Keith B Gervais v. Michael J Astrue, No. 5:2012cv01115 - Document 15 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER AND REMANDING FOR FURTHER PROCEEIDNGS by Magistrate Judge Jean P Rosenbluth. (twdb)

Download PDF

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 KEITH B. GERVAIS, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security,1 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 12-1115-JPR MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS 16 17 I. 18 PROCEEDINGS Plaintiff seeks review of the Commissioner s final decision 19 denying his application for Social Security Supplemental Security 20 Income benefits ( SSI ). The parties consented to the 21 jurisdiction of the undersigned U.S. Magistrate Judge pursuant to 22 28 U.S.C. § 636(c). This matter is before the Court on the 23 parties Joint Stipulation, filed March 27, 2013, which the Court 24 has taken under submission without oral argument. For the 25 26 1 On February 14, 2013, Colvin became the Acting 27 Commissioner of Social Security. Pursuant to Federal Rule of Civil Procedure 25(d), the Court therefore substitutes Colvin for Michael 28 J. Astrue as the proper Respondent. 1 1 reasons stated below, the Commissioner s decision is reversed and 2 this matter is remanded for further proceedings. 3 II. BACKGROUND 4 Plaintiff was born on May 11, 1970, and has a high school 5 education. (Administrative Record ( AR ) 42, 137.) He 6 previously worked as a construction laborer, farm worker, and 7 tree trimmer. 8 (AR 152, 201.) Plaintiff filed an application for SSI on September 30, 9 2008.2 (AR 137-43.) He alleged that he had been unable to work 10 since June 1, 2008, because of schizophrenia, manic depression, 11 psychosis, and tactile and auditory hallucinations. 12 151.) (AR 137, His application was denied initially, on January 29, 2009 13 (AR 76-79), and upon reconsideration, on June 9 (AR 74-75). 14 On July 21, 2009, Plaintiff requested a hearing before an 15 Administrative Law Judge ( ALJ ). (AR 89.) A hearing was held 16 on July 7, 2010, at which Plaintiff, who was represented by 17 counsel, appeared and testified. (AR 34-73.) Medical Expert Dr. 18 Joseph Malancharuvil and a vocational expert ( VE ) also 19 testified. (Id.) In a written decision issued on August 17, 20 2010, the ALJ determined that Plaintiff was not disabled. 21 15-33.) (AR On September 22, 2010, Plaintiff requested review of the 22 ALJ s decision and submitted additional evidence to the Appeals 23 Council; on April 6, 2012, the Appeals Council incorporated the 24 additional evidence into the record and denied review. (AR 1-5.) 25 26 2 Plaintiff also filed an SSI application on November 30, 27 2007, which was denied at the initial level on March 27, 2008. (See AR 19.) Plaintiff apparently did not request review of that 28 decision. (See id.) 2 1 This action followed. 2 III. STANDARD OF REVIEW 3 Pursuant to 42 U.S.C. § 405(g), a district court may review 4 the Commissioner s decision to deny benefits. The ALJ s findings 5 and decision should be upheld if they are free of legal error and 6 supported by substantial evidence based on the record as a whole. 7 § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 8 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 9 742, 746 (9th Cir. 2007). Substantial evidence means such 10 evidence as a reasonable person might accept as adequate to 11 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 12 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 13 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 14 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 15 882 (9th Cir. 2006)). To determine whether substantial evidence 16 supports a finding, the reviewing court must review the 17 administrative record as a whole, weighing both the evidence that 18 supports and the evidence that detracts from the Commissioner s 19 conclusion. 20 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 21 or reversing, the reviewing court may not substitute its 22 judgment for that of the Commissioner. Id. at 720-21. 23 IV. THE EVALUATION OF DISABILITY 24 People are disabled for purposes of receiving Social 25 Security benefits if they are unable to engage in any substantial 26 gainful activity owing to a physical or mental impairment that is 27 expected to result in death or which has lasted, or is expected 28 to last, for a continuous period of at least 12 months. 3 42 1 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 2 (9th Cir. 1992). 