Amanda Brittney Broussard v. Andrew Saul, No. 5:2019cv01844 - Document 18 (C.D. Cal. 2020)
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)
Download PDF
<![CDATA[
Amanda Brittney Broussard v. Andrew Saul 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 AMANDA B. B., ) ) Plaintiff, ) ) v. ) ) ANDREW SAUL, Commissioner of ) Social Security Administration, ) ) Defendant. ) ____________________________________) NO. ED CV 19-1844-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 September 25, 2019, seeking 26 review of the Commissioner’s denial of benefits. The parties 27 consented to proceed before a United States Magistrate Judge on 28 November 11, 2019. Plaintiff filed a motion for summary judgment on Dockets.Justia.com 1 February 18, 2020. Defendant filed a motion for summary judgment on 2 March 17, 2020. 3 without oral argument. 4 2019. The Court has taken the motions under submission See L.R. 7-15; “Order,” filed October 2, 5 6 BACKGROUND 7 8 9 Plaintiff asserts disability since December 5, 2013, based on numerous alleged physical and mental impairments (Administrative 10 Record (“A.R.”) 212, 232, 238, 273, 285, 287). An Administrative Law 11 Judge (“ALJ”) reviewed the record and heard testimony from a 12 vocational expert and from Plaintiff, who appeared at the hearing 13 without representation (A.R. 21-30, 36-57). 14 15 Of Plaintiff’s numerous alleged impairments, the ALJ found 16 severe only Plaintiff’s fibromyalgia and anxiety disorder (A.R. 23). 17 The ALJ stated that Plaintiff retains a residual functional capacity 18 for sedentary work, limited to: (1) routine, repetitive tasks with no 19 contact with the public and only occasional teamwork (more than five 20 people); and (2) no being off task for more than five percent of the 21 time, no being absent from work more than two times a month,1 no 22 hypervigilance, no quick decision making, no rapid physical 23 activities, and no complex tasks (A.R. 25-29 (“lowering” Plaintiff’s 24 residual functional capacity from that assessed by state agency 25 physicians assertedly “to reflect the limitations of [Plaintiff’s] 26 27 28 1 The ALJ’s decision states that Plaintiff would miss work “one to time [sic] times a month” (A.R. 25). The Court has interpreted this statement as meaning “one to two times a month.” 2 1 fibromyalgia,” and rejecting Plaintiff’s subjective complaints 2 claiming greater limits)). 3 capacity, Plaintiff could perform jobs existing in significant 4 numbers in the national economy (A.R. 29-30 (adopting vocational 5 expert testimony at A.R. 53-56)). 6 (A.R. 1-3). The ALJ determined that, with this The Appeals Council denied review 7 8 STANDARD OF REVIEW 9 10 Under 42 U.S.C. section 405(g), this Court reviews the 11 Administration’s decision to determine if: (1) the Administration’s 12 findings are supported by substantial evidence; and (2) the 13 Administration used correct legal standards. 14 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 15 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 16 682 F.3d 1157, 1161 (9th Cir. 2012). 17 relevant evidence as a reasonable mind might accept as adequate to 18 support a conclusion.” 19 (1971) (citation and quotations omitted); see also Widmark v. 20 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). See Carmickle v. Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 21 22 If the evidence can support either outcome, the court may 23 not substitute its judgment for that of the ALJ. 24 Commissioner’s decision cannot be affirmed simply by 25 isolating a specific quantum of supporting evidence. 26 Rather, a court must consider the record as a whole, 27 weighing both evidence that supports and evidence that 28 detracts from the [administrative] conclusion. 3 But the 1 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 2 quotations omitted). 3 4 DISCUSSION 5 6 After consideration of the record as a whole, the Court reverses 7 the Administration’s decision in part and remands the matter for 8 further administrative proceedings. 