David Brown v. Michael J Astrue, No. 5:2010cv00200 - Document 16 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. For the foregoing reasons, the decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion. LET JUDGMENT BE ENTERED ACCORDINGLY. (ag)
Download PDF
<![CDATA[
David Brown v. Michael J Astrue Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DAVID BROWN, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. EDCV 10-200 JC ) ) MEMORANDUM OPINION AND ) ORDER OF REMAND ) ) ) ) ) ) ) ) 18 19 I. On February 18, 2010, plaintiff David Brown (“plaintiff”) filed a Complaint 20 21 22 23 seeking review of the Commissioner of Social Security’s denial of plaintiff’s application for benefits. The parties have consented to proceed before a United States Magistrate Judge. This matter is before the Court on the parties’ cross motions for summary 24 25 26 27 28 SUMMARY judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; March 1, 2010, Case Management Order ¶ 5. /// 1 Dockets.Justia.com 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is REVERSED AND REMANDED for further proceedings 3 consistent with this Memorandum Opinion and Order of Remand because the 4 Administrative Law Judge (“ALJ”) failed adequately to develop the medical 5 record. 6 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 7 DECISION 8 On August 23, 2006, plaintiff filed an application for Supplemental Security 9 Income. (Administrative Record (“AR”) 63, 72, 122). Plaintiff asserted that he 10 became disabled on May 24, 2000, due to chronic scoliosis, back problems, and 11 severe back pain. (AR 63, 72, 122, 131). The ALJ examined the medical record 12 and heard testimony from plaintiff, a medical expert, and a vocational expert on 13 September 23, 2009. (AR 26-55). 14 On November 13, 2009, the ALJ determined that plaintiff was not disabled 15 through the date of the decision. (AR 78). Specifically, the ALJ found: 16 (1) plaintiff suffered from the following severe impairments: scoliosis of the mid17 back and arthritis of the lumbar spine (AR 74); (2) plaintiff’s impairments, 18 considered singly or in combination, did not meet or medically equal one of the 19 listed impairments (AR 74); (3) plaintiff retained the residual functional capacity 20 to perform light work (AR 75);1 (4) plaintiff could not perform his past relevant 21 work (AR 77); and (5) there are jobs that exist in significant numbers in the 22 national economy that plaintiff could perform (AR 77). 23 The Appeals Council denied plaintiff’s application for review. (AR 1-3). 24 /// 25 26 1 Specifically, the ALJ determined that plaintiff could: (i) lift and/or carry 20 pounds 27 occasionally and 10 pounds frequently; (ii) stand and/or walk six hours in an eight-hour workday; 28 (iii) sit without limitation; (iv) occasionally perform postural activities such as balancing, stooping, kneeling, crouching, and crawling; and (v) not climb ladders, ropes or scaffolding. (AR 75). 2 1 III. APPLICABLE LEGAL STANDARDS 2 A. 3 To qualify for disability benefits, a claimant must show that he is unable to Sequential Evaluation Process 4 engage in any substantial gainful activity by reason of a medically determinable 5 physical or mental impairment which can be expected to result in death or which 6 has lasted or can be expected to last for a continuous period of at least twelve 7 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 8 § 423(d)(1)(A)). The impairment must render the claimant incapable of 9 performing the work he previously performed and incapable of performing any 10 other substantial gainful employment that exists in the national economy. Tackett 11 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 12 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 13 sequential evaluation process: 14 (1) 15 16 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant’s alleged impairment sufficiently severe to limit 17 his ability to work? If not, the claimant is not disabled. If so, 18 proceed to step three. 19 (3) Does the claimant’s impairment, or combination of 20 impairments, meet or equal an impairment listed in 20 C.F.R. 21 Part 404, Subpart P, Appendix 1? If so, the claimant is 22 disabled. If not, proceed to step four. 23 (4) Does the claimant possess the residual functional capacity to 24 perform his past relevant work? If so, the claimant is not 25 disabled. If not, proceed to step five. 26 (5) Does the claimant’s residual functional capacity, when 27 considered with the claimant’s age, education, and work 28 experience, allow him to adjust to other work that exists in 3 1 significant numbers in the national economy? If so, the claimant is 2 not disabled. If not, the claimant is disabled. 3 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 4 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 5 The claimant has the burden of proof at steps one through four, and the 6 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 7 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 8 (claimant carries initial burden of proving disability). 