Cathey v. Berryhill

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VIVIAN OMILIA CATHEY, Case No.: 3:19-CV-275-GPC-WVG

12 Plaintiff, ORDER DECLINING TO ADOPT 13 v. MAGISTRATE JUDGE’S REPORT AND RECOMMENDATIONAND 14 ANDREW SAUL, Commissioner of GRANTING PLAINTIFF’S MOTION Social Security, 15 FOR SUMMARY JUDGMENT AND Defendant. DENYING DEFENDANT’S CROSS- 16 MOTION FOR SUMMARY 17 JUDGMENT

18 [Dkt. Nos. 18, 20.] 19 20 On February 6, 2019, Plaintiff Vivian Omilia Cathey (“Plaintiff”) filed this action 21 seeking judicial review of the Commissioner of Social Security’s final decision denying 22 Plaintiff’s application for disability insurance benefits (“DIB”) under Title II of the Social 23 Security Act (“Act”). (Dkt. No. 1, Compl.) 24 Plaintiff filed a motion for summary judgment. (Dkt. No. 18.) Defendant then 25 filed a cross motion for summary judgment and opposition to Plaintiff’s motion for 26 27 1 summary judgement. (Dkt. No. 20.) Plaintiff filed a reply to Defendant’s opposition.1 2 (Dkt. No. 21.) On April 30, 2021, Magistrate Judge William V. Gallo issued a report and 3 recommendation (“Report”) recommending that the Court grant Defendant’s motion for 4 summary judgment and deny Plaintiff’s motion for summary judgment. (Dkt. No. 24.) 5 Plaintiff filed objections to the Report on May 20, 2021, (Dkt. No. 25), and Defendant 6 filed a reply to Plaintiff’s objections, (Dkt. No. 26). Having reviewed the parties’ 7 arguments, the record, and the applicable law, the Court DECLINES TO ADOPT the 8 Magistrate Judge’s Report and GRANTS Plaintiff’s motion for summary judgment, 9 DENIES Defendant’s motion for summary judgment, and REMANDS for further 10 proceedings. 11 LEGAL STANDARD 12 I. Standard of Review of Magistrate Judge’s Report and Recommendation. 13 The district court’s duties in connection with a Report from a magistrate judge are 14 set forth in Federal Rules of Civil Procedure 72(b) and 28 U.S.C. § 636(b). The district 15 court “may accept, reject or modify, in whole or in part, the findings and 16 recommendations made by the magistrate.” 28 U.S.C. § 636(b). The district court need 17 not review de novo those portions of a Report to which neither party objects. See Wang 18 v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 19 F.3d 1114, 1121–22 (9th Cir. 2003) (en banc). When no objections to a Report are made, 20 the Court may assume the correctness of the magistrate judge’s findings of fact and 21 decide the motion on the applicable law. Campbell v. U.S. Dist. Ct. for the N. Dist. Of 22 California, 501 F.2d 196, 206 (9th Cir. 1974); Johnson v. Nelson, 142 F. Supp. 2d 1215, 23 1217 (S.D. Cal. 2001). Here, because Plaintiff filed an objection to the Magistrate 24

25 26 1 The Court will construe Plaintiff’s reply to Defendant’s opposition to Plaintiff’s motion for summary judgment as Plaintiff’s opposition to Defendant’s motion for summary judgment. 27 1 Judge’s Report, the Court will make a de novo determination of those portions of the 2 report to which objections were made. 3 II. Standard of Review of Commissioner’s Final Decision 4 Section 205(g) of the Act permits unsuccessful claimants to seek judicial review of 5 the Commissioner’s final agency decision. 42 U.S.C. § 405(g). The reviewing court may 6 enter a judgment affirming, modifying, or reversing the Commissioner’s decision, and 7 may also remand the matter to the Commissioner of Social Security for further 8 proceedings. Id. 9 The scope of the reviewing court is limited; it may only “set aside the ALJ’s2 10 denial of benefits . . . when the ALJ’s findings are based on legal error or are not 11 supported by substantial evidence in the record as a whole.” Parra v. Astrue, 481 F.3d 12 742, 746 (9th Cir. 2007) (internal quotations omitted). “‘Substantial evidence’ means 13 more than a mere scintilla, but less than a preponderance, i.e., such relevant evidence as a 14 reasonable mind might accept as adequate to support a conclusion.” Robbins v. Soc. Sec. 15 Admin., 466 F.3d 880, 882 (9th Cir. 2006). However, “[w]here evidence is susceptible to 16 more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.” 17 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 18 III. Determination of Disability 19 For the purposes of the Social Security Act, a claimant is disabled if she is unable 20 “to engage in any substantial gainful activity by reason of any medically determinable 21 physical or mental impairment which can be expected to result in death or which has 22 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 23 U.S.C. § 423(d)(1)(A). In order to determine whether a claimant meets this definition, 24 the ALJ employs a five-step sequential evaluation. 20 C.F.R. § 404.1520(a). If the ALJ 25

26 2 Administrative Law Judge 27 1 determines that a claimant is either disabled or not disabled at a step in the process, the 2 ALJ does not continue on to the next step. See 20 C.F.R. § 404.1520(a); Bray v. Comm’r 3 of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). In brief, the ALJ considers 4 whether the claimant is disabled by determining: (1) whether the claimant is “doing 5 substantial gainful activity”; (2) whether the claimant has a “severe, medically 6 determinable physical or mental impairment . . . or a combination of impairments that is 7 severe” and that has lasted for more than 12 months; (3) whether the impairment “meets 8 or equals” one of the listings in the regulations; (4) whether, given the claimant’s residual 9 functional capacity (“RFC”), the claimant can still do his or her “past relevant work”; and 10 (5) whether the claimant “can make an adjustment to other work.” 20 C.F.R. § 11 404.1520(a)(4)(i)-(v). Between steps three and four, the ALJ must, as an intermediate 12 step, assess the claimant’s RFC. See 20 C.F.R. § 404.1520(e); Bray, 554 F.3d at 1222– 13 23; Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). The burden of proof is on 14 the claimant at steps one through four but shifts to the Commissioner at step five. Bray, 15 554 F.3d at 1222. 