9 Administration materially erred in evaluating the evidence of record. As discussed below, the 10 11 I. Summary of the Relevant Medical Evidence 12 13 A. Treatment Records 14 15 The Administrative Record contains periodic treatment notes from 16 the Akmakjian Spine and General Orthopaedics Center during October, 17 2011 - December, 2016 (A.R. 394-95, 477-500, 550-57). 18 also contains periodic treatment notes from primary care physician 19 Dr. Arthur Jimenez during August, 2014 - December, 2016 (A.R. 385-89, 20 541-44). The record Both sets of notes are difficult to decipher. 21 22 Plaintiff first presented to Dr. Akmakjian in October of 2011, 23 complaining of, inter alia, back pain, headaches, joint pain in her 24 knees, shoulders and hands and numbness/weakness in her back and 25 hands (A.R. 499). 26 leg raising test (A.R. 498). 27 nucleus pulposis at L5-S1, lumbar degenerative disc disease, low back 28 pain and sciatica (based in part on an October, 2011 MRI) (A.R. 498). On examination, Plaintiff had a positive straight She was diagnosed with a herniated 4 1 She was prescribed Norco and three lumbar epidural steroid injections 2 (A.R. 498). 3 4 In January of 2012, Plaintiff complained of increasing low back 5 pain and left lower extremity radiculitis (A.R. 497). 6 examination, she had positive straight leg raising, positive 7 Lasegue’s test, and spasm (A.R. 497). 8 headaches (A.R. 497). 9 radiculitis, and her Norco was continued (A.R. 497). 10 On She reportedly was also having She was diagnosed with left lower extremity She then was awaiting approval for a lumbar epidural steroid injection (A.R. 497). 11 12 In February, June and December of 2012, Plaintiff continued to 13 report pain (A.R. 494-96). By June, she was attending physical 14 therapy and had undergone two lumbar spine epidural injections, which 15 reportedly provided only some relief (A.R. 495). 16 Plaintiff had tenderness to palpation along the lumbar spine with 17 radiculopathy in the left leg, positive left straight leg raising, 18 and positive left Lasegue’s test (A.R. 495). 19 and medications were continued (A.R. 495). 20 MRI was ordered due to Plaintiff’s worsening symptoms, and she was 21 given a TENS unit (A.R. 495). On examination, Her physical therapy In December, an updated 22 23 In January of 2013, Plaintiff complained of worsening right hip 24 pain and groin pain (A.R. 493). Pelvis and bilateral hip x-rays were 25 ordered (A.R. 493). 26 worsening low back pain, and she reported that her lumbar epidural 27 injections had not helped (A.R. 492). 28 facet block injection, and her Norco was continued (A.R. 492). In July of 2013, Plaintiff complained of 5 She was prescribed a lumbar 1 In September of 2013, Plaintiff reported persistent low back 2 pain (A.R. 491). Examination results were largely unchanged from 3 prior examinations (A.R. 491). 4 arthritis, her medications were continued, and her doctor scheduled 5 an MRI and a facet block injection (A.R. 491). She was diagnosed with lumbar facet 6 7 In February of 2014, Plaintiff reported that her pain was 8 persisting (A.R. 490). 9 (A.R. 396-98).2 Knee and cervical spine x-rays were normal 10 11 In January of 2015, Plaintiff complained of low back pain, knee 12 pain and chronic headaches, and she was diagnosed with patella 13 tedonitis (A.R. 489). A treatment record from February of 2015 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Plaintiff underwent a physical examination with Dr. Jimenez in August of 2014, at which time she was diagnosed with osteoarthritis in her knees, joint pain, anxiety, cervical degenerative disc disease, a mood disorder and opioid and sedative dependence (A.R. 389). In October of 2014, Plaintiff reported headaches every day, with neck problems, severe bilateral knee pain and increased anxiety for which she was prescribed Xanax and Norco and referred to a pain clinic (A.R. 388). An orthopedist with the Southern California Bone & Joint Clinic evaluated Plaintiff’s knees in November of 2014 (A.R. 39093). Plaintiff reported having constant bilateral knee