Linda Joyce Perez v. Michael J. Astrue

Filing 21

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. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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LINDA JOYCE PEREZ,

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Plaintiff,

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v.

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MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.

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NO. CV 10-06589 CW

DECISION AND ORDER

The parties have consented, under 28 U.S.C. § 636(c), to the

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jurisdiction of the undersigned Magistrate Judge.

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seeks review of the Commissioner’s denial of disability benefits.

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As discussed below, the Court finds that the Commissioner’s

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decision should be reversed and this matter remanded for further

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proceedings.

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I.

Plaintiff

BACKGROUND

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Plaintiff Linda Perez was born on August 24, 1954, and was

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fifty-four years old at the time of her administrative hearing.

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[Administrative Record (“AR”) 44, 27-43.]

Plaintiff alleges

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disability due to migraine headaches, depression rheumatoid

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arthritis, neck pain, fibromyalgia, lumbar and cervical

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radicilitis, cervical spine degenerative disc disease, sleeping

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problems, fatigue, and numbness in her left leg. [AR 47, 85,

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115.]

She has past relevant work as a teacher’s aide. [AR 86.]

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II.

PROCEEDINGS IN THIS COURT

Plaintiff filed a complaint on September 2, 2010.

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10, 2011, Defendant filed an answer and Plaintiff’s

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Administrative Record (“AR”).

On March

On June 15, 2011, the parties

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filed their Joint Stipulation (“JS”) identifying matters not in

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dispute, issues in dispute, positions of the parties, and the

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relief sought by each party.

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submission without oral argument.

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III.

This matter has been taken under

PRIOR ADMINISTRATIVE PROCEEDINGS

Plaintiff filed for a period of disability and disability

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insurance benefits (“DIB”) on February 13, 2007, alleging

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disability since December 15, 2006. [AR 44, 85.]

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Plaintiff’s application was initially denied on September 19,

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2007, she requested an administrative hearing, which was held

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before an Administrative Law Judge (“ALJ”) on May 11, 2009.1 [AR

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27-43, 47-52, 55.]

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testimony was taken from Plaintiff and vocational expert Gregory

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Jones. [AR 27-43.]

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August 21, 2009. [AR 11-22.]

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sought review with the Appeals Council and submitted additional

After

Plaintiff appeared with counsel, and

The ALJ issued a decision denying benefits on
On September 18, 2009, Plaintiff

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This is a prototype case which allows a claimant to go
directly to a hearing from an initial denial thereby skipping the
reconsideration stage. [AR 44]; see 20 C.F.R. § 404.906(b)(4).

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evidence. [AR 5-7.]

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July 30, 2010, the ALJ’s decision became the Commissioner’s final

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decision. [AR 1-4.]

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When the Appeals Council denied review on

IV.

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), a district court may review the

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Commissioner’s decision to deny benefits.

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ALJ’s) findings and decision should be upheld if they are free of

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legal error and supported by substantial evidence.

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the court determines that a finding is based on legal error or is

The Commissioner’s (or

However, if

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not supported by substantial evidence in the record, the court

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may reject the finding and set aside the decision to deny

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benefits.

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Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir.

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2001); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001);

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Tackett v. Apfel, 180 F.3d 1094,1097 (9th Cir. 1999); Reddick v.

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Chater, 157 F.3d 715, 720 (9th Cir. 1998); Smolen v. Chater, 80

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F.3d 1273, 1279 (9th Cir. 1996); Moncada v. Chater, 60 F.3d 521,

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523 (9th Cir. 1995)(per curiam).

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See Aukland v. Massanari, 257 F.3d 1033, 1035 (9th

“Substantial evidence is more than a scintilla, but less

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than a preponderance.”

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“relevant evidence which a reasonable person might accept as

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adequate to support a conclusion.”

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substantial evidence supports a finding, a court must review the

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administrative record as a whole,“weighing both the evidence that

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supports and the evidence that detracts from the Commissioner’s

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conclusion.”

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affirming or reversing,” the reviewing court “may not substitute

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its judgment” for that of the Commissioner.

Id.

Reddick, 157 F.3d at 720.

Id.

It is

To determine whether

“If the evidence can reasonably support either

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Reddick, 157 F.3d at

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720-721; see also Osenbrock, 240 F.3d at 1162.
V.

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DISCUSSION

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A. THE FIVE-STEP EVALUATION

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To be eligible for disability benefits a claimant must

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demonstrate a medically determinable impairment which prevents

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the claimant from engaging in substantial gainful activity and

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which is expected to result in death or to last for a continuous

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period of at least twelve months.

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Reddick, 157 F.3d at 721; 42 U.S.C. § 423(d)(1)(A).

