Shaw v. Berryhill ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KATHLEEN S., Case No.: 19-CV-651 JLS (RNB) 12 Plaintiff, ORDER: (1) ADOPTING REPORT 13 v. AND RECOMMENDATION, (2) GRANTING PLAINTIFF’S 14 ANDREW SAUL, Commissioner of MOTION FOR SUMMARY Social Security, 15 JUDGMENT, (3) DENYING Defendant. DEFENDANT’S CROSS-MOTION 16 FOR SUMMARY JUDGMENT, 17 (4) REVERSING THE DECISION OF THE COMMISIONER, AND 18 (5) REMANDING ACTION TO THE 19 COMMISSIONER FOR FURTHER ADMINISTRATIVE ACTION 20 21 (ECF Nos. 12, 13, 16) 22 Presently before the Court are Plaintiff Kathleen S.’s Motion for Summary Judgment 23 (“Pl.’s Mot.,” ECF No. 12) and a Cross-Motion for Summary Judgment filed by Defendant 24 Andrew Saul, Commissioner of Social Security (“Def.’s Mot.,” ECF No. 13). Magistrate 25 Judge Robert N. Block has issued a Report and Recommendation (“R&R,” ECF No. 16) 26 recommending that the Court grant Plaintiff’s Motion, deny Defendant’s Motion, reverse 27 the decision of the Commissioner, and remand this case for further administrative 28 proceedings. Having reviewed the Parties’ arguments, Magistrate Judge Block’s R&R, 1 and the underlying Administrative Record, the Court ADOPTS Magistrate Judge Block’s 2 R&R in its entirety, GRANTS Plaintiff’s Motion, DENIES Defendant’s Motion, 3 REVERSES the decision of the Commissioner, and REMANDS this matter for further 4 administrative action. 5 BACKGROUND 6 Magistrate Judge Block’s R&R contains a thorough and accurate recitation of the 7 factual and procedural histories underlying the instant Motions. See R&R at 2–4. This 8 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 Block’s 25 R&R. See R&R at 24 (ordering that any objections be filed within fourteen days of service 26 with the R&R). Having reviewed the R&R, the Court finds that it is thorough, well- 27 reasoned, and contains no clear error. 28 / / / 1 In this matter, the Administrative Law Judge (“ALJ”) determined that Plaintiff had 2 several severe impairments, including chronic obstructive pulmonary disease, hearing loss, 3 residuals of a fractured right foot with cysts, hypertension, a cyst on her liver, and obesity. 4 Id. at 3 (citing Administrative Record (“AR”) at 20). The ALJ also found that Plaintiff had 5 several nonsevere impairments, including hypothyroidism, hyperlipidemia, and Bell’s 6 palsy. Id. at 3 (citing AR 20). He then determined that Plaintiff had the residual functional 7 capacity (“RFC”) to perform light work and that a hypothetical person with her vocational 8 profile and RFC would able to perform her past relevant work as a waitress. Id. at 3–4 9 (citing AR 24, 27–28). He concluded that Plaintiff was not disabled through the date last 10 insured. Id. at 4 (citing AR 28). 11 In reaching these conclusions, the ALJ failed to consider the mild limitations caused 12 by Plaintiff’s mental impairments in connection with her RFC and past relevant work. Id. 13 at 15–16. Despite finding Plaintiff’s mild mental limitations credible himself, the ALJ only 14 considered these limitations in connection with his finding of severity. Id. at 14–15. 15 Magistrate Judge Block finds that the ALJ erred and that the error was not harmless because 16 the Court cannot conclude what the disability determination would have been given proper 17 consideration of Plaintiff’s mild mental limitations. See id. at 16. 18 The ALJ also failed to categorize Plaintiff’s right arm lymphedema as a medically 19 determinable impairment. Id. at 17. Plaintiff’s treatment notes reflect a finding of mild 20 lymphedema, id. at 17 (citing AR 502), and Plaintiff testified at the administrative hearing 21 about functional limitations caused by her lymphedema. Id. (citing AR 61–63, 67–68). 22 The ALJ’s decision, however, did not reflect any consideration of the lymphedema or the 23 related functional limitations in connection with his RFC determination. Id. (citing AR 24 24–27). Magistrate Judge Block therefore finds that the ALJ erred by failing to consider 25 whether Plaintiff had any functional limitations due to lymphedema and that this error was 26 not harmless. Id. at 17. 27 Magistrate Judge Block further concludes that the ALJ should have developed the 28 record further with respect to Plaintiff’s obesity. Id. at 17. Specifically, the ALJ did not 1 have any medical evidence before him regarding Plaintiff’s work-related limitations caused 2 by her obesity, id. at 18; the medical expert (“ME”) at the administrative hearing 3 acknowledged that Plaintiff would have postural limitations because of her obesity, but did 4 not specify what those limitations would be, id. (citing AR 50); and the ALJ did not follow 5 up with Plaintiff’s doctors or the ME regarding these limitations. Id. Magistrate Judge 6 Block finds that the ALJ’s failure to follow up on Plaintiff’s work-related limitations due 7 to her obesity violated the ALJ’s duty to “fully and fairly develop the record” and resulted 8 in an RFC determination that was not supported by substantial evidence. Id. 9 Finally, Magistrate Judge Block finds that the ALJ should have developed the record 10 further regarding Plaintiff’s hearing loss. Id. at 20. Specifically, the ALJ did not have 11 medical evidence regarding whether Plaintiff had work-related limitations due to her 12 hearing loss, id. at 22; the ME was unable to interpret the audiograms of record, rendering 13 his testimony unreliable, id.; the ALJ did not mention Plaintiff’s mental-status 14 examinations in his discussion of her hearing impairment, id. (citing AR 25); and the record 15 evidenced only limited treatment of Plaintiff’s hearing. Id. Magistrate Judge Block thus 16 finds the ALJ failed to fully and fairly develop the record with respect to Plaintiff’s hearing 17 loss, resulting in a decision that is unsupported by substantial evidence. Id. at 23. 18 The Court finds no clear error in Judge Block’s findings and recommendations. 19 Further, the Court agrees that remanding for further administrative proceedings is 20 appropriate because additional proceedings could remedy the defects in the ALJ’s decision 21 and enhance the administrative record. Id. at 24. 22 CONCLUSION 23 In light of the foregoing, the Court: (1) ADOPTS in its entirety Magistrate Judge 24 Block’s Report and Recommendation (ECF No. 16), (2) GRANTS Plaintiff’s Motion for 25 Summary Judgment (ECF No. 12), (3) DENIES Defendant’s Cross-Motion for Summary 26 Judgment (ECF No. 13), (4) REVERSES the decision of the Commissioner, and 27 (5) REMANDS the case to the Commissioner for further administrative action consistent 28 / / / 1 || with this Order and Magistrate Judge Block’s Report and Recommendation. Because this 2 || Order concludes the litigation in this matter, the Clerk of Court SHALL CLOSE the file. 3 IT IS SO ORDERED. 4 5 ||Dated: June 2, 2020 psi L. Lo meeaitie- 6 on. Janis L. Sammartino United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28