9 10 B. Standard of Review Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of 11 benefits only if it is not supported by substantial evidence or if it is based on legal 12 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 13 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 14 (9th Cir. 1995)). Substantial evidence is “such relevant evidence as a reasonable 15 mind might accept as adequate to support a conclusion.” Richardson v. Perales, 16 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 17 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 18 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 19 To determine whether substantial evidence supports a finding, a court must 20 “‘consider the record as a whole, weighing both evidence that supports and 21 evidence that detracts from the [Commissioner’s] conclusion.’” Aukland v. 22 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 23 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 24 or reversing the ALJ’s conclusion, a court may not substitute its judgment for that 25 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 26 /// 27 /// 28 /// 4 1 IV. DISCUSSION 2 A. 3 4 The ALJ Failed Adequately to Develop the Record 1. Pertinent Facts a. The Medical Record 5 The medical record documenting plaintiff’s limitations is not extensive. 6 An October 13, 2006 x-ray of plaintiff’s lumbar spine revealed “minimal 7 degenerative disease particularly in the upper lumber spine associated with a 8 scoliotic curve.” (AR 182). 9 On October 13, 2006, Dr. Jeff Altman, performed a complete orthopedic 10 consultation for plaintiff. (AR 178-81). Dr. Altman noted that his examination of 11 plaintiff revealed “some tenderness” in plaintiff’s back and hip, but otherwise 12 found no “gross functional deficits.” (AR 181). Dr. Altman opined that plaintiff 13 could: (i) push, pull, lift, and carry 20 pounds occasionally and 10 pounds 14 frequently; (ii) walk and stand for six hours in an eight-hour workday; (iii) sit for 15 six hours in an eight-hour workday; (iv) do postural and agility activities on a 16 frequent basis; and (v) do gross and fine manipulation without restriction. (AR 17 181). 18 On October 25, 2006, Dr. M. H. Yee, a state agency reviewing physician, 19 completed a Physical Residual Functional Capacity Assessment, in which the 20 doctor opined, in pertinent part, that plaintiff (i) could lift, carry, push and/or pull 21 20 pounds occasionally and 10 pounds frequently; (ii) could stand and/or walk for 22 about six hours in an eight-hour workday; (iii) could sit for about six hours in an 23 eight-hour workday; (iv) could occasionally climb ramps, stairs, ladders, rope or 24 scaffolds, never balance, and frequently stoop, kneel, crouch or crawl; and (v) had 25 no manipulative limitations. (AR 184-86). 26 On November 25, 2006, plaintiff was treated at the Redlands Community 27 Hospital for acute exacerbation chronic back pain. (AR 195-97). 28 /// 5 1 On March 9, 2009, Dr. Bradshaw completed the statement of provider 2 section on a single page authorization to release medical information. (AR 202). 3 Dr. Bradshaw opined that plaintiff (i) had a medically verifiable condition that 4 would limit his ability to work; (ii) was actively seeking treatment; and (iii) could 5 work only 1-2 hours per day. (AR 202). 6 7 b. Plaintiff’s Statements and Testimony On August 29, 2006 and September 15, 2006, plaintiff completed exertional 8 daily activities questionnaires which each reflect, in pertinent part, that plaintiff 9 (i) experienced pain throughout most of the day; (ii) could not sit or stand for long 10 periods without pain; (iii) could walk only a block without experiencing 11 “incredible pain”; (iv) could do yard work, but only with constant breaks for rest; 12 (v) needed to lay down after working for 10 minutes because of pain; and 13 (vi) needed to rest “[a] couple times a day for [] 1-2 hours.” (AR 154-61). 14 At the administrative hearing on September 23, 2009, plaintiff testified, 15 inter alia, that: (i) he was unable to return to his past work or any other work (AR 16 32); (ii) if he stood for a period of time he needed to lean on something because 17 his back felt like it would “give out,” his leg would go numb, and he would have 18 “incredible” pain (AR 39); (iii) his medication made him sleepy (AR 39-40); and 19 (iv) plaintiff’s doctor told him that she would send him for an MRI of his back 20 once he quit smoking because his “back [was] all screwed up” (AR 42). 21 22 c. Vocational Expert’s Testimony At the administrative hearing, the vocational expert testified, inter alia, that 23 if plaintiff (or a hypothetical person with plaintiff’s characteristics) needed to be 24 “off task approximately 20 percent of the time” due to pain, or needed to take an 25 unscheduled one hour break out of each work day in addition to the lunch break, 26 there would be no work plaintiff could do. (AR 51-54). 27 /// 28 /// 6 1 2 2. Analysis Plaintiff contends that the ALJ failed adequately to develop the record by 3 obtaining medical records from Dr. Tonda D. Bradshaw, an internal medicine 4 physician, who was plaintiff’s treating physician. (Plaintiff’s Motion at 4-6). The 5 Court agrees. 