Armando Olivares v. Michael Astrue, No. 2:2010cv07976 - Document 22 (C.D. Cal. 2011)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal; IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. See order for further details. (jy)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ARMANDO OLIVARES, 12 13 14 15 16 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 10-07976 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Plaintiff Armando Olivares ( Plaintiff ) brings this action seeking 22 to reverse the decision of the Commissioner of the Social Security 23 Administration (the Agency ) denying his application for Supplemental 24 Security Income ( SSI ). Alternatively, Plaintiff asks that this Court 25 remand the case for further review. 26 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States 27 Magistrate Judge. 28 Agency is REVERSED and REMANDED for further proceedings. The parties consented, pursuant to For the reasons stated below, the decision of the 1 II. 2 PROCEDURAL HISTORY 3 4 On January 30, 2008, Plaintiff filed an application for 5 Supplemental Security Income ( SSI ) claiming that he became disabled 6 on January 8, 2008. 7 Agency initially denied Plaintiff benefits on April 23, 2008 and upon 8 reconsideration on August 21, 2008. 9 2008 Plaintiff requested a hearing before an Administrative Law Judge (AR 94). (Administrative Record ( AR ) at 120-22). (AR 79-83, 88-92). The On October 3, 10 ( ALJ ). 11 Plaintiff testified that he was unable to work due to back pain and 12 fatigue. (AR 13 testified. (AR 24-76). 14 (AR 10-23). On March 29, 2010 Plaintiff requested review by the Appeals 15 Council (AR 7-8). 16 Plaintiff that he may send . . . more evidence or a statement about the 17 facts and law in this case. 18 to the issues considered in the hearing decision dated January 29, 19 2010. (AR 5). The Appeals Council stated that Plaintiff must send any 20 additional information to the Appeals Council within 25 days of the 21 date of this letter [April 3, 2010]. 22 Plaintiff submitted additional medical records from April 2010 to the 23 Appeals 24 Plaintiff s request for review on August 23, 2010. (AR 1-4). On October 25 22, 2010, Plaintiff filed the instant action. 26 \\ 27 \\ 28 \\ 24, Council. The hearing took place on November 30, 2009 and 42-43). Plaintiff appeared with counsel and On January 29, 2010, the ALJ denied benefits. On April 3, 2010 the Appeals Council notified (AR 4, Any more evidence must be new and material 457-71). 2 (Id.). The On June 23, 2010 Appeals Council denied 1 In the interim, on March 25, 2010, Plaintiff filed a second 2 application for disability payments. (Exhibit 1 to Plaintiff s 3 Memorandum in Support of Complaint ( Exhibit 1 ) at 1). 4 17, 2010 the Agency notified Plaintiff that he [met] all the rules to 5 be eligible for SSI beginning March 25, 2010. 6 instant action Plaintiff seeks disability benefits for a closed period 7 of time, from January 8, 2008 until April 1, 2010. 8 Support of Complaint ( Complaint Memo. ) at 2). On September (Id. at 2).1 In the (Memorandum in 9 10 III. 11 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 12 13 To qualify for disability benefits, a claimant must demonstrate a 14 medically determinable physical or mental impairment that prevents him 15 from engaging in substantial gainful activity2 and that is expected to 16 result in death or to last for a continuous period of at least twelve 17 months. 18 42 U.S.C. § 423(d)(1)(A)). 19 incapable of performing the work he previously performed and incapable 20 of performing any other substantial gainful employment that exists in 21 the national economy. 22 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 23 24 25 26 1 27 2 Payment began in April 2010. (Exhibit at 1, 13). Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay 28 or profit. 20 C.F.R. § 416.910. 3 1 2 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are: 3 4 (1) Is the claimant presently engaged in substantial gainful 5 activity? 6 If not, proceed to step two. 7 (2) Is the If so, the claimant is found not disabled. claimant s impairment 8 claimant is found not disabled. 9 severe? If not, the three. 