Richard Edmond Russell v. Carolyn W. Colvin

Filing 22

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Commissioner is reversed, and the matter is remanded for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). (See Order for complete details) (afe)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION

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12 RICHARD EDMOND RUSSELL, JR.,
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Plaintiff,

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v.

15 CAROLYN W. COLVIN, Acting
Commissioner of Social

16 Security,
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Defendant.

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Case No. CV 14-01976 (AS)
MEMORANDUM OPINION AND
ORDER OF REMAND

Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED

20 that this matter is remanded
21 consistent with this Opinion.

for

further

administrative

action

22
PROCEEDINGS

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24

On March 25, 2014, Plaintiff filed a Complaint seeking review of

25 the denial of his applications for Disability Insurance Benefits and
26 Supplemental Social Security Income. (Docket Entry No. 3). The parties
27 have

consented

to

proceed

before

the

undersigned

28 Magistrate Judge. (Docket Entry Nos. 8, 11).

United

States

On August 6, 2014,

Defendant filed an Answer along with the Administrative Record (“AR”).
(Docket Entry Nos. 13-14).

The parties filed a Joint Stipulation

1 (“Joint Stip.”) on November 7, 2014, setting forth their respective
2 positions regarding Plaintiff’s claims.

(Docket Entry No. 19).

3
4

The Court has taken this matter under submission without oral
argument.

See C.D. Cal. L.R. 7-15; “Order Re: Procedures In Social

5 Security Case,” filed March 26, 2014 (Docket Entry No. 7).
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7

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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9

On August 29, 2011, Plaintiff, formerly employed as a nursing

10 assistant, home health care provider, and airplane detailer (see AR 38,
11 146),
12

filed

for

Disability

Insurance

Benefits

and

Supplemental Social Security Income, alleging disability since August
20, 2003.

13

applications

(See AR 15, 37, 71-72, 126-133).

administrative

hearing

on

October

31,

At the commencement of the

2012,

Plaintiff

waived

his

14 application for Disability Insurance Benefits, and elected to proceed
15 solely with his application for Supplemental Social Security Income,
16 alleging a disability since August 29, 2011.

(See AR 37).

The

17 Administrative Law Judge (“ALJ”), Jan Donsbach, heard testimony from
18

Plaintiff and vocational expert Sandra Trost.

(See AR 37-53).

On

November 29, 2012, the ALJ issued a decision denying Plaintiff’s

19 application. The ALJ determined that Plaintiff had a severe impairment
20 –- “residual fractures of the fibular and humerus” -- but found that
21 Plaintiff was not disabled within the meaning of the Social Security
22 Act.

(See AR 15-22).

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24

Plaintiff requested that the Appeals Council review the ALJ’s
decision.

(AR 7-11).

The request was denied on February 22, 2014.

(AR

25 1-5).
The ALJ’s decision then became the final decision of the
26 Commissioner, allowing this Court to review the decision. See 42 U.S.C.
27 §§ 405(g), 1383(c).
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PLAINTIFF’S CONTENTIONS

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Plaintiff alleges that the ALJ erred in failing to properly: (1)

3
4 assess
5

the

medical

evidence

in

determining

Plaintiff’s

residual

functional capacity; and (2) assess Plaintiff’s credibility. (See Joint
Stip. at 3-6, 10-13, 15-17).

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7

DISCUSSION

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After consideration of the record as a whole, the Court finds that

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Plaintiff’s

first

consideration.

claim

of

error

warrants

a

remand

for

further

Since the Court is remanding the matter based on

Plaintiff’s first claim of error, the Court will not address Plaintiff’s

12 second claim of error.
13
14 A.

The ALJ Failed to Properly Assess the Medical Evidence

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The ALJ found that Plaintiff had the following RFC: the ability to

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perform light work1 “except no more than occasional overhead reaching
dominant

right

upper

extremity.”

(See

AR

22).

In

making

this

18 determination, the ALJ stated that he had afforded “great weight” to the
19 “findings of the consultative examiner and DDS medical consultants.”
20 (AR 20). As set forth below, however, the ALJ rejected the findings of
21 the consultative examiner without providing clear and convincing reasons
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and did not state the reasons for his reliance on the findings made by
the DDS medical consultant.

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“Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds.”
20 C.F.R. §§ 404.1567(b) and 416.967(b).
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1

Consultative Examiner John Chung, M.D.

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The

ALJ

consultative

summarized
examiner,

the

John

November
Chung,

29,

M.D.,

2011

findings

following

an

of

the

orthopedic

evaluation, including X-rays. (See AR 18, 254-63). Dr. Chung diagnosed

5 Plaintiff with: “Internal derangement of the right shoulder with
6 fracture”; “Probable adhesive capsulitis of the right shoulder”;
7 “Derangement of the right hip as well as fracture”’ and “Internal
8 derangement of the right knee, rule out fracture or torn meniscus,” (AR
9
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254); and made the following functional assessment:
Based on the objective finding, he is not able to use the

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right upper extremity to perform any task at or above

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shoulder level.

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pushing type of activity using the right upper extremity.

