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Case 8:12-cv-01993-E Document 26 Filed 09/20/13 Page 1 of 9 Page ID #:119

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MARIA DE JESUS FLORES,

Plaintiff,

v.

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Defendant. )
____________________________________)

COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

NO. CV 12-1993-E

MEMORANDUM OPINION

AND ORDER OF REMAND

Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS

HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary

judgment are denied, and this matter is remanded for further

administrative action consistent with this Opinion.

PROCEEDINGS

Plaintiff filed a complaint on November 20, 2012, seeking review

of the Commissioner’s denial of benefits. The parties consented to

proceed before a United States Magistrate Judge on May 1, 2013.

Plaintiff filed a motion for summary judgment on April 30, 2013.

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Case 8:12-cv-01993-E Document 26 Filed 09/20/13 Page 2 of 9 Page ID #:120

Defendant filed a motion for summary judgment on August 30, 2013.

Plaintiff filed a reply brief on September 17, 2013. The Court has

taken the motions under submission without oral argument. See L.R. 7-

15; “Order,” filed November 27, 2012.

BACKGROUND

In 2009, Plaintiff filed an application for disability benefits

(Administrative Record (“A.R.”) 49, 72-75, 492). Plaintiff asserts

disability since April 1, 2007, based on alleged “high blood

pressure/chronic bronchitis/diabetes” (A.R. 74, 105-06).1 An

Administrative Law Judge (“ALJ”) found that Plaintiff suffers from

severe hypertension, diabetes mellitus, left knee arthritis, chest

pain, and morbid obesity (A.R. 23 (adopting consultative internal

medical examiner’s diagnoses at A.R. 160, 163)).

The ALJ determined that Plaintiff retains the residual functional

capacity to perform a limited range of light work (A.R. 24 (adopting

consultative examiner’s opinion at A.R. 163 and State agency physician

P. N. Ligot’s Physical Residual Functional Capacity Assessment at A.R.

154-58); see also A.R. 25-29 (ALJ discussing bases for assessment)).

Relying on the testimony of a vocational expert, the ALJ found that,

with this capacity, Plaintiff could perform her past relevant work as

a maid (A.R. 29-30 (adopting vocational expert’s testimony at A.R.

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Plaintiff initially asserted disability since

February 2, 2007, but later amended her application to the
April 1, 2007 date. See A.R. 72, 74, 106. The Administration
considered the earlier onset date. See A.R. 21.

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Case 8:12-cv-01993-E Document 26 Filed 09/20/13 Page 3 of 9 Page ID #:121

521)). Thus, the ALJ found Plaintiff not disabled through April 21,

2011, the date of the ALJ’s decision (A.R. 30). On November 5, 2012,

the Appeals Council denied review (A.R. 5-8).2

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the

Administration’s decision to determine if: (1) the Administration’s

findings are supported by substantial evidence; and (2) the

Administration used correct legal standards. See Carmickle v.

Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,

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On or about October 27, 2011, on initial review of a

new benefits application filed on May 24, 2011, the
Administration found Plaintiff disabled beginning April 22, 2011
(the day after the ALJ’s adverse decision on the prior
application). See Defendant’s Motion, Exhibits 1 through 3.
Records provided from this review indicate that Plaintiff was
assessed with a “less than sedentary” residual functional
capacity precluding Plaintiff from all work. Id., Exhibit 3
(Medical/Vocational Decision Guide); see also id., Exhibit 4
(October 18, 2011 Physical Residual Functional Capacity
Assessment form indicating, inter alia, that Plaintiff could
stand or walk two hours in an eight-hour workday with a medically
required hand-held assistive device for ambulation (a walker) due
to Plaintiff’s left knee osteoarthritis); id., Exhibit 5
(October 8, 2011 Complete Internal Medicine Evaluation for
Plaintiff finding same standing/walking limitation, and noting
that a walker would be necessary for all distances unless and
until a successful knee replacement surgery might be performed).

It appears these later records were not a part of the record

the Appeals Council considered in denying review of the
Administration’s decision on the current application for
benefits. See A.R. 11 (referencing the additional evidence the
Appeals Council considered). The Appeals Council did consider
the finding of disability on the later application, but stated
that the finding did not warrant a change in the ALJ’s decision.
See A.R. 6.

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Case 8:12-cv-01993-E Document 26 Filed 09/20/13 Page 4 of 9 Page ID #:122

499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401

(1971) (citation and quotations omitted); see also Widmark v.

Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).

DISCUSSION

The ALJ Materially Erred Regarding the Determination of

Plaintiff’s Residual Functional Capacity.

In connection with the application at issue, internist Dr. John

Sedgh examined Plaintiff and provided a July 1, 2009 consultative

report (A.R. 159-63).3 Dr. Sedgh opined that Plaintiff could perform

light work, limited only by a restriction to occasional kneeling,

3

Plaintiff complained of hypertension, diabetes, chest

pain and a left knee “problem” (A.R. 159; see also A.R. 114, 116
(Exertion Questionnaire dated June 25, 2009 reflecting
limitations were due to Plaintiff’s high blood pressure and
diabetes)). Plaintiff claimed that her left knee problem had
been present for four years and was worsened by standing and
walking (A.R. 159). A treatment record from February 2003
provided to the Administration indicates that Plaintiff reported
left knee pain that was getting worse following a fall. An x-ray
at the time was “negative.” See A.R. 469-82.

On examination, Dr. Sedgh indicated: (1) blood pressure of

135/74; (2) morbid obesity; (3) no evidence of muscle spasm or
tenderness to Plaintiff’s cervical and lumbar spine, range of
motion within normal limits, and negative straight leg raising
test; (4) no upper extremity abnormalities; (5) no evidence of
lower extremity abnormalities except crepitation in Plaintiff’s
left knee, but with normal range of motion; and (6) gait within
normal limits (A.R. 160-63). Dr. Sedgh found that Plaintiff has
hypertension, diabetes, left knee arthritis, and chest pain (A.R.
163).

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Case 8:12-cv-01993-E Document 26 Filed 09/20/13 Page 5 of 9 Page ID #:123

crouching, and stooping (A.R. 163; see also 20 C.F.R. § 404.1567(b)

(defining “light work”)). The ALJ adopted Dr. Sedgh’s findings (A.R.

24-25). A consultative examiner’s opinion can furnish substantial

evidence supporting an administrative finding of non-disability. See

Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); see also

Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (consultative opinion

based on independent clinical findings can be substantial evidence on

which the ALJ may rely).

In a July 21, 2009 assessment, state agency review physician Dr.

Ligot agreed with Dr. Sedgh’s residual functional capacity

determination. See A.R. 154-58. Where the opinion of a non-examining

expert does not contradict “all other evidence in the record,” the

Administration properly may rely upon such opinion. See Andrews v.

Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); Curry v. Sullivan, 925

F.2d 1127, 1130 n.2 (9th Cir. 1990).

As argued by Plaintiff, however, the medical evidence available

to Drs. Sedgh and Ligot for their review was limited. See 20 C.F.R.

§ 404.1527 (c)(6) (factor to consider in evaluating medical opinion

evidence is the extent to which the source is familiar with other

information in claimant’s case record); see also Orn v. Astrue, 495

F.3d at 633-34 (a more recent medical opinion may be entitled to

greater deference than an older opinion, where the more recent opinion

describes or considers later significant medical events or

conditions). Many if not most of Plaintiff’s treatment records post-

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Case 8:12-cv-01993-E Document 26 Filed 09/20/13 Page 6 of 9 Page ID #:124

date the reviews by Drs. Sedgh and Ligot. See A.R. 140-490.4

Notably, the evidence available for review by Drs. Sedgh and Ligot did

not include: (1) the 2010 x-rays of Plaintiff’s lumbar spine and left

knee which showed “marginal osteophytes and degenerative changes and

spurs . . . [with] first degree spondylolisthesis with a 1 cm foreword

slippage of L5 on S1” characterized as “degenerative changes” (A.R.

203), and joint space narrowing about the medial compartment of the

knee (A.R. 484); (2) Dr. Meka’s treatment notes from November 2009

through December 2010 indicating that Plaintiff reported right hip

pain, left leg pain, low back pain, and, when examined, had back

tenderness and limited range of motion (A.R. 200-02, 236-37, 243-44,

286-316, 466-67); (3) emergency room records from September 2010 for

treatment of left knee pain with pain medications (A.R. 372-73, 377-

82); or (4) emergency room records from May 2009, December 2009, May

2010, August 2010, and October 2010 for treatment of chest pain and

shortness of breath with some notation of anxiety (A.R. 186-97, 199,

216-18, 231-34, 245-80, 368-69, 394-403).5

While the ALJ summarized some of this evidence in his decision

(A.R. 25-26), he did not explain what impact, if any, the conditions

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Moreover, it appears that Dr. Sedgh may not have

reviewed the limited medical records that were available. See
A.R. 159-60 (Dr. Sedgh stating that medical history was obtained
from Plaintiff and referencing no specific medical records
reviewed).

