatric treatment.” (AR at 376-77.) Dr. Bagner diagnosed Plaintiff with 26 “[m]ood disorder, not otherwise specified” and polysubstance abuse “in early 27 remission.” (Id. at 377.) Dr. Bagner also opined that if Plaintiff “receives 28 psychiatric treatment, he should be significantly better in less than six months.” (Id. 8 1 at 378.) 2 On February 11, 2008, non-examining physician Raffi Tashjian, M.D. (“Dr. 3 Tashjian”) completed a Psychiatric Review Technique form. (AR at 383-93.) In the 4 form, Dr. Tashjian opined that Plaintiff suffers from affective disorder and substance 5 addiction disorder and found that Plaintiff was “in early remission.” (Id. at 383, 6 389.) 7 On the same day, Dr. Tashjian also completed a Mental Residual Functional 8 Capacity Assessment. (AR at 394-96.) In the assessment, Dr. Tashjian determined 9 that Plaintiff is “moderately limited” in his ability to understand, remember, and 10 carry out detailed instructions, and “moderately limited” in his “ability to interact 11 appropriately with the general public.” (Id. at 394-95.) Dr. Tashjian found no 12 further significant limitations regarding Plaintiff’s mental RFC. (See id. at 394-96.) 13 At the administrative hearing, Plaintiff testified that he was “fired . . . because 14 [he] started getting crazy.” (AR at 35.) The ALJ questioned whether any “condition 15 or conditions would prevent [Plaintiff] from working” and he responded, “My, well, 16 I hear voices. I can’t sleep. I’m seeing things.” (Id.) The following exchange then 17 occurred between the ALJ and Plaintiff regarding Plaintiff’s mental health: 18 [ALJ:] 19 20 Have you ever seen a psychiatrist at [the clinic where you are treated for physical impairments]? [Plaintiff:] No, I go to the other clinic psychiatrist, from court 21 they send me. 22 [ALJ:] 23 [Plaintiff:] Dr. Kashishian. . . . I have the information on the 24 25 Yeah, what’s that doctor’s name? pills if you need it. [ALJ:] Well, you can make me another list and the dosages. 26 Why were you sent there from court? 27 [Plaintiff:] Because I got, I started getting crazy, and I went to 28 jail, and then they said I needed to see a, in a psych 9 1 dorm or something. 2 [ALJ:] 3 What’s the name of the clinic that he is working with? 4 [Plaintiff:] Mental Health Services, 2620 California Avenue. 5 [ALJ:] 6 [Plaintiff:] Yes. 7 [ALJ:] 8 [Plaintiff:] It’s right here. 9 [ALJ:] And that, your attendance there was court ordered? And he has been giving you medication? When you said you [were] sent there by the court for 10 getting crazy, what did you do that caused you to be 11 introduced into the court system? 12 [Plaintiff:] I was going like hearing voices and everything, and then 13 my family threw me in jail to get help, and the mental 14 health doctor, she told me that I need to be in the, I don’t 15 know, see the psych or something. 16 [ALJ:] 17 Has a psychiatrist told you what the condition you have is called? 18 [Plaintiff:] Yes. 19 [ALJ:] 20 [Plaintiff:] Bipolar. And what, what did he say? 21 (Id. at 36-37 (emphasis added).) 22 C. The ALJ’s Assessment of Plaintiff’s Mental Impairments 23 In assessing Plaintiff’s mental RFC, the ALJ adopted consultative examiner 24 Dr. Bagner and non-examining physician Dr. Tashjian’s opinions. (AR at 14-15.) 25 Specifically, the ALJ stated: 26 I base my mental residual functional capacity assessment on the 27 opinion of the State Agency psychiatrist [Dr. Tashjian] who 28 found [Plaintiff] has moderate limitations in the abilities to 10 1 understand, remember, and carry out detailed instructions, and 2 interact appropriately with the general public, such that he is 3 capable of simple repetitive tasks. This opinion is consistent 4 with that of the consultative examiner, Dr. Bagner[.] . . . ¶ There 5 is no contrary opinion evidence to discuss. 6 (Id. (emphasis added).) 7 D. The ALJ Failed to Fully and Fairly Develop the Record 8 Having carefully reviewed the record and the parties’ papers, the Court is 9 persuaded that the ALJ failed to fully and fairly develop the record and his decision 10 is not supported by substantial evidence. Three reasons guide this Court’s 11 determination. 