Chapman v. Commissioner of Social Security

• Court: District Court, S.D. California
• Decided: September 28, 2024
• Docket: 3:23-cv-01588
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 TERESA C.,1 Case No.: 23-cv-1588-DEB 11 Plaintiff, ORDER GRANTING PLAINTIFF’S 12 v. MOTION FOR SUMMARY 13 COMMISSIONER OF SOCIAL JUDGMENT AND DENYING SECURITY, DEFENDANT’S CROSS-MOTION 14 FOR SUMMARY JUDGMENT 15 Defendant. [DKT. NOS. 12, 14] 16 17

18 I. INTRODUCTION 19 Plaintiff Teresa C. seeks judicial review of the Commissioner of Social Security’s 20 denial of her application for disability benefits. Dkt. No. 1. The parties filed cross-motions 21 for Summary Judgment, and Plaintiff filed a reply. Dkt. Nos. 12, 14, and 15. 22 23 24

25 1 In the interest of privacy, this Order uses only the first name and the initial of the 26 last name of the non-governmental party in this case. 27 1 For the reasons discussed below, the Court GRANTS Plaintiff’s Motion for 2 Summary Judgment (Dkt. No. 12) and DENIES Defendant’s Cross-Motion for Summary 3 Judgment (Dkt. No. 14). 4 II. PROCEDURAL BACKGROUND 5 Plaintiff applied for disability insurance benefits and supplemental security income 6 alleging disability beginning February 18, 2020. AR 16.2 The Social Security 7 Administration denied Plaintiff’s application initially and upon reconsideration. Id. 8 Plaintiff requested and received an Administrative Law Judge (“ALJ”) hearing, after which 9 the ALJ issued a written decision finding Plaintiff not disabled. AR 16–33. The Appeals 10 Council denied Plaintiff’s request for review (AR 1–4), and this case followed. 11 III. SUMMARY OF ALJ’S DECISION 12 The ALJ followed the five-step sequential evaluation process. See 20 C.F.R. 13 §§ 404.1520, 416.920(a). 14 At step one, the ALJ found Plaintiff had “not engaged in substantial gainful activity 15 since February 18, 2020, the alleged onset date.” AR 19. 16 At step two, the ALJ found Plaintiff had the following medically determinable 17 severe impairments: “degenerative disc disease, obesity status post gastric bypass surgery, 18 calcific tendinitis primarily affecting the left shoulder, bilateral knee osteoarthritis, 19 fibromyalgia, and gastroparesis.” AR 19–21. 20 21 22

23 2 “AR” refers to the Administrative Record lodged on October 27, 2023. Dkt. No. 8. 24 The Court’s citations to the AR use the page references on the original document rather than the page numbers designated by the Court’s case management/electronic case filing 25 system (“CM/ECF”). For all other documents, the Court’s citations are to the page numbers 26 affixed by CM/ECF. 27 1 At step three, the ALJ found Plaintiff did not have an impairment or combination of 2 impairments that met or medically equaled those in the Commissioner’s Listing of 3 Impairments. AR 21–22. 4 The ALJ determined Plaintiff had the residual functioning capacity (“RFC”) to 5 perform sedentary work with the following exceptions: 6 [Plaintiff] can lift and carry up to 10 pounds frequently and 20 pounds occasionally. She is limited to 2 hours total standing and/or walking and up to 7 7 hours sitting during an 8-hour workday. She can occasionally reach 8 overhead and push or pull with the bilateral upper extremities. She can occasionally climb ramps or stairs but never ropes, scaffolds, or ladders higher 9 than a stepstool. She can occasionally balance, stoop, crouch, or kneel, but 10 never crawl. She must avoid work at unprotected heights or around dangerous moving machinery. She must avoid concentrated exposure to vibration. She 11 must avoid jobs that require more than occasional driving as a job duty. 12 13 AR 22. 14 At step four, the ALJ found Plaintiff can perform past relevant work. AR 31. The 15 ALJ, therefore, concluded Plaintiff was not disabled and did not proceed to step five. AR 16 33. 17 IV. STANDARD OF REVIEW 18 The Court reviews the ALJ’s decision to determine whether the ALJ applied the 19 proper legal standards and whether the decision is supported by substantial evidence. 