Mary De Jesus Morales v. Michael J Astrue

Filing 29

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. It is Hereby Ordered that Plaintiff's and Defendant's motions for summary judgment are denied, Plaintiff's motion for remand is granted, and this matter is remanded under sentence six for further administrative action consistent with this Opinion. (sp)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 MARY DE JESUS MORALES, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER OF ) THE SOCIAL SECURITY ADMINISTRATION, ) ) Defendant. ) ____________________________________) NO. CV 12-2189-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that 19 Plaintiff’s and Defendant’s motions for summary judgment are denied, 20 Plaintiff’s motion for remand is granted, and this matter is remanded 21 under sentence six for further administrative action consistent with 22 this Opinion. 23 24 PROCEEDINGS 25 26 Plaintiff filed a complaint on March 15, 2012, seeking review of 27 the Commissioner’s denial of benefits. The parties consented to 28 proceed before a United States Magistrate Judge on April 23, 2012. 1 Plaintiff filed a motion for summary judgment on November 19, 2012. 2 Defendant filed a motion for summary judgment on December 18, 2012. 3 Plaintiff filed a motion for remand under sentence six of 42 U.S.C. 4 section 405(g) on December 28, 2012. 5 the motion for remand on January 4, 2013. 6 motions under submission without oral argument. 7 “Order,” filed March 21, 2012; and Minute Order filed January 3, 2013. Defendant filed opposition to The Court has taken the See L.R. 7-15; 8 9 BACKGROUND 10 11 In March 2007, Plaintiff filed applications for disability 12 insurance benefits and supplemental security income (Administrative 13 Record (“A.R.”) 140-45). 14 2005, based on alleged “chest pain, sciatic nerve, left leg numbness, 15 headaches, depression, neck pain, pain in lower back, bulging disc, 16 hbp [high blood pressure], anxiety, [and] insomnia” 17 153). 18 suffers from severe scoliosis and spondylosis of the lumbosacral spine 19 with radiculopathy, congenital spinal stenosis and degenerative disc 20 disease of the cervical spine, degenerative changes of the left knee, 21 bilateral carpal tunnel syndrome, obesity, hypertension, thyroiditis, 22 cholelithiasis, and a depressive disorder with anxiety (A.R. 23 23 (adopting diagnoses at A.R. 200, 209, 382, 385-86, 764, 1178, 1180)). Plaintiff asserts disability since March 31, (A.R. 140, 142, An Administrative Law Judge (“ALJ”) found that Plaintiff 24 25 The ALJ found that Plaintiff retains the residual functional 26 capacity to perform sedentary work: 27 requiring prolonged posturing and repetitive flexion and extension of 28 the neck, repetitive bending and torquing of the torso, forceful 2 (1) with preclusion from “work 1 strength activities with the upper extremities, repetitive fine 2 manipulation and repetitive bending and stooping”; and (2) with the 3 ability to stand for three to five minutes following an hour of 4 sitting; and (3) limited to simple, repetitive work (A.R. 26 (adopting 5 agreed medical examiner’s opinion at A.R. 1411, and State agency 6 physician’s Mental Residual Functional Capacity Assessment at A.R. 7 779)); see also A.R. 64-65 (ALJ discussing bases for assessment)). 8 Relying on the testimony of a vocational expert, the ALJ found that, 9 with this capacity, Plaintiff could perform jobs as a call-out 10 operator, dowel inspector, or document preparer, which jobs assertedly 11 exist in significant numbers in the national economy (A.R. 30-32 12 (adopting vocational expert Jane Hale’s testimony at 64-67)). 13 January 25, 2012, the Appeals Council denied review (A.R. 1-4). On 14 15 On November 28, 2012, a different ALJ found Plaintiff disabled 16 beginning June 25, 2010 (the date of the prior ALJ’s adverse 17 decision). 18 3").1 19 functional capacity previously determined. 20 with A.R. 26. 21 there were no jobs Plaintiff could perform (Exhibit 3, pp. 1, 9 22 (adopting vocational expert Barbara Miksic’s testimony)). 23 explained, “[T]here has been a material change of outcome based on the 24 testimony of the vocational expert. 