3 A. 4 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 5 assessing whether a claimant is disabled. 20 C.F.R. 6 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 7 1995) (as amended Apr. 9, 1996). In the first step, the 8 Commissioner must determine whether the claimant is currently 9 engaged in substantial gainful activity; if so, the claimant is 10 not disabled and the claim must be denied. § 416.920(a)(4)(i). 11 If the claimant is not engaged in substantial gainful activity, 12 the second step requires the Commissioner to determine whether 13 the claimant has a severe impairment or combination of 14 impairments significantly limiting his ability to do basic work 15 activities; if not, the claimant is not disabled and the claim 16 must be denied. § 416.920(a)(4)(ii). If the claimant has a 17 severe impairment or combination of impairments, the third step 18 requires the Commissioner to determine whether the impairment or 19 combination of impairments meets or equals an impairment in the 20 Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 21 404, Subpart P, Appendix 1; if so, disability is conclusively 22 presumed and benefits are awarded. § 416.920(a)(4)(iii). If the 23 claimant s impairment or combination of impairments does not meet 24 or equal an impairment in the Listing, the fourth step requires 25 the Commissioner to determine whether the claimant has sufficient 26 27 28 4 1 residual functional capacity ( RFC )3 to perform his past work; 2 if so, the claimant is not disabled and the claim must be denied. 3 § 416.920(a)(4)(iv). The claimant has the burden of proving that 4 he is unable to perform past relevant work. 5 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 6 disability is established. Id. If that happens or if the 7 claimant has no past relevant work, the Commissioner then bears 8 the burden of establishing that the claimant is not disabled 9 because he can perform other substantial gainful work available 10 in the national economy. § 416.920(a)(4)(v). That determination 11 comprises the fifth and final step in the sequential analysis. 12 § 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 13 A claimant whose alcoholism or drug addiction is a 14 contributing factor material to a determination of disability is 15 not entitled to Social Security disability benefits. See 42 16 U.S.C. § 423(d)(2)(C) ( An individual shall not be considered to 17 be disabled for purposes of this subchapter if alcoholism or drug 18 addiction would . . . be a contributing factor material to the 19 Commissioner s determination that the individual is disabled. ); 20 see also 20 C.F.R. § 416.935(a);4 Ball v. Massanari, 254 F.3d 21 817, 824 (9th Cir. 2001). When the claimant has a history of 22 drug or alcohol abuse, the five-step sequential evaluation must 23 3 RFC is can do despite existing 24 and nonexertionalwhat a claimant 20 C.F.R. § 416.945; seeexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 25 26 27 28 4 20 C.F.R. § 416.935(b)(1) further provides that [t]he key factor we will examine in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether we would still find you disabled if you stopped using drugs or alcohol. 5 1 first be conducted without separating out the impact of 2 alcoholism or drug addiction. Bustamante v. Massanari, 262 F.3d 3 949, 955 (9th Cir. 2001); see also Parra v. Astrue, 481 F.3d 742, 4 748 (9th Cir. 2007). If the ALJ finds that the claimant is not 5 disabled under the five-step inquiry, then the claimant is not 6 entitled to benefits and there is no need to proceed with the 7 analysis under 20 C.F.R. § 416.935. If, however, after 8 conducting the five-step inquiry, the ALJ concludes that the 9 claimant is disabled and medical evidence exists of drug 10 addiction or alcoholism, then it must be determined whether the 11 claimant would still be found disabled if he stopped using 12 alcohol or drugs. 13 § 416.935). Bustamante, 262 F.3d at 955 (citing 20 C.F.R. At this stage, the claimant bears the burden of 14 proving that his alcoholism or drug addiction is not a 15 contributing factor material to his disability determination. 16 Ball, 254 F.3d at 822-23; see also Sousa v. Callahan, 143 F.3d 17 1240, 1245 (9th Cir. 1998) (remanding to give claimant 18 opportunity to present evidence relevant to this issue). 19 B. 20 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 21 any substantial gainful activity since September 30, 2008. 