16 BACKGROUND 17 I. Procedural History 18 On September 22, 20123, Plaintiff filed an application for disability insurance 19 benefits (“DIB”) under Title II of the Social Security Act. (Dkt. No. 11-5, Administrative 20 Record (“AR”) 241–42.) Plaintiff alleges she became unable to work due to her 21 disability on July 1, 2008. (Id.) Plaintiff’s application was denied initially and upon 22 reconsideration. (Dkt. No. 11-4, AR 108–11, 114–18.) Plaintiff filed a request for a 23 hearing on May 6, 2013 before an ALJ. (Id., AR 120–21, 140.) On February 14, 2014, 24 25 3 Plaintiff, the first ALJ, and the Magistrate Judge state that Plaintiff filed her application for DIB on 26 September 21, 2012. (Dkt. No. 1 at 2; Dkt. No. 11-3, AR 83; Dkt. No. 24 at 5.) However, her DIB application indicates that it was filed on September 22, 2012. (Dkt. No. 11-5, AR 241–42.) 27 1 the ALJ (“first ALJ”) issued an unfavorable decision finding that Plaintiff was not 2 disabled under the Act through December 31, 2012, the date last insured. (Dkt. No. 11-3, 3 AR 83–93.) Plaintiff then requested the Appeals Council review the ALJ’s decision. 4 (Dkt. No. 11-4, AR 170.) The Appeals Council vacated the decision and remanded the 5 case to the ALJ. (Dkt. No. 11-3, AR 98–102.) A second hearing before a different ALJ 6 (“second ALJ”) was held on August 29, 2017. (Dkt. No. 11-4, AR 210). On February 7 26, 2018, the second ALJ issued an unfavorable decision finding that Plaintiff was not 8 disabled through her date last insured, December 31, 2012. (Dkt. No. 11-2, AR 15–22.) 9 Plaintiff’s second request for review was denied by the Appeals Council, making the 10 second ALJ decision’s final. (Id., AR 1–5.) Plaintiff then filed this action pursuant to 42 11 U.S.C. § 405(g). 12 II. Medical History 13 A. Treating Physicians’ Medical Records 14 The earliest medical records in the Administrative Record date back to September 15 13, 2000, when Plaintiff was diagnosed with bilateral wrist tendonitis and early ganglion 16 cysts. (Dkt. No. 11-7, AR 437–38.) Plaintiff was examined by Dr. Nusrt Rajput, M.D., 17 approximately every two weeks until November 20, 2000. (Id., AR 425–36.) Dr. Rajput 18 prescribed Naproxen and physical therapy, and instructed modified work, specifically 19 restricting the use of tweezers and air tools with Plaintiff’s left hand. (Id.) On November 20 21, 2000, Dr. Rajput referred Plaintiff to Dr. Greg Balourdas, M.D., a hand specialist, for 21 evaluation and treatment. (Id., AR 423.) 22 Dr. Balourdas initially examined Plaintiff on November 29, 2000. (Id., AR 416– 23 19.) Upon physical examination, he observed a “suggestion of fullness over the left 24 dorsal wrist, without a distinct ganglion,” and “slight tenderness over the extensor 25 forearm and the trapezial musculature, with full forearm, elbow, and shoulder range of 26 motion.” (Id., AR 418.) Dr. Balourdas assessed that the symptoms of Plaintiff’s right 27 1 extremity had been resolved, and observed “residual evidence of a possible tendinitis, 2 ganglion cyst and associate ligament laxity at the scapholunate interval.” (Id.) He noted 3 that her symptoms appear to be improving. (Id.) He prescribed an MRI scan to rule out a 4 ligament injury or the presence of a ganglion. (Id., AR 419.) He instructed Plaintiff to 5 continue her medication and use a splint and to be on modified duty. (Id., AR 416, 419.) 6 On January 16, 2001, the MRI scan of the left wrist revealed that Plaintiff had a “trace 7 amount of fluid within the dorsal aspect of the radiocarpal joint space” but no ganglion 8 cyst or ligament injury was found. (Id., AR 420.) 9 On February 1, 2001, Dr. Balourdas reexamined Plaintiff and noted she had 10 returned to full duty. (Id., AR 415.) He observed that Plaintiff was “feeling better” with 11 “less pain”, “less tingling in tips” but still “painful with weight bearing through extended 12 wrist.” (Id.) Six weeks after returning to full duty, on March 19, 2001, Dr. Balourdas 13 noted “minimal residual dorsal wrist swelling, without a distinct ganglion” with full 14 range of motion of the left hand, wrist and forearm with some “discomfort over the dorsal 15 wrist at the end of full extension. (Id., AR 412.) She discontinued taking Naprosyn 16 about two weeks ago and had no increase in symptoms since discontinuing her 17 medication. (Id.) He noted that it is reasonable that she might require over the counter 18 anti-inflammatories for any mild symptoms that may flare up. (Id., AR 413.) Dr. 19 Balourdas concluded that Plaintiff “has no work preclusions and is capable of performing 20 her usual work and of competing in the open labor market without limitations.” (Id.) 21 Approximately five years later, on July 24, 2006, because Plaintiff’s left wrist 22 symptoms worsened, she was seen again by Dr. Balourdas. (Id., AR 530–36.) She 23 complained of “numbness over the dorsum of the hand and radiating proximally to the 24 trapezial musculature” describing the pain as “burning.” (Id., AR 531.) She stated she 25 drops objects and her symptoms increase at night. (Id.) She had also stopped working 26 two weeks prior. (Id.) Upon physical examination, Dr. Balourdas found remarkable 27 1 swelling over the dorsal left wrist, and “tenderness to palpation at the site of the cyst as 2 well as over the extensor forearm and into the lateral elbow.” (Id., AR 532.) She had full 3 range of motion of the shoulder, elbow, forearm, and wrist. (Id.) He assessed that 4 Plaintiff suffers from “local symptoms probably related to a dorsal wrist ganglion.” (Id.) 5 He concluded that he would “first focus on the dorsal wrist ganglion” and request 6 electrodiagnostic studies due to Plaintiff’s subjective complaints which sounded more 7 neurogenic in origin. (Id., AR 533.) Dr. Balourdas also opined that it was unlikely for 8 Plaintiff to “experience significant permanent impairment at the conclusion of treatment.” 