United States District Court, C.D. California
MEMORANDUM AND ORDER
ARTHUR NAKAZATO, Magistrate Judge.
Pursuant to the Court's Case Management Order, the parties have filed the Administrative Record ("AR") and a Joint Stipulation ("JS") raising three disputed issues. The parties have consented to proceed before the Magistrate Judge. The Court has carefully reviewed the parties' respective contentions in conjunction with the AR. This matter is now ready for decision.
Issues #1, #2, and #3
Plaintiff raises the following issues: (1) whether remand is warranted for consideration of new medical evidence that she submitted to the Appeals Council; (2) whether the Administrative Law Judge ("ALJ") improperly discounted the opinion of Plaintiff's treating physician, Jane Lindberg, M.D.; and (3) whether the ALJ erred in the assessment of Plaintiff's credibility. (JS 3-6, 20-25, 30-34, 37.) Plaintiff further contends that remand is warranted for further administrative proceedings to consider the impact of a subsequent, favorable disability determination on Plaintiff's second application for Social Security Disability Insurance Benefits ("DIB"). (JS 7-8.)
Plaintiff claims that she has been suffering from fibromyalgia and chronic fatigue syndrome since 2004. (AR 165.) Plaintiff reports that she had to stop working in December 2009, after she collapsed at work due to complications from fibromyalgia. (AR 31.) However, in November 2011, Plaintiff was able to start working in a women's clothing store on a part-time basis (4 to 5 hours a day, 3 days a week). (AR 30, 32, 319-20, 362.) Plaintiff asserts that she is limited to lifting 10 pounds, has difficulty concentrating and completing tasks, experiences pain when standing, bending, or kneeling, and feels exhausted after working, but on good days, she may be able to do some housework and walk for 15 to 20 minutes. (AR 30, 32, 176.)
On July 25, 2012, the ALJ issued a decision denying Plaintiff's application for benefits. (AR 13-23.) The ALJ found that Plaintiff suffers from severe impairments, including headaches and chronic pain syndrome/fibromyalgia. (AR 15, 17.) The ALJ assessed Plaintiff with a residual functional capacity ("RFC") for sedentary work, but found that Plaintiff cannot lift/carry more than 10 pounds, sit more than 6 hours in an 8-hour workday, stand and/or walk more than 2 hours in an 8-hour workday, or perform postural movements, climbing activities, or work around heights and/or hazardous conditions more than occasionally. (AR 18.) In making these determinations, the ALJ deemed Plaintiff's testimony not credible. (AR 19-20.) The ALJ also rejected the opinion of Dr. Lindberg, who diagnosed Plaintiff with numerous impairments (i.e., fibromyalgia, irritable bowel syndrome, migraine headaches, insomnia, anemia, lead overload, depression, metrorrhagia, and gluten sensitivity), and assessed Plaintiff with significant work-related limitations (i.e., limitations to standing/walking 30 minutes at a time, for a total of 1 to 2 hours in an 8-hour workday, sitting 2 to 3 hours in an 8-hour workday before needing to rest for 1 to 2 hours, and lifting 10 pounds). (AR 205-07, 209-39, 292-301.) The ALJ conceded that Plaintiff cannot perform her past relevant work as a retail store manager, but found that there are other jobs that she can perform. (AR 21-23.)
Plaintiff requested review of the ALJ's decision. (AR 189.) On September 10, 2012, while Plaintiff's request for review was pending, Plaintiff's counsel submitted to the Appeals Council an Agreed Medical Evaluation in Rheumatology from Seymour Levine, M.D., dated July 5, 2012. (AR 190-92, 319-68.) Dr. Levine examined Plaintiff on June 11, 2012, approximately six weeks before the ALJ issued the decision denying benefits. (AR 13-23, 319.) Dr. Levine diagnosed Plaintiff with fibromyalgia, noting that Plaintiff had demonstrated 18 out of 18 classical tender points on examination. (AR 352-53.) Dr. Levine found that Plaintiff had constant pain that was slight to moderate. (AR 361.) Dr. Levine determined that Plaintiff was temporarily totally disabled from the time she stopped working in December 2009, to the time she returned to the workforce on a part-time basis in November 2011. (AR 362.) Dr. Levine opined that Plaintiff was capable of working up to 20 hours a week, consisting of 4 hours a day, 5 days a week, or 5 hours a day, 4 days a week. (AR 362.) Dr. Levine further opined that Plaintiff should not be exposed to undue amounts of stress and should not work with her arms at or above shoulder level on a repetitive basis, as such activities could potentially exacerbate or aggravate the tender points of fibromyalgia in the cervical spine and bilateral shoulder girdles. (AR 362.) The Appeals Council considered Dr. Levine's evaluation and made it part of the record, but ultimately denied review. (AR 2-6); see Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012) (explaining that "the administrative record includes evidence submitted to and considered by the Appeals Council"); Ramirez v. Shalala, 8 F.3d 1449, 1451-52 (9th Cir. 1993); see also 20 C.F.R. § 404.970(b) (when new and material evidence is submitted to the Appeals Council, the evidence shall be considered if it relates to the period on or before the date of the ALJ's decision).
