Gines v. Colvin

Filing 25

ORDER REMANDING THE CASE PURSUANT TO § 405(g) FOR FURTHER PROCEEDINGS re 21 , 24 - Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 1/25/2017. "For the reasons set forth above, the court REMANDS the case pursuant t o § 405(g) for further proceedings. The clerk of court shall close the case file." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ALEXANDER VALDEZ GINES

Civ. No. 16-00254 JMS-KSC

Plaintiff,

ORDER REMANDING THE CASE
PURSUANT TO § 405(g) FOR
FURTHER PROCEEDINGS

vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

ORDER REMANDING THE CASE PURSUANT TO § 405(g) FOR
FURTHER PROCEEDINGS
I. INTRODUCTION
This is an action brought under 42 U.S.C. § 405(g) to review a final
decision of the Acting Commissioner of Social Security, Carolyn W. Colvin (the
“Commissioner,” or “Defendant”). Alexander Valdez Gines (“Plaintiff”) appeals
Defendant’s adoption of the Administrative Law Judge’s (the “ALJ”) February 20,
2015 decision finding Plaintiff not disabled under the Social Security Act, 42
U.S.C. §§ 401-34, 1381-83f (the “February 20 Decision”). Plaintiff argues that the
February 20 Decision must be overturned because the ALJ (1) abused her
discretion in refusing to forward Plaintiff’s interrogatories to the consultative

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examiner; and (2) failed to adequately develop the record. Based on the following,
the court REMANDS the case pursuant to § 405(g) for further proceedings.
II. BACKGROUND
A.

Factual Background
Plaintiff, born in 1964, worked in construction until he was laid off in

2009. Admin. R. (“AR”) at 33, ECF No. 11. He returned to his job in December
2010 but, after a couple of days, was once again let go. Id. Although he has
attempted to interview for jobs since December 2010, he has not worked since that
time. Id. at 33-34.
Plaintiff filed for Social Security and Disability Insurance benefits on
October 17, 2012, alleging disability since May 15, 2010, due to the combination
of gout, psoriasis, high blood pressure, and high cholesterol. Id. at 129, 207. His
claim was denied twice -- once on February 20, 2013, and again upon
reconsideration on September 19, 2013. Id. at 45, 55. On October 12, 2013,
Plaintiff filed a request for a hearing. Id. at 80-81. A hearing was conducted on
August 12, 2014 (“August 12 Hearing”), before the ALJ, in which Plaintiff and
vocational expert David Dettmer testified. Id. at 29-44. Including the information
summarized above, the ALJ had access to medical reports by Plaintiff’s treating
physician, Dr. Harry Acuna. Id. at 19. In addition, the ALJ permitted a post-

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hearing consultative examination that took place on November 3, 2014, by Dr.
Nalani Gauen. Id.
1.

Plaintiff’s Testimony and Statements
Plaintiff testified that he worked in construction until July 2009, and

upon further questioning by the ALJ, corrected his testimony to include a brief
period of work in December 2010. Id. at 33. Since then, he has attempted to
interview for other jobs, but because of gout “flare-ups,” was unable to make the
interviews. Id. at 34.
When Plaintiff has a gout flare-up, he experiences intense soreness, to
the point where he “scream[s]” when “even the wind blows on it.” Id. at 35. The
flare-ups cause his feet to swell so much that he cannot wear shoes. Id. at 36.
Because of the discomfort in his feet, he is uncomfortable sitting. Id. To deal with
a flare-up, Plaintiff lies in bed and elevates his feet, as he was told by his treating
physician, Dr. Acuna. Id. at 36. The flare-ups last between four days and two
weeks, and require Plaintiff to use crutches to walk. Id. at 37-38.
Plaintiff suffered “about three or four” flare-ups between January 1,
2014, and the August 12, 2014 hearing. Id. at 35. Dr. Acuna told Plaintiff to
change his diet to alleviate the symptoms from Plaintiff’s gout, so Plaintiff “tried

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juicing for a couple months” as recommended by his friend, but did not see any
changes. Id. at 34-35, 38.
2.

Dr. Acuna’s Medical Reports
Dr. Acuna treated Plaintiff during the time period relevant to this case.