9 (Id.) Dr. Balourdas saw her again on August 2, 2006, and September 14, 2006 with no 10 change in her condition. (Id., AR 527, 529.) 11 On September 19, 2006, Dr. Balourdas performed an excision of Plaintiff’s left 12 dorsal wrist ganglion. (Id., AR 525–26.) Following the operation, from September 21, 13 2006 to December 18, 2006, Plaintiff was routinely seen by Dr. Balourdas. (Id., AR 14 485–498, 519–524). According to Dr. Balourdas’ observation, initially, Plaintiff was 15 improving as expected, (id., AR 523, 524, 521), but then assessed that she improved 16 slower than expected. (Id., AR 519, 520, 522.) One month post-op, on October 19, 17 2006, it was noted that Plaintiff did not attend physical therapy due to lack of 18 communication and was discouraged because of the persistent mass and discomfort. (Id., 19 AR 522.) At that time, Dr. Balourdas’ objective findings noted thickened scar at the 20 surgical site, tender to palpation, no appreciable fluctuance, no ganglion recurrence, and 21 satisfactory grip strength at this point. (Id.) On November 9, 2006, Plaintiff reported she 22 was doing well with therapy, had not yet returned to modified work, and still had some 23 thickness and discomfort at the surgical site. (Id., AR 521.) Dr. Balourdas noted scar 24 softening and near full range of motion and no discomfort with grip effort. (Id.) On 25 November 27, 2006, Plaintiff continued improving despite denial of authorization for 26 further therapy. (Id., AR 520.) She was also taking Daypro to relieve her symptoms. 27 1 (Id.) She had discomfort with wrist extensions and occasional numbness in her fingers 2 and soreness in the trapezial left muscle. (Id.) On December 18, 2006, Plaintiff reported 3 doing better, taking Daypro and was able to tolerate more activities without discomfort. 4 (Id., AR 519.) At this time, she was anxious to return to work. (Id.) Dr. Balourdas noted 5 that the surgical site was still tender, the scar more supple and range of motion was still 6 limited in flexion. (Id.) 7 From January 2007 to May 2007, Dr. Balourdas continued to examine Plaintiff and 8 noted her condition worsened with a full return to work and began using anti- 9 inflammatory and muscle relaxants. (Id., AR 515-18.) On June 14, 2007, Plaintiff 10 continued to experience left upper extremity pain and discomfort with constant pinch and 11 fine manipulation and her level of discomfort was intolerable on busy days. (Id., AR 12 514.) Dr. Balourdas noted that physical therapy offered some relief and Plaintiff was 13 again placed on modified duty. (Id., AR 514.) In July 2007, Dr. Balourdas noted that her 14 condition had worsened noting “[p]uzzling activity intolerance” and possible recurrent 15 ganglion but key concerns were myofascial dysfunction proximally. (Id., AR 513.) He 16 imposed more restrictions on work activity. (Id.) At the next visit on August 9, 2007, 17 Plaintiff had been off work due to unavailability of restricted work and she continued to 18 have fullness over the left trapezial muscle and severe pain in left shoulder/trapezial 19 muscle. (Id., AR 512.) Therefore, Dr. Balourdas assessed that further workup was 20 warranted with a cervical spine and shoulder x-ray and an MRI scan and a general 21 orthopedic consultation. (Id.) On August 16, 2007, x-rays revealed a cervical rib which 22 may explain her left upper extremity symptoms. (Id., AR 511.) The MRI was normal but 23 Dr. Balourdas requested neurologic evaluation due to her cervical rib findings. (Id., AR 24 510.) 25 On October 16, 2007, Richard Ostrup, MD, examined Plaintiff for a neurosurgical 26 evaluation. (Id., AR 481–84.) Dr. Ostrup noted that Plaintiff has a prominent cervical rib 27 1 on her left, and that “this certainly could be accounting for a component of her 2 problems.” (Id., AR 483.) He opined that Plaintiff should be offered surgical 3 intervention. (Id.) However, Plaintiff was anxious, and declined surgery. (Id., AR 559.) 4 On November 1, 2007, Dr. Balourdas examined Plaintiff after she was seen by Dr. 5 Richard Ostrup. (Id., AR 509.) Plaintiff expressed anxiety about any surgery as Dr. 6 Ostrup suggested possible benefits from a surgery but was not overly optimistic. (Id.) 7 On the same day, Dr. Balourdas wrote a Comprehensive Hand and Upper Extremity 8 Evaluation, Permanent and Stationary Report that Plaintiff “suffers impairment in 9 strength . . . related to discomfort involving the left upper extremity with both recurrent 10 ganglion cyst and probable thoracic outlet syndrome diagnoses.” (Id., AR 506.) He 11 assessed Plaintiff’s condition to be “permanent and stationary” and her modified duty 12 should now be permanent. (Id., AR 505-06.) He indicated that Plaintiff “should avoid 13 tasks which require fine manipulation and dexterity or constant pinch limited to no more 14 than 15 minutes every two hours with the left hand. She should limit repetitive lifting, 15 gripping or pinching with the left hand to no more than 15 minutes out of every hour. On 16 the left she should avoid repetitively gripping or lifting anything greater than 5 pounds.” 17 (Id., AR 506.) 18 On January 10, 2008, Dr. Balourdas examined Plaintiff for the final time and 19 provided a Final Report Addendum. (Id., AR 500.) He found that “no ratable 20 impairments result[ed]” when utilizing the AMA Guide sections. (Id.) However, he 21 opined that “while the [AMA] Guides do not provide weight for grip strength as a source 22 of impairment, clearly [Plaintiff] suffers impairment and has functional deficit.” (Id.) 23 Between July 2007 and October 2012, Plaintiff was treated at Kaiser Permanente 24 for abnormal glucose, chronic rhinitis, constipation, diffuse cystic mastopathy, irritable 25 bowel syndrome, myalgia and myositis, uterine leiomyoma, myofascial pain syndrome 26 and a variety of different ailments. (Dkt. No. 11-8, AR 566; AR 610.) 