pain (left greater than right) for the past five years, arthralgias, joint and back pain, frequent, severe headaches, anxiety and sleep disturbance (A.R. 391). She reportedly had swelling in her left knee, with grinding and radiation down the leg (A.R. 391). On examination, her right leg was shorter than her left leg, and she had positive patellofemoral compression, pain with motion under the patella on the right, bilateral tenderness of the patellar tendon and crepitus (A.R. 392). She was diagnosed with knee pain, chondromalacia of the patella and patellar tendonitis (A.R. 392-93). She was referred for physical therapy, and her Norco was continued (id.). 6 1 noted possible bilateral carpal tunnel syndrome and ordered bilateral 2 knee MRIs (A.R. 488). 3 chronic myofascial pain (A.R. 487). In April of 2015, Plaintiff was diagnosed with 4 5 In June of 2015, Plaintiff complained of daily headaches, as 6 well as pain in her neck, low back and knees (A.R. 486). A lumbar 7 spine MRI reflected degenerative changes, particularly at L4-L5 and 8 L5-S1 (A.R. 402-03). 9 protrusion at L4-L5 with annular fissure, mild facet arthropathy, no The MRI showed: (1) a three millimeter disc 10 significant central canal narrowing and mild foraminal narrowing; 11 (2) a 3-4 millimeter disc protrusion at L5-S1 with a small annual 12 fissure, mild facet arthropathy, mild to moderate narrowing of the 13 left lateral recess, mild foraminal narrowing on the left and no 14 significant narrowing on the right; and (3) a 2-3 millimeter diffuse 15 disc bulge at T11-T12 without significant stenosis (A.R. 402-03). 16 right knee MRI reported only trace joint effusion (A.R. 404). 17 Plaintiff’s doctor requested approval for cervical facet blocks (A.R. 18 486). 19 migraines were increasing (A.R. 485). 20 patches (A.R. 485).3 A When Plaintiff returned in August, Plaintiff reported that her Her doctor added lidocaine 21 22 In October of 2015, Plaintiff reported increased pain in her 23 neck after having been in a motor vehicle accident earlier that month 24 25 26 27 28 3 Plaintiff underwent another physical examination with Dr. Jimenez in August of 2015, at which time Plaintiff was diagnosed with chronic pain syndrome, lumbar and cervical degenerative disc disease, lumbago, sacroiliitis, anxiety, sedative dependence and osteoarthritis in her knees (A.R. 38586). 7 1 (A.R. 484). The treatment record stated “possible MS - will see 2 neurologist” (A.R. 484).4 3 (A.R. 483). 4 degenerative disc disease at several levels, most prominent at C6-C7, 5 which showed a 2-3 millimeter disc protrusion, mild central canal 6 stenosis and minimal bilateral foraminal narrowing (A.R. 400-01). 7 There were no significant interval changes from the May, 2015 study 8 (A.R. 401; see also A.R. 406-07 (earlier study)). In November, she reported worsening pain A November, 2015 cervical spine MRI reflected 9 10 In February of 2016, she reported that she had received two 11 weeks of chiropractic treatment and was “seeing significant benefit” 12 4 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff had gone to the Desert Valley Hospital emergency room in September of 2015, complaining of dizziness, nausea, vomiting, abdominal pain and increasing headaches, and she then said that her vertigo medications were not working (A.R. 315). Plaintiff reported that she had 2-3 years of intermittent neurological symptoms, including paresthesias in various parts of her body and occasional visual changes, and she was concerned she might have multiple sclerosis (A.R. 315). A brain CT scan was normal (A.R. 322). Plaintiff was dehydrated and dizzy, and she was ordered to follow up with a neurologist (A.R. 317-18). She returned to the emergency room in October, after having been in the accident, complaining of neck pain/stiffness and headache (A.R. 334). Plaintiff reportedly had a history of bulging C6-C7 and lumbar spine discs from a car accident when she was young for which she was taking Norco three times a day (A.R. 334-35). On examination, Plaintiff appeared drowsy