Patrick Reilly Moreno v. Michael J Astrue, No. 5:2012cv00211 - Document 20 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 PATRICK REILLY MORENO, Plaintiff, 11 12 13 14 v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 12-211-PJW MEMORANDUM OPINION AND ORDER 16 17 I. 18 INTRODUCTION 19 Before the Court is an appeal of a decision by Defendant Social 20 Security Administration ( the Agency ), denying Plaintiff s 21 applications for disability insurance benefits ( DIB ) and 22 supplemental security income ( SSI ). 23 Administrative Law Judge ( ALJ ) erred when he failed to fully develop 24 the record by obtaining additional medical records. 25 set forth below, the Court concludes that the ALJ erred but that the 26 error was harmless. Plaintiff claims that the For the reasons As such, the Agency s decision is affirmed.1 27 28 1 Carolyn W. Colvin is substituted for Michael J. Astrue as Defendant, pursuant to Fed. Rule Civ. Pro. 25(d). 1 II. 2 SUMMARY OF PROCEEDINGS 3 Plaintiff applied for DIB and SSI in September 2006, alleging 4 that he had been unable to work since September 2003, due to arthritis 5 in his back, a heart condition, stomach problems, carpal tunnel 6 syndrome, and depression. 7 138, 169.) 8 reconsideration. 9 granted a hearing before an ALJ. (Administrative Record ( AR ) 72-76, 79, The Agency denied his applications initially and on (AR 62-71, 79-83.) He then requested and was (AR 85-87.) Plaintiff appeared with 10 counsel and testified at the hearing in February 2010. (AR 24-61.) 11 In April 2010, the ALJ issued a decision denying benefits. 12 19.) 13 (AR 1-6.) (AR 10- Plaintiff appealed to the Appeals Council, which denied review. He then commenced this action. 14 III. 15 ANALYSIS 16 17 A. The ALJ s Development of the Record Plaintiff contends that the ALJ erred by failing to develop the 18 record by obtaining medical records relating to: (1) carpal tunnel 19 syndrome; (2) irritable bowel syndrome; (3) and mitral valve surgery. 20 (Joint Stip. at 4-9.) 21 the ALJ erred but that the error was harmless. 22 For the following reasons, the Court finds that ALJs have a duty to fully and fairly develop the record, which 23 duty is triggered by inadequate or ambiguous evidence that impedes an 24 ALJ s ability to properly evaluate a claim. 25 F.3d 1144, 1150 (9th Cir. 2001); see also 20 C.F.R. §§ 404.1512(e), 26 416.912(e). 27 prejudiced by the ALJ s failure to develop the record. 28 Astrue, 640 F.3d 881, 887 (9th Cir. 2010) ( Where harmfulness of the Tonapetyan v. Halter, 242 The claimant has the burden to prove that he was 2 McLeod v. 1 error is not apparent from the circumstances, the party seeking 2 reversal must explain how the error caused harm. ) (citing Shinseki v. 3 Sanders, 556 U.S. 396, 409 (2009)). 4 Plaintiff never alleged in his application that he suffered from 5 carpal tunnel syndrome or from pain in his hands or wrists. (AR 169, 6 216-28, 232.) 7 tunnel syndrome was mentioned in some of the medical records and that 8 an alleged study had confirmed the presence of carpal tunnel. 9 13.) The ALJ, however, noted in his decision that carpal (AR The ALJ questioned whether such a study had been conducted and 10 noted in his decision that, if it had been, it was not contained in 11 the record. 12 contain positive signs or clinical tests establishing carpal tunnel 13 syndrome and that an orthopedic examination was unremarkable. 14 13.) 15 that Plaintiff suffered from carpal tunnel syndrome. 16 (AR 13.) The ALJ noted that the medical record did not (AR As a result, he concluded that there was no basis for finding (AR 13.) Plaintiff argued in the Joint Stipulation that the ALJ erred in 17 not searching for and finding the study and considering it in his 18 decision. 19 could consider it in evaluating the prejudice to Plaintiff. 20 response, Plaintiff informed the Court that there was no such study. 21 (See January 10, 2013 Reply to Court Order ( Reply ) at 2.) 22 Court concludes that the ALJ did not err in failing to obtain it 23 because the record was not ambiguous or inadequate, see, e.g., Mayes 24 v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001), and, more 25 importantly, the study did not exist. 26 The Court ordered Plaintiff to submit the study so that it In Thus, the Plaintiff raised similar complaints regarding irritable bowel 27 syndrome records. 28 at 2.) He now concedes that no such records exist. (Reply As such, the Court reaches the same conclusion: the ALJ did 3 1 not err in failing to locate additional records because the medical 2 record was not so ambiguous or inadequate as to trigger the need to 3 obtain additional records and because additional records did not 4 exist.2 5 As to Plaintiff s mitral valve surgery, the Court finds that the 6 ALJ s duty to fully and fairly develop the record was triggered when 7 Plaintiff testified (in February 2010) that he had undergone mitral 8 valve surgery in December 2008 and that he had gone to the emergency 9 room twice after the surgery because of chest pain. (AR 42-43.) In 10 his decision, the ALJ noted that Plaintiff had been scheduled to have 11 the surgery in November 2008 and that Plaintiff testified he had 12 undergone the surgery but that there was no record that the surgery 13 actually took place and no record of follow-up treatment or care. 14 (AR 13.) 15 severe, the ALJ relied, at least in part, on the absence of medical 16 records about the surgery and Plaintiff s subsequent treatment. 