25 /// See Exhibit 3 to Plaintiff’s motion to remand (“Exhibit The new ALJ found that Plaintiff retained the same residual Compare Exhibit 3, p. 5, Unlike the prior ALJ, however, the new ALJ found that The new ALJ Consequently, I am not obligated 26 27 28 1 It appears that the onset date should have been stated as June 26, 2010, so as not to overlap with the prior ALJ’s decision. See Exhibit 3, p. 1. 3 1 to accept the prior finding of non-disability.” (Exhibit 3, p. 2). 2 3 DISCUSSION 4 5 Plaintiff requests that the Court remand this case for further 6 administrative proceedings to consider the impact of the subsequent 7 disability determination on Plaintiff’s original applications for 8 benefits. 9 and order the Commissioner to take additional evidence “upon a showing See Pl.’s Motion for Remand, p. 7. The Court may remand 10 that there is new evidence which is material and that there is good 11 cause for the failure to incorporate such evidence into the record in 12 a prior proceeding.” 13 Schaefer, 509 U.S. 292, 297 n.2 (1993) (“Sentence-six remands may be 14 ordered in only two situations: 15 before answering the complaint, or where new, material evidence is 16 adduced that was for good cause not presented before the agency.”). 17 New evidence is “material” within the meaning of section 405(g) if it 18 bears directly and substantially on the matter in dispute, and if 19 there is a reasonable possibility that the new evidence would have 20 changed the outcome of the Secretary’s determination. 21 Massanari, 268 F.3d 824, 827 (9th Cir. 2001) (citing Booz v. 22 Secretary, 734 F.2d 1378, 1380-81 (9th Cir. 1984)). 42 U.S.C. § 405(g); see also Shalala v. where the Secretary requests a remand See Bruton v. 23 24 The Ninth Circuit has held that a finding of disability based on 25 a subsequent application for benefits may constitute “new and 26 material” evidence warranting a sentence six remand. 27 Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010) (“an award based on an 28 onset date coming in the immediate proximity of an earlier denial of 4 See Luna v. 1 benefits is worthy of further administrative scrutiny to determine 2 whether the favorable event should alter the initial, negative outcome 3 on the claim”) (citation omitted); compare Bruton v. Massanari, 268 4 F.3d at 827 (finding no error in district court’s denial of remand 5 motion based on subsequent award of benefits where the subsequent 6 award “involved different medical evidence, a different time period, 7 and a different age classification”). 8 9 In Luna, the parties agreed to a remand, and the issue on appeal 10 was whether the remand should be for further proceedings or an award 11 of benefits. 12 had provided a notice of award indicating the Commissioner found her 13 disabled as of the day after the prior adverse decision, but no 14 further information concerning the second, successful application. 15 Id. 16 to consider whether the claimant was disabled during the first time 17 period, the Ninth Circuit observed that, unlike in Bruton, the initial 18 denial and subsequent award were not “easily reconcilable.” 19 Court could not conclude on the record whether the decisions 20 concerning the claimant were reconcilable or inconsistent. 21 1035. 22 than an award of benefits was the appropriate remedy. Luna v. Astrue, 623 F.3d at 1034. The claimant in Luna In upholding the district court’s remand for further proceedings The Luna Id. at Given this uncertainty, a remand for further proceedings rather Id. 23 24 In the present case, the decision awarding benefits is obviously 25 new and there plainly exists good cause for the failure to incorporate 26 the new decision into the prior record. 27 F.2d 1415, 1418 (9th Cir. 1984) (the “good cause” requirement is 28 satisfied whenever new evidence “did not exist at the time of the 5 See Burton v. Heckler, 724 1 ALJ’s decision”); see also Mayes v. Massanari, 276 F.3d 453, 462-63 2 (9th Cir. 2001) (declining to find “good cause” where the claimant’s 3 counsel could have but did not cause an earlier creation of the new 4 evidence); Sanchez v. Secretary, 812 F.2d 509, 512 (9th Cir. 1987) 5 (same). 6 “material” to the previous denial, i.e., whether there exists a 7 reasonable possibility that, if the new decision had been available to 8 the first ALJ, the outcome of the first ALJ’s determination would have 9 been different. 10 The decisive question is whether the new decision is See 42 U.S.C. § 405(g). As discussed below, this Court finds the new decision to be material. 