from her medications and she exhibited pain on both sides of her shoulders consistent with cervical radiculopathy from her prior injury (A.R. 335). Cervical spine x-rays showed straightening of the normal cervical lordosis and mild spondylosis of the C5-C6 and C6-C7 levels with no acute findings (A.R. 337). She was diagnosed with a cervical spine strain and noted to have cervical radiculopathy due to osteoarthritis (A.R. 337, 472). She was advised to continue taking Norco and to follow up with her regular doctor for a possible physical therapy referral (A.R. 337). In February of 2016, Plaintiff was given a Toradol injection and referred to her regular doctor (A.R. 341). 8 1 (A.R. 482).5 2 examination results showed spasm, painful/decreased range of motion, 3 facet tenderness, positive Lasegue’s test, positive straight leg 4 raising and possible Raynaud’s syndrome (A.R. 482). 5 for a rheumatology evaluation (A.R. 482). Consistent with prior examinations, Plaintiff’s She was referred 6 7 In March of 2016, Plaintiff complained of neck pain and right 8 hand numbness (A.R. 481). 9 patch (A.R. 481). She was taking Norco and using a lidocaine 10 11 In May of 2016, Plaintiff complained of neck and low back pain 12 and said she was still awaiting consultations by a neurologist and a 13 rheumatologist (A.R. 480).6 14 low back pain and right hand numbness, and she said that her neck and 15 back “flare up” very easily (A.R. 479). 16 reportedly was helping (A.R. 479). 17 (A.R. 479). 18 /// In July of 2016, Plaintiff complained of Her chiropractic treatment Her medications were continued 19 20 21 22 5 Treatment notes from Chiropractor Brad Hannon are dated from February of 2016 through June of 2016 (A.R. 420-61). Plaintiff reported improvement, but with some “acute flare-ups” (A.R. 422, 424, 426, 428, 430, 432, 434, 436, 438, 440, 442, 444, 446, 448, 450, 452, 454, 456-58, 460). 23 6 24 25 26 27 28 Plaintiff underwent another physical examination with Dr. Jimenez in June of 2016, at which time she exhibited decreased range of motion in her neck (A.R. 543-44). Dr. Jimenez referred Plaintiff for neurology, pain management, psychiatry and rheumatology evaluations (A.R. 543). Plaintiff returned in December of 2016, requesting a referral for pain management, neurology and for a second rheumatology opinion (A.R. 541). Although Plaintiff requested a referral for a second rheumatology opinion, there are no rheumatology opinions in the record. 9 1 In August of 2016, Plaintiff reported that she had been 2 diagnosed with fibromyalgia by the neurologist, but the report was 3 then unavailable (A.R. 553).7 4 study, MRI and pain management, with a note that she may need 5 peripheral nerve surgery for carpal tunnel release (A.R. 553).8 Plaintiff was referred for another EMG 6 7 In October of 2016, Plaintiff reported that a brain MRI was 8 negative (A.R. 552). Plaintiff was directed to follow up with a 9 neurologist for her headaches, right carpal tunnel syndrome and 10 cervical radiculopathy (A.R. 552). 11 injection at that time (A.R. 552). 12 /// 13 /// She declined another pain 14 7 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Neurologist Dr. Raj Karnani evaluated Plaintiff in July of 2016 (A.R. 505-09). Plaintiff complained of diffuse body aches, pain in her back and neck, numbness and weakness in the extremities, hip pain, headaches/chronic migraines, anxiety, depression and random chill spots on her body, and she reportedly displayed “diffuse truncal and extremity tenderness” (A.R. 505, 508). EMG and nerve conduction studies were abnormal, revealing evidence of right carpal tunnel syndrome and C5-C6 radiculopathy on the right side for which clinical correlation was recommended (A.R. 505-07). Plaintiff reported that she had been seeing an orthopedic doctor for six years and he/she could not figure out what was wrong with her, but Plaintiff suspected multiple sclerosis or fibromyalgia (A.R. 508 (emphasis added)). On examination, Plaintiff reportedly had reduced pinprick sensations and reduced proprioception in her lower extremities, but no other abnormal findings (A.R. 508). Dr. Karnani diagnosed cervical and lumbar radiculopathy, hereditary and idiopathic neuropathy (unspecified), and bilateral carpal tunnel syndrome (A.R. 509). Dr. Karnani also noted, “Patient likely has fibromyalgia as well” (A.R. 505 (emphasis added)). He referred Plaintiff to rheumatology for evaluation and for pain management (A.R. 505). 