10 (3) Does the claimant s If so, proceed to step impairment meet or equal the 11 requirements of any impairment listed at 20 C.F.R. Part 12 404, Subpart P, Appendix 1? 13 found disabled. 14 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing his past work? 15 so, the claimant is found not disabled. 16 If to step five. 17 (5) If not, proceed Is the claimant able to do any other work? 18 claimant is found disabled. 19 If not, the If so, the claimant is found not disabled. 20 21 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 22 949, 953-54 (9th Cir. 2001); 20 C.F.R. § 416.920(b)-(g)(1). 23 24 The claimant has the burden of proof at steps one through four, and 25 the Commissioner has the burden of proof at step five. Bustamante, 262 26 F.3d at 953-54. 27 establishing an inability to perform the past work, the Commissioner 28 must show that the claimant can perform some other work that exists in If, at step four, the claimant meets his burden of 4 1 significant numbers in the national economy, taking into account the 2 claimant s residual functional capacity ( RFC ),3 age, education and 3 work experience. Tackett, 180 F.3d at 1100; 20 C.F.R. § 416.920(g)(1). 4 The Commissioner may do so by the testimony of a vocational expert or 5 by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. 6 Part 404, Subpart P, Appendix 2 (commonly known as the Grids ). 7 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 8 claimant 9 limitations, the Grids are inapplicable and the ALJ must take the has both exertional (strength-related) 10 testimony of a vocational expert. 11 and When a nonexertional Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). 12 IV. 13 STANDARD OF REVIEW 14 15 Under 42 U.S.C. § 405(g), a district court may review the 16 Commissioner s decision to deny benefits. The court may set aside the 17 Commissioner s decision when the ALJ s findings are based on legal error 18 or are not supported by substantial evidence in the record as a whole. 19 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 20 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 21 22 Substantial evidence is more than a scintilla, but less than a 23 preponderance. 24 which a reasonable person might accept as adequate to support a 25 conclusion. 26 a finding, the court must consider the record as a whole, weighing Id. Reddick, 157 F.3d at 720. It is relevant evidence To determine whether substantial evidence supports 27 3 Residual functional capacity is the most [one] can still do despite [his] limitations and represents an assessment based on all 28 the relevant evidence. 20 C.F.R. § 416.945(a). 5 1 both evidence that supports and evidence that detracts from the 2 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 3 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 4 reasonably support either affirming or reversing that conclusion, the 5 court may not substitute its judgment for that of the Commissioner. 6 Reddick, 157 F.3d at 720-21. If the evidence can 7 8 V. 9 DISCUSSION 10 11 A. The ALJ Failed to Consider New, Material Evidence 12 13 Plaintiff contends that the ALJ s decision should be remanded for 14 consideration of evidence supplied to the Appeals Council after the 15 ALJ s decision. 16 Plaintiff submitted additional medical records from April 2010 to the 17 Appeals Council. (AR 4, 457-71). 18 denied Plaintiff s request for review on August 23, 2010. 19 Specifically, Plaintiff argues that the Appeals Council failed to 20 consider records" which contain a new MRI [magnetic resonance image] 21 of the lumbar spine which shows progression of the back impairment and 22 provides support for [P]laintiff s testimony concerning his pain. 23 (Complaint Memo. at 3). 24 [new] MRI provides . . . documentation of multi-level degenerative disk 25 disease, bulges, moderate to severe facet hypertrophy, mild central 26 stenosis and moderate bi-lateral neural foraminal stenosis of L3-4 and 27 stenosis at L4-L5. 