17 13.) In concluding that Plaintiff s heart condition was not (AR 18 Plaintiff has now produced records, which demonstrate that he did 19 undergo mitral valve surgery in 2008 and that he went to the emergency 20 room thereafter complaining of chest pain.3 The ALJ erred by not 21 22 23 24 25 26 27 28 2 The ALJ rejected Plaintiff s testimony that an X-ray revealed that his bowels were twisted because there was no record that such an X-ray had been taken. (AR 13, 48.) Plaintiff now concedes that there was no X-ray. He contends, however, that an emergency room doctor told him that his intestines were twisted. (Reply at 2.) 3 The Agency suggests that Plaintiff s surgery in December 2008 and subsequent treatment is not relevant to the ALJ s decision because it has no bearing on whether Plaintiff was disabled on December 31, 2008, his date last insured. (Joint Stip. at 9.) The Court disagrees. Plaintiff s heart condition clearly existed prior to his (continued...) 4 1 obtaining these records and addressing them before determining that 2 Plaintiff s heart condition was not a severe impairment. 3 Nevertheless, the ALJ s failure to develop the record did not 4 prejudice Plaintiff.4 5 Plaintiff contends that the residual limitations of his mitral 6 valve surgery prevents him from performing light work, the type of 7 work the ALJ concluded he could perform. 8 However, the additional records that Plaintiff has submitted do not 9 support his argument. (Joint Stip. at 4-5, 8.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 (...continued) December 2008 surgery. (Reply at 15; January 30, 2013 Reply to Court Order ( Supp. Reply ) at 7 (noting Plaintiff had history of heart murmur for the past year ).) Further, Plaintiff has also applied for SSI, which is not dependent on insurance. 4 It bears noting that the ALJ and the claimant are both responsible for ensuring that the record is complete. The Court has outlined the ALJ s duty above, but the claimant has a corresponding duty to perfect the record because he bears the burden of proving his entitlement to benefits, see Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005), and cannot meet that burden if he does not provide the medical records that support his claims. Obviously, there is tension between these two mandates and it is not always clear to the Court which side should be held responsible when records are not included. This case highlights the problem with particularity. Plaintiff argued in the Joint Stipulation that the ALJ erred by failing to acquire medical records relating to carpal tunnel syndrome and irritable bowel syndrome that Plaintiff now concedes did not exist. The ALJ would have been on an impossible quest had he tried to find these records. As this case illustrates, generally speaking, the claimant is better situated to know whether any records are missing and, if so, where they can be found. Further, it seems to make sense that the claimant would be more motivated to find these records because the claimant stands to gain from including them in the file. However, the Court need not attempt to resolve the issue of the conflicting duties in the case at bar because, even assuming that it was the ALJ s obligation to find the records in this case, there was no prejudice. The Court notes, however, that in a different case the issue of who ultimately bears the burden of locating the records may have to be addressed. 5 1 Plaintiff was admitted to the hospital for mitral valve 2 replacement surgery on December 18, 2008. 3 discharged on December 26, 2008, with instructions not to lift more 4 than five pounds or drive for six weeks, i.e., through the beginning 5 of February 2009. 6 Plaintiff could not perform light work. 7 however, that, by March 2, 2009, Plaintiff was walking every day and 8 had no new symptoms. 9 Konchigeri, told him on that date that he was restricted to lifting no (Supp. Reply at 10.) (Reply at 55.) (Supp. Reply at 7.) He was Clearly, for those six weeks, The record establishes, His treating physician, Dr. Ravi 10 more than 25 pounds for the next six months, after which he could 11 perform physical activity as tolerated, and did not assess any other 12 limitations. 13 perform light work. 14 as requiring, among other things, the ability to occasionally lift 20 15 pounds and frequently lift ten pounds). 16 subsequently complained of chest pains on June 9, 2009, it seems to 17 have been an isolated incident, and no additional functional 18 restrictions were imposed. 19 records submitted by Plaintiff suggest that he was precluded from 20 performing light work. (Reply at 57.) Thus, by March 2009, Plaintiff could See 20 C.F.R. § 416.967(b) (defining light work Although Plaintiff (Reply at 99-101.) None of the other (AR 18.) 21 Because the additional medical records submitted by Plaintiff do 22 not undermine the ALJ s decision, Plaintiff has not shown that he was 23 prejudiced by the ALJ s error in failing to consider them. 24 reason, the ALJ s failure to obtain them was harmless.5 For that 25 26 27 28 5 To the extent that Plaintiff challenges the ALJ s residual functional capacity determination with respect to his carpal tunnel syndrome and irritable bowel syndrome based solely on the original record, his claims are rejected. First, Plaintiff has not shown that (continued...) 6 1 IV. 2 CONCLUSION 3 For these reasons, the Agency s decision denying Plaintiff s 4 applications for benefits is affirmed and the case is dismissed with 5 prejudice. 6 IT IS SO ORDERED. 7 DATED: May 23, 2013. 8 9 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 S:\PJW\Cases-Soc Sec\MORENO, 211\Memo Opinion and Order.wpd 25 26 27 28 5 (...continued) the ALJ s consideration of the medical record was erroneous. Second, Plaintiff s alleged limitations are largely based on his own complaints, which the ALJ found were not credible (AR 6-8), a finding Plaintiff has not challenged here. 7
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