Wayne Loy Dines v. Carolyn W. Colvin

Filing 24

MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 WAYNE LOY DINES, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, Acting ) Commissioner of Social Security, ) ) Defendant. ) ____________________________________) NO. ED CV 16-2629-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 20 judgment are denied, and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a Complaint on December 27, 2016, seeking review 26 of the Commissioner’s denial of disability benefits. The parties 27 filed a consent to proceed before a United States Magistrate Judge on 28 February 1, 2017. 1 Plaintiff filed a motion for summary judgment on August 17, 2017. 2 Defendant filed a motion for summary judgment on September 18, 2017. 3 The Court has taken both motions under submission without oral 4 argument. See L.R. 7-15; “Order,” filed January 5, 2017. 5 6 BACKGROUND 7 8 9 Plaintiff asserts disability based on alleged physical and mental impairments (Administrative Record (“A.R.”) 48-56, 143-50, 164, 200). 10 Most of the alleged physical impairments involve Plaintiff’s lumbar 11 spine (A.R. 48). 12 revealed several disc bulges and, at various points and to various 13 degrees, narrowing of the lateral recesses, “displacement and 14 abutment” of the nerve roots, and “neural foraminal narrowing” (A.R. 15 285-87). 16 range of motion, paralumbar tenderness, spasm, positive straight leg 17 testing, positive Lasegue’s and “extremely antalgic gait” (A.R. 277, 18 279, 281-82, 288). An MRI of Plaintiff’s lumbar spine in March of 2014 Medical examination and testing revealed “very decreased” 19 20 A non-examining state agency review physician looked at some of 21 the medical records and opined Plaintiff has no severe physical 22 impairment (A.R. 78). 23 medical evidence of record, and specifically did not review the MRI of 24 Plaintiff’s lumbar spine (A.R. 34, 78, 285-89). 25 reviewed Plaintiff’s medical test results or rendered any opinion 26 concerning the nature or severity of Plaintiff’s back impairment or 27 the impact of the impairment on Plaintiff’s exertional capacity. 28 /// However, this physician did not review all the 2 No other doctor 1 The Administrative Law Judge (“ALJ”) rejected the opinion of the 2 non-examining state agency review physician and found Plaintiff’s back 3 problems to be severe (A.R. 29, 34). 4 medical opinion, however, the ALJ also found that Plaintiff’s back 5 impairment is not sufficiently severe to interfere in any way with 6 Plaintiff’s ability to perform all the exertional requirements of 7 light work (A.R. 32). In the absence of any supporting 8 9 10 The ALJ denied benefits (A.R. 29-38). The Appeals Council denied review (A.R. 1-3). 11 12 STANDARD OF REVIEW 13 14 Under 42 U.S.C. section 405(g), this Court reviews the 15 Administration’s decision to determine if: (1) the Administration’s 16 findings are supported by substantial evidence; and (2) the 17 Administration used correct legal standards. 18 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 19 499 F.3d 1071, 1074 (9th Cir. 2007). 20 relevant evidence as a reasonable mind might accept as adequate to 21 support a conclusion.” 22 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 23 454 F.3d 1063, 1067 (9th Cir. 2006). See Carmickle v. Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 24 25 If the evidence can support either outcome, the court may 26 not substitute its judgment for that of the ALJ. 27 Commissioner’s decision cannot be affirmed simply by 28 isolating a specific quantum of supporting evidence. 3 But the 1 Rather, a court must consider the record as a whole, 2 weighing both evidence that supports and evidence that 3 detracts from the [administrative] conclusion. 4 5 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 6 quotations omitted). 7 8 DISCUSSION 9 10 No assessment by a treating or examining physician supports the 11 ALJ’s finding that Plaintiff can perform all the exertional 12 requirements of light work notwithstanding his severe back impairment. 13 Instead, the ALJ appears to have relied on his own lay review and 14 interpretation of the MRI and other medical test results to define 15 Plaintiff’s exertional capacity. 16 the ALJ could not competently translate the medical evidence in this 17 case into a physical residual functional capacity assessment. 18 Tackett v. Apfel, 180 F.3d at 1102-03 (ALJ’s residual functional 19 capacity assessment cannot stand in the absence of evidentiary 20 support); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs 21 must not succumb to the temptation to play doctor and make their own 22 independent medical findings”); Day v. Weinberger, 522 F.2d 1154, 1156 23 (9th Cir. 1975) (an ALJ is forbidden from making his or her own 24 medical assessment beyond that demonstrated by the record). 