6 An ALJ has an affirmative duty to assist the claimant in developing the 7 record at every step of the sequential evaluation process. Bustamante, 262 F.3d at 8 954; see also Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). The ALJ’s 9 duty exists whether or not plaintiff is represented by counsel. Tonapetyan v. 10 Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). However, when the claimant is 11 unrepresented, the ALJ must be especially diligent in “exploring for all the 12 relevant facts.” Id. (citation omitted). The ALJ’s duty is triggered “when there is 13 ambiguous evidence or when the record is inadequate to allow for proper 14 evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 15 2001) (citation omitted). An ALJ may discharge his duty to develop the record in 16 several ways, including: subpoenaing the plaintiff’s physician, submitting 17 questions to the physician, continuing the hearing, or keeping the record open after 18 the hearing to allow supplementation of the record. Tonapetyan, 242 F.3d at 1150 19 (citations omitted). “[B]ecause treating source evidence (including opinion 20 evidence) is important, if the evidence does not support a treating source’s opinion 21 on any issue reserved to the Commissioner and the adjudicator cannot ascertain 22 the basis of the opinion from the case record, the adjudicator must make ‘every 23 reasonable effort’ to recontact the source for clarification of the reasons for the 24 opinion.” Social Security Ruling (“SSR”) 96-5p. 25 Here, the ALJ rejected Dr. Bradshaw’s opinions, assertedly because the 26 physician “[had] not furnish[ed] her treatment records or clinical or radiological 27 findings” (AR 76), but apparently made no effort to recontact Dr. Bradshaw for 28 copies of plaintiff’s records or other clarification. In fact, the record reflects that 7 1 such medical records may have been available from Dr. Bradshaw – i.e. plaintiff 2 testified that Dr. Bradshaw had “all [of his] medical records.”2 (AR 43). If the 3 ALJ questioned the basis for Dr. Bradshaw’s opinions, the ALJ should have 4 inquired of Dr. Bradshaw before rejecting the treating physician’s opinions. See 5 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (“If the ALJ thought he 6 needed to know the basis of [the treating physicians’] opinions in order to evaluate 7 them, he had a duty to conduct an appropriate inquiry, for example, by 8 subpoenaing the physicians or submitting further questions to them.”) (citations 9 omitted); 20 C.F.R. § 416.912(e)3. Whether Dr. Bradshaw properly based her 10 opinions on sufficient objective clinical findings is a material question, but a 11 12 2 In addition, a Disability Report - Appeal form reflects that plaintiff was treated and also administered a blood test by Dr. Bradshaw. (AR 170, 172). 13 3 20 C.F.R § 416.912(e) provides the following with respect to the Social Security 14 Administration’s procedures for recontacting medical sources: 15 16 17 When the evidence we receive from your treating physician or psychologist or other medical source is inadequate for us to determine whether you are disabled, we will need additional information to reach a determination or a decision. To obtain the information, we will take the following actions. 18 19 20 21 22 23 24 25 26 27 28 (1) We will first recontact your treating physician or psychologist or other medical source to determine whether the additional information we need is readily available. We will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques. We may do this by requesting copies of your medical source's records, a new report, or a more detailed report from your medical source, including your treating source, or by telephoning your medical source. In every instance where medical evidence is obtained over the telephone, the telephone report will be sent to the source for review, signature and return. (2) We may not seek additional evidence or clarification from a medical source when we know from past experience that the source either cannot or will not provide the necessary findings. 8 1 question that the ALJ should have afforded Dr. Bradshaw an opportunity to 2 answer and explain. The Court cannot find such an error harmless. Dr. Bradshaw 3 opined that plaintiff was able to work only one to two hours a day – a limitation 4 that, in light of testimony from plaintiff and the vocational expert, suggests a 5 finding of “disabled” in plaintiff’s case. 6 V. CONCLUSION4 7 For the foregoing reasons, the decision of the Commissioner of Social 8 Security is reversed in part, and this matter is remanded for further administrative 9 action consistent with this Opinion.5 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 DATED: October 6, 2010 12 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 4 24 25 26 27 28 The Court need not, and has not adjudicated plaintiff’s other challenge to the ALJ’s decision except insofar as to determine that a reversal and remand for immediate payment of benefits would not be appropriate. 5 When a court reverses an administrative determination, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). 9
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
