Richard Swartz v. Michael J. Astrue, No. 2:2011cv00389 - Document 16 (C.D. Cal. 2011)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal; Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS ORDERED that Judgment be entered REVERSING and REMANDING the decision of the Commissioner for further administrative proceedings consistent with this decision. See order for further details. (jy)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RICHARD SWARTZ, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 11-00389-SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Richard Swartz ( Plaintiff ) brings this action seeking to overturn 22 the decision of the Commissioner of the Social Security Administration 23 ( Commissioner 24 Supplemental Security Income ( SSI ). 25 to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United 26 States Magistrate Judge. For the reasons stated below, the decision of 27 the Agency is REVERSED and REMANDED for further proceedings. 28 \\ or the Agency ) denying his application for The parties consented, pursuant 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed an application for SSI on July 23, 2007. 5 (Administrative Record ( AR ) 61-62). In the application, he alleged 6 a disability onset date of August 1, 2004, due to Osteoarthrosis and 7 Diabetes. (Id.). 8 9 Initially, the Agency denied Plaintiff s claim on February 1, 2008. 10 (AR 66). This denial was upheld upon reconsideration, and on February 11 29, 2008, Plaintiff requested a hearing. 12 Plaintiff appeared and testified at a hearing before an Administrative 13 Law Judge ( ALJ ). (AR 71). On August 7, 2008, (AR 13). 14 15 On October 14, 2008, the ALJ issued a decision denying benefits. 16 (AR 13-20). The Appeals Council then denied Plaintiff s request for 17 review on November 20, 2010. (AR 1-3). As a result, the ALJ s decision 18 became the final decision of the Commissioner. 19 commenced the instant action on January 6, 2011. (Id.). Plaintiff 20 21 III. 22 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 23 24 To qualify for disability benefits, a claimant must demonstrate a 25 medically determinable physical or mental impairment that prevents him 26 27 28 2 1 from engaging in substantial gainful activity,1 which is expected to 2 result in death or last for a continuous period of at least twelve 3 months. 4 42 U.S.C. § 423(d)(1)(A)). 5 incapable of performing the work he previously performed, and render 6 claimant 7 employment existing in the national economy. Tackett v. Apfel, 180 F.3d 8 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(D)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing incapable of The impairment must render the claimant performing any other substantial gainful 9 10 11 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are: 12 13 (1) Is the claimant presently engaged in substantial gainful 14 activity? 15 not, proceed to step two. 16 (2) 17 If so, the claimant is not found disabled. Is claimant s impairment severe? found not disabled. 18 (3) If If not, the claimant is If so, proceed to step three. Does claimant s impairment meet or equal the requirements for 19 any impairment listed at 20 C.F.R. Part 404, Subpart P, 20 Appendix 1? 21 proceed to step four. 22 (4) If so, the claimant is found disabled. Is the claimant capable of performing his past work? 23 the claimant is found not disabled. 24 If not, If so, five. 25 (5) If not, proceed to step Is the claimant able to do any other work? If not, the 26 27 1 Substantial gainful activity means work that involves doing significant and productive physical or mental duties done for pay or 28 profit. 20 C.F.R. § 416.910. 3 1 claimant is found disabled. 2 If so, the claimant is found not disabled. 3 4 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 5 949, 953-54 (9th Cir. 2001); 20 C.F.R. § 416.920(b)-(g)(1). 6 7 The claimant has the burden of proof at steps one through four, and 8 the Commissioner has the burden of proof at step five. 9 F.3d at 953-54. Bustamante, 262 If, at step four, the claimant meets his burden of 10 establishing an inability to perform the past work, the Commissioner 11 must show that the claimant can perform some other work that exists in 12 significant numbers in the national economy, taking into account the 13 claimant s residual functional capacity ( RFC ),2 age, education, and 14 work experience. 15 The Commissioner may do so by the testimony of a vocational expert or 16 by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. 17 Part 404, Subpart P, Appendix 2 (commonly known as the Grids ). 