Jose E Rosas v. Commissioner of Social Security Administration, No. 8:2011cv00454 - Document 18 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For the reasons set forth above, the Agency's decision is reversed and the case is remanded for further proceedings consistent with this opinion. IT IS SO ORDERED. (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JOSE E. ROSAS, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. SA CV 11-454-PJW MEMORANDUM OPINION AND ORDER 16 17 I. 18 19 INTRODUCTION Plaintiff appeals a decision by Defendant Social Security 20 Administration ( the Agency ), denying his application for 21 Supplemental Security Income ( SSI ). 22 Administrative Law Judge ( ALJ ) erred when he failed to consider all 23 of his impairments as well as his girlfriend s testimony. 24 Stip. at 2-43.) 25 consider new and material evidence. 26 reasons discussed below, the Agency s decision is reversed and the 27 case is remanded for further proceedings consistent with this opinion. 28 He claims that the (Joint He also complains that the Appeals Council failed to (Joint Stip. at 43-45.) For the 1 II. 2 SUMMARY OF PROCEEDINGS 3 In April 2007, Plaintiff applied for SSI, alleging disability 4 beginning March 2007, due to fatigue, memory loss, depression, an 5 inability to concentrate, headaches, seizures, and neuropathy. 6 (Administrative Record ( AR ) 106-12, 118, 134.) The Agency denied 7 the application initially and on reconsideration. Plaintiff then 8 requested and was granted a hearing before an ALJ. (AR 88-90.) 9 Plaintiff appeared with counsel and testified at the hearing on August 10 7, 2008. (AR 17-60.) 11 benefits. 12 which denied review. The ALJ subsequently issued a decision denying (AR 10-15.) Plaintiff appealed to the Appeals Council, (AR 1-4.) 13 III. 14 15 He then commenced this action. ANALYSIS A. The ALJ s Failure to Address Plaintiff s Girlfriend s Testimony 16 Prior to the administrative hearing, Plaintiff s girlfriend, 17 Margaret Salazar, submitted an eight-page questionnaire, detailing her 18 observations of Plaintiff s difficulties. 19 testified at the administrative hearing about his condition. 20 52.) 21 never addressed why he was rejecting her testimony, which, clearly, he 22 must have because he did not include any of her observations in the 23 residual functional capacity assessment. 24 (AR 125-32.) She also (AR 45- Though the ALJ noted in passing that Salazar had testified, he (AR 14.) Lay testimony is competent evidence and, therefore, an ALJ is 25 required to consider it in determining if a claimant is disabled. 26 Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) ( Lay testimony 27 as to a claimant s symptoms is competent evidence which the Secretary 28 must take into account. ). Failure to consider lay testimony 2 See 1 constitutes error. 2 1050, 1054 (9th Cir. 2006). 3 unless the Court can confidently conclude that no reasonable ALJ, when 4 fully crediting the testimony, could have found that the claimant was 5 disabled. 6 a failure to properly discuss competent lay testimony favorable to the 7 claimant, a reviewing court cannot consider the error harmless unless 8 it can confidently conclude that no reasonable ALJ, when fully 9 crediting the testimony, could have reached a different disability 10 See Stout v. Comm r, Soc. Sec. Admin., 454 F.3d Further, the error mandates reversal Id. at 1056 ( [W]e hold that where the ALJ's error lies in determination. ). 11 The Agency concedes that the ALJ erred in failing to address 12 Salazar s testimony but argues that the error was harmless because her 13 testimony was similar to Plaintiff s and the ALJ rejected his 14 testimony. 15 reasons. 16 address lay testimony is to credit the testimony and then determine if 17 any reasonable ALJ might have found Plaintiff disabled. 18 F.3d at 1056. 19 harmless. 20 had trouble concentrating, and had to regularly lie down due to pain 21 and discomfort was accepted as true, any reasonable ALJ would have 22 concluded that Plaintiff was unable to work, at least not at the jobs 23 identified by the ALJ. 24 (Joint Stip. at 5-6.) This argument is rejected for two First, the test applied in evaluating the ALJ s failure to Stout, 454 Applying this test, it is clear that the error was not If Salazar s testimony that Plaintiff suffered seizures, (AR 49-50, 57-58.) The second reason the Agency s argument is rejected is because it 25 was not relied on by the ALJ in reaching his decision. 26 Court nor the Agency can comb through the record on appeal, looking 27 for reasons the ALJ could have relied on to reject the witness s 28 testimony but did not and superimpose them on the ALJ s decision. 