8 A September, 2016 brain MRI showed a partial “empty sella” of unknown clinical significance but no intracranial mass, hemorrhage or hydrocephalus (A.R. 528). 10 1 In November of 2016, Plaintiff reportedly was still awaiting a 2 pain management evaluation (A.R. 551). In December of 2016, 3 Plaintiff returned after having gone to the hospital for hip pain 4 (A.R. 550). 5 tunnel release (A.R. 550). Again, the record indicated that she might need carpal 6 7 B. Medical Source Opinions 8 9 Psychologist Dr. Rashin D’Angelo prepared a Mental Evaluation by 10 Psychologist, dated October 14, 2016 (A.R. 532-36). Before preparing 11 this evaluation, Dr. D’Angelo did not review any of Plaintiff’s 12 medical records (A.R. 532). 13 D’Angelo of anxiety, pain, arthritis, degenerative disc disease, 14 empty sella syndrome, fibromyalgia, panic attacks, paranoia, fear, 15 erratic sleep and feeling overwhelmed (A.R. 532-33). 16 status examination, Dr. D’Angelo diagnosed anxiety disorder (not 17 otherwise specified) and assigned a Global Assessment of Functioning 18 score of 70 (A.R. 535). Plaintiff reportedly complained to Dr. After a mental 19 20 Dr. D’Angelo opined that Plaintiff has only mild difficulties in 21 maintaining social functioning and no difficulties in focusing and 22 maintaining attention, concentration, persistence and pace (A.R. 23 535). 24 limitations performing simple and repetitive tasks, performing 25 detailed and complex tasks or performing work activities on a 26 consistent basis without special or additional supervision (A.R. 27 535). 28 mild limitations completing a normal workday or work week “due to her Dr. D’Angelo opined that Plaintiff would have no mental Dr. D’Angelo further opined that Plaintiff would have only 11 1 physical issues,”9 mild limitations accepting instructions from 2 supervisors and interacting with coworkers and with the public, and 3 mild difficulties handling the usual stress, changes and demands of 4 gainful employment (A.R. 535). 5 prognosis, opining that Plaintiff’s condition would significantly 6 improve with treatment to improve her coping and stress management 7 skills (A.R. 535-36). Dr. D’Angelo gave Plaintiff a good 8 9 State agency physicians Dr. Julie Chu and Dr. Alan Berkowitz 10 reviewed the record as of late 2016 and found “there [was] 11 insufficient evidence to adjudicate the severity of all of 12 [Plaintiff’s] physical allegations” from her alleged onset date to 13 her date last insured of June 30, 2015, for her Title II claim. 14 A.R. 65-66; see also A.R. 21 (noting that Plaintiff had applied for 15 both supplemental security income and disability insurance benefits). 16 The Findings of Fact and Analysis of Evidence section of the state 17 agency physicians’ report described the records from Drs. Jimenez and 18 Akmakjian as “illegible” (A.R. 65-66). 19 also noted that there was “scant documentation” of musculoskeletal 20 examinations with ranges of motions, neurological examinations, or 21 gait descriptions (A.R. 65-66). 22 evaluation evidently was not in the record reviewed by the state 23 agency physicians, and it appears that the record also did not then 24 include Plaintiff’s MRI studies (because none are mentioned in the 25 Findings of Fact and Analysis of Evidence) (A.R. 61-66, 77-82). This section of the report Dr. Karnani’s neurological 26 27 28 See 9 Dr. D’Angelo, a psychologist who reviewed none of Plaintff’s medical records, did not indicate what “physical issues” Dr. D’Angelo may have had in mind. 12 The 1 state agency physicians believed that a consultative examination 2 would be needed to evaluate the severity of Plaintiff’s impairments 3 (A.R. 64). 