Diana Gutierrez v. Carolyn W. Colvin, No. 8:2012cv01851 - Document 17 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 DIANA GUTIERREZ, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ACTING ) COMMISSIONER OF SOCIAL SECURITY,1 ) ) Defendant. ) ___________________________________) NO. SA CV 12-1851-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 20 judgment are denied and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 /// 23 /// 24 /// 25 26 27 28 1 Carolyn W. Colvin, who became Acting Commissioner of Social Security as of February 14, 2013, is hereby substituted as Defendant in this matter. See Fed. R. Civ. P. 25(d)(1); 42 U.S.C. ยง 405(g). 1 PROCEEDINGS 2 3 Plaintiff filed a complaint on October 19, 2012, seeking review 4 of the Commissioner s denial of disability benefits. The parties 5 filed a consent to proceed before a United States Magistrate Judge on 6 December 6, 2012. 7 8 9 Plaintiff filed a motion for summary judgment on March 25, 2013. Defendant filed a motion for summary judgment on April 22, 2013. The 10 Court has taken the motions under submission without oral argument. 11 See L.R. 7-15; Order, filed October 22, 2012. 12 13 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 14 15 Plaintiff asserts disability based on a combination of alleged 16 impairments (Administrative Record ( A.R. ) 34-49, 82, 370, 392-93, 17 423). 18 and heard testimony from Plaintiff and from a vocational expert (A.R. 19 10-450). An Administrative Law Judge ( ALJ ) examined the medical record 20 21 The ALJ found that Plaintiff has the following severe 22 impairment[s]: medial tibial stress syndrome (shin-splits), right 23 plantar fasciitis, lumbar myofascial strain, and right rotator cuff 24 tendinosis (A.R. 12). 25 impairments, Plaintiff retains the residual functional capacity to 26 perform a limited range of sedentary and light work (A.R. 13). 27 According to the ALJ, Plaintiff cannot perform her past relevant work, 28 but can perform other jobs (A.R. 19-21). The ALJ found that, despite these severe 2 The medical record reflects 1 Plaintiff s obesity, but the ALJ s decision does not mention obesity 2 (A.R. 10-21, 297, 390, 416).2 3 1-3). The Appeals Council denied review (A.R. 4 5 STANDARD OF REVIEW 6 7 Under 42 U.S.C. section 405(g), this Court reviews the 8 Administration s decision to determine if: (1) the Administration s 9 findings are supported by substantial evidence; and (2) the 10 Administration used proper legal standards. See Carmickle v. 11 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 12 499 F.3d 1071, 1074 (9th Cir. 2007). 13 relevant evidence as a reasonable mind might accept as adequate to 14 support a conclusion. 15 (1971) (citation and quotations omitted); Widmark v. Barnhart, 454 16 F.3d 1063, 1067 (9th Cir. 2006). 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 24 25 26 27 28 2 Plaintiff s body mass index ( BMI ) has consistently exceeded 30.0, the obesity threshold in the Clinical Guidelines of the National Institutes of Health. See Social Security Ruling 02-1p. [I]n most cases, the BMI will show whether the individual has obesity. Id. Defendant does not appear to dispute the fact that Plaintiff is obese (Defendant s Motion at 8). 3 DISCUSSION 1 2 3 I. 4 The Administration Erred in Failing to Consider or Discuss Plaintiff s Obesity. 5 6 Social Security Ruling ( SSR ) 02-1p governs the evaluation of 7 obesity.3 8 diseases of the cardiovascular, respiratory, and musculoskeletal body 9 systems. Obesity commonly leads to, and often complicates, chronic SSR 02-1p (emphasis added). The Administration should 10 consider the effect obesity has upon the individual s ability to 11 perform routine movement and necessary physical activity within the 12 work environment . . . 13 impairments may be greater than might be expected without obesity. 14 . . . 15 obesity caused any physical or mental limitations. 16 (emphasis added). The combined effects of obesity with other [W]e will explain how we reached our conclusions on whether SSR 02-1p 17 18 In the present case, the ALJ failed to discharge the 19 Administration s responsibilities under SSR 02-1p. If the ALJ failed 20 to consider the possible effects of Plaintiff s obesity, the ALJ 21 thereby erred. 