Colwell v. Colvin, No. 2:2015cv00782 - Document 26 (D. Nev. 2018)
Court Description: ORDER granting in part and denying in part 20 Motion for Judgment; ORDER denying 21 Motion to Affirm. ORDER adopting in part and rejecting in part 23 Report and Recommendation. This case is remanded to the Social Security Administration. Signed by Judge James C. Mahan on 5/1/2018. (Copies have been distributed pursuant to the NEF - JM)
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Colwell v. Colvin Doc. 26 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 LORI A. COLWELL, 8 Plaintiff(s), 9 10 Case No. 2:15-CV-782 JCM (GWF) ORDER v. CAROLYN W. COLVIN, 11 Defendant(s). 12 13 Presently before the court is Magistrate Judge Foley’s report and recommendation 14 (“R&R”). (ECF No. 23). Defendant Commissioner of the Social Security Administration filed an 15 objection (ECF No. 24), to which plaintiff Lori Colwell responded (ECF No. 25). 16 Also before the court is plaintiff’s motion for judgment on the pleadings. (ECF No. 20). 17 Defendant filed a response (ECF No. 22). Plaintiff did not file a reply, and the time for doing so 18 has since passed. 19 Also before the court is defendant’s cross-motion to affirm. (ECF No. 21). Plaintiff has 20 not filed a response, and the time for doing so has since passed. 21 I. Background 22 The parties do not object to the extensive factual presentation in the R&R. Therefore, the 23 court adopts the factual representation in the R&R and will detail factual and procedural 24 background in the discussion section of this order as necessary to explain the court’s holding. 25 II. Legal Standard 26 A party may file specific written objections to the findings and recommendations of a 27 United States magistrate judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); 28 LR IB 3-2. Where a party timely objects to a magistrate judge’s report and recommendation, the James C. Mahan U.S. District Judge Dockets.Justia.com 1 court is required to “make a de novo determination of those portions of the [report and 2 recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). The court “may accept, 3 reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 4 Id. 5 Pursuant to Local Rule IB 3-2(a), a party may object to the report and recommendation of 6 a magistrate judge within fourteen (14) days from the date of service of the findings and 7 recommendations. Similarly, Local Rule 7-2 provides that a party must file an opposition to a 8 motion within fourteen (14) days after service of the motion. 9 III. Discussion 10 Magistrate Judge Foley’s R&R holds that the administrative law judge (“ALJ”) erred when 11 evaluating and weighing the medical opinions of numerous treating and non-treating physicians in 12 this case. (ECF No. 23). The R&R also holds that the ALJ erred in discrediting plaintiff’s 13 testimony regarding her limitations. Id. The R&R recommends that the court remand this case 14 with instructions to award benefits. Id. 15 Defendant does not specifically object to Magistrate Judge Foley’s holding that the ALJ 16 erred when evaluating the opinions of the doctors and discrediting plaintiff’s testimony. (ECF No. 17 24). Instead, defendant objects to Magistrate Judge Foley’s prescribed remedy of a remand solely 18 for benefits. Id. Defendant argues that “conflicts, ambiguities, and serious doubt remain as to 19 whether plaintiff is in fact disabled,” which makes a remand for further proceedings the appropriate 20 remedy. Id. at 10. 21 Plaintiff responds that Magistrate Judge Foley’s recommended remedy is appropriate in 22 this case. (ECF No. 25). Plaintiff asserts that the record does not contain sufficient conflicts or 23 ambiguities so as to render further proceedings useful. Id. Plaintiff further argues that if plaintiff’s 24 improperly discredited testimony were credited as true, the ALJ would be required to award 25 benefits. Id. Plaintiff therefore contends that a remand solely for benefits is the appropriate 26 remedy. Id. 27 The parties do not contest Magistrate Judge Foley’s holding that the ALJ failed to provide 28 legally sufficient reasons for rejecting evidence. After reviewing the record and underlying briefs, James C. Mahan U.S. District Judge -2- 1 the court agrees that the ALJ failed to provide legally sufficient reasons for rejecting the medical 2 opinion of Dr. Barone and for rejecting plaintiff’s testimony. The court will therefore consider the 3 appropriate remedy. 4 In Social Security cases, the “ordinary ‘remand’ rule” applies when a reviewing court holds 5 that an administrative law judge erred in denying benefits and the error was not harmless. See, 6 e.g., Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (recognizing that harmless error 7 principles apply in Social Security Act cases); Hoa Hong Van v. Barnhart, 483 F.3d 600, 605 (9th 8 Cir. 2007) (noting that an erroneous decision to deny benefits can require reversal); Lingenfelter 9 v. Astrue, 504 F.3d 1028, 1044 (9th Cir. 2007) (discussing the ordinary remand rule). Under the 10 ordinary remand rule, “the proper course, except in rare circumstances, is to remand to the agency 11 for additional investigation or explanation.” Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 12 (1985). 13 Pursuant to 42 U.S.C. § 405(g), courts may “reverse or modify an administrative decision 14 without remanding the case for further proceedings.” Harman v. Apfel, 211 F.3d 1172, 1178 (9th 15 Cir. 2000). “Without this additional authority, a district court could not remand a case for 16 immediate payment of benefits in connection with a reversal of the Commissioner’s denial of 17 benefits but could only remand the case for rehearing.” Id. The exercise of such authority is 18 discretionary. Id. 19 The Ninth Circuit applies a three-part credit-as-true rule, also known as the Varney rule, 20 when considering whether a remand solely for benefits is appropriate. Treichler v. Comm'r of Soc. 21 Sec. Admin., 775 F.3d 1090, 1100-1102 (9th Cir. 2014) (citing Varney v. Sec’y of Health & Human 22 Servs., 859 F.2d 1396 (9th Cir. 1988)). The claimant must establish: first, that the ALJ failed to 23 provide legally sufficient reasons for rejecting evidence, whether medical opinion or claimant 24 testimony; second, that the record has been fully developed and further administrative proceedings 25 would serve no useful purpose; and third, whether if the improperly discredited evidence were 26 credited as true, the ALJ would be required to find the claimant disabled on remand. See id. at 27 1100–01 (citing Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014)). 28 James C. Mahan U.S. District Judge -3- 1 If a claimant establishes the presence of all three elements of the Varney rule, the reviewing 2 court may remand for an award of benefits. Id. at 1101. Nonetheless, the reviewing court retains 3 flexibility in determining the appropriate remedy. Id. at 1107 (citing Garrison, 759 F.3d at 1021); 4 see Harman, 211 F.3d at 1178 (noting the discretionary nature of § 405(g)). 5 Here, a remand solely for benefits is inappropriate because plaintiff has not demonstrated 6 that the record has been fully developed and that further administrative proceedings would serve 7 no useful purpose. See Treichler, 775 F.3d 1100. 8 Defendant’s objection to the report and recommendation notes several evidentiary 9 questions that remain unresolved after reviewing the record of administrative proceedings. Dr. 10 Barone recommended that plaintiff pursue physical therapy. However, there are no treatment 11 records in the administrative record. Dr. Barone completed a Multiple Impairment Questionnaire 12 in September 2012, and noted that he had last examined plaintiff in August 2012. However, there 13 are no notes or other evidence of an August examination in the record. 14 The court notes that evidence of these events (or lack thereof) may not exist. However, the 15 district court’s role at this stage in proceedings is to determine whether the record has been fully 16 developed such that further administrative proceedings would serve no purpose. See Treichler, 17 775 F.3d 1100. That is not the case here. 18 In addition to the evidentiary gaps referenced above, the medical opinions in this case 19 demonstrate evidentiary inconsistencies as to the seriousness of plaintiff’s physical and emotional 20 disabilities. 21 As far as plaintiff’s physical disabilities, the opinions and testimony in this case do not 22 paint a uniform picture as to plaintiff’s physical capacity. Plaintiff asserted in her testimony that 23 she has significant trouble with mobility and experiences pain even while on medications. She 24 also noted side effects from the medications. Dr. Barone’s medical examinations and 2012 25 Multiple Impairment Questionnaire support plaintiff’s assertions. However, Dr. Brislin noted that 26 plaintiff’s subjective pain representations did not match clinical assessments of her strength and 27 range of motion. Further, Dr. DeCarlo’s notes from his disability examination suggest normal leg 28 strength but potentially disabling physical conditions, such as fibromyalgia, bulging disks of the James C. Mahan U.S. District Judge -4- 1 lumbar spine, hypertension, hyperlipidemia, and gastroesophageal reflux disease. Furthermore, 2 Dr. Barone’s notes state that plaintiff was prescribed MS Contin, Oxycodone, Endocet, Fiorinol, 3 and Klonopin and that she had no significant side effects from the medications, which casts doubt 4 upon the veracity of her testimony. 