O'Connor v. Kijakazi

• Court: District Court, N.D. California
• Decided: March 11, 2024
• Docket: 1:22-cv-07019
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 GILLIAN K. O.,1 Case No. 22-cv-07019-RMI

9 Plaintiff, ORDER RE: CROSS MOTIONS FOR 10 v. SUMMARY JUDGMENT

11 KILOLO KIJAKAZI, Re: Dkt. Nos. 15, 17 12 Defendant.

13 14 Plaintiff seeks judicial review of an administrative law judge (“ALJ”) decision denying her 15 application for disability insurance benefits under Title II of the Social Security Act. See Admin. 16 Rec. at 28-36.2 Plaintiff’s request for review of the ALJ’s unfavorable decision was denied by the 17 Appeals Council (see id. at 1-6), thus, the ALJ’s decision is the “final decision” of the 18 Commissioner of Social Security which this court may review. See 42 U.S.C. §§ 405(g), 19 1383(c)(3). Both Parties have consented to the jurisdiction of a magistrate judge (dkts. 7 & 8), and 20 both parties have moved for summary judgment (dkts. 15 & 17). For the reasons stated below, 21 Plaintiff’s motion for summary judgment is granted, and Defendant’s motion is denied. 22 LEGAL STANDARDS 23 The Commissioner’s findings “as to any fact, if supported by substantial evidence, shall be 24 conclusive.” 42 U.S.C. § 405(g). A district court has a limited scope of review and can only set 25

26 1 Pursuant to the recommendation of the Committee on Court Administration and Case Management of the 27 Judicial Conference of the United States, Plaintiff’s name is partially redacted. 1 aside a denial of benefits if it is not supported by substantial evidence or if it is based on legal 2 error. Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The phrase 3 “substantial evidence” appears throughout administrative law and directs courts in their review of 4 factual findings at the agency level. See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). 5 Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as 6 adequate to support a conclusion.” Id. at 1154 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 7 197, 229 (1938)); see also Sandgathe v. Chater, 108 F.3d 978, 979 (9th Cir. 1997). “In 8 determining whether the Commissioner’s findings are supported by substantial evidence,” a 9 district court must review the administrative record as a whole, considering “both the evidence 10 that supports and the evidence that detracts from the Commissioner’s conclusion.” Reddick v. 11 Chater, 157 F.3d 715, 720 (9th Cir. 1998). The Commissioner’s conclusion is upheld where 12 evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 13 679 (9th Cir. 2005). 14 SUMMARY OF THE RELEVANT EVIDENCE 15 Proceeding pro se, Plaintiff submits that she has suffered from a number of well 16 documented chronic health issues since the age of 19, and that it was error for the Commissioner 17 to deny her application for disability benefits. See Pl.’s Mot. (dkt. 15) at 1. Plaintiff’s summary 18 judgment motion is limited to three sentences, however, the court’s independent review of the 19 administrative record reveals that, among other impairments, Plaintiff has been afflicted with 20 chronic migraines, fibromyalgia, memory deficits and other cognitive manifestations of her 21 dyscognitive seizure disorder.3 22

