Shirley Driskell v. Michael J. Astrue, No. 5:2007cv01219 - Document 22 (C.D. Cal. 2008)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle: IT IS ORDERED that: 1. The decision of the Commissioner is REVERSED. 2. This action is REMANDED to defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above. 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. (See document for further details.) (pcl)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 13 14 15 16 17 SHIRLEY DRISKELL, ) ) Plaintiff, ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner, Social Security ) Administration, ) ) Defendant. ) ) No. EDCV 07-1219 CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned Magistrate Judge. 21 review of the Commissioner s denial of disability benefits. 22 discussed below, the court finds that the Commissioner s decision 23 should be reversed and this matter remanded for further proceedings. 24 25 I. Plaintiff seeks As BACKGROUND Plaintiff Shirley Driskell was born on July 22, 1964, and was 26 forty-two years old at the time of her administrative hearing. 27 [Administrative Record ( AR ) 70, 273.] 28 education and past relevant work experience as a secretary. [AR 75, 1 She has a high school 1 79.] Plaintiff alleges disability on the basis of chronic 2 obstructive pulmonary disease aka emphysema. [AR 74.] 3 II. 4 PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on September 21, 2007, and filed 5 on October 9, 2007. 6 plaintiff s Administrative Record ( AR ). 7 parties filed their Joint Stipulation ( JS ) identifying matters not 8 in dispute, issues in dispute, the positions of the parties, and the 9 relief sought by each party. 10 On May 22, 2008, defendant filed an answer and On September 2, 2008, the This matter has been taken under submission without oral argument. 11 III. 12 PRIOR ADMINISTRATIVE PROCEEDINGS Plaintiff applied for supplemental security income ( SSI ) under 13 Title XVI of the Social Security Act on February 8, 2005, alleging 14 disability since November 2, 2003. [JS 2, AR 12.] 15 application was denied initially and upon reconsideration, plaintiff 16 requested an administrative hearing, which was held on April 13, 2007, 17 before Administrative Law Judge ( ALJ ) F. Keith Varni. [AR 273.] 18 Plaintiff appeared with counsel and testified at the hearing. [AR 19 274.] 20 12-17.] 21 ALJ s decision became the Commissioner s final decision. [AR 3.] 22 23 After the The ALJ denied benefits in a decision dated April 23, 2007. [AR When the Appeals Council denied review on August 6, 2007, the IV. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 24 Commissioner s decision to deny benefits. 25 ALJ s) findings and decision should be upheld if they are free of 26 legal error and supported by substantial evidence. 27 court determines that a finding is based on legal error or is not 28 supported by substantial evidence in the record, the court may reject 2 The Commissioner s (or However, if the 1 the finding and set aside the decision to deny benefits. 2 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 3 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 4 F.3d 1157, 1162 (9th Cir. 5 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 6 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 7 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 8 9 See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a preponderance. Reddick, 157 F.3d at 720. It is relevant evidence 10 which a reasonable person might accept as adequate to support a 11 conclusion. 12 a finding, a court must review the administrative record as a whole, 13 weighing both the evidence that supports and the evidence that 14 detracts from the Commissioner s conclusion. 15 can reasonably support either affirming or reversing, the reviewing 16 court may not substitute its judgment for that of the Commissioner. 17 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. To determine whether substantial evidence supports 18 V. Id. If the evidence DISCUSSION 19 A. 20 To be eligible for disability benefits a claimant must THE FIVE-STEP EVALUATION 21 demonstrate a medically determinable impairment which prevents the 22 claimant from engaging in substantial gainful activity and which is 23 expected to result in death or to last for a continuous period of at 24 least twelve months. 25 721; 42 U.S.C. § 423(d)(1)(A). Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 26 Disability claims are evaluated using a five-step test: 27 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. 28 3 1 Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 2 3 4 5 6 7 8 9 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 10 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 11 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 12 C.F.R. § 404.1520, § 416.920. 13 not disabled at any step, there is no need to complete further 14 steps. 15 If a claimant is found disabled or Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. Claimants have the burden of proof at steps one through four, 16 subject to the presumption that Social Security hearings are non- 17 adversarial, and to the Commissioner s affirmative duty to assist 18 claimants in fully developing the record even if they are represented 19 by counsel. 20 1288. 21 made, and the burden shifts to the Commissioner (at step five) to 22 prove that, considering residual functional capacity ( RFC )1, age, Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at If this burden is met, a prima facie case of disability is 23 24 25 26 27 28 1 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 4 1 education, and work experience, a claimant can perform other work 2 which is available in significant numbers. 3 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098, 4 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 5 Here, the ALJ found that plaintiff had not engaged in substantial 6 gainful activity since her alleged disability onset date (step one). 7 [AR 14.] 