12 First, the ALJ’s conclusion that “[t]here is no contrary opinion evidence to 13 discuss” is not supported by substantial evidence. At the hearing, Plaintiff testified 14 that he was under court order to receive mental health treatment at “Mental Health 15 Services, 2620 California Avenue,” was currently receiving mental health treatment, 16 was prescribed medication for his mental impairments, and was diagnosed with 17 bipolar disorder. (See AR at 36-37.) Further, the Court found numerous instances in 18 the record where treating physicians and their mental health teams contradicted the 19 opinions of Dr. Bagner and Dr. Tashjian or, at best, indicated that there was an 20 uncertainty surrounding Plaintiff’s mental health diagnosis, including: 21 1. an adult initial assessment from Los Angeles County Department of 22 Mental Health (“LACDMH”), dated October 4, 2006, stating that Plaintiff reports he 23 is “depressed,” feels “anxious when [he is] around people,” and feels like “people 24 are watching [him]” and “following [him],” (id. at 369-74); 25 2. a mental health evaluation report from Los Angeles County Sheriff’s 26 Department (“LACSD”), dated November 16, 2007, describing that “[Patient] stated 27 that he threw his laundry down the window at home from the 2nd floor to the 28 ground. His family thought that he has mental illness and should get help. His 11 1 brother called the police,” (id. at 334); 2 3. a mental health report from LACSD, dated November 16, 2007, 3 indicating Plaintiff’s mother stated, “[he’s] sick, he was talking too much . . . he 4 escaped from the hospital” and “he cries, states I’m going to die,” (id. at 339); and 5 4. a discharge summary report from LACDMH, dated August 30, 2007, 6 describing Plaintiff has a “working diagnosis of psychotic disorder,” not otherwise 7 specified, and polysubstance dependence. (Id. at 367.) 8 Second, the ALJ’s reliance on Dr. Bagner and Dr. Tashjian’s opinions is 9 undermined because both physicians formed their conclusions prior to Plaintiff’s 10 more recent and substantive treatment diagnosing Plaintiff with bipolar disorder. 11 (Compare AR at 375-78 (consultative examination performed by Dr. Bagner on 12 January 30, 2008), 383-401 (Psychiatric Review Technique form and Mental 13 Residual Functional Capacity Assessment completed by Dr. Tashjian on February 14 11, 2008) with id. at 36-37 (Plaintiff’s testimony at hearing on March 30, 2009 that 15 he was receiving mental health treatment and was diagnosed with bipolar disorder).) 16 Further, Dr. Bagner made a limited review of Plaintiff’s medical records and noted 17 that Plaintiff was “not receiving any psychiatric treatment” at the time of his 18 examination. (Id. at 376 (indicating Dr. Bagner reviewed psychiatric notes from 19 three treatment visits), 377.) Accordingly, Dr. Bagner’s opinion is inconclusive in 20 light of Plaintiff’s other mental health records, (see, e.g., id. at 331-74), and more 21 recent treatment and diagnosis. 22 Moreover, the ALJ’s adoption of the non-examining and non-treating 23 physician Dr. Tashjian, standing alone, does not constitute “substantial” evidence 24 here. See Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995, as amended Apr. 9, 25 1996) (“In the absence of record evidence to support it, the nonexamining medical 26 advisor’s testimony does not by itself constitute substantial evidence that warrants a 27 rejection of . . . the examining [physician]’s opinion.”); Erickson v. Shalala, 9 F.3d 28 813, 818 n. 7 (9th Cir. 1993) (“the non-examining physicians’ conclusion, with 12 1 nothing more, does not constitute substantial evidence[]”) (internal quotation marks, 2 brackets and citation omitted) (italics in original). 3 Third, given what was at best ambiguous evidence, the ALJ should have 4 further developed the record. The ALJ had a heightened duty to develop the record 5 because Plaintiff was unrepresented and suffered from a severe mental impairment. 