1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRIAN G., Case No.: 18-cv-2541-BAS-AGS 12 Plaintiff, REPORT AND RECOMMENDATION ON SUMMARY JUDGMENT 13 v. MOTIONS 14 Andrew M. SAUL, Commissioner of Social Security, 15
16 Defendant.
18 The Social Security Administration ruled that claimant was not disabled from about 19 2014 to 2017. And it discounted a surgeon’s letter supporting disability, believing that the 20 surgeon didn’t treat claimant during the relevant time frame. But the SSA was wrong. The 21 surgeon’s care took place during the exact period at issue. Given the importance of that 22 treating doctor’s opinion, this case should be remanded to consider it. 23 BACKGROUND 24 Claimant Brian G. was adjudicated disabled starting in 2004 due to “advanced 25 degenerative disc disease of the lumbar spine” and “morbid obesity.” (AR 16; see also 26 AR 272.) After his 2007 gastric-bypass surgery, however, Brian “lost 250 pounds.” 27 (AR 36.) Because his back condition then improved, the SSA concluded that he was no 28 longer disabled as of May 2014. (AR 68.) 1 Brian disagreed, so an Administrative Law Judge heard his case. The ALJ 2 determined that Brian had indeed seen “medical improvement” and was not disabled from 3 May 1, 2014, through the date of the ALJ’s decision, September 29, 2017. (AR 22, 24; see 4 also AR 18.) The ALJ considered the opinions of four doctors with differing views on the 5 exertional level that Brian could tolerate, as summarized below: 6 Doctor Role Exertional Level AR 7 T. Sabourin, M.D. Orthopedic Consultative Examiner Light 21-22 R. Masters, M.D. State Agency Consultant Light 21-22 8 R. Jacobs, M.D. State Agency Consultant Medium 21 9 P. Kirz, M.D. Orthopedic Consultative Examiner Heavy (full range) 22 10 The ALJ afforded the “most weight” to the opinion of Dr. Jacobs, adopting his “medium 11 exertional level” assessment. (AR 21, 23.) Also, the ALJ noted that both orthopedic 12 consultative examiners observed “exaggeration of symptoms.” (AR 19, 285, 329.) 13 The ALJ’s decision never mentions orthopedic surgeon William Tontz, Jr., who 14 treated Brian for years and had a more pessimistic view of his prognosis. (See AR 8, 14- 15 25, 72, 255-56.) At the disability hearing, Brian testified that his “surgeon” said Brian 16 “couldn’t do any meaningful work,” that he would need future surgery, and “not to do 17 anything too strenuous or lifting,” or else his “spine could collapse.” (AR 44-45.) The 18 administrative record contains similar statements from Dr. Tontz or attributed to him. 19 (AR 255-56; see also AR 76, 86.) Yet none of this evidence appears in the ALJ’s ruling. 20 Brian zeroed in on this omission while seeking review before the SSA’s Appeals 21 Council. He submitted a new letter from Dr. Tontz, which concluded that Brian had 22 “severe” back problems causing “trouble with standing, sitting, twisting, stooping, and 23 lifting.” (AR 8.) According to Dr. Tontz, Brian required “spinal fusion” surgery, and his 24 “back injury” and “complex treatments” would render him “unable to work indefin[i]tely.” 25 (Id.) 26 Although the first line of Dr. Tontz’s letter states that Brian “has been under my care 27 since 2014” (and the letter was dated 2018) (AR 8), the Appeals Council discounted this 28 1 evidence, arguing that it did “not relate to the period at issue [May 1, 2014, to 2 September 29, 2017].” (AR 2.) For this reason alone, the Council rejected Dr. Tontz’s 3 letter, and the ALJ’s decision became final. (AR 1-2.) 4 DISCUSSION 5 The only relevant issue is whether the SSA adequately considered Dr. Tontz’s 6 opinion, which was belatedly submitted to the Appeals Council. 7 A. Late-Filed Evidence Before the Appeals Council 8 As a threshold matter, Dr. Tontz’s letter is properly before this Court. “[W]hen a 9 claimant submits evidence for the first time to the Appeals Council, which considers that 10 evidence in denying review of the ALJ’s decision, the new evidence is part of the 11 administrative record, which the district court must consider . . . .” Brewes v. Comm’r of 12 Soc. Sec. Admin., 682 F.3d 1157, 1159-60 (9th Cir. 2012). 13 B. Treating-Doctor Rule in Cessation-of-Benefits Cases 14 To revoke previously awarded benefits, the SSA must conclude that the recipient 15 has made “medical improvement” and can return to work. See Attmore v. Colvin, 827 F.3d 16 872, 873 (9th Cir. 2016). For that medical-improvement determination, the SSA must 17 correctly account for a treating physician’s opinion. See Trevizo v. Berryhill, 871 F.3d 664, 18 675 (9th Cir. 2017) (explaining treating-doctor rule); 20 C.F.R. § 404.1594(b)(6) 19 (incorporating same standards for cessation-of-benefits cases as original applications). 20 Under the relevant regulation,1 a treating doctor’s opinion is given “controlling 21 weight” so long as it “is well-supported by medically acceptable clinical and laboratory 22 diagnostic techniques and is not inconsistent with the other substantial evidence in the 23 claimant’s case record.” Trevizo, 871 F.3d at 675 (alterations omitted). Even if a treating 24 25
