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Gladys Esquivel v. Michael J. Astrue

February 28, 2011

GLADYS ESQUIVEL, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

MEMORANDUM OPINION AND ORDER (Social Security Case)

This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the Administrative Record ("AR") before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified AR.

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge ("ALJ") properly complied with the order of the Appeal Council; and

2. Whether there is a DOT inconsistency in the ALJ's holding that Plaintiff can perform the jobs of kitchen helper, packager and cleaner.

(JS at 3.)

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that for the reasons set forth, the decision of the Commissioner must be reversed.

I THE ISSUE OF WHETHER THE ALJ COMPLIED WITH THE ORDER OF REMAND OF THE APPEALS COUNCIL IS NOT WITHIN THE JURISDICTION OF THIS COURT.

ALTERNATIVELY, THE ALJ DID NOT FAIL TO DEVELOP THE RECORD.

Plaintiff contends in her first issue that the ALJ did not properly comply with the Order of the Appeals Council remanding the case to the Administrative Law Judge. (JS at 3, et seq., citing AR 105-106.)

Following issuance of a decision by the ALJ on August 18, 2008, the Appeals Council issued an Order remanding the case to the ALJ for further hearing. The Appeals Council ordered that upon remand, the Administrative Law Judge will, among other things, do the following:

"Obtain additional evidence concerning the [Plaintiff's] mood disorder/depression in order to complete the administrative record in accordance with the regulatory standards regarding consultative examinations and existing medical evidence (20 CFR 404.1512-1513). The additional evidence should include updated treatment records from Dr. Nakai and Patricia Jennings, the treating marriage and family therapist, and updated records from Dr. Pham. The additional evidence may include, if warranted and available, a consultative mental status examination with psychological testing and medical source statements about what the [Plaintiff] can still do despite the impairments." (AR 105-106.)

Plaintiff specifically complains that the ALJ failed to obtain additional updated treatment records from Dr. Nakai and Patricia Jennings, the treating marriage and family therapist, and updated records from Dr. Pham.

In his decision following the remand directive from the Appeals Council (AR 8-17), the ALJ cited and relied upon a report that had been obtained following the Appeals Council Order by Dr. Bagner, on September 13, 2009. (AR 580-583.) Dr. Bagner had performed a complete psychiatric evaluation on that date at the request of the Department of Social Services. The ALJ adopted Dr. ...


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