Jimmie Lee Warren v. Michael J. Astrue, No. 2:2010cv02868 - Document 20 (C.D. Cal. 2011)

Court Description: ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS by Magistrate Judge Robert N. Block. Accordingly, IT IS17 HEREBY ORDERED that Judgment be entered reversing the decision of the18 CommissionerofSocial Security and remanding this matter for further administrative19 proceedings. (twdb)

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Jimmie Lee Warren v. Michael J. Astrue Doc. 20 o 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 10 11 JIMMIE LEE WARREN, 12 Plaintiff, 13 vs. 14 MICHAEL 1. ASTRUE, Commissioner of Social Security, 15 16 17 18 Case No. CV 10-2868 RNB ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS Defendant. The Court now rules as follows with respect to the two disputed issues listed in the Joint Stipulation. I 19 There are two aspects to Disputed Issue No.1: (a) plaintiffs alleged reaching 20 limitations, and (b) plaintiffs alleged visual limitations. As to plaintiffs alleged 21 reaching limitations, the Court notes that the ALJ stated that he was accepting "the 22 most limiting aspects of both Dr. Kumar and Dr. Gwartz's assessments." (See AR 23 24 25 26 27 28 As the Court advised the parties in its Case Management Order, the decision in this case is being made on the basis of the pleadings, the administrative record ("AR"), and the Joint Stipulation ("Jt Stip") filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 1 Dockets.Justia.com 1 19.) However, the ALl's inclusion in his residual functional capacity ("RFC") 2 finding of a limitation to no more than occasional reaching overhead with either 3 upper extremity (see AR 17) was not consistent with the opinions ofboth consultative 4 examiners that plaintiffwas precluded from any overhead reaching with his right arm. 5 (See AR 377, 394.) Moreover, although the ALI did include a limitation to no 6 overhead reaching with the right arm in his second hypothetical to the vocational 7 expert (see AR 66), he did not include in either his RFC finding or either of his 8 hypotheticals to the vocational expert a limitation of no more than occasional 9 reaching in all directions with both upper extremities. Yet, Dr. Gwartz had included 10 such a limitation is his assessment of plaintiffs manipulative limitations. (See AR 11 394.) Because the ALl's statement that he was accepting "the most limiting aspects 12 of both Dr. Kumar and Dr. Gwartz's assessments" cannot be reconciled with the 13 record and the ALI failed to provide any reasons for his failure to accept the more 14 restrictive reaching limitations assessed by the consultative examiners, the Court is 15 unable to affirm that part of the ALl's RFC finding. 16 As to plaintiffs alleged visual limitation, the Commissioner acknowledges that 17 the ALI misstated plaintiffs overall visual acuity as 20/60 instead of20/80. (See Jt 18 Stip at 10.) The Commissioner also acknowledges that 20/80 vision is comparable 19 to only 60% visual acuity efficiency. (See id.) Although the Commissioner asserts, 20 unsupported by any authority or citation to evidence in the record, that plaintiffs 21 20/80 vision "suggests nearsightedness," which in tum "suggests an ability to engage 22 in near visual acuity without assistance" (see i.Q.J, in fact plaintifftestified at the first 23 administrative hearing to also having difficulty with reading and being unable to read 24 newspapers. (See AR 51-52.) On this record, the Court is unable to affirm the ALl's 25 Step Two determination that plaintiffdid not suffer from a severe vision impairment. 26 (See AR 18.) Rather, the Court finds that the ALI failed in his duty to fully and fairly 27 develop the record with respect to this issue. See Brown v. Heckler, 713 F.2d 441, 28 443 (9th Cir. 1983) ("The ALI has a special duty to fully and fairly develop the 2 1 record and to assure that the claimant's interests are considered. This duty exists 2 even when the claimant is represented by counsel."). The ALJ should have sought 3 clarification from Dr. Gwartz or another vision specialist. 4 With respect to Disputed Issue No.2, for the reasons stated by plaintiff (see Jt 5 Stip at 12-16, 22), the Court is unable to affirm the ALJ's adverse credibility 6 determination. In the first place, in contravention of governing Ninth Circuit 7 authority, the ALI failed to specify which statements by plaintiff concerning "the 8 intensity, persistence and limiting effects" of his symptoms were not credible and/or 9 in what respect(s) plaintiffs statements were not credible. See Smolen v. Chater, 80 10 F.3d 1273, 1284 (9th Cir. 1996) ("The ALJ must state specifically which symptom 11 testimony is not credible and what facts in the record lead to that conclusion."). 12 Second, the law is well established in this Circuit that, where the claimant has 13 produced objective medical evidence of an impairment or impairments that could 14 reasonably be expected to produce some degree of pain and/or other symptoms, and 15 the record is devoid of any affirmative evidence of malingering, the ALJ may reject 16 the claimant's testimony regarding the severity of the claimant's pain and/or other 17 symptoms only if the ALJ makes specific findings stating clear and convincing 18 reasons for doing so. See, e.g., Smolen, 80 F.3d at 1281; Dodrill v. Shalala, 12 F.3d 19 915,918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341,343 (9th Cir. 1991); 20 Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986). 