Sherry Lynn Rivera v. Martin O'Malley

Opinion

Case 2:21-cv-05672-JC Document 22 Filed 08/17/22 Page 1 of 11 Page ID #:805

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SHERRY L. R.,1 Case No. 2:21-cv-05672-JC

Plaintiff, MEMORANDUM OPINION AND v. ORDER OF REMAND KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant. I. SUMMARY On July 13, 2021, plaintiff filed a Complaint seeking review of the Commissioner of Social Security’s denial of plaintiff’s application for benefits. The parties have consented to proceed before the undersigned United States Magistrate Judge. This matter is before the Court on the parties’ cross motions for summary judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”) 1Plaintiff’s name is partially redacted to protect plaintiff’s privacy in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 Case 2:21-cv-05672-JC Document 22 Filed 08/17/22 Page 2 of 11 Page ID #:806

(collectively “Motions”). The Court has taken the Motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; July 14, 2021 Case Management Order, ¶ 5. Based on the record as a whole and the applicable law, the decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Memorandum Opinion and Order of Remand. Substantial evidence does not support the Administrative Law Judge’s (“ALJ’s”) residual functional capacity assessment. On or about May 9, 2018, plaintiff protectively filed an application for Disability Insurance Benefits, alleging disability beginning on April 4, 2018, due to high blood pressure, diabetes, foot neuropathy, gout, spinal problems, sleep apnea, restless leg syndrome, and ovarian cysts. (Administrative Record (“AR”) 15, 164-70, 192-93). The ALJ subsequently examined the medical record and heard testimony from plaintiff (who was represented by counsel) and a vocational expert. (AR 30-58). On January 7, 2021, the ALJ determined that plaintiff had not been disabled through the date of the decision. (AR 15-25). Specifically, the ALJ found: (1) plaintiff suffered from the following severe impairments: lumbar spine degenerative changes with stenosis, cervical spine degenerative changes, diabetes mellitus, and obesity (AR 18-19); (2) plaintiff’s impairments, considered individually or in combination, did not meet or medically equal a listed impairment (AR 19); (3) plaintiff retained the residual functional capacity to perform sedentary work (20 C.F.R. §§ 404.1567(a)), with additional limitations2 (AR 20-23); 2The ALJ determined that plaintiff would be limited to: (1) jobs allowing changing position every 30 minutes for one to two minutes in the immediate vicinity of the work station; (continued...) 2 Case 2:21-cv-05672-JC Document 22 Filed 08/17/22 Page 3 of 11 Page ID #:807

(4) plaintiff was unable to perform her past relevant work (AR 23-24); and (5) plaintiff could perform other work existing in significant numbers in the national economy and therefore was not disabled (AR 24-25 (purportedly adopting vocational expert testimony at AR 54-56)). On June 7, 2021, the Appeals Council denied plaintiff’s application for review. (AR 1-3). A. Administrative Evaluation of Disability Claims To qualify for disability benefits, a claimant must show that she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted), superseded by regulation on other grounds as stated in Sisk v. Saul, 820 Fed. App’x 604, 606 (9th Cir. 2020); 20 C.F.R. §§ 404.1505(a), 416.905(a). To be considered disabled, a claimant must have an impairment of such severity that she is incapable of performing work the claimant previously performed (“past relevant work”) as well as any other “work which exists in the national economy.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)). To assess whether a claimant is disabled, an ALJ is required to use the five- step sequential evaluation process set forth in Social Security regulations. See Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (describing five-step sequential evaluation process) (citing 20 C.F.R. §§ 404.1520, 416.920). The claimant has the burden of proof at steps one through 2(...continued) (2) occasionally climbing stairs, balancing, stooping, kneeling, and crouching, but no crawling or climbing ladders, ropes, or scaffolds; and (3) no exposure to vibration. (AR 20). 3 Case 2:21-cv-05672-JC Document 22 Filed 08/17/22 Page 4 of 11 Page ID #:808

