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)

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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

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