Id. at 256-312, 315-341 (medical records ranging from November 22, 2003, to
June 28, 2013). Throughout Dr. Acuna’s records of Plaintiff’s exams, he notes that
Plaintiff, although exhibiting symptoms of gout and pedal edema, maintained
normal gait and station and had adequate range of movement in all extremities.
See, e.g., id. at 258, 260, 263, 268 (exams dated January 5, 2012; October 7 and
June 1, 2011; and March 4, 2010).
In a February 13, 2013 questionnaire, Dr. Acuna reported that
Plaintiff had “full” range of motion of upper and lower extremities, “normal” gait
and station, and was “able to use both hands for gross and dexterous movement.”
Id. at 313-14. In another questionnaire on July 11, 2014, Dr. Acuna wrote that
Plaintiff experienced gout flare-ups on October 18 and November 2, 2013, and on
May 24, 2014. Id. at 365. He further noted that Plaintiff was not physically
limited during flare-ups, and could in fact sit in a working position for eight hours
a day without any lifting limitations. Id. at 365-66.

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3.

Dr. Gauen’s Consultative Examination
After Plaintiff’s testimony, the ALJ had an on-the-record exchange

with Plaintiff’s attorney. The ALJ observed that “even during the flares, for the
most part there’s no swelling. There’s normal gait. There’s full range of motion of
the extremities.” Id. at 39. In response, Plaintiff’s attorney complained that
Plaintiff is “kind of at a disadvantage because of Dr. Acuna’s reluctance to give
[them] a little more information” and requested a post-hearing consultative
examination (“CE”). Id. at 40. The ALJ agreed to a post-hearing CE. Id.
Dr. Nalani Gauen performed Plaintiff’s CE on November 3, 2014. Id.
at 369-75. Dr. Gauen’s notes show that Plaintiff was referred due to complaints of
gout, psoriasis, and hypertension. Id. at 369. Specifically, she recorded that
Plaintiff complained of “gout attacks” that make him unable to walk. Id. Her
examination of Plaintiff’s lower extremities found “no evidence of swelling,
effusion, erythema, warmth, or deformity of the hips, knees, and ankles. All joint
ranges of motion are within normal limits.” Id. at 372. Moreover, Dr. Gauen
wrote that Plaintiff “ambulates with a normal gait.” Id. at 373. Dr. Gauen
concluded that Plaintiff could stand for up to two hours in a normal eight-hour
workday, and sit without restrictions. Id. at 374. She further concluded that

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Plaintiff could “occasionally” do certain activities, such as kneeling, crawling, and
climbing stairs and ladders. Id.
On November 24, 2014, Dr. Gauen completed a Medical Source
Statement (“MSS”). Id. at 377-82. In the MSS, she noted that Plaintiff was
limited to standing for 30 minutes and walking for 30 minutes in a typical eighthour workday, but could sit for up to seven hours. Id. at 378. She further noted
that Plaintiff could perform a range of activities, such as shopping, preparing food,
walk a block, and use public transportation. Id. at 382. She did not distinguish
between limitations during and absent a flare-up.
4.

Proceedings Subsequent to Dr. Gauen’s CE
On November 25, 2014, the ALJ sent Plaintiff’s attorney a letter that

included Dr. Gauen’s findings. Id. at 248-49. On November 30, 2014, Plaintiff’s
attorney responded with a request that the ALJ forward to Dr. Gauen Plaintiff’s
medical records and a list of questions that Plaintiff’s attorney prepared that posed
hypotheticals about Plaintiff’s limitations during a flare-up. Id. at 251. In her
February 20 Decision, the ALJ denied the request from Plaintiff’s attorney, finding
that Dr. Gauen “offered a narrative [MSS] that sufficiently addressed his opinion
of what the claimant can do despite his conditions.” Id. at 12.

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B.

Procedural Background
On February 20, 2015, the ALJ issued her decision finding Plaintiff

not disabled. Id. at 22. The Appeals Council subsequently rejected Plaintiff’s
request to review the February 20 Decision, and the February 20 Decision became
the final decision of the Commissioner on April 28, 2016. Id. at 1-4.
On May 5, 2016, Plaintiff filed his Complaint seeking judicial review
of the February 20 Decision. Compl., ECF No. 1. On September 23, 2016,
Plaintiff filed his Opening Brief, and on November 14, 2016, Defendant filed its
Answering Brief. Pl.’s Br., ECF No. 16; Def.’s Br., ECF No. 19. Plaintiff filed a
Reply Brief on November 28, 2016. Pl.’s Reply, ECF No. 20.
A hearing was held on January 17, 2017.
III. STANDARD OF REVIEW
Congress has provided a limited scope of judicial review of the
Commissioner’s decision to deny benefits under the Social Security Act. See 42
U.S.C. § 405(g). In reviewing findings of fact with respect with to such
determinations, the court must uphold the Commissioner’s decision, made through
an ALJ, “unless it is based on legal error or is not supported by substantial
evidence.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
“Substantial evidence is more than a mere scintilla but less than a preponderance.”

