Maria Flora Najera v. Carolyn W. Colvin, No. 2:2016cv02442 - Document 20 (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 is consistent with this Opinion. (sp)
Download PDF
<![CDATA[
Maria Flora Najera v. Carolyn W. Colvin Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 MARIA FLORA NAJERA, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, Acting ) Commissioner of Social Security ) Administration, ) ) Defendant. ) ____________________________________) NO. CV 16-2442-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 April 9, 2016, seeking review of 26 the Commissioner’s denial of benefits. The parties filed a consent to 27 proceed before a United States Magistrate Judge on April 28, 2016. 28 /// Dockets.Justia.com 1 Plaintiff filed a motion for summary judgment on October 11, 2 2016. Defendant filed a motion for summary judgment on November 9, 3 2016. The Court has taken both motions under submission without oral 4 argument. See L.R. 7-15; “Order,” filed April 11, 2016. 5 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 9 Plaintiff, a sewing machine operator, asserts disability since March 2, 2009, based on a combination of alleged impairments 10 (Administrative Record (“A.R.”) 41-43, 49-54, 195-97, 221, 228). An 11 Administrative Law Judge (“ALJ”) found Plaintiff suffers from “the 12 following severe impairments: internal derangement of the left knee; 13 mild left knee degenerative disease, arthritis of the bilateral knees; 14 mild L4-L5 degenerative disc disease; mild lumbar degenerative 15 scoliosis; mild straightening of the cervical lordosis and obesity” 16 (A.R. 21). 17 residual functional capacity to perform a narrowed range of light 18 work, including the capacity to “sit for eight hours” (A.R. 23). 19 sitting capacity contradicted the opinions of all the treating and 20 examining physicians who opined on the subject (A.R. 263 (examining 21 physician Dr. Payam Moazzaz’ opinion Plaintiff can “sit for six hours 22 in an eight-hour workday with normal breaks”), 411-12 (treating 23 physician Dr. Joseph Oei’s opinion Plaintiff cannot work any hours in 24 a workday), 368-69 (treating physician Dr. David Payne’s opinion 25 Plaintiff cannot work any hours in a workday), 330 (treating physician 26 Dr. Agnes Quion’s opinion Plaintiff can work about three hours in an 27 eight hour workday). 28 appears to exceed the sitting capacity all of the non-examining The ALJ also found, however, that Plaintiff retains the This The sitting capacity the ALJ found to exist also 2 1 physicians assessed (A.R. 46 (non-examining medical expert opines 2 Plaintiff “could handle eight hours in an eight hour workday sitting 3 given the opportunity to stand and change position at will”) (emphasis 4 added); A.R. 65, 73, 84, 94 (state agency physicians’ opinions 5 Plaintiff can sit about six hours in an eight hour workday)) (emphasis 6 added). 7 8 9 A vocational expert testified that a person having the residual functional capacity the ALJ found to exist (including the capacity to 10 “sit for eight out of eight [hours]” could perform Plaintiff’s past 11 relevant work as a sewing machine operator (A.R. 58). 12 expert also testified that the work of a sewing machine operator is 13 usually performed seated and that Plaintiff had indicated she sat for 14 nine hours when performing her past work (A.R. 58; see A.R. 233). 15 reliance on the vocational expert’s testimony, the ALJ found Plaintiff 16 capable of performing her past relevant work as a sewing machine 17 operator, as that work is generally performed and as that work was 18 actually performed by Plaintiff (A.R. 27). 19 considered additional evidence, but denied review (A.R. 1-5). The vocational In The Appeals Council 20 21 STANDARD OF REVIEW 22 23 Under 42 U.S.C. section 405(g), this Court reviews the 24 Administration’s decision to determine if: (1) the Administration’s 25 findings are supported by substantial evidence; and (2) the 26 Administration used correct legal standards. 27 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 28 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 3 See Carmickle v. 1 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such 2 relevant evidence as a reasonable mind might accept as adequate to 3 support a conclusion.” 