Shirley Driskell v. Michael J. Astrue

Filing 22

DECISION AND ORDER by Magistrate Judge Carla Woehrle: IT IS ORDERED that: 1. The decision of the Commissioner is REVERSED. 2. This action is REMANDED to defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above. 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. (See document for further details.) (pcl)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The parties have consented, under 28 U.S.C. § 636(c), to the jurisdiction of the undersigned Magistrate Judge. Plaintiff seeks As ) ) Plaintiff, ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner, Social Security ) Administration, ) ) Defendant. ) ) SHIRLEY DRISKELL, No. EDCV 07-1219 CW DECISION AND ORDER UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION

review of the Commissioner's denial of disability benefits.

discussed below, the court finds that the Commissioner's decision should be reversed and this matter remanded for further proceedings. I. BACKGROUND

Plaintiff Shirley Driskell was born on July 22, 1964, and was forty-two years old at the time of her administrative hearing. [Administrative Record ("AR") 70, 273.] She has a high school

education and past relevant work experience as a secretary. [AR 75, 1

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79.]

Plaintiff alleges disability on the basis of "chronic

obstructive pulmonary disease aka emphysema." [AR 74.] II. PROCEEDINGS IN THIS COURT

Plaintiff's complaint was lodged on September 21, 2007, and filed on October 9, 2007. On May 22, 2008, defendant filed an answer and On September 2, 2008, the

plaintiff's Administrative Record ("AR").

parties filed their Joint Stipulation ("JS") identifying matters not in dispute, issues in dispute, the positions of the parties, and the relief sought by each party. This matter has been taken under

submission without oral argument. III. PRIOR ADMINISTRATIVE PROCEEDINGS

Plaintiff applied for supplemental security income ("SSI") under Title XVI of the Social Security Act on February 8, 2005, alleging disability since November 2, 2003. [JS 2, AR 12.] After the

application was denied initially and upon reconsideration, plaintiff requested an administrative hearing, which was held on April 13, 2007, before Administrative Law Judge ("ALJ") F. Keith Varni. [AR 273.] Plaintiff appeared with counsel and testified at the hearing. [AR 274.] The ALJ denied benefits in a decision dated April 23, 2007. [AR When the Appeals Council denied review on August 6, 2007, the

12-17.]

ALJ's decision became the Commissioner's final decision. [AR 3.] IV. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's (or

ALJ's) findings and decision should be upheld if they are free of legal error and supported by substantial evidence. However, if the

court determines that a finding is based on legal error or is not supported by substantial evidence in the record, the court may reject 2

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the finding and set aside the decision to deny benefits.

See Aukland

v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Tackett v. Apfel, 180 F.3d 1094,

1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). "Substantial evidence is more than a scintilla, but less than a preponderance." Reddick, 157 F.3d at 720. It is "relevant evidence

which a reasonable person might accept as adequate to support a conclusion." Id. To determine whether substantial evidence supports

a finding, a court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Id. "If the evidence

can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. V. A. DISCUSSION

THE FIVE-STEP EVALUATION

To be eligible for disability benefits a claimant must demonstrate a medically determinable impairment which prevents the claimant from engaging in substantial gainful activity and which is expected to result in death or to last for a continuous period of at least twelve months. Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at

721; 42 U.S.C. § 423(d)(1)(A). Disability claims are evaluated using a five-step test: Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. 3

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Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 C.F.R. § 404.1520, § 416.920. If a claimant is found "disabled" or

"not disabled" at any step, there is no need to complete further steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520.

Claimants have the burden of proof at steps one through four, subject to the presumption that Social Security hearings are nonadversarial, and to the Commissioner's affirmative duty to assist claimants in fully developing the record even if they are represented by counsel. 1288. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at

If this burden is met, a prima facie case of disability is

made, and the burden shifts to the Commissioner (at step five) to prove that, considering residual functional capacity ("RFC")1, age,

Residual functional capacity measures what a claimant can still do despite existing "exertional" (strength-related) and "nonexertional" limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 4

1

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education, and work experience, a claimant can perform other work which is available in significant numbers. Tackett, 180 F.3d at 1098,

1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. B. THE ALJ'S EVALUATION IN PLAINTIFF'S CASE

Here, the ALJ found that plaintiff had not engaged in substantial gainful activity since her alleged disability onset date (step one). [AR 14.] At step two, the ALJ determined that plaintiff did not have

a medically determinable impairment and, even if she did, it would not be "severe" because it would not impair her ability to perform basic work-related activities for twelve consecutive months. [Id.] Accordingly, plaintiff was found not "disabled" as defined by the Social Security Act. [AR 17.] C. ISSUES IN DISPUTE

The parties' Joint Stipulation identifies five disputed issues: 1. Whether the ALJ properly considered evidence of plaintiff's mental impairment; 2. 3. Whether the ALJ properly considered plaintiff's testimony; Whether the ALJ properly considered evidence of plaintiff's medication side effects; 4. Whether the ALJ properly considered whether plaintiff's mental impairment was "severe"; and 5. Whether the ALJ fully developed the record.

