Eliezer Diaz v. Carolyn W. Colvin, No. 5:2014cv01704 - Document 25 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen L. Stevenson. For the reasons stated above, IT IS ORDERED that the decision of the Commissioneris REVERSED, and this case is REMANDED pursuant to sentence six of 42 U.S.C. § 405(g) for further proceedings consistent with this Memorandum Opinion and Order.*Refer to Order for details.* (es)
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Eliezer Diaz v. Carolyn W. Colvin Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 ELIEZER DIAZ, 12 13 Plaintiff, v. 14 15 16 17 CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. _________________________________ ) NO. EDCV 14-1704-KLS ) ) ) MEMORANDUM OPINION AND ORDER ) ) ) ) ) 18 19 INTRODUCTION 20 21 Plaintiff filed a Complaint on August 19, 2014, seeking review of the denial of his 22 application for disability insurance benefits (“DIB”). On June 26, 2015, the parties filed a 23 Joint Stipulation (“Joint Stip.”) in which plaintiff seeks an order reversing the 24 Commissioner’s decision and either ordering the immediate payment of benefits or 25 remanding the matter for further administrative proceedings. (Joint Stip. at 20-21.) The 26 Commissioner requests that the Court affirm the ALJ’s decision or, should the Court reverse 27 the decision, remand for further administrative proceedings in lieu of ordering immediate 28 payment of benefits. (Id. at 21-22.) On August 12 and 17, 2015, the parties consented, 1 Dockets.Justia.com 1 pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate 2 Judge. (Dkt. Nos. 22-24.) The Court has taken the matter under submission without oral 3 argument. 4 5 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 6 7 On June 8, 2011, plaintiff applied for a period of disability and DIB. (Administrative 8 Record (“A.R.”) 12, 149.) Plaintiff alleged disability commencing February 1, 2006, due to 9 “[h]ypertension with heart problems and severe upper back pain,” lower back pain, “anxiety 10 attacks,” “prostate problems,” “stroke,” “heart condition,” “vertigo,” and “neck injury.” (Id. 11 12, 149, 153.) Plaintiff’s prior relevant work experience included a job as a driller machine 12 builder, and working in his family business providing paralegal services. (Id. 14, 154.) The 13 Commissioner denied plaintiff’s application on August 26, 2011. (Id. 65-69.) On January 14 19, 2012, the Commissioner denied plaintiff’s request for reconsideration. (Id. 73-78.) On 15 February 15, 2012, plaintiff requested a hearing. (Id. 79-80.) On December 12, 2012, 16 plaintiff, who was represented by counsel, testified before Administrative Law Judge James 17 P. Nguyen (“ALJ”). (Id. 23-41.) Troy Scott, a vocational expert, also testified. (Id. 41- 18 44.) On January 11, 2013, the ALJ issued an unfavorable decision, denying plaintiff’s claim 19 for DIB. (Id. 9-17.) On June 25, 2014, the Appeals Council denied plaintiff’s request for 20 review. (Id. 1-3.) 21 22 SUMMARY OF ADMINISTRATIVE DECISION 23 24 The ALJ found that, although plaintiff had worked after the alleged disability onset 25 date of February 1, 2006, the work activity since that date did not rise to the level of 26 substantial gainful activity. (A.R. 14.) The ALJ further found that plaintiff had the 27 following severe impairments: “hypertension, bilateral heel spurs, early-onset degenerative 28 joint disease with mild wedging in the thoracic spine, degenerative disc disease involving the 2 1 lumbar spine and cervical spine, mild atherosclerosis with no stenosis, high cholesterol and 2 vertigo.” (Id.) The ALJ concluded that plaintiff did not have an impairment or combination 3 of impairments that met or medically equaled the severity of any impairments listed in 20 4 C.F.R. part 404, subpart P, appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). (Id. 5 15.) The ALJ determined that plaintiff had the residual functional capacity (“RFC”) to 6 perform light work as defined in 20 C.F.R. § 404.1567(b), except that plaintiff “is unable to 7 climb ladders, ropes and scaffolds and should avoid working around moving machinery or a 8 [sic] unprotected heights.” 9 performing his past relevant work in paralegal services, as that work did not require any 10 (Id. 15-16) The ALJ found that plaintiff was capable of activities precluded by his RFC, and that plaintiff was not disabled. (Id. 16-17.) 11 12 STANDARD OF REVIEW 13 14 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 15 determine whether it is free from legal error and supported by substantial evidence in the 16 record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence 17 is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a 18 reasonable mind might accept as adequate to support a conclusion.’” Gutierrez v. Comm’r of 19 Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal citations omitted). “Even when the 20 evidence is susceptible to more than one rational interpretation, we must uphold the ALJ’s 21 findings if they are supported by inferences reasonably drawn from the record.” Molina v. 22 Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). 