Conrad Jason Lee v. Nancy A. Berryhill

• Court: District Court, C.D. California
• Decided: October 18, 2019
• Docket: 5:18-cv-01645
• Status: Unknown

Opinion

1 2 3 4 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 | CONRADL.|! Case No. 5:18-cv-01645-MAA Plaintiff, 13 MEMORANDUM DECISION AND v. ORDER REVERSING DECISION OF 14 THE COMMISSIONER AND REMANDING FOR FURTHER 15 || ANDREW M. SAUL2 ADMINISTRATIVE PROCEEDINGS Commissioner of Social Security, Defendant. 17 18 On August 7, 2018, Plaintiff filed a Complaint seeking review of the 19 || Commissioner’s final decision denying his applications for Disability Insurance 20 || Benefits and Supplemental Security Income pursuant to Titles II and XVI of the 21 || Social Security Act. This matter is fully briefed and ready for decision. For the 22 || reasons discussed below, the Commissioner’s final decision is reversed, and this 23 || matter is remanded for further administrative proceedings. 24 }) —— ' Plaintiffs name is partially redacted in accordance with Federal Rule of Civil 25 || Procedure 9 2¢(c)(2}t ) and the recommendation of the Committee on Court 36 Administration and Case Management of the Judicial Conference of the United tates. 27 | 2 The Commissioner of Social Security is substituted as the Defendant pursuant to 38 Federal Rule of Civil Procedure 25(d).

1 ADMINISTRATIVE BACKGROUND 2 On February 27, 2013, Plaintiff filed applications Disability Insurance 3 || Benefits and Supplemental Security Income, alleging disability beginning on 4 || October 31, 2010. (Administrative Record [AR] 101, 110, 143.) Plaintiff alleged 5 || disability because of lower back problems. (AR 101, 110.) After Plaintiff's 6 || applications were denied initially (AR 101-18) and upon reconsideration (AR 121- 7 || 40), and after an administrative hearing (AR 48-75), an Administrative Law Judge 8 || (“ALJ”) denied the applications in a decision issued on December 28, 2015 (AR 9 || 146-155). 10 On February 28, 2017, the Appeals Council granted review, vacated the 11 || ALJ’s decision, and remanded the matter for further proceedings. (AR 163-65.) 12 || The Appeals Council directed the ALJ to obtain additional evidence concerning 13 || Plaintiff's physical and mental impairments, give further consideration to □□□□□□□□□□□ 14 || maximum residual functional capacity, and obtain supplemental evidence from a 15 || vocational expert. (AR 163-64.) On July 14, 2017, the ALJ held an administrative 16 || hearing. (AR 76-100.) Plaintiff appeared at the hearing with counsel, and the ALJ 17 || heard testimony from Plaintiff and a vocational expert. (AR 77.) 18 In a decision issued on September 19, 2017, the ALJ denied Plaintiff's 19 || applications after making the following findings pursuant to the Commissioner’s 20 || five-step evaluation. (AR 15-29.) Plaintiff had not engaged in substantial gainful 21 || activity since his alleged onset date of October 31, 2010. (AR 18.) He had severe 22 || impairments consisting of degenerative disc disease of the lumbar spine, status post 23 || fusion; spondylosis; post laminectomy syndrome; depressive disorder, not 24 || otherwise specified; and anxiety disorder, not otherwise specified. (AR 19.) He 25 || did not have an impairment or combination of impairments that met or medically 26 || equaled the requirements of one of the impairments from the Commissioner’s 27 || Listing of Impairments. Ud.) He had a residual functional capacity to perform “a 28 || less than light level of exertional work” with a limitation to simple, repetitive tasks

1 || in a non-public setting with only occasional and superficial interaction with 2 || coworkers, and no work in a team setting. (AR 21.) Based on this residual 3 || functional capacity, Plaintiff could not perform his past relevant work as a material 4 || handler or an athletic trainer. (AR 27.) However, Plaintiff could perform other 5 || work in the national economy, in the occupations of marker, routing clerk, and 6 || photocopy machine operator. (AR 28.) Accordingly, the ALJ concluded that 7 || Plaintiff was not disabled as defined by the Social Security Act. (/d.) 8 On June 15, 2018, the Appeals Council denied Plaintiffs request for review. 9 | (AR 1-6.) Thus, the ALJ’s decision became the final decision of the 10 |} Commissioner. 11 12 DISPUTED ISSUES 13 The parties raise three disputed issues: 14 1. “Whether the ALJ properly considered the treating physician’s 15 || opinion.” 16 2. “Whether the ALJ conducted a proper residual functional capacity 17 || assessment.” 18 3. “Whether the ALJ properly evaluated Plaintiffs testimony.” 19 (ECF No. 23, Parties’ Joint Stipulation [“Joint Stip.”] at 3.) 20 21 STANDARD OF REVIEW 22 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s final 23 || decision to determine whether the Commissioner’s findings are supported by 24 || substantial evidence and whether the proper legal standards were applied. See 25 || Treichler y. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 26 || 2014). Substantial evidence means “more than a mere scintilla” but less than a 27 || preponderance. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter 28 || v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). Substantial evidence is “such

