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Harold Neal Hamilton, Jr v. Michael J. Astrue

June 8, 2012

HAROLD NEAL HAMILTON, JR.,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable J. Spencer Letts, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Plaintiff filed a complaint on September 22, 2011, seeking review of the Commissioner's denial of disability benefits. Plaintiff filed a motion for summary judgment and/or remand on April 17, 2012. Defendant filed a cross-motion for summary judgment on May 31, 2012.

The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order," filed September 23, 2011.

BACKGROUND

Plaintiff asserts disability since December 27, 2004, based on alleged cervical and lumbar problems and depression (Administrative record ("A.R.") 29-46, 116-17, 162, 164, 168). Plaintiff testified that he suffers from depression and intense physical pain, and that he lacks the exertional capacity to work (A.R. 33-46).

During 2008-2009, Plaintiff's treating orthopedists (Drs. Jarminski and Capen) directed Plaintiff not to work (A.R. 201-61).

Dr. Jarminski prepared a supplemental report dated August 13, 2010, in which Dr. Jarminski expressed his continuing belief that Plaintiff should receive surgery, notwithstanding an opinion from Dr. Pashman, an orthopedic surgeon, that the prospects for successful surgery "may be no better than a coin flip" (A.R. 292, 316). Plaintiff has expressed a desire for the surgery, despite having been advised of the uncertain prospects of success (A.R. 201, 224-25, 236, 248, 259, 261, 292). An insurance carrier reportedly has refused to authorize the surgery (A.R. 296). Dr. Kauss, a psychologist, administered extensive psychological tests to Plaintiff in March of 2010, diagnosed major depressive disorder, and rated Plaintiff's Global Assessment of Functioning ("GAF") at 50 (A.R. 294-303).

The ALJ found Plaintiff has no severe mental impairment, has severe degenerative disc disease of the cervical spine and lumbar spine, but retains the residual functional capacity to perform light work (A.R. 12-13). The ALJ criticized the alleged lack of record evidence of medical treatment, and deemed Plaintiff's testimony not credible (A.R. 13-18). The Appeals Council denied review (A.R. 1-4).

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 proper legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 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); Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006). The reviewing court may consider issues not raised before the Appeals Council. See Sims v. Apfel, 530 U.S. 103 (2000); Womack v. Astrue, 2008 WL 2486524, at *5 (W.D. Okla. June 19, 2008).

DISCUSSION

For the reasons discussed below, the matter should be remanded for further administrative proceedings pursuant to sentence ...


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