28 supplied to (Complaint Memo. at 2-3). the The Appeals Council subsequently (AR 1-3). Plaintiff s representative stated that the (AR 457). Appeals As noted, on June 23, 2010, Plaintiff contends that the evidence Council 6 supports a greater degree [of] 1 limitation than found by the ALJ and argues that because the Appeals 2 Council failed to consider this evidence, the case should be remanded 3 for a fair evaluation of all the evidence. (Complaint Memo. at 3). 4 5 The ALJ concluded that the Plaintiff has the residual functional 6 capacity to perform light work . . . except that he is limited to 7 performing postural activities occasionally, he can perform tasks 8 requiring 9 heights, hazards, or extreme temperatures, and he can perform hand depth perception occasionally, cannot be exposed to 10 manipulations frequently. 11 on the medical evidence in the record, including an MRI scan from March 12 2009 which showed grade I spondylolistheis and a moderate disc bulge 13 at the L4-5 level, as well as a mild bulge at L3-4. 14 noted that the March 2009 MRI appear[ed] to indicate less severe damage 15 than an MRI taken in May 2008 which showed moderate-to-severe central 16 canal stenosis and mild-to-moderate bilateral neuroforaminal stenosis 17 at L4-5. 18 evidence indicates that while the [Plaintiff] has severe impairments, 19 he is able to work. (Id.). (AR 16). he The ALJ based this determination (AR 17). The ALJ The ALJ found that [t]aken as whole . . . the (AR 17). 20 21 The Court may remand a matter to the Commissioner if there is new 22 evidence which is material to a determination of disability and 23 Plaintiff shows good cause for having failed to produce that evidence 24 earlier. 25 bear directly and substantially on the matter at issue and there must 26 be a reasonable possibility that the new evidence would have changed 27 the outcome of the administrative hearing. Mayes v. Massanari, 276 F.3d 28 453, 462 (9th Cir. 2001) (as amended); Booz v. Secretary of Health & 42 U.S.C. § 405(g). To be material, the new evidence must 7 1 Human Servs., 734 F.2d 1378, 1380-81 (9th Cir. 1984). 2 requirement 3 Commissioner s final decision and the claimant could not have obtained 4 that evidence at the time of the administrative proceeding. 5 Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985). 6 the good cause requirement by merely obtaining a more favorable report 7 once his claim has been denied. To demonstrate good cause, the claimant 8 must demonstrate that the new evidence was unavailable earlier. 9 276 F.3d at 463. is satisfied if new information The good cause surfaces after the Key v. A claimant does not meet Mayes, 10 11 Here, the additional evidence submitted to the Appeals Council by 12 Plaintiff on June 23, 2010 contained an MRI from April 2010. (AR 4, 13 457-71). 14 report that at the L3-L4 level there was [m]ild diffuse disk bulge[,] 15 [m]ild superimposed central disk protrusion[,] [m]ild bilateral facet 16 hypertrophy[,] [m]ild central stenosis, and moderate bilateral neural 17 foraminal stenosis. 18 level there was [u]ncovering of the disk[,] [m]ild diffuse disk 19 bulge[,] [m]oderate bilateral facet hypertrophy[,] [m]oderate central 20 stenosis and moderate bilateral neural foraminal stenosis. Dr. Meng Law conduced the April 2010 MRI and noted in his (AR 460). Dr. Law also stated that at the L4-L5 (Id.). 21 22 1. The Additional MRI Results Are Material to the Determination 23 of Disability 24 25 Here, the new medical evidence is material to the determination 26 of disability because it bears directly and substantially on the matter 27 at issue. 28 back pain and fatigue. Plaintiff testified that he was unable to work due to severe (AR 42-43). 8 In finding that Plaintiff was able 1 to work despite severe impairments, the ALJ relied on the medical record 2 which included two MRIs from May 2008 and March 2009. 3 Also, because Plaintiff s back pain is a continuing condition, the new 4 evidence bears directly and substantially on the issue of whether 5 Plaintiff is able to maintain work on a sustained basis. 6 Chater, 81 F.3d 821, 833 (9th Cir. 1995) (as amended) (internal citation 7 omitted) ( In evaluating whether the claimant satisfies the disability 8 criteria, the Commissioner must evaluate the claimant's ability to work 9 on a sustained basis. (AR 16-17). See Lester v. Occasional symptom-free periods-and even the 10 sporadic ability to work are not inconsistent with disability. ); see 11 also 20 C.F.R. § 404.1512(a). 