1 || relevant evidence as a reasonable mind might accept as adequate to support a 2 || conclusion.” Richardson, 402 U.S. at 401. The Court must review the record as a 3 || whole, weighing both the evidence that supports and the evidence that detracts from 4 || the Commissioner’s conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is 5 || susceptible of more than one rational interpretation, the Commissioner’s 6 || interpretation must be upheld. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 7 || 2007). 8 9 DISCUSSION 10 For the reasons discussed below, reversal and remand for further 11 || administrative proceedings are warranted for Issue Two, based on the ALJ’s 12 || assessment of Plaintiffs residual functional capacity (“RFC”). Having found that 13 || remand is warranted, the Court declines to address Plaintiff's remaining arguments. 14 || See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the 15 || case to the ALJ for the reasons stated, we decline to reach [plaintiffs] alternative 16 || ground for remand.”); see also Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 17 || 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court need not address the other claims 18 || plaintiff raises, none of which would provide plaintiff with any further relief than 19 || granted, and all of which can be addressed on remand.”’). 20 21] A. Plaintiff’s Residual Functional Capacity (Issue Two). 22 1. Legal Standard. 23 A claimant’s residual functional capacity represents the most he can do 24 || despite his limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1); Reddick v. 25 || Chater, 157 F.3d 715, 724 (9th Cir. 1998); Smolen v. Chater, 80 F.3d 1273, 1291 26 || (1996). An ALJ’s RFC determination “must set out a// the limitations and 27 || restrictions of the particular claimant.” Valentine v. Commissioner Social Sec. 28 | Admin., 574 F.3d 685, 690 (9th Cir. 2009) (emphasis in original). An ALJ will

1 || assess a claimant’s residual functional capacity “based on all of the relevant 2 || medical and other evidence.” 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). A 3 || claimant “is ultimately responsible for providing the evidence to be used in making 4 || the RFC finding,” but an ALJ has “a special duty to fully and fairly develop the 5 || record and to assure that the claimant’s interests are considered.” Widmark v. 6 || Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006) (citations omitted). 7 Here, the ALJ determined that Plaintiff had an RFC for “a less than light 8 || level of exertional work” that required, in pertinent part, an ability to “stand and 9 || walk for 6 hours out of an 8-hour workday.” (AR 21.) Standing and walking for 10 || six hours in an eight-hour workday is consistent with light work and signifies “the 11 || primary difference between sedentary and most light jobs.” See Social Security 12 | Ruling (“SSR”) 83-10, 1983 WL 31251, at *5-*6. But a claimant’s ability to meet 13 || the requirements of light work may be eroded by his need to use a cane or other 14 || hand-held assistive device to walk. See SSR 96-9P, 1996 WL 3741835, at *7 15 || (discussing the erosion of the sedentary occupational base by a claimant’s use of a 16 || medically required hand-held assistive device); see also Staples v. Astrue, 329 F. 17 | App’x 189, 191 n.1 (10th Cir. 2009) (noting that although SSR 96-9P analyzes the 18 || erosion of the sedentary occupational base by a claimant’s need to use a hand-held 19 || assistance device, the ruling also applies to the erosion of the light occupational 20 || base on the same basis); Contreras v. Berryhill, 2017 WL 2798521, at *7 (C.D. Cal. 21 || June 28, 2017) (“Use of a cane may limit a claimant’s ability to perform light work, 22 || but it is less likely to preclude sedentary work.”). Thus, an ALJ must consider a 23 || claimant’s need to use a cane that is “medically required.” See SSR 96-9P, 1996 24 || WL 374185, at *7. “To find that a hand-held assistive device is medically required, 25 || there must be medical documentation establishing the need for a hand-held assistive 26 || device to aid in walking or standing, and describing the circumstances for which it 27 || is needed[.]” Jd. 28 | ///

