Linda Joyce Perez v. Michael J. Astrue, No. 2:2010cv06589 - Document 21 (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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 LINDA JOYCE PEREZ, 13 Plaintiff, 14 v. 15 16 17 ) ) ) ) ) ) ) ) ) ) ) ) ) MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 18 19 NO. CV 10-06589 CW DECISION AND ORDER The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned Magistrate Judge. 21 seeks review of the Commissioner s denial of disability benefits. 22 As discussed below, the Court finds that the Commissioner s 23 decision should be reversed and this matter remanded for further 24 proceedings. 25 I. Plaintiff BACKGROUND 26 Plaintiff Linda Perez was born on August 24, 1954, and was 27 fifty-four years old at the time of her administrative hearing. 28 [Administrative Record ( AR ) 44, 27-43.] Plaintiff alleges 1 disability due to migraine headaches, depression rheumatoid 2 arthritis, neck pain, fibromyalgia, lumbar and cervical 3 radicilitis, cervical spine degenerative disc disease, sleeping 4 problems, fatigue, and numbness in her left leg. [AR 47, 85, 5 115.] She has past relevant work as a teacher s aide. [AR 86.] 6 7 II. PROCEEDINGS IN THIS COURT Plaintiff filed a complaint on September 2, 2010. 8 10, 2011, Defendant filed an answer and Plaintiff s 9 Administrative Record ( AR ). On March On June 15, 2011, the parties 10 filed their Joint Stipulation ( JS ) identifying matters not in 11 dispute, issues in dispute, positions of the parties, and the 12 relief sought by each party. 13 submission without oral argument. 14 15 III. This matter has been taken under PRIOR ADMINISTRATIVE PROCEEDINGS Plaintiff filed for a period of disability and disability 16 insurance benefits ( DIB ) on February 13, 2007, alleging 17 disability since December 15, 2006. [AR 44, 85.] 18 Plaintiff s application was initially denied on September 19, 19 2007, she requested an administrative hearing, which was held 20 before an Administrative Law Judge ( ALJ ) on May 11, 2009.1 [AR 21 27-43, 47-52, 55.] 22 testimony was taken from Plaintiff and vocational expert Gregory 23 Jones. [AR 27-43.] 24 August 21, 2009. [AR 11-22.] 25 sought review with the Appeals Council and submitted additional After Plaintiff appeared with counsel, and The ALJ issued a decision denying benefits on On September 18, 2009, Plaintiff 26 27 28 1 This is a prototype case which allows a claimant to go directly to a hearing from an initial denial thereby skipping the reconsideration stage. [AR 44]; see 20 C.F.R. § 404.906(b)(4). 2 1 evidence. [AR 5-7.] 2 July 30, 2010, the ALJ s decision became the Commissioner s final 3 decision. [AR 1-4.] 4 5 When the Appeals Council denied review on IV. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 6 Commissioner s decision to deny benefits. 7 ALJ s) findings and decision should be upheld if they are free of 8 legal error and supported by substantial evidence. 9 the court determines that a finding is based on legal error or is The Commissioner s (or However, if 10 not supported by substantial evidence in the record, the court 11 may reject the finding and set aside the decision to deny 12 benefits. 13 Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 14 2001); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); 15 Tackett v. Apfel, 180 F.3d 1094,1097 (9th Cir. 1999); Reddick v. 16 Chater, 157 F.3d 715, 720 (9th Cir. 1998); Smolen v. Chater, 80 17 F.3d 1273, 1279 (9th Cir. 1996); Moncada v. Chater, 60 F.3d 521, 18 523 (9th Cir. 1995)(per curiam). 19 See Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Substantial evidence is more than a scintilla, but less 20 than a preponderance. 21 relevant evidence which a reasonable person might accept as 22 adequate to support a conclusion. 23 substantial evidence supports a finding, a court must review the 24 administrative record as a whole, weighing both the evidence that 25 supports and the evidence that detracts from the Commissioner s 26 conclusion. 27 affirming or reversing, the reviewing court may not substitute 28 its judgment for that of the Commissioner. Id. Reddick, 157 F.3d at 720. Id. It is To determine whether If the evidence can reasonably support either 3 Reddick, 157 F.3d at 1 720-721; see also Osenbrock, 240 F.3d at 1162. V. 2 DISCUSSION 3 A. THE FIVE-STEP EVALUATION 4 To be eligible for disability benefits a claimant must 5 demonstrate a medically determinable impairment which prevents 6 the claimant from engaging in substantial gainful activity and 7 which is expected to result in death or to last for a continuous 8 period of at least twelve months. 9 Reddick, 157 F.3d at 721; 42 U.S.C. § 423(d)(1)(A). Tackett, 180 F.3d at 1098; 10 Disability claims are evaluated using a five-step test: 11 Step one: Is the claimant engaging in substantial 12 gainful activity? If so, the claimant is found not 13 disabled. If not, proceed to step two. 14 Step two: Does the claimant have a severe impairment? 