12 13 Furthermore, although the April 2010 MRI was taken after the period 14 under consideration by the ALJ, the fact that the Agency subsequently 15 determined that Plaintiff became eligible for disability payments in 16 March 2010 is relevant to the ALJ s initial determination. 17 Astrue, 623 F.3d 1032, 1034 (9th Cir. 2010) (noting that in certain 18 circumstances, an award based on an onset date coming in immediate 19 proximity to 20 administrative scrutiny to determine whether the favorable event should 21 alter the initial, negative outcome on the claim ) (internal quotations 22 and citations omitted). 23 subsequent grant of benefits was based on new evidence not considered 24 by the ALJ as part of the first application [and that this] indicate[d] 25 that further consideration of the factual issues [was] appropriate to 26 determine whether the outcome of the first application should be 27 different. 28 the ALJ s unfavorable decision on August 23, 2010, yet the Agency See Luna v. an earlier denial of benefits is worthy of further In Luna, the Ninth Circuit noted that the (Id. at 1035). Here, the Appeals Council denied review of 9 1 separately determined that Plaintiff was eligible to receive disability 2 payments as of March 25, 2010. 3 the Agency s differing disability decisions within a short overlapping 4 period of time, the Court is unable to establish whether the two 5 determinations are reconcilable or inconsistent. Therefore, remand for 6 further proceedings is an appropriate remedy. See Am. Bird Conservancy 7 v. FCC, 545 F.3d 1190, 1195 n. 3 (9th Cir. 2008) ( The proper remedy for 8 an inadequate record . . . is to remand to the agency for further 9 factfinding. ). 10 (See AR 1-4, Exhibit 1 at 1-2). Given The Court finds that the new evidence is material to a determination of disability. 11 2. 12 Good Cause is Established 13 14 15 To demonstrate good cause, the claimant must demonstrate that the new evidence was unavailable earlier. Mayes, 276 F.3d at 463; see also 16 Burton v. Heckler, 724 F.2d 1415, 1417-18 (9th Cir. 1984) (noting that 17 [t]he good cause requirement often is liberally applied, where . . . 18 there is no indication that a remand for consideration of new evidence 19 will result in prejudice to the Secretary ). 20 21 Here, the additional MRI was performed on April 5, 2010 and 22 therefore could not have been presented to the ALJ prior to his January 23 29, 2010 decision. Moreover, a remand for consideration of the MRI will 24 not cause any prejudice to the Agency. 25 further factfinding is appropriate. 26 // 27 // 28 // 10 Thus, remand to the agency for 1 2 B. The ALJ Failed to Expressly Reject the Third Party Statement for Reasons Germane to the Witness 3 4 Plaintiff contends that the ALJ failed to adequately consider the 5 testimony of Plaintiff s sister, Irene Garcia ( Garcia ). (Complaint 6 Memo. at 8). 7 evaluate the credibility of corroborating testimony by [Garcia] and 8 that the ALJ never intended to consider Ms. Garcia s testimony[] since 9 he propounded hypotheticals to the VE before even hearing from third Specifically, Plaintiff argues that the ALJ failed to 10 party witnesses. (Complaint Memo. at 8, Plaintiff s Reply Brief 11 ( Reply Brief ) at 4). The Court agrees. 12 13 The ALJ found that [Plaintiff s] statements concerning the 14 intensity, persistence and limiting effects of [his] symptoms are not 15 credible to the extent they are inconsistent with the . . . residual 16 function 17 determination 18 consideration of the evidence, but the ALJ did not expressly address 19 Garcia s credibility. 20 briefly in his decision when he noted that [Garcia], with whom 21 [Plaintiff] 22 approximately once per week. 23 [Garcia] testified that certain foods make the [Plaintiff] vomit and 24 afterwards he is pale and sweaty. capacity. (AR regarding does not 16). The Plaintiff s (Id.). live, ALJ stated disability that he [a]fter made a careful The ALJ did mention Garcia s testimony testified that (Id.). she sees [Plaintiff] The ALJ also stated that (Id.). 