25 than adopting his own lay assessment of Plaintiff’s limitations, the 26 ALJ should have ordered an examination and evaluation of Plaintiff by 27 a consultative neurologist, orthopedist or other relevant specialist. 28 See id.; see also Reed v. Massanari, 270 F.3d 838, 843 (9th Cir. 2001) Absent expert medical assistance, 4 See Rather 1 (where available medical evidence is insufficient to determine the 2 severity of the claimant’s impairment, the ALJ should order a 3 consultative examination by a specialist); accord, Kish v. Colvin, 552 4 Fed. App’x 650 (2014); see generally Mayes v. Massanari, 276 F.3d 453, 5 459-60 (9th Cir. 2001) (ALJ’s duty to develop the record further is 6 triggered “when there is ambiguous evidence or when the record is 7 inadequate to allow for the proper evaluation of the evidence”) 8 (citation omitted); Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 9 1983) (“[T]he ALJ has a special duty to fully and fairly develop the 10 record to assure the claimant’s interests are considered. This duty 11 exists even when the claimant is represented by counsel.”). 12 13 In attempting to defend the ALJ’s physical residual functional 14 capacity assessment, Defendant cites, inter alia, Stubbs-Danielson v. 15 Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (“Stubbs”). 16 the ALJ translated a mental impairment into a concrete functional 17 restriction recommended by one of the physicians of record. 18 present case is unlike Stubbs. 19 record (other than perhaps the non-examining physician whose opinion 20 the ALJ rejected) offered any opinion or recommendation regarding the 21 functional restrictions that should attend Plaintiff’s physical 22 impairment. In Stubbs, The In the present case, no physician of 23 24 Defendant appears to argue that the Court should affirm the ALJ’s 25 physical residual functional capacity assessment because the record 26 contains no opinion from a physician that there exist greater 27 functional limitations than those the ALJ found to exist (Defendant’s 28 Motion at 7-8). Contrary to Defendant’s apparent argument, the 5 1 absence of competent medical opinion interpreting the MRI and other 2 medical testing does not itself constitute substantial evidence 3 supporting the ALJ’s decision. 4 competent medical opinion is the very reason why substantial evidence 5 does not support the ALJ’s decision. To the contrary, the absence of 6 7 The Court is unable to deem the error in the present case to have 8 been harmless. See Treichler v. Commissioner, 775 F.3d 1090, 1105 9 (9th Cir. 2014) (“Where, as in this case, an ALJ makes a legal error, 10 but the record is uncertain and ambiguous, the proper approach is to 11 remand the case to the agency”); see also Molina v. Astrue, 674 F.3d 12 1104, 1115 (9th Cir. 2012) (an error “is harmless where it is 13 inconsequential to the ultimate non-disability determination”) 14 (citations and quotations omitted); McLeod v. Astrue, 640 F.3d 881, 15 887 (9th Cir. 2011) (error not harmless where “the reviewing court can 16 determine from the ‘circumstances of the case’ that further 17 administrative review is needed to determine whether there was 18 prejudice from the error”). 19 20 Remand is appropriate because the circumstances of this case 21 suggest that further administrative review could remedy the error 22 discussed herein. 23 Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative 24 determination, the proper course is remand for additional agency 25 investigation or explanation, except in rare circumstances); Dominguez 26 v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district 27 court concludes that further administrative proceedings would serve no 28 useful purpose, it may not remand with a direction to provide McLeod v. Astrue, 640 F.3d at 888; see also INS v. 6 1 benefits”); Treichler v. Commissioner, 775 F.3d at 1101 n.5 (remand 2 for further administrative proceedings is the proper remedy “in all 3 but the rarest cases”); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th 4 Cir.), cert. denied, 531 U.S. 1038 (2000) (remand for further 5 proceedings rather than for the immediate payment of benefits is 6 appropriate where there are “sufficient unanswered questions in the 7 record”). 8 present record. There remain significant unanswered questions in the 9 10 CONCLUSION 11 12 For all of the foregoing reasons,1 Plaintiff’s and Defendant’s 13 motions for summary judgment are denied and this matter is remanded 14 for further administrative action consistent with this Opinion. 15 16 LET JUDGMENT BE ENTERED ACCORDINGLY. 17 18 19 DATED: September 27, 2017. 20 21 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 1 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. “[E]valuation of the record as a whole creates serious doubt that [Plaintiff] is in fact disabled.” Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014). 7

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