27 1 From October 7, 2009 through September 9, 2010, Plaintiff was seen by Mary 2 Grehian Yoo, MD, an internist, for shoulder and neck pain and diagnosed with cervical 3 radiculopathy. (Id., AR 600-03; 667-70.) At the initial visit on October 7, 2009, Dr. 4 Grehian referred Plaintiff to radiology for MRIs of the neck and lower back, physical 5 therapy for neck and back, neurology for arm numbness and physical medicine for 6 possible injection of back. (Id., AR 662.) In September 2010, Plaintiff was prescribed 7 Nortriptyline as it helped with the myofascial pain syndrome and she was also referred to 8 acupuncture. (Id., AR 601, 603.) From October 16, 2009 through January 15, 2010, 9 Plaintiff engaged in physical therapy for shoulder pain. (Id., AR 609, 636-38, 648, 640- 10 42; 646-50; 657-61.) An MRI of lumbar spine and cervical spine was conducted on 11 October 29, 2009. (Id., AR 650-51.) Plaintiff was also seen by a neurologist, Linda 12 Jeannette Jaffe, M.D. on November 3, 2009. (Id., AR 652.) 13 From October 26, 2009, to January 15, 2010, Plaintiff was also seen for her 14 chronic neck and left upper extremity pain by Dr. Yvonne Marie Aube, M.D., a 15 Physiatrist. (Id., AR 639-40; AR 643-45; 653-57.) Dr. Aube diagnosed Plaintiff with 16 myofascial pain syndrome, rotator cuff syndrome or left shoulder impingement, cervical 17 spondylosis. (Id., AR 639.) She was treated with “trigger point injection the left upper 18 trapezius and left subacromial injection.” (Id., AR 639.) These injections helped her 19 pain symptoms. (Id., AR 639-40; 645.) Dr. Aube noted that if the symptoms increase, 20 she anticipated an MRI of the left shoulder and an orthopedic consult. (Id., AR 640.) 21 B. Examining State Agency Consultants 22 On November 17, 2008, an orthopedic consultation was performed on Plaintiff by 23 Thomas J. Sabourin, MD, the consultative examiner. (Dkt. No. 11-7, AR 559–63.) In 24 the examination, Dr. Sabourin found that Plaintiff had full range of motion of both 25 shoulders but has pain over the trapezius muscle with shoulder range of motion. (Id., AR 26 561.) However, there was no tenderness over the shoulder or the scapula and provocative 27 1 test was negative. (Id.) Plaintiff has full range of motion of her elbows, no instability in 2 her wrists and normal range of motion of her hands and fingers. (Id.) Dr. Sabourin 3 concluded that Plaintiff “could only lift or carry 50 pounds occasionally and 25 pounds 4 frequently,” “could stand and walk six hours of an eight-hour workday and sit for six 5 hours of an eight-hour workday,” “has no posture limitations,” “has manipulative 6 limitations,” and that she could “work with the left arm above the shoulder level only 7 occasionally.” (Id., AR 563.) He also noted that “the left wrist ganglion excision is 8 inconsequential” and that he feels she has “no gross or fine manipulation, as she has no 9 need for assistive devices.” (Id.) 10 On November 19, 2012, Dr. Sabourin performed a second orthopedic consultation 11 on Plaintiff. (Dkt. No. 11-8, AR 767–71.) Plaintiff “complain[ed] of a throbbing pain 12 with any sitting or standing in the neck and left trapezius muscle” and used a “left wrist 13 brace for driving and at night” due to pain in her left arm. (Id., AR 767.) Examination 14 revealed that Plaintiff had normal range of motion of the shoulders, elbows, wrists, 15 hands, and fingers. (Id., AR 769.) He noted that while she had full range of motion on 16 the left shoulder, it was not as complete as on the right in abduction. (Id.) Dr. Sabourin 17 concluded that Plaintiff “has non-anatomical numbness in the left arm, but otherwise her 18 findings are relatively normal” and that although the “range of motion for her left 19 shoulder is slightly less than that of the right, [it] is slightly better than . . . normal for 20 Social Security purposes.” (Id., AR 771.) In addition, he noted she has pain syndrome 21 likely related to the excision of a tumor on that side. (Id.) Based on the evaluation, he 22 came to the same conclusion on and assessed that Plaintiff “could lift or carry 50 pounds 23 occasionally and 25 pounds frequently,” “could stand and walk six hours of an eight-hour 24 workday and sit for six hours of an eight-hour workday,” “has no postural limitation,” 25 “has manipulative limitations,” and that she could “work with the left arm above the 26 shoulder level only occasionally.” (Id.) 27 1 C. Non-Examining State Agency Consultants 2 On December 13, 2012, R. Masters, M.D. reviewed Plaintiff’s DIB claim. (Dkt. 3 No. 11-3, AR 54–66.) Dr. Masters found Plaintiff was not disabled and that “[m]edium 4 RFC with [left upper extremity] limits” to be appropriate. (Id., AR 61, 65.) He found 5 Plaintiff to be capable of lifting/carrying 50 pounds occasionally and 25 pounds 6 frequently, stand/walk or sit for six hours in an eight-hour workday, and have 7 manipulative limitations when reaching overhead with her left upper extremity but no 8 limitations as to gross and fine manipulations. (Id., AR 63–64.) He concluded that while 9 Plaintiff’s condition “results in some limitations in [her] ability to perform work related 10 activities,” the limitations do not prevent her from past work in electronics quality 11 assurance. (Id., AR 65.) Further, he noted that her condition was not severe enough to 12 keep her from working. (Id., AR 65–66.) 13 On April 12, 2013, V. Michelotti, M.D. reviewed Plaintiff’s DIB claim. (Id., AR 14 67–79.) Dr. Michelotti found that Plaintiff could lift/carry 50 pounds occasionally and 25 15 pounds frequently, stand/walk and sit for about six hours in an eight-hour workday, and 16 had postural limitations due to chronic left shoulder and wrist pain. (Id., AR 76.) She 17 also had limited limitations of reaching overhead with her left upper extremity which she 18 could do occasionally. (Id., AR 77.) He concluded that Plaintiff was not disabled and 19 had the RFC to perform her previous work in electronic quality assurance. (Id., AR 78.) 