23 3 The failure by a pro se Plaintiff, or even by an attorney, to articulate a particular error is not an acceptable 24 reason for a reviewing court to actively ignore it in this context. See Ariz. State Dep’t of Pub. Welfare v. Dep’t of Health, Educ. & Welfare, 449 F.2d 456, 472 (9th Cir. 1971); see also Moran v. Astrue, 569 F.3d 25 108, 112 (2nd Cir. 2009); Farley v. Colvin, 231 F. Supp. 3d 335, 339-41 (N.D. Cal. 2017) (collecting cases standing for the proposition that while a remand request is normally made by a party, there is no reason 26 why a district court may not remand, sua sponte, for an error that was not fully articulated); see also Cortes v. Berryhill, No. 3:16-cv-01910 (JCH), 2018 U.S. Dist. LEXIS 45256, 2018 WL 1392903, at *2-6 (D. 27 Conn. March 19, 2018) (court sua sponte raised issue of ALJ’s failure to develop the record and reversed and remanded because it “could not ignore” a gap in record of mental health treatment); Taylor-Tillotson v. 1 As early as November of 2017, Plaintiff’s neurologist diagnosed her with migraines and 2 noted that “she is currently having very frequent headaches.” AR at 525, 636. A few months later, 3 in early January of 2018, Plaintiff’s migraines continued to bother her. AR at 523-24, 591-92. Her 4 treating neurologist then observed, in July of 2018, that the condition still persisted and that 5 Plaintiff reported suffering from four to five true migraines per month. See id. at 587-90. A few 6 months later, in January of 2019, she was treated again for the continuing migraines, dyscognitive 7 spells, and memory loss. Id. at 519-22, 582-85. Specifically, it was noted that her focal seizures 8 with dyscognitive features may have been related to her migraines. Id. at 519. Her physicians also 9 noted that her migraines were attended with nausea and photophobia. Id. at 520. On this occasion, 10 Plaintiff also reported that her memory loss rendered it difficult for her to remember daily tasks as 11 well as remote events. Id. at 521. The migraine diagnosis was noted again in September of 2019, 12 as Plaintiff continued to suffer from migraine attacks. Id. at 672, 741. 13 In January of 2020, her neurologist noted that Plaintiff had been getting headaches more 14 often and that they were sometimes attended with a partial blurry spot in her vision. Id. at 730-31. 15 In April of 2020, she reported still suffering from daily migraines, at which point her doctors 16 characterized her migraines as chronic. See id. at 724-25. In July of 2020, the attacks became still 17 more frequent. See id. at 696, 706. In August of 2020, her doctors noted Plaintiff’s “worsening” 18 migraines (and attendant nausea). See id. at 680, 683. In December of 2020, records reflect that 19 Plaintiff still suffered from migraines that caused painful head pressure, photosensitivity, and 20 posterior neck stiffness. Id. at 651, 656. Additionally, Plaintiff had noted on her disability report 21 that her migraine medications (Imitrex and Nortriptyline) “won’t get rid of a full-blown migraine,” 22 and that notwithstanding these medications, her migraines were “still happening more frequently 23 and worsening.” Id. at 397. 24 At the hearing on September 10, 2021, the ALJ heard testimony from a non-examining 25 medical expert (Kweli Amusa, M.D.). See id. at 111-14. In pertinent part, the ALJ specifically 26 asked Dr. Amusa whether or not the medical records substantiated the fact that Plaintiff “also had 27 the headaches,” to which Dr. Amusa responded in the affirmative. Id. at 113-14. At a previous 1 Plaintiff’s medical records) that Plaintiff’s neurologist “appears to opine” that her headaches as 2 well as her “cognitive seizures” are “well-controlled on medication.” See id. at 71. Dr. Amusa 3 noted (at the June hearing) that Plaintiff’s migraines (1) did not meet the 12-month durational 4 requirement; and (2) that their frequency was not such as to medically equal listing level severity. 5 Id. at 73-74. There is no indication, at either hearing, that the ALJ inquired any further into the 6 frequency, or attendant limitations, caused by Plaintiff’s migraines by either asking Plaintiff any 7 questions about the migraines, or by otherwise seeking to develop the record in that regard. See 8 generally id. at 54-138. 9 The record also contains numerous indications that Plaintiff suffers from fibromyalgia. See 10 id. at 639, 641, 645, 651-52, 656, 658, 660, 664, 671-72, 681, 690-91, 696, 705-06, 710, 713, 726, 11 735-36 (Plaintiff’s treating neurologist, Jill Ann Goslinga, M.D., describing Plaintiff’s 12 “longstanding fibromyalgia”), 739, 741 (Dr. Goslinga noting that Plaintiff’s “fibromyalgia pain is 13 along her paraspinals bilaterally,” as well as “another pain that feels like it’s in her spine itself.”), 14 1087, and 1109. At both hearings, the ALJ asked Dr. Amusa to render an opinion about Plaintiff’s 15 fibromyalgia diagnosis, to which Dr. Amusa replied by stating that she did not see fibromyalgia 16 “well-supported in the evidence,” due to “a lack of documentation of the usual tender points or 17 [an] evaluation by a rheumatologist for that condition.” Id. at 72, 114. 18 The record also manifests issues with Plaintiff’s cognitive function and memory loss. See 19 id. at 651, 654, 656, 665, 668, 680, 683-84, 729, 731, 733, 735-36, 741-42, 744, and 1088. At the 20 hearing on June 1, 2021, Plaintiff answered the ALJ’s question about what items she might be able 21 to cook by explaining that her memory problems create problems in the kitchen, causing her to 22 burn herself frequently. Id. at 68. Then, while engaging Plaintiff regarding the physical elements 23 associated with the exertion level of various types of work, Plaintiff reiterated that her memory 24 deficits would be an issue with many types of work. Id. at 87. At the September 10, 2021, hearing, 25 while the ALJ was addressing Plaintiff with a discussion about a hypothetical person in her 26 position being able to perform as a fast-food worker or store clerk (i.e., positions in which Plaintiff 27 had been previously employed), Plaintiff stated, “I don’t think I heard anything about memory 1 term memory issues.” Id. at 135. When the ALJ asked Plaintiff to describe how her memory 2 deficits might affect her in the workplace, she stated that “[a] lot of times I’ll forget what I’m 3 doing while I’m doing [it], which tends to be an issue.” Id. at 136. Lastly, as to physical 4 limitations, in May 2021, Paul Lynn, M.D. completed a Thyroid Disorder Medical Assessment 5 Form and opined that the Plaintiff could sit, stand, and walk less than 2 hours in an 8-hour day; 6 occasionally lift less than 10 pounds; and that Plaintiff would be absent from work more than four 7 days a month. See id. at 1099-1102. 