5 As far as plaintiff’s emotional disabilities, Dr. Barone and Dr. Vlad apparently reached 6 contrary opinions. Dr. Barone noted in early reports that plaintiff complained of anxiety and stress, 7 and Dr. DeCarlo noted that plaintiff suggested that she was depressed and had difficulty 8 concentrating. However, neurological examinations conducted by Dr. Vlad showed plaintiff’s 9 mood, memory, affect, and judgment as normal. Dr. Vlad’s examination also runs contrary to 10 testimony of plaintiff and her fiancé, who stated that plaintiff suffers from disabling emotional 11 disorders. 12 The record also contains inconsistencies as to plaintiff’s ability to obtain gainful 13 employment given her physical and emotional limitations. Dr. Barone opined on March 9, 2012, 14 that plaintiff was unable to obtain gainful employment whatsoever. 15 Questionnaire dated September 15, 2012, Dr. Barone stated that in an eight-hour day plaintiff could 16 sit for no more than one hour, and could stand or walk for less than an hour. Barone noted that 17 plaintiff could lift 0-5 pounds frequently and 10-20 pounds occasionally. Barone asserted that 18 plaintiff would be moderately limited when using her upper extremities, manipulating objects with 19 her fingers and hands, and reaching with her arms. Barone noted environmental limitations, 20 including the need to avoid noise, gases, fumes, temperature extremes, and heights. In a Multiple Impact 21 Dr. DeCarlo noted in his “Medical Source Statement of Claimant’s Ability to Perform 22 Work Related Activities” that plaintiff could stand or walk for an hour or less and could sit for up 23 to an hour during the course of an eight-hour day. DeCarlo stated that plaintiff could occasionally 24 bend, kneel, stoop, crouch, balance, and climb. DeCarlo noted no limitations on plaintiff’s ability 25 to reach, handle, finger, feel, see, hear, speak, taste, or smell, and noted no issues related to 26 incontinence. DeCarlo found no environmental limitations. 27 In contrast, Dr. Smith provided a residual functional capacity assessment based on a review 28 of the medical records. Smith opined that plaintiff could carry 10 pounds frequently and 20 pounds James C. Mahan U.S. District Judge -5- 1 occasionally, and could stand and/or walk for up to six hours and sit for up to six hours in an eight- 2 hour workday. 3 temperatures, wetness, and humidity, and fumes, odors, dusts, gases, and poor ventilation. Smith noted that plaintiff should avoid concentrated exposure to extreme 4 The inconsistencies discussed above demonstrate that a remand solely for benefits would 5 be inappropriate in this instance. Here, additional “[a]dministrative proceedings are [appropriate 6 as] the record has not been fully developed, there is a need to resolve conflicts and ambiguities, 7 [and] the presentation of further evidence may well prove enlightening in light of the passage of 8 time.” Treichler, 775 F.3d at 1101 (internal citations, quotations, and ellipses omitted). 9 Given the court’s holding, the court need not address plaintiff’s argument that if the 10 improperly discredited evidence were credited as true, the ALJ would be required to find the 11 claimant disabled on remand. See Treichler, 775 F.3d at 1107 (“Because further administrative 12 proceedings are necessary, Treichler has failed to satisfy the second step of the Varney rule. 13 Accordingly, we do not reach the third step of the rule, which arises where the record is fully 14 developed and free from conflicts, making it clear that the ALJ would be required to find the 15 claimant disabled if he credited the claimant’s testimony as true.”). 16 IV. Conclusion 17 Magistrate Judge Foley held that the ALJ erred when weighing the medical opinions in this 18 case and when discounting plaintiff’s testimony. Defendant has not challenged this holding. 19 However, remand solely for an award of benefits is inappropriate in this case, as the evidence 20 presented to the ALJ was potentially incomplete and contained conflicting opinions on plaintiff’s 21 residual functional capacity and ability to obtain employment. Therefore, a remand for further 22 administrative proceedings is appropriate in this case. 23 Accordingly, 24 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Magistrate Judge Foley’s 25 R&R (ECF No. 23) be, and the same hereby is, ADOPTED in part and REJECTED in part, 26 consistent with the foregoing. 27 28 James C. Mahan U.S. District Judge -6- 1 IT IS FURTHER ORDERED that plaintiff’s motion for judgment on the pleadings (ECF 2 No. 20) be, and the same hereby is, GRANTED in part and DENIED in part, consistent with the 3 foregoing. 4 5 6 7 8 IT IS FURTHER ORDERED that defendant’s cross-motion to affirm (ECF No. 21) be, and the same hereby is, DENIED. IT IS FURTHER ORDERED that this case be remanded to the Social Security Administration for further proceedings. DATED May 1, 2018. 9 10 __________________________________________ UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -7-
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