Danette T. Recio v. Nancy A. Berryhill, No. 2:2018cv02954 - Document 18 (C.D. Cal. 2018)
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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Danette T. Recio v. Nancy A. Berryhill Doc. 18 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 DANETTE T. RECIO, Plaintiff, 10 11 12 v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 18-2954-E MEMORANDUM OPINION AND ORDER OF REMAND 15 16 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 17 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 18 judgment are denied and this matter is remanded for further 19 administrative action consistent with this Opinion. 20 21 PROCEEDINGS 22 23 Plaintiff filed a complaint on April 9, 2018, seeking review of 24 the Commissioner’s denial of benefits. The parties filed a consent to 25 proceed before a United States Magistrate Judge on May 22, 2018. 26 Plaintiff filed a motion for summary judgment on August 27, 2018. 27 Defendant filed a motion for summary judgment on September 26, 2018. 28 The Court has taken both motions under submission without oral Dockets.Justia.com 1 argument. See L.R. 7-15; “Order,” filed April 17, 2018. 2 BACKGROUND 3 4 5 Plaintiff, a former reservation clerk and retail manager, claims 6 disability since January 5, 2014, based on a host of alleged 7 impairments (Administrative Record (“A.R.”) 12-760). 8 Plaintiff’s claim, the Administrative Law Judge (“ALJ”) did not have 9 the benefit of opinions from any state agency review physician. In evaluating The 10 ALJ did not order that any consultative physicians examine Plaintiff. 11 The ALJ also did not retain any medical expert. 12 Plaintiff’s treatment records, however, and found that Plaintiff 13 suffers from numerous severe impairments: “diabetes mellitus with 14 peripheral neuropathy; cervical spine spondylosis and stenosis; status 15 post cervical discectomy and interbody fusion of C3-C5 in September 16 2015; cervical spine radiculopathy; cubital syndrome left ulnar nerve 17 elbow; cervical myelopathy; left bundle branch block; hypertension; 18 left hip osteopenia; right shoulder tendinosis; rheumatoid arthritis; 19 obesity; fibromyalgia; lumbago with lumbar degenerative changes; and 20 chronic fatigue syndrome” (A.R. 12). The ALJ did examine 21 22 At the December 7, 2016 hearing before the ALJ, Plaintiff 23 testified to allegedly disabling functional limitations from her 24 severe impairments, including an asserted inability to stand more than 25 “a minute or two” and an asserted inability to walk without a walker 26 (A.R. 36-37). 27 Plaintiff had reported greater functionality, including an ability to 28 walk approximately half a mile (A.R. 186). More than two years earlier, on October 7, 2014, 2 1 Over the period of alleged disability, Plaintiff’s treatment 2 records have been inconsistent and ambiguous regarding her capacity to 3 ambulate. 4 abnormal gait and sometimes indicated a normal gait (A.R. 301, 306, 5 435, 436). 6 that Plaintiff’s gait was ataxic and that Plaintiff’s gait was normal 7 (A.R. 436). 8 or even a wheelchair (A.R. 310, 466, 494). 9 same provider who recommended a wheelchair) reflected recommendations 10 For example, records sometimes indicated an ataxic or The very same page of one treatment record indicated both Records sometimes reflected an alleged need for a walker Other records (from the that Plaintiff walk up to 30 minutes each day (A.R. 463, 477, 485). 11 12 The ALJ concluded that, despite Plaintiff’s constellation of 13 severe impairments, Plaintiff retains the residual functional capacity 14 to perform light work, including the capacity to “stand/walk for about 15 6 hours out of 8” (A.R. 15). 16 Plaintiff not disabled (A.R. 18-19). 17 review (A.R. 1-3). Based on this conclusion, the ALJ deemed The Appeals Council denied 18 STANDARD OF REVIEW 19 20 21 Under 42 U.S.C. section 405(g), this Court reviews the 22 Administration’s decision to determine if: (1) the Administration’s 23 findings are supported by substantial evidence; and (2) the 24 Administration used correct legal standards. 25 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 26 499 F.3d 1071, 1074 (9th Cir. 2007). 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 3 1 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 2 454 F.3d 1063, 1067 (9th Cir. 2006). 3 DISCUSSION 4 5 6 On the present record, substantial evidence does not support the 7 ALJ’s conclusion regarding Plaintiff’s residual functional capacity. 8 No medical opinion of record addresses Plaintiff’s work-related 9 functional capacity. The ALJ could not properly rely on the ALJ’s own 10 lay understanding to interpret the medical records and the medical 11 examination results so as to gauge the functional seriousness of 12 Plaintiff’s severe impairments. 13 1102-03 (9th Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 14 1998); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996); Day v. 15 Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). 16 assistance, the ALJ could not competently translate the medical 17 evidence in this case into a residual functional capacity assessment. 18 See Tackett v. Apfel, 180 F.3d at 1102-03 (ALJ’s residual functional 19 capacity assessment cannot stand in the absence of evidentiary 20 support); Rohan v. Chater, 98 F.3d at 970 (“ALJs must not succumb to 21 the temptation to play doctor and make their own independent medical 22 findings”); Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1995) 23 (same); Day v. Weinberger, 522 F.2d at 1156 (an ALJ is forbidden from 24 making his or her own medical assessment beyond that demonstrated by 25 the record). See Tackett v. Apfel, 180 F.3d 1094, Thus, absent expert 26 27 28 For example, the ALJ appears to have inferred from Plaintiff’s “conservative” treatment that Plaintiff’s severe fibromyalgia does not 4 1 reduce her functionality below the capacity to perform light work 2 (A.R. 17). 