4 5 Based on the limited evidence reviewed, Dr. Chu found 6 Plaintiff’s medically determinable impairments of degenerative disc 7 disease and “spine disorders” “severe,” but found no other physical 8 medically determinable impairments (A.R. 68). 9 Plaintiff was capable of performing medium work with certain postural Dr. Chu opined that 10 and environmental limitations (for Plaintiff’s Title XVI claim only) 11 (A.R. 66, 68, 70-72). 12 disorder non-severe (A.R. 66, 68, 70). Dr. Berkowitz found Plaintiff’s anxiety 13 14 On reconsideration, state agency physician Dr. E. Steinsapir and 15 state agency psychologist Dr. M. Bongiovani reviewed the updated 16 record in February of 2017, which included Dr. Karnani’s records and 17 updated records from Drs. Jimenez and Akmakjian (A.R. 94-98, 99). 18 Dr. Jimenez’s records were described as “hard to decipher,” and Dr. 19 Akmakjian’s records were described as mostly “illegible” (A.R. 99). 20 Dr. Bongiovani affirmed the previous non-severity finding for 21 Plaintiff’s anxiety disorder (A.R. 99, 100-02). 22 believed that Plaintiff’s medically determinable “spine disorders” 23 were “severe,” but stated that Plaintiff’s medically determinable 24 impairments of fibromyalgia, carpal tunnel syndrome, anxiety 25 disorders, and substance addition disorders were all assertedly “non 26 severe” (A.R. 101). 27 functional capacity that Dr. Chu had offered on initial review (A.R. 28 104-05). Dr. Steinsapir Dr. Steinsapir adopted the same residual 13 1 II. The ALJ Materially Erred in Evaluating the Medical Evidence. 2 3 As indicated above, the ALJ reviewed the medical record and 4 found that Plaintiff has severe fibromyalgia and anxiety disorder 5 (A.R. 23, 27). 6 functional capacity, the ALJ reportedly gave “little weight” to the 7 opinions of the state agency physicians (A.R. 27). 8 of the state agency physicians were the only arguably competent 9 medical opinions in the record regarding Plaintiff’s physical In so finding, and in assessing Plaintiff’s residual Yet, the opinions 10 residual functional capacity.10 11 examination related to Plaintiff’s physical condition (an examination 12 the state agency physicians believed was necessary). 13 develop the record further despite the state agency physicians’ 14 observations that much of the medical record reviewed was illegible 15 or difficult to decipher. 16 or a fully legible medical record, the ALJ proceeded to assess a 17 residual functional capacity the ALJ purportedly believed would 18 “reflect the limitations of [Plaintiff’s] [severe] fibromyalgia” 19 (A.R. 23, 27). 20 relied on his own non-medical lay opinion of Plaintiff’s fibromyalgia 21 and resulting limitations. The ALJ did not order a consultative The ALJ did not Rather, unaided by expert medical opinion In so doing, the ALJ appears necessarily to have 22 23 24 An ALJ cannot properly rely on the ALJ’s own lay knowledge to make medical interpretations of examination results or to determine 25 26 10 27 28 The Court does not regard the consultative psychologist’s reference to unspecified “physical issues” as a an arguably competent medical opinion regarding Plaintiff’s physical residual functional capacity. See footnote 9 supra. 14 1 the severity of medically determinable impairments. See Tackett v. 2 Apfel, 180 F.3d 1094, 1102-03 (9th Cir. 1999); Balsamo v. Chater, 142 3 F.3d 75, 81 (2d Cir. 1998); see also Rohan v. Chater, 98 F.3d 966, 4 970 (7th Cir. 1996) (“ALJs must not succumb to the temptation to play 5 doctor and make their own independent medical findings”); Day v. 6 Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ is forbidden 7 from making his or her own medical assessment beyond that 8 demonstrated by the record). 9 illegibility of the medical record, the ALJ could not competently Particularly given the partial 10 translate the medical evidence into a residual functional capacity 11 assessment, absent expert medical assistance. 