23 24 Although this Court cannot substitute its discretion for the Commissioner’s, the Court 25 nonetheless must review the record as a whole, “weighing both the evidence that supports 26 and the evidence that detracts from the [Commissioner’s] conclusion.” Lingenfelter v. 27 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal quotation marks and citation omitted); 28 Desrosiers v. Sec’y of Health & Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988). “The ALJ 3 1 is responsible for determining credibility, resolving conflicts in medical testimony, and for 2 resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 3 4 The Court will uphold the Commissioner’s decision when the evidence is susceptible 5 to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 6 2005). However, the Court may review only the reasons stated by the ALJ in his decision 7 “and may not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d at 8 630; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The Court will not 9 reverse the Commissioner’s decision if it is based on harmless error, which exists only when 10 it is “clear from the record that an ALJ’s error was ‘inconsequential to the ultimate 11 nondisability determination.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 12 2006) (quoting Stout v. Comm’r of Soc. Sec., 454 F.3d 1050, 1055 (9th Cir. 2006)); see also 13 Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1162 (9th Cir. 2008). 14 DISCUSSION 15 16 17 Plaintiff alleges two errors in the ALJ’s decision: (1) that a subsequent grant of 18 benefits finding plaintiff disabled as of January 12, 2013, one day after the ALJ published an 19 unfavorable decision in this case, warrants remand of this case to consider the onset date of 20 disability;1 and (2) the ALJ failed to provide clear and convincing reasons for finding 21 plaintiff not credible. (Joint Stip. at 4.) 22 // 23 // 24 // 25 26 27 28 1 Plaintiff contends that he received a subsequent award of benefits with a disability onset date of one day following the ALJ’s January 11, 2013 unfavorable decision. (Joint Stip. at 4.) The Commissioner does not dispute this assertion. (Id.) However, the Court notes that the Joint Stipulation refers to the disability onset date for the subsequent award of benefits as “January 12, 2012”. (Joint Stip. at 4.) It would appear to the Court that the reference to “January 12, 2012” is a typographical error as the subsequent award letter states “We found that you became disabled under our rules on January 12, 2013.” (Joint Stip. Ex. 1.) 4 1 2 I. Remand is Appropriate to Reconcile the Subsequent Grant of Benefits With the ALJ’s Unfavorable Decision 3 4 Pursuant to sentence six of 42 U.S.C. § 405(g), the court may remand and order the 5 Commissioner to take additional evidence “upon a showing that there is new evidence which 6 is material and that there is good cause for the failure to incorporate such evidence into the 7 record in a prior proceeding.” 42 U.S.C. § 405(g); see also Shalala v. Schaefer, 509 U.S. 8 292, 297 n.1 (1993). New evidence is “material” within the meaning of section 405(g) if it 9 bears directly and substantially on the matter in dispute and there is a reasonable possibility 10 that the new evidence would have changed the outcome of the agency’s determination. See 11 Bruton v. Massanari, 268 F.3d 824, 827 (9th Cir. 2001) (quoting Booz v. Sec’y of Health & 12 Human Servs., 734 F.2d 1378, 1380 (9th Cir.1984) (internal quotation marks, brackets, and 13 ellipsis omitted)). The Ninth Circuit has held that good cause is shown where the new 14 evidence was not previously available. Wainright v. Sec’y of Health & Human Servs., 939 15 F.2d 680, 683 (9th Cir. 1991). 16 17 Here, the ALJ published an unfavorable decision denying plaintiff DIB on January 11, 18 2013. (A.R. 12-17.) Plaintiff asserts that he was awarded DIB in a subsequent benefits 19 claim in which the Agency found him disabled as of January 12, 2013, just one day after the 20 previous unfavorable decision. (Joint Stip. at 4.) Plaintiff, citing the Ninth Circuit’s opinion 21 in Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010), contends that remand for an award of 22 benefits is appropriate given the close proximity of the ALJ’s adverse decision and the 23 subsequent grant of benefits. (Joint Stip. at 4-5.) The Commissioner argues that Luna is not 24 applicable and that remand is not warranted based on the Ninth’s Circuit’s decision in Bruton 25 v. Massanari, 268 F.3d 824 (9th Cir. 2001), which denied remand based on a subsequent 26 award of benefits where a claimant was found disabled as of the day after a prior adverse 27 decision. Id. at 826-27. 