(SS) Bandong v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: December 14, 2022
• Docket: 2:21-cv-00318
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RONALDO PATINO BANDONG, No. 2:21-cv-318-KJN 12 Plaintiff, ORDER 13 v. (ECF Nos. 17, 19.) 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 Plaintiff seeks judicial review of a final decision by the Commissioner of Social Security 18 denying his application for Disability Insurance Benefits.1 In his summary judgment motion, 19 plaintiff contends the Administrative Law Judge erred in: (A) resolving the opinions of two of 20 plaintiff’s doctors regarding his physical and mental impairments; and (B) disregarding plaintiff’s 21 pain testimony. Plaintiff seeks a remand for a grant of benefits or for further proceedings. The 22 Commissioner opposed, filed a cross-motion for summary judgment, and seeks affirmance. 23 For the reasons that follow, the court GRANTS plaintiff’s motion for summary judgment, 24 DENIES the Commissioner’s cross-motion, and REMANDS the final decision of the 25 Commissioner for further proceedings. 26 /// 27 1 This action was referred to the undersigned pursuant to Local Rule 302(c)(15), and both parties 28 consented to proceed before a Magistrate Judge for all purposes. (ECF Nos. 6, 11, 12.) 1 I. RELEVANT LAW

2 The Social Security Act provides for benefits for qualifying individuals unable to “engage

3 in any substantial gainfu l activity” due to “a medically determinable physical or mental

4 impairment.” 42 U.S.C. §§ 423(d)(1)(a). An Administrative Law Judge (“ALJ”)is to follow a

5 five-step sequence when evaluating an applicant’s eligibility, summarized as follows:

6 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. 7 Step two: Does the clai mant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. 8 Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, 9 Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. 10 Step four: Is the claimant capable of performing past relevant work? If so, the claimant is not disabled. If not, proceed to step five. 11 Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the 12 claimant is disabled. 13 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995); see also 20 C.F.R. §§ 404.1520(a)(4). The 14 burden of proof rests with the claimant through step four, and with the Commissioner at step five. 15 Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020). 16 A district court may reverse the agency’s decision only if the ALJ’s decision “contains 17 legal error or is not supported by substantial evidence.” Id. at 1154. Substantial evidence is more 18 than a mere scintilla, but less than a preponderance, i.e., “such relevant evidence as a reasonable 19 mind might accept as adequate to support a conclusion.” Id. The court reviews the record as a 20 whole, including evidence that both supports and detracts from the ALJ’s conclusion. Luther v. 21 Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). However, the court may review only the reasons 22 provided by the ALJ in the decision and may not affirm on a ground upon which the ALJ did not 23 rely. Id. “[T]he ALJ must provide sufficient reasoning that allows [the court] to perform [a] 24 review.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). 25 The ALJ “is responsible for determining credibility, resolving conflicts in medical 26 testimony, and resolving ambiguities.” Ford, 950 F.3d at 1154. Where evidence is susceptible to 27 more than one rational interpretation, the ALJ’s conclusion “must be upheld.” Id. Further, the 28 court may not reverse the ALJ’s decision on account of harmless error. Id. 1 II. BACKGROUND AND ALJ’S FIVE–STEP ANALYSIS

2 In 2019, plaintiff applied for Disability Insurance Benefits, alleging an onset date of

3 March 1, 2018. (Admini s trative Transcript (“AT”) 104; 211.) Plaintiff claimed disability due to

4 Irritable Bowel Syndrome; Lumbar Disc Generation; Bilateral Sacroliac Joint Pain; Arthropathy

5 of Lumbar Facet; Chronic Low Back Pain Greater Than 3 Months; Hyperuricemia; Lumbar

