David Pando v. Michael J. Astrue, No. 2:2010cv01965 - Document 16 (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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David Pando v. Michael J. Astrue Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 DAVID PANDO, 13 ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. 14 15 MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. 17 No. CV 10-1965 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. 24 25 I. Plaintiff seeks As BACKGROUND Plaintiff David Pando was born on August 25, 1952, and was fifty- 26 six years old at the time of his administrative hearing. 27 [Administrative Record (“AR”) 28.] He has a seventh grade education 28 and past relevant work experience as a construction worker. [AR 36.] 1 Dockets.Justia.com 1 Plaintiff alleges disability on the basis of pain in his back, arm, 2 shoulder, and feet. [AR 113, 202.] 3 4 II. PROCEEDINGS IN THIS COURT Plaintiff’s complaint was lodged on March 18, 2010, and filed on 5 March 23, 2010. On September 14, 2010, Defendant filed an answer and 6 Plaintiff’s Administrative Record (“AR”). 7 parties filed their Joint Stipulation (“JS”) identifying matters not 8 in dispute, issues in dispute, the positions of the parties, and the 9 relief sought by each party. 10 11 12 On November 9, 2010, the This matter has been taken under submission without oral argument. III. PRIOR ADMINISTRATIVE PROCEEDINGS Plaintiff applied for a period of disability and disability 13 insurance benefits (“DIB”) on March 12, 2008, alleging disability 14 since January 1, 2008. [AR 15]. 15 initially and on reconsideration, Plaintiff requested an 16 administrative hearing, which was held on March 9, 2009, before an 17 Administrative Law Judge (“ALJ”). [AR 25.] Plaintiff appeared with 18 counsel, and testimony was taken from Plaintiff, medical expert Arthur 19 Brovender, and vocational expert Sandra Schneider. [AR 26.] 20 denied benefits in a decision dated March 31, 2009. 21 Plaintiff sought review with the Appeals Council and submitted 22 additional evidence. [AR 2.] 23 on February 19, 2010, the ALJ’s decision became the Commissioner’s 24 final decision. [AR 1.] 25 26 IV. After the application was denied The ALJ [AR 12-22.] When the Appeals Council denied review STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 27 Commissioner’s decision to deny benefits. 28 ALJ’s) findings and decision should be upheld if they are free of 2 The Commissioner’s (or 1 legal error and supported by substantial evidence. 2 court determines that a finding is based on legal error or is not 3 supported by substantial evidence in the record, the court may reject 4 the finding and set aside the decision to deny benefits. 5 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 6 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 7 F.3d 1157, 1162 (9th Cir. 8 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 9 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 10 11 However, if the See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). “Substantial evidence is more than a scintilla, but less than a 12 preponderance.” Reddick, 157 F.3d at 720. 13 which a reasonable person might accept as adequate to support a 14 conclusion.” 15 a finding, a court must review the administrative record as a whole, 16 “weighing both the evidence that supports and the evidence that 17 detracts from the Commissioner’s conclusion.” 18 can reasonably support either affirming or reversing,” the reviewing 19 court “may not substitute its judgment” for that of the Commissioner. 20 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. It is “relevant evidence To determine whether substantial evidence supports V. 21 Id. “If the evidence DISCUSSION 22 A. THE FIVE-STEP EVALUATION 23 To be eligible for disability benefits a claimant must 24 demonstrate a medically determinable impairment which prevents the 25 claimant from engaging in substantial gainful activity and which is 26 expected to result in death or to last for a continuous period of at 27 least twelve months. 28 721; 42 U.S.C. § 423(d)(1)(A). Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 3 1 Disability claims are evaluated using a five-step test: 2 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. 