22 21.) (AR At step two, the ALJ concluded that Plaintiff had the 23 severe impairments of substance induced psychotic disorder with 24 schizoaffective features; personality disorder not otherwise 25 specified; and polysubstance abuse, amphetamine in early 26 remission for 8 months and alcohol abuse with intermittent use. 27 (Id. (citation omitted).) At step three, the ALJ determined that 28 Plaintiff s impairments, including the substance use disorders, 6 1 met section 12.02(c)(2) of the Listing, but if Plaintiff stopped 2 the substance use his impairments would not meet or equal any 3 listed impairments. (AR 22.) At step four, the ALJ made the 4 following finding: 5 If the claimant stopped the substance use, the claimant 6 would have the residual functional capacity to perform a 7 full range of work at all exertional levels but with the 8 following nonexertional limitations: [sic] hand packager, 9 DOT 920.587-018, . . .; industrial cleaner, DOT 381.687- 10 018 . . .; and small products assembler II, DOT 739.687- 11 030 . . . . 12 (AR 23.) The ALJ found that if Plaintiff stopped substance use 13 he would be unable to perform his past relevant work. (AR 28.) 14 Based on the VE s testimony, however, the ALJ found that if 15 Plaintiff stopped substance use he could perform the jobs of hand 16 packager, industrial cleaner, and small-products assembler. 17 28-29.) (AR Thus, the ALJ found that Plaintiff s substance use was a 18 contributing factor material to the determination of disability 19 under 20 C.F.R. § 416.935, and that if Plaintiff stopped 20 substance use he would not be disabled. (AR 29.) 21 V. DISCUSSION 22 Plaintiff argues that the ALJ erred in the following ways: 23 (1) failing to identify Plaintiff s RFC in the written decision; 24 (2) relying on the consultative examination report of Dr. 25 Romulado Rodriguez because Dr. Rodriguez was on probation before 26 the state medical board at the time he evaluated Plaintiff; and 27 (3) evaluating the opinions of treating physician Dr. Christopher 28 Fichtner and the other medical evidence of record. 7 (J. Stip. at 1 4.)5 Because the ALJ erred in her consideration of the medical 2 evidence, her decision must be reversed and this matter remanded 3 for further proceedings. 4 A. 5 6 The ALJ s Evaluation of Dr. Malancharuvil s Testimony Was Not Consistent with the Record Plaintiff challenges the ALJ s evaluation of the medical 7 evidence. (See J. Stip. at 16-25, 31-32.) Specifically, 8 Plaintiff challenges the ALJ s rejection of the opinions of his 9 treating physician, Dr. Fichtner, in favor of the testimony of 10 Dr. Malancharuvil and the opinions of consulting doctors 11 Rodriguez and Reynald Abejuela. (Id.) Because the ALJ erred in 12 her assessment of Dr. Malancharuvil s testimony, which provided 13 the basis for much of her decision, reversal is warranted on this 14 basis. 15 16 1. Applicable law Under 42 U.S.C. § 423(d)(2)(C), a claimant cannot receive 17 disability benefits if alcoholism or drug addiction would . . . 18 be a contributing factor material to the determination that the 19 individual is disabled. The purpose of the statute is to 20 discourage alcohol and drug abuse, or at least not to encourage 21 it with a permanent government subsidy. Ball, 254 F.3d at 824. 22 Under the implementing regulations, the ALJ must conduct a drug 23 abuse and alcoholism analysis ( DAA analysis ) by determining 24 which of the claimant s disabling limitations would remain if the 25 claimant stopped using drugs or alcohol. 20 C.F.R. § 416.935(b). 26 27 28 5 The Court addresses the issues raised in the Joint Stipulation in an order different from that used by the parties, to avoid repetition and for other reasons. 8 1 If the remaining limitations would still be disabling, then the 2 claimant s drug addiction or alcoholism is not a contributing 3 factor material to his disability. If the remaining limitations 4 would not be disabling, then the claimant s substance abuse is 5 material and benefits must be denied. Id. Plaintiff bears the 6 burden of proving that drug or alcohol addiction is not a 7 contributing factor material to the finding of disability. 8 Parra, 481 F.3d at 748. 9 An ALJ has an independent duty to fully and fairly develop 10 the record and to assure that the claimant s interests are 11 considered. Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 12 1996) (internal quotation marks and citation omitted). 13 true even if the claimant is represented by counsel. 