6 Spinal Stenosis; Bilateral Carpal Tunnel Syndrome; Lumbar Spondylosis; and Hyperlipidemia.”

7 (See AT 104.) Plaintiff’s applicatio ns were denied initially and upon reconsideration, and he 8 sought review with an ALJ. (AT 122; 140; 158.) At a July 2020 hearing, plaintiff testified about 9 his conditions, and a vocational expert (“VE”) testified regarding the ability of a person with 10 various impairments to perform various jobs. (AT 43-76.) 11 On September 8, 2020, the ALJ issued a decision determining plaintiff was not disabled. 12 (AT 25-38.) As an initial matter, the ALJ determined plaintiff met insured status through June 13 30, 2020. (AT 28.) At step one, the ALJ concluded plaintiff had not engaged in substantial 14 gainful activity since March 1, 2018. (Id.) At step two, the ALJ determined plaintiff had the 15 following severe impairments: degenerative disc disease of the lumbar spine; carpal tunnel 16 syndrome; cervical stenosis; depressive disorder; anxiety disorder; and post-traumatic stress 17 disorder. (Id.) At step three, the ALJ determined plaintiff’s impairments did not meet or 18 medically equal the severity of an impairment listed in Appendix 1. (Id., citing 20 C.F.R. Part 19 404, Subpart P, Appendix 1). Regarding plaintiff’s mental impairments, the ALJ considered 20 Listing 12.04 for “depressive, bipolar, and related disorders,” and 12.06 for “anxiety and 21 obsessive-compulsive disorders,” and considered both Paragraphs B and C. (AT 29.) Under 22 Paragraph B, the ALJ found moderate limitations in the information and concentration categories, 23 mild limitations in the adaptation category, and no limits in the interaction category. (Id.) For 24 support, the ALJ cited reports from plaintiff and his wife as well as various medical records. (Id.) 25 Under Paragraph C, the ALJ found the evidence demonstrated plaintiff was able to adjust to 26 changes with little difficulty. (Id.) 27 The ALJ then found plaintiff had the residual functional capacity (“RFC”) to perform 28 medium work with the following additional restrictions: “frequent ladders, ropes or scaffolds, 1 stooping; frequent handling and fingering; capable of noncomplex and routine tasks and

2 instructions; and capable of sustaining concentration and attention for two hour increments, in a

3 low stress work environm ent with as few workplace changes as possible and only occasional

4 decision making.” (AT 30.) In crafting this RFC, the ALJ stated she considered plaintiff’s

5 symptoms alongside the medical evidence and opinions of the medical sources, including

6 plaintiff’s symptom and daily-activities testimony (AT 30-31), plaintiff’s wife’s report (AT 31),

7 medical records (AT 32-33), and th e medical opinions in the record and in the prior 8 administrative medical findings (AT 33-36). Relevant here, the ALJ found plaintiff’s pain 9 allegations not as intense, given the evidence in the medical record, plaintiff’s daily activities, 10 medication management, and conservative treatment. (AT 32.) The ALJ was unpersuaded by the 11 opinion of Dr. Campbell, a physician who treated plaintiff’s physical impairments, finding it 12 inconsistent with the record and unsupported by his treatment records. (AT 35-36.) The ALJ 13 also was unpersuaded by two opinions of Dr. Dhillon, a psychiatrist who treated plaintiff’s mental 14 health, finding them inconsistent and unsupported. (AT 34-35.) The ALJ concluded plaintiff was 15 incapable of performing past work, but found there were jobs in the national economy he could 16 perform, such as a laundry worker, salvage laborer recycler, and production helper, and was 17 therefore not disabled. (AT 36-37.) 18 Plaintiff then filed this action requesting judicial review of the Commissioner’s final 19 decision; the parties filed cross-motions for summary judgment. (ECF Nos. 1, 17, 19.) 20 III. ISSUES PRESENTED 21 In his summary judgment motion, plaintiff contends the ALJ erred in: (A)(1) resolving 22 Dr. Campbell’s opinion regarding plaintiff’s cervical stenosis, diffuse arthritis, carpal tunnel 23 syndrome, tear of the fibrocartilage in his left wrist, and orthostatic hypotension; (A)(2) resolving 24 Dr. Dhillon’s opinion regarding plaintiff’s inability to concentrate on simple tasks and withstand 25 work stress; and (B) disregarding plaintiff’s pain testimony. (ECF No. 17.) 26 The Commissioner disagrees, arguing the ALJ properly resolved the two doctors’ 27 opinions and plaintiff’s pain testimony. Thus, the Commissioner contends the decision as a 28 whole is supported by substantial evidence and should result in affirmance. (ECF No. 19.) 1 IV. DISCUSSION

2 A. Physician’s Opinion Regarding Plaintiff’s Physical Impairments

3 Legal Standards – Medical Opinions and Persuasiveness

4 For applications filed on or after March 27, 2017, an ALJ need “not defer or give any

5 specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior

6 administrative medical finding(s) (“PAMF”) [i.e., state-agency medical consultants], including