12 180 F.3d at 1102-03 (ALJ’s residual functional capacity assessment 13 cannot stand in the absence of evidentiary support). See Tackett v. Apfel, 14 15 Instead of making his own lay assessment of Plaintiff’s physical 16 limitations, the ALJ should have ordered an examination and 17 evaluation of Plaintiff by a consultative specialist and should have 18 developed the record further to address the problem of the illegible 19 treatment notes. 20 Reed v. Massanari, 270 F.3d 838, 843 (9th Cir. 2001) (where available 21 medical evidence is insufficient to determine the severity of the 22 claimant’s impairment, the ALJ should order a consultative 23 examination by a specialist); accord Kish v. Colvin, 552 Fed. App’x 24 650 (2014); see generally McLeod v. Astrue, 640 F.3d 881, 885 (9th 25 Cir. 2011) (ALJ must develop record when there is ambiguous evidence 26 or when the record is inadequate to allow for proper evaluation of 27 the evidence; ALJ must be “especially diligent” when the claimant is 28 unrepresented) (citations omitted); Mayes v. Massanari, 276 F.3d 453, See Day v. Weinberger, 522 F.2d at 1156; see also 15 1 459-60 (9th Cir. 2001) (same); Brissett v. Heckler, 730 F.2d 548, 550 2 (8th Cir. 1984) (remand warranted where material portions of the 3 record were illegible); Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 4 1983) (“[T]he ALJ has a special duty to fully and fairly develop the 5 record to assure the claimant’s interests are considered. 6 exists even when the claimant is represented by counsel.”). This duty 7 8 9 On the current record, the Court is unable to deem the ALJ’s errors to have been harmless. See Treichler v. Commissioner, 775 10 F.3d 1090, 1105 (9th Cir. 2014) (“Where, as in this case, an ALJ 11 makes a legal error, but the record is uncertain and ambiguous, the 12 proper approach is to remand the case to the agency”); see also 13 Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (an error “is 14 harmless where it is inconsequential to the ultimate non-disability 15 determination”) (citations and quotations omitted); McLeod v. Astrue, 16 640 F.3d at 887 (error not harmless where “the reviewing court can 17 determine from the ‘circumstances of the case’ that further 18 administrative review is needed to determine whether there was 19 prejudice from the error”). 20 21 III. Remand for Further Administrative Proceedings is Appropriate. 22 23 Remand is appropriate because the circumstances of this case 24 suggest that further development of the record and further 25 administrative review could remedy the ALJ’s errors. 26 Astrue, 640 F.3d at 888; see also INS v. Ventura, 537 U.S. 12, 16 27 (2002) (upon reversal of an administrative determination, the proper 28 course is remand for additional agency investigation or explanation, 16 See McLeod v. 1 except in rare circumstances); Leon v. Berryhill, 880 F.3d 1041, 1044 2 (9th Cir. 2017) (reversal with a directive for the immediate 3 calculation of benefits is a “rare and prophylactic exception to the 4 well-established ordinary remand rule”); Dominguez v. Colvin, 808 5 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court concludes 6 that further administrative proceedings would serve no useful 7 purpose, it may not remand with a direction to provide benefits”); 8 Treichler v. Commissioner, 775 F.3d at 1101 n.5 (remand for further 9 administrative proceedings is the proper remedy “in all but the 10 rarest cases”); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir.), 11 cert. denied, 531 U.S. 1038 (2000) (remand for further proceedings 12 rather than for the immediate payment of benefits is appropriate 13 where there are “sufficient unanswered questions in the record”). 14 There remain significant unanswered questions in the present record. 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 17 1 CONCLUSION 2 3 For all of the foregoing reasons,11 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: April 2, 2020. 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 11 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. 18
]]>
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.