22 634, 637 (9th Cir. June 16, 2009). 23 possible effects of Plaintiff s obesity, but concluded that the 24 obesity did not cause Plaintiff any additional limitations, the ALJ 25 erred by failing to explain how [he] reached [his] conclusions. 26 Id.; see Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 2003) Id.; see Edwards-Alexander v. Astrue, 336 Fed. App x If the ALJ did consider the 27 3 28 SSRs are binding on ALJs. F.2d 1273, 1275 n.1 (9th Cir. 1990). 4 Terry v. Sullivan, 903 1 ( Celaya ); Gentle v. Barnhart, 430 F.3d 865, 868 (7th Cir. 2005); see 2 also Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) ( We 3 are wary of speculating about the basis of the ALJ s conclusion 4 . . . ); Lewin v. Schweiker, 654 F.2d 631, 634-35 (9th Cir. 1981) 5 (ALJ s decision should include a statement of the subordinate factual 6 foundations on which the ALJ s ultimate factual conclusions are based, 7 so that a reviewing court may know the basis for the decision). 8 9 Defendant argues that [b]ecause Plaintiff has presented no 10 evidence that obesity resulted in any greater functional limitations 11 than those identified by the ALJ in his RFC finding, Plaintiff cannot 12 establish that the ALJ erred (Defendant s Motion at 9). 13 argument must be rejected in light of the authorities cited above, 14 particularly Celaya and SSR 02-1p. 15 from two unpublished Ninth Circuit decisions appear to support 16 Defendant s argument. 17 n.1 (9th Cir. Feb. 2, 2009); Hoffman v. Astrue, 266 Fed. App x 623, 18 625 (9th Cir. Feb. 12, 2008). 19 overrule Celaya, however. 20 (9th Cir. 2003) (published Ninth Circuit panel decision controls, 21 absent express overruling by an en banc court or an intervening United 22 States Supreme Court decision clearly irreconcilable with the panel 23 decision); U.S. Ct. App. 9th Cir. Rule 36-3(a) (Ninth Circuit s 24 unpublished dispositions generally are not precedent ). 25 either of the unpublished decisions purport to explain how an ALJ can 26 comply with SSR 02-1p without even mentioning a claimant s evident 27 obesity. 28 /// This It is true that cryptic passages See Burton v. Astrue, 310 Fed. App x 960, 961 These decisions do not and cannot See Miller v. Gammie, 335 F.3d 889, 899-900 5 Nor does 1 The published decision of Burch v. Barnhart, 400 F.3d 676 (9th 2 Cir. 2005) ( Burch ), cited by Defendant, is materially 3 distinguishable from the present case. 4 case, the ALJ acknowledged evidence of the claimant s weight gain, 5 expressly recognized that [the claimant s] obesity likely contributed 6 to her back discomfort, and expressly considered [the claimant s] 7 obesity in making [the ALJ s] determinations regarding RFC and 8 vocational ability. 9 present case, the ALJ did something toward compliance with SSR 02-1p. Burch at 683-84. In Burch, unlike the present Thus, in Burch, unlike the 10 11 The Court lacks sufficient information to determine whether the 12 ALJ s error regarding Plaintiff s obesity was harmless. See, e.g., 13 Morris v. Barnhart, 2004 WL 1238397 *4 (E.D. Pa. May 10, 2004) ( As 14 the ALJ did not provide an explanation in her report as to whether 15 Plaintiff s obesity was considered, the Magistrate Judge could not 16 make a factual finding that the plaintiff s obesity did not have an 17 impact ). 18 19 20 II. Remand, Rather than Reversal With a Directive for the Payment of Benefits, is Appropriate. 21 22 Because the circumstances of this case suggest that further 23 administrative review could remedy the ALJ s errors, remand is 24 appropriate. 25 see generally INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of 26 an administrative determination, the proper course is remand for 27 additional agency investigation or explanation, except in rare 28 circumstances). See McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); 6 1 CONCLUSION 2 3 For all of the foregoing reasons,4 Plaintiff s and Defendant s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: April 25, 2013. 10 11 ______________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the payment of benefits would not be appropriate at this time. 7
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