Tackett, 180 F.3d at 1098;

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Disability claims are evaluated using a five-step test:

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Step one: Is the claimant engaging in substantial

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gainful activity? If so, the claimant is found not

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disabled. If not, proceed to step two.

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Step two: Does the claimant have a “severe” impairment?

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If so, proceed to step three. If not, then a finding of not

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disabled is appropriate.

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Step three: Does the claimant’s impairment or

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combination of impairments meet or equal an impairment

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listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If

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so, the claimant is automatically determined disabled. If

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not, proceed to step four.

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Step four: Is the claimant capable of performing his

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past work? If so, the claimant is not disabled. If not,

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proceed to step five.

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Step five: Does the claimant have the residual

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functional capacity to perform any other work? If so, the

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claimant is not disabled. If not, the claimant is disabled.

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Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended

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April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142,

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107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at

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1098-99; 20 C.F.R. § 404.1520, § 416.920.

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“disabled” or “not disabled” at any step, there is no need to

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complete further steps.

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404.1520.

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If a claimant is found

Tackett, 180 F.3d 1098; 20 C.F.R. §

Claimants have the burden of proof at steps one through

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four, subject to the presumption that Social Security hearings

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are nonadversarial, and to the Commissioner’s affirmative duty to

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assist claimants in fully developing the record even if they are

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represented by counsel.

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Smolen, 80 F.3d at 1288.

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case of disability is made, and the burden shifts to the

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Commissioner (at step five) to prove that, considering residual

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functional capacity (“RFC”)2, age, education, and work

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experience, a claimant can perform other work which is available

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in significant numbers.

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Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920.

Tackett, 180 F.3d at 1098 and n.3;
If this burden is met, a prima facie

Tackett, 180 F.3d at 1098, 1100;

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B. THE ALJ’S EVALUATION IN PLAINTIFF’S CASE

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The ALJ found that Plaintiff had not engaged in substantial

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gainful activity since her alleged disability onset date of

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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, 765 F.2d 870, 872 (9th Cir.
1985); 20 C.F.R. § 404.1569a(c).

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December 15, 2006 (step one); that Plaintiff had “severe”

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impairments, namely migraine headaches, rheumatoid arthritis,

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neck pain, fibromyalgia, lumbar and cervical radiculitis,

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cervical spine degenerative disc disease, and numbness in her

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left leg (step two); and that Plaintiff did not have an

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impairment or combination of impairments that met or equaled a

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“listing” (step three).

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Plaintiff had an RFC to perform medium work3 with no more than

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occasional stooping, kneeling, balancing and climbing ladders,

[AR 13-16.]

The ALJ determined that

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and no more than frequent climbing of stairs. [AR 17.]

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Plaintiff’s RFC did not preclude her from performing her past

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work as a teacher’s aide (step four).

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Plaintiff was not “disabled” within the meaning of the Social

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Security Act.

[AR 21.]

Accordingly,

[AR 22.]

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C. PLAINTIFF’S PRESENT CLAIMS

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The parties’ Joint Stipulation identifies the following

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disputed issues:

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1. “Whether the ALJ complied with her duty to fully and

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fairly develop the record when she failed to hold a

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supplemental hearing and allow Plaintiff to respond to

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newly admitted evidence in the record”;

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2. “Whether the ALJ erred when she failed to find

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Plaintiff’s depression and Post Traumatic Stress Disorder

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(PTSD) to be severe impairments”;

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3. “Whether the ALJ properly assessed Plaintiff’s

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Medium work involves lifting no more than 50 pounds at a
time with frequent lifting or carrying of objects weighting up to
25 pounds.” 20 C.F.R. § 416.967(c).

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credibility”;

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4. “Whether the ALJ properly considered the opinions of

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Plaintiff’s treating physicians, Susan Hua, M.D. and

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Faustino Bernadette, M.D.”4

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[JS 3.]

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As discussed below, Issue One is dispositive.

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D.

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ISSUE ONE: DEVELOPMENT OF THE RECORD
1.

Background

At the close of the hearing on May 11, 2009, the ALJ

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requested Plaintiff to undergo consultative psychiatric and

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neurological evaluations to further assist her in evaluating

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Plaintiff’s limitations. [AR 42.]

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Moore performed a neurological evaluation of Plaintiff, and on

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July 6, 2009, Dr. Miriam Staub performed a psychiatric evaluation

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of Plaintiff. [AR 566-75, 576-87.]

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supported the degree of Plaintiff’s alleged functional

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limitations.

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On June 29, 2009, Dr. Robert

Neither of these evaluations

Dr. Moore opined that Plaintiff is limited to lifting or

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carrying fifty pounds occasionally and twenty-five pounds

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frequently with no more than frequent reaching, pushing, and

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pulling in both hands, no more than frequent climbing of stairs,

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no climbing ladders, and occasional stooping, kneeling, crawling

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and crouching.

