Abd-Elmalek v. Jenkins

Opinion

1 NICHOLAS A. TRUTANICH United States Attorney 2 DEBORAH LEE STACHEL Regional Chief Counsel 3 DANIEL P. TALBERT Special Assistant United States Attorney 4 Social Security Administration 160 Spear Street, Suite 800 5 San Francisco, CA 94105 Telephone: (415) 977-8995 6 Facsimile: (415) 744-0134 Attorneys for Defendant 7 8 9 10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA 12 LAS VEGAS DIVISION 13 14 AMIR F. ABD-ELMALEK, No. 2:16-cv-02509-APG-EJY 15 Plaintiff, NOTICE OF VOLUNTARY REMAND 16 v. 17 ANDREW SAUL, Commissioner of Social Security, 18 Defendant. 19 20 21 22 23 24 25 26 27 28 1 In response to Plaintiff’s Motion to Remand (ECF No. 29) and this Court’s Order (ECF 2 No. 30), Defendant files his Notice of Voluntary Remand. Defendant agrees with Plaintiff that 3 remand to the Commissioner of Social Security is proper pursuant to 42 U.S.C. § 405(g), sentence 4 four. Upon remand, the Appeals Council will remand the case to an administrative law judge 5 (ALJ) for a new decision. The Appeals Council will instruct that the ALJ shall reevaluate 6 Plaintiff’s application under the sequential evaluation process, including evaluating Plaintiff’s 7 symptom allegations, giving specific reasons for the weight the ALJ gives to those allegations, 8 and evaluating opinion evidence including medical opinions and statements from Plaintiff’s wife. 9 Further administrative proceedings are proper in this case because of significant conflicts 10 between the medical source opinions, raising serious doubt of disability. Specifically, Plaintiff’s 11 treating sources disagreed as to whether Plaintiff was disabled, with one treating physician, Zeid 12 Kayali, M.D., concluding that he was not disabled (AR 1219) and that he was able to lift and 13 carry up to 20 pounds (AR 652), consistent with an opinion from State agency physician William 14 McCollum, M.D. (AR 716-18). Two other treating physicians, Michael Charlton, M.D., and 15 Dennis Jensen, M.D., provided check-the-box forms indicating greater limitations (AR 1294-98, 16 1309-13). The responsibility for resolving this conflict rests with the ALJ, and requires remand 17 for further administrative proceedings. See Leon v. Berryhill, 880 F.3d 1041, 1047 (9th Cir. 18 2018) (suggesting that remand for payment is not proper where a record contains “inconsistencies 19 in the claimant’s primary physician’s medical opinions”); Dominguez v. Colvin, 808 F.3d 403, 20 408-09 (9th Cir. 2016) (remanding for further proceedings because of conflicts between medical 21 source opinions). Therefore, this Court should remand for further proceedings. 22 // 23 // 24 // 25 // 26 // 27 // 28 // 1 Counsel for Defendant contacted Plaintiff by telephone (using the telephone number for 2 Plaintiff available on the docket sheet) on May 7, 2020, and left a voice mail, and again attempted 3 to contact Plaintiff by telephone on May 11, 2020, but has not received a response. Therefore, 4 Defendant cannot state Plaintiff’s position on this Notice of Voluntary Remand. 5 Respectfully submitted, 6 NICHOLAS TRUTANICH 7 United States Attorney 8 DATE: May 11, 2020 By s/ Daniel P. Talbert DANIEL P. TALBERT 9 Special Assistant United States Attorney 10 Attorneys for Defendant 11 12 [PROPOSED] ORDER 13 Good cause appearing, this case is remanded to the Commissioner of Social Security for 14 further administrative proceedings. 15 DATED: May 12, 2020 16 ___________________________________ 17 HON. ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28