1 2. Background. 2 In August 2010, while working for a carboard box shipper, Plaintiff injured 3 || his lower back while lifting boxes from the floor and throwing them into an 4 | overhead container. (AR 504, 552, 1019.) Since then, Plaintiffhas reported lower 5 || back pain that travels down to his left leg. (AR 552.) 6 In October 2010, an MRI showed that “[a]t the L5-S1 level, there is 7 || degeneration of the intervertebral disc with a broad base bulging of the annular disc 8 || margin up to3 mm.” (AR 525.) In June 2011, Plaintiff began one of multiple 9 || rounds of physical therapy. (AR 624-25.) In January 2012, an MRI showed 10 || “degenerative disk disease and facet joint disease at L5-S1,” “concentric bulging of 11 || the disks at L5-S1 with posterior annular tear,” and “eccentric posterior lateral disk 12 || protrusion measuring up to 7 mm on the left side with secondary compromise of the 13 | left LS neural foramen” that “may also affect the L5 root lateral to the level of the 14 || neural foramen.” (AR 617.) 15 In November 2012, Plaintiff reported that his physical therapists had 16 || “dispensed a cane” to him, but that it gave him blisters so he bought a replacement 17 || cane. (AR 652.) In February 2014, Plaintiff underwent a “laminectomy and 18 || hemilaminectomy of LS with partial facetectomy and foraminotomy excision of far 19 || lateral disk herniation with microdiscectomy.” (AR 891.) In June 2014, an MRI 20 || showed degenerative disc disease at L5-S1 status post left hemilaminectomy. (AR 21 || 879-80.) In December 2014, a nerve conduction study and EMG were abnormal, 22 || suggestive of L5S-S1 radiculopathy. (AR 853.) 23 Physicians and therapists repeatedly observed that Plaintiff used a cane to 24 || walk any distance. (See, e.g., AR 552, 560, 708, 775, 848, 851, 871, 882, 988, 993, 25 || 1007.) In May 2015, Dr. Georgis, a worker’s compensation physician, examined 26 |) Plaintiff and commented that “[i]t is unclear why he is using the cane, as he does 27 || not have significant motor weakness on examination.” (AR 1036.) However, Dr. 28 || Georgis qualified his conclusions because he had not had the chance to review most

1 || of Plaintiff's medical records: he had not seen any EMG studies (AR 1035, 1036) 2 || or indeed any medical records postdating October 2010 (AR 1021), including the 3 || records for Plaintiff's surgery in February 2014 (AR 1036). 4 In July 2015, Dr. Evans, a treating physician, stated that Plaintiff cannot 5 || work because he has “chronic low back pain with left lower leg radiculopathy with 6 || weakness due to lumbar stenosis, multilevel lumbar degenerative disc disease and 7 | facet joint disease.” (AR 1043.) In July 2016, Plaintiff underwent an anterior 8 || decompression and fusion at L5-S1. (AR 1067, 1075.) In May 2017, Plaintiff 9 || reported that he still felt lower back pain and that his knees gave out. (AR 1146.) 10 In the administrative decision, the ALJ rejected Plaintiff's alleged need to use 11 || a cane by agreeing with Dr. Georgis that “there is no objective evidence to support 12 || [Plaintiffs] requirement of a cane for ambulation.” (AR 26.) Thus, the ALJ’s RFC 13 || determination (AR 21) and the hypothetical question to the VE on which he relied 14 || (AR 93-94) did not incorporate the use of a cane.? 15 16 3. Analysis. 17 The ALJ found that a cane was not medically required by relying on the 18 || observation by Dr. Georgis that “[i]t is unclear why [Plaintiff] is using the cane, as 19 || he does not have significant motor weakness on examination.” (AR 1036.) 20 || However, Dr. Georgis’s opinion did not constitute reliable evidence to support that 21 || finding. 22 As noted, Dr. Georgis repeatedly expressed reservations because his review 23 || of the record was incomplete. (AR 1021, 1035, 1036.) Thus, he did not review the 24 || EMG study or the two most recent MRIs, which were abnormal (AR 617, 853, 879- 25 || 80), nor did he review the February 2014 surgical record (AR 891). And when he 26 □□□ though the hypothetical question on which the ALJ relied did not incorporate 27 | rejected) that added, among other things, the potas Meo ae oe nice MAR Sa. 98.) The VE responded that no work would be available because such a person 28 || would have too many limitations for an employer to tolerate. (AR 95.)