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There is no limitation for the left upper extremity.

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He had difficulty doing any pulling or
There

is a probability that he has problem with his right knee
and this needs to be ruled out, therefore, he will have

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limitation of standing or walking capacity.

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day, he is able to stand and walk 2 hours and sit for 6

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hours.

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upper extremity.

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environmental limitation because of his writing problem.

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In an 8-hour

He is not able to lift and carry using the right
He has postural limitation.

He also had

At the present time, I feel that he has difficulty in doing
any type of physical activity on his right upper and lower
extremity.

Further diagnostic evaluation is indicated.

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24 (AR 258).
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Although the ALJ purported to afford great weight to Dr. Chung’s
opinions, the ALJ’s determination on Plaintiff’s RFC actually gave Dr.

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Chung’s

opinions

very

little

weight.

Indeed,

the

ALJ

did

not

28 specifically address Dr. Chung’s opinions as to Plaintiff’s postural and
environmental limitations.
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The ALJ rejected Dr. Chung’s opinion about Plaintiff’s ability to

2 lift and carry was “excessively restricted”

based on: (a) Plaintiff’s

3 “admission that he can carry small bags of groceries and perform small
4

chores, as noted in his Exertional Activity Questionnaire” (see AR 18,
citing AR 163-65 [In an Exertion Questionnaire dated October 22, 2011,

5 Plaintiff wrote, “I can carry a small bag of groceries” and “I can do
6 small chores”]); and (b) Plaintiff’s testimony at the hearing that he
7 takes out the trash, does a little walking and recycles bottles and cans
8 (see AR 18, 43-44).
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However, these reasons do not meet the clear and

convincing standard.

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First, the ALJ mischaracterized Plaintiff’s statements, since

11 Plaintiff did not claim that he could perform daily activities on an
12 unlimited basis. (See AR 164-65 [In the Questionnaire, Plaintiff wrote,
13 “I can carry a small bags (sic) of groceries, because of pain in
14 shoulder I can not (sic) do this often” and “I can do small chores if it
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doesn’t involve using my right shoulder (sic) or standing for any length
of time.”]); AR 43-44 [At the hearing, Plaintiff testified, “I usually

16 try to get out and do a little bit of walking, I recyle when I can” and
17 “I take out the trash.”). Second, Plaintiff’s statements about his
18 ability to perform daily activities generally was not inconsistent with
19 Dr. Chung’s opinion because Plaintiff could have performed such
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activities with his left hand (see AR 45), the use of which Dr. Chung
did not restrict.

Third,

Plaintiff’s ability to perform certain daily

activities, such as carrying groceries, taking out the trash, walking,

22 and recyling, did not support the adverse credibility finding as to Dr.
23 Chung. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).
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The ALJ also rejected Dr. Chung’s opinions based on Plaintiff’s

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testimony that his pain is relieved with medication (see AR 18).
reason was also not clear and convincing.

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This

The ALJ does not cite to any

part of the record where Plaintiff testified that his pain was relieved

28 with medication and the record does not reflect that Plaintiff testified
his

pain

was

totally

relieved

with
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medication.

At

the

hearing,

1 Plaintiff testified that medication and a heating pad “eases the pain a
2 little bit” on his right shoulder and hip, and that with medication his
3 right knee pain goes down to a level of 3 (see AR 47-48). Moreover, in
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the Exertion Questionnaire, Plaintiff stated that he could not carry
things very far unless he first takes pain medications.

(See AR 164).

5 The record does not substantiate the ALJ’s characterization about
6 Plaintiff’s pain relief.
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The final reason given by the ALJ for discrediting Dr. Chung’s

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opinions was the absence of evidence of ongoing medical treatment, the

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problems with certain records suggesting Plaintiff is disabled and/or
temporarily unemployable, and the allegedly infrequent and irregular

11 nature of Plaintiff’s treatment (see AR 18-19). Contrary to the ALJ’s
12 assertion (see AR 18-19), however, it appears that at least some records
13 concerning Plaintiff’s disability and/or temporary unemployability were
14 signed by an acceptable medical source. (See AR 303-05). In any event,
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the ALJ failed to explain how Dr. Chung’s opinions about Plaintiff’s
limitations were affected by such matters.

The case relied on by

16 Defendant to support the ALJ’s reason (see Joint Stip. at 7, citing Fair
17 v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989) relates only to a claimant’s
18 credibility determination.2
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Thus, the Court finds that the ALJ erred in his assessment of the
examining physician’s opinions (see Joint Stip. at 5, 10), by failing to
provide

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“clear

testimony.

and

convincing”

reasons

for

rejecting

Dr.