28 falls within the reasoning of Luna and remand is warranted. For the reasons discussed below, this Court finds that this case 5 1 In Luna, the claimant made an initial application for social security benefits alleging 2 disability as of November 30, 2001. Luna, 623 F.3d at 1033. The ALJ denied her claims on 3 January 27, 2006. Id. at 1034. Luna appealed the denial to the district court. Id. While her 4 appeal was pending, the claimant filed a second application for benefits, which was granted 5 on August 20, 2007 and the Commissioner found her disabled as of January 28, 2006, one 6 day after the date she was found not disabled in her first application. Id. On appeal to the 7 district court, the parties agreed that the case should be remanded to reconcile the denial of 8 benefits based on the first application with the grant of benefits in connection with her 9 second application, but they disagreed about the terms of the remand. Id. Luna argued that 10 the subsequent grant of benefits indicated she was disabled for the earlier time period that 11 was the subject of her first application and sought remand with an award of benefits for the 12 earlier time period. Id. The Commissioner argued that the appropriate resolution was 13 remand for further administrative proceedings. Id. The district court ultimately remanded for 14 further administrative proceedings to reconsider whether Luna was actually disabled during 15 the period covered by her first application. Id. 16 court’s remand for further consideration, finding “[t]he ‘reasonable possibility’ that the 17 subsequent grant of benefits was based on new evidence not considered by the ALJ as part of 18 the first application indicates that further consideration of the factual issues is appropriate to 19 determine whether the outcome of the first application should be different.” Id. at 1035. The Ninth Circuit affirmed the district 20 21 In Bruton, on the other hand, the Ninth Circuit rejected the claimant’s motion to 22 remand based on a subsequent award of benefits for the period beginning one day after the 23 date of the prior decision denying benefits. In that case, the Ninth Circuit explained that 24 because the claimant’s “second application involved different medical evidence, a different 25 time period, and a different age classification,” the court could conclude that the subsequent 26 decision to award benefits was “not inconsistent” with the prior, final decision denying 27 benefits. Bruton, 268 F.3d at 827. 28 6 1 Here, unlike in Bruton, the record does not include any information presented in 2 support of the second application. Nor is there any indication that such information was 3 considered by the ALJ in denying plaintiff’s first application. Indeed, in this case, the parties 4 dispute whether the medical evidence and factual findings regarding the subsequent grant of 5 benefits are properly in the Commissioner’s possession. (See Joint Stip. at 4 fn.1 versus 6 Joint Stip. at 10 fn.3.) Further, the award letter for the subsequent award of benefits states 7 that plaintiff “filed for benefits on August 2, 2014” (Joint Stip., Ex. 1). Thus, it is clear that 8 the good cause element under Wainwright is met because the subsequent favorable decision 9 was not available prior to the Appeals Council’s decision not to review the case on June 25, 10 2014 (Joint Stip. at 3.) Consequently, this Court cannot determine from the record whether 11 the second application involved the same or different medical evidence, a different time 12 period, and a different age classification, than the first application. 2 13 14 Given the lack of information in the record to allow the Court to determine whether 15 the information evaluated in each of plaintiff’s applications was similar or not, there is at 16 least “a reasonable possibility” that the subsequent grant of benefits was based on new 17 evidence not considered by the ALJ in denying the first application. These facts make this 18 case nearly indistinguishable from Luna and remand is appropriate. See Luna, 623 F.3d at 19 1035; see also Nguyen v. Comm’r, 489 Fed. Appx. 209, 210 (9th Cir. 2012) (remanding to 20 ALJ to allow parties “to present any new evidence submitted during the second proceeding 21 that pertains to the period of disability for the first application” and directing that the ALJ 22 reconsider whether claimant was “actually disabled during the period of time relevant to his 23 first application in light of any new evidence of disability”); Ceja v. Colvin, 2013 U.S. Dist. 24 25 2 26 27 28 Age classification can have significant vocational implications in a DIB analysis. See 20 C.F.R. § 416.963(c)-(e). Plaintiff was born on August 3, 1952. (AR 25.) On June 9, 2011, the date he filed his first application for DIB, he was 58 years old. On January 11, 2013, the date of the ALJ’s adverse decision in this case, plaintiff was 60 years old. Under the Social Security Administration’s regulations, a person age 55 or older is classified as a “Person of advanced age.” 20 C.F.R. § 416.963(e). The regulations further provide that “We have special rules for persons of advanced age and for persons in this category who are closely approaching retirement age (age 60 or older).” Id. (citing § 416.968(d) (4)). 7 1 LEXIS 143904 (C.D. Cal. Sept. 30, 2013) (remanding for further proceedings where district 2 court was unable to reconcile two conflicting disability decisions or to assess the records on 3 which they were based).3 4 5 Accordingly, this Court finds that remand is warranted for further administrative 6 proceedings to reconcile the two different disability determinations and determine whether 7 the new evidence would have changed the ALJ’s determination that plaintiff was not 8 disabled during the time period relevant to plaintiff’s first application. 