26 27 1 After Brian filed his continuing-benefits claim, the SSA substantially changed the way it treats medical opinions. Compare 20 C.F.R. § 404.1527 (claims filed before 28 1 physician’s opinion is contradicted by another doctor, the SSA can only reject it after 2 “providing specific and legitimate reasons that are supported by substantial evidence.” Id. 3 The only reason the Appeals Council gave for rejecting Dr. Tontz’s opinion was that 4 it did “not relate to the period at issue”—May 1, 2014, to September 29, 2017. (AR 2.) But 5 Dr. Tontz wrote that Brian “has been under my care since 2014” and “was last examined” 6 on October 5, 2017. (AR 8; see AR 34, 72, 255-56.) In other words, Dr. Tontz’s opinion 7 appears to be based on years of treatment within the relevant period. Yet, even if 8 Dr. Tontz’s opinion were based entirely on Brian’s last examination on October 5, 2017— 9 six days after the period ended—it would still “relate” to the period at issue. “Medical 10 evaluations made after the expiration of a claimant’s insured status are relevant to an 11 evaluation of the preexpiration condition.” Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 12 1228, 1232 (9th Cir. 2011); see also Smith v. Bowen, 849 F.2d 1222, 1224-25 (9th Cir. 13 1988) (holding that three doctors’ medical evaluations, occurring some three to nine years 14 after the expiration of the insured status, were “relevant to an evaluation of the 15 pre-expiration condition”). So the SSA’s sole reason for rejecting Dr. Tontz’s opinion was 16 wrong. 17 C. Harmless-Error Analysis 18 “Even when the ALJ commits legal error, we uphold the decision where that error is 19 harmless.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). 20 An error is harmless when it is “inconsequential to the ultimate nondisability 21 determination,” or when “the agency’s path may reasonably be discerned, even if the 22 agency explains its decision with less than ideal clarity.” Id. (alterations and citations 23 omitted).
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRIAN G., Case No.: 18-cv-2541-BAS-AGS 12 Plaintiff, REPORT AND RECOMMENDATION ON SUMMARY JUDGMENT 13 v. MOTIONS 14 Andrew M. SAUL, Commissioner of Social Security, 15
16 Defendant.
18 The Social Security Administration ruled that claimant was not disabled from about 19 2014 to 2017. And it discounted a surgeon’s letter supporting disability, believing that the 20 surgeon didn’t treat claimant during the relevant time frame. But the SSA was wrong. The 21 surgeon’s care took place during the exact period at issue. Given the importance of that 22 treating doctor’s opinion, this case should be remanded to consider it. 23 BACKGROUND 24 Claimant Brian G. was adjudicated disabled starting in 2004 due to “advanced 25 degenerative disc disease of the lumbar spine” and “morbid obesity.” (AR 16; see also 26 AR 272.) After his 2007 gastric-bypass surgery, however, Brian “lost 250 pounds.” 27 (AR 36.) Because his back condition then improved, the SSA concluded that he was no 28 longer disabled as of May 2014. (AR 68.) 1 Brian disagreed, so an Administrative Law Judge heard his case. The ALJ 2 determined that Brian had indeed seen “medical improvement” and was not disabled from 3 May 1, 2014, through the date of the ALJ’s decision, September 29, 2017. (AR 22, 24; see 4 also AR 18.) The ALJ considered the opinions of four doctors with differing views on the 5 exertional level that Brian could tolerate, as summarized below: 6 Doctor Role Exertional Level AR 7 T. Sabourin, M.D. Orthopedic Consultative Examiner Light 21-22 R. Masters, M.D. State Agency Consultant Light 21-22 8 R. Jacobs, M.D. State Agency Consultant Medium 21 9 P. Kirz, M.D. Orthopedic Consultative Examiner Heavy (full range) 22 10 The ALJ afforded the “most weight” to the opinion of Dr. Jacobs, adopting his “medium 11 exertional level” assessment. (AR 21, 23.) Also, the ALJ noted that both orthopedic 12 consultative examiners observed “exaggeration of symptoms.” (AR 19, 285, 329.) 