Lorena Ramos v. Andrew Saul

• Court: District Court, C.D. California
• Decided: March 1, 2021
• Docket: 5:20-cv-00731
• Status: Unknown

Opinion

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6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 L.R., Case No. 5:20-cv-00731-SHK 12 Plaintiff, 13 v. OPINION AND ORDER 14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16 17 18 Plaintiff L.R.1 (“Plaintiff”) seeks judicial review of the final decision of the 19 Commissioner of the Social Security Administration (“Commissioner,” 20 “Agency,” or “Defendant”) denying her application for disability insurance 21 benefits (“DIB”), under Title II of the Social Security Act (the “Act”). This 22 Court has jurisdiction under 42 U.S.C. § 405(g), and, pursuant to 28 U.S.C. 23 § 636(c), the parties have consented to the jurisdiction of the undersigned United 24 States Magistrate Judge. For the reasons stated below, the Commissioner’s 25 decision is REVERSED and this action is REMANDED for further proceedings 26 consistent with this Order. 27 1 I. BACKGROUND 2 Plaintiff filed an application for DIB on April 26, 2016, alleging disability 3 beginning on September 1, 2014. Transcript (“Tr.”) 10, 173-74.2 Following a 4 denial of benefits, Plaintiff requested a hearing before an administrative law judge 5 (“ALJ”) and, on January 18, 2019, ALJ Paul Isherwood determined that Plaintiff 6 was not disabled. Tr. 10-22. Plaintiff sought review of the ALJ’s decision with the 7 Appeals Council, however, review was denied on February 20, 2020. Tr. 1-6. This 8 appeal followed. 9 II. STANDARD OF REVIEW 10 The reviewing court shall affirm the Commissioner’s decision if the decision 11 is based on correct legal standards and the legal findings are supported by 12 substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm’r Soc. 13 Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence is “more 14 than a mere scintilla. It means such relevant evidence as a reasonable mind might 15 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 16 401 (1971) (citation and internal quotation marks omitted). In reviewing the 17 Commissioner’s alleged errors, this Court must weigh “both the evidence that 18 supports and detracts from the [Commissioner’s] conclusions.” Martinez v. 19 Heckler, 807 F.2d 771, 772 (9th Cir. 1986). 20 “‘When evidence reasonably supports either confirming or reversing the 21 ALJ’s decision, [the Court] may not substitute [its] judgment for that of the ALJ.’” 22 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Batson, 359 F.3d at 23 1196); see also Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (“If the 24 ALJ’s credibility finding is supported by substantial evidence in the record, [the 25 Court] may not engage in second-guessing.”) (citation omitted). A reviewing 26

27 2 A certified copy of the Administrative Record was filed on September 17, 2020. Electronic 1 court, however, “cannot affirm the decision of an agency on a ground that the 2 agency did not invoke in making its decision.” Stout v. Comm’r Soc. Sec. Admin., 3 454 F.3d 1050, 1054 (9th Cir. 2006) (citation omitted). Finally, a court may not 4 reverse an ALJ’s decision if the error is harmless. Burch v. Barnhart, 400 F.3d 676, 5 679 (9th Cir. 2005) (citation omitted). “[T]he burden of showing that an error is 6 harmful normally falls upon the party attacking the agency’s determination.” 7 Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 8 III. DISCUSSION 9 A. Establishing Disability Under The Act 10 To establish whether a claimant is disabled under the Act, it must be shown 11 that: 12 (a) the claimant suffers from a medically determinable physical or 13 mental impairment that can be expected to result in death or that has 14 lasted or can be expected to last for a continuous period of not less than 15 twelve months; and 16 (b) the impairment renders the claimant incapable of performing the 17 work that the claimant previously performed and incapable of 18 performing any other substantial gainful employment that exists in the 19 national economy. 20 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. 21 § 423(d)(2)(A)). “If a claimant meets both requirements, he or she is ‘disabled.’” 22 Id. 23 The ALJ employs a five-step sequential evaluation process to determine 24 whether a claimant is disabled within the meaning of the Act. Bowen v. Yuckert, 25 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a). Each step is potentially 26 dispositive and “if a claimant is found to be ‘disabled’ or ‘not-disabled’ at any step 27 in the sequence, there is no need to consider subsequent steps.” Tackett, 180 F.3d 1 one through four, and the Commissioner carries the burden of proof at step five. 2 Tackett, 180 F.3d at 1098. 