3 4 5 6 7 8 9 10 11 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 12 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 13 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 14 C.F.R. § 404.1520, § 416.920. If a claimant is found “disabled” or 15 “not disabled” at any step, there is no need to complete further 16 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 17 Claimants have the burden of proof at steps one through four, 18 subject to the presumption that Social Security hearings are non19 adversarial, and to the Commissioner’s affirmative duty to assist 20 claimants in fully developing the record even if they are represented 21 by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 22 1288. If this burden is met, a prima facie case of disability is 23 made, and the burden shifts to the Commissioner (at step five) to 24 prove that, considering residual functional capacity (“RFC”)1, age, 25 26 1 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 4 1 education, and work experience, a claimant can perform other work 2 which is available in significant numbers. 3 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098, 4 B. THE ALJ’S EVALUATION IN PLAINTIFF’S CASE 5 Here, the ALJ found that Plaintiff had not engaged in substantial 6 gainful activity since his alleged disability onset date (step one); 7 that Plaintiff had “severe” impairments, namely disorder of the 8 cervical spine, disorder of the lumbar spine, and right shoulder pain 9 (step two); and that Plaintiff did not have an impairment or 10 combination of impairments that met or equaled a “listing” (step 11 three). [AR 17-18.] 12 perform less than the full range of medium work, which included the 13 ability to stand, walk, or sit for six hours in an eight-hour workday, 14 with normal breaks; lift or carry fifty pounds occasionally and 15 twenty-five pounds frequently; climb stairs and ramps frequently but 16 no climbing ropes, ladders or scaffolds; and postural activities 17 occasionally, but with no overhead reaching. [AR 18.] The vocational 18 expert testified that a person with such an RFC could not perform 19 Plaintiff’s past relevant work as a construction worker (step four). 20 [AR 20.] The vocational expert also testified that a person with 21 Plaintiff’s RFC could make a vocational adjustment to other work 22 existing in significant numbers in the national economy, such as hand 23 packager and laundry worker (step five). Accordingly, Plaintiff was 24 found not “disabled” as defined by the Social Security Act. [AR 21.] The ALJ found that Plaintiff had an RFC to 25 26 27 28 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 C. 2 The parties’ Joint Stipulation raises the following disputed 3 issues: 4 1. ISSUES IN DISPUTE Whether the ALJ erred in failing to provide a discussion of 5 Mr. Pando’s credibility as required by Social Security 6 ruling 96-7p; 7 2. 8 9 issues; 3. 10 11 Whether the ALJ erred in his analysis of the vocational Whether the ALJ erred in failing to find that Mr. Pando has a severe impairment to his feet; 4. 12 Whether the ALJ’s decision was based on an incomplete record. 13 [JS 3]. 14 As discussed below, Issue Three is dispositive. 15 D. 16 The ALJ explicitly found at Step Two of the five-step disability SEVERE IMPAIRMENT TO PLAINTIFF’S FEET 17 evaluation that Petitioner did not have a severe impairment relating 18 to his knee and foot pain. [AR 18.] 19 these conditions were not “severe, medically determinable 20 impairments,” that Petitioner was treated conservatively for his 21 conditions, and that his pain was noted to have improved with the use 22 of support pads and night splints. [Id.] 23 was omitted from the ALJ’s evaluation at Step Two. [AR 17.] 24 Specifically, the ALJ found that Accordingly, this impairment The record shows, however, that Plaintiff was treated for pain in 25 both feet during a visit to Dr. Raisa Heifets on June 11, 2008, who 26 then referred Plaintiff to a podiatrist. [AR 202.] In August 23, 2008, 27 Plaintiff was diagnosed with plantar fasciitis while being treated at 28 Arroyo Vista Family Health Center. [AR 213-214.] 6 Plaintiff saw “some 1 improvement” with the use of support pads and night splints, but he 2 continued to experience pain that required cortisone injections. [AR 3 209.] 