Michaud v. Berryhill ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LISA LURINE MICHAUD, Case No.: 18-CV-2625 JLS (MDD) 12 Plaintiff, ORDER: (1) ADOPTING REPORT 13 v. AND RECOMMENDATION, (2) GRANTING IN PART 14 ANDREW SAUL, Commissioner of PLAINTIFF’S MOTION FOR Social Security, 15 SUMMARY JUDGMENT, Defendant. (3) DENYING DEFENDANT’S 16 CROSS-MOTION FOR SUMMARY 17 JUDGMENT, (4) REVERSING THE DECISION OF 18 THE COMMISSIONER, AND 19 (5) REMANDING ACTION TO THE COMMISSIONER FOR FURTHER 20 ADMINISTRATIVE ACTION 21 (ECF Nos. 15, 16, 19) 22 23 Presently before the Court are Plaintiff Lisa Lurine Michaud’s Motion for Summary 24 Judgment (“Pl.’s Mot.,” ECF No. 15) and a Cross-Motion for Summary Judgment filed by 25 Defendant Andrew Saul, Commissioner of Social Security (“Def.’s Mot.,” ECF No. 16). 26 Magistrate Judge Mitchell D. Dembin has issued a Report and Recommendation (“R&R,” 27 ECF No. 19) recommending that the Court grant in part Plaintiff’s Motion, deny 28 Defendant’s Motion, and remand this case for further proceedings. Having reviewed the 1 Motions, Magistrate Judge Dembin’s R&R, and the underlying Administrative Record, the 2 Court ADOPTS Magistrate Judge Dembin’s R&R in its entirety, GRANTS Plaintiff’s 3 Motion, DENIES Defendant’s Motion, REVERSES the decision of the Commissioner, 4 and REMANDS this matter for further administrative action. 5 BACKGROUND 6 Magistrate Judge Dembin’s R&R contains a thorough and accurate recitation of the 7 factual and procedural histories underlying the instant Motions. See R&R at 1–3, 4–6, 7– 8 10. This Order incorporates by reference the background as set forth therein. 9 LEGAL STANDARD 10 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 11 court’s duties in connection with a magistrate judge’s report and recommendation. The 12 district court must “make a de novo determination of those portion of the report to which 13 objection is made” and “may accept, reject, or modify, in whole or in part, the findings or 14 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United 15 States v. Raddatz, 447 U.S. 667, 673–76 (1980); United States v. Remsing, 874 F.2d 614, 16 617 (9th Cir. 1989). In the absence of timely objection, however, the Court “need only 17 satisfy itself that there is no clear error on the face of the record in order to accept the 18 recommendation.” Fed. R. Civ. P. 72 advisory committee’s note to 1983 amendment 19 (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)); see also United 20 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“[T]he district judge must 21 review the magistrate judge’s findings and recommendations de novo if objection is made, 22 but not otherwise.”). 23 ANALYSIS 24 In this present case, neither Party has filed objections to Magistrate Judge Dembin’s 25 R&R. See R&R at 12 (ordering that any objections be filed no later than November 18, 26 2019). Having reviewed the R&R, the Court finds that it is thorough, well-reasoned, and 27 contains no clear error. 28 / / / 1 In this matter, the Administrative Law Judge (“ALJ”) determined that Plaintiff had 2 several severe impairments, including moderate to severe degenerative disc disease at L5– 3 S1 and mild to moderate degenerative disc disease at L2–3, without neural impingement; 4 peripheral neuropathy in the bilateral lower extremities; and eczema in the left lower 5 extremity. See R&R at 4–5 (citing ECF No. 12 at 39). He then determined that Plaintiff 6 had the residual functional capacity (“RFC”) to perform light work and that she was able 7 to perform her past relevant work, such as serving as a home attendant, cashier, assembler, 8 receptionist, secretary, stock control clerk, and nurse assistant. Id. at 5–6 (citing ECF No. 9 12 at 40–41, 43–44). 10 In reaching these conclusions, the ALJ failed to categorize Plaintiff’s photophobia 11 as a severe or non-severe impairment that affected her RFC. Id. at 6. Rather, he relied on 12 only four exhibits to conclude that “the record does not document any restrictions” or 13 severe visual impairment[s],” id. at 7 (quoting ECF No. 12 at 40), and, therefore, did not 14 consider “medical records relating to [Plaintiff’s] photophobia,” see id. at 8–9 (citing ECF 15 No. 12 at 589–91, 603, 606, 608–09, 612, 615, 618, 621); “two Disability Determination 16 Explanations,” see id. at 9–10 (citing ECF No. 12 at 291, 295–96, 301, 324, 327); or 17 “examining physician Thomas J. Sabourin M.D.’s . . . November 13, 2014 orthopedic 18 consultation or treating physician John Bokosky M.D.’s . . . February 18, 2014 19 examination.” See id. at 10 (citing ECF No. 12 at 587–88, 652–53). Further, the ALJ 20 failed to consider the effects of photophobia in determining Plaintiff’s RFC and ability to 21 perform past relevant work. See id. (citing ECF No. 12 at 41–45). For example, when the 22 ALJ asked the vocational expert (“VE”) whether a person would could not work if any 23 acute vision is required or with only occasional acute vision is required could perform 24 sedentary work, the VE stated that would be no such work. Id. (citing ECF No. 12 at 25 263–65). 26 Magistrate Judge Dembin therefore concludes that the ALJ erred at Step 2 by failing 27 to consider all evidence of Plaintiff’s photophobia and in determining Plaintiff’s RFC by 28 failing to consider the effects of Plaintiff’s photophobia at subsequent steps of the 1 || sequential evaluation. Jd. at 10-11. Consequently, he recommends that the Court remand 2 || this case so that the ALJ may (1) determine whether Plaintiff's photophobia is a medically 3 ||determinable impairment, and (2) incorporate any credible limitations arising out of 4 || Plaintiff's photophobia—regardless of severity—into the RFC. See id. at 11. 5 The Court finds no clear error in Judge Dembin’s findings and recommendations. 6 || Further, the Court agrees that remanding pursuant to sentence four of 42 U.S.C. § 405(g) 7 further administrative proceedings is appropriate because additional proceedings could 8 ||remedy the defects in the ALJ’s decision and enhance the administrative record. Jd. at 9 11-12. 10 CONCLUSION 11 In light of the foregoing, the Court: (1) ADOPTS in its entirety Magistrate Judge 12 ||Dembin’s Report and Recommendation (ECF No. 19), (2) GRANTS Plaintiff’s Motion 13 |}for Summary Judgment (ECF No. 15), (3) DENIES Defendant’s Cross-Motion for 14 ||Summary Judgment (ECF No. 16), (4) REVERSES the decision of the Commissioner 15 || denying benefits to Plaintiff, and (5) REMANDS the case to the Commissioner for further 16 administrative action consistent with this Order and Magistrate Judge Dembins’s Report 17 Recommendation. Because this Order concludes the litigation in this matter, the Clerk 18 || of the Court SHALL CLOSE the file. 19 IT IS SO ORDERED. 20 21 Dated: January 10, 2020 tt 09 ja Janis L. Sammartino United States District Judge 23 24 25 26 27 28