14 v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003). This is See Celaya The ALJ s duty 15 to develop the record is triggered when there is ambiguous 16 evidence or when the record is insufficient to allow for proper 17 evaluation of the evidence. 18 459-60 (9th Cir. 2001). Mayes v. Massanari, 276 F.3d 453, The ALJ may discharge this duty in 19 several ways, including: subpoenaing the claimant s physicians, 20 submitting questions to the claimant s physicians, continuing the 21 hearing, or keeping the record open after the hearing to allow 22 supplementation of the record. Tonapetyan v. Halter, 242 F.3d 23 1144, 1150 (9th Cir. 2001). 24 25 2. Background At the hearing, Dr. Malancharuvil testified that with drug 26 and alcohol use, Plaintiff met Listings 12.02 ( substance induced 27 psychotic disorder with Schizo-[a]ffective features ), 12.08 28 ( personality disorder of not otherwise specified ), and 12.09 9 1 (amphetamine and alcohol abuse). (AR 51.) Without drug and 2 alcohol use, Dr. Malancharuvil testified that Plaintiff has not 3 been sober long enough to notice. (Id.) He noted that 4 Plaintiff was currently stable and his hallucinations had 5 subsided, but he recently was drinking, and that would aggravate 6 the situation. (AR 51-52.) He testified that if Plaintiff 7 stopped using drugs and alcohol, the assumption would be that 8 Plaintiff would not meet or equal any Listings and [e]mployment 9 would be restricted when he s sober to definitely capable of 10 simple work but probably moderately complex tasks, up to four to 11 five step instructions in a habituated setting[, and] object 12 oriented work with preclusion of any type of safety operations or 13 operating of hazardous machinery. (AR 52.) He then qualified 14 that statement by noting, But these are speculations because he 15 has not been sober long enough. (Id.) He concluded by noting 16 that right now, [Plaintiff] cannot work and was not capable of 17 functioning in any type of work setting on a consistent basis. 18 (Id.) He then noted again that Plaintiff has not been [sober] 19 long enough to determine whether he could work, and he has to 20 first become sober and then hopefully at that time it will be 21 easier for him to have a determination in his favor. (AR 52- 22 53.) 23 24 3. Analysis In her written opinion, the ALJ gave greatest weight to 25 Dr. Malancharuvil s testimony. (AR 26.) The ALJ then 26 characterized Dr. Malancharuvil s testimony as follows: 27 Dr. Malancharuvil opined that with DAA the claimant 28 meets the requirements of listing 12.09 whereby he has 10 1 mild limitation in daily activities; marked limitation in 2 social activities; marked limitation in concentration, 3 persistence, 4 decompensation. 5 In or pace; testimony, Dr. and no repeated Malancharuvil episodes reported of the 6 claimant s drug and alcohol use was present and material 7 beginning December 2009; the claimant has been in recent 8 remission for approximately 8 months; and the claimant 9 has intermittent alcohol abuse. Dr. Malancharuvil noted 10 the claimant has not been sober very long, although the 11 treatment records indicate he is stable with medication 12 and he has fewer hallucinations. 13 The doctor testified that without DAA the claimant 14 does not meet or equal any listings and he has none to 15 mild limitation in daily activities; moderate limitation 16 in social functioning; mild to moderate limitation in 17 concentration, persistence, or pace; and no repeated 18 episodes of decompensation. 19 Based on these findings, Dr. Malancharuvil opined 20 the claimant can perform moderately complex tasks up to 21 4-5 step instructions in a habituated setting doing 22 object oriented work; and the claimant is precluded from 23 safety operations or operating hazardous machinery. 24 doctor determined if the claimant s symptoms persist for 25 at least 1 year after sobriety, then it would be possible 26 to determine the residual effects of long-term effects of 27 drug use. 28 The findings of Dr. 11 Malancharuvil are The not 1 inconsistent with the findings of the undersigned; and 2 they are supported by the objective medical record. 3 such, 4 greatest weight. the findings of Dr. Malancharuvil are As given 5 (AR 26-27.) 