Patrick Duffey v. Michael J. Astrue, No. 2:2010cv06426 - Document 14 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)
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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 PATRICK DUFFEY, 12 13 14 15 16 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. CV 10-06426 RZ MEMORANDUM OPINION AND ORDER 17 An Administrative Law Judge, acting as the Social Security Commissioner s 18 delegate, has an obligation to develop the record further when the evidence is ambiguous. 19 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). The regulations empower him 20 to have an updated consulting examination or to contact the treating physician for further 21 information, as appropriate. 20 C.F.R. ยงยง 404.1512(e) and (f); 416.912(e) and (f). An 22 administrative law judge also can appoint a medical advisor as necessary. Because 23 additional evidence was needed here to resolve an important ambiguity, the matter must 24 be remanded for further proceedings. 25 Among other impairments, Plaintiff Patrick Duffey suffers from depression 26 with memory impairment. [AR 13, Finding No. 3] A consulting psychologist, Dr. Ahmad 27 Riahinejad, administered the Wechsler Memory Scale-3rd Edition test and, in the Auditory 28 immediate index, scored Plaintiff with a raw score of 89, which placed Plaintiff in the 23rd 1 percentile. [AR 229] The vocational expert David Rinehart testified that if a person were 2 functioning in the 23rd percentile of the population in the area of auditory, immediate 3 memory he would not be able to perform the work of a telephone quotation clerk, 4 parimutuel ticket checker or addresser. 5 Administrative Law Judge found Plaintiff was qualified to hold. [AR 18] Nevertheless, these are the jobs that the 6 Despite the testimony of the vocational expert, however, it is not entirely clear 7 what the results of the testing mean. Clearly they mean that more than seventy-five percent 8 of the population would score higher on the particular index in the test, but they tell us 9 nothing more than that. They do not tell us what that means in terms of Plaintiff s ability 10 to retain or recall information from auditory sources, nor what it means that, despite that 11 score, Plaintiff s score on the immediate memory index placed him in the 39th percentile 12 of the population, not the 23rd. The psychologist did, however, give his summary 13 diagnostic impressions that Plaintiff is currently able to understand, remember and carry 14 out simple and complex instructions with minimal difficulty. [AR 230] 15 Thus, the record is left in a state of ambiguity. Arguably, the vocational 16 expert testified beyond his expertise in answering the question as to whether a person in 17 the 23rd percentile in terms of auditory, immediate memory could perform the work of 18 a telephone quotation clerk, parimutuel ticket checker or addresser. [AR 39] But perhaps 19 not. We will not know until someone with expertise in testing explains what the results of 20 the testing mean. 21 Accordingly, the matter is remanded to the Commissioner for further 22 proceedings. On remand, the Administrative Law Judge shall take steps consistent with 23 this opinion in order to resolve the ambiguity. 24 IT IS SO ORDERED. 25 DATED: September 14, 2011 26 27 28 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE -2-
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