6 See Tonapetyan, 242 F.3d at 1150 (“When the claimant is unrepresented, . . . the 7 ALJ must be especially diligent in exploring for all the relevant facts.”); id. (“The 8 ALJ’s duty to develop the record fully is also heightened where the claimant may be 9 mentally ill and thus unable to protect her own interests.”). The ALJ should have 10 obtained medical records from Dr. Kashishian at Mental Health Services on 2620 11 California Avenue as identified by Plaintiff, and/or a more recent consultative 12 examination because the record was inadequate to assess the functional limitations 13 caused by Plaintiff’s alleged mental impairments. See 20 C.F.R. §§ 404.1512(e)-(f) 14 (authorizing ALJ to subpoena medical records from plaintiff’s treating sources 15 and/or order consultative examinations when the record is unclear to adequately 16 evaluate a claimant’s functional limitations caused by his or her impairments) & 17 416.912(e)-(f) (same); see also Smolen, 80 F.3d at 1288 (ALJ’s duty to develop the 18 record triggered when the evidence is inadequate to assess any functional limitations 19 caused by a claimant’s impairment). 20 Defendant argues that “Plaintiff must show that any additional material 21 evidence actually existed” and “new evidence is only material (and thus relevant) if 22 there is a reasonable possibility that the new evidence would have changed the 23 outcome of the Commissioner’s determination had it been before him.” (Joint Stip. 24 at 8-9.) In support of this proposition, Defendant cites to two cases: Duenas v. 25 Shalala, 34 F.3d 719 (9th Cir. 1994) and Booz v. Sec’y of Health and Human Serv., 26 734 F.2d 1378 (9th Cir. 1984). However, the cases cited by Defendant are 27 inapposite. 28 In Duenas, the Court affirmed the denial of plaintiff’s application for 13 1 retirement benefits because plaintiff had failed to establish that he was employed 2 between 1952 and 1954. 34 F.3d at 721. During reconsideration of the initial 3 denial, plaintiff failed to provide the names of any of his employers. Id. During a 4 hearing before the ALJ, plaintiff’s counsel informed the ALJ that “she would seek to 5 identify and then contact [plaintiff’s] past employers[,]” to which the ALJ agreed, 6 but plaintiff’s counsel subsequently made no request that the ALJ develop the record 7 any further. Id. The Duenas Court held that the ALJ did not violate her duty to 8 develop the record where plaintiff “provided only sketchy information as to his 9 employment[, he] recalled neither for whom he worked nor what he had earned[, 10 and] . . . counsel for [plaintiff] specifically undertook to develop further information 11 concerning [plaintiff’s] employment and was unsuccessful.” Id. at 722. 12 Here, unlike in Duenas, Plaintiff clearly stated where and with whom he was 13 receiving treatment and offered to provide the ALJ with the information, which was 14 written on his prescription medication. Despite having this information, the ALJ did 15 not attempt to obtain Plaintiff’s mental health treatment records. Under these 16 circumstances, the ALJ failed his heightened duty to further develop the record. See 17 Sims, 530 U.S. at 110-11 (“Social Security proceedings are inquisitorial rather than 18 adversarial. It is the ALJ’s duty to investigate the facts and develop the arguments 19 both for and against granting benefits[.]”). 20 In Booz, plaintiff’s application for benefits was denied in 1973 and plaintiff 21 failed to appeal the ALJ’s decision. 734 F.2d 1379. Plaintiff then renewed his 22 application for benefits five years later in 1978. Id. Plaintiff’s second request was 23 denied in a decision by the ALJ and by the Appeals Council. Id. Plaintiff then 24 appealed to the district court. Id. The Ninth Circuit determined that plaintiff had the 25 burden of making a showing of “changed circumstances” because there was a 26 presumption of continuing non-disability created by the 1973 denial of his 27 application. Id. The Booz Court granted plaintiff’s request to remand his 28 application due to “new evidence” because plaintiff had demonstrated “good cause” 14 1 for the failure to incorporate such evidence into his prior proceedings and there was 2 a “reasonable possibility” that the new evidence presented by plaintiff “would have 3 changed the outcome of the present case.” Id. at 1380-81. 4 Contrary to Defendant’s assertion, Booz is inapplicable to the instant action. 