Jesus M Salcido v. Carolyn W Colvin

Filing 21

MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) defendant's Ex Parte Motion for Remand (Dkt. No. 17) is GRANTED IN PART AND DENIED IN PART; (2) the decision of the Commissioner is REVERSED; and ( 3) this action is remanded to defendant for further proceedings consistent with this Memorandum Opinion. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. **See Order for details.** (ch)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 JESUS M. SALCIDO, 13 14 15 16 17 Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 13-4772-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 BACKGROUND 21 Plaintiff filed this action on July 5, 2013, seeking review of the Commissioner’s denial of his 22 applications for Disability Insurance Benefits and Supplemental Security Income. The parties filed 23 Consents to proceed before the undersigned Magistrate Judge on July 18, 2013, and August 6, 24 2013. On April 2, 2014, defendant filed an Ex Parte Motion to Remand Pursuant to Sentence Four 25 of 42 U.S.C. 405(g) (“Motion”). Specifically, defendant concedes that remand is required because: 26 (1) the Administrative Law Judge (“ALJ”) erred in his evaluation of the medical evidence by finding 27 that the opinion of the medical expert, Dr. Steven Gerber, was entitled to “significant weight” as 28 “the most comprehensive” medical opinion in the record when, in fact, Dr. Gerber testified that he 1 did not review all of the medical evidence from 2011, which includes the opinion of treating 2 physician Dr. Paulino Yanez; and (2) the portion of Dr. Gerber’s testimony discussing whether 3 plaintiff meets or equals Listing 1.04 is inaudible. (Motion at 2) (internal quotation marks and 4 citation omitted). As a result, defendant requests that the Court remand the instant case with the 5 following instruction: “On remand, the [ALJ] will evaluate whether Plaintiff meets or equals Listing 6 1.04 and obtain supplemental evidence from a medical expert.” (Id.). Finally, defendant states 7 that the Motion was filed ex parte “because although the [Commissioner] agrees this matter must 8 be remanded, the parties cannot agree on the scope of the remand after engaging in good faith 9 negotiations.” (Id.). 10 On April 3, 2014, the Court held a telephonic status conference with the parties and ordered 11 both to include their respective positions concerning the scope of the remand order in a Joint 12 Stipulation (“JS”). The parties filed their JS on April 21, 2014. In the JS, plaintiff agrees that 13 remand is required, but contends that defendant’s proposed language is too narrow. (JS at 13- 14 14). In particular, plaintiff maintains that the ALJ should also be required to reassess plaintiff’s 15 credibility and, if necessary, reevaluate steps four and five. (Id.). Defendant appears to agree 16 with plaintiff’s position for the most part, but argues that the additional language proposed by 17 plaintiff is unnecessary since if the ALJ finds plaintiff does not meet or equal a Listing at step three, 18 the ALJ is required to continue with the sequential evaluation process. (JS at 15). 19 The Court has taken the Motion and JS under submission without oral argument. 20 21 II. 22 STANDARD OF REVIEW 23 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s 24 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 25 evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 26 F.3d 1228, 1231 (9th Cir. 2010). 27 “Substantial evidence means more than a mere scintilla, but less than a preponderance; 28 it is such relevant evidence as a reasonable mind might accept as adequate to support a 2 1 conclusion.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008) 2 (internal quotation marks and citation omitted); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 3 1998) (same). 4 Commissioner’s decision, the Court examines the administrative record as a whole, considering 5 adverse as well as supporting evidence. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); 6 see Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (“[A] reviewing court must 7 consider the entire record as a whole and may not affirm simply by isolating a specific quantum 8 of supporting evidence.”) (internal quotation marks and citation omitted). “Where evidence is 9 susceptible to more than one rational interpretation, the ALJ’s decision should be upheld.” Ryan, 10 528 F.3d at 1198 (internal quotation marks and citation omitted); see Robbins v. Soc. Sec. Admin., 11 466 F.3d 880, 882 (9th Cir. 2006) (“If the evidence can support either affirming or reversing the 12 ALJ’s conclusion, [the reviewing court] may not substitute [its] judgment for that of the ALJ.’”). When determining whether substantial evidence exists to support the 13 14 III. 15 REMAND FOR FURTHER PROCEEDINGS 16 Here, as both parties agree, remand for further proceedings is required because the ALJ’s 17 decision is not supported by substantial evidence and there are outstanding issues that must be 18 resolved before a final determination can be made. (See JS at 13-15); Benecke v. Barnhart, 379 19 F.3d 587, 593-96 (9th Cir. 2004). Under the circumstances, and in an effort to terminate these 20 proceedings, the Court will set forth the scope of the remand proceedings as clearly as it can. 21 First, because the ALJ erred in his evaluation of the medical evidence, on remand, the ALJ will, 22 with the assistance of a medical expert, reevaluate the medical evidence, including the opinion of 23 plaintiff’s treating physician Dr. Yanez. The ALJ shall explain the weight afforded to each medical 24 opinion and provide legally adequate reasons for the rejection of any portion of the opinion(s). 25 Second, the ALJ shall reassess plaintiff’s credibility and provide specific clear and convincing 26 reasons for rejecting any portion of plaintiff’s subjective allegations. 27 Third, with the assistance of the medical expert, the ALJ shall reassess at step three 28 whether plaintiff meets or equals a Listing, including Listing 1.04. Finally, if necessary, the ALJ 3 1 shall reassess plaintiff’s RFC and, with the assistance of a vocational expert, determine whether 2 plaintiff is capable of performing any past relevant work or other work existing in significant 3 numbers in the national economy. 4 5 IV. 6 CONCLUSION 7 IT IS HEREBY ORDERED that: (1) defendant’s Ex Parte Motion for Remand (Dkt. No. 17) 8 is granted in part and denied in part; (2) the decision of the Commissioner is reversed; and (3) 9 this action is remanded to defendant for further proceedings consistent with this Memorandum 10 11 12 13 14 Opinion. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 15 16 DATED: May 9, 2014 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 4

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