Bryant D Nevitt v. Michael J Astrue, No. 5:2012cv00579 - Document 26 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (mz)
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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRYANT D. NEVITT, Plaintiff, 12 13 14 vs. CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) CASE NO. ED CV 12-00579 RZ MEMORANDUM OPINION AND ORDER 17 Plaintiff had a bad back, as reflected in the severe impairments found by the 18 Administrative Law Judge: degenerative disc disease of both the cervical and lumbar 19 spine, and status post diskectomy. [AR 33] Plaintiff s other impairments are not relevant 20 to this appeal. The Administrative Law Judge found that Plaintiff could return to his past 21 relevant work as a manager in the clothing manufacture vocation. [AR 43] The central 22 issue presented by this appeal is when Plaintiff could so return. 23 Plaintiff argues that the evidence showed that he was entitled to a closed 24 period of disability, from the onset of his impairments through the recuperation time after 25 his diskectomy. In this Court, Defendant argues that the Commissioner found that Plaintiff 26 was disabled throughout the period from onset until decision. The Court does not find this 27 argument persuasive. 28 1 Before his surgery, Plaintiff s physician found that the disk problems were 2 quite serious. The doctor characterized Plaintiff s status as totally disabled. [AR 577] 3 That is, in fact, why the doctor recommended surgery. [Id.] Although it is true that the 4 State Worker s Compensation disability scheme is not the same as the Social Security 5 Disability scheme, still from such evidence one might conclude that Plaintiff, at the time 6 of his surgery (and for some time preceding that) was unable to work. This doctor s 7 assessment received a mention in the Administrative Law Judge s decision [AR 41], but 8 the decision contained no evaluation of whether Plaintiff was disabled at that time. 9 The Administrative Law Judge relied heavily on the opinion of his medical 10 expert to reach a decision that Plaintiff was not disabled. Yet, while the medical expert 11 explained the records, he did not analyze them in such a way as to opine as to whether 12 Plaintiff had been disabled for a 12-month period prior to the surgery. In this Court the 13 Commissioner says that the expert s opinion covered the entire period from onset forward, 14 but the Court can find no support for that statement. Under the circumstances, the matter 15 should be remanded for assessment of this issue. Cf. Howell v. Astrue, 248 Fed.Appx 797, 16 2007 WL 2750201 (9th Cir. September 19, 2007). 17 This resolution of the matter makes moot Plaintiff s argument that his due 18 process rights were violated when the Appeals Council sent notice that the record was 19 ready to the wrong attorney, thereby preventing Plaintiff from making his arguments to the 20 Appeals Council. The Court need not and does not rule on Plaintiff s other arguments, but 21 the Administrative Law Judge may feel free to revisit them on remand. 22 IT IS SO ORDERED. 23 24 DATED: March 20, 2013 25 26 27 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 28 -2-
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