Carl E. Gamache v. Carolyn W. Colvin, No. 2:2013cv09202 - Document 16 (C.D. Cal. 2014)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi (twdb)
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Carl E. Gamache v. Carolyn W. Colvin Doc. 16 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CARL E. GAMACHE, 12 13 14 15 Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 Defendant. 17 ) Case No. CV 13-9202 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 Carl E. Gamache (“Plaintiff”) challenges the Social Security Commissioner’s 20 decision denying his application for disability benefits. Plaintiff contends that the 21 Administrative Law Judge (“ALJ”) erred in determining his residual functional 22 capacity (“RFC”). (See Joint Stip. at 5-12, 14-15.) Specifically, the ALJ failed to 23 translate language used in Plaintiff’s workers’ compensation disability reports into 24 comparable Social Security terminology. (Id.) The Court agrees with Plaintiff for 25 the reasons discussed below. 26 A. The ALJ Erred in Determining Plaintiff’s RFC 27 Plaintiff contends that his RFC was under-inclusive because the ALJ failed to 28 translate the opinion of Dr. Vincent L. Gumbs, the qualified medical examiner in Dockets.Justia.com 1 Plaintiff’s workers’ compensation case, into Social Security parlance. (Id.) 2 A claimant’s RFC is the most he can still do despite his limitations. Smolen v. 3 Chater, 80 F.3d 1273, 1291 (9th Cir. 1996) (citing 20 C.F.R. § 404.1545(a)). In 4 determining a claimant’s RFC, the ALJ must consider all relevant evidence of 5 record, including medical opinions. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 6 (9th Cir. 2006); see 20 C.F.R. § 404.1527(b). Significantly, unless an ALJ expressly 7 rejects a particular medical opinion, he must consider its findings when crafting the 8 claimant’s RFC. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (When “the 9 Commissioner fails to provide adequate reasons for rejecting the opinion of a . . . 10 physician, we credit that opinion as a matter of law.”) (citation and internal quotation 11 marks omitted). 12 To that end, when evaluating a medical opinion using state workers’ 13 compensation terminology, an ALJ must translate it into the corresponding Social 14 Security parlance. Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 15 576 (9th Cir. 1988) (finding error where ALJ failed to distinguish between Social 16 Security disability scheme and California workers’ compensation scheme); Booth v. 17 Barnhart, 181 F. Supp. 2d 1099, 1106 (C.D. Cal. Jan. 22, 2002) (The ALJ’s 18 decisions should “indicate that the ALJ recognized the differences between the . . . 19 [two schemes,] and took those differences into account in evaluating the medical 20 evidence.”); see Macri v. Chater, 93 F.3d 540, 543-44 (9th Cir. 1996). If an ALJ 21 fails to translate workers’ compensation terminology, he will be unable to properly 22 assess the opinion, or incorporate its findings into Plaintiff’s RFC. See id. 23 Here, Dr. Gumbs provided an opinion couched in workers’ compensation 24 terminology. (See Administrative Record (“AR”) at 720.) In particular, he found 25 that Plaintiff was precluded from “repetitive and prolonged gripping and grasping,” 26 among other things. (Id.) For workers’ compensation purposes, a preclusion from 27 “repetitive” behavior contemplates a one-half reduction in pre-injury capacity. 28 Brooks v. Astrue, 2012 WL 2373628, at *5 (C.D. Cal. June 22, 2012); see Schedule 2 1 for Rating Permanent Disabilities (Labor Code of California 1997), 2 www.dir.ca.gov/dwc/PDR1997.pdf (last visited Oct. 27, 2014). Thus, assuming that 3 Plaintiff was operating at full capacity prior to his injury, Dr. Gumbs suggests that 4 Plaintiff can now grip or grasp only half of the workday. (See AR at 719-20.) 5 Nevertheless, the ALJ made no detectable effort to translate Dr. Gumbs’ 6 opinion into Social Security terms, or include any correlative restrictions into 7 Plaintiff’s RFC. (See id. at 18.) To the contrary, the positions identified by the ALJ 8 as within Plaintiff’s RFC, including cashier, (Dictionary of Occupational Titles 9 (“DOT”) No. 211.462-010), storage facility clerk, (Dot No. 295.367-026), and 10 counter attendant, (Dot. No. 311.677-010), all require “frequent handling.” (AR at 11 24) (emphasis added); see Social Security Ruling (“SSR”) 85-15, 1985 WL 56857, 12 at *2 (1985) (defining handling as “seizing, holding, grasping, turning or otherwise 13 working primarily with the whole hand or hands”). For Social Security purposes, 14 “frequent” means “occurring from one-third to two-thirds of the time.” SSR 83-10, 15 1983 WL 31251, at *6 (1983). Thus, by requiring Plaintiff to grip or grasp more 16 than one-half of the time, the ALJ implicitly rejected Dr. Gumbs’ opinion. See 17 Baltazar v. Astrue, 2012 WL 2319263, at *5 (C.D. Cal. June 19, 2012). 18 The rejection is proper only if the ALJ provided specific and legitimate 19 reasons to support it. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 20 1164 (9th Cir. 2008) (An ALJ may reject the opinion of an examining physician 21 only for “specific and legitimate reasons that are supported by substantial 22 evidence.”) (citation omitted); Lester, 81 F.3d 821 at 834. In this case, the ALJ gave 23 no rationale for rejecting Dr. Gumbs’ opinion. (See generally AR at 22-23.) To the 24 contrary, the ALJ stated that he gave Dr. Gumbs’ opinion “moderate weight.” (Id. at 25 23.) Thus, because the ALJ never properly rejected Dr. Gumbs’ opinion, he erred by 26 omitting its findings from Plaintiff’s RFC. See Baltazar, 2012 WL 2319263, at *5 27 (finding error in RFC where physician precluded claimant from “repetitive” gripping 28 and grasping, ALJ did not properly translate or reject the opinion, and RFC allowed 3 1 for “frequent” gripping and grasping); Brooks, 2012 WL 2373628, at *5 (holding 2 similarly). 3 B. Remand is Warranted 4 With error established, this Court has discretion to remand or reverse and 5 award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no 6 useful purpose would be served by further proceedings, or where the record has been 7 fully developed, it is appropriate to exercise this discretion to direct an immediate 8 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). 9 But where there are outstanding issues that must be resolved before a determination 10 can be made, or it is not clear from the record that the ALJ would be required to find 11 plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. 12 See id. at 594. Here, in light of the ALJ’s error, Plaintiff’s RFC was not properly assessed. 13 14 Therefore, on remand, the ALJ shall translate Dr. Gumbs’ opinion into Social 15 Security terms, and either include its findings in Plaintiff’s RFC, or provide valid 16 reasons for any portion that is rejected. Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 17 18 REVERSING the decision of the Commissioner denying benefits and 19 REMANDING the matter for further administrative action consistent with this 20 decision.1/ 21 22 Dated: October 31, 2014 23 ____________________________________ 24 Hon. Jay C. Gandhi United States Magistrate Judge 25 26 27 1/ In light of the Court’s remand instructions, it is unnecessary to address Plaintiff’s 28 remaining contention. (See Joint Stip. at 16-18, 20-21.) 4
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