four – i.e., determination of whether the claimant was engaging in substantial gainful activity (step 1), has a sufficiently severe impairment (step 2), has an impairment or combination of impairments that meets or medically equals one of the conditions listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”) (step 3), and retains the residual functional capacity to perform past relevant work (step 4). Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The Commissioner has the burden of proof at step five – i.e., establishing that the claimant could perform other work in the national economy. Id. B. Federal Court Review of Social Security Disability Decisions A federal court may set aside a denial of benefits only when the Commissioner’s “final decision” was “based on legal error or not supported by substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The standard of review in disability cases is “highly deferential.” Rounds v. Commissioner of Social Security Administration, 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation marks omitted). Thus, an ALJ’s decision must be upheld if the evidence could reasonably support either affirming or reversing the decision. Trevizo, 871 F.3d at 674-75 (citations omitted). Even when an ALJ’s decision contains error, it must be affirmed if the error was harmless. See Treichler v. Commissioner of Social Security Administration, 775 F.3d 1090, 1099 (9th Cir. 2014) (ALJ error harmless if (1) inconsequential to the ultimate nondisability determination; or (2) ALJ’s path may reasonably be discerned despite the error) (citation and quotation marks omitted). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining “substantial evidence” as “more than a mere scintilla, but less than a preponderance”) (citation and quotation marks omitted). When determining whether substantial evidence supports an ALJ’s finding, a court “must consider the 4 Case 2:21-cv-05672-JC Document 22 Filed 08/17/22 Page 5 of 11 Page ID #:809

entire record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner’s conclusion[.]” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted). Federal courts review only the reasoning the ALJ provided, and may not affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.” Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099). A reviewing court may not conclude that an error was harmless based on independent findings gleaned from the administrative record. Brown-Hunter, 806 F.3d at 492 (citations omitted). When a reviewing court cannot confidently conclude that an error was harmless, a remand for additional investigation or explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (citations omitted). Plaintiff takes issue with, among other things, the ALJ’s residual functional capacity determination and resultant step five finding. (Plaintiff’s Motion at 2-9). For the reasons stated below, the Court finds that substantial evidence does not support the ALJ’s residual functional capacity assessment. Since the Court cannot find that such error was harmless, a remand is warranted. A. Summary of the Relevant Medical Record The record reflects treatment for, inter alia: (1) cervical, thoracic, and lumbar spine pain radiating to the legs with medication including Norco, some physical therapy, and some emergency room visits for immediate pain relief , and some facet block injections (AR 249-365, 568-72, 576-611); (2) gout with medication (AR 690-97); and (3) diabetes with medication (AR 709-13). /// 5 Case 2:21-cv-05672-JC Document 22 Filed 08/17/22 Page 6 of 11 Page ID #:810

Various providers with High Desert Medical Group treated plaintiff and occasionally provided letters after treatment indicating when plaintiff would be able to return to work, as follows: (1) a letter dated April 3, 2017, stating that plaintiff would be able to return to work on April 4, 2017, after plaintiff presented with chronic low back pain with sciatica (AR 509-10); (2) a letter dated June 26, 2017, stating that plaintiff would be able to return to work on June 29, 2017, with no restrictions, after plaintiff presented with muscle spasms (AR 481-83); (3) a letter dated September 15, 2017, stating that plaintiff would be able to return to work on September 16, 2017, after plaintiff presented with muscle cramps (AR 462-63); (4) a letter dated November 1, 2017, stating that plaintiff would be able to return to work on November 4, 2017, with no restrictions, after plaintiff presented with a cough/acute viral syndrome (cold/flu) (AR 451-53); (5) a letter dated January 22, 2018, stating that plaintiff would be able to return to work on January 25, 2018, after plaintiff presented with bronchitis (AR 440-41); (6) a letter dated March 16, 2018, stating that plaintiff would be able to return to work on March 19, 2018, after plaintiff had presented with vaginal bleeding and nausea/vomiting (AR 419-20); (7) a letter dated April 10, 2018, stating that plaintiff would be able to return to work on April 17, 2018, after plaintiff complained of declining health, shortness of breath, stress and anxiety from commuting to Los Angeles to work and the toll it was taking on her, and depression, at a time when she reportedly was using a walker to ambulate (AR 376-77, 388); (8) a letter dated April 19, 2018, stating that plaintiff would be able to return to work on July 10, 2018, after plaintiff’s provider diagnosed plaintiff with shortness of breath (AR 369-75). State agency physicians reviewed the record initially in July 2018, and found plaintiff capable of a range of medium work. (AR 59-70). On reconsideration in /// /// /// 6 Case 2:21-cv-05672-JC Document 22 Filed 08/17/22 Page 7 of 11 Page ID #:811

