Calvin Butts v. Michael J Astrue, No. 2:2012cv04999 - Document 18 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi, IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision. (SEE OPINION 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 11 CALVIN BUTTS, 12 Plaintiff, 13 14 v. 15 CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL 1/ SECURITY ADMINISTRATION, 16 Defendant. 17 ) Case No. CV 12-4999 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 Calvin Butts ( Plaintiff ) challenges the Social Security Commissioner s 19 20 ( Defendant ) decision denying his application for disability benefits. Specifically, 21 Plaintiff contends that the Administrative Law Judge ( ALJ ) failed to properly 22 develop the record by not obtaining documents from his treating physician. (Joint 23 Stip. at 3-5, 8.) For the reasons discussed below, the Court agrees with Plaintiff. [T]he ALJ has a special duty to fully and fairly develop the record and to 24 25 assure that the claimant s interests are considered. Smolen v. Chater, 80 F.3d 1273, 26 1288 (9th Cir. 1996) (citing Brown v. Heckler, 713 F.2d 441, 443 (9th Cir.1983)). If 27 28 1/ Carolyn W. Colvin is substituted as the proper defendant herein. See Fed. R. Civ. P. 25(d). 1 the evidence is ambiguous or inadequate to permit a proper evaluation of a 2 claimant s impairments, the ALJ must also conduct an appropriate inquiry into 3 that deficiency. Id. at 1288. 4 Here, the ALJ failed to obtain Plaintiff s only available treatment records, and, 5 as a result, decided the case based solely on the unfavorable opinions of the 6 consultative examiner and the state agency consultant. (AR at 26.) Notably, the 7 ALJ did so even after acknowledging Plaintiff s testimony that he received treatment 8 from Kaiser Permanente. (AR at 26; see AR at 38-39.) 9 Reasoning that Plaintiff was given ample opportunity to submit his medical 10 records, the ALJ appears to place the burden of obtaining evidence on Plaintiff. (AR 11 at 26.) This rationale is misguided, albeit understandable. Plaintiff does have 12 the burden of producing evidence of a disability. Meanel v. Apfel, 172 F.3d 1111, 13 1113 (9th Cir. 1999); (see Joint Stip. at 5-6). But this burden exists vis-a-vis 14 Defendant, and does not absolve the ALJ of his independent duties to develop the 15 record and to assure that Plaintiff s interests are being considered. Armenta v. 16 Astrue, 2012 WL 4512491, at *3 (C.D. Cal. Oct. 1, 2012); see White v. Barnhart, 17 287 F.3d 903, 908 (10th Cir. 2001). 18 Turning then to the ALJ s efforts at developing the record, the Court finds 19 them insufficient. Granted, the state social services agency did make an initial 20 attempt to obtain Plaintiff s records from the Kaiser Permanente facility in Tracy, 21 California. (AR at 170-72.) That facility, however, responded, stating that it did not 22 have Plaintiff s records because Plaintiff is a southern California patient. (AR at 23 173.) Thus, to fulfill his duty, the ALJ should have requested records from Kaiser 24 Permanente s southern California division. No evidence suggests that such an 25 endeavor was made, and thus a finding of error is appropriate.2/ 26 27 2/ This error is particularly significant given the great deference typically 28 afforded to treating opinions. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 2 1 With error established, this Court has discretion to remand or reverse and 2 award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no 3 useful purpose would be served by further proceedings, or where the record has been 4 fully developed, it is appropriate to exercise this discretion to direct an immediate 5 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). 6 But where there are outstanding issues that must be resolved before a determination 7 can be made, or it is not clear from the record that the ALJ would be required to find 8 plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. 9 See id. at 594. 10 Here, the Court cannot determine disability based on the record before it. 11 Therefore, on remand, the ALJ shall seek Plaintiff s treatment records, if there be 12 any, from Kaiser Permanente s offices in southern California. 13 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 14 REVERSING the decision of the Commissioner denying benefits and 15 REMANDING the matter for further administrative action consistent with this 16 decision. 17 18 Dated: March 5, 2013 19 ____________________________________ 20 Hon. Jay C. Gandhi 21 United States Magistrate Judge 22 23 24 25 26 27 28 3

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