Jeanette Bartlett v. Michael J Astrue, No. 5:2012cv01240 - Document 15 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision. (See Order for details) (bem)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JEANETTE BARTLETT, 12 Plaintiff, 13 14 v. 15 CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL 1/ SECURITY ADMINISTRATION, 16 Defendant. 17 ) Case No. ED CV 12-1240 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 Jeanette Bartlett ( Plaintiff ) challenges the Social Security Commissioner s 19 20 ( Defendant ) decision denying her application for disability benefits. Specifically, 21 Plaintiff argues that the Administrative Law Judge ( ALJ ) failed to properly 22 develop the record by not seeking treatment records from Drs. Sunil Arora, Bruce 23 Ishibashi, and Luminita Andronescu. (Joint Stip. at 3-8, 15.) For the reasons 24 discussed below, the Court agrees with Plaintiff. A. The ALJ Failed to Fully and Fairly Develop the Record 25 [T]he ALJ has a special duty to fully and fairly develop the record and to 26 27 28 1/ Carolyn W. Colvin is substituted as the proper defendant herein. See Fed. R. Civ. P. 25(d). 1 assure that the claimant s interests are considered. Smolen v. Chater, 80 F.3d 1273, 2 1288 (9th Cir. 1996) (citing Brown v. Heckler, 713 F.2d 441, 443 (9th Cir.1983)). If 3 the evidence is ambiguous or inadequate to permit a proper evaluation of a 4 claimant s impairments, the ALJ must also conduct an appropriate inquiry into 5 that deficiency. Id. at 1288. 6 Here, good reason suggests that the evidence was inadequate. 7 For instance, in evaluating the medical record, the ALJ stated that the record 8 does not show that Plaintiff has received any further treatment for her complaints of 9 left shoulder pain since a September 8, 2009 examination. (AR at 58.) This 10 conclusion, however, is based on an incomplete treating record. Two reports by the 11 Orthopaedic Medical Group one in October 2010, and one in January 2011 thank 12 Dr. Arora for referring Plaintiff. (AR at 226-29, 217-19.) Similarly, a November 13 2010 MRI report lists Dr. Ishibashi as its referring physician. (AR at 214-15.) Both 14 cues suggest that Drs. Arora and Ishibashi treated Plaintiff, and, yet, the ALJ failed 15 to obtain records from either physician. 16 Moreover, the ALJ noted a nine-month evidentiary gap between Plaintiff s 17 December 2008 and September 2009 visits to the Arrowhead Regional Medical 18 Center. (AR at 58; see AR at 205-210.) Though this gap certainly exists, its 19 significance is undermined by evidence that Plaintiff was likely treated by Dr. 20 Andronescu during that time. Again, as above, a July 13, 2009 MRI analysis listed 21 Dr. Andronescu as its referring physician. (AR at 232-33.) Faced with evidence 22 suggesting that the treating record was incomplete,2/ the ALJ, once again, failed to 23 make any inquiries. Minimizing the significance of this error, Defendant asserts that the substance 24 25 of these missing records would have likely been detailed in the subsequent reports 26 27 2/ Remarkably, the ALJ even acknowledges Dr. Andronescu in his decision as 28 one of Plaintiff s treating physicians. (AR at 59.) 2 1 by the Orthopaedic Medical Group. (Joint Stip. at 11.) Perhaps, but that is neither 2 certain nor relevant for resolution here. 3 The ALJ s assessment of Plaintiff s shoulder impairments relied heavily on 4 the alleged lack of treating records substantiating that condition. At the same time, 5 the ALJ had cause to believe the treating record was incomplete. For this simple 6 reason, a finding of error is warranted. See Brown v. Astrue, 2008 WL 850203, at *2 7 (E.D. Cal. Mar. 28, 2008) (finding error where ALJ failed to obtain certain records, 8 but then explicitly relied on that evidentiary gap in his analysis). Had these 9 missing records been obtained, it is plausible that their contents might have 10 persuaded the ALJ to reach another conclusion regarding Plaintiff s disability 11 status.3/ Thus, for the reasons stated above, the Court determines that the ALJ failed to 12 13 adequately develop the record. Accordingly, the Court finds that substantial 14 evidence did not support the ALJ s decision. See Mayes v. Massanari, 276 F.3d 15 453, 458-59 (9th Cir. 2001). 16 B. Remand is Warranted 17 With error established, this Court has discretion to remand or reverse and 18 award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no 19 useful purpose would be served by further proceedings, or where the record has been 20 fully developed, it is appropriate to exercise this discretion to direct an immediate 21 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). 22 But where there are outstanding issues that must be resolved before a determination 23 can be made, or it is not clear from the record that the ALJ would be required to find 24 plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. 25 3/ This remains true even though, as Defendant asserts, the ALJ presented multiple reasons for his assessment of Plaintiff s credibility. (Joint Stip. at 13.) 27 After all, the ALJ also relied on the absence of treating records in weighing the 28 medical evidence. (See AR at 58-60.) 26 3 1 See id. at 594. 2 Here, the Court cannot determine disability based on the record before it. 3 Therefore, on remand, the ALJ shall seek Plaintiff s treatment records, if there be 4 any, from Drs. Sunil Arora, Bruce Ishibashi, and Luminita Andronescu. 5 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 6 REVERSING the decision of the Commissioner denying benefits and 7 REMANDING the matter for further administrative action consistent with this 8 decision. 9 10 Dated: April 30, 2013 11 ____________________________________ 12 Hon. Jay C. Gandhi 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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