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Id. (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005)). Stated
differently, “[s]ubstantial evidence means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Burch v. Barnhart, 400
F.3d 676, 679 (9th Cir. 2005) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th
Cir. 1989)). With that said, however, “a reviewing court must consider the entire
record as a whole and may not affirm simply by isolating a ‘specific quantum of
supporting evidence.’” Ryan, 528 F.3d at 1198 (quoting Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 882 (9th Cir. 2006)).
IV. DISCUSSION
Disability insurance benefits are available under Title II of the Social
Security Act when an eligible claimant is unable “to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment . . . which has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). An individual is disabled
only if his impairments are of such severity that he is unable to do his previous
work, and cannot, considering his age, education, and work experience, engage in
any other substantial gainful activity existing in the national economy. Id.
§ 423(d)(2)(A).

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The Social Security Administration has established a five-step
sequential analysis to assess disability claims, which asks:
(1) Is the claimant presently working in a substantially gainful
activity? If yes, the claimant is “not disabled.”
(2) Is the claimant’s impairment severe? If no, the claimant is
“not disabled.”
(3) Does the impairment “meet or equal” one of a list of
specific impairments described in the regulations? If yes, the
claimant is “disabled.”
(4) Is the claimant able to do any work that he or she has done
in the past? If yes, the claimant is “not disabled.”
(5) Is the claimant able to do any other work? If yes, the
claimant is “not disabled.”
See Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). For steps one
through four, the burden of proof is on the claimant, and if “a claimant is found to
be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to
consider subsequent steps.” Id. at 1098. If the claimant reaches step five, the
burden shifts to the Commissioner. Id.
The ALJ’s February 20 Decision found that Plaintiff: (1) was not
engaged in a substantial gainful activity; (2) had three severe impairments: obesity,
pedal edema, and gout; (3) did not have an impairment meeting one of the list of
specific impairments described in the regulations; and (4) was unable to perform

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any past relevant work. AR at 15-21. Thus, Plaintiff survived steps one through
four, shifting the burden to the Commissioner. The ALJ further found that Plaintiff
failed at step five, as the Commissioner established that there were jobs existing in
significant numbers in the national economy that Plaintiff could perform given
Plaintiff’s residual functional capacity (“RFC”). Id. at 21-22.
Plaintiff now argues that the ALJ erroneously (1) denied the request
from Plaintiff’s attorney to forward interrogatories to Dr. Gauen, and (2) failed to
adequately develop the record. Pl.’s Br. at 6. Because the court finds that the ALJ
failed to adequately develop the record, the court does not specifically address
Plaintiff’s first argument.
A.

Relevant Case Law
“An ALJ’s duty to develop the record further is triggered only when

there is ambiguous evidence or when the record is inadequate to allow for proper
evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir,
2001) (citing Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)). That is,
“[a]mbiguous 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.’” Tonapetyan, 242 F.3d at 1150 (quoting Smolen v. Chater,

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80 F.3d 1273, 1288 (9th Cir. 1996)). Additionally, an ALJ’s duty to develop the
record “extends to the represented as well as to the unrepresented claimant.” Id.
B.

The ALJ Failed Her Duty to Adequately Develop the Record
Plaintiff argues that the ALJ failed her duty to adequately develop the

