Dominic M Debello v. Michael J Astrue, No. 5:2009cv00444 - Document 15 (C.D. Cal. 2009)

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 document for further details.) (pcl)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 13 14 15 16 17 DOMINIC DEBELLO, ) ) Plaintiff, ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner, Social Security ) Administration, ) ) Defendant. ) ) No. EDCV 09-444 CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned Magistrate Judge. 21 review of the Commissioner s denial of disability benefits. 22 discussed below, the court finds that the Commissioner s decision 23 should be reversed and this matter remanded for further proceedings. I. 24 25 Plaintiff seeks As BACKGROUND Plaintiff Dominic Debello was born on October 9, 1959, and was 26 forty-seven years old on the date he last met the insured status 27 requirements of the Social Security Act. [Administrative Record ( AR ) 28 7, 117.] Plaintiff has a high school education and past relevant work 1 1 experience as a plumber, heating and air conditioning. [AR 14.] 2 Plaintiff alleges disability on the basis of herniated and bulging 3 discs in his lower back. [AR 52.] 4 5 II. PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on February 27, 2009, and filed 6 on March 6, 2009. On August 7, 2009, Defendant filed an Answer and 7 Plaintiff s Administrative Record ( AR ). 8 parties filed their Joint Stipulation ( JS ) identifying matters not 9 in dispute, issues in dispute, the positions of the parties, and the 10 relief sought by each party. 11 On October 20, 2009, the submission without oral argument. 12 13 III. This matter has been taken under PRIOR ADMINISTRATIVE PROCEEDINGS Plaintiff applied for a period of disability and disability 14 insurance benefits ( DIB ) on October 31, 2006, alleging disability 15 since May 31, 2004. 16 eligibility is September 30, 2007. [Id.] 17 denied initially and on reconsideration, Plaintiff requested an 18 administrative hearing, which was held on August 15, 2008, before 19 Administrative Law Judge ( ALJ ) Lowell Fortune. [AR 21.] 20 appeared with counsel, and testimony was taken from Plaintiff, medical 21 expert Samuel Landau, and vocational expert Sandra Fioretti. [AR 22.] 22 The ALJ denied benefits in a decision issued on September 16, 2008. 23 [AR 7-16.] 24 2009, the ALJ s decision became the Commissioner s final decision. 25 [AR 1-3.] 26 27 28 [AR 7.] Plaintiff s date last insured for DIB After the application was Plaintiff When the Appeals Council denied review on February 4, IV. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the Commissioner s decision to deny benefits. 2 The Commissioner s (or 1 ALJ s) findings and decision should be upheld if they are free of 2 legal error and supported by substantial evidence. 3 court determines that a finding is based on legal error or is not 4 supported by substantial evidence in the record, the court may reject 5 the finding and set aside the decision to deny benefits. 6 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 7 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 8 F.3d 1157, 1162 (9th Cir. 9 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 10 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 11 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 12 However, if the See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a 13 preponderance. Reddick, 157 F.3d at 720. 14 which a reasonable person might accept as adequate to support a 15 conclusion. 16 a finding, a court must review the administrative record as a whole, 17 weighing both the evidence that supports and the evidence that 18 detracts from the Commissioner s conclusion. 19 can reasonably support either affirming or reversing, the reviewing 20 court may not substitute its judgment for that of the Commissioner. 21 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. It is relevant evidence To determine whether substantial evidence supports V. 22 Id. If the evidence DISCUSSION 23 A. THE FIVE-STEP EVALUATION 24 To be eligible for disability benefits a claimant must 25 demonstrate a medically determinable impairment which prevents the 26 claimant from engaging in substantial gainful activity and which is 27 expected to result in death or to last for a continuous period of at 28 least twelve months. Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 3 1 721; 42 U.S.C. § 423(d)(1)(A). 2 Disability claims are evaluated using a five-step test: 3 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 4 5 6 7 8 9 10 11 12 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 13 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 14 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 15 C.F.R. § 404.1520, § 416.920. If a claimant is found disabled or 16 not disabled at any step, there is no need to complete further 17 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 18 Claimants have the burden of proof at steps one through four, 19 subject to the presumption that Social Security hearings are non20 adversarial, and to the Commissioner s affirmative duty to assist 21 claimants in fully developing the record even if they are represented 22 by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 23 1288. If this burden is met, a prima facie case of disability is 24 made, and the burden shifts to the Commissioner (at step five) to 25 26 27 28 4 1 prove that, considering residual functional capacity ( RFC )1, age, 2 education, and work experience, a claimant can perform other work 3 which is available in significant numbers. 