Dinallo v. Colvin

Filing 34

ORDER - IT IS ORDERED that the Commissioner's decision is vacated and remanded for further proceedings consistent with this Order. The Clerk of the Court shall enter judgment accordingly and terminate this case. IT IS FURTHER ORDERED that upon remand, the Commissioner will remand the case to an ALJ with instructions to issue a new decision that includes, but is not limited to: a. an assessment of the medical opinions of record that includes an explanation of the weight given to the diffe rent opinions; b. an assessment of Dinallo's credibility that addresses and resolves ambiguities in the record; c. an evaluation of Dinallo's residual functional capacity; and d. a determination of the remaining steps in the sequential process, including whether Dinallo can perform his past relevant work or whether other jobs exist in significant numbers in the national economy. (See document for further details). Signed by Magistrate Judge David K Duncan on 5/2/17. (SLQ)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gina Marie Dinallo, No. CV-16-0846-PHX-DKD Plaintiff, 10 11 v. 12 Commissioner of Social Security Administration, 13 ORDER Defendant. 14 15 16 Gina Marie Dinallo appeals the Commissioner of the Social Security 17 Administration’s decision to adopt the Administrative Law Judge’s (ALJ) ruling denying 18 her claim for disability insurance benefits under Title II of the Social Security Act. This 19 Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and, with the parties consent to 20 Magistrate Judge jurisdiction, pursuant to 28 U.S.C. § 636(c). 21 The Commissioner agrees that the ALJ’s decision was not supported by 22 substantial evidence but argues that the record contains outstanding evidentiary conflicts 23 and so the appropriate remedy is to remand this matter for further proceedings. (Doc. 28) 24 Dinallo replied that her case meets the Ninth Circuit’s standard for a remand for benefits. 25 (Doc. 33) 26 Standard of Review. The only question before the Court is the scope of the 27 remand. The Ninth Circuit has established a three-part test for evaluating the difference 28 between a remand for benefits and a remand for further proceedings. Treichler v. 1 Comm’r of Soc. Sec., 775 F.3d 1090 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995 (9th 2 Cir. 2014). One of the three prongs requires this Court to determine whether the record 3 has been fully or thoroughly developed such that there are no outstanding issues to 4 resolve and so further administrative purposes would serve no useful purpose. Treichler, 5 775 U.S. at 1100; Garrison, 759 at 1020. 6 Analysis. The Commissioner concedes that the ALJ should have, but “did not[,] 7 evaluate the December 2013 opinion of treating hand surgeon, Gary Purcell, M.D.” who 8 described Dinallo’s limitations on a check-the-box form and whose opinion conflicts with 9 the opinion of a State agency physician. (Doc. 28 at 4:7-8) The Commissioner also 10 conceded that the ALJ used improper reasoning to reject the opinion of Kurt Giles, P.A. 11 (Doc. 28 at 5) Dinallo argues that a remand to review this medical evidence would not be 12 useful. (Doc. 33 at 3) The Court disagrees. The opinion of Dr. Purcell, PA Giles, and 13 the State agency physician must be reconciled and that is appropriately a determination 14 that should be made by the ALJ in the first instance. Brown-Hunter v. Colvin, 806 F.3d 15 487, 496 (9th Cir. 2015). Accordingly, a remand for further proceedings is appropriate to 16 resolve this conflict. Dominguez v. Colvin, 808 F.3d 403, 409 (9th Cir. 2015) (upholding 17 remand for further proceedings when record contained outstanding medical record 18 issues). 19 Both parties raise additional arguments. Dinallo argues that there are several other 20 errors in the record and that these entitle her to a remand for benefits.1 However, benefits 21 are awarded for disability, “not the agency’s legal error.” Brown-Hunter, 806 F.3d at 22 495. The Commissioner argues that the scope of remand should both be limited because 23 24 25 26 27 28 1 Dinallo argues, in part, that she is entitled to relief because of the time it has and will take the Commissioner to review her case. (Doc. 33 at 1-2, n.2) This argument for equitable relief based on a lengthy adjudication process has been mentioned by the Ninth Circuit as part of the reason for the development of the credit-as-true rule but it is not a separate factor in the scope of remand analysis. Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1100 (9th Cir. 2014) (“credibility determinations are generally the perquisite of the agency . . . we justified [the credit-as-true] approach . . . by referring to equitable concerns about the length of time that had elapsed since the claimant had filed her application.”) (citing Varney v. Sec’y of Health & Human Servs., 859 F.2d 1396, 1398-99 (9th Cir. 1988)). Accordingly, Dinallo is not entitled to relief on this ground. -2- 1 Dinallo’s other allegations of error are not well-taken but should also be expanded to 2 include an evaluation of Dinallo’s narcotic and alcohol use. (Doc. 28 at 5, 8) As Dinallo 3 notes, review on remand is generally de novo. (Doc. 33 at 6, n.4) Such a remand is 4 appropriate here. 5 IT IS ORDERED that the Commissioner’s decision is vacated and remanded for 6 further proceedings consistent with this Order. 7 judgment accordingly and terminate this case. The Clerk of the Court shall enter 8 IT IS FURTHER ORDERED that upon remand, the Commissioner will remand 9 the case to an ALJ with instructions to issue a new decision that includes, but is not 10 11 12 13 14 limited to: a. an assessment of the medical opinions of record that includes an explanation of the weight given to the different opinions; b. an assessment of Dinallo’s credibility that addresses and resolves ambiguities in the record; 15 c. an evaluation of Dinallo’s residual functional capacity; and 16 d. a determination of the remaining steps in the sequential process, including 17 whether Dinallo can perform his past relevant work or whether other jobs 18 exist in significant numbers in the national economy. 19 Dated this 2nd day of May, 2017. 20 21 22 23 24 25 26 27 28 -3-

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