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Dominguez v. Colvin

United States District Court, Ninth Circuit

October 1, 2013

April M. Dominguez, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner Social Security, Defendant.

ORDER

BRIDGET S. BADE, Magistrate Judge.

Plaintiff April M. Dominguez seeks judicial review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security (the Commissioner), denying her application for disability insurance benefits under the Social Security Act. The parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b). For the following reasons, the Court reverses the Commissioner's decision and remands this matter for further administrative proceedings.

I. Procedural Background

On June 15, 2009, Plaintiff applied for supplemental security income (SSI) under Title XVI of the Social Security Act (the Act), 42 U.S.C. § 726. (Tr. 169-176.)[1] Plaintiff alleged disability beginning in 2001, due to panic disorder, agoraphobia, asthma, and diabetic gastroporesis. (Tr. 207-08.) After the Social Security Administration (SSA) denied Plaintiff's initial application and her request for reconsideration, she requested a hearing before an administrative law judge (ALJ). (Tr. 99-100, 106-09, 114-115.) After conducting a hearing, the ALJ issued a decision finding Plaintiff not disabled under the Social Security Act. (Tr. 25-32.) This decision became the final decision of the Commissioner when the Social Security Administration Appeals Council denied Plaintiff's request for review. (Tr. 1-6.); see 20 C.F.R. § 404.981 (explaining the effect of a disposition by the Appeals Council.) Plaintiff now seeks judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g).

The Court's scheduling order directed Plaintiff to file an opening brief within sixty days of the filing of the answer and record. (Doc. 7.) On February 26, 2013, Defendant filed an Answer to the Complaint. (Doc. 16.) At the same time, Defendant filed a Motion to Remand to the Social Security Administration for further administrative proceedings and conceded that the ALJ had committed legal error. (Doc. 17 at 5.) Plaintiff has not filed an opening brief and the deadline to do so has passed. Plaintiff, however, filed a response to the motion to remand in which she argues that the Court should reverse the Commissioner's decision and remand for an immediate award of benefits. (Doc. 19.) Therefore, the Court will consider Defendant's motion to remand and whether to remand for an immediate award of benefits or for further administrative proceedings.

II. Relevant Background Regarding Medical Record

At the time of the administrative hearing, Plaintiff was in her early forties and had a high school education. (Tr. 169, 208.) Plaintiff's past relevant work included certified nurse's aide. (Tr. 212.) As set forth below, the medical evidence reflects that different medical sources provided various opinions about Plaintiff's restrictions caused by her medical impairments.

On February 10, 2009, John Prieve, DO, performed a consultative examination at the request of the Commissioner. (Tr. 462.) He opined that Plaintiff could lift and carry twenty pounds occasionally and ten pounds frequently, stand or walk six hours intermittently throughout an eight-hour day, occasionally climb ramps and stairs, never climb ladders, frequently stoop, kneel, crouch, and crawl, occasionally to frequently handle, finger, and feel; and that she should avoid unprotected heights. (Tr. 465-66.)

On April 17, 2009, Plaintiff's treating physician, R. Bhakta, opined that Plaintiff had severe gastroporesis, asthma, neuropathy, hypothyroidism, and carpal tunnel syndrome.[2] (Tr. 791.) Dr. Bhakta found that Plaintiff could lift and carry less than ten pounds, sit more than two hours but less than three hours in an eight-hour day, stand more than two hours but less than three hours in an eight-hour day, walk less than one hour in an eight-hour day, occasionally use her hands and feet repetitively, occasionally reach, crouch, and kneel, never bend, crawl, climb, stoop, or balance, never work around unprotected heights, moving machinery, marked changes in temperature and humidity, or environmental irritants, and never drive automotive equipment. (Tr. 791-92.)

On October 19, 2009, Dr. Bhakta completed another form stating that Plaintiff could lift and carry less than ten pounds, sit more than two hours but less than three hours in an eight-hour day, stand or walk less than two hours in an eight-hour day, never use her feet repetitively, occasionally use her hands repetitively, occasionally bend, crawl, climb, reach, stoop, balance, crouch, and kneel, never work around unprotected heights, moving machinery, marked changes in temperature and humidity, or environmental irritants, and never drive automotive equipment. (Tr. 797-98.) Dr. Bhakta indicated that in addition to the previous diagnoses, Plaintiff had severe lumbar radiculopathy and neuropathy in her legs that caused difficulty walking. (Tr. 797.)

On February 11, 2010, Stephanie Jenkinson, M.D., performed a consultative examination of Plaintiff and found that Plaintiff's only limitation was working around heights due to her morbid obesity. (Tr. 806-10.) Dr. Jenkinson opined that Plaintiff's hand numbness could be corrected by carpal tunnel release surgery. (Tr. 810.)

On October 21, 2010, Dr. Bhakta again completed the form that she had completed the previous year and assessed that Plaintiff's restrictions were similar to her previous restrictions. However, Dr. Bhakta found that instead of never using her feet repetitively, Plaintiff could frequently use her feet repetitively. Dr. Bhakta also found that, instead of occasionally balancing, Plaintiff could never balance, instead of a total restriction on driving automotive equipment, Plaintiff had no driving restrictions, and instead of a total restriction in working around environmental irritants, Plaintiff had moderate restrictions. (Tr. 867-68).

III. The ALJ's Decision

A claimant is considered disabled under the Social Security Act if he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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); see also 42 U.S.C. § 1382c(a)(3)(A) (nearly identical standard for supplemental security income disability insurance benefits). To ...


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