Gldays Pelayo v. Commissioner of Social Security Administration, No. 2:2016cv01370 - Document 18 (C.D. Cal. 2016)
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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Gldays Pelayo v. Commissioner of Social Security Administration Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 GLADYS PELAYO, ) ) Plaintiff, ) ) v. ) ) Commissioner of Social Security, ) Administration, ) ) Defendant. ) ____________________________________) NO. CV 16-1370-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 PROCEEDINGS 24 25 Plaintiff filed a Complaint on February 26, 2016, seeking review 26 of the Commissioner’s denial of benefits. The parties filed a consent 27 to proceed before a United States Magistrate Judge on March 22, 2016. 28 /// Dockets.Justia.com 1 Plaintiff filed a motion for summary judgment on June 30, 2016. 2 Defendant filed a “Memorandum in Support of Defendant’s Answer,” which 3 the Court construes as Defendant’s motion for summary judgment, on 4 August 3, 2016. 5 without oral argument. The Court has taken both motions under submission See L.R. 7-15; “Order,” filed March 2, 2016. 6 7 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 8 9 Plaintiff asserts disability since May 18, 2009, based on several 10 alleged impairments, including an alleged lumbar impairment 11 (Administrative Record (“A.R.”) 46-47, 61, 68-69, 208-14). 12 testified she suffers from constant radiating low back pain for which 13 she has undergone three epidurals that helped “just a little bit” 14 (A.R. 68-69). 15 Judge (“ALJ”) found no severe lumbar impairment (A.R. 24-35). 16 Appeals Council denied review (A.R. 1-4). Plaintiff In denying disability benefits, the Administrative Law The 17 18 STANDARD OF REVIEW 19 20 Under 42 U.S.C. section 405(g), this Court reviews the 21 Administration’s decision to determine if: (1) the Administration’s 22 findings are supported by substantial evidence; and (2) the 23 Administration used correct legal standards. 24 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 25 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 26 682 F.3d 1157, 1161 (9th Cir. 2012). 27 relevant evidence as a reasonable mind might accept as adequate to 28 support a conclusion.” See Carmickle v. Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 2 1 (1971) (citation and quotations omitted); see also Widmark v. 2 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). 3 4 If the evidence can support either outcome, the court may 5 not substitute its judgment for that of the ALJ. 6 Commissioner’s decision cannot be affirmed simply by 7 isolating a specific quantum of supporting evidence. 8 Rather, a court must consider the record as a whole, 9 weighing both evidence that supports and evidence that 10 But the detracts from the [administrative] conclusion. 11 12 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 13 quotations omitted). 14 15 DISCUSSION 16 17 18 On the present record, the ALJ erred by finding non-severe Plaintiff’s alleged lumbar impairment. Remand is appropriate. 19 20 21 Social Security Ruling (“SSR”) 85-281 governs the evaluation of whether an alleged impairment is “severe”: 22 23 An impairment or combination of impairments is found “not 24 severe” . . . when medical evidence establishes only a 25 slight abnormality or a combination of slight abnormalities 26 27 28 1 Social Security rulings are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 3 1 which would have no more than a minimal effect on an 2 individual's ability to work . . . i.e., the person’s 3 impairment(s) has no more than a minimal effect on his or 4 her physical or mental ability(ies) to perform basic work 5 activities. . . . 6 7 If such a finding [of non-severity] is not clearly 8 established by medical evidence, however, adjudication must 9 continue through the sequential evaluation process. 10 11 * * * 12 13 Great care should be exercised in applying the not severe 14 impairment concept. 15 determine clearly the effect of an impairment or combination 16 of impairments on the individual’s ability to do basic work 17 activities, the sequential evaluation process should not end 18 with the not severe evaluation step. 19 continued. If an adjudicator is unable to Rather, it should be 20 21 SSR 85-28 at *2-4; see also Smolen v. Chater, 80 F.3d 1273, 1290 (9th 22 Cir. 1996) (the severity concept is “a de minimis screening device to 23 dispose of groundless claims”) (citation omitted); accord Webb v. 24 Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005). 25 26 In the present case, the medical evidence does not “clearly 27 establish” the non-severity of Plaintiff’s alleged lumbar impairment. 28 According to a July 19, 2011 radiology report, digital images of 4 1 Plaintiff’s lumbar spine then revealed anterolisthesis, facet 2 arthrosis, disc narrowing and vacuum cleft lucency that may represent 3 annular derangement (A.R. 1157). 4 submitted images, the reviewing physician recommended repeating the 5 lateral lumbar view (A.R. 1156-57). 6 occurred. Because of resolution loss on the No repetition appears to have 7 8 9 In finding Plaintiff’s alleged lumbar impairment non-severe, the ALJ relied on the opinions of a consultative examining physician and 10 state agency physicians (A.R. 32-34). However, none of these 11 physicians appears to have reviewed the July 19, 2011 radiology report 12 described above (A.R. 99, 114-15, 127-28, 986-89). 13 the consultative examining physician upon whom the ALJ placed 14 principal reliance appeared to indicate that a (not yet undertaken) 15 review of imaging studies of Plaintiff’s lumbar spine would be 16 necessary for a proper evaluation of Plaintiff’s functional 17 limitations: To the contrary, 18 19 For better evaluation of the claimant’s functional 20 assessment, may consider reviewing imaging studies of the 21 lumbar spine. 22 pain with motion of the lumbar region (A.R. 989). There is tenderness in the lumbar spine and 23 24 Finally, the testimony of the medical expert also supports the 25 conclusion that the medical evidence does not “clearly establish” the 26 non-severity of Plaintiff’s alleged lumbar impairment. 27 expert (a psychiatrist) conceded that physical problems were “not my 28 field,” the expert testified from a review of the medical records that 5 Although this 1 Plaintiff “has a great deal of physical problems, orthopedic problems, 2 osteoarthritis, rheumatoid arthritis, disorders of the spine . . . 3 lumbar disc disease, and other physical problems” (A.R. 61). 4 5 The Court is unable to deem the above discussed error to have 6 been harmless. See generally, McLeod v. Astrue, 640 F.3d 881, 888 7 (9th Cir. 2011). 8 further administrative review could remedy the error, remand is 9 appropriate. Because the circumstances of this case suggest that Id. at 888; see also INS v. Ventura, 537 U.S. 12, 16 10 (2002) (upon reversal of an administrative determination, the proper 11 course is remand for additional agency investigation or explanation, 12 except in rare circumstances); Dominguez v. Colvin, 808 F.3d 403, 407 13 (9th Cir. 2015) (“Unless the district court concludes that further 14 administrative proceedings would serve no useful purpose, it may not 15 remand with a direction to provide benefits”); Treichler v. 16 Commissioner, 775 F.3d 1090, 1101 n.5 (9th Cir. 2014) (remand for 17 further administrative proceedings is the proper remedy “in all but 18 the rarest cases”); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th 19 Cir.), cert. denied, 531 U.S. 1038 (2000) (remand for further 20 proceedings rather than for the immediate payment of benefits is 21 appropriate where there are “sufficient unanswered questions in the 22 record”). 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 6 1 CONCLUSION 2 3 For all of the foregoing reasons,2 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: August 12, 2016. 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 27 28 2 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. “[E]valuation of the record as a whole creates serious doubt that [Plaintiff] is in fact disabled.” Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014). 7
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