Verner L Shepard v. Michael J Astrue

Filing 15

MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. This matter will be remanded for further hearing consistent with this Memorandum Opinion. 3 [SEE ORDER FOR FURTHER DETAILS] (gr)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

7
8
9
10
11

VERNER L. SHEPARD,

12

Plaintiff,

13
14

v.

15

CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,

16

Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

No. CV 12-10468-VBK
MEMORANDUM OPINION
AND ORDER
(Social Security Case)

17
18

This matter is before the Court for review of the decision by the

19

Commissioner of Social Security denying Plaintiff’s application for

20

disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have

21

consented that the case may be handled by the Magistrate Judge. The

22

action arises under 42 U.S.C. §405(g), which authorizes the Court to

23

enter judgment upon the pleadings and transcript of the Administrative

24

Record (“AR”) before the Commissioner. The parties have filed the

25

Joint Stipulation (“JS”), and the Commissioner has filed the certified

26

AR.

27

Plaintiff raises the following issue:

28

1.

Whether the Commissioner failed to provide specific and

1

legitimate reasons for rejecting the opinion of Plaintiff’s

2

treating physician.

3

(JS at 3.)

4
5

This Memorandum Opinion will constitute the Court’s findings of

6

fact and conclusions of law. After reviewing the matter, the Court

7

concludes

8

Commissioner must be reversed and the matter remanded.

that

for

the

reasons

set

forth,

the

decision

of

the

9
10

I

11

THE APPEALS COUNCIL’S FAILURE TO ARTICULATE ANY REASON

12

FOR REJECTING DR. YEMOFIO’S ASSESSMENT IS REVERSIBLE ERROR

13

The

issue

in

this

case

is

relatively

simple.

After

the

14

Administrative Law Judge (“ALJ”) issued her Decision (AR 19-27) on

15

June 3, 2011, Plaintiff’s counsel on August 17, 2011 submitted new

16

evidence to the Appeals Council, in the form of a “Physical Residual

17

Functional Capacity Questionnaire” (“Questionnaire”) by Dr. Yemofio,

18

a treating physician, which is dated September 14, 2010. (AR 5, 510-

19

515.)

20

which is that Plaintiff is capable of stand/walk exertion for less

21

than two hours a day, and of sitting for two hours a day (AR 513),

22

would, if found to be credible and persuasive, render Plaintiff

23

disabled, simply because he could not work an eight-hour day.

24

is,

25

submitted (see “Defendant’s Contentions” at JS 6-7); rather, the

26

Commissioner argues that the “check-the-box” Questionnaire is entirely

27

conclusory, is unsupported by any accompanying objective evidence,

28

and, finally, conflicts with the existing medical evidence.

in

The parties do not disagree that Dr. Yemofio’s assessment,

addition,

no

dispute

that

2

this

new

evidence

was

There
timely

This may

1

or may not be true, but it is not the Court’s role to perform an

2

evidentiary

3

having indicated what consideration, if any, was given to this new

4

medical evidence. As to this, nothing is said by the Appeals Council,

5

other than, having reviewed the new evidence (AR 5), it indicating,

6

“We found no reason under our rules to review the Administrative

7

Judge’s decision.

8

(AR 1.)

credibility analysis in the absence of the Commissioner

Therefore we have denied your request for review.”

9

The Court cannot apply harmless error analysis in this case, for

10

to do so, the Court would have to make an assessment of the value of

11

Dr. Yemofio’s Questionnaire, or at the least, engage in a speculative,

12

predictive exercise as to how the ALJ or the Appeals Council would

13

have evaluated this evidence.

14

doctrine requires a reviewing Court to consider that even if the

15

evidence was fully credited, it would not change the result.

16

Stout v. Commissioner, Social Security Administration, 454 F.3d 1050,

17

1055-56 (9th Cir. 2006), and Molina v. Astrue, 674 F.3d 1104, 1122-23,

18

9th

19

dissenting in part).

20

with regard to the evaluation of evidence under a harmless error

21

analysis, “Rather, we still must decide whether the testimony affected

22

the disability determination. [Citation omitted.]

23

testimony

24

harmless.” (Id.)

25

assessment whether, if found credible, this evidence would change the

26

disability analysis.

27

in question was found to be immaterial to the ultimate decision, and

28

thus properly considered harmless error, because, as the majority

Cir.

2012,

had

Graber,

no

By definition, the harmless error

Circuit

Judge,

concurring

in

part

See

and

As Judge Graber plainly and correctly stated

bearing

on

that

determination,

If the ignored
the

error

is

As this Court has indicated, it cannot make an

Indeed, in the Molina case itself, the evidence

3

1

opinion indicates, “Although the ALJ erred in failing to give germane

2

reasons for rejecting the lay witness testimony, such error was

3

harmless given that the lay testimony described the same limitations

4

as Molina’s own testimony, and the ALJ’s reasons for rejecting

5

Molina’s testimony apply with equal force to the lay testimony.” That

6

analytical framework cannot apply to an analysis of the effect of Dr.

7

Yemofio’s opinion, because, as noted, it is in fact contradictory to

8

the evidence relied upon by both the ALJ and the Appeals Council in

9

finding Plaintiff to be not disabled.

Therefore, this matter must be

10

remanded so that consideration can be given to this evidence.

11

appropriate, the ALJ will develop the record to determine whether the

12

Questionnaire is supported by underlying objective evidence.

13
14
15

For the foregoing reasons, this matter will be remanded for
further hearing consistent with this Memorandum Opinion.
IT IS SO ORDERED.

16
17
18

If

DATED: September 11, 2013

/s/
VICTOR B. KENTON
UNITED STATES MAGISTRATE JUDGE

19
20
21
22
23
24
25
26
27
28
4