13 The ALJ’s decision never mentions orthopedic surgeon William Tontz, Jr., who 14 treated Brian for years and had a more pessimistic view of his prognosis. (See AR 8, 14- 15 25, 72, 255-56.) At the disability hearing, Brian testified that his “surgeon” said Brian 16 “couldn’t do any meaningful work,” that he would need future surgery, and “not to do 17 anything too strenuous or lifting,” or else his “spine could collapse.” (AR 44-45.) The 18 administrative record contains similar statements from Dr. Tontz or attributed to him. 19 (AR 255-56; see also AR 76, 86.) Yet none of this evidence appears in the ALJ’s ruling. 20 Brian zeroed in on this omission while seeking review before the SSA’s Appeals 21 Council. He submitted a new letter from Dr. Tontz, which concluded that Brian had 22 “severe” back problems causing “trouble with standing, sitting, twisting, stooping, and 23 lifting.” (AR 8.) According to Dr. Tontz, Brian required “spinal fusion” surgery, and his 24 “back injury” and “complex treatments” would render him “unable to work indefin[i]tely.” 25 (Id.) 26 Although the first line of Dr. Tontz’s letter states that Brian “has been under my care 27 since 2014” (and the letter was dated 2018) (AR 8), the Appeals Council discounted this 28 1 evidence, arguing that it did “not relate to the period at issue [May 1, 2014, to 2 September 29, 2017].” (AR 2.) For this reason alone, the Council rejected Dr. Tontz’s 3 letter, and the ALJ’s decision became final. (AR 1-2.) 4 DISCUSSION 5 The only relevant issue is whether the SSA adequately considered Dr. Tontz’s 6 opinion, which was belatedly submitted to the Appeals Council. 7 A. Late-Filed Evidence Before the Appeals Council 8 As a threshold matter, Dr. Tontz’s letter is properly before this Court. “[W]hen a 9 claimant submits evidence for the first time to the Appeals Council, which considers that 10 evidence in denying review of the ALJ’s decision, the new evidence is part of the 11 administrative record, which the district court must consider . . . .” Brewes v. Comm’r of 12 Soc. Sec. Admin., 682 F.3d 1157, 1159-60 (9th Cir. 2012). 13 B. Treating-Doctor Rule in Cessation-of-Benefits Cases 14 To revoke previously awarded benefits, the SSA must conclude that the recipient 15 has made “medical improvement” and can return to work. See Attmore v. Colvin, 827 F.3d 16 872, 873 (9th Cir. 2016). For that medical-improvement determination, the SSA must 17 correctly account for a treating physician’s opinion. See Trevizo v. Berryhill, 871 F.3d 664, 18 675 (9th Cir. 2017) (explaining treating-doctor rule); 20 C.F.R. § 404.1594(b)(6) 19 (incorporating same standards for cessation-of-benefits cases as original applications). 20 Under the relevant regulation,1 a treating doctor’s opinion is given “controlling 21 weight” so long as it “is well-supported by medically acceptable clinical and laboratory 22 diagnostic techniques and is not inconsistent with the other substantial evidence in the 23 claimant’s case record.” Trevizo, 871 F.3d at 675 (alterations omitted). Even if a treating 24 25
26 27 1 After Brian filed his continuing-benefits claim, the SSA substantially changed the way it treats medical opinions. Compare 20 C.F.R. § 404.1527 (claims filed before 28 1 physician’s opinion is contradicted by another doctor, the SSA can only reject it after 2 “providing specific and legitimate reasons that are supported by substantial evidence.” Id. 3 The only reason the Appeals Council gave for rejecting Dr. Tontz’s opinion was that 4 it did “not relate to the period at issue”—May 1, 2014, to September 29, 2017. (AR 2.) But 5 Dr. Tontz wrote that Brian “has been under my care since 2014” and “was last examined” 6 on October 5, 2017. (AR 8; see AR 34, 72, 255-56.) In other words, Dr. Tontz’s opinion 7 appears to be based on years of treatment within the relevant period. Yet, even if 8 Dr. Tontz’s opinion were based entirely on Brian’s last examination on October 5, 2017— 9 six days after the period ended—it would still “relate” to the period at issue. “Medical 10 evaluations made after the expiration of a claimant’s insured status are relevant to an 11 evaluation of the preexpiration condition.” Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 12 1228, 1232 (9th Cir. 2011); see also Smith v. Bowen, 849 F.2d 1222, 1224-25 (9th Cir. 13 1988) (holding that three doctors’ medical evaluations, occurring some three to nine years 14 after the expiration of the insured status, were “relevant to an evaluation of the 15 pre-expiration condition”). So the SSA’s sole reason for rejecting Dr. Tontz’s opinion was 16 wrong. 