20 III. First ALJ Decision 21 ALJ Mason D. Harrell, Jr. applied the five-step sequential framework to determine 22 that Plaintiff was not disabled. (Dkt. No. 11-3, AR 83–93.) At step one, the ALJ found 23 that Plaintiff had not engaged in substantial gainful activity during the period from her 24 alleged onset date of July 1, 2008, through her date last insured of December 31, 2012. 25 (Id., AR 85.) At step two, the ALJ found that Plaintiff had the following severe 26 impairments: cervical spondylosis, status post excision of tumor on the left side of her 27 1 neck, chronic left trapezial muscle pain, and ganglion cyst of the left wrist, status post 2 excision of ganglion cyst.4 (Id.) At step three, the ALJ found that the evidence did not 3 support a finding that the severity of Plaintiff’s impairments met or equaled the severity 4 of the listings of the regulation. (Id., AR 85–86.) 5 Prior to step four, the ALJ found that Plaintiff had the RFC to perform medium 6 work as defined in 20 CFR § 404.1567(c). (Id., AR 86.) Specifically, the ALJ 7 determined Plaintiff had the ability to lift or carry 50 pounds occasionally and 25 pounds 8 frequently but was unable to perform work above shoulder level with the left arm and 9 could only lift 2 pounds with the left hand; to be limited to using her left hand on an 10 occasional basis, performing fine manipulation, dexterity and constant pinch with her left 11 extremity no more than ten minutes every two hours, and occasionally engage in 12 repetitive lifting, gripping, or pinching with the left hand; and to sit and stand for six 13 hours out of an eight-hour workday with regular breaks. (Id.) 14 At step four, the ALJ found that Plaintiff was not capable of performing past 15 relevant work. (Id., AR 91–93.) However, she could perform the requirements of a 16 cashier, ticket taker, and bus monitor. (Id.) Thus, the ALJ concluded that Plaintiff was 17 not disabled at any time from the alleged onset date, July 1, 2008, through the date last 18 insured, December 31, 2012. (Id., AR 93.) 19 IV. Appeals Council Review 20 Upon review on September 18, 2015, the Appeals Council remanded the case due 21 to the inconsistencies in the vocational expert testimony regarding the jobs cited on step 22 four and the Plaintiff’s limitations as identified in the RFC finding. (Id., AR 100–03.) 23

24 25 4 Plaintiff alleges disability to her left shoulder and wrist. (Dkt. No. 11-3, AR 55.) However, records occasionally indicate that Plaintiff to be right-handed. (Dkt. No. 11-7, AR 461, 481, 517, 520, 522, 26 560.) The Court notes that Plaintiff is sufficiently ambidextrous enough to use her right hand “well enough to write and use eating utensils.” (Dkt. No. 11-7, AR 434; Dkt. No. 11-2, AR 21.) 27 1 The Appeals Council found that the jobs identified by the vocational expert did not 2 appear to have taken into consideration all the Plaintiff’s limitations as identified in the 3 RFC finding. (Id., AR 100.) The Appeals Council instructed the ALJ, upon remand, to 4 update the record with additional evidence concerning the claimant’s impairments and 5 obtain supplemental evidence from a vocational expert to clarify the effect of the 6 Plaintiff’s limitations on her occupational base. (Id., AR 101.) Specifically, the ALJ was 7 instructed to “ask the vocational expert to identify examples of appropriate jobs and to 8 state the incidence of such jobs in the national economy” and to “identify and resolve any 9 conflicts between the occupational evidence provided by the vocational expert and 10 information in the Dictionary of Occupational Titles (DOT) and . . . the Selected 11 Characteristics of Occupations.” (Id.) 12 V. Second ALJ Decision 13 On August 29, 2017, ALJ Eric V. Benham held a hearing and also inquired 14 whether Plaintiff had additional evidence. (Dkt. No. 11-2, AR 32.) Plaintiff submitted 15 post-hearing evidence that was admitted into the record. (Id., AR 16; Dkt. No. 11-9.) 16 In his decision, the ALJ applied the five-step sequential framework to determine 17 that Plaintiff was not disabled. (Dkt. No. 11-2, AR 18-22.) At step one, the ALJ found 18 that Plaintiff had not engaged in substantial gainful activity during the period from her 19 alleged onset date through her date last insured. (Id., AR 18.) At step two, the ALJ 20 found that Plaintiff had the following severe impairments: left shoulder disorder with 21 pain and left wrist disorder with pain. (Id.) At step three, the ALJ found that the record 22 did not establish medical signs, symptoms, or degree of functional limitation required to 23 “meet or equal” one of the listings of the regulation. (Id.) 24 Prior to step four, the ALJ determined that Plaintiff had the RFC to perform 25 medium work as defined in 20 CFR § 404.1567(c), to lift or carry 50 pounds occasionally 26 and 25 pounds frequently, sit and stand/walk for six hours in an eight-hour workday, and 27 1 occasionally engage in overhead work with the left upper extremity. (Id.) In making this 2 finding, the ALJ gave greater weight to the opinions of the consultive examiner and State 3 agency doctors than to Plaintiff’s treating physician. (Id., AR 21.) 4 At step four, the ALJ found that Plaintiff could perform past relevant work as an 5 inspector of electronics. (Id., AR 22.) Thus, the ALJ concluded that Plaintiff was not 6 under a disability at any time from the alleged onset date through the date last insured. 7 (Id.) 8 DISCUSSION 9 I. Review Following Remand by the Appeals Council 10 Plaintiff argues that the law of case doctrine and rule of mandate both apply to 11 Social Security hearings under the authority of Stacy v. Colvin, 825 F.3d 563 (9th Cir. 12 2016) and contends that the second ALJ decision failed to comply with the Appeal 13 Council’s remand order. (Dkt. No. 18-1 at 4–5.) Defendant responds that the second 14 ALJ was permitted to take additional actions that were not inconsistent with the Appeals 15 Council’s remand order and that the law of case doctrine and rule of mandate are 16 inapplicable to this case. (Dkt. No. 20 at 6.) 