11 12 On the current record,2 unlike in Bruton, it appears that the two 13 administrative decisions rely on essentially the same medical 14 evidence. 15 in determining Plaintiff’s residual functional capacity (see A.R. 29; 16 Exhibit 3, p. 7). The same age classification applied (A.R. 30; 17 Exhibit 3, p. 8). Both ALJs arrived at the same residual functional 18 capacity determination (A.R. 26; Exhibit 3, p. 5). 19 concern different time periods of claimed disability, but the 20 difference is of little consequence because parts of the time periods 21 are no more than one day apart. Both ALJs adopted the opinion of an agreed medical examiner The decisions do See Luna, 623 F.3d at 1035. 22 23 In fact, the only apparent difference between the initial denial 24 of benefits and subsequent award of benefits is a conflict in the 25 vocational testimony, a conflict which cannot be reconciled on the 26 2 27 28 The record does not include the evidence that was available to the new ALJ and to expert Miksic, and does not include the transcript of the subsequent hearing during which Miksic testified. 6 1 current record. Both of the reviewing ALJs asked their respective 2 vocational experts whether jobs existed in significant numbers in the 3 national economy for an individual with Plaintiff’s age, education, 4 work experience, and residual functional capacity – factors that were 5 all identical in both proceedings. 6 significant numbers, while the other expert said no jobs existed in 7 significant numbers. 8 9. One expert said jobs existed in Compare A.R. 26, 30-31 with Exhibit 3, pp. 5, 8- 9 10 If the first ALJ had been presented with two experts giving such 11 conflicting testimony on the decisive vocational issue (with the 12 testimony of the second expert having been found credible by another 13 ALJ), then there would have existed at least a reasonable possibility 14 that the first ALJ would have found the testimony of the second expert 15 more credible than that of the first expert. 16 record offers no reason to prefer the testimony of the first expert to 17 the testimony of the second expert. 18 sentence six is appropriate. 19 Mora v. Astrue, 2012 WL 4113634, at *5-*6 (N.D. Cal. Sept. 19, 2012) 20 (finding sentence six remand appropriate based on subsequent favorable 21 disability determination, where adverse decisions relied on “some of 22 the same evidence” but reached different conclusions); Bagley v. 23 Astrue, 2012 WL 3537029, at *4-*6 (N.D. Cal. Aug. 14, 2012) (same, 24 where adverse decisions concerned “adjacent” time periods (less than 25 two months apart), and were not easily reconcilable because they 26 rested on same claims of disability and general set of ailments, and 27 overlapping medical evidence); Andrew v. Astrue, 2011 WL 4584815, at 28 *6 (D. Idaho Sept. 30, 2011) (same, where Appeals Council considered Indeed, the present Accordingly, remand under See Luna, 623 F.3d at 1034-35; see also 7 1 subsequent award of benefits but provided insufficient detail to 2 explain decision not to review, adverse disability periods were one 3 day apart and involved claims of disabling schizophrenia (an ongoing 4 condition), and the available record did not show the basis for 5 awarding benefits or whether the same evidence was considered); Daniel 6 v. Astrue, 2011 WL 3501759, at *6 (C.D. Cal. Aug. 9, 2011) (same); 7 Periera v. Astrue, 2011 WL 251455, at *2 (D. Ariz. Jan. 26, 2011) 8 (remand appropriate where adverse disability determinations concerned 9 overlapping disability periods and the record was inadequate to 10 determine whether the claimant presented different evidence to support 11 her applications or whether there were other reasons to explain the 12 differing outcomes); Dobson v. Astrue, 2010 WL 4628316, at *3-*4 (E.D. 13 Cal. Nov. 5, 2010) (remand appropriate where adverse disability 14 determinations concerned disability periods one day apart and the 15 record did not indicate why the subsequent ALJ assigned an onset date 16 that was one day after the initial denial). 17 18 IT IS SO ORDERED.3 19 20 DATED: February 5, 2013. 21 22 ______________/S/__________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 3 28 The Court need not and does not reach any of the issues discussed in the parties’ motions for summary judgment. 8

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?