20 42 U.S.C. § 405(g); Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). Substantial 21 evidence is “such relevant evidence as a reasonable mind might accept as adequate to 22 support a conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (quoting Consolidated 23 Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is “more than a mere scintilla, but less 24 than a preponderance . . . .” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) 25 (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). 26 27 1 The Court “must consider the entire record as a whole and may not affirm simply by 2 isolating a specific quantum of supporting evidence.” Hill v. Astrue, 698 F.3d 1153, 1159 3 (9th Cir. 2012) (internal quotation marks and citation omitted). The Court may not impose 4 its own reasoning to affirm the ALJ’s decision. See Garrison, 759 F.3d at 1010. “[I]f 5 evidence exists to support more than one rational interpretation, [the Court] must defer to 6 the [ALJ’s] decision.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th 7 Cir. 2004). Finally, the Court will not reverse if any error is harmless. Marsh v. Colvin, 792 8 F.3d 1170, 1173 (9th Cir. 2015) (“ALJ errors in social security cases are harmless if they 9 are inconsequential to the ultimate nondisability determination and that a reviewing court 10 cannot consider [an] error harmless unless it can confidently conclude that no reasonable 11 ALJ . . . could have reached a different disability determination.”) (internal citations and 12 quotations omitted). 13 V. DISCUSSION 14 Plaintiff argues the ALJ erred by: (1) improperly evaluating the medical opinion of 15 her treating pain management specialist, Dr. Jesus Lao; (2) failing to find her lymphedema 16 severe at step two; and (3) failing to find her assistive devices medically necessary at step 17 three. Dkt. No. 12 at 6–15. Because the Court finds error in the ALJ’s evaluation of Dr. 18 Lao’s opinion, it does not reach the other issues. 19 A. The ALJ Errored In The Evaluation of Dr. Lao’s Opinion that Plaintiff Will Miss More than Four Days of Work Per Month 20 Plaintiff argues the ALJ erred in finding Dr. Lao’s opinion unpersuasive without 21 providing sufficient explanations of supportability and consistency. Dkt. No. 12 at 13–15. 22 The Court agrees.3 23 24 3 The Court instructs the SSA on remand to carefully consider and explain the 25 severity of Plaintiff’s lymphedema at step two and the necessity of Plaintiff’s assistive 26 devices at step three. 27 1 The ALJ must evaluate the persuasiveness of a medical opinion, including its 2 supportability and consistency. See 20 C.F.R. § 404.1520c(b)(2) (“[W]e will explain how 3 we considered the supportability and consistency factors for a medical source’s medical 4 opinions or prior administrative medical findings in your determination or decision.”); 5 Woods v. Kijakazi, 32 F.4th 785, 791 (9th Cir. 2022) (“The agency must ‘articulate . . . how 6 persuasive’ it finds ‘all of the medical opinions’ from each doctor or other source, . . . and 7 ‘explain how [it] considered the supportability and consistency factors’ in reaching these 8 findings.”) (internal citations omitted). Supportability is “the extent to which a medical 9 source supports the medical opinion by explaining the ‘relevant . . . objective medical 10 evidence.’” Woods, 32 F.4th at 791–92 (quoting 20 C.F.R. § 404.1520c(c)(1)). Consistency 11 “means the extent to which a medical opinion is ‘consistent . . . with the evidence from 12 other medical sources and nonmedical sources in the claim.’” Id. at 792 (quoting 20 C.F.R. 13 § 404.1520c(c)(2)). 