17 In the Report, the Magistrate Judge concluded that the law of case doctrine and the 18 rule of mandate are inapplicable to the present matter, and that the ALJ acted in 19 accordance with the Appeals Council’s remand order. (Dkt. No. 24 at 8–10.) Plaintiff 20 objects to the Magistrate Judge’s Report asserting that the law of the case doctrine and 21 rule of mandate should apply to the present matter, and that regardless of the application, 22 the ALJ failed to address the inconsistency of the original decision and the instructions of 23 the Appeals Council. (Dkt. No. 25-1 at 2.) Defendant replies that the doctrines are 24 inapplicable to the case, and even if applicable, the second ALJ acted within the scope of 25 the Appeals Council’s order. (Dkt. No. 26 at 2–3.) 26 27 1 The Court concludes that Stacy v. Colvin does not support application of the law of 2 the case doctrine and the rule of mandate to remands from the Appeals Council in the 3 same way they would apply to a remand by a district court. Instead, the Court finds that 4 ALJs are governed by 20 C.F.R. § 404.977 in their reconsideration of a case on remand 5 from the Appeals Council. 6 A. Law of the Case Doctrine and Rule of Mandate 7 “The doctrine [of the law of the case] is a judicial invention designed to aid in the 8 efficient operation of court affairs and is founded upon the sound public policy that 9 litigation must come to an end.” United States v. Smith, 389 F.3d 944, 948 (9th Cir. 10 2004) (citations and internal quotation marks omitted). “The law of the case doctrine 11 generally prohibits a court from considering an issue that has already been decided by 12 that same court or a higher court in the same case.” Hall v. City of Los Angeles, 697 F.3d 13 1059, 1067 (9th Cir. 2012). The rule of mandate provides that “any district court that has 14 received the mandate of an appellate court cannot vary or examine that mandate for any 15 purpose other than executing it.” Id. 16 The law of case doctrine and the rule of mandate are federal court rules and apply 17 in the context of social security cases when there is a federal court remand. In Stacy v. 18 Colvin, 825 F.3d 563 (9th Cir. 2016), the Ninth Circuit in a case of first impression held 19 that the law of the case doctrine and the rule of mandate apply to social security 20 administrative remands from a federal court in the same way they would apply to any 21 other case. However, Stacy did not involve a review by a district court of an ALJ’s 22 compliance with a remand by an Appeals Council and does not provide any authority to 23 extend it in the manner sought by Plaintiff. 24 Here, after an unfavorable decision by the first ALJ, Plaintiff sought review with 25 the Appeals Council which vacated the first ALJ’s decision and remanded the case to a 26 second ALJ. (Dkt. No. 11-3, AR 83–93; Dkt. No. 11-4, AR 170; Dkt. No. 11-3, AR 98– 27 1 102). There was no federal court remand order in this case. As such, Plaintiff’s reliance 2 on Stacy v. Colvin is misplaced as it involved a federal remand order to an administrative 3 agency, 825 F.3d at 566. As the Report notes, Plaintiff fails to demonstrate how the 4 federal doctrines apply to proceedings confined within an administrative agency. (Dkt. 5 No. 24 at 9.) The Court agrees that the law of the case doctrine and rule of mandate are 6 inapplicable to this case. See Tyler v. Barnhart, No. C 06-3056 CW, 2007 WL 973527, 7 at *8 (N.D. Cal. Apr. 27, 2007) (law of the case doctrine does not apply because the case 8 “does not involve a remand order from the district court, but rather a remand order from 9 the Appeals Council itself” and the remand order instructed “ALJ to make specific 10 findings, provide germane reasons, and obtain supplemental evidence as necessary.”) 11 B. 20 C.F.R. § 404.977 12 Although the law of the case doctrine has no application here, the Social Security 13 Regulations, 20 C.F.R. § 404.977(b), provides the instructions for an ALJ following 14 remand by the Appeals Council: 15 (b) Action by administrative law judge on remand. The administrative law judge shall take any action that is ordered by the Appeals Council and may 16 take any additional action that is not inconsistent with the Appeals Council’s 17 remand order.

18 20 C.F.R. § 404.977(b). The Supreme Court has long recognized that a federal agency is 19 obliged to abide by the regulations it promulgates. See Vitarelli v. Seaton, 359 U.S. 535, 20 545 (1959); Accardi v. Shaughnessy, 347 U.S. 260, 267 (1954). An agency's failure to 21 follow its own regulations “tends to cause unjust discrimination and deny adequate 22 notice” and consequently may result in a violation of an individual's constitutional right 23 to due process. NLRB v. Welcome–American Fertilizer Co., 443 F.2d 19, 20 (9th 24 Cir.1971). Where a prescribed procedure is intended to protect the interests of a party 25 before the agency, “even though generous beyond the requirements that bind such 26 agency, that procedure must be scrupulously observed.” Vitarelli, 359 U.S. at 547 27 1 (Frankfurter, J., concurring). Nonetheless, under the Social Security Act, circuit courts 2 differ and even district courts within a circuit are divided on whether they may rule on 3 whether an ALJ complied with an Appeals Council’s remand order. See Inteso v. 4 Comm’r of Soc. Sec., Case No. 1:16–cv–1893, 2017 WL 9485668, at *9-10 (N.D. Ohio 5 Oct. 4, 2017) (explaining different opinions of federal courts’ review of an ALJ’s failure 6 to comply with an Appeals Council’s remand order); Huddleston v. Astrue, 826 F. Supp. 7 2d 942, 954 (S.D.W. Va. 2011) (citing different courts’ approaches). 8 In an unpublished decision, Tyler v. Astrue, 305 Fed. App’x 331, 332 (9th Cir. 9 2008), the Ninth Circuit ruled “[t]he district court properly declined to evaluate whether 10 the ALJ's second decision satisfied the demands of the Appeals Council's remand . . . . 