March 2019, state agency physicians again found plaintiff capable of a range of medium work. (AR 71-86).3 B. Pertinent Law For claims filed after March 27, 2017 (such as plaintiff’s present claim), new regulations govern the evaluation of medical opinion evidence. Under these regulations, ALJs no longer “weigh” medical opinions; rather, ALJs determine which opinions are the most “persuasive” by focusing on several factors: (1) supportability; (2) consistency; (3) relationship with the claimant (including the length of treatment, frequency of examinations, purpose of treatment, extent of treatment, whether the medical source examined the claimant); (4) the medical source’s specialty; and (5) “other” factors. See 20 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). The two most important factors in determining the persuasiveness of medical opinions are supportability and consistency with the evidence. See 20 C.F.R. §§ 404.1520c(a), 416.920c(a). ALJs must explain how they considered the factors of supportability and consistency, but need not explain how they considered any other factor. See 20 C.F.R. §§ 404.1520c(b), 416.920c(b). Supportability means the extent to which a medical source supports the medical opinion by explaining the “relevant. . . objective medical evidence.” Consistency means the extent to which a medical opinion is “consistent. . . with the evidence from other medical sources and nonmedical sources in the claim. 3The record does not appear to contain any other opinion evidence. Plaintiff was scheduled to attend a consultative examination in February 2019, but apparently did not keep her appointment. (AR 665 (letter warning plaintiff that her failure to respond within 10 days regarding her missed appointment could result in her claim being “processed with the evidence in [the] file,” and a decision that she is not disabled.); AR 79 (state agency physician on reconsideration noting that plaintiff had failed to cooperate with the scheduled consultative examination, and that the available record was “insufficient for definitive adjudication.”)). 7 Case 2:21-cv-05672-JC Document 22 Filed 08/17/22 Page 8 of 11 Page ID #:812

Woods v. Kijakazi, 32 F.4th 785, 791-92 (9th Cir. 2022) (internal citations omitted; citing 20 C.F.R. § 404.1520c(c)(1), (2)). The new regulations also eliminated the term “treating source,” as well as the rule previously known as the treating source rule or treating physician rule, which formerly required special deference to the opinions of treating sources. See 20 C.F.R. §§ 404.1520c, 416.920c; Woods v. Kijakazi, 32 F.4th at 792 (“The revised social security regulations are clearly irreconcilable with our caselaw according special deference to the opinions of treating and examining physicians on account of their relationship with the claimant.”). Even so, in evaluating medical opinion evidence “under the new regulations, an ALJ cannot reject an examining or treating doctor’s opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence.” Woods v. Kijakazi, 32 F.4th at 792. Finally, the new regulations command that an opinion that a claimant is disabled or not able to work is “inherently neither valuable nor persuasive,” and an ALJ need not provide any analysis about how such evidence is considered. See 20 C.F.R. §§ 404.1520b(c)(3), 416.920b(c)(3). As explained below, while the ALJ appears to have followed these new regulations in making the relevant findings based on the available record, substantial evidence does not support the ALJ’s resultant residual functional capacity determination. C. Analysis In determining plaintiff’s residual functional capacity, the ALJ found “not persuasive” the state agency physicians’ opinions, which had found plaintiff capable of a range of medium work. (AR 23). The ALJ reasoned that the opinions were not consistent with the medical evidence, including imaging studies of the spine and clinical findings and observations showing a history of complaints of neck pain, back pain, radiculopathy, diabetes, neuropathy, anatomical abnormalities and functional limitations of the spine and lower extremities. (AR 8 Case 2:21-cv-05672-JC Document 22 Filed 08/17/22 Page 9 of 11 Page ID #:813