1 || examined Plaintiff in May 2015, Dr. Georgis could not have known that Plaintiff 2 || would have another back surgery in July 2016. (AR 1067, 1075.) Indeed, Dr. 3 || Georgis ultimately commented that “[t]he extent of the injury is in question in my 4 || mind” because he had not reviewed most of the relevant medical evidence. (AR 5 || 1036.) Because the ALJ ignored these reservations, he could not rely solely on Dr. 6 || Georgis’s opinion to find a cane was not medically required. See Tonapetyan v. 7 || Halter, 242 F.3d 1144, 1150-51 (9th Cir. 2001) (holding that, in relying on a 8 || medical expert’s equivocal opinion, an ALJ “was not free to ignore [the medical 9 || expert’s] equivocations and his concern over the lack of a complete record upon 10 || which to assess [the claimant’s] mental impairment”). 14 Moreover, the reliance on Dr. Georgis’s equivocal opinion was unreasonable 12 || in light of other evidence in the record suggesting that Plaintiff's use of a cane was 13 || medically required. Dr. Evans, the treating physician, stated that Plaintiff had 14 |] “chronic low back pain with left lower leg radiculopathy with weakness due to 15 || lumbar stenosis, multilevel lumbar degenerative disc disease and facet joint 16 || disease.” (AR 1043.) Records of Plaintiffs July 2016 surgery showed abnormality 17 || in the lower extremities and severe leg pain. (AR 1067, 1075.) Physicians and 18 || therapists repeatedly observed Plaintiff using a cane to walk. (See, e.g., AR 552, 19 || 560, 708, 775, 848, 851, 871, 882, 988, 993, 1007.) Objective medical findings 20 || included decreased pinprick and vibratory sensation in the left leg (AR 553), 21 || positive straight-leg tests on the left side (AR 648, 916), left lower extremity 22 || neuropathy (AR 656), and an antalgic gait (AR 988). Plaintiffs physical therapists 23 || reportedly “dispensed a cane” to him. (AR 652.) 24 Although this evidence about Plaintiff's use of a cane does not necessarily 25 || demonstrate that a hand-held assistive device was medically required, it is 26 || sufficiently extensive to raise questions about that issue such that further 27 || development of the record is required. See Widmark, 454 F.3d at 1069 (holding 28 || that an ALJ must seek additional evidence to fill a “perceived gap in the record”

1 || about a claimant’s RFC); Spaulding v. Astrue, 379 F. App’x 776, 781 (10th Cir. 2 || 2010) (holding that an ALJ should develop the record concerning the medical 3 |} necessity, if any, for use of a cane where the claimant had been given a cane by the 4 || Veterans Administration); Cano v. Colvin, 2015 WL 10945616, at *4-*5 (C.D. Cal. 5 || Jan. 26, 2015) (reversing based on an ALJ’s failure to develop the record 6 || concerning the claimant’s need to use a cane and collecting several cases reaching 7 || varying results as to whether the claimant’s use of a cane would erode the relevant 8 || occupational base); see also Thomas v. Colvin, 534 F. App’x 546, 550 (7th Cir. 9 || 2013) (remanding for further proceedings where an ALJ did not address extensive 10 || evidence that the claimant used a cane). Thus, reversal is warranted on this basis. 11 12 | B. Remand for further administrative proceedings. 13 Ninth Circuit case law “precludes a district court from remanding a case for 14 || an award of benefits unless certain prerequisites are met.” Dominguez v. Colvin, 15 || 808 F.3d 403, 407 (9th Cir. 2015) (citations omitted). “The district court must first 16 || determine that the ALJ made a legal error, such as failing to provide legally 17 || sufficient reasons for rejecting evidence.” Jd. “Ifthe court finds such an error, it 18 || must next review the record as a whole and determine whether it is fully developed, 19 || is free from conflicts and ambiguities, and all essential factual issues have been 20 || resolved.” Jd. (citation and internal quotation marks omitted). 21 Although the Court has found legal error in the assessment of whether 22 || Plaintiff's use of a cane is medically required, the record on the whole is not fully 23 || developed, and essential factual issues remain outstanding. Thus, the record raises 24 || factual conflicts about Plaintiffs level of functioning that “should be resolved 25 || through further proceedings on an open record before a proper disability 26 || determination can be made by the ALJ in the first instance.” See Brown-Hunter v. 27 || Colvin, 806 F.3d 487, 496 (9th Cir. 2015); see also Treichler, 775 F.3d at 1101 28 || (stating that remand for an award of benefits is inappropriate where “there is

1 || conflicting evidence, and not all essential factual issues have been resolved”) 2 || (citation omitted); Strauss v. Commissioner of the Social Sec. Admin., 635 F.3d 3 1135, 1138 (9th Cir. 2011) (same where the existing record does not clearly 4 || demonstrate that the claimant is disabled within the meaning of the Social Security 5 |} Act). 6 Therefore, based on its review and consideration of the entire record, the 7 || Court has concluded on balance that a remand for further administrative 8 || proceedings pursuant to sentence four of 42 U.S.C. § 405(g) is warranted here. It is 9 || not the Court’s intent to limit the scope of the remand. 10 11 ORDER 12 It is ordered that Judgment be entered reversing the decision of the 13 || Commissioner of Social Security and remanding this matter for further 14 || administrative proceedings. LS 16 || DATED: October |! , 2019 17 is MARIA lee 19 UNITE ATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 10