8 THE ALJ DECISION 9 The ALJ in this case engaged in the required five step sequential evaluation process. See 10 id. at 29-30. At step one, the ALJ determined Plaintiff had not performed substantial gainful 11 activity between her alleged onset date of June 30, 2017, and March 31, 2019, her date last 12 insured. AR at 30. At step two, the ALJ determined Plaintiff’s only severe impairment was 13 dyscognitive seizure disorder. Id. at 31. Mentioning an office visit in January of 2019, the ALJ 14 found that Plaintiff’s migraines were reported as being under control on that day, and thus, the 15 ALJ found the migraines to be non-severe. Id. As for Plaintiff’s fibromyalgia, the ALJ found it to 16 be non-severe because of Dr. Amusa’s testimony to the effect that the record did not evidence 17 clear support for this diagnosis due to a lack of discussion of trigger points and because Plaintiff 18 “has not been evaluated by a rheumatologist.” Id. The ALJ made no mention of Plaintiff’s 19 memory problems at Step Two. See id. at 31-32. At Step Three the ALJ found that none of 20 Plaintiff’s conditions met or equaled any listed impairment. Id. at 32. In formulating Plaintiff’s 21 residual functioning capacity (“RFC”), the ALJ determined that Plaintiff could perform light 22 work, with a number of physical limitations. Id. at 32-35. Given that the ALJ’s formulation of 23 Plaintiff’s RFC was wholly inconsistent with Dr. Lynn’s physical limitation opinions, the ALJ 24 justified rejecting Dr. Lynn’s opinions by stating that “Dr. Lynn does not state when the 25 limitations first applied . . . [as] he first treated the claimant on January 20, 2021, which is nine 26 months after the after the date last insured.” Id. at 35. At Step Four, the ALJ concluded that 27 Plaintiff was capable of performing her past relevant work as a barista, fast-food worker, and 1 DISCUSSION 2 The ALJ erred in this case by failing to develop the record regarding the evaluation of 3 Plaintiff’s migraines, her memory deficits and other cognitive problems associated with her 4 seizure disorder, her fibromyalgia, and the basis and temporal applicability for Dr. Lynn’s 5 opinions as to her physical limitations. Because the ALJ did not develop the record properly, the 6 ALJ’s determinations at Step Two and beyond are not supported by substantial evidence and 7 remand for further record development is necessary. 8 “The differences between courts and agencies are nowhere more pronounced than in Social 9 Security proceedings . . . [which] are inquisitorial rather than adversarial[,] [thus] [i]t is the ALJ’s 10 duty to investigate the facts and develop the arguments both for and against granting benefits.” 11 Sims v. Apfel, 530 U.S. 103, 110-111 (2000). It is therefore well established that “[i]n Social 12 Security cases the ALJ has a special duty to fully and fairly develop the record and to assure that 13 the claimant’s interests are considered.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). 14 “Given that a large portion of Social Security claimants either have no representation at all or are 15 represented by non-attorneys (see Sims, 530 U.S. at 112), courts have recognized that “[w]hen the 16 claimant is unrepresented . . . the ALJ must be especially diligent in exploring for all the relevant 17 facts.” See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). Indeed, “[t]he ALJ’s duty 18 to develop the record fully is also heightened where the claimant may be mentally ill and thus 19 unable to protect her own interests.” Id. 20 Initially the court will note that, in light of the voluminous evidence, supra, regarding 21 Plaintiff’s migraines (a condition from which she suffered for a number of years and which the 22 record reflects was not abated by treatment), it was error for the ALJ to rely on a single notation 23 from 2019 to conclude that the condition was “under control,” and therefore non-severe. The 24 severity evaluation at step two is a de minimis test intended to weed out the most minor of 25 impairments. See Bowen v. Yuckert, 482 U.S. 137, 153-154 (1987); Edlund v. Massanari, 253 F.3d 26 1152, 1158 (9th Cir. 2005) (stating that the step two inquiry is a de minimis screening device to 27 dispose of groundless claims) (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)); 1 only if the evidence establishes a slight abnormality that has only a minimal effect on an 2 individual’s ability to work. Smolen, 80 F.3d at 1290. Due to the ALJ’s Step Two error, it is 3 evident that Plaintiff’s migraines were not properly accounted for at step three, during the 4 formation of the RFC, or beyond. 5 Regarding the state of the record, the court finds that the record is insufficiently developed 6 as to the limitations occasioned by Plaintiff’s migraines, the particulars of her fibromyalgia 7 diagnosis, the details underlying her memory deficits and other cognitive issues related to her 8 dyscognitive seizure disorder, and the physical limitations opined by Paul Lynn. As to Plaintiff’s 9 memory deficits and potential cognitive limitations associated with her dyscognitive seizure 10 disorder, on remand, the ALJ is ORDERED to procure a consultative psychological examination 11 that would include the administration of the following diagnostic instruments: the Wechsler Adult 12 Intelligence Scale-IV (“WAIS-IV”), the Wechsler Memory Scale (“WMS-IV”), and the Trail 13 Making Test (“TMT”) Parts A and B.4 As to Plaintiff’s fibromyalgia, the ALJ and the testifying 14 medical expert concluded that the record was undeveloped because – despite ample evidence of a 15 sustained fibromyalgia diagnosis – the record lacked specific documentation about trigger points; 16 also, the ALJ specifically found that the evidence does not support a fibromyalgia diagnosis 17 because Plaintiff “has not been evaluated by a rheumatologist.” See AR at 31. Accordingly, on 18 remand, the ALJ is ORDERED to procure a consultative examination by a rheumatologist such as 19 to property develop the record in this regard. Lastly, the ALJ rejected Plaintiff’s physical 20 limitations, as opined in May of 2021 by Dr. Paul Lynn, because (1) the ALJ was unsure whether 21 or not those limitations also applied during the disability period (i.e., between June of 2017 and 22 March of 2019); and (2) the ALJ was unsure about the basis on which Dr. Lynn had opined those 23 limitations. See AR at 35. On remand, the ALJ is ORDERED to either subpoena Dr. Lynn to 24 appear at a hearing, or to otherwise communicate or correspond with Dr. Lynn, in order to develop 25