7 those from [a claimant’s] medical s ources.” See 20 C.F.R. § 404.1520c(a). Instead, an ALJ is to 8 evaluate medical opinions and PAMFs by considering their “persuasiveness.” § 404.1520c(a). In 9 determining how “persuasive” is the opinion of a medical source or PAMF, an ALJ must consider 10 the following factors: supportability, consistency, treatment relationship, specialization, and 11 “other factors.” § 404.1520c(b), (c)(1)-(5); see also Woods v. Kijakazi, 32 F.4th 785, 787 (9th 12 Cir. 2022) (noting a shift in reviewing standards under the revised regulations, including the 13 inapplicability of prior hierarchy-based case law). 14 Despite a requirement to “consider” all factors, the ALJ’s duty to articulate a rationale for 15 each factor varies. 20 C.F.R. § 404.1520c(a)-(b). In all cases, the ALJ must at least explain how 16 the supportability and consistency factors were considered, as they are “the most important 17 factors.” § 404.1520c(b)(2). For supportability, the regulations state: “[t]he more relevant the 18 objective medical evidence and supporting explanations presented by a medical source are to 19 support his or her medical opinion(s) or [PAMF(s)], the more persuasive [the opinion or PAMF] 20 will be.” § 404.1520c(c)(1). For consistency, the regulations state: “[t]he more consistent a 21 medical opinion(s) or [PAMF(s)] is with the evidence from other medical sources and nonmedical 22 sources in the claim, the more persuasive [the opinion or PAMF] will be.” § 404.1520c(c)(2). 23 The ALJ is required to articulate findings on the remaining factors (relationship with claimant, 24 specialization, and “other”) only where “two or more medical opinions or [PAMFs] about the 25 same issue” are “not exactly the same,” and both are “equally well-supported [and] consistent 26 with the record.” § 404.1520c(b)(2)&(3). “[I]n interpreting the evidence and developing the 27 record, the ALJ does not need to discuss every piece of evidence.” Howard ex rel. Wolff v. 28 Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003)). 1 Analysis

2 Regarding Dr. Campbell’s February 2019 medical source statement, the ALJ noted the

3 doctor’s specific citation s to plaintiff’s impairments, including “cervical stenosis at C4 to C5,

4 depression, tear in his left wrist, PTSD, osteophyte, hypotension, diffuse arthritis, and carpal

5 tunnel.” The ALJ then noted the doctor’s opinion that plaintiff’s physical impairments limited his

6 ability to stand, sit, lift, reach, handle, feel, push/pull, manipulate with his fingers—impairments

7 the doctor believed precluded all w ork, even at the sedentary level. (AT 35, citing AT 326-27.) 8 The ALJ found Dr. Campbell’s opinion not persuasive because it was both inconsistent and 9 unsupported by the evidence in the record. In doing so, the ALJ gave the following rationale: 10 The record reveals the claimant’s treatment has focused overall on routine and conservative care. Additionally, treatment has notably 11 improved his symptoms and functioning. Throughout the relevant time period he has not sought out, nor required, a higher level of 12 care to manage and/or improve his symptoms. Moreover physical examination findings were overall unremarkable or unchanged as 13 they relate to his spine and hands/wrists. Overall this opinion is inconsistent with the claimant’s treatment history, his present 14 treatment needs, statements of his wife, statements of the claimant, diagnostic findings, objective examination findings, and activities. 15 16 (AT 35-36.) Plaintiff contends the ALJ’s explanation is inadequate, even under the revised 17 regulations. The undersigned concurs. 18 The court first takes up the ALJ’s labeling of plaintiff’s “treatment history, [] present 19 treatment needs . . ., diagnostic findings, [and] objective examination findings,” as routine and 20 conservative, as demonstrating improvements in his symptoms, and as otherwise “unremarkable.” 21 (AT 35.) Though it is clear these are the conclusions the ALJ drew, it is unclear what the basis 22 for those conclusions are, for nothing in the ALJ’s rationale cites any evidence supporting such 23 conclusions. Earlier in the decision, the ALJ noted certain records showed normal strength, tone, 24 sensation and gait, mild stenosis in plaintiff’s C4 and C5, and that no surgery was sought for 25 plaintiff’s carpal tunnel. (AT 32-33.) However, this part of the decision also notes significant 26 continuing impairments with plaintiff’s spine, back, and wrists, including “longstanding upper 27 and lower back pain” that has “progressively worsened”; numbness and tingling in the lower 28 extremities, difficulty turning his head, and pain with swelling through his wrists and hands”; 1 occasional swelling, tenderness or decreased range of motion in his hands and wrists; infrequent

2 positive straight leg raise findings on the left; and “degenerative changes contributing to moderate

3 central stenosis at L5 to S 1” in plaintiff’s lumbar spine. (AT 32.) The ALJ also cites records

4 indicating evidence of carpal tunnel in both hands and wrists; tenderness and swelling at times;

5 and worsening grip on the left side. (Id.) Finally, the ALJ specifically noted “[i]mages of the

6 claimant’s left wrist from March 2018, reveal a partial thickness tear of the triangular