15 If so, proceed to step three. If not, then a finding of not 16 disabled is appropriate. 17 Step three: Does the claimant s impairment or 18 combination of impairments meet or equal an impairment 19 listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If 20 so, the claimant is automatically determined disabled. If 21 not, proceed to step four. 22 Step four: Is the claimant capable of performing his 23 past work? If so, the claimant is not disabled. If not, 24 proceed to step five. 25 Step five: Does the claimant have the residual 26 functional capacity to perform any other work? If so, the 27 claimant is not disabled. If not, the claimant is disabled. 28 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 4 1 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 2 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 3 1098-99; 20 C.F.R. § 404.1520, § 416.920. 4 disabled or not disabled at any step, there is no need to 5 complete further steps. 6 404.1520. 7 If a claimant is found Tackett, 180 F.3d 1098; 20 C.F.R. § Claimants have the burden of proof at steps one through 8 four, subject to the presumption that Social Security hearings 9 are nonadversarial, and to the Commissioner s affirmative duty to 10 assist claimants in fully developing the record even if they are 11 represented by counsel. 12 Smolen, 80 F.3d at 1288. 13 case of disability is made, and the burden shifts to the 14 Commissioner (at step five) to prove that, considering residual 15 functional capacity ( RFC )2, age, education, and work 16 experience, a claimant can perform other work which is available 17 in significant numbers. 18 Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098 and n.3; If this burden is met, a prima facie Tackett, 180 F.3d at 1098, 1100; 19 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 20 The ALJ found that Plaintiff had not engaged in substantial 21 gainful activity since her alleged disability onset date of 22 23 24 25 26 27 28 2 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 December 15, 2006 (step one); that Plaintiff had severe 2 impairments, namely migraine headaches, rheumatoid arthritis, 3 neck pain, fibromyalgia, lumbar and cervical radiculitis, 4 cervical spine degenerative disc disease, and numbness in her 5 left leg (step two); and that Plaintiff did not have an 6 impairment or combination of impairments that met or equaled a 7 listing (step three). 8 Plaintiff had an RFC to perform medium work3 with no more than 9 occasional stooping, kneeling, balancing and climbing ladders, [AR 13-16.] The ALJ determined that 10 and no more than frequent climbing of stairs. [AR 17.] 11 Plaintiff s RFC did not preclude her from performing her past 12 work as a teacher s aide (step four). 13 Plaintiff was not disabled within the meaning of the Social 14 Security Act. [AR 21.] Accordingly, [AR 22.] 15 C. PLAINTIFF S PRESENT CLAIMS 16 The parties Joint Stipulation identifies the following 17 disputed issues: 18 1. Whether the ALJ complied with her duty to fully and 19 fairly develop the record when she failed to hold a 20 supplemental hearing and allow Plaintiff to respond to 21 newly admitted evidence in the record ; 22 2. Whether the ALJ erred when she failed to find 23 Plaintiff s depression and Post Traumatic Stress Disorder 24 (PTSD) to be severe impairments ; 25 3. Whether the ALJ properly assessed Plaintiff s 26 27 28 3 Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighting up to 25 pounds. 20 C.F.R. § 416.967(c). 6 1 credibility ; 2 4. Whether the ALJ properly considered the opinions of 3 Plaintiff s treating physicians, Susan Hua, M.D. and 4 Faustino Bernadette, M.D. 4 5 [JS 3.] 6 As discussed below, Issue One is dispositive. 7 D. 8 9 ISSUE ONE: DEVELOPMENT OF THE RECORD 1. Background At the close of the hearing on May 11, 2009, the ALJ 10 requested Plaintiff to undergo consultative psychiatric and 11 neurological evaluations to further assist her in evaluating 12 Plaintiff s limitations. [AR 42.] 13 Moore performed a neurological evaluation of Plaintiff, and on 14 July 6, 2009, Dr. Miriam Staub performed a psychiatric evaluation 15 of Plaintiff. [AR 566-75, 576-87.] 16 supported the degree of Plaintiff s alleged functional 17 limitations. 18 On June 29, 2009, Dr. Robert Neither of these evaluations Dr. Moore opined that Plaintiff is limited to lifting or 19 carrying fifty pounds occasionally and twenty-five pounds 20 frequently with no more than frequent reaching, pushing, and 21 pulling in both hands, no more than frequent climbing of stairs, 22 no climbing ladders, and occasional stooping, kneeling, crawling 23 and crouching. 