25 26 The ALJ is required to consider the credibility of lay testimony 27 concerning a plaintiff s ability to work. 28 1113, 1115 (9th Cir. 2009). Bruce v. Astrue, 557 F.3d If an ALJ rejects lay witness testimony, 11 1 the ALJ must provide specific reasons that are germane to each witness 2 whose testimony he rejects. 3 Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)); see also Carmickle v. 4 Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (noting 5 that an ALJ need only provide reasons germane to [the] witness for 6 rejecting lay witness testimony). 7 diagnoses made by lay witnesses because they are beyond the competence 8 of lay witnesses and therefore do not constitute competent evidence. 9 Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (citing 20 C.F.R. Id. (citing Stout v. Comm r, Soc. Sec. An ALJ need not discuss medical 10 § 404.1513(a)). However, lay witness testimony as to a claimant s 11 symptoms or how an impairment affects ability to work is competent 12 evidence, and therefore cannot be disregarded without comment. 13 (internal citations omitted). Id. 14 15 Garcia testified that there s (sic) times when [Plaintiff is] in 16 a high level of pain and that Plaintiff occasionally has problems 17 walking. 18 active[,] but that now his level activity . . . has been . . . really 19 down. 20 Plaintiff having difficulty with his hands and that there s been 21 time[s] when [Plaintiff has] broke[n] a couple of [Garcia s] dishes . 22 . . when [Plaintiff s] hands go numb. (AR 70). (AR 72). Garcia also stated that Plaintiff used to be very In addition, Garcia noted that she has observed (AR 75). 23 24 Here, the ALJ did not expressly reject Garcia s testimony or 25 address her credibility. (See AR 16). 26 relates to the Plaintiff s symptoms it cannot be disregarded without 27 28 12 Because Garcia s testimony 1 comment.4 2 include in the hypothetical the physical manifestations that were 3 described by the witnesses or expressly rejecting the testimony for 4 legitimate reasons, the ALJ erred. Lay testimony as to a claimant's 5 symptoms is competent evidence which the Secretary must take into 6 account 7 testimony, in which case he must give reasons that are germane to each 8 witness. ) (internal citation and quotations omitted). Furthermore, as 9 noted by Plaintiff, the ALJ would have been unable to incorporate the 10 testimony of Garcia into his RFC because the ALJ examined Garcia after 11 presenting the vocational expert with his hypothetical. (See AR 56-75). 12 To the extent that the ALJ rejected Garcia s testimony in forming 13 Plaintiff s RFC, he must give reasons germane to the witness. See Nguyen, 100 F.3d at 1467 (noting that [b]y failing to . . . unless he expressly determines to disregard such 14 15 The Court does not reach the remaining issues because they are not 16 necessary to the resolution 17 proceedings is appropriate where additional proceedings could remedy 18 defects in the Commissioner s decision. 19 1172, 1179 (9th Cir. 2000). 20 incorporate 21 determination 22 factfinding is appropriate. 23 // 24 // Plaintiff s of of the action. Remand for further See Harman v. Apfel, 211 F.3d Because the ALJ was unable to evaluate or additional disability, remand medical evidence to agency the into for his further 25 4 Defendant contends that the ALJ rejected Garcia s testimony 26 because it merely parroted [Plaintiff s] own discredited statements. 27 (Memorandum in Support of Defendant s Answer ( Answer Memo. ) at 6). Yet, in his decision, the ALJ did not expressly reject Garcia s 28 testimony or mention this rationale or any other reason germane to the witness for rejecting her testimony. 13 1 VII. 2 CONCLUSION 3 4 Consistent with the foregoing, IT IS ORDERED that judgment be 5 entered REVERSING the decision of the Commissioner and REMANDING this 6 matter for further proceedings consistent with this decision. 7 FURTHER ORDERED that the Clerk of the Court serve copies of this Order 8 and the Judgment on counsel for both parties. IT IS 9 10 DATED: July 19, 2011 11 12 13 14 15 __________/S/________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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