3 Neither the 1 See, e.g., Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) ( It 2 is error for the district court to affirm the ALJ's credibility 3 decision based on evidence that the ALJ did not discuss. ). 4 same reasons, the Agency s argument that the Court should overlook 5 Salazar s testimony because it lacked foundation because, at the time 6 of the administrative hearing, she was not spending a lot of time with 7 Plaintiff (Joint Stip. at 5-6) is also rejected. 8 argument that her testimony was not material because it was cumulative 9 of Plaintiff s testimony. (Joint Stip. at 6.) For these So, too, is its Though the ALJ could 10 have rejected Salazar s testimony for these reasons, he did not. And 11 the Court will not affirm the ALJ s decision for reasons he did not 12 rely on. 13 consideration of Salazar s testimony. 14 B. As such, the case is remanded to the Agency to for further The Residual Functional Capacity Determination 15 Plaintiff argues that the ALJ did not include all of his 16 impairments in the residual functional capacity finding. 17 at 8-9.) 18 conduction study were consistent with carpal tunnel syndrome, yet the 19 ALJ did not include a limitation for symptoms related to carpal tunnel 20 syndrome in the residual functional capacity finding. 21 8.) 22 mental limitations but the ALJ did not include those limitations in 23 the residual functional capacity assessment, either. 24 8-9.) 25 (Joint Stip. He points out, for example, that the results of a nerve (Joint Stip. at Plaintiff notes that some of the doctors determined that he had (Joint Stip. at For the following reasons, this claim is denied. The ALJ was only required to include in the residual functional 26 capacity finding those impairments which he found were supported by 27 the evidence. 28 1989) (holding ALJ only required to include in hypothetical question Magallanes v. Bowen, 881 F.2d 747, 756-57 (9th Cir. 4 1 to vocational expert those limitations found to be supported by the 2 evidence). 3 syndrome and, therefore, was not required to include limitations 4 caused by carpal tunnel syndrome in his residual functional capacity 5 finding. 6 carpal tunnel syndrome (AR 223) does not establish that Plaintiff 7 suffers from carpal tunnel. 8 test did not diagnose Plaintiff with carpal tunnel. 9 did any other doctor. He did not find that Plaintiff suffered from carpal tunnel The fact that test results were consistent with a finding of In fact, the doctor who performed that (AR 238, 240, 561, 738, 754.) (AR 223.) Nor For these 10 reasons, the ALJ did not err in not including the alleged effects of 11 carpal tunnel syndrome in the residual functional capacity. 12 Plaintiff argues that the ALJ overlooked his mental impairments. 13 (Joint Stip. at 8-9.) 14 Riahinejad found a significant difference in IQ testing. 15 Stip. at 8.) 16 concluded that Plaintiff was moderately limited in his ability to 17 maintain concentration, persistence, and pace, which restricted him to 18 work involving simple, repetitive tasks. 19 the following reasons, the Court finds that these arguments are not 20 persuasive. 21 He notes that examining psychologist Ahmed (Joint He also points out that reviewing doctor Lydia Mallare (Joint Stip. at 8-9.) For Dr. Riahinejad examined Plaintiff and performed various tests, 22 concluding that Plaintiff s overall IQ was 85 and that he could carry 23 out simple instructions. 24 the difference between Plaintiff s verbal IQ score of 98 and his 25 performance IQ score of 70 was significant, he attributed the 26 discrepancy to Plaintiff s vision problems, not to any cognitive 27 limitations. 28 Riahinejad s opinion to conclude that Plaintiff did not have a severe (AR 232-33.) (AR 232-33.) Though the doctor noted that Thus, the ALJ s reliance on Dr. 5 1 mental impairment and could perform his past relevant work (mostly 2 unskilled work) was not in error. 3 As to Plaintiff s argument that the ALJ should have accepted non- 4 examining doctor Lydia Mallare s opinion--that Plaintiff was 5 moderately limited in his ability to maintain concentration, 6 persistence, and pace and could only perform work involving simple, 7 repetitive tasks (AR 257, 259)--over examining Dr. Riahinejad s 8 opinion, again, the Court disagrees. The ALJ was tasked with 9 determining which doctor to rely on. He chose to rely on examining 10 doctor Riahinejad because Dr. Riahinejad had examined Plaintiff and 11 because his opinion was not contradicted by the treating doctors. 12 14.) 13 examining doctor s opinion over a non-examining doctor s opinion and, 14 therefore, the ALJ s decision will not be disturbed. 