8 a medically determinable impairment and, even if she did, it would not 9 be severe because it would not impair her ability to perform basic At step two, the ALJ determined that plaintiff did not have 10 work-related activities for twelve consecutive months. [Id.] 11 Accordingly, plaintiff was found not disabled as defined by the 12 Social Security Act. [AR 17.] 13 C. 14 The parties Joint Stipulation identifies five disputed issues: 15 1. 16 ISSUES IN DISPUTE Whether the ALJ properly considered evidence of plaintiff s mental impairment; 17 2. Whether the ALJ properly considered plaintiff s testimony; 18 3. Whether the ALJ properly considered evidence of plaintiff s 19 20 medication side effects; 4. Whether the ALJ properly considered whether plaintiff s mental impairment was severe ; and 21 22 5. Whether the ALJ fully developed the record. 23 [JS 5.] 24 As discussed below, Issue Five is dispositive. 25 D. 26 During the administrative hearing, plaintiff testified that she DEVELOPMENT OF THE RECORD 27 28 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 had experienced depression off and on for years but that it had 2 gotten worse in the previous year and a half to two years. [AR 278.] 3 Plaintiff claimed symptoms such as crying, nervousness and problems 4 with concentration. [Id.] 5 similar complaints to a rheumatologist. [AR 112.] 6 rheumatology visit, the physician reported that plaintiff was seeing, 7 among others, a psychiatric specialist regularly and that she had a 8 prescription for Trazadone and Lamactil as a mood stabilizer. [AR 9 272.] 10 The record indicates that plaintiff made At a separate In the administrative decision, the ALJ noted plaintiff s 11 testimony alleging depression but found that, there is no documented 12 medically determined mental impairment and a consultative psychiatric 13 evaluation at this point would be insufficient to establish one that 14 has lasted or is expected to last twelve months. [AR 17.] 15 Accordingly, no consultative psychiatric examination was ordered. 16 Plaintiff argues that the ALJ failed to fully develop the record on 17 this issue. [JS 14.] 18 The ALJ has a special duty to fully and fairly develop the 19 record and to assure that the claimant s interests are considered 20 . . . even when the claimant is represented by counsel. Celaya v. 21 Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) (ellipsis in original) 22 (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir.1983); Smolen v. 23 Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). 24 proceedings are inquisitorial rather than adversarial. 25 ALJ s duty to investigate the facts and develop the arguments both for 26 and against granting of benefits. 27 110-111, 120 S. Ct. 2080, 147 L. Ed 2d 80 (2000); see also Widmark v. 28 Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006)( it is incumbent upon Social Security It is the Sims v. Apfel, 530 U.S. 103, 6 1 the ALJ to scrupulously and conscientiously probe into, inquire of, 2 and explore for all the relevant facts and to remain especially 3 diligent in ensuring that favorable as well as unfavorable facts and 4 circumstances are elicited )(quoting Cox v. Califano, 487 F.2d 988, 5 991 (9th Cir. 1978)). 6 that the record is inadequate to allow for proper evaluation of the 7 evidence, triggers the ALJ s duty to conduct an appropriate 8 inquiry. Id. (citing Smolen, 80 F.3d at 1288). 9 Ambiguous evidence, or the ALJ s own finding In this case, the record should have been developed further with 10 regard to plaintiff s alleged mental impairments. The existing 11 evidence indicates that plaintiff had complained of recurring 12 depression, reported her complaints to a physician, and received 13 medication for it. 14 ambiguous as to whether plaintiff has a medically determinable mental 15 impairment, triggering the need for further development of an adequate 16 record. 17 2006)(finding independent duty to develop record when plaintiff merely 18 raised a suspicion concerning an alleged mental impairment). 19 extent that defendant argues that there was no duty to develop the 20 record because plaintiff failed to satisfy her burden of proving 21 disability and furnishing supporting evidence [JS 15], this confuses 22 the burden of proof, which is clearly on the claimant at step two, 23 with the ALJ s independent duty to develop the record, which is 24 triggered by ambiguous evidence. Id. (citing Tonapetyan, 424 F.3d at 25 1151); see also Widmark, 454 F.3d 1063 (finding duty to develop record 26 when record was ambiguous even when plaintiff failed to specifically 27 allege impairment in connection with disability claim). 28 remand for further proceedings is appropriate. Under these circumstances, the record was See Hilliard v. Barnhart, 442 F. Supp. 2d 813, 817 (N.D. Cal. 7 To the Accordingly, 1 E. REMAND FOR FURTHER PROCEEDINGS 2 The decision whether to remand for further proceedings is within 3 the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 4 1175-1178 (9th Cir. 2000). 5 further proceedings, or where the record has been fully developed, it 6 is appropriate to exercise this discretion to direct an immediate 7 award of benefits. 8 remand for further proceedings turns upon their likely utility). 9 However, where there are outstanding issues that must be resolved 10 before a determination can be made, and it is not clear from the 11 record that the ALJ would be required to find the claimant disabled if 12 all the evidence were properly evaluated, remand is appropriate. 13 Here, as set out above, outstanding issues remain before a finding of 14 disability can be made. Where no useful purpose would be served by Harman, 211 F.3d at 1179 (decision whether to 15 Id. Accordingly, remand is appropriate. VI. ORDERS 16 Accordingly, IT IS ORDERED that: 17 1. The decision of the Commissioner is REVERSED. 18 2. This action is REMANDED to defendant, pursuant to Sentence 19 Four of 42 U.S.C. § 405(g), for further proceedings as discussed 20 above. 21 22 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 23 24 25 26 DATED: October 15, 2008 ___________/S/___________________ CARLA M. WOEHRLE United States Magistrate Judge 27 28 8

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