6 The ALJ s characterization of Dr. Malancharuvil s testimony 7 was improper. The ALJ stated that Dr. Malancharuvil found that 8 if Plaintiff stopped drug use he would not meet any of the 9 Listings and could work. (See id.) 10 testimony was more equivocal. In fact, Dr. Malancharuvil s Dr. Malancharuvil repeatedly 11 qualified his testimony by noting that his assessment of 12 Plaintiff s ability to work if he were sober was speculation 13 and that Plaintiff had not been sober long enough to determine 14 whether he would be disabled notwithstanding his substance abuse. 15 (See AR 51-53.) Indeed, the only unequivocal statement Dr. 16 Malancharuvil made as to Plaintiff s ability to work was that 17 Plaintiff right now . . . cannot work and was not capable of 18 functioning in any type of work setting on a consistent basis. 19 (AR 52.) The ALJ gave greatest weight to Dr. Malancharuvil s 20 testimony without adequately accounting for his repeated 21 equivocations; doing so was reversible error. See Tonapetyan, 22 242 F.3d at 1150-51 (holding that ALJ erred in relying heavily 23 on medical expert s equivocal testimony because [g]iven this 24 reliance, the ALJ was not free to ignore [the medical expert s] 25 equivocations and his concern over the lack of a complete 26 record ); see also Tate v. Astrue, No. CV 11 3213 CW, 2012 WL 27 1229886, at *6 (C.D. Cal. Apr. 12, 2012) (ALJ erred in not 28 further developing record when ME suggested that it was 12 1 difficult for her to form an opinion with respect to Plaintiff s 2 disability and ultimate assessment of Plaintiff s RFC was 3 highly equivocal ); see also Sousa, 143 F.3d at 1245 ( Claimants 4 subject to [§ 423(d)(2)(C)] must be given an opportunity to 5 present evidence as to whether their disability would have 6 remained if they stopped using drugs and alcohol. ).6 7 It is certainly possible that in light of the other evidence 8 in the record regarding Plaintiff s functional capacity if he 9 stopped using drugs and alcohol, the ALJ could have discounted 10 Dr. Malancharuvil s equivocations. That seems unlikely, however, 11 given that she gave his views the greatest weight. In any 12 event, the Court cannot make that determination based on the 13 record before it. See Bray v. Comm r of Soc. Sec. Admin., 554 14 F.3d 1219, 1225 (9th Cir. 2009) (district court must review the 15 ALJ s decision based on the reasoning and factual findings 16 offered by the ALJ not post hoc rationalizations that attempt 17 to intuit what the adjudicator may have been thinking ). This 18 matter must therefore be remanded for further proceedings. On 19 remand, the ALJ should either develop further evidence as 20 necessary or explain why Dr. Malancharuvil s concerns over the 21 completeness of the record were unwarranted. 22 Plaintiff also challenges the ALJ s rejection of the 23 opinions of his treating physician, Dr. Fichtner. The ALJ 24 rejected those opinions in part based on their alleged 25 26 6 The ALJ stated that Dr. Malancharuvil found that with 27 drug use, Plaintiff met Listing 12.09. (AR 26.) In fact, Dr. Malancharuvil testified that Plaintiff met Listings 12.02, 12.08, 28 and 12.09. (See AR 51.) 13 1 inconsistency with Dr. Malancharuvil s testimony. (See AR 26.) 2 Because the ALJ improperly characterized Dr. Malancharuvil s 3 testimony, this was error. See Nguyen v. Chater, 100 F.3d 1462, 4 1465 (9th Cir. 1996) ( Where the purported existence of an 5 inconsistency is squarely contradicted by the record, it may not 6 serve as the basis for the rejection of an examining [or 7 treating] physician s conclusions. ). On remand, the ALJ should 8 reevaluate Dr. Fichtner s opinions in connection with her 9 reevaluation of Dr. Malancharuvil s testimony and her 10 consideration of any further evidence that is developed. To the 11 extent Plaintiff asserts that the new evidence from Dr. Fichtner 12 that was submitted to the Appeals Council warrants reversal, that 13 contention is now moot because the ALJ will have a chance to 14 evaluate that evidence on remand. See Johnson v. Astrue, No. 15 C09 5688RBL, 2010 WL 3998098, at *5 (W.D. Wash. Sept. 14, 2010) 16 ( Remand for reconsideration of the ALJ s residual functional 17 capacity finding . . . will necessarily require the 18 administration to reconsider all of the medical evidence, 19 plaintiff s testimony, the lay witness statements, and the 20 additional evidence submitted to the Administration s Appeals 21 Council in their entirety. ). 