4 (1971) (citation and quotations omitted); see also Widmark v. 5 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Richardson v. Perales, 402 U.S. 389, 401 6 7 If the evidence can support either outcome, the court may 8 not substitute its judgment for that of the ALJ. 9 Commissioner’s decision cannot be affirmed simply by 10 isolating a specific quantum of supporting evidence. 11 Rather, a court must consider the record as a whole, 12 weighing both evidence that supports and evidence that 13 detracts from the [administrative] conclusion. But the 14 15 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 16 quotations omitted). 17 18 Where, as here, the Appeals Council considered additional 19 evidence but denied review, the additional evidence becomes part of 20 the record for purposes of the Court’s analysis. 21 Commissioner, 682 F.3d at 1163 (“[W]hen the Appeals Council considers 22 new evidence in deciding whether to review a decision of the ALJ, that 23 evidence becomes part of the administrative record, which the district 24 court must consider when reviewing the Commissioner’s final decision 25 for substantial evidence”; expressly adopting Ramirez v. Shalala, 8 26 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 27 1228, 1231 (2011) (courts may consider evidence presented for the 28 first time to the Appeals Council “to determine whether, in light of 4 See Brewes v. 1 the record as a whole, the ALJ’s decision was supported by substantial 2 evidence and was free of legal error”); Penny v. Sullivan, 2 F.3d 953, 3 957 n.7 (9th Cir. 1993) (“the Appeals Council considered this 4 information and it became part of the record we are required to review 5 as a whole”); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b). 6 7 DISCUSSION 8 9 On the present record, substantial evidence does not support the 10 determination Plaintiff can perform her past relevant work. 11 Remand is appropriate. 12 13 The ALJ failed to acknowledge that the sitting capacity the ALJ 14 found to exist exceeded the capacity found by any of the medical 15 sources (A.R. 19-28). 16 Moazzar [sic], an orthopedic specialist, assessed limitations 17 comparable to those assessed herein. . . .” (A.R. 26). 18 noted, Dr. Moazzaz assessed Plaintiff’s sitting capacity at two hours 19 less than the capacity assessed by the ALJ. 20 assert that the residual functional capacity the ALJ found to exist 21 was consistent with the medical expert’s opinions regarding 22 Plaintiff’s functional limitations (A.R. 26). 23 opined Plaintiff would need to “stand and change position at will” in 24 order to “handle eight hours in an eight hour workday” (A.R. 46). To the contrary, the ALJ claimed that “Dr. As previously The ALJ also appeared to Yet, the medical expert 25 26 An ALJ’s material mischaracterization of the record can warrant 27 remand. See, e.g., Regennitter v. Commissioner of Social Sec. Admin., 28 166 F.3d 1294, 1297 (9th Cir. 1999). 5 The above described 1 mischaracterizations are potentially material. 2 3 Social Security Ruling (“SSR”) 96-8p provides: “[i]f the RFC 4 [residual functional capacity] assessment conflicts with an opinion 5 from a medical source, the adjudicator must explain why the opinion 6 was not adopted.”1 7 explanation why the ALJ failed to adopt into “the RFC assessment” the 8 sitting capacity opinions of the medical sources, including Dr. 9 Moazzaz. The ALJ’s decision contains no specific The ALJ thereby erred. See id. 10 11 No medical opinion evidence fully supports the sitting capacity 12 the ALJ found to exist. The ALJ’s lay opinion on the subject cannot 13 properly fill this gap in proof. 14 1102-03 (ALJ erred in rejecting physicians’ opinions and finding 15 greater residual functional capacity based on claimant’s testimony 16 that he took a road trip; there was no medical evidence to support the 17 ALJ’s determination); Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 18 1998) (an “ALJ cannot arbitrarily substitute his own judgment for 19 competent medical opinion”) (internal quotation marks and citation 20 omitted); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs 21 must not succumb to the temptation to play doctor and make their own 22 independent medical findings”); Day v. Weinberger, 522 F.2d 1154, 1156 23 (9th Cir. 1975) (an ALJ is forbidden from making his or her own See Tackett v. Apfel, 180 F.3d at 24 25 26 27 28 1 SSRs are “binding on ALJs.” Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). The term “medical source” as used in SSR 96-8p includes a consultative examining physician. See SSR 96-8p (referencing SSR 96-5p); SSR 96-5p (defining “medical sources” as “including treating sources, other examining sources, and non-examining physicians, psychologists and other medical sources”); see also 20 C.F.R. § 404.1513(a). 6 1 medical assessment beyond that demonstrated by the record). 2 3 The Court is unable to deem the errors in the present case to 4 have been harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th 5 Cir. 2012) (an error “is harmless where it is inconsequential to the 6 ultimate non-disability determination”) (citations and quotations 7 omitted); McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (error 8 not harmless where “the reviewing court can determine from the 9 ‘circumstances of the case’ that further administrative review is 10 needed to determine whether there was prejudice from the error”). 11 the present case, the vocational expert’s testimony assumed a sitting 12 capacity of eight hours in an eight-hour day with no option to stand 13 or otherwise change positions at will (A.R. 58). 14 in other cases have testified that the job of a sewing machine 15 operator is incompatible with a sit/stand option. 16 v. Astrue, 2010 WL 1342933, at *2 (E.D. Cal. April 5, 2010); Ruelas v. 17 Astrue, 2009 WL 229751, at *4 (W.D. Va. July 29, 2009). In Vocational experts See, e.g. Zaragoza 18 19 It is true that the claimant has the burden of proving an 20 inability to perform his or her past relevant work. See Sanchez v. 21 Secretary, 812 F.2d 509, 511 (9th Cir. 1987). 22 ALJ need not always consult a vocational expert to find that a 23 claimant can perform the claimant’s past relevant work. 24 v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993); Miller v. Heckler, 770 25 F.2d 845, 850 (9th Cir. 1985). 26 testimony in the present case, however, the record lacks substantial 27 evidence that a person with Plaintiff’s limitations could perform 28 Plaintiff’s past relevant work. It is also true that an See Matthews Absent the vocational expert’s See Burkhart v. Bowen, 856 F.2d 1335, 7 1 1341 (9th Cir. 1988) (administration may not speculate concerning the 2 requirements of particular jobs); Pinto v. Massanari, 249 F.3d at 844 3 (although the claimant has the burden of proving an inability to 4 perform his or her past relevant work, “the ALJ still has a duty to 5 make the requisite factual findings to support his [or her] 6 conclusion”); Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) 7 (“the ALJ has a special duty to fully and fairly develop the record 8 and to assure the claimant’s interests are considered . . .”). 9 10 Remand is appropriate because the circumstances of this case 11 suggest that further administrative review could remedy the ALJ’s 12 errors. 13 537 U.S. 12, 16 (2002) (upon reversal of an administrative 14 determination, the proper course is remand for additional agency 15 investigation or explanation, except in rare circumstances); Dominguez 16 v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district 17 court concludes that further administrative proceedings would serve no 18 useful purpose, it may not remand with a direction to provide 19 benefits”); Treichler v. Commissioner, 775 F.3d 1090, 1101 n.5 (9th 20 Cir. 2014) (remand for further administrative proceedings is the 21 proper remedy “in all but the rarest cases”); Garrison v. Colvin, 759 22 F.3d 995, 1020 (9th Cir. 2014) (court will credit-as-true medical 23 opinion evidence only where, inter alia, “the record has been fully 24 developed and further administrative proceedings would serve no useful 25 purpose”); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir.), cert. 26 denied, 531 U.S. 1038 (2000) (remand for further proceedings rather 27 than for the immediate payment of benefits is appropriate where there 28 are “sufficient unanswered questions in the record”). McLeod v. Astrue, 640 F.3d at 888; see also INS v. Ventura, 8 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: December 8, 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 at 1021. 9
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