3 The five steps are: 4 Step 1. Is the claimant presently working in a substantially gainful 5 activity [(“SGA”)]? If so, then the claimant is “not disabled” within 6 the meaning of the [] Act and is not entitled to [DIB]. If the claimant is 7 not working in a [SGA], then the claimant’s case cannot be resolved at 8 step one and the evaluation proceeds to step two. See 20 C.F.R. 9 § 404.1520(b). 10 Step 2. Is the claimant’s impairment severe? If not, then the 11 claimant is “not disabled” and is not entitled to [DIB]. If the claimant’s 12 impairment is severe, then the claimant’s case cannot be resolved at 13 step two and the evaluation proceeds to step three. See 20 C.F.R. 14 § 404.1520(c). 15 Step 3. Does the impairment “meet or equal” one of a list of 16 specific impairments described in the regulations? If so, the claimant is 17 “disabled” and therefore entitled to [DIB]. If the claimant’s 18 impairment neither meets nor equals one of the impairments listed in 19 the regulations, then the claimant’s case cannot be resolved at step 20 three and the evaluation proceeds to step four. See 20 C.F.R. 21 § 404.1520(d). 22 Step 4. Is the claimant able to do any work that he or she has 23 done in the past? If so, then the claimant is “not disabled” and is not 24 entitled to [DIB]. If the claimant cannot do any work he or she did in 25 the past, then the claimant’s case cannot be resolved at step four and 26 the evaluation proceeds to the fifth and final step. See 20 C.F.R. 27 § 404.1520(e). 1 Step 5. Is the claimant able to do any other work? If not, then 2 the claimant is “disabled” and therefore entitled to [DIB]. See 20 3 C.F.R. § 404.1520(f)(1). If the claimant is able to do other work, then 4 the Commissioner must establish that there are a significant number of 5 jobs in the national economy that claimant can do. There are two ways 6 for the Commissioner to meet the burden of showing that there is other 7 work in “significant numbers” in the national economy that claimant 8 can do: (1) by the testimony of a vocational expert [(“VE”)], or (2) by 9 reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, 10 subpt. P, app. 2. If the Commissioner meets this burden, the claimant 11 is “not disabled” and therefore not entitled to [DIB]. See 20 C.F.R. 12 §§ 404.1520(f), 404.1562. If the Commissioner cannot meet this 13 burden, then the claimant is “disabled” and therefore entitled to [DIB]. 14 See id. 15 Id. at 1098-99. 16 B. Summary Of ALJ’s Findings 17 The ALJ determined that “[Plaintiff] meets the insured status requirements 18 of the . . . Act through December 31, 2020.” Tr. 12. The ALJ then found at step 19 one, that “[Plaintiff] engaged in [SGA] during the following periods: September 1, 20 2014-December 31, 2015 (20 CFR 404.1520(b) and 404.1571 et seq.).” Id. The 21 ALJ found, “[h]owever, [that] there has been a continuous 12-month period(s) 22 during which [Plaintiff] did not engage in [SGA]. The remaining findings address 23 the period(s) Plaintiff did not engage in [SGA].” Tr. 13. 24 At step two, the ALJ found that “[Plaintiff] has the following severe 25 impairment: affective disorder (20 CFR 404.1520(c)).” Id. At step three, the ALJ 26 found that “[Plaintiff] does not have an impairment or combination of impairments 27 that meets or medically equals the severity of one of the listed impairments in 20 1 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 2 404.1526).” Tr. 14. 3 In preparation for step four, the ALJ found that Plaintiff has the residual 4 functional capacity (“RFC”) to: 5 perform a full range of work at all exertional levels but with the following 6 nonexertional limitations: [Plaintiff] is able to perform simple, routine 7 tasks. [Plaintiff] can use judgment limited to perform simple work 8 related decisions. [Plaintiff] is frequently able to interact with 9 supervisors and coworkers but only occasional interaction with the 10 general public. [Plaintiff] is able to make simple work-related decisions. 11 Tr. 15. The ALJ then found, at step four, that “[Plaintiff] is unable to perform any 12 past relevant work (20 CFR 404.1565).” Tr. 21. 