4 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098, 5 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 6 Here, the ALJ found that plaintiff had not engaged in substantial 7 gainful activity during the period from his alleged disability onset 8 date (May 31, 2004) to the date last insured (September 30, 2007) 9 (step one); that plaintiff had severe impairments, namely morbid 10 obesity and a lumbar spine disorder (step two); and that plaintiff did 11 not have an impairment or combination of impairments that met or 12 equaled a listing (step three). 13 Plaintiff had an RFC for a limited range of light work, including the 14 ability to lift twenty pounds occasionally and ten pounds frequently; 15 stand and walk for one to three blocks at a time for two hours out of 16 an eight-hour workday; sit for six hours in an eight-hour workday; 17 have the option to sit/stand every two hours for up to three minutes 18 so he can stand and stretch; occasionally climb ramps and stairs; 19 restricted from climbing ladders, ropes and scaffolds; occasionally 20 bend and stoop; restricted from crouching or kneeling; walk with an 21 assistive device as needed to walk on uneven terrain if he is walking 22 more than two blocks; restricted from work at unprotected heights; [AR 9.] The ALJ determined that 23 1 24 25 26 27 28 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 work in an air-conditioned workplace. [AR 10.] This RFC precluded 2 Plaintiff from returning to his past relevant work (step four). [AR 3 14.] 4 RFC could perform other jobs in the national economy, such as bench 5 assembler, assembler of buttons and notions, and optical assembler 6 (step five). [AR 15.] 7 as defined by the Social Security Act. [Id.] The vocational expert testified that a person with Plaintiff s Accordingly, Plaintiff was found not disabled 8 C. 9 The parties Joint Stipulation raises four disputed issues: 10 1. Whether the ALJ properly considered Plaintiff s morbid obesity; 11 12 ISSUES IN DISPUTE 2. Whether the ALJ properly considered the opinions of Plaintiff s treating physician; 13 14 3. Whether the ALJ properly developed the record; and 15 4. Whether the ALJ properly considered Plaintiff s medication side effects. 16 17 [JS 2-3.] 18 As discussed below, Issue Three is dispositive. 19 D. 20 In Issue Three, Plaintiff contends that the ALJ did not properly DR. TYLEE 21 develop the record as to the opinion of his treating physician, Dr. 22 Lafayette Tylee. [JS 16-18.] 23 Background 24 The record indicates that Plaintiff stated that his symptoms 25 began in approximately 1999, and that his symptoms worsened so that he 26 stopped working as a plumber in 2001. [AR: Exh. 4F at 1.] 27 was predominately in the thoracolumbar area and has been quite 28 debilitating. [Id.] The pain Plaintiff alleges a disability onset date of 6 1 May 31, 2004. 2 On July 12, 2007, Dr. Tylee completed a Physical Capacities 3 Evaluation for Plaintiff that stated a diagnosis of low back pain and 4 degenerative disc disease. [AR: Exh. 7F.] 5 the questionnaire stated, among other things, that Plaintiff should be 6 limited to two hours of sitting, two hours of standing, and one hour 7 of walking at one time during an eight-hour workday; three total hours 8 of sitting, four total hours of standing, and two total hours of 9 walking in an eight-hour workday; that Plaintiff can occasionally lift Dr. Tylee s responses to 10 and carry ten pounds; that Plaintiff s signs and symptoms included 11 substance dependence, impaired sleep, depression, anxiety, difficulty 12 thinking or concentrating, and emotional withdrawal or isolation; and 13 that the impairment lasted or could be expected to last for at least 14 twelve months. [Id.] 15 On July 31, 2007, Dr. Tylee completed a Physical Residual 16 Functional Capacity [ PRFC ] Questionnaire. [AR: Exh. 10F.] 17 stated that Plaintiff s first date of treatment was on January 10, 18 2007, that the most recent treatment occurred on July 12, 2007, and 19 that treatment occurred monthly. [Id. at 1.] 20 Plaintiff s level of pain was 7-9" on a scale of zero to ten. [Id.] 21 Dr. Tyree stated that Plaintiff should be limited to three hours of 22 sitting and three hours of standing/walking in an eight-hour workday, 23 and that Plaintiff should be limited to lifting, at most, five to ten 24 pounds occasionally. [Id. at 2.] In the comments section of the 25 questionnaire, Dr. Tylee wrote, in part, that Plaintiff has chronic 26 moderate to severe pain (low back) over a very long time (>10 years) 27 and is currently dependent and a chronic user of anxiety and narcotic 28 medications which contribute to his suboptimal functioning. [Id. at 7 Dr. Tylee Dr. Tylee estimated that 1 5.] 2 On October 10, 2007, Dr. Tylee completed another PRFC 3 Questionnaire. [AR 68-72.] Dr. Tylee stated that Plaintiff s first 4 date of treatment was on January 10, 2007, that the most recent 5 treatment occurred on October 9, 2007, and that treatment occurred 6 monthly. [AR 68.] 7 was 7-9" on a scale of zero to ten, and that his level of fatigue was 8 seven. [Id.] 9 as the prior questionnaire. [AR 69.] Dr. Tylee estimated that Plaintiff s level of pain Dr. Tyree gave the same postural and lifting limitations In the comments section of the 10 questionnaire, Dr. Tylee reiterated Plaintiff s lower back problems 11 and stated, in part, that Plaintiff is coming to our clinic for pain 12 management, but his inability to function physically, emotionally and 13 cognitively has made him disabled at this time. [AR 72.] 