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Plaintiff in her ability to sit, stand or walk in an eight-hour

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work day. [Id.]

[AR 576-87.]

Dr. Moore did not restrict

With respect to Plaintiff’s mental RFC, Dr.

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Defendant did not stipulate that the disputed issue
statements were framed in a neutral fashion pursuant to section
VIII(C) of the case management order. [JS 3.]

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Staub opined that Plaintiff did not have any mental limitations.

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[AR 566-75].

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On July 24, 2009, the ALJ sent Plaintiff’s counsel a letter,

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enclosing copies of Plaintiff’s psychiatric and neurological

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evaluations from Drs. Staub and Moore, and indicating that she

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intended to enter the reports into the record as evidence. [AR

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26.]

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Plaintiff had the right to submit any written comments concerning

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the enclosed reports, “a written statement as to the facts and

In the letter, the ALJ informed Plaintiff’s counsel that

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law” applicable to the case in light of the reports, and any

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additional records Plaintiff wanted the ALJ to consider,

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including “a report from [Plaintiff’s] treating physician.” [Id.]

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The ALJ also indicated that if Plaintiff did not submit a

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response “within 10 days of the date [Plaintiff] receives this

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notice,” then she would assume that Plaintiff did not wish to

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submit any written statements or records, and would then enter

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the enclosed reports into the evidence in the record.

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[Id.]

Plaintiff’s counsel received the ALJ’s letter on July 27,

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2009. [AR 134.]

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Plaintiff’s counsel electronically submitted a written response

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objecting to the admission of the evaluation reports as evidence

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into the record. [AR 135-38.]

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ALJ to conduct a supplemental hearing to be able to cross-examine

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Drs. Staub and Moore, or in the event Drs. Staub or Moore could

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not appear and testify, the presence of a medical expert to

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provide testimony as to whether the opinions of Drs. Staub and

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Moore were consistent with the objective medical evidence in the

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record. [AR 137.]

Within the ten day deadline, on August 5, 2009,

In addition, counsel requested the

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Notwithstanding Plaintiff’s August 5, 2009 letter to the

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ALJ, objecting to the reports and requesting a supplemental

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hearing, the ALJ – in her August 21, 2009, written decision

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denying benefits – stated that “[t]he Social Security

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Administration did not receive a response from the [plaintiff’s]

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counsel to submit any written statements or records concerning

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the evaluations within the prescribed 10 day period.” [AR 11.]

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Accordingly, the opinions of Drs. Staub and Moore were entered

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into evidence in the record, the written statement submitted by

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Plaintiff’s counsel objecting to these opinions apparently was

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not considered, and a supplemental hearing was not held.

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Subsequently, Plaintiff filed a request for Appellate

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Council review of the hearing decision [AR 5], attaching a letter

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that detailed the legal arguments she made to the ALJ regarding

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the opinions of Drs. Straub and Moore [AR 6-7], and a copy of an

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opinion by her treating physician that likewise addresses those

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reports [AR 140].

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her treating physician’s analysis promptly after she received

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those reports. [AR 139.] On July 30, 2010, the Appeals Council

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made this additional evidence part of the Administrative Record.5

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[AR 4.]

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2.

The record reflects that Plaintiff solicited

Discussion

An ALJ “has an independent duty to fully and fairly develop

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the record and to assure that the claimant’s interests are

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considered,” even when a claimant is represented by counsel.

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Evidence submitted to the Appeals Council is a part the
administrative record and can be considered by the courts on
appeal. Ramirez v. Shalala, 8 F.3d 1449, 1451-52 (9th Cir.
1993); Harmen v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000).

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Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)

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(citations and quotation marks omitted).

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develop the record is triggered whenever the evidence is

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ambiguous or when the ALJ has found the record is “inadequate to

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allow for proper evaluation.” Mayes v. Massanari, 276 F.3d 453,

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459-60 (9th Cir. 2001). The ALJ may discharge this duty by, for

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example, keeping the record open to allow for supplementation of

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the record. Tonapetyan, 242 F.3d at 1150. When the Commissioner

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fails to adequately meet this duty, the claimant is denied the

The ALJ’s obligation to

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“‘full and fair hearing] to which she was entitled.”

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Astrue, 640 F.3d 881, 886 (9th Cir. 2011).

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McLeod v.

Here, the ALJ evidently determined the record before her at

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Plaintiff’s hearing was inadequate to allow for proper evaluation

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of her claim and, consequently, sent Plaintiff for further

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examination.

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to the resulting reports by suggesting she would hold the record

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open for a brief period of time for a response.

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Commissioner did not, however, ultimately satisfy this duty with

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respect to consideration of a fully developed record.

