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James Johnston Ii v. Carolyn W. Colvin

April 8, 2013

JAMES JOHNSTON II,
PLAINTIFF,
v.
CAROLYN W. COLVIN, ACTING AND COMMISSIONER OF SOCIAL SECURITY,*FN1
DEFENDANT.



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

ORDER OF REMAND

MEMORANDUM OPINION

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 June 14, 2012, seeking review of the Commissioner's denial of disability benefits. The parties filed a consent to proceed before a United States Magistrate Judge on April 4, 2013. Plaintiff filed a motion for summary judgment on January 30, 2013. Defendant filed a cross-motion for summary judgment on April 1, 2013. The Court has taken the motions under submission without oral argument. See L.R. 7-15; "Minute Order," filed January 4, 2013.*fn2

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

Plaintiff asserts disability based on several alleged impairments (Administrative Record ("A.R.") 47-59, 153-54). On July 28, 2010, an Administrative Law Judge ("ALJ") heard testimony from Plaintiff, from vocational expert Allan Ey, and from medical expert Dr. Samuel Nafoosi*fn3 (A.R. 43-66). Subsequent to the hearing, but before the ALJ's decision, Plaintiff submitted voluminous additional medical records, all of which the ALJ accepted and incorporated into the Administrative Record (A.R. 312-523).

The ALJ found Plaintiff not disabled (A.R. 17-24). In doing so, the ALJ expressly adopted the opinions of Dr. Nafoosi regarding:

(1) the severity of Plaintiff's impairments; (2) the issue of whether any of Plaintiff's impairments met or equaled the Listings; and (3) the scope of Plaintiff's residual functional capacity (A.R. 19-23). The Appeals Council denied review (A.R. 1-3).

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).

DISCUSSION

I. Absent Further Inquiry and Evaluation, the ALJ's Adoption of Dr. Nafoosi's Opinions Cannot Stand.

In adopting the opinions of Dr. Nafoosi on critical issues in the disability analysis, the ALJ expressly relied on Dr. Nafoosi's purported "board certified" status and the supposedly "comprehensive" nature of Dr. Nafoosi's "review of the medical ...


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