Hawley v. Colvin

Filing 18

ORDER re Plaintiff's 9 Motion to Remand to Agency. Motion Hearing set for 6/1/2017 03:00 PM in LV Courtroom 3A before Magistrate Judge Nancy J. Koppe. Signed by Magistrate Judge Nancy J. Koppe on 5/19/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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GREGG ANTHONY HAWLEY,

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Plaintiff(s),

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vs.

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NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,

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Defendant(s).
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Case No. 2:16-cv-01049-RFB-NJK
ORDER

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This case involves judicial review of administrative action by the Commissioner of Social

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Security (“Commissioner”) denying Plaintiff’s application for disability insurance benefits pursuant to

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Title II of the Social Security Act. Currently before the Court is Plaintiff’s Motion for Reversal and/or

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Remand. Docket No. 9. The Commissioner filed a response in opposition and a Cross-Motion to

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Affirm. Docket No. 10. Plaintiff filed a reply. Docket No. 11. The parties filed supplemental briefs.

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Docket No. 15, 16. The Court hereby SETS a hearing in this matter for 3:00 p.m. on June 1, 2017, in

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Courtroom 3A. The Court will hear argument on the motions generally, but counsel shall be prepared

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in particular to address the following.1

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To ensure counsel can properly prepare, the Court is providing more detail than typical in setting
a hearing. Nonetheless, the Court herein expresses no opinion as to the ultimate resolution of the motions
or as to any particular issue therein.

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I.

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OPINION OF DR. EDWARD TSAI
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The Commissioner appears to be relying in part on reasons not articulated by the ALJ for

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discounting Dr. Tsai’s opinion, such as Plaintiff’s daily activities and the conservative

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nature of the treatment received. Compare Docket No. 10 at 8, 10 with A.R. 24, 26 (not

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expressly articulating either reason as the basis for ALJ’s discounting of portions of Dr.

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Tsai’s opinion). The parties shall be prepared to argue whether any such reason is

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pertinent to the Court’s analysis. Cf. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d

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1219, 1225-26 (9th Cir. 2009) (reviewing courts consider only those reasons articulated

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by the ALJ).

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2.

Plaintiff anticipates in the opening brief the argument that the ALJ properly discounted

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portions of Dr. Tsai’s opinion as a conclusory form that is insufficiently explained and

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insufficiently supported by the medical record. Docket No. 9 at 17-18. The parties shall

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be prepared to argue whether the Commissioner waived the ability to rely on the

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conclusory nature of Dr. Tsai’s opinion by not including in her opposition brief any

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discussion on this issue. See, e.g., Newdow v. Congress of the United States of America,

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435 F. Supp. 2d 1066, 1070 n.5 (E.D. Cal. 2006) (silence on an issue in an opposition

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brief can be construed as acquiescence on that issue).

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3.

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Assuming such an argument has not been waived, the parties shall be prepared to argue
whether the ALJ properly discounted portions of Dr. Tsai’s opinion as conclusory.

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4.

Assuming such an argument has not been waived, the parties shall be prepared to argue

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whether there is a basis in law for Plaintiff’s contention that the ALJ erred by giving

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significant weight to part of Dr. Tsai’s opinion but discounting other parts. Cf.

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Magallanes v. Bowen, 881 F.2d 747, 753-54 (9th Cir. 1989) (affirming ALJ’s adoption

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of part of a physician’s opinion).

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II.

LISTING 5.06B
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Dr. Tsai may have opined in the check-box questionaire that the requirements had been

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met for Listing 5.06B by noting “5.06 B 3+4.” A.R. 431. The parties shall be prepared

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to argue whether the ALJ properly rejected any such finding as a conclusory opinion
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offered without sufficient explanation or support in the medical record, as discussed

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above.

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2.

While Dr. Tsai included the notation regarding Listing 5.06B in his questionaire

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completed on September 6, 2013, A.R. 431-34, there is no similar notation on his later

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questionaire completed on October 13, 2014, A.R. 463-66. The parties shall be prepared

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to argue whether such an omission impacts the Court’s analysis.

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3.

Plaintiff admits that his “physical exams did not appear to note a ‘tender mass palpable

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on physical examination,’ as required by Listing 5.06B(3).” Docket No. 9 at 20.2 The

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parties shall be prepared to argue whether such an absence itself renders Listing 5.06B(3)

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unmet since it requires that this condition be “clinically documented.”

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4.

Plaintiff argues that Dr. Tsai “interpret[ed]” Plaintiff’s abdominal pain and diarrhea as

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meaning that an abdominal mass exists. Docket No. 9 at 21. The parties shall be

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prepared to argue whether such interpretation would be sufficient to meet Listing

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5.06B(3) since it requires a mass that is capable of being discerned by touch. Compare

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Listing 5.06B(3) with Merriam-Webster Dictionary (defining “palpable” a “capable of

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being touched or felt”).

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5.

The parties shall be prepared to argue whether Plaintiff has waived the ability to raise any

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argument regarding Listing 5.06B(5) by addressing it for the first time in reply. Cf.

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Bazuaye v. I.N.S., 79 F.3d 118, 120 (9th Cir. 1996).

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6.

Assuming such an argument has not been waived, the parties shall be prepared to argue

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whether the ALJ erred in finding no unintentional weight loss sufficient to meet Listing

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5.06(B)(5). Cf. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (ALJs are

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responsible for resolving ambiguities).

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Neither party acknowledges the medical record that appears to affirmatively negate the existence
of any palpable abdominal mass. See A.R. 385 (“no masses palpable” in abdomen); A.R. 470 (“no masses
palpable” in abdomen); A.R. 473 (“no masses palpable” in abdomen); A.R. 476 (“no masses palpable” in
abdomen); A.R. 479 (“no masses palpable” in abdomen).
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Plaintiff references the ability to meet a listing through medical equivalence, e.g., Docket

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No. 9 at 19, but the parties fail to meaningfully explain whether the medical findings in

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this case establish medical equivalence to the listing. The parties shall be prepared to

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argue whether it does.

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III.

RFC DETERMINATION
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The parties appear to conflate the record as it relates to bathroom usage over the course

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of an eight-hour workday and bathroom usage over the course of an entire day. The

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parties shall be prepared to argue whether the record of Plaintiff’s bathroom use over the

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course of a day, e.g., A.R. 52 (Plaintiff testifying that he uses the bathroom on average

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seven times “in a day” for ten minutes on average), A.R. 458 (“pt still going to restroom

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4-10 times per day”), constitutes substantial evidence supporting the ALJ’s determination

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that Plaintiff would use the restroom 10% of his workday (i.e., 48 minutes each eight-

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hour workday).

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IT IS SO ORDERED.

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DATED: May 19, 2017

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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