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Plaintiff testified that she stopped working in 2007

because she became ill in part due to “a lot” of pain in her left
knee and lower back (A.R. 515-16). Plaintiff explained that at
the time she stopped working, she was finding chores “very
difficult” because she would have to rest to take pain medication
for her knee and low back (A.R. 518-19).

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Case 8:12-cv-01993-E Document 26 Filed 09/20/13 Page 7 of 9 Page ID #:125

reflected in the additional treatment records may have had on

Plaintiff’s residual functional capacity.6 Significantly, prior to

the ALJ’s adverse decision, no State agency doctor opined regarding

what impact these conditions may have had on Plaintiff’s capacity, and

the ALJ rejected Dr. Meka’s opinion suggesting greater limitations as

assertedly unsupported by Dr. Meka’s clinical examinations and

treatment notes. See A.R. 26-27. The ALJ characterized the left knee

x-ray as revealing “only joint space narrowing in the medial

compartment” and characterized the lumbar spine x-ray as revealing

“only marginal osteophytes and degenerative changes and spurs, as well

as a first degree spondylolisthesis with a one centimeter forward

slippage on L5 and S1” (A.R. 26-27) (emphasis added). These

characterizations suggest that the ALJ gave minimal weight to this

evidence in determining Plaintiff’s residual functional capacity.

Absent expert medical assistance, the ALJ could not competently

translate the additional medical evidence into a residual functional

capacity assessment. It is well-settled that an ALJ may not render

his or her own medical opinion or substitute his or her own diagnosis

for that of a claimant’s physician. See Tackett v. Apfel, 180 F.3d

1094, 1102-03 (9th Cir. 1999) (ALJ erred in rejecting physicians’

opinions and finding greater residual functional capacity based on

claimant’s testimony concerning a road trip; there was no medical

evidence to support the ALJ’s determination); Balsamo v. Chater, 142

F.3d 75, 81 (2d Cir. 1998) (an “ALJ cannot arbitrarily substitute his

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Contrary to Defendant’s assertion, the ALJ did not

assess Plaintiff’s lumbar spine condition as severe. Compare
Defendant’s Motion, p. 14, with A.R. 23.

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Case 8:12-cv-01993-E Document 26 Filed 09/20/13 Page 8 of 9 Page ID #:126

own judgment for competent medical opinion”) (internal quotation marks

and citation omitted); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir.

1996) (“ALJs must not succumb to the temptation to play doctor and

make their own independent medical findings”); Day v. Weinberger, 522

F.2d 1154, 1156 (9th Cir. 1975) (an ALJ is forbidden from making his

or her own medical assessment beyond that demonstrated by the record).

In this case, before the ALJ determined that a particular residual

functional capacity purportedly would account for all of Plaintiff’s

medical conditions, the ALJ should have called on a medical expert to

provide competent evidence with respect to such issues. See id.; see

also Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (“The ALJ has

a special duty to fully and fairly develop the record to assure that

the claimant’s interests are considered. This duty exists even when

the claimant is represented by counsel).

Because the circumstances of this case suggest that further

administrative review could remedy the ALJ’s errors,7 remand is

appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see

generally INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an

administrative determination, the proper course is remand for

additional agency investigation or explanation, except in rare

circumstances).

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There are outstanding issues that must be resolved

before a proper disability determination can be made in the
present case. For at least this reason, the Ninth Circuit’s
decision in Harman v. Apfel, 211 F.3d 1172 (9th Cir.), cert.
denied, 531 U.S. 1038 (2000) does not compel a reversal for the
immediate payment of benefits.

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Case 8:12-cv-01993-E Document 26 Filed 09/20/13 Page 9 of 9 Page ID #:127

CONCLUSION

For all of the foregoing reasons,8 Plaintiff’s and Defendant’s

motions for summary judgment are denied and this matter is remanded

for further administrative action consistent with this Opinion.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: September 20, 2013.



______________/S/__________________

CHARLES F. EICK

UNITED STATES MAGISTRATE JUDGE

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The Court has not reached any other issue presented

except insofar as to determine that reversal with a directive for
the immediate payment of benefits would not be appropriate at
this time.

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