Valerie Romero Torres v. Michael J Astrue, No. 2:2013cv00461 - Document 18 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS RECOMMENDED THAT the District Court issue an Order: (1) ACCEPTING and ADOPTING this Report and Recommendation; (2) REVERSING the decision of the Commissioner denying benefits; and (3) REMANDING the matter for further administrative action consistent with this decision. (See Order for details) (bem)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 VALERIE ROMERO TORRES, 12 Plaintiff, 13 14 v. 15 CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL 1/ SECURITY ADMINISTRATION, 16 Defendant. 17 ) Case No. CV 13-0461 MWF (JCG) ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 Valerie Romero Torres ( Plaintiff ) challenges the Social Security 19 20 Commissioner s decision denying her application for disability benefits. Plaintiff 21 contends, among other things, that the ALJ failed to consider the opinion of 22 Plaintiff s treating physician in accordance with the Court s remand order. (See 23 Joint Stip. at 7-12, 19-21.) Specifically, Plaintiff argues that the ALJ reported in 24 his decision that Dr. Hla Hla Yee was not a licensed doctor and he did not need to 25 ascribe any weight to her opinion [when, in fact,] [s]he is licensed. (Joint Stip. at 726 8; see Administrative Record ( AR ) at 393.) 27 28 1/ Carolyn W. Colvin is substituted as the proper defendant herein. See Fed. R. Civ. P. 25(d). 1 For the reasons discussed below, the Court recommends that the 2 Commissioner s decision denying benefits be REVERSED and this matter 3 REMANDED for further proceedings. 4 A. The ALJ Improperly Rejected Dr. Yee s Opinion 5 Under the regulations, if a treating physician s medical opinion is supported 6 by medically acceptable diagnostic techniques and is not inconsistent with other 7 substantial evidence in the record, the treating physician s opinion is given 8 controlling weight. Hohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) 9 (citing 20 C.F.R. § 404.1527(d)(2)). [If] the treating doctor s opinion is 10 contradicted by another doctor, the Commissioner may not reject this opinion 11 without providing specific and legitimate reasons supported by substantial 12 evidence in the record for so doing. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 13 1995) (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). Further, 14 even [i]f the treating physician s medical opinion is inconsistent with other 15 substantial evidence in the record, [t]reating source medical opinions are still 16 entitled to deference and must be weighted using all the factors provided in 20 17 C.F.R. [§ ] 404.1527. Hohan, 146 F.3d at 1202 (citations omitted). Here, the ALJ improperly rejected Dr. Yee s opinion because he erroneously 18 19 found that Dr. Yee is not a licensed physician. (See AR at 393.) Specifically, in his 20 opinion, the ALJ wrote, Dr. Yee is not a licensed physician. The Medial Board of 21 California has no record of Dr. Yee s license to practice medicine. Therefore I give 22 no weight to Dr. Yee s findings that the claimant has marked mental limitations. 23 (Id.) The ALJ, however, is mistaken. Dr. Yee is Board Certified in Psychiatry in the 24 State of California.2/ (Joint Stip. at 8.) She carries a current Physician and Surgeon 25 2/ The Court takes judicial notice that Dr. Yee is licenced as a matter of public record. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) ( a court 27 may take judicial notice of matters of public record ) (citations omitted). The Court 28 confirmed Dr. Yee s license on the California Department of Consumer Affairs 26 2 1 A license, number 73644. (Id.) Because the ALJ incorrectly found that Dr. Yee 2 lacked medical credentials, he improperly discredited her opinion. 3 Further, the ALJ s error was not harmless. The Commissioner argues that the 4 error was, in fact, harmless because the ALJ found that Dr. Yee s opinion was 5 inconsistent with the overall medical record and did not warrant controlling 6 weight. (Joint Stip. at 19, AR at 393.) However, the ALJ did not provide a 7 specific and legitimate reason for giving no weight to Dr. Yee s opinion. See 8 Lester, 81 F.3d at 830. Adjudicators must remember that a finding that a treating 9 source medical opinion is inconsistent with the other substantial evidence in the case 10 record means only that the opinion is not entitled to controlling weight, not that the 11 opinion should be rejected. Holohan, 246 F.3d at 1202 (citations omitted). The 12 ALJ committed reversible error by rejecting Dr. Yee s opinion in its entirety. 13 B. Remand is Warranted 14 This Court has discretion to remand or reverse and award benefits. McAllister 15 v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989, as amended Oct. 19, 1989). Where no 16 useful purpose would be served by further proceedings, or where the record has been 17 fully developed, it is appropriate to exercise this discretion to direct an immediate 18 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); 19 Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000, as amended May 4, 2000), 20 cert. denied, 531 U.S. 1038 (2000). Where there are outstanding issues that must be 21 resolved before a determination can be made, and it is not clear from the record that 22 the ALJ would be required to find plaintiff disabled if all the evidence were properly 23 evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman, 211 24 F.3d at 1179-80. 25 Here, remand is recommended because, as discussed above, the ALJ failed to 26 27 website. See https://www.breeze.ca.gov/datamart/mainMenu.do (last visited Oct. 30, 28 2013). 3 1 properly evaluate Dr. Yee s opinion.3/ 2 C. Recommendation 3 Based on the foregoing, IT IS RECOMMENDED THAT the District Court 4 issue an Order: 5 (1) ACCEPTING and ADOPTING this Report and Recommendation; 6 (2) REVERSING the decision of the Commissioner denying benefits; and 7 (3) REMANDING the matter for further administrative action consistent with 8 this decision. 9 10 Dated: November 6, 2013 11 ____________________________________ 12 Hon. Jay C. Gandhi United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3/ In light of the Court s remand instructions, it is unnecessary to address 28 Plaintiff s remaining contention. (See Joint Stip. at 4-14.) 4

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