5 In Booz, plaintiff had to rebut a presumption of continuing non-disability created by 6 a prior denial of benefits and submitted new evidence to the district court which had 7 not previously been before the ALJ. See 734 F.2d at 1380. In the instant action, 8 Plaintiff has no such presumption to overcome. (See generally AR at 10-19.) 9 Further, Plaintiff presented the ALJ with evidence in the form of testimony, which 10 created an ambiguity as to Dr. Bagner’s diagnosis of “mood disorder, not otherwise 11 specified.” Due to this ambiguity, which in combination with Plaintiff’s particular 12 vulnerabilities – that he was unrepresented and suffered from mental impairments – 13 created a heightened duty on the part of the ALJ to further develop the record. The 14 ALJ failed that duty. 15 Moreover, Defendant argues that “Plaintiff bears the burden of establishing 16 both the existence of medically determinable impairments and also proving that they 17 prevent him from engaging in substantial activity. . . . Plaintiff cannot now shift his 18 evidentiary burden by arguing that the ALJ should have developed the record 19 further.” (Joint Stip. at 9.) 20 However, Defendant confounds the burden of proof, which is plainly on the 21 claimant at step two, with the ALJ’s independent duty to develop the record, which 22 is triggered by ambiguous evidence. Tonapetyan, 242 F.3d at 1151. As discussed 23 above, Plaintiff’s testimony created an ambiguity concerning his mental impairments 24 thus triggering the need for development of an adequate record. See Hilliard v. 25 Barnhart, 442 F. Supp. 2d 813, 817 (N.D. Cal. 2006) (ALJ violated independent 26 duty to develop the record where there was an ambiguity in the medical record 27 concerning plaintiff’s cognitive impairment and ALJ failed to rule on plaintiff’s 28 request for additional psychological testing). Accordingly, the ALJ failed to meet 15 1 his duty to develop the record. 2 3 VI. 4 REMAND IS APPROPRIATE 5 This Court has discretion to remand or reverse and award benefits. McAllister 6 v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989, as amended Oct. 19, 1989). Where no 7 useful purpose would be served by further proceedings, or where the record has been 8 fully developed, it is appropriate to exercise this discretion to direct an immediate 9 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); 10 Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000, as amended May 4, 2000), 11 cert. denied, 531 U.S. 1038 (2000). Where there are outstanding issues that must be 12 resolved before a determination can be made, and it is not clear from the record that 13 the ALJ would be required to find plaintiff disabled if all the evidence were properly 14 evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman, 211 15 F.3d at 1179-80. 16 Here, remand is required because the ALJ failed to fully and fairly develop the 17 record. On remand, the ALJ shall subpoena any available treatment records from 18 Plaintiff’s court-ordered treatment concerning his mental impairments. The ALJ 19 shall also subpoena any available treatment records regarding Plaintiff’s physical 20 impairments, including concerning Plaintiff’s testimony that he receives treatment 21 for physical conditions from “Dr. Medina” at “East Valley Clinic” in Covina. (See 22 AR at 36.) 23 Because the Court concludes that the ALJ failed to fully and fairly develop the 24 record, it does not reach Plaintiff’s remaining contentions. (See Joint Stip. at 14-16, 25 21-24, 24-26, 28.) Credibility findings are reviewed in light of the record as a 26 whole, which in the instant case should properly include Plaintiff’s more recent 27 treatment records with respect to Plaintiff’s physical and mental impairments. See 28 Struck v. Astrue, 247 Fed.Appx. 84, 86-87 (9th Cir. 2007). Accordingly, on remand, 16 1 the ALJ must reassess the credibility of both Plaintiff and his sister Laura Kakish. 2 3 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 4 REVERSING the decision of the Commissioner denying benefits and 5 REMANDING the matter for further administrative action consistent with this 6 decision. 7 8 Dated: January 11, 2011 9 ____________________________________ Hon. Jay C. Gandhi United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17
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