7 fibrocartilage and a Ganglion cyst a rising along the palmar margin of the distal radial ulnar joint 8 space.” (AT 33.) These records that appear to speak to impairments greater than what the ALJ 9 found; without a more cogent explanation for why they do not require greater limitations, it is 10 difficult for the undersigned to see how one should draw the conclusion the evidence is 11 “unremarkable.” Though the regulations have changed since 2017, the ALJ is still required to 12 resolve conflicts and ambiguities in the record, and the above shows significant ambiguities 13 remain unresolved. Ford, 950 F.3d at 1154. 14 Further, the undersigned is very concerned about the cherry picking here. Holohan v. 15 Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001) (reversing ALJ's selective reliance “on some 16 entries in [the claimant's records while ignoring] the many others that indicated continued, severe 17 impairment”); see also Timothy P. v. Comm'r, Soc. Sec. Admin., 2022 WL 2116099, at *9 (D. 18 Or. June 13, 2022) (“Although Woods made clear that the hierarchy among physicians’ opinions 19 no longer applies in this Circuit, the court did not address whether the new regulations upend the 20 entire body of caselaw relating to medical evidence. . . It remains true that ALJs may not cherry- 21 pick evidence in discounting a medical opinion.”). In addition to the above ambiguities, plaintiff 22 points to a not-insignificant number of records appearing to show more involved treatments he 23 received—records that appear to have been overlooked by the ALJ. These include records 24 indicating plaintiff received multiple steroidal injections and was prescribed, among other things, 25 codeine for his pain management. (AT 334, 366, 370, 383, 391, 397-98, 407, 556.) Other courts 26 have found this kind of treatment to be less than conservative, and the undersigned is persuaded 27 by their rationale. See, e.g., Wentz v. Saul, 473 F. Supp. 3rd 1106, 1115 (E.D. Cal. 2020) 28 (finding ALJ’s statement that claimant was treated conservatively to be conclusory given the use 1 of narcotics in the treatment plan); Rawa v. Colvin, 672 Fed.Appx. 664, 667 (9th Cir. Nov. 15,

2 2016) (stating that steroid injections “are neither routine or conservative”).

3 Further, despite t h e ALJ’s statement that plaintiff’s carpal tunnel improved with treatment,

4 records between March 2018 and 2019 do not appear to be so clear-cut. (AT 390, 496, 562.) In

5 fact, despite the ALJ’s finding of improvement, the decision explicitly notes weakness in his grip,

6 worse in the left hand, in 2019. (AT 32.) The decision contains no explanation of this

7 incongruity, and other records align ing with greater impairments also appear to have been 8 overlooked by the ALJ. See, e.g., Elizabeth B. v. Kijakazi, 2022 WL 4543686, at *6 (N.D. Cal. 9 Sept. 28, 2022) (“ALJ erred in cherry-picking evidence that supported his conclusion while 10 ignoring medical evidence that contradicted his conclusion”); Lilita H. v. Kijakazi, 2022 WL 11 4225395, at *3 (N.D. Cal. Sept. 13, 2022) (same); Jeanna M. B. v. Comm’r, 2022 WL 2045602, 12 at *2 (W.D. Wash. June 7, 2022) (same). 13 Finally, regarding the ALJ’s discounting of Dr. Campbell’s opinion based on plaintiff’s 14 statement of his daily activities as well as he and his wife’s testimony, the undersigned again 15 notes the lack of a legally-sufficient rationale to support the ALJ’s conclusion. For example, 16 when resolving plaintiff’s daily activities, the ALJ appears to have lumped a number of activities 17 into a group before concluding that “[s]ome of the mental abilities and social interactions required 18 in order to perform these activities are the same as those necessary for obtaining and maintaining 19 employment.” (AT 32.) This kind of generalized finding does not meet the Ninth Circuit’s 20 requirement that an ALJ “elaborate on which daily activities conflicted with which part of 21 [c]laimant’s testimony.” Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). 22 Given these errors, the proper remedy is to remand for further proceedings. Plaintiff 23 requests a remand for immediate benefits, but this would be inappropriate cherry picking on the 24 court’s part. As both parties are aware, it is for the ALJ to resolve ambiguities and conflicts in the 25 record, and the court’s rationale here is based strictly on the ALJ’s failure to do so. Ford, 950 26 F.3d at 1154; Lambert, 980 F.3d at 1277. 27 /// 28 /// ] B. Remaining Points On Appeal 2 Because further proceedings are required, the court does not reach plaintiff's contentions 3 || regarding Dr. Dhillon, nor his argument regarding his subjective-symptom-testimony (save for 4 || the lacking analysis regarding his daily activities). On remand, it is within the ALJ discretion as 5 || to how much additional analysis should be articulated on these issues. 6 | V. CONCLUSION 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Plaintiff's motion for summary judgment (ECF No. 17) is GRANTED; 9 2. The Commissioner’s cross-motion (ECF No. 17) is DENIED; 10 3. The final decision of the Commissioner is REVERSED AND REMANDED for 11 further proceedings; and 12 4. The Clerk of Court shall issue judgment in plaintiffs favor and CLOSE this case. 13 || Dated: December 14, 2022 i Aectl Aharon 15 KENDALL J. NE band.318 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28