Tony Holloway v. Michael J. Astrue, No. 2:2010cv05765 - Document 21 (C.D. Cal. 2011)

Court Description: (CORRECTED AS TO THE CASE NAME ONLY) MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. Re Document 19 . (ib)

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Tony Holloway v. Michael J. Astrue Doc. 21 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TONY L. HOLLOWAY, 12 13 14 15 16 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. CV 10-05765 RZ [Corrected as to case name only] MEMORANDUM OPINION AND ORDER 17 In this action to review an adverse disability decision by the Social Security 18 Commissioner, Plaintiff Tony L. Holloway principally complains that the Administrative 19 Law Judge misapplied the doctrine of administrative res judicata. Plaintiff complains that 20 the prior disability decision is not part of the administrative record, so that the conclusion 21 that administrative res judicata applies cannot be evaluated. 22 In the abstract, that might be a good argument. But there is no dispute that, 23 in the prior determination, the Commissioner found that Plaintiff was capable of light work, 24 even if the explication of the evidence contained in the prior decision is not a matter of this 25 record. In the current decision, the Administrative Law Judge found that Plaintiff is 26 capable of medium work. [AR 23] Thus, the Administrative Law Judge in the present 27 matter found that Plaintiff was capable of more physically strenuous work now than earlier 28 Dockets.Justia.com 1 when Plaintiff also was found not to be disabled. If the Administrative Law Judge erred 2 in applying the doctrine of administrative res judicata, the error was without consequence. 3 The question instead is whether substantial evidence supports the decision that 4 the Administrative Law Judge did make. The finding that Plaintiff could perform medium 5 work rested on the examination by the consulting physician Dr. Enriguez. [AR 25] 6 Plaintiff points out, however, that there were subsequent radiological tests, and asserts that 7 Dr. Enriguez’s assessment cannot stand as substantial evidence backing the Administrative 8 Law Judge’s finding recommendation. The Commissioner disagrees, but the Court finds 9 the Commissioner’s arguments unpersuasive. 10 First, the Commissioner asserts that it is the doctor’s examination that counts, 11 not the subsequent imaging studies. (Defendant’s Memorandum at 5:16-18.) The case it 12 cites for that proposition, Tonapetyan v. Halter, 242 F.3d 144, 149 (9th Cir. 2001), does 13 not support the argument. Nor does it make sense that, if there are later studies that might 14 affect a physician’s evaluation, that the studies could simply be ignored because the 15 physician had made his evaluation without them. 16 Second, the Commissioner asserts that the Administrative Law Judge did 17 consider the imaging studies, and that his consideration is sufficient because he is the 18 arbiter of the facts. (Defendant’s Memorandum at 5:18-20.) But, while he may be the 19 arbiter of facts, he is not a doctor. A medical expert needs to evaluate medical studies, not 20 a lay person. Manso-Pizarro v. Secretary of Health and Human Services, 76 F.3d 15, 17 21 (1st Cir. 1996); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). Based on a 22 physician’s assessment of the studies, an administrative law judge can make findings, but 23 that was not done here. 24 /// 25 /// 26 /// 27 /// 28 /// -2- 1 Hence, the record is left incomplete, and further evaluation is needed. 2 Accordingly, the matter is reversed, and remanded for further consideration consistent with 3 this memorandum. 4 IT IS SO ORDERED. 5 6 DATED: September 28, 2011 7 8 9 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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