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Francisco Marcelo Mora v. Michael J. Astrue

September 19, 2012


The opinion of the court was delivered by: Joseph C. Spero United States Magistrate Judge

United States District Court Northern District of California



On March 18, 2011, Francisco Marcelo Mora ("Plaintiff") initiated this action, seeking 21 review of the final decision of the Commissioner of the Social Security Administration 22 ("Commissioner") denying his application for disability insurance and Supplemental Security 23 Income benefits under the Social Security Act ("SSA"). Presently before the Court is Plaintiff's 24 Motion to Remand to the Commissioner for additional administrative proceedings pursuant to 25 Sentence Six of the SSA, 42 U.S.C. § 406(g), as well as Plaintiff's Motion for Summary Judgment. 26

Plaintiff seeks remand on grounds that a subsequent, favorable benefits decision constitutes new and 27 material evidence that warrants further administrative proceedings. For the reasons stated below, the 28 Court GRANTS Plaintiff's Motion to Remand and DENIES Plaintiff's Motion for Summary Judgment without prejudice. *fn1


A. Plaintiff's First Application

On May 21, 2008, Plaintiff filed an application for disability insurance benefits under Title II 5 of the SSA, alleging a disability onset date of September 20, 2006. Administrative Record ("AR"), 6 75. The application was denied initially and upon reconsideration. Id. at 42. Thereafter, Plaintiff 7 requested and received a hearing, which occurred on October 9, 2009. Id. On November 5, 2009, an 8 Administrative Law Judge ("ALJ") denied Plaintiff's application, finding that he was not disabled 9 and could perform past relevant work as a research director or software specialist. Id. at 48-49.

The ALJ's decision became the final decision of the Commissioner when the SSA Appeals Council 11 denied Plaintiff's request for review on January 19, 2011. Id. at 1-3. Plaintiff then timely 12 commenced the instant action for judicial review pursuant to 42 U.S.C. § 405(g).

In Plaintiff's first application for disability benefits, he alleged disc degenerative disease, a 14 spinal problem, and chronic back pain limited his ability to work. Id. at 93. Plaintiff claimed to be 15 unable to use his feet for more than 30 minutes because he was recovering from spinal fusion and 16 artificial disc replacement. Id. His condition first limited his ability to work on September 20, 2006, 17 and he finally stopped working on June 30, 2007. Id. 18

Treating physician Helen Jackson, M.D., submitted a report wherein she stated that Plaintiff 19 experienced an acute onset of low back pain and right leg radicular pain in October 2005. Id. at 217. 20

Despite undergoing a number of non-surgical treatment modalities, he was unable to work due to his 21 inability to sit for any prolonged period of time. Id. Plaintiff underwent lumbar disc replacement 22 and fusion surgery in September 2006. Id. Although Plaintiff experienced some decrease in pain 23 after his surgery, he continued to be substantially impaired by his pain levels. Id. Dr. Jackson 24 opined that Plaintiff was unable to perform any substantial work at that time. Id. The ALJ assigned 25 little weight to Dr. Jackson's opinion, finding it inconsistent with the treatment record and Plaintiff's 26 27 "robust level of activity," which included a rehabilitation regime of yoga, Pilates, meditation, and 2 swimming. Id. at 46, 48. 3

In his decision, the ALJ noted that there were indications that that Plaintiff is depressed and 4 appeared tearful and hopeless on at least one occasion. Id. at 48. The ALJ, however, did not find 5 that Plaintiff had a mental impairment. Id. The ALJ reasoned as follows: 6

Although there are indications in the record that the claimant is depressed, and he appeared tearful and hopeless on at least one occasion, the claimant has not alleged any mental impairment, he enjoys a very active life, recent notes indicate that he has no depressive symptoms, he admitted that he has not seen a doctor for any emotional problems and does not have a mental impairment and has been prescribed unique antidepressant medications for their pain relieving properties (Exs. 5F; 10F; 11F). Furthermore, no doctor has indicated that the claimant has a mental impairment that limits his ability to perform basic work activities.

Id. 12

On February 10, 2010, Plaintiff appealed the ALJ's decision to the Appeals Council. Id. at 157. Plaintiff contested the ALJ's conclusions regarding both physical and mental impairment. Id. 14 at 157-61. Regarding mental impairment, Plaintiff argued that the ALJ failed to develop evidence of 15 Plaintiff's mental impairment and that the record as a whole warranted a finding that Plaintiff's 16 depression was a severe impairment. Id. at 161 (citing 20 C.F.R. §§ 404.1529(b), 416.929(b)). 17

Plaintiff also submitted three new items of evidence meant to directly support his arguments 18 regarding mental impairment: 1) a January 6, 2010 letter from Frank Sclafani, MFT stating that 19 Plaintiff became "chronically depressed" after his surgery and that Plaintiff has had "suicidal 20 ideation from increasing nerve pain"; 2) a Mental Impairment Questionnaire signed by Dr. Jackson 21 on January 7, 2010 diagnosing Plaintiff with major depression, recurrent, moderate and having 22 "suicidal ideation" as a result of chronic nerve pain; and 3) a Work Capacity Evaluation (Mental) 23 signed by Dr. Jackson and Mr. Sclafani on January 7, 2010. Id. at 161-162, 799-805. The Appeals 24 Council-stating that it "considered the reasons you disagree with the decision and the additional 25 evidence [submitted]"-denied Plaintiff's request for review on January 19, 2011. Id. at 1-3. 26

B. Plaintiff's Second Application

In Plaintiff's second application for disability benefits, he alleged to be suffering from 28 degenerative disc disease, failed back syndrome, and depression, all of which significantly affect his ability to perform work related activities. Exhibit A to Declaration of Barbara M. Rizzo in Support 2 of Plaintiff's Motion to Remand ("Ex. A"), 4. On March 30, 2012, an ALJ issued a decision finding 3 that Plaintiff had the following severe impairments: status post disc replacement and anterior spine 4 fusion of the lumbar spine, and a mood disorder. Ex. A at 3. However, the ALJ found that the 5 severity of the claimant's impairments met only the criteria of Section 12.04 of 20 C.F.R. Part 404, 6 Subpart P, Appendix 1, which governs "Affective Disorders," e.g., depression. Id. The ALJ 7 concluded that Plaintiff has been disabled since November 6, 2009. Id. at 9. 8

In support of his second application, Plaintiff submitted, inter alia, an "opinion" from Dr. Jackson dated January 7, 2010 wherein she diagnosed him with major depression, recurrent, 10 moderate. Id. at 5-6. In a Mental Impairment Questionnaire form dated November 1, 2011, Dr. 11 Jackson diagnosed Plaintiff with chronic pain disorder. Id. at 6. She reported that he experiences 12 ...

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