13 In preparation for step five, the ALJ noted that “[Plaintiff] was born on 14 October 11, 1961 and was 52 years old, which is defined as an individual closely 15 approaching advanced age, on the alleged disability onset date (20 CFR 16 404.1563).” Id. The ALJ observed that “[Plaintiff] has at least a high school 17 education and is able to communicate in English (20 CFR 404.1464).” Id. The 18 ALJ then added that “[t]ransferability of job skills is not material to the 19 determination of disability because using the Medical-Vocational Rules as a 20 framework supports a finding that [Plaintiff] is ‘not disabled,’ whether or not 21 [Plaintiff] has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart 22 P, Appendix 2).” Id. 23 At step five, the ALJ found that “[c]onsidering [Plaintiff’s] age, education, 24 work experience, and [RFC], there are jobs that exist in significant numbers in the 25 national economy that [Plaintiff] can perform (20 CFR 404.1569 and 26 404.1569[(]a)).” Id. Specifically, the ALJ found that Plaintiff could perform the 27 “medium, unskilled” occupations of “Cleaner II,” as defined in the Dictionary of 1 687-010,” and Hospital Cleaner, DOT 323.687-010.” Tr. 22. The ALJ based his 2 decision that Plaintiff could perform the aforementioned occupations “on the 3 testimony of the [VE]” from the administrative hearing, after “determin[ing] that 4 the [VE’s] testimony [wa]s consistent with the information contained in the 5 [DOT].” Id. 6 After finding that “[Plaintiff] is capable of making a successful adjustment to 7 other work that exists in significant numbers in the national economy,” the ALJ 8 concluded that “[a] finding of not disabled is . . . appropriate under the framework 9 of section 204.00 in the Medical-Vocational Guidelines.” Id. (internal quotation 10 marks omitted). The ALJ, therefore, found that “[Plaintiff] has not been under a 11 disability, as defined in the . . . Act, from September 1, 2014, through [January 18, 12 2019], the date of th[e] decision (20 CFR 404.1520(g)).” Id. 13 C. Issues Presented 14 In this appeal, Plaintiff raises two issues, whether the ALJ: (1) “properly 15 evaluated [Plaintiff’s] [chronic obstructive pulmonary disease (“COPD”)] and 16 breathing limitations”; and (2) erred by rejecting Plaintiff’s symptom statements. 17 ECF No. 24, Joint Stip. at 4. 18 D. Court’s Consideration Of The First Issue 19 1. Parties’ Arguments 20 Plaintiff argues that “the ALJ’s failure to acknowledge the complexity and 21 severity of [her] COPD warrants reversal” because “[t]he ALJ’s decision lacks the 22 support of substantial evidence and [is] a result of legal error.” Id. at 13. Plaintiff 23 points the Court to an extensive list of medical evidence relating to her COPD that 24 the ALJ did not consider or discuss when the ALJ found that Plaintiff had no severe 25 physical limitations at step two. Id. at 5-13. The Court discusses some of this 26 evidence below in its analysis. 27 Defendant responds that “[t]he ALJ properly considered the limited 1 “the ALJ appropriately considered evidence regarding Plaintiff’s COPD, noting 2 that she had been diagnosed with COPD and asthma, which the record described as 3 mild and uncomplicated.” Id. (citations omitted). Defendant adds that “Plaintiff 4 is unable to demonstrate that the limited evidence of her breathing conditions, 5 which the ALJ indeed considered, caused the ALJ’s decision to be unsupported by 6 substantial evidence or based on legal error.” Id. at 15. Finally, Defendant argues 7 that “[s]ubstantial evidence supports the ALJ’s decision regarding Plaintiff’s 8 COPD and asthma, it is free from legal error and the Court should affirm.” Id. 9 2. ALJ’s Consideration Of Plaintiff’s COPD 10 At step two of the sequential evaluation process, the ALJ found, in pertinent 11 part, that Plaintiff’s asthma and COPD were “non-severe impairments.” Tr. 13. 12 With respect to Plaintiff’s COPD, the ALJ made no specific observations or 13 references to Plaintiff’s medical records when finding that Plaintiff’s COPD was a 14 non-severe impairment. See Tr. 10-22. 15 The ALJ, however, made some observations regarding another of Plaintiff’s 16 pulmonary limitations—Plaintiff’s asthma—that the Court includes here. 17 Specifically, with respect to Plaintiff’s pulmonary limitations, the ALJ noted, in 18 toto, that: 19 [Plaintiff] has been diagnosed with [COPD] and asthma. Her asthma 20 was described as mild and uncomplicated [citing Tr. 597]. At times, 21 [Plaintiff] reported to the emergency room for acute exacerbation of 22 asthma [citing Tr. 285]. She used an inhaler [citing Tr. 505]. Upon 23 examination, [Plaintiff] had no cough, dyspnea or hemoptysis [citing 24 Tr. 483, 489]. In addition, [Plaintiff] had normal breath sounds with no 25 rales, rhonchi, wheezes or rubs [citing Tr. 498, 592, 632]. She had 26 normal effort and breath sounds [citing Tr. 743]. Further, [Plaintiff] 27 was treated conservatively [citing Tr. 596]. Pulmonary function testing 1 only showed mild restriction [citing Tr. 761]. Moreover, in March 2018 2 she had a normal spirometry [citing Tr. 986]. 