18 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). When a claimant 19 has both exertional (strength-related) and nonexertional limitations, 20 the Grids are inapplicable and the ALJ must take testimony from a 21 vocational expert. 22 \\ 23 \\ 24 \\ 25 \\ Tackett, 180 F.3d at 1100; 20 C.F.R. § 416.920(g)(1). Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). 26 27 2 Residual functional capacity is the most [one] can still do despite [his] limitations and represents an assessment based on all 28 relevant evidence. 20 C.F.R. § 416.945(a). 4 1 IV. 2 STANDARD OF REVIEW 3 4 Under 41 U.S.C. § 405(g), a district court may review the 5 Commissioner s decision to deny benefits. The court may set aside the 6 Commissioner s decision when the ALJ s findings are based on legal error 7 or are not supported by substantial evidence in the record as a whole. 8 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001)(citing 9 Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th 10 Cir. 1996)(citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 11 12 Substantial evidence is more than a scintilla, but less than a 13 preponderance. Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, 14 112 F.3d 1064, 1066 (9th Cir. 1997). 15 evidence which a reasonable person might accept as adequate to support 16 a conclusion. 17 at 1279). To determine whether substantial evidence supports a finding, 18 the court must consider the record as a whole, weighing both evidence 19 that supports and evidence that detracts from the [Commissioner s] 20 conclusion. Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 21 F.3d 953, 956 (9th Cir. 1993)). 22 either affirming or reversing that conclusion, the court may not 23 substitute its judgment for that of the Commissioner. Reddick, 157 F.3d 24 at 720-21 (citing Flaten v. Sec y, 44 F.3d 1453, 1457 (9th Cir. 1995)). 25 \\ 26 \\ 27 \\ 28 \\ Specifically, it is relevant Id. (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d If the evidence can reasonably support 5 1 V. 2 DISCUSSION 3 4 Plaintiff contends that the ALJ erred because 1) he failed to 5 properly develop the record; 2) he failed to identify specific, 6 legitimate reasons for rejecting the treating doctor s opinion; and 3) 7 the ALJ failed to provide clear and convincing reasons for rejecting 8 Plaintiff s credibility. The Court agrees. 9 10 A. The ALJ Did Not Satisfy His Duty To Develop The Record 11 12 The ALJ has an affirmative duty to fully and fairly develop the 13 record in social security cases. 14 1150 (9th Cir. 2001). 15 unrepresented or is mentally ill and thus unable to protect her own 16 interests. 17 the record is so inadequate that it prevents a proper evaluation of the 18 evidence, triggers the ALJ s duty to conduct an appropriate inquiry or 19 gather additional information. 20 Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (reasoning that 21 no duty issue existed when the ALJ did not make a finding that the 22 medical report was inadequate to make a disability determination). Id. Tonapetyan v. Halter, 242 F.3d 1144, This duty is heightened when the claimant is Moreover, ambiguous evidence or an ALJ finding that Tonapetyan, 242 F.3d at 1150; see also 23 24 Here, Plaintiff notified the ALJ that Plaintiff did not have all 25 pertinent information relating to 26 testimony at the hearing, as well as in writing. 27 Specifically, Plaintiff indicated that he did not have records for 28 surgical consultations, numerous medical appointments (AR 27), and 6 his alleged disability through (AR 27, 144). 1 multiple emergency room visits. (AR 18, 29). These records may hold 2 important information relating to Plaintiff s claim. 3 of attempting to retrieve these records, the ALJ dismissed Plaintiff s 4 request for assistance in obtaining these records. 5 the ALJ failed to take steps to obtain these records, the record is 6 incomplete. However, instead (AR 27). Because 7 8 9 Moreover, the ALJ had a heightened duty to develop the record because Plaintiff was unrepresented. Beyond questioning Plaintiff at 10 the hearing, it does not appear the ALJ took any steps to develop the 11 record. 12 or seek to obtain them on his own. 13 medical records as support in defending his finding that [t]he treating 14 record does not support [Plaintiff s] allegations. 15 ALJ needed to obtain these records before concluding that the record did 16 not support Plaintiff s claim. 