Chung’s

See Lester v. Chater, supra, 81 F.3d at 831 (“[T]he

23 Commissioner must provide ‘clear and convincing” reasons for rejecting
24 the uncontradicted opinion of an examining physician.”).
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The Court will not consider reasons for discounting Dr.
Chung’s opinions (see Joint Stipulation at 7) that were not given by the
ALJ in the Decision. See Pinto v. Massanari, 249 F.3d 840, 847-48 (9th
Cir. 2001); SEC v. Chenery Corp., 332 US 194, 196, 67 S.Ct. 1575, 91
L.Ed. 1995 (1947).
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DDS Medical Consultant I. Kim:

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Although the ALJ purported to rely on the “opinions of the DDS

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medical consultants,” (see Joint Stip. at 4, 10), the ALJ did not
summarize or discuss any such opinions and, contrary to the ALJ’s

5 assertion, the record reveals only one consultant who provided an opinion
6 regarding Plaintiff’s functional limitations. A “Disability Determination
7 Explanation,” (see AR 62-70),

prepared by I. Kim on February 1, 2012

8 stated that Plaintiff had the following RFC for the period of August 1,
9

2012 to August 1, 2013:

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Plaintiff

had

exertional

limitations

(Plaintiff

could

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occasionally lift and/or carry 20 pounds and could frequently

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lift 10 pounds; Plaintiff could stand and/or walk about 6

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hours in an 8-hour workday; Plaintiff could sit about 6 hours

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in an 8-hour workday; Plaintiff could push and/or pull
unlimited); Plaintiff had postural limitations (Plaintiff

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could occasionally climb ramps/stairs; Plaintiff could never

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climb ladders/ropes/scaffolds; Plaintiff could frequently

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balance, stoop, kneel and crouch; Plaintiff could never

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crawl); Plaintiff has manipulative limitations (Plaintiff is

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limited with his ability to use his right arm to reach in

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front and/or laterally and overhead; Plaintiff can handle,
finger and feel unlimited); and Plaintiff does not have any

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visual, communicative or environmental limitations.

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23 (AR 67-68).
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The ALJ failed to explain why he was giving this opinion such great

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weight. See 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii) (“Unless
a

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treating

source’s

opinion

is

given

controlling

weight,

the

administrative law judge must explain in the decision the weight given

28 to the opinions of a State agency medical or psychological consultant
7

1 . . . .”); Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir. 1981) (“The
2 circuit courts have consistently recognized the need for full and
3 detailed findings of fact essential to the Secretary’s conclusion.”);
4

see also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (“The
opinion

of

a

nonexamining

physician

cannot

by

itself

constitute

5 substantial evidence that justifies the rejection of the opinion of
6 either an examining physician or a treating physician”)(emphasis in
7 original).

Moreover, as Plaintiff asserts and Defendant does not

8 dispute (see Joint Stip. at 4, 10), since I. Kim identified himself as
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a “SDM” (which apparently is a substitute decision maker), it is not
clear that the ALJ was entitled to rely on his opinions.
§§

404.1527(e)(2)(i),

416.927(e)(2)(i)

(“State

agency

See 20 C.F.R.
medical

and

11 psychological consultants and other program physicians, psychologists
12 and other medical specialists are highly qualified physicians,
13 psychologists, and other medical specialists who are also experts in
14 Social Security disability evaluation.”).
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B.

Remand Is Warranted
The decision whether to remand for further proceedings or order an

18 immediate award of benefits is within the district court’s discretion.
19 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no
20 useful purpose would be served by further administrative proceedings,
21

or where the record has been fully developed, it is appropriate to
exercise this discretion to direct an immediate award of benefits.

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Id.

at 1179 (“[T]he decision of whether to remand for further proceedings

23 turns upon the likely utility of such proceedings.”). However, where,
24 as here, the circumstances of the case suggest that further
25 administrative review could remedy the Commissioner’s errors, remand is
26 appropriate.
27

McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011);

Harman v. Apfel, supra, 211 F.3d at 1179-81.

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8

1

Since the ALJ failed to properly evaluate the opinions of the

2 consultative examiner and the State Agency medical consultant, remand
3 is appropriate.
4

Because outstanding issues must be resolved before a

determination of disability can be made, and “when the record as a whole
creates serious doubt as to whether the [Plaintiff] is, in fact,

5 disabled within the meaning of the Social Security Act,” further
6 administrative proceedings would serve a useful purpose and remedy
7 defects.

Burrell

v.

Colvin,

8 2014)(citations omitted).

775

F.3d

1133,

1141

(9th

Cir.

3

9
ORDER

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11

For the foregoing reasons, the decision of the Commissioner is

12 reversed, and the matter is remanded for further proceedings pursuant
13 to Sentence 4 of 42 U.S.C. § 405(g).
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LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: July 20, 2015

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/s/
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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3

The Court has not reached any other issue raised by Plaintiff

24 except insofar as to determine that reversal with a directive for the
immediate payment of benefits would not be appropriate at this time.
25 “[E]valuation of the record as a whole creates serious doubt that
Plaintiff is in fact disabled.” See Garrison v. Colvin, 759 F.3d 995,
26 1021 (2014). Accordingly, the Court declines to rule on Plaintiff’s

claims regarding the ALJ’s questions to the vocational expert (see Joint

27 Stip. at 5-6, 11) and the ALJ’s assessment of Plaintiff’s credibility
Because this matter is being
(see Joint Stip. at 11-13, 15-16).
28 remanded for further consideration, these issues should also be
considered on remand.
9