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She offered Plaintiff some opportunity to respond

[AR 26.] The

Plaintiff timely submitted a written statement to the ALJ

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objecting to the findings of Drs. Staub and Moore and requesting

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a supplemental hearing.6 [AR 26, 134-38.] Although she did not

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Plaintiff cites the Hearings, Appeals and Litigation Law
Manual (“HALLEX”) to support her position that the ALJ should
have scheduled a supplemental hearing. [JS 5]. However, “HALLEX
does not have the force and effect of law,” and is therefore,
“not binding on the Commissioner. . . .” Moore v. Apfel, 216
F.3d 864, 869 (9th Cir. 2000); see also Western Radio Services
Co. v. Espy, 79 F.3d 896, 900 (9th Cir. 1996) ("we will not
review allegations of noncompliance with an agency statement that
is not binding on the agency.").

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submit any medical support for her statement at that time, and

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her statement is somewhat vague with respect to whether she

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intended to provide any further records to the ALJ, the record

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indicates that she sent her treating physician, Celedonia X. Yue,

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M.D., a letter on July 30, 2009, asking Dr. Yue to provide a

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written statement in response to the opinions of Drs. Staub and

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Moore; Dr. Yue submitted her assessment on September 4, 2009.7

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[AR 139-140.] Plaintiff then promptly forwarded Dr. Yue’s

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assessment to the Appeals Council, which received it into

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evidence. [AR 4.]
In the hearing decision, however, the ALJ stated that “[t]he

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Social Security Administration did not receive a response from

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the [plaintiff’s] counsel to submit any written statements or

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records concerning the evaluations within the prescribed 10 day

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period.” [AR 11.] Although the ALJ was not provided with a copy

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of Dr. Yue’s assessment, it is unclear from the hearing decision

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whether the ALJ received and considered even the written argument

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submitted by Plaintiff’s attorney.

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apparent that the Appeals Council received both Plaintiff’s

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statement and Dr. Yue’s assessment, the Appeals Council did not

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specifically address or discount either of these documents. [See

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AR 1-3.]

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Furthermore, while it is

This oversight is particularly troubling given that the
report Plaintiff submitted reflects the opinion of a treating
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Contrary to the opinions of Drs. Staub and Moore, Dr. Yue
opined that she is doubtful that Plaintiff could ever be able to
return to full-time work as she can only stand for twenty minutes
at a time and is able to lift less than five pounds. [AR 140.]
Dr. Yue explained that Plaintiff would miss more than three days
of work due to her medical conditions. [Id.]

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physician. [See AR 21.] The Commissioner may reject a treating

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physician’s assessment only by articulating clear and convincing

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reasons for so doing, if uncontroverted, and specific, legitimate

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reasons even if controverted.

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(9th Cir. 1996).

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and, in thus failing to fully develop the record and weigh the

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evidence appropriately, denied Plaintiff her right to a full and

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fair hearing.

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E.

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Lester v. Chater, 81 F.3d 821, 830

The Commissioner did not meet this standard

Reversal is warranted on this basis.

REMAND FOR FURTHER PROCEEDINGS

The decision whether to remand for further proceedings is

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within the discretion of the district court.

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211 F.3d 1172, 1175-1178 (9th Cir. 2000).

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purpose would be served by further proceedings, or where the

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record has been fully developed, it is appropriate to exercise

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this discretion to direct an immediate award of benefits.

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Harman, 211 F.3d at 1179 (decision whether to remand for further

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proceedings turns upon their likely utility).

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there are outstanding issues that must be resolved before a

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determination can be made, and it is not clear from the record

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that the ALJ would be required to find the claimant disabled if

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all the evidence were properly evaluated, remand is appropriate.

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Id.

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finding of disability can be made.8

Harman v. Apfel,

Where no useful

However, where

Here, as set out above, outstanding issues remain before a
Accordingly, remand is

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None of the remaining issues raised by Plaintiff in the
Joint Stipulation mandate a finding of disability on the basis of
the current record – particularly given that no step five
findings were made in this case [see AR 21] – even if resolved in
Plaintiff’s favor. Accordingly, remand is the appropriate
disposition of this appeal, and the Court does not need to reach
the remaining disputed issues.

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required.

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VI.

ORDERS

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Accordingly, IT IS ORDERED that:

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1.

The decision of the Commissioner is REVERSED.

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2.

This action is REMANDED to defendant, pursuant to

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Sentence Four of 42 U.S.C.

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discussed above.

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3.

§ 405 (g), for further proceedings as

The Clerk of the Court shall serve this Decision and

Order and the Judgment herein on all parties or counsel.

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DATED: July 20, 2011
CARLA M. WOEHRLE
United States Magistrate Judge

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