record when she denied Plaintiff’s request to forward interrogatories to Dr. Gauen,
because the denial prevented Dr. Gauen from commenting on what Plaintiff’s
disability would be during the times of his flare-ups. The court agrees.
At the August 12 Hearing, the colloquy between the ALJ and
Plaintiff’s attorney shows that the ALJ, in effect, found that the record is
inadequate. AR at 39-40. The ALJ first noted that Dr. Acuna’s records do not
identify special limitations during Plaintiff’s flare-ups. Id. at 39. In response,
Plaintiff’s attorney requested a post-hearing CE to provide more information on
this point, and the ALJ agreed:
ATTY: Well, I -- my client’s kind of at a disadvantage because
of Dr. Acuna’s reluctance to give us a little more information.
And since he responded to the first MSS, instead of that I was
going to second -- get a second one. I mean, if there are
problems now, which Mr. Gines says there are, this might be a
case somewhat reluctantly for me to request a post-hearing CE.
ALJ: And -ATTY: Is that where you were going?
ALJ: -- you’re anticipating -- yes.
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ATTY: Okay. I’m with you.
ALJ: Okay. All right.
ATTY: I would -- I would -- I think that’s called for.
ALJ: All right.
Id. at 40. Although the ALJ did not explicitly state that the record is inadequate, in
agreeing to a post-hearing CE, the court determines that the ALJ implicitly agreed
that more information was needed concerning Plaintiff’s flare-up limitations.
And it is odd that the ALJ would order a post-hearing CE but refuse to
direct the post-hearing examiner, Dr. Gauen, to specifically address the primary
issue -- Plaintiff’s limitations during flare-ups (and not provide Dr. Gauen with
Plaintiff’s medical records).1 In a letter dated August 29, 2014, Plaintiff requested
that the ALJ send Dr. Gauen certain interrogatories aimed at Plaintiff’s limitations
during a flare-up. Id. at 247. When Dr. Gauen’s report did not directly address the
narrow question of Plaintiff’s flare-up limitations -- the very question causing the
ALJ to order the post-hearing CE in the first place -- Plaintiff again requested that
the ALJ send the same interrogatories to Dr. Gauen. Id. at 251 (letter dated
November 30, 2014).

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In fact, the post-hearing CE order did not direct Dr. Gauen to specifically address
Plaintiff’s limitations during a flare-up. AR at 368.

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In her ultimate decision, the ALJ explained her refusal to send
Plaintiff’s interrogatories to Dr. Gauen by stating that Dr. Gauen “offered a
narrative [MSS] that sufficiently addressed his opinion of what the claimant can do
despite his conditions.” Id. at 12. But this is simply not true. At no point in Dr.
Gauen’s MSS does she address whether Plaintiff has particularly severe limitations
during a flare-up. In fact, Dr. Gauen even noted that Plaintiff was not experiencing
a flare-up during the exam, and that her diagnosis was limited because she lacked
Plaintiff’s medical records. Id. at 374 (“Gout: no significant deformities on exam.
No medical records to confirm diagnosis. Gait appeared to be normal, no acute
attack at the time of exam.”).
Essentially, the ALJ made a “finding that the record is inadequate to
allow for proper evaluation of the evidence,” Tonapetyan, 242 F.3d at 1150, when
she found it necessary to order a post-hearing CE. That finding triggered her duty
to fully develop the record to resolve the inadequacy in the record -- the lack of
information concerning Plaintiff’s limitations during a flare-up. Dr. Gauen’s posthearing CE did not resolve this inadequacy, however, because the ALJ failed to
direct Dr. Gauen to specifically address Plaintiff’s limitations during a flare-up.
As a result, the ALJ failed her duty to fully develop the record.

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V. REMAND
At the January 17 hearing, the court ordered that the case be remanded
to the Commissioner of Social Security. The court requested that the parties
mutually agree on the instructions for the remand. Below is the agreed upon
language, ECF No. 24, which the court adopts:
Pursuant to the Court’s January 17, 2017, order, the parties,
through their undersigned attorneys, submit the following
proposed order directing that this action be remanded to the
Commissioner of Social Security for further administrative
action pursuant to section 205(g) of the Social Security Act, as
amended, 42 U.S.C. § 405(g), sentence four.
Upon remand, the Appeals Council will remand the case to an
administrative law judge (ALJ) for a new hearing and decision.
The Appeals Council will instruct the ALJ to reevaluate the
medical evidence, including, but not limited to, all medicalsource opinion evidence concerning physical and mental
impairments, and explain the weight given to the opinion
evidence in accordance with applicable agency regulations and
rulings. If appropriate, the ALJ will obtain a consultative
examination pursuant to applicable agency regulations and
rulings. The Appeals Council will instruct the ALJ to reassess
Plaintiff’s subjective complaints consistent with applicable
agency regulations and rulings.
The Appeals Council will also instruct the ALJ to reevaluate
whether Plaintiff has the residual functional capacity to perform
her past relevant work pursuant to SSR 82-61 and 82-62 and, if
appropriate, obtain supplemental vocational expert testimony to
assist in determining what jobs exist, if any, for Plaintiff given
[his] age, education, vocational factors and residual functional
capacity.

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VI. CONCLUSION
For the reasons set forth above, the court REMANDS the case
pursuant to § 405(g) for further proceedings. The clerk of court shall close the
case file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 25, 2017.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Gines v. Colvin, Civ. No. 16-00254 JMS-KSC, Order Remanding the Case Pursuant to § 405(g)
for Further Proceedings

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