Plaintiff contends Dr. Levine's evaluation warrants remand because it conflicts with the ALJ's determination of Plaintiff's impairments and limitations, and tends to corroborate Plaintiff's subjective symptom testimony and the opinion of Plaintiff's treating physician, Dr. Lindberg. (JS 5-6.) Because the Appeals Council made Dr. Levine's evaluation a part of the record, this Court must determine "whether, in light of the record as a whole, the ALJ's decision was supported by substantial evidence." Brewes, 682 F.3d at 1163 (citing Ramirez, 8 F.3d at 1451-52).
The Commissioner argues that Dr. Levine's evaluation does not change the fact that substantial evidence supports the ALJ's decision. (JS 8-13.) The Commissioner asserts that the ALJ properly relied on the opinion of the non-examining medical expert who testified at Plaintiff's administrative hearing, Thomas Maxwell, M.D. (JS 10; AR 21, 33-35, 118.) Dr. Maxwell opined that Plaintiff suffers from chronic pain syndrome and headaches that limit her to a range of sedentary work. (AR 21, 33-35, 118.) However, Dr. Maxwell based his opinion on his review of the medical records that were available at the time of the hearing, which clearly did not include Dr. Levine's evaluation. (AR 18, 21.) While the Commissioner notes that the consultative examiner, Michael Wallack, M.D., assessed Plaintiff with no limitations, and the state agency medical consultant, John Pataki, M.D., assessed Plaintiff with the ability to perform medium work, the ALJ did not accept these doctors' findings in assessing Plaintiff's RFC for sedentary work. (JS 10; AR 16-18, 20, 281-87, 306-11.) Moreover, neither Dr. Wallack nor Dr. Pataki had the opportunity to review Dr. Levine's evaluation. After reviewing the entire record, including Dr. Levine's evaluation presented for the first time to the Appeals Council, the Court finds that the Commissioner's decision is not supported by substantial evidence. Dr. Levine's detailed and lengthy rheumatology evaluation is relevant to the time period at issue in this case and was prepared following a two-hour physical examination of Plaintiff. (AR 319-68.) His opinion that Plaintiff is limited to working 20 hours week, and is restricted from work involving undue stress or repetitive tasks with her arms at or above shoulder level, is in conflict with the ALJ's RFC assessment and casts doubt on the ALJ's decision to deny benefits. See Brewes, 682 F.3d at 1163; Ramirez, 8 F.3d at 1451-52. Therefore, remand is appropriate for consideration of the additional evidence, pursuant to sentence four of 42 U.S.C. § 405(g).
Having reached this conclusion, the Court does not analyze Plaintiff's other allegations of error regarding the ALJ's consideration of Dr. Lindberg's opinion and Plaintiff's testimony, or the Commissioner's arguments in opposition to them. The Court notes, however, that the ALJ based the decision to discount Dr. Lindberg's opinion and Plaintiff's testimony, at least in part, due to a lack of supporting medical evidence. As Dr. Levine's evaluation may provide corroboration for Plaintiff's subjective complaints and Dr. Lindberg's RFC assessment, consideration may be given to these issues on remand.
The Court also declines to address Plaintiff's request that this case be remanded for further administrative proceedings to consider new, material evidence of a subsequent, favorable disability determination. (JS 7-8, Exs. 1-3); see 42 U.S.C. § 405(g). Given the Court's conclusion that the case must be remanded for consideration of Dr. Levine's evaluation, the issue of whether remand is appropriate for consideration of new evidence pursuant to sentence six of 42 U.S.C. § 405(g) is essentially moot.
Accordingly, Plaintiff is entitled to remand on Issue #1, for consideration of the additional evidence that was submitted to the Appeals Council.
The decision whether to remand for further proceedings or order an immediate award of benefits is within the district court's discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). When no useful purpose would be served by further administrative proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. at 1179 ("the decision of whether to remand for further proceedings turns upon the likely utility of such proceedings"). But when there are outstanding issues that must be resolved before a determination of disability can be made, ...