14 The ALJ’s supportability and consistency conclusions must be “supported by 15 substantial evidence.” Id. at 792 (“Even under the new regulations, an ALJ cannot reject 16 an examining or treating doctor’s opinion as unsupported or inconsistent without providing 17 an explanation supported by substantial evidence.”). An ALJ may not “cherry-pick” 18 medical evidence to discount a medical opinion. Ghanim v. Colvin, 763 F.3d 1154, 1164 19 (9th Cir. 2014) (“[T]he ALJ improperly cherry-picked some of [the doctor’s] 20 characterizations of [claimant’s] rapport and demeanor instead of considering these factors 21 in the context of [the doctor’s] diagnoses and observations of impairment.”); see also 22 Reddick v. Chater, 157 F.3d 715, 722–23 (9th Cir. 1998) (“[T]he ALJ developed his 23 evidentiary basis by not fully accounting for the context of materials or all parts of the 24 testimony and reports. His paraphrasing of record material is not entirely accurate 25 regarding the content or tone of the record.”). 26 27 1 Dr. Lao treated Plaintiff eighteen times from January 6, 2020 to December 21, 2021. 2 AR 470–92, 710–54, and 921–78. Based on those treatments, Dr. Lao completed an RFC 3 questionnaire opining Plaintiff cannot sit more than two hours in an eight-hour workday, 4 requires an assistive device, cannot lift or carry any weight, and likely will miss more than 5 four days of work each month. AR 1056–59. 6 The ALJ’s decision found the latter opinion (i.e., Plaintiff likely will miss work more 7 than four days per month) unpersuasive because it “is inconsistent with the lack of frequent 8 emergency room visits or hospitalizations during the relevant period.” AR 31.4 The 9 decision, however, neither explained why the lack of emergency room visits and 10 hospitalizations establishes Plaintiff will not miss work, nor considered the possibility that 11 Plaintiff might have excessive absences due to conditions not requiring emergency care or 12 hospitalization. Walker v. Comm’r of Soc. Sec., No. 2:22-cv-1871-EJY, 2024 WL 64784, 13 at *6 (D. Nev. Jan. 4, 2024) (reversing and remanding because “[t]he ALJ . . . failed to 14 ‘build an accurate and logical bridge’ from the evidence to his conclusions”) (citing 15 Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020)). 16 The decision’s focus on the lack of emergency room visits and hospitalizations also 17 does not consider other evidence in the record. During the period of alleged disability, 18 Plaintiff had frequent and recurring post-onset visits to: (1) urgent care (five in 2020 (AR 19

20 4 The ALJ’s decision further stated, “Dr. Lao’s opinion is also inconsistent with the physical examinations throughout the treatment record [and] inconsistent with better 21 supported opinion evidence from Dr. Tran and the prior administrative medical findings at 22 reconsideration.” AR 31. It is unclear whether those purported inconsistencies bear on the likelihood of missed work, or if they are directed to other physical limitations the ALJ 23 rejected, such as “sitting for less than 2 hours during an 8-hour workday,” or not lifting and 24 carrying any weight. Id. To the extent the decision meant to address the absentee issue, it fails to explain how the physical examination findings are inconsistent with Plaintiff 25 missing work more than four days per month, and it misapprehends Dr. Tran’s opinion, 26 which is silent on the likelihood of missed work. 27 1 494–517, 1031–55)); (2) a pain management clinic (nine in 2020 (AR 473–92, 539–58, 2 710–54) and nine in 2021 (AR 921–78)); and (3) doctors’ offices and laboratories (at least 3 seventeen in 2020 (AR 686, 823–29, 831–36, 844–49, 872–78, 1031–55, 1064) and 4 fourteen in 2021 (AR 838–43, 850–71, 879–991, 1074, 1082–1111)). Viewed in the 5 context of the entire record, which contains documentation of frequent medical treatment 6 in places other than emergency rooms, the mere lack of emergency room visits and 7 hospitalizations is not substantial evidence supporting the conclusion that Plaintiff will 8 miss less than four days of work per month. The Court, therefore, finds the decision’s 9 analysis of Dr. Lao’s missed-work opinion is neither sufficiently explained nor supported 10 by substantial evidence. Reding v. Astrue, No. CIV S-09-3078 GGH, 2010 WL 4687747, 11 at *4 (E.D. Cal. Nov. 10, 2010) (“In analyzing the record for substantial evidence, it is 12 important to observe that few medical records as a whole point unerringly to one result. 