22 23 24 B. The ALJ s Omission of Plaintiff s RFC From the Written Decision Plaintiff also challenges the ALJ s omission of Plaintiff s 25 RFC from her written decision, which appears to be a 26 transcription error. (J. Stip. at 5 7, 10; see AR 23.) In 27 evaluating a claimant s RFC, the ALJ must make specific findings 28 as to the claimant s residual functional capacity, the physical 14 1 and mental demands of the past relevant work, and the relation of 2 the residual functional capacity to the past work. Pinto v. 3 Massanari, 249 F.3d 840, 845 (9th Cir. 2001); SSR 82 62, 1982 WL 4 31386, at *3-4; see also 20 C.F.R. § 416.920(e). Transcription 5 or similar errors are harmless if, notwithstanding the error, the 6 ALJ gave adequate explanation of her findings elsewhere in her 7 decision. See, e.g., Wright v. Comm r of Soc. Sec., 386 F. App x 8 105, 109 (3d Cir. 2010) (Tashima, J., sitting by designation) 9 (ALJ s misstatements in written decision harmless error when 10 regardless of them ALJ gave an adequate explanation supported by 11 substantial evidence in the record ); Castel v. Comm r of Soc. 12 Sec., 355 F. App x 260, 265-66 (11th Cir. 2009) (ALJ s erroneous 13 reference to wrong medical reports harmless when he referred to 14 reports in two sentences but dedicate[d] two paragraphs to 15 correct reports, and decision conformed to medical evidence); 16 Taylor v. Astrue, No. 4:07 CV 160 FL, 2009 WL 50156, at *10 17 (E.D.N.C. Jan. 7, 2009) (ALJ s misstatement of claimant s RFC in 18 one sentence of decision akin to a typographical error and 19 constitutes harmless error given that ALJ correctly stated RFC 20 elsewhere in opinion and it was overwhelmingly supported by 21 substantial evidence ). Although it appears that here, unlike in 22 Taylor, the ALJ nowhere fully stated her RFC finding, the Court 23 need not address whether the error was prejudicial because on 24 remand the ALJ will have the opportunity to correct it. 25 26 27 C. The ALJ Did Not Err in Relying on Dr. Rodriguez s Opinion Plaintiff also contends that the ALJ erred in relying on Dr. 28 Rodriguez s opinion because Dr. Rodriguez was on probation before 15 1 the medical board when he examined Plaintiff. 2 13, 15-16.) 3 (J. Stip. at 11- This contention does not warrant reversal. Plaintiff has the burden to prove that an alleged error was 4 harmful. See Shinseki v. Sanders, 556 U.S. 396, 409, 129 S. Ct. 5 1696, 1706, 173 L. Ed. 2d 532 (2009) ( [T]he burden of showing 6 that an error is harmful normally falls upon the party attacking 7 the agency s determination. ); Ludwig v. Astrue, 681 F.3d 1047, 8 1054 (9th Cir. 2012) (citing Shinseki and noting that [t]he 9 burden is on the party claiming error to demonstrate not only the 10 error, but also that it affected his substantial rights, which 11 is to say, not merely his procedural rights ). Plaintiff has not 12 met his burden to show how Dr. Rodriguez s probation rendered his 13 decision unreliable. Although Dr. Rodriguez apparently was on 14 probation at the time he examined Plaintiff, he was still allowed 15 to practice medicine. (See J. Stip. Exs. 1-3.) Plaintiff has 16 not pointed to any errors in Dr. Rodriguez s diagnosis that he 17 alleges were caused by his probationary status. Reversal is 18 therefore not warranted on this basis. 19 VI. CONCLUSION 20 When error exists in an administrative determination, the 21 proper course, except in rare circumstances, is to remand to the 22 agency for additional investigation or explanation. INS v. 23 Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 355, 154 L. Ed. 2d 272 24 (2002) (citations and quotation marks omitted); Moisa v. 25 Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). Accordingly, 26 remand, not an award of benefits, is the proper course in this 27 case. See Strauss v. Comm r of Soc. Sec. Admin., 635 F.3d 1135, 28 1136 (9th Cir. 2011) (remand for automatic payment of benefits 16 1 inappropriate unless evidence unequivocally establishes 2 disability). As noted above, on remand, the ALJ shall reevaluate 3 Dr. Malancharuvil s testimony and the other evidence of record 4 and may develop further evidence if necessary to determine 5 Plaintiff s functional capacity without substance abuse. 6 7 ORDER Accordingly, IT IS HEREBY ORDERED that (1) the decision of 8 the Commissioner is REVERSED; (2) Plaintiff s request for remand 9 is GRANTED; and (3) this action is REMANDED for further 10 proceedings consistent with this Memorandum Opinion. 11 IT IS FURTHER ORDERED that the Clerk of the Court serve 12 copies of this Order and the Judgment herein on all parties or 13 their counsel. 14 15 DATED: June 24, 2013 16 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 17

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.