21 Since the ALJ did not make an express finding of malingering here, but did 22 expressly find that plaintiffs medically determinable impairments "could reasonably 23 be expected to produce the alleged symptoms" (see AR 17), the issue before the Court 24 is whether the ALJ provided reasons for his adverse credibility determination that 25 satisfy the "clear and convincing" standard set forth above. Here, the ALJ did not 26 purport to state "reasons" for his adverse credibility determination, but rather merely 27 purported to make findings with respect to the six factors that Social Security Ruling 28 96-7p requires be considered. (See AR 19-20.) However, as plaintiffpoints out, the 3 1 ALl's statement with respect to the first factor that plaintiff does not allege any loss 2 of ability to perform his activities of daily living is a misstatement of plaintiffs 3 testimony. (See AR 52-57.) Likewise, the ALl's statement with respect to the second 4 factor that the bulk ofplaintiffs medical treatment notes concern the treatment ofhis 5 hypertension is a misstatement ofthe record, which evidences extensive treatment for 6 plaintiffs problems with his shoulder, back, leg, and eye. (See, e.g., AR 225-57,263, 7 265,281,328,361,403-91.) The ALl's statement with respect to the third factor that 8 his RFC finding accommodates plaintiffs testimony that his pain was exacerbated by 9 postural changes and heavy exertion does not support an adverse credibility 10 determination, but rather seemingly evidences that the ALl found plaintiff s 11 testimony in this regard credible. The ALl's statement with respect to the fourth 12 factor about plaintiffs failure to pursue prescription pain medication also does not 13 constitute a clear and convincing reason for rejecting plaintiffs subjective testimony, 14 given the plethora of evidence in the record that plaintiff sought pain management, 15 including narcotic pain medication, for his back and leg pain, and for his shoulder 16 pain before and after his surgeries. (See, e.g., AR 405-72, 476, 477, 486.) The ALl's 17 statement with respect to the fifth factor about the lack ofan explanation for why the 18 shoulder surgery had not yet been performed also is a misstatement of the record, 19 which reflects that the delay was not attributable to plaintiff. (See AR 50; see also 20 AR 486-87.) Finally, the ALl's statement with respect to the sixth factor that there 21 is no record of treatment for blackouts does not constitute a clear and convincing 22 reason for rejecting plaintiffs subjective testimony concerning the intensity, 23 persistence and limiting effects of the symptoms that the ALl found plaintiffs 24 medically determinable impairments could reasonably be expected to produce. As 25 plaintiffpoints out, the ALl did not ask him anything about blackouts at the hearing, 26 and plaintiffdid not complain about blackouts to either ofthe consultative examiners. 27 The Court therefore finds that the ALl failed to provide reasons for his adverse 28 credibility determination that satisfy the "clear and convincing" standard. 4 1 CONCLUSION AND ORDER 2 The law is well established that the decision whether to remand for further 3 proceedings or simply to award benefits is within the discretion of the Court. See, 4 ~,Salvador 5 888 F.2d 599, 603 (9th Cir. 1989); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 6 1981). Remand is warranted where additional administrative proceedings could v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 7 remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th 8 Cir. 1984); Lewin, 654 F.2d at 635. 9 Remand for the payment of benefits is appropriate where no useful purpose would be served by further administrative 10 proceedings, Komock v. Harris, 648 F.2d 525,527 (9th Cir. 1980); where the record 11 has been fully developed, Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); 12 or where remand would unnecessarily delay the receipt of benefits, Bilby v. 13 Schweiker, 762 F.2d 716, 719 (9th Cir. 1985). 14 Here, the Court has concluded that the record has not been fully developed with 15 respect to the issue of plaintiffs alleged visual impairment. Moreover, with respect 16 to Disputed Issue No.1, plaintiff implicitly has conceded that a remand for further 17 proceedings is required. (See Jt Stip at 5.) Thus, weighing in favor of a remand for 18 further administrative proceedings here is the fact that this is not an instance where 19 no useful purpose would be served by further administrative proceedings. Rather, 20 additional administrative proceedings conceivably could remedy the defects in the 21 ALl's decision. 22 The Court is mindful of Ninth Circuit case authority holding that "the district 23 court should credit evidence that was rejected during the administrative process and 24 remand for an immediate award of benefits if (l) the ALJ failed to provide legally 25 sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that 26 must be resolved before a determination of disability can be made; and (3) it is clear 27 from the record that the ALJ would be required to find the claimant disabled were 28 such evidence credited." See Benecke v. Barnhart, 379 FJd 587,593 (9th Cir. 2004); 5 1 see also, e.g., Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.), cert. denied, 531 U.S. 2 1038 (2000)\ Smolen, 80 F.3d at 1292; Varney v. Secretary of Health & Human 3 Servs., 859 F.2d 1396, 1399-1401 (9th Cir. 1988). Under the foregoing case 4 authority, when this test is met, the Court will take the improperly discredited 5 testimony as true and not remand solely to allow the ALJ another opportunity to make 6 specific findings regarding that testimony. This rule applies not only to a claimant's 7 improperly discredited excess pain and other subjective symptom testimony, but also 8 to lay witnesses' improperly discredited testimony, and to improperly discredited 9 opinions ofa treating or examining physician. However, in Connett v. Barnhart, 340 10 F.3d 871, 876 (9th Cir. 2003), the panel held that the "crediting as true" doctrine was 11 not mandatory in the Ninth Circuit. 12 reconsideration of the claimant's credibility where the record contained insufficient 13 findings as to whether the claimant's testimony should be credited as true. See id. 14 Based on its review and consideration of the entire record, the Court has 15 concluded on balance that a remand for further administrative proceedings pursuant 16 to sentence four of 42 U.S.c. § 405(g) is warranted here. Accordingly, IT IS 17 HEREBY ORDERED that Judgment be entered reversing the decision of the 18 Commissioner ofSocial Security and remanding this matter for further administrative There, the Ninth Circuit remanded for 19 proceedings. 3 20 21 DATED: March 1,2011 22 ROBER I N. BLOCK UNITED STATES MAGISTRATE JUDGE 23 24 25 In Harman, the Ninth Circuit noted that this three-part test "really constitutes a two part inquiry, wherein the third prong is a subcategory of the second." Harman, 211 F.3d at 1178 n.7. 2 26 27 28 3 It is not the Court's intent to limit the scope of the remand. 6

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