24 Plaintiff in her ability to sit, stand or walk in an eight-hour 25 work day. [Id.] [AR 576-87.] Dr. Moore did not restrict With respect to Plaintiff s mental RFC, Dr. 26 27 28 4 Defendant did not stipulate that the disputed issue statements were framed in a neutral fashion pursuant to section VIII(C) of the case management order. [JS 3.] 7 1 Staub opined that Plaintiff did not have any mental limitations. 2 [AR 566-75]. 3 On July 24, 2009, the ALJ sent Plaintiff s counsel a letter, 4 enclosing copies of Plaintiff s psychiatric and neurological 5 evaluations from Drs. Staub and Moore, and indicating that she 6 intended to enter the reports into the record as evidence. [AR 7 26.] 8 Plaintiff had the right to submit any written comments concerning 9 the enclosed reports, a written statement as to the facts and In the letter, the ALJ informed Plaintiff s counsel that 10 law applicable to the case in light of the reports, and any 11 additional records Plaintiff wanted the ALJ to consider, 12 including a report from [Plaintiff s] treating physician. [Id.] 13 The ALJ also indicated that if Plaintiff did not submit a 14 response within 10 days of the date [Plaintiff] receives this 15 notice, then she would assume that Plaintiff did not wish to 16 submit any written statements or records, and would then enter 17 the enclosed reports into the evidence in the record. 18 [Id.] Plaintiff s counsel received the ALJ s letter on July 27, 19 2009. [AR 134.] 20 Plaintiff s counsel electronically submitted a written response 21 objecting to the admission of the evaluation reports as evidence 22 into the record. [AR 135-38.] 23 ALJ to conduct a supplemental hearing to be able to cross-examine 24 Drs. Staub and Moore, or in the event Drs. Staub or Moore could 25 not appear and testify, the presence of a medical expert to 26 provide testimony as to whether the opinions of Drs. Staub and 27 Moore were consistent with the objective medical evidence in the 28 record. [AR 137.] Within the ten day deadline, on August 5, 2009, In addition, counsel requested the 8 1 Notwithstanding Plaintiff s August 5, 2009 letter to the 2 ALJ, objecting to the reports and requesting a supplemental 3 hearing, the ALJ in her August 21, 2009, written decision 4 denying benefits stated that [t]he Social Security 5 Administration did not receive a response from the [plaintiff s] 6 counsel to submit any written statements or records concerning 7 the evaluations within the prescribed 10 day period. [AR 11.] 8 Accordingly, the opinions of Drs. Staub and Moore were entered 9 into evidence in the record, the written statement submitted by 10 Plaintiff s counsel objecting to these opinions apparently was 11 not considered, and a supplemental hearing was not held. 12 Subsequently, Plaintiff filed a request for Appellate 13 Council review of the hearing decision [AR 5], attaching a letter 14 that detailed the legal arguments she made to the ALJ regarding 15 the opinions of Drs. Straub and Moore [AR 6-7], and a copy of an 16 opinion by her treating physician that likewise addresses those 17 reports [AR 140]. 18 her treating physician s analysis promptly after she received 19 those reports. [AR 139.] On July 30, 2010, the Appeals Council 20 made this additional evidence part of the Administrative Record.5 21 [AR 4.] 22 23 2. The record reflects that Plaintiff solicited Discussion An ALJ has an independent duty to fully and fairly develop 24 the record and to assure that the claimant s interests are 25 considered, even when a claimant is represented by counsel. 26 27 28 5 Evidence submitted to the Appeals Council is a part the administrative record and can be considered by the courts on appeal. Ramirez v. Shalala, 8 F.3d 1449, 1451-52 (9th Cir. 1993); Harmen v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000). 9 1 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) 2 (citations and quotation marks omitted). 3 develop the record is triggered whenever the evidence is 4 ambiguous or when the ALJ has found the record is inadequate to 5 allow for proper evaluation. Mayes v. Massanari, 276 F.3d 453, 6 459-60 (9th Cir. 2001). The ALJ may discharge this duty by, for 7 example, keeping the record open to allow for supplementation of 8 the record. Tonapetyan, 242 F.3d at 1150. When the Commissioner 9 fails to adequately meet this duty, the claimant is denied the The ALJ s obligation to 10 full and fair hearing] to which she was entitled. 11 Astrue, 640 F.3d 881, 886 (9th Cir. 2011). 12 McLeod v. Here, the ALJ evidently determined the record before her at 13 Plaintiff s hearing was inadequate to allow for proper evaluation 14 of her claim and, consequently, sent Plaintiff for further 15 examination. 16 to the resulting reports by suggesting she would hold the record 17 open for a brief period of time for a response. 18 Commissioner did not, however, ultimately satisfy this duty with 19 respect to consideration of a fully developed record. 