9 10 II. Plaintiff’s Credibility 11 12 Plaintiff also contends that the ALJ’s failure to provide clear and convincing reasons 13 for finding plaintiff not credible was legal error. (A.R. 4, 12-4.) A claimant has the threshold 14 burden to “present medical findings establishing an impairment.” Bunnell v. Sullivan, 947 15 F.2d 341, 345 (9th Cir. 1991) (en banc) (internal citations omitted). Once this prerequisite is 16 met, “the adjudicator must then consider the claimant’s alleged severity of pain.” Id. In the 17 absence of malingering, “the ALJ can reject the claimant’s testimony about the severity of 18 [his] symptoms only by offering specific, clear and convincing reasons for doing so.” Smolen 19 v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citing Cotton v. Bowen 799 F.2d 1403 (9th 20 Cir. 1986)); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); see also 20 C.F.R. § 21 404.1529(c). Here, there is no evidence of malingering. Plaintiff argues that the ALJ erred in 22 finding plaintiff’s “statements concerning the intensity, persistence and limiting effects of 23 [his] symptoms are not entirely credible” based on the ALJ’s finding that plaintiff’s medical 24 25 3 26 27 28 The Commissioner, relying upon the Sixth Circuit’s decision in Allen v. Comm’r, 561 F.3d 646 (6th Cir. 2009), argues that a subsequent favorable decision, rather than the evidence supporting that decision, does not constitute new and material evidence under § 405(g). (Joint Stip. at 10-11.) In Allen, the Sixth Circuit concluded that the district court in Luna (which the Ninth Circuit later affirmed) “misapplied § 405(g)” and rejected the Ninth Circuit’s reasoning in Bruton. Allen, 561 F.3d at 654. Allen does not control here, as it predates the Ninth Circuit’s opinion in Luna and the Sixth Circuit’s ruling is not binding authority for this Court. 8 1 treatment “has been routine, relatively infrequent, appropriate and entirely conservative.” 2 (A.R. 16.) 3 [plaintiff] takes his medication as prescribed his symptoms cannot be controlled.” (Id.) 4 Because this matter is remanded for further administrative proceedings to reconcile plaintiff’s 5 first and second applications, the ALJ is free to reconsider this issue.4 The ALJ also concluded that “there is no contraindication in the record that if 6 7 II. Remand Is Warranted 8 9 The decision whether to remand for further proceedings or order an immediate award 10 of benefits is within the district court’s discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 11 (9th Cir. 2000). “A remand for an immediate award of benefits, is appropriate, however only 12 in ‘rare circumstances.’” Brown-Hunter v. Colvin, 2015 U.S. App. LEXIS 13560 (9th Cir. 13 2015) (internal citation omitted). Before ordering a remand for an immediate award of 14 benefits, the Court must conclude that “the record has been fully developed and further 15 administrative proceedings would serve no useful purpose.” Garrison v. Colvin, 759 F.3d 16 995, 1020 (9th Cir. 2014). 17 18 In this case, it is yet unclear whether proper consideration and characterization of all 19 the available medical evidence needed to reconcile the plaintiff’s first and second 20 applications, would lead to a disability finding as to the first application that is the subject of 21 this action. For this reason, the Court finds there are outstanding issues that must be resolved 22 before a determination of disability can be made. Accordingly, the Court remands for further 23 development of the record with respect to the evidence supporting plaintiff’s subsequent 24 grant of benefits as well as a proper evaluation of plaintiff’s credibility. See Connett v. 25 26 4 27 28 The Court notes that there is a clear inconsistency in the ALJ’s finding in one portion of the decision that plaintiff “has never lost consciousness” (AR 15) and a statement in another part of the decision noting that plaintiff had been seen at the emergency room of Beverly Hills Hospital after plaintiff “apparently passed out after becoming lightheaded and dizzy.” (AR 16.) 9 1 Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (remanding for further determinations, 2 including reconsideration of credibility determination). 3 4 CONCLUSION 5 6 For the reasons stated above, IT IS ORDERED that the decision of the Commissioner 7 is REVERSED, and this case is REMANDED pursuant to sentence six of 42 U.S.C. § 405(g) 8 for further proceedings consistent with this Memorandum Opinion and Order. 9 10 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this 11 Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for 12 defendant. 13 14 15 LET JUDGMENT BE ENTERED ACCORDINGLY. . 16 17 DATE: September 24, 2015 18 ___________________________________ KAREN L. STEVENSON UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 10
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