11 [F]ederal courts only have jurisdiction to review the final decisions of administrative 12 agencies. When the Appeals Council denied review of the ALJ's second decision, it made 13 that decision final, and declined to find that the ALJ had not complied with its remand 14 instructions.” Id. District courts in the Ninth Circuit have followed Tyler. See Caravia- 15 Moroianu v. Berryhill, No. CV 16-01848-RAO, 2018 WL 1187502, at *1 (C.D. Cal. Mar. 16 6, 2018) (while court would have jurisdiction to review the ALJ’s second unfavorable 17 decision to determine if it is supported by substantial evidence, it lacks jurisdiction to 18 review the intra-agency decision regarding whether the ALJ complied with the Appeals 19 Council’s order); Thompson v. Astrue, No. EDCV, 09–1182 AGR, 2010 WL 2991488, at 20 *2 (C.D. Cal. July 27, 2010) (“the Court’s role is to determine whether the ALJ's final 21 decision is supported by substantial evidence, not whether the ALJ complied with the 22 Appeals Council's remand order.”). 23 The Tyler decision did not address the effect of Vitarelli or whether § 404.977 was 24 intended to protect an interest of a party before the agency rather than to govern internal 25 agency procedures. Whereas in Pearl v. Comm'r of Soc. Sec., 394 F. Supp. 3d 762, 767- 26 68 (E.D. Mich. 2019), the district court ruled it had jurisdiction to address the question 27 1 whether an ALJ complied with a remand order issued by the Appeals Council when the 2 Court adjudicates a civil action filed after a final decision by the Commissioner. The 3 Pearl court found that § 404.977 “affords procedural protection to a claimant, much the 4 same as other administrative regulations that routinely are reviewed after a final decision 5 is issued by the Commissioner, such as the treating physician rule.” Id. at 767. As such, 6 the court found it had the authority to review an agency's compliance with its procedures 7 and remand a case when the ALJ fails to follow the regulations, even when substantial 8 evidence otherwise might support the conclusions. Id. The Tenth Circuit followed suit in 9 Noreja v. Comm'r, Soc. Sec. Admin., 952 F.3d 1172, 1880 (10th Cir. 2020), where it held 10 that it has subject matter jurisdiction to consider whether an ALJ complied with an 11 Appeals Council’s remand order. 12 Even if the Court concludes that it has jurisdiction to consider whether the second 13 ALJ complied with the Appeals Council’s remand order, the second ALJ did not ignore 14 the scope of the remand order and conducted proceedings consistent with the Appeals 15 Council’s order. The Appeals Council directed the ALJ to update the record with 16 additional available evidence about Plaintiff’s impairments for the period prior to the date 17 last insured and give further consideration to the treating and nontreating source opinions 18 and nonexamining source opinions and explain the weight given to these opinions as well 19 as to obtain supplemental evidence from a vocational expert to clarify the effect of the 20 assessed limitations on the claimant’s occupational base for the relevant period prior to 21 December 31, 2012. (Dkt. No. 11-3, AR 101.) 22 Plaintiff does not challenge the second ALJ’s decision on what the Appeals 23 Council ordered concerning updating the record concerning her impairments or the 24 vocational expert’s opinion clarifying the effect of the assessed limitations concerning 25 jobs in the national economy. Instead, she argues the second ALJ improperly reassessed 26 her RFC essentially concluding she can do more than the first ALJ determined. 27 1 However, on an administrative remand,5 an “ALJ is permitted to change his or her 2 findings after remand.” Saiz v. Saul, Civil Action No. 19-cv-02826-PAB, 2021 WL 3 1172673, at *3 (D. Colo. Mar. 29, 2021) (citing Miller v. Barnhart, 175 F. App’x 952, 4 955-56 (10th Cir. 2006) (“Preclusion principle[s] . . . do not bind the ALJ to his earlier 5 decision.”)). An ALJ is not bound by his earlier decision because “[t]o hold otherwise 6 would discourage administrative law judges from reviewing the record on remand, 7 checking initial findings of fact, and making corrections, if appropriate. We decline to 8 constrain the ALJ in a manner not mandated by the regulations.” Campbell v. Bowen, 9 822 F.2d 1518, 1522 (10th Cir. 1987); Hamlin v. Barnhart, 365 F.3d 1208, 1224 (10th 10 Cir. 2004) (stating that “[i]t was certainly within the ALJ's province, upon reexamining 11 [claimant's] record [after Appeals Council remand], to revise his RFC category”); 12 Houston v. Sullivan, 895 F.2d 1012, 1015 (5th Cir. 1989) (“Once the case was remanded 13 to the ALJ to gather more information about the extent of [claimant's] disability, the ALJ 14 was free to reevaluate the facts.”). In this case, the second ALJ reassessed Plaintiff’s 15 RFC and concluded she can do more than the first ALJ assessed. Under § 404.977(b), 16 this was not error. See id. Per the Appeal Council’s order, the second ALJ allowed 17 Plaintiff to submit post-hearing evidence which she provided. (Dkt. No. 11-2, AR 32-33; 18 Dkt. No. 11-9.) However, the post-hearing evidence consists of Kaiser Permanente 19 records from 2014 to 2016 and address other maladies than those alleged in this case, 20 such as irritable bowel syndrome, constipation, and urinary urgency and do not support 21

22 23 5 The Court notes that the standard on the law of the case/rule of mandate is more stringent where the ALJ may not revisit issues already decided and may only address what the district court specifically 24 ordered on remand. See Allen v. Astrue, No. CV 09–7239 JCG, 2010 WL 4825925, at *5-6 (C.D. Cal. 25 Nov. 2, 2010) (prior ALJ RFC determination was the law of the case and could not be altered by subsequent ALJ on remand); Ischay, 383 F. Supp. 2d at 1215 (ALJ’s decision exceeded scope of the 26 court’s remand order).