14 The Commissioner s Evaluation 15 In the administrative decision, the ALJ decided not to attach 16 great weight to the two evaluations completed by Dr. Tyree in July 17 2007. 18 The ALJ cited several reasons to reject the July 2007 opinions, 19 including, in pertinent part, that no treatment notes were attached to 20 the opinions, and that the opinions were not supported by any other 21 treatment notes in the file. [AR 13.] 22 light of the fact that the record indicates that Dr. Tyree had a prior 23 treatment relationship with Plaintiff, the ALJ should have made 24 reasonable attempts to obtain missing medical records from Dr. Tylee 25 before rejecting his opinions. [JS 17.] 26 27 28 The ALJ did not address the October 10, 2007 questionnaire. Plaintiff contends that, in Discussion The ALJ has a special duty to fully and fairly develop the record and to assure that the claimant s interests are considered 8 1 . . . even when the claimant is represented by counsel. Celaya v. 2 Halter, 332 F.3d 1177, 1183 (9th Cir. 2003)(ellipsis in original) 3 (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir.1983); Smolen v. 4 Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); see also Widmark v. 5 Barnhart, 454 F.3d 1063, 1069 (9th Cir. 2006)(ALJ has a duty to 6 develop the record where there is a gap in the medical evidence). 7 This duty requires, among other things, that the ALJ make every 8 reasonable effort to obtain from the individual s treating physician 9 . . . all medical evidence, including diagnostic tests, necessary in 10 order to properly make [a disability] determination, prior to 11 evaluating medical evidence obtained from any other source on a 12 consultative basis. 13 404.1512(d)(1). 14 42 U.S.C. § 423(d)(5)(B); see also 20 C.F.R. § In this case, because it was evident that Plaintiff s existing 15 record did not contain treating medical evidence referenced elsewhere 16 in the record, the ALJ should have made additional reasonable efforts 17 to develop the evidence. 18 Tylee indicate that there was an earlier treatment relationship dating 19 back to January 10, 2007, yet the record does not contain any 20 treatment records from Dr. Tylee. 21 that the Commissioner made an initial request for treatment records 22 from Dr. Tylee s clinic in Victorville, but it appears that the 23 request was returned undelivered, and it did not cover the later 24 stages of treatment; this does not appear to be, based on the existing 25 record, a reasonable effort to develop the evidence pursuant to the 26 Commissioner s regulations. [JS 19; AR 19-20.] 27 404.1512(d)(1) ( Every reasonable effort means that we will make an 28 initial request for evidence from your medical source and, at any time The two PRFC questionnaires completed by Dr. Defendant cites a record indicating 9 See 20 C.F.R. § 1 between 10 and 20 calendar days after the initial request, if the 2 evidence has not been received, we will make one followup request to 3 obtain the medical evidence necessary to make a determination ). 4 Defendant further argues that Plaintiff and his counsel had 5 several opportunities to submit evidence from Dr. Tylee, and the 6 record indicates that they did not make a reasonable effort to do so. 7 [JS 19-20.] 8 shares in the burden of developing the record is well-taken, see 20 9 C.F.R. § 404.1512(c), it is also well-settled that the Commissioner is Although Defendant s apparent argument that the claimant 10 not a mere umpire in the proceeding and has a special duty to 11 develop the record fully and fairly to assure that the claimant s 12 interests are considered. 13 Based on the circumstances of this case, particularly the clear 14 indications that the record is incomplete, remand for further 15 development of the record is appropriate. See Widmark v. Barnhart, 454 F.3d at 1068. 16 E. REMAND FOR FURTHER PROCEEDINGS 17 The decision whether to remand for further proceedings is within 18 the discretion of the district court. 19 1175-1178 (9th Cir. 2000). 20 further proceedings, or where the record has been fully developed, it 21 is appropriate to exercise this discretion to direct an immediate 22 award of benefits. 23 remand for further proceedings turns upon their likely utility). 24 However, where there are outstanding issues that must be resolved 25 before a determination can be made, and it is not clear from the 26 record that the ALJ would be required to find the claimant disabled if 27 all the evidence were properly evaluated, remand is appropriate. 28 Here, as set out above, outstanding issues remain before a finding of Harman v. Apfel, 211 F.3d 1172, Where no useful purpose would be served by Harman, 211 F.3d at 1179 (decision whether to 10 Id. 1 disability can be made.2 2 Accordingly, remand is appropriate. 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 Sentence 6 Four of 42 U.S.C. § 405(g), for further proceedings as discussed 7 above. 8 9 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 10 11 12 13 DATED: November 30, 2009 ____________/S/__________________ CARLA M. WOEHRLE United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 None of the remaining claims raised by Plaintiff in the Joint Stipulation clearly directs a finding of disability on the basis of the current record. 11

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