17 the Agency to further develop the record. The ALJ did not subsequently request documents from Plaintiff Instead, the ALJ used the lack of (AR 15, 18). The The Court remands the action to allow 18 19 20 B. The ALJ Failed to Provide Specific And Legitimate Reasons To Reject The Opinion of Plaintiff s Treating Doctor 21 22 Where a treating doctor s opinion is not contradicted by another 23 doctor, it may be rejected only for clear and convincing reasons. 24 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 2004). 25 doctor s opinion is contradicted be another doctor, the ALJ may not 26 reject this opinion without providing specific, legitimate reasons, 27 supported by substantial evidence in the record. 28 opinion of treating doctors are entitled to special weight because the 7 Even if a treating Id. at 830-31. The 1 treating doctor is hired for the purpose of curing, and has a better 2 opportunity 3 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). to know and observe the claimant as an individual. 4 5 Here, the ALJ rejected the opinion of Dr. Hunt, the treating 6 doctor, and instead, 7 consulting doctor. 8 to reject Dr. Hunt s opinion by stating, I discount Dr. Hunt s opinion 9 because he provides no current examination findings to support his (Id.). adopted (AR 16). to the opinion of Dr. Gerson, the The ALJ relied on the absence of records 10 opinion. However, the ALJ did not attempt to see if such 11 records existed. 12 (AR 263), it is likely that he would have records supporting his 13 opinion, if such records exist. Because Dr. Hunt treated Plaintiff on a monthly basis 14 15 Even if the opinion of Dr. Gerson (AR 209) contradicts Dr. Hunt (AR 16 230-33), the fact that the record was not adequately developed makes it 17 impossible for the ALJ to provide specific, legitimate reasons supported 18 by substantial evidence in the record. 19 necessary information in order to determine that his reasons where 20 supported by substantial evidence in the record. 21 inconsistencies between the two opinions, further development of the 22 record is required before the ALJ can point to specific and legitimate 23 reasons for rejecting Dr. Hunt s opinion. 24 fully develop and consider all evidence of the record. 25 \\ 26 \\ 27 \\ 28 \\ 8 The ALJ did not have all the While there may be Upon remand, the ALJ must 1 C. The ALJ Failed To Provide Clear and Convincing Reasons For Rejecting Plaintiff s Credibility 2 3 4 The ALJ may reject a plaintiff s testimony if he or she makes an 5 explicit credibility finding that is supported by specific, cogent, 6 reasons for disbelief. 7 Cir. 1990) (internal citations omitted). 8 evidence showing that the plaintiff s testimony is malingering, the 9 ALJ s reasons for rejecting the plaintiff s testimony must be clear and Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Lester, 81 F.3d at 834. Unless there is affirmative 10 convincing. Moreover, the ALJ may not 11 discredit a claimant s testimony of pain and deny disability benefits 12 solely because the degree of pain alleged by the claimant is not 13 supported by objective medical evidence. 14 341, 346-47 (9th Cir. 1991). Bunnell v. Sullivan, 947 F.2d 15 16 Here, the ALJ discredited Plaintiff s testimony in part by stating 17 that Plaintiff s testimony was inconsistent with the consulting doctor s 18 opinion, and that the treating record does not support [Plaintiff s] 19 allegations. 20 was improper for the ALJ to rely on the absence of records to discredit 21 Plaintiff s testimony. Moreover, the inconsistency between Plaintiff s 22 testimony and the consulting doctor s opinion is rooted in the lack of 23 records supporting Plaintiff s assertions. 24 issue, and the reasoning used to decide it, is tied into the incomplete 25 record, the ALJ must reconsider this issue once the record is fully 26 developed. 27 \\ 28 \\ (AR 18). However, because the record is incomplete, it 9 (AR 16). Because this 1 VI. 2 CONCLUSION 3 Pursuant to sentence four of 42 U.S.C. § 405(g),3 IT IS ORDERED that 4 5 Judgment be entered REVERSING and REMANDING the decision of the 6 Commissioner for further administrative proceedings consistent with this 7 decision. 8 the Judgment on counsel for both parties. The Clerk of the Court shall serve copies of this Order and 9 10 DATED: September 1, 2011 11 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 12 13 14 15 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS INTENDED TO 16 BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR 17 LEXIS. 18 19 20 21 22 23 24 25 26 3 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment 28 affirming, modifying, or reversing, the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 27 10

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