3 Tr. 13. 4 3. Step Two Legal Standard 5 An “impairment or combination of impairments” is “severe” if it 6 “significantly limits [a claimant’s] physical or mental ability to do basic work 7 activities.” 20 C.F.R. § 416.920(c).3 See also 20 C.F.R. §416.922(a) (“An 8 impairment or combination of impairments is not severe if it does not significantly 9 limit [a claimant’s] physical or mental ability to do basic work activities.”). “Basic 10 [physical] work activities” include: “[p]hysical functions such as walking, standing, 11 sitting, lifting, pushing, pulling, reaching, carrying, or handling;” and “[c]apacities 12 for seeing, hearing, and speaking[.]” 20 C.F.R. § 416.922(b). 13 “‘[T]he step-two inquiry is a de minimis screening device to dispose of 14 groundless claims’; at step two, an impairment ‘can be found not severe only if the 15 evidence establishes a slight abnormality that has no more than a minimal effect on 16 an individual’s ability to work.’” Venezia v. Berryhill, 765 Fed. App’x. 319, 320 17 (9th Cir. 2019) (unpublished mem.) (quoting Smolen v. Chater, 80 F.3d 1273, 1290 18 (9th Cir. 1996)). 19 4. RFC Determination Legal Standard 20 The RFC is the maximum a claimant can do despite her limitations. 20 21 C.F.R. § 404.1545. In determining the RFC, the ALJ must consider limitations 22 imposed by all of a claimant’s impairments, even those that are not severe, and 23 evaluate all of the relevant medical and other evidence, including the claimant’s 24 testimony. SSR 96-8p, available at 1996 WL 374184. The ALJ is responsible for 25 resolving conflicts in the medical testimony and translating the claimant’s 26 impairments into concrete functional limitations in the RFC. Stubbs-Danielson v. 27 1 Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Only limitations supported by 2 substantial evidence must be incorporated into the RFC and, by extension, the 3 dispositive hypothetical question posed to the Vocational Expert. Osenbrock v. 4 Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001). 5 5. ALJ’s Decision Is Not Supported By Substantial Evidence 6 Here, the ALJ erred at step two by failing to consider any evidence of 7 Plaintiff’s COPD when determining that Plaintiff had no severe physical 8 impairments. See Holohan v. Massanari, 246 F.3d 1195, 1207-08 (9th Cir. 2001) 9 (holding an ALJ cannot selectively rely on some entries in plaintiff’s records while 10 ignoring others). Moreover, when the ALJ considered some evidence relating to 11 another of Plaintiff’s pulmonary limitations, her asthma, he failed to consider or 12 discuss other evidence suggesting that Plaintiff’s pulmonary limitations were 13 greater than he found. 14 For example, when finding that Plaintiff’s asthma was not a severe 15 impairment at step two, the ALJ observed that “[a]t times, [Plaintiff] reported to 16 the emergency room for acute exacerbation of asthma [citing Tr. 285].” Tr. 13. A 17 review of the record cited by the ALJ at Tr. 285, however, reveals that in addition 18 to receiving a diagnosis of acute exacerbation of asthma, Plaintiff was also 19 diagnosed with acute exacerbation of COPD, acute respiratory failure, pulmonary 20 edema, and pneumonia, and that she was admitted to the ICU, sedated, placed on a 21 ventilator, and an endotracheal tube was administered. Tr. 282-85, 286-89. The 22 record further indicates that Plaintiff presented with “[p]atchy bilateral air space 23 opacities,” and “pink tinged secretions[,]” that “EMS placed [Plaintiff] on CPAP 24 in route to [the] hospital with minimal improvement[,]” that Plaintiff reportedly 25 “had cough and cold symptoms for the last 3-4 weeks” before reporting to the 26 emergency department, and that the day before going to the emergency 27 department, Plaintiff “became increasingly short of breath and . . . had increased 1 Critically, Plaintiff’s hospital records indicate that she was admitted for over 2 one month, from May 2, 2015, through at least June 4, 2015 after Plaintiff 3 “reported to the emergency room” as the ALJ observed. Tr. 20; see, e.g., Tr. 297- 4 408. Moreover, a close inspection of the over-one-hundred-pages of medical 5 records relating to Plaintiff’s more than one-month-long hospital admission reveals 6 that Plaintiff had multiple serious complications that stemmed from her pulmonary 7 issues. 