17 C. Harmless-Error Analysis 18 “Even when the ALJ commits legal error, we uphold the decision where that error is 19 harmless.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). 20 An error is harmless when it is “inconsequential to the ultimate nondisability 21 determination,” or when “the agency’s path may reasonably be discerned, even if the 22 agency explains its decision with less than ideal clarity.” Id. (alterations and citations 23 omitted). The Court must “look at the record as a whole to determine whether the error 24 alters the outcome of the case.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). 25 Despite a range of medical opinions on the seriousness of Brian’s back issues (see 26 AR 21-22), the ALJ decided that Brian was fit for “medium” work—lifting up to 27 50 pounds—and that he could “frequently . . . stoop.” (AR 18); see 20 CFR § 404.1567(c). 28 This brings into sharp relief the importance of Dr. Tontz’s opinion that Brian “has trouble 1 with . . . stooping[] and lifting.” (AR 8.) Also, Dr. Tontz noted Brian’s “trouble with 2 standing, sitting, [and] twisting,” whereas the ALJ set no limitations whatsoever on these 3 activities. (AR 8, 18.) Of course, the ALJ relied on the mistaken assumption that Brian was 4 “referred for only conservative, nonsurgical treatment.” (AR 19.) But Dr. Tontz’s letter 5 confirmed the opposite: Brian “will require a complex anterior lumbar spinal fusion,” and 6 he “was referred to a vascular surgeon in October of 2017[] for medical clearance” for that 7 surgery. (AR 8.) 8 Given these stark facts and the traditional deference paid to treating physician’s 9 opinions, the error here cannot be deemed harmless. See, e.g., Taylor, 659 F.3d at 1232 10 (“[I]f the Appeals Council rejected [the treating physician’s] opinion because it 11 [incorrectly] believed it to concern a time after Taylor’s insurance expired, its rejection 12 was improper” and required remand.); Edgecomb v. Berryhill, 741 F. App’x 390, 393 13 (9th Cir. 2018) (remanding to the ALJ because “the Appeals Council failed to consider” a 14 treating doctor’s new letter “on the mistaken belief that it did not relate to the period before 15 the date of the ALJ’s decision”). 16 One final matter bears on the harmless-error analysis: As of January 17, 2017, the 17 Appeals Council will only consider new evidence if the claimant “show[s] good cause for 18 not informing [the SSA] about or submitting the evidence” sooner. 20 C.F.R. § 404.970(b). 19 This new regulation applied when Brian submitted Dr. Tontz’s letter to the Appeals 20 Council. (See AR 2.) But this Court need not wrestle with whether Brian had “good cause” 21 for the late submission, because the Appeals Council never argued otherwise. “We review 22 only the reasons provided by the [SSA] in the disability determination and may not affirm 23 the [SSA] on a ground upon which [it] did not rely.” Revels v. Berryhill, 874 F.3d 648, 654 24 (9th Cir. 2017). The Council’s sole rationale for rejecting Dr. Tontz’s opinion was that it 25 did “not relate to the period at issue.” (AR 2.) That reason was faulty; no other ones matter. 26 D. Remand Type 27 When the Appeals Council erroneously rejects new treating-physician evidence, a 28 “remand to the ALJ for further consideration is in order,” rather than a remand for award 1 benefits. Taylor, 659 F.3d at 1235; see also Harman v. Apfel, 211 F.3d 1172, 1180 2 || (9th Cir. 2000) (same). This case cries out for further fact-finding, as it appears the SSA 3 ||never received Dr. Tontz’s full medical records. A consultant who reviewed Brian’s file 4 ||noted that Dr. Tontz was sent a “source letter.” (AR 340.) But, unlike other doctors whose 5 ||documents are missing, the administrative record does not include a medical-records- 6 request letter to Dr. Tontz. (See AR 381-83, 385-87.) 7 CONCLUSION 8 The Court recommends that Brian’s summary judgment motion (ECF No. □□□□ be 9 || GRANTED, defendant’s cross-motion for summary judgment (ECF No. 24) be DENIED, 10 || and the case be REMANDED for further proceedings and factual development. The parties 11 |} must file any objections to this report by May 15, 2020. See 28 U.S.C. § 636(b)(1). A party 12 respond to any objection within 14 days of receiving it. Fed. R. Civ. P. 72(b)(2). 13 || Dated: May 1, 2020 14 A-—_ 15 Hon. Andrew G. Schopler United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26
28 ? The Court interprets Brian’s brief (ECF No. 22) as a summary judgment motion.