4 At step two of the five-step disability evaluation, an impairment 5 or combination of impairments may be found “not severe” only if the 6 evidence establishes a “slight abnormality that has no more than a 7 minimal effect on an individual’s ability to work.” 8 433 F.3d 683, 686 (9th Cir. 2005)(quoting Smolen v. Chater, 80 F.3d 9 1273, 1290 (9th Cir. 1996)); see also Yuckert v. Bowen, 841 F.2d 303, Webb v. Barnhart, 10 306 (9th Cir. 1988). 11 effect of an impairment or combination of impairments on the 12 individual’s ability to do basic work activities, the sequential 13 evaluation should not end with the not severe evaluation step” with 14 respect to that particular condition. 15 SSR 85-28, 1985 WL 56856 at *4). 16 minimis screening device used to dispose of groundless claims, and an 17 ALJ may find that a claimant lacks a medically severe impairment or 18 combination of impairments only when his conclusion is clearly 19 established by the medical evidence.” 20 (citations omitted); see also Yuckert, 841 F.2d at 306 (“Despite the 21 deference usually accorded to the Secretary’s application of 22 regulations, numerous appellate courts have imposed a narrow 23 construction upon the severity regulation applied here.”). 24 If an ALJ is “unable to determine clearly the Webb, 433 F.3d at 687 (quoting Step two, then, involves a “de Webb, 433 F.3d at 687 Under this narrow standard for step two evaluations, the finding 25 that Plaintiff did not have a severe impairment of his feet is not 26 clearly established by the medical evidence. 27 Plaintiff was diagnosed with a medically determinable condition, 28 received regular and continuous health treatments, and received 7 The record shows that 1 cortisone injections for pain. [AR 209-215.] Based on the existing 2 record, the evidence of Plaintiff’s claim of feet impairment “is 3 sufficient to pass the de minimis threshold of step two.” 4 F.3d at 687. 5 will succeed in proving that he is disabled,” the ALJ should have 6 continued the sequential analysis beyond step two with this particular 7 impairment “because there was not substantial evidence to show that 8 [plaintiff’s] claim was groundless.” 9 Accordingly, the ALJ’s finding at Step Two as to this impairment is 10 grounds for reversal, and the matter should be remanded for further 11 proceedings.2 12 E. 13 The decision whether to remand for further proceedings is within Webb, 433 Although the court “do[es] not intimate that [plaintiff] Webb, 433 F.3d at 688. REMAND FOR FURTHER PROCEEDINGS 14 the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 15 1175-1178 (9th Cir. 2000). 16 further proceedings, or where the record has been fully developed, it 17 is appropriate to exercise this discretion to direct an immediate 18 award of benefits. 19 remand for further proceedings turns upon their likely utility). 20 However, where there are outstanding issues that must be resolved 21 before a determination can be made, and it is not clear from the Where no useful purpose would be served by Harman, 211 F.3d at 1179 (decision whether to 22 23 24 25 26 27 28 2 Defendant argues that the ALJ did not commit reversible error in this respect because, among other things, Plaintiff did not mention any condition relating to his feet at the administrative hearing when asked about his impairments. [JS 10.] However, the record does clearly establish the existence of such a condition, so that the ALJ had a duty to ensure that Plaintiff’s claim was adequately developed under these circumstances. See Sims v. Apfel, 530 U.S. 103, 110-111, 120 S. Ct. 2080, 147 L. Ed. 2d 80 (2000)(“Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ’s duty to investigate the facts and develop the arguments both for and against granting benefits”). 8 1 record that the ALJ would be required to find the claimant disabled if 2 all the evidence were properly evaluated, remand is appropriate. 3 Here, as set out above in Issue Three, outstanding issues remain 4 before a finding of disability can be made.3 5 appropriate. 6 VI. Id. Accordingly, remand is ORDERS 7 Accordingly, IT IS ORDERED that: 8 1. The decision of the Commissioner is REVERSED. 9 2. This action is REMANDED to defendant, pursuant to Sentence 10 Four of 42 U.S.C. § 405(g), for further proceedings as discussed 11 above. 12 13 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 14 15 DATED: February 10, 2011 ____________________________ CARLA M. WOEHRLE United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 3 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
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