20 She offered Plaintiff some opportunity to respond [AR 26.] The Plaintiff timely submitted a written statement to the ALJ 21 objecting to the findings of Drs. Staub and Moore and requesting 22 a supplemental hearing.6 [AR 26, 134-38.] Although she did not 23 24 25 26 27 28 6 Plaintiff cites the Hearings, Appeals and Litigation Law Manual ( HALLEX ) to support her position that the ALJ should have scheduled a supplemental hearing. [JS 5]. However, HALLEX does not have the force and effect of law, and is therefore, not binding on the Commissioner. . . . Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000); see also Western Radio Services Co. v. Espy, 79 F.3d 896, 900 (9th Cir. 1996) ("we will not review allegations of noncompliance with an agency statement that is not binding on the agency."). 10 1 submit any medical support for her statement at that time, and 2 her statement is somewhat vague with respect to whether she 3 intended to provide any further records to the ALJ, the record 4 indicates that she sent her treating physician, Celedonia X. Yue, 5 M.D., a letter on July 30, 2009, asking Dr. Yue to provide a 6 written statement in response to the opinions of Drs. Staub and 7 Moore; Dr. Yue submitted her assessment on September 4, 2009.7 8 [AR 139-140.] Plaintiff then promptly forwarded Dr. Yue s 9 assessment to the Appeals Council, which received it into 10 11 evidence. [AR 4.] In the hearing decision, however, the ALJ stated that [t]he 12 Social Security Administration did not receive a response from 13 the [plaintiff s] counsel to submit any written statements or 14 records concerning the evaluations within the prescribed 10 day 15 period. [AR 11.] Although the ALJ was not provided with a copy 16 of Dr. Yue s assessment, it is unclear from the hearing decision 17 whether the ALJ received and considered even the written argument 18 submitted by Plaintiff s attorney. 19 apparent that the Appeals Council received both Plaintiff s 20 statement and Dr. Yue s assessment, the Appeals Council did not 21 specifically address or discount either of these documents. [See 22 AR 1-3.] 23 24 25 26 27 28 Furthermore, while it is This oversight is particularly troubling given that the report Plaintiff submitted reflects the opinion of a treating 7 Contrary to the opinions of Drs. Staub and Moore, Dr. Yue opined that she is doubtful that Plaintiff could ever be able to return to full-time work as she can only stand for twenty minutes at a time and is able to lift less than five pounds. [AR 140.] Dr. Yue explained that Plaintiff would miss more than three days of work due to her medical conditions. [Id.] 11 1 physician. [See AR 21.] The Commissioner may reject a treating 2 physician s assessment only by articulating clear and convincing 3 reasons for so doing, if uncontroverted, and specific, legitimate 4 reasons even if controverted. 5 (9th Cir. 1996). 6 and, in thus failing to fully develop the record and weigh the 7 evidence appropriately, denied Plaintiff her right to a full and 8 fair hearing. 9 E. 10 Lester v. Chater, 81 F.3d 821, 830 The Commissioner did not meet this standard Reversal is warranted on this basis. REMAND FOR FURTHER PROCEEDINGS The decision whether to remand for further proceedings is 11 within the discretion of the district court. 12 211 F.3d 1172, 1175-1178 (9th Cir. 2000). 13 purpose would be served by further proceedings, or where the 14 record has been fully developed, it is appropriate to exercise 15 this discretion to direct an immediate award of benefits. 16 Harman, 211 F.3d at 1179 (decision whether to remand for further 17 proceedings turns upon their likely utility). 18 there are outstanding issues that must be resolved before a 19 determination can be made, and it is not clear from the record 20 that the ALJ would be required to find the claimant disabled if 21 all the evidence were properly evaluated, remand is appropriate. 22 Id. 23 finding of disability can be made.8 Harman v. Apfel, Where no useful However, where Here, as set out above, outstanding issues remain before a Accordingly, remand is 24 25 26 27 28 8 None of the remaining issues raised by Plaintiff in the Joint Stipulation mandate a finding of disability on the basis of the current record particularly given that no step five findings were made in this case [see AR 21] 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. 12 1 required. 2 VI. ORDERS 3 Accordingly, IT IS ORDERED that: 4 1. The decision of the Commissioner is REVERSED. 5 2. This action is REMANDED to defendant, pursuant to 6 Sentence Four of 42 U.S.C. 7 discussed above. 8 9 3. § 405 (g), for further proceedings as The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 10 11 12 DATED: July 20, 2011 CARLA M. WOEHRLE United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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