3 fibromyalgia had been so profound as to limit Plaintiff’s capacity 4 further, her physicians would have done something other than prescribe 5 medications and physical therapy (A.R. 17). 6 expertise to draw this speculative inference. 7 competent to opine regarding the relationship, if any, between 8 particular fibromyalgia treatments and the particular limiting effects 9 of fibromyalgia symptoms. The ALJ apparently reasoned that, if Plaintiff’s The ALJ lacks the medical The ALJ is not See, id.; see also Revels v. Berryhill, 874 10 F.3d 648, 662 (9th Cir. 2017) (“In evaluating whether a claimant’s 11 residual functional capacity renders them [sic] disabled because of 12 fibromyalgia, the medical evidence must be construed in light of 13 fibromyalgia’s unique symptoms and diagnostic methods . . .”); cf. 14 Rudder v. Colvin, 2014 WL 3773565, at *12 (N.D. Ill. July 30, 2014) 15 (“The ALJ may be correct that disabling limitations from multiple 16 sclerosis would result in more frequent treatment or need for 17 medication. 18 conclusion in his opinion because he is not qualified, on his own, to 19 make such determinations.”) (citations and quotations omitted). However, the ALJ must include evidence to support such a 20 21 For further example, the record contains scans and x-rays 22 pertaining to Plaintiff’s severe orthopedic impairments (A.R. 269-70, 23 335, 361, 390). 24 readings of these scans and x-rays would also appear to be beyond the 25 medical expertise of the ALJ. Inferring functional capacity from the radiologists’ 26 27 28 The ALJ should have more fully and fairly developed the inconsistent and ambiguous record in the present case. 5 See Sims v. 1 Apfel, 530 U.S. 103, 110-11 (2000) (“Social Security proceedings are 2 inquisitorial rather than adversarial. 3 investigate the facts and develop the arguments both for and against 4 granting benefits. . . .”); Mayes v. Massanari, 276 F.3d 453, 459-60 5 (9th Cir. 2001) (ALJ’s duty to develop the record further is triggered 6 “when there is ambiguous evidence or when the record is inadequate to 7 allow for the proper evaluation of the evidence”) (citation omitted); 8 Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (“[T]he ALJ has a 9 special duty to fully and fairly develop the record to assure the It is the ALJ’s duty to 10 claimant’s interests are considered. This duty exists even when the 11 claimant is represented by counsel.”). 12 have ordered examinations and evaluations of Plaintiff by consultative 13 physicians having the appropriate specialties. 14 270 F.3d 838, 843 (9th Cir. 2001) (where available medical evidence is 15 insufficient to determine the severity of the claimant's impairment, 16 the ALJ should order a consultative examination by a specialist); 17 accord Kish v. Colvin, 552 Fed. App'x 650, 651 (9th Cir. 2014). In particular, the ALJ should See Reed v. Massanari, 18 The Court is unable to deem the errors in the present case to 19 20 have been harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th 21 Cir. 2012) (an error “is harmless where it is inconsequential to the 22 ultimate non-disability determination”) (citations and quotations 23 omitted); McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (error 24 not harmless where “the reviewing court can determine from the 25 ‘circumstances of the case’ that further administrative review is 26 needed to determine whether there was prejudice from the error”). 27 /// 28 /// 6 Remand is appropriate because the circumstances of this case 1 2 suggest that an expansion of the record and further administrative 3 review could remedy the error discussed herein. 4 F.3d at 888; see also INS v. Ventura, 537 U.S. 12, 16 (2002) (upon 5 reversal of an administrative determination, the proper course is 6 remand for additional agency investigation or explanation, except in 7 rare circumstances); Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 8 2018) (“an automatic award of benefits in a disability benefits case 9 is a rare and prophylactic exception to the well-established ordinary 10 remand rule”); Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) 11 (“Unless the district court concludes that further administrative 12 proceedings would serve no useful purpose, it may not remand with a 13 direction to provide benefits”); Treichler v. Commissioner, 775 F.3d 14 at 1101 n.5 (remand for further administrative proceedings is the 15 proper remedy “in all but the rarest cases”); Harman v. Apfel, 211 16 F.3d 1172, 1180-81 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) 17 (remand for further proceedings rather than for the immediate payment 18 of benefits is appropriate where there are “sufficient unanswered 19 questions in the record”). 20 questions in the present record relating to Plaintiff’s residual 21 functional capacity. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// McLeod v. Astrue, 640 There remain significant unanswered 7 CONCLUSION 1 2 3 For all of the foregoing reasons,1 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 DATED: October 5, 2018. 9 10 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 27 28 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. 8
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