23). The ALJ also noted that the consultants offered their opinions more than one year prior to the ALJ’s decision, and therefore they did not have the opportunity to review the updated record. (AR 23). The ALJ concluded, In light of the objective medical evidence. . . , the claimant’s testimony regarding the limiting effects of her pain and her neuropathy. . ., and the claimant’s obesity, the undersigned finds a limitation to work at the sedentary level to be appropriate. (AR 23). The ALJ acknowledged the letters from providers with the High Desert Medical Group between 2017 and 2018 – prior to the state agency physicians’ review – indicating when plaintiff could return to work (sometimes without limitation) after certain visits, noting they were not a specific assessment of plaintiff’s functional limitations, but also finding the opinions were “at least partially persuasive in that they further undermine the claimant’s allegations of totally disabling symptoms and functional limitations.” (AR 23). It appears that the ALJ’s residual functional capacity determination is based, at least in part, on the ALJ’s lay interpretation of the updated medical record. No medical source reviewed the updated medical record which the ALJ had found significant enough to render “not persuasive” the only available medical source statements. The “off work” letters from the High Desert Medical Group are not specific enough to support the ALJ’s findings. An ALJ’s decision must be supported by substantial evidence. See 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . .”). An ALJ cannot properly rely on the ALJ’s own lay knowledge to make medical interpretations of examination results or to determine the severity of medically determinable impairments. See Tackett v. Apfel, 180 F.3d 1094, 1102-03 (9th Cir. 1999); Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); Balsamo v. Chater, 142 9 Case 2:21-cv-05672-JC Document 22 Filed 08/17/22 Page 10 of 11 Page ID #:814

F.3d 75, 81 (2d Cir. 1998); see also Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs must not succumb to the temptation to play doctor and make their own independent medical findings”); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ is forbidden from making his or her own medical assessment beyond that demonstrated by the record); McAnally v. Berryhill, 2020 WL 1443734, at *6 (S.D. Cal. March 25, 2020) (“In making an RFC determination, an ALJ may not act as his own medical expert as he is simply not qualified to interpret raw medical data in functional terms”) (citations and quotations omitted). In the present case, absent expert medical assistance, and in light of the treatment evidence suggesting plaintiff continued to complain of spine pain radiating to the lower extremity between 2017 and 2020 (AR 21 (ALJ discussing same)), the ALJ could not competently translate the updated medical evidence into a physical residual functional capacity assessment. See Tackett v. Apfel, 180 F.3d at 1102-03 (ALJ’s residual functional capacity assessment cannot stand in the absence of evidentiary support); see generally Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (ALJ’s duty to develop the record further is triggered “when there is ambiguous evidence or when the record is inadequate to allow for the proper evaluation of the evidence”) (citation omitted); Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (“[T]he ALJ has a special duty to fully and fairly develop the record to assure the claimant’s interests are considered. This duty exists even when the claimant is represented by counsel.”).4 In sum, substantial evidence does not support the ALJ’s conclusion that the limitations the ALJ found to exist adequately account for plaintiff’s severe impairments. The state agency physician opinions finding plaintiff capable of 4Although plaintiff has a duty to prove disability (see 20 C.F.R. § 404.1512(a)(1)) and plaintiff may bear some responsibility for the lack of evidence to support the ALJ’s residual functional capacity assessment because she did not attend her scheduled consultative examination (see AR 665), this does not alter the fact that the record as it exists does not provide substantial evidence to support the ALJ’s residual functional capacity determination. 10 Case 2:21-cv-05672-JC Document 22 Filed 08/17/22 Page 11 of 11 Page ID #:815

medium work, while also noting that the record was insufficient to evaluate plaintiff’s claim, do not constitute substantial evidence. Compare Sonja S. R. v. Berryhill, 2018 WL 3460165, at *6-7 (C.D. Cal. July 16, 2018) (substantial evidence failed to support residual functional capacity determination where state agency physicians’ opinions did not consider later medical evidence supporting additional impairments and reflecting “potentially long-term conditions,” and the ALJ had rendered ALJ’s own lay interpretation of the updated medical record). For the foregoing reasons,5 the decision of the Commissioner of Social Security is REVERSED and this matter is REMANDED for further administrative action consistent with this Opinion. DATED: August 17, 2022 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 5The Court need not, and has not adjudicated plaintiff’s other challenges to the ALJ’s decision, except insofar as to determine that a reversal and remand for immediate payment of benefits would not be appropriate. When a court reverses an administrative determination, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted); Treichler, 775 F.3d at 1099 (noting such “ordinary remand rule” applies in Social Security cases) (citations omitted). 11