8 For example, fifteen days after being admitted to the hospital, on May 17, 9 2015, Plaintiff “underwent a bronchoscopy and thick mucous plugs were 10 removed[,]” she reportedly “had some erythema of the bronchial mucosa[,]” and 11 she was “still intubated and sedated, and [she] failed a CPAP trial.” Tr. 290. 12 Records from the following day, on May 18, 2015, indicate that Plaintiff had 13 remained intubated since being admitted to the hospital sixteen days earlier, that 14 “multiple trials of extubation had been carried out, but [were] unsuccessful[,]” 15 that a “[t]racheostomy was requested” at that time, and that Plaintiff had 16 “[v]entilator dependence” because of “respiratory failure.” Tr. 292. Plaintiff 17 eventually developed bilateral pneumonia and sepsis, Tr. 293, and, on May 21, 18 2015, Plaintiff received a tracheostomy, Tr. 295-96. On May 24, 2015, Plaintiff was 19 noted to have “[r]espiratory failure now with tracheostomy” and her doctors noted 20 that her COPD was contributing to this failure. Tr. 374. 21 Plaintiff’s medical records contain several examples along with discussions 22 of her over-one-month-long hospitalization and include notations of: 23 • respiratory failure, sepsis, “bilateral wheezes[,]” and “[l]ungs-crackles”; 24 • “underlying [COPD] now with increasing bilateral pneumonia” and 25 “acute respiratory failure due to pneumonia and [COPD] exacerbation”; 26 • continued intubation, sedation, and placement on a ventilator; 27 • “IV antibiotics” to treat her sepsis and tracheal infections; and 1 • chest x-ray findings with “no improvement[,]” “probable worsening in 2 bilateral acinar patter[,]” and “bilateral infiltrates.” 3 See, e.g., Tr. 297-408. 4 The ALJ, however, failed to consider or discuss any of this evidence and, 5 instead, observed only one page in this record relating to Plaintiff’s lengthy hospital 6 stay for the proposition that “[a]t times, [Plaintiff] reported to the emergency room 7 for acute exacerbation of asthma [citing Tr. 285].” Tr. 13. 8 Accordingly, because the ALJ failed to consider or discuss any of the 9 evidence relating to Plaintiff’s COPD related impairments when finding that 10 Plaintiff had no physical limitations whatsoever, the Court finds that the ALJ’s step 11 two finding is not supported by substantial evidence in the record. 12 Moreover, the ALJ’s failure to consider evidence of Plaintiff’s COPD 13 undercuts the ALJ’s RFC finding because the relevant medical evidence the ALJ 14 ignored suggests that Plaintiff had pulmonary limitations that would affect her 15 ability to perform SGA. See SSR 96-8p. Consequently, the ALJ’s step five finding 16 was also unsupported by substantial evidence in the record because the 17 hypothetical questions posed to the VE at the hearing—the answers of which the 18 ALJ based his step five finding on—were based on the ALJ’s unsupported RFC 19 assessment. See Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001) (“An ALJ 20 must propound a hypothetical to a VE that is based on medical assumptions 21 supported by substantial evidence in the record that reflects all the claimant’s 22 limitations.”). 23 The Court, however, cannot determine on the record before it whether 24 Plaintiff is indeed disabled as a result of her COPD. As such, remand for further 25 proceedings is appropriate here so that the ALJ may consider and discuss: 26 • the extensive medical evidence relating to Plaintiff’s COPD and 27 pulmonary limitations; 1 e whether Plaintiff’s COPD warrants additional limitations in Plaintiff’s 2 RFC assessment; and 3 e whether Plaintiff can perform SGA at step five. 4 Because the Court remands as to the aforementioned issue, it does not 5 | address Plaintiff’s remaining assignment of error. 6 IV. CONCLUSION 7 Because the Commissioner’s decision is not supported by substantial 8 | evidence, IT IS HEREBY ORDERED that the Commissioner’s decision is 9 | REVERSED and this case is REMANDED for further administrative proceedings 10 | under sentence four of 42 U.S.C. § 405(g). See Garrison v. Colvin, 759 F.3d 995, 11 | 1009 (9th Cir. 2014) (holding that under sentence four of 42 U.S.C. § 405(g), 12 | “[t]he court shall have power to enter .. . a judgment affirming, modifying, or 13 | reversing the decision of the Commissioner . . . , with or without remanding the 14 | cause for a rehearing.’’) (citation and internal quotation marks omitted). 15 16 IT IS SO ORDERED. 17 | DATED: 03/01/2021 Nts ee ae 19 HONORABLE SHASHI H. KEWALRAMANI 20 United States Magistrate Judge 21 22 23 24 25 26 27 28