26 4 One way the ALJ may fulfill the obligation to develop the record is to order a consultative examination — 27 that is, “a physical or mental examination or test purchased for [the claimant] at [the Administration’s] request and expense.” 20 C.F.R. §§ 404.1519, 416.919; see also Reed v. Massanari, 270 F.3d 838, 841 (9th Cir. 1 a clear record with regard to the medical basis for Dr. Lynn’s opinions and their applicability to 2 || the disability period in question because “[a]mbiguous evidence, or the ALJ’s own finding that the 3 record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ’s duty to 4 || conduct an appropriate inquiry .. . [and] [t]he ALJ may discharge this duty in several ways, 5 including: subpoenaing the claimant’s physicians, submitting questions to the claimant’s 6 || physicians, continuing the hearing, or keeping the record open after the hearing to allow 7 supplementation of the record.” Tonapetyan, 242 F.3d at 1150. 8 As to Plaintiff's other claims (see Pl.’s Opp. (dkt. 18) at 1-4), on remand, the 9 Commissioner is ORDERED to consider the other issues raised in Plaintiff’s briefing and to 10 || modify any ensuing ALJ opinion such as to reflect the fact that all the issues raised in this case by 11 Plaintiff have been considered and addressed. See Cortes v. Colvin, No. 2:15-cv-02277-GJS, 2016 12 || US. Dist. LEXIS 40580, 2016 WL 1192638, at *4 (C.D. Cal. Mar. 28, 2016); Cochran v. 5 13 || Berryhill, No. 3:17-cv-00334-SB, 2017 U.S. Dist. LEXIS 212380, at *21 (D. Or. Dec. 28, 2017); 14 || Steven M. v. Saul, No. 19-cv-06991-RMI, 2021 U.S. Dist. LEXIS 52225, at *16-17 (N.D. Cal. 3 15 || Mar. 19, 2021). 16 CONCLUSION 3 17 For the reasons stated above — following the court’s independent review of the record in 18 || Plaintiff’s action for review under 42 U.S.C. § 405(g) — the court finds that the ALJ’s non- 19 disability decision in this case was not support by substantial evidence. Accordingly, Plaintiff's 20 Motion for Summary Judgment (dkt. 15) is GRANTED, Defendant’s Cross-Motion (dkt. 17) is 21 DENIED. The case is remanded for further proceedings consistent with the findings and 22 || conclusions set forth herein. 23 IT IS SO ORDERED. 24 || Dated: March 11, 2024 25 Mt Z 26 7 RQBERT M. ILLMAN United States Magistrate Judge 28