[JS 5.] As discussed below, Issue Five is dispositive. D. DEVELOPMENT OF THE RECORD

During the administrative hearing, plaintiff testified that she

765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5

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had experienced depression "off and on for years" but that it had gotten worse in the previous year and a half to two years. [AR 278.] Plaintiff claimed symptoms such as crying, nervousness and problems with concentration. [Id.] The record indicates that plaintiff made At a separate

similar complaints to a rheumatologist. [AR 112.]

rheumatology visit, the physician reported that plaintiff was seeing, among others, a psychiatric specialist regularly and that she had a prescription for Trazadone and Lamactil as a mood stabilizer. [AR 272.] In the administrative decision, the ALJ noted plaintiff's testimony alleging depression but found that, "there is no documented medically determined mental impairment and a consultative psychiatric evaluation at this point would be insufficient to establish one that has lasted or is expected to last twelve months." [AR 17.] Accordingly, no consultative psychiatric examination was ordered. Plaintiff argues that the ALJ failed to fully develop the record on this issue. [JS 14.] The ALJ has a "special duty to fully and fairly develop the record and to assure that the claimant's interests are considered . . . even when the claimant is represented by counsel." Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) (ellipsis in original) (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir.1983); Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). "Social Security It is the

proceedings are inquisitorial rather than adversarial.

ALJ's duty to investigate the facts and develop the arguments both for and against granting of benefits." Sims v. Apfel, 530 U.S. 103,

110-111, 120 S. Ct. 2080, 147 L. Ed 2d 80 (2000); see also Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006)("it is incumbent upon 6

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the ALJ to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts" and to remain "especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited")(quoting Cox v. Califano, 487 F.2d 988, 991 (9th Cir. 1978)). "Ambiguous evidence, or the ALJ's own finding

that the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ's duty to `conduct an appropriate inquiry.'" Id. (citing Smolen, 80 F.3d at 1288). In this case, the record should have been developed further with regard to plaintiff's alleged mental impairments. The existing

evidence indicates that plaintiff had complained of recurring depression, reported her complaints to a physician, and received medication for it. Under these circumstances, the record was

ambiguous as to whether plaintiff has a medically determinable mental impairment, triggering the need for further development of an adequate record. See Hilliard v. Barnhart, 442 F. Supp. 2d 813, 817 (N.D. Cal.

2006)(finding independent duty to develop record when plaintiff merely "raised a suspicion" concerning an alleged mental impairment). To the

extent that defendant argues that there was no duty to develop the record because plaintiff failed to satisfy her burden of proving disability and furnishing supporting evidence [JS 15], this "confuses the burden of proof, which is clearly on the claimant at step two, with the ALJ's independent duty to develop the record, which is triggered by ambiguous evidence." Id. (citing Tonapetyan, 424 F.3d at 1151); see also Widmark, 454 F.3d 1063 (finding duty to develop record when record was ambiguous even when plaintiff failed to specifically allege impairment in connection with disability claim). remand for further proceedings is appropriate. 7 Accordingly,

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E.

REMAND FOR FURTHER PROCEEDINGS

The decision whether to remand for further proceedings is within the discretion of the district court. 1175-1178 (9th Cir. 2000). Harman v. Apfel, 211 F.3d 1172,

Where no useful purpose would be served by

further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Harman, 211 F.3d at 1179 (decision whether to

remand for further proceedings turns upon their likely utility). However, where there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate. Id.

Here, as set out above, outstanding issues remain before a finding of disability can be made. Accordingly, remand is appropriate. VI. ORDERS

Accordingly, IT IS ORDERED that: 1. 2. The decision of the Commissioner is REVERSED. This action is REMANDED to defendant, pursuant to Sentence

Four of 42 U.S.C. § 405(g), for further proceedings as discussed above. 3. The Clerk of the Court shall serve this Decision and Order

and the Judgment herein on all parties or counsel.

DATED: October 15, 2008 ___________/S/___________________ CARLA M. WOEHRLE United States Magistrate Judge

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