27 1 her claims of disability. (See id.) In addition, in compliance with the Appeal Council’s 2 order, the ALJ, at the hearing, had a vocational expert assess Plaintiff’s limitations based 3 on her occupational base. (Dkt. No. 11-2, AR 22, 42-42.) In her motion, Plaintiff has not 4 challenged these actions. Accordingly, the Court DENIES Plaintiff’s motion for 5 summary judgment on this issue. 6 II. Weight of Medical Evidence 7 Next, Plaintiff also argues that the ALJ should have given controlling weight to 8 Plaintiff’s treating physician, Dr. Balourdas. (Dkt. No. 18-1 at 6.) Defendant contends 9 that proper weight was provided to Plaintiff’s treating physician. (Dkt. No. 21 at 3). The 10 Magistrate Judge concluded that the ALJ did not err by giving controlling weight to the 11 consultative examiner and State agency doctor over the Plaintiff’s treating physician. 12 (Dkt. No. 24 at 10–12). Plaintiff objects to the Report asserting that the second ALJ did 13 not properly explain why little weight was given to Plaintiff’s treating physician. (Dkt. 14 No. 25.) Defendant replied that the second ALJ provided specific and legitimate reasons 15 for discounting the treating physician’s opinion. (Dkt. No. 26.) 16 In social security disability cases, the ALJ must consider all medical opinion 17 evidence. See C.F.R. § 404.1527(b), (c). Generally, the opinion of the treating physician 18 is entitled to more weight than the opinion of an examining physician, and more weight is 19 given to the opinion of an examining physician than a non-examining physician. 20 Garrison, 759 F.3d at 1012. An ALJ must “give more weight to medical opinions from . 21 . . treating sources, since these sources are likely to be the medical professionals most 22 able to provide a detailed, longitudinal picture of . . . [the] medical impairment(s) and 23 may bring a unique perspective to the medical evidence that cannot be obtained from the 24 objective medical findings alone or from reports of individual examinations, such as 25 consultative examinations or brief hospitalizations.” 20 C.F.R. § 404.1527(c)(2). A 26 treating physician’s opinion is “given controlling weight so long as it is well-supported 27 1 by medically acceptable clinical and laboratory diagnostic techniques and is not 2 inconsistent with the other substantial evidence in the claimant’s case record.” Trevizo v. 3 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citing 20 C.F.R. § 404.1527(c)(2)). 4 The ALJ may reject a treating or examining physician's uncontradicted medical 5 opinion by providing clear and convincing reasons. Id. (citation omitted). If a treating 6 physician’s opinion is contradicted, however, it may be rejected for “specific and 7 legitimate reasons that are supported by substantial evidence in the record.” Id. (citation 8 omitted). The ALJ can meet the requisite specific and legitimate standard “by setting out 9 a detailed and thorough summary of the facts and conflicting clinical evidence, stating his 10 interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th 11 Cir. 1998) (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). While the 12 ALJ “need not discuss all evidence presented” to him, the ALJ must explain why 13 significant and probative evidence has been rejected. Vincent on Behalf of Vincent v. 14 Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1984). An ALJ errs by completely ignoring 15 medical evidence without providing specific and legitimate reasons for doing so. Smolen 16 v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996); Marsh v. Colvin, 792 F.3d 1170, 1172–73 17 (9th Cir. 2015) (“Because a court must give ‘specific and legitimate reasons’ for rejecting 18 a treating doctor’s opinions, it follows even more strongly that an ALJ cannot in its 19 decision totally ignore a treating doctor and his or her notes, without even mentioning 20 them.”). 21 Here, the Court finds that the second ALJ erred by ignoring and failing to consider 22 Plaintiff’s treating physicians treating her chronic neck and left upper extremity pain at 23 Kaiser Permanente from October 2009 through September 2010, the time relevant to 24 determining Plaintiff’s disability. (Dkt. No. 11-8, AR 600-70.) In fact, the second ALJ’s 25 opinion that Plaintiff received no treatment for her alleged left shoulder injury from 26 August 2007 to November 2012, (Dkt. No. 11-2, AR 20), is belied by the Kaiser 27 1 Permanente records, (see Dkt. No. 11-8, AR 600-70). The second ALJ also noted that 2 that during this time, she was only taking ibuprofen three times a week, (Dkt. No. 11-2, 3 AR 20); however, the records show that she took Nortriptyline, went to physical therapy 4 and received “trigger point injections” and “left subacromial injections.” (Dkt. No. 11-8, 5 600-70.) 6 An ALJ cannot selectively rely on only certain portions of the record to support his 7 conclusion and ignoring other relevant and material records that may support a contrary 8 conclusion. See Holohan v. Massanari, 246 F.3d 1195, 1207-08 (9th Cir. 2001) (holding 9 an ALJ cannot selectively rely on some entries in plaintiff's records while ignoring 10 others). Because the second ALJ failed to consider the treating records of Kaiser 11 Permanente, the second ALJ erred and his opinion rejecting the treating physician’s 12 opinion in favor of the consultative examiner’s opinion is not supported by substantial 13 evidence.6 Therefore, for other reasons, the Court GRANTS Plaintiff’s motion for 14 summary judgment. 15 III. Remand for Further Proceedings Is Appropriate 16 The Court has discretion and may remand the case “either for additional evidence 17 and findings or to award benefits.” Smolen, 80 F.3d at 1292. In general, when the Court 18 reverses an ALJ’s decision “the proper course, except in rare circumstances, is to remand 19 to the agency for additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 20 587, 595 (9th Cir. 2004). 21 This case does not involve the rare circumstance warranting an award of benefits. 22 The second ALJ failed to consider relevant and material medical records from Plaintiff’s 23 treating physicians at Kaiser Permanente when he placed greater weight to the opinions 24

25 26 6 The Court notes that the first ALJ considered the records from Kaiser Permanente. (See Dkt. No. 11-3, AR 89.) 27 1 || of the consultative examiner, Dr. Sabourin over the opinion of Plaintiff’s treating 2 physician, Dr. Balourdas. Therefore, the full record was not considered by the ALJ, and 3 || further proceedings are necessary for a proper disability determination, and the Court 4 ||, REMANDS the case to the Commissioner of Social Security for further administrative 5 || proceedings. 6 CONCLUSION 7 Based on the foregoing review of the relevant law and the administrative record, 8 Court DECLINES TO ADOPT the Report, GRANTS Plaintiff's motion for 9 ||summary judgment, DENIES Defendant’s motion for summary judgment, and 10 || REMANDS the case to the Commissioner of Social Security for further administrative 11 || proceedings. 12 IT IS SO ORDERED. 13 ||Dated: September 10, 2021 72 14 Hon. athe Cae 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 24 28 3:19-CV-275-GPC-WVG