15 Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990) ( [T]he conclusion of 16 a non-examining physician is entitled to less weight than the 17 conclusion of an examining physician. ) 18 (AR These are specific and legitimate reasons for accepting an See Pitzer v. Finally, Plaintiff argues that the ALJ overlooked his counsel s 19 argument that Plaintiff would be absent from work frequently and that 20 that would preclude him from holding down a job. 21 But the evidence that Plaintiff would miss work frequently came from 22 Drs. Winkle and Mallare (AR 261, 563) and the ALJ discounted their 23 opinions. 24 propensity for absenteeism in evaluating Plaintiff s ability to work. 25 See Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005).1 (Joint Stip. at 9.) Thus, he was not required to consider Plaintiff s alleged 26 27 1 28 The ALJ may need to reconsider the residual functional capacity finding after addressing Ms. Salazar s testimony. 6 1 C. 2 The Appeals Council s Consideration of the New Evidence Following the ALJ s October 2008 decision denying his claim for 3 benefits, Plaintiff appealed to the Appeals Council, submitting 4 hundreds of pages of new records, which documented his medical 5 treatment both before and after the ALJ s decision. 6 Most notably were records showing that, in July 2009, Plaintiff had 7 emergency heart surgery to repair blocked coronary arteries. 8 738.) 9 ALJ s decision. 10 (AR 565-758.) (AR Despite these new records, the Appeals Council affirmed the AR 1-4.) Plaintiff argues that the Appeals Council failed to consider the 11 new records. 12 argument. 13 considered this evidence (AR 1, 4) and the Court accepts that 14 representation. 15 (Joint Stip. at 43-44.) The record contradicts this The Appeals Council noted in its decision that it had Thus, this argument is rejected. Plaintiff argues in the alternative that the Appeals Council 16 erred in not reversing the ALJ s decision based on this new evidence 17 because it shows that Plaintiff is severely impaired and incapable of 18 maintaining employment and suggests that he was disabled as of the 19 date of the ALJ s decision. 20 argument that the evidence goes to the period following the ALJ s 21 decision and is therefore irrelevant to assessing Plaintiff s 22 condition prior to the decision, it relates back to the pre-decision 23 period and exemplifies what Plaintiff was arguing throughout, that he 24 was incapable of working. 25 He argues that, contrary to the Agency s (Joint Stip. at 45.) The Court sides with the Agency, here. Though some of the 26 records relate to the period prior to the ALJ s decision and others, 27 though relating to the period after the ALJ s decision could be read 28 as circumstantial evidence about Plaintiff s condition before the 7 1 ALJ s decision, the records as a whole relate to a condition that was 2 not raised by Plaintiff or addressed by the ALJ, i.e., coronary heart 3 disease. 4 due to heart disease. 5 loss, depression, an inability to concentrate, headaches, seizures, 6 and neuropathy. 7 with and what he was being treated for. 8 emergency heart surgery nine months after the ALJ s decision was to 9 treat a different condition. Plaintiff never claimed before the ALJ that he was disabled He alleged disability based on fatigue, memory (AR 118, 134.) That is what he had been diagnosed (AR 561.) Plaintiff s Though, presumably, Plaintiff s coronary 10 heart disease was a progressive condition that was present to some 11 degree in October 2008, it was not the basis for his disability claim 12 and was not addressed by his counsel or the ALJ. 13 Council did not err when it determined that Plaintiff s emergency 14 heart surgery in July 2009 did not establish that the ALJ s October 15 2008 decision that Plaintiff was not disabled was erroneous. 16 e.g., Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001) (holding 17 district court did not err in refusing to remand case based on new 18 evidence where evidence was not material because it related to 19 condition that was not at issue before the ALJ). 20 21 22 23 24 25 26 27 28 8 As such, the Appeals See, 1 IV. 2 CONCLUSION 3 For the reasons set forth above, the Agency s decision is 4 reversed and the case is remanded for further proceedings consistent 5 with this opinion.2 6 IT IS SO ORDERED. 7 DATED: March 20, 2012. 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\ROSAS, 454\memo.opinion. and order.wpd 25 26 27 28 2 The Court has considered Plaintiff s request that the case be remanded for an award of benefits. That request is denied. It is not clear from this record that Plaintiff is entitled to benefits and further proceedings are necessary to resolve that issue. 9
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