13 However, it is not appropriate simply to pick isolated evidence which supports a conclusion 14 while ignoring the qualitative and quantitative evidence to the contrary.”). 15 B. The ALJ’s Error Regarding Dr. Lao’s Opinion Is Not Harmless 16 “[The Court] may not reverse an ALJ’s decision on account of an error that is 17 harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). An error is harmless if 18 it is “inconsequential to the ultimate nondisability determination” and if the Court “can 19 confidently conclude that no reasonable ALJ, when [not making the same error], could 20 have reached a different disability determination.” Stout v. Comm’r of Soc. Sec. Admin., 21 454 F.3d 1050, 1055–56 (9th Cir. 2006); see Widmark v. Barnhart, 454 F.3d 1063, 1069 22 n.4 (9th Cir. 2006) (rejecting medical opinion was not harmless error because it led to an 23 adverse disability finding). 24 The error is not harmless here because the ALJ’s conclusion that Plaintiff could 25 perform past relevant work assumed Plaintiff would not miss more than four days of work 26 per month. At the hearing, the Vocational Expert (“VE”) testified that Plaintiff could not 27 1 return to her past relevant work if she missed more than four days of work per month. AR 2 74 (“[I]f an individual is absent more than one day per month on a consistent basis, they 3 won’t be able to maintain employment, so, this would be work preclusive.”).5 The ALJ 4 then presented another hypothetical to clarify whether employment is precluded for an 5 individual who misses “just two days per month,” and again, the VE confirmed that is 6 “work preclusive.” Id. 7 Because Plaintiff’s ability to regularly attend work is material to the ultimate 8 disability determination, the failure to properly evaluate this issue is not harmless. See 9 Bunnell v. Barnhart, 336 F.3d 1112, 1115–16 (9th Cir. 2003) (remanding for further 10 administrative proceedings where “outstanding issues” remained to be resolved). 11 C. Remanding for Further Proceedings 12 Plaintiff seeks a remand for further proceedings. Dkt. No. 12 at 15. “The decision 13 whether to remand a case for additional evidence, or simply to award benefits[,] is within 14 the discretion of the court.” Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017) (quoting 15 Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). The Court agrees a remand is 16 appropriate here. See Bunnell, 336 F.3d at 1115–16 (remanding for further administrative 17 proceedings where several “outstanding issues” remained to be resolved, so it was “not 18 clear from the record that an [ALJ] would be required to find the claimant disabled and 19 award disability benefits”); see also Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981) 20 (“If additional proceedings can remedy defects in the original administrative proceedings, 21 a social security case should be remanded.”). 22

23 5 It appears the VE mistakenly referenced one day a month in response to the ALJ’s 24 question about one day a week (or four times a month). Because the ALJ followed up with a less restrictive question (i.e., missing two days per month rather than four), the Court 25 need not resolve this discrepancy, because it is clear that missing two days per month (as 26 the VE testified) or four days per month (as Dr. Lao opined) is work preclusive. 27 1 VI. CONCLUSION 2 For the foregoing reasons, the Court GRANTS Plaintiffs Motion for Summary 3 || Judgment and DENIES Defendant’s (Dkt. Nos. 12, 14). 4 IT IS THEREFORE ORDERED that the final decision of the Commissioner of 5 Social Security is VACATED, and the case is REMANDED to the Social Secretary 6 || Administration for further administrative proceedings consistent with this Order. 7 The Court DIRECTS the Clerk of Court to enter judgment accordingly and 8 || terminate the case. 9 IT IS SO ORDERED. 10 || Dated: September 28, 2024 — ‘ Daud Tero 12 Honorable Daniel E. Butcher United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23-cv-1588-DEB