(SS) Chavez v. Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 SARA CHAVEZ, ) Case No.: 1:18-cv-01742 - JLT ) 12 Plaintiff, ) ORDER REMANDING THE ACTION PURSUANT ) TO SENTENCE FOUR OF 42 U.S.C. § 405(g) 13 v. ) ) ORDER DIRECTING ENTRY OF JUDGMENT IN 14 COMMISSIONER OF SOCIAL SECURITY, ) FAVOR OF PLAINTIFF SARA CHAVEZ AND ) AGAINST DEFENDANT, THE COMMISSIONER 15 Defendant. ) OF SOCIAL SECURITY ) 16 )

17 Sara Chavez asserts she is entitled to a period of disability, disability insurance benefits, and 18 supplemental security income under Titles II and XVI of the Social Security Act. Plaintiff argues the 19 administrative law judge erred in evaluating the medical record and determining her residual functional 20 capacity. For the reasons set forth below, the matter is REMANDED for further proceedings pursuant 21 to sentence four of 42 U.S.C. § 405(g). 22 BACKGROUND 23 In August and September 2016, Plaintiff filed her applications for benefits, alleging disability 24 due to gastroparesis, hypoglycemia, Bradycardia, malnutrition, lack of vitamin D, abdominal pain, 25 weakness, sleep apnea, vitamin B12 deficiency, and severe nausea. (Doc. 12-7 at 2-15; Doc. 12-8 at 3) 26 The Social Security Administration denied Plaintiff’s applications at the initial level and upon 27 reconsideration. (See generally Doc. 12-4) Plaintiff requested an administrative hearing on the 28 application and testified before an ALJ on July 17, 2017. (See Doc. 12-3 at 25, 44) 1 The ALJ determined Plaintiff was not disabled and issued an order denying benefits on 2 December 13, 2017. (Doc. 12-3 at 25-35) Plaintiff requested review of the decision with the Appeals 3 Council, which denied the request on August 29, 2018. (Id. at 11-13) Therefore, the ALJ’s 4 determination became the final decision of the Commissioner of Social Security. 5 STANDARD OF REVIEW 6 District courts have a limited scope of judicial review for disability claims after a decision by 7 the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact, 8 such as whether a claimant was disabled, the Court must determine whether the Commissioner’s 9 decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The 10 ALJ’s determination that the claimant is not disabled must be upheld by the Court if the proper legal 11 standards were applied and the findings are supported by substantial evidence. See Sanchez v. Sec’y of 12 Health & Human Serv., 812 F.2d 509, 510 (9th Cir. 1987). 13 Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a 14 reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 15 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole 16 must be considered, because “[t]he court must consider both evidence that supports and evidence that 17 detracts from the ALJ’s conclusion.” Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 18 DISABILITY BENEFITS 19 To qualify for benefits under the Social Security Act, Plaintiff must establish he is unable to 20 engage in substantial gainful activity due to a medically determinable physical or mental impairment 21 that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. 22 § 1382c(a)(3)(A). An individual shall be considered to have a disability only if: 23 his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work 24 experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in 25 which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 26

27 42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a claimant to establish disability. Terry v. 28 Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). If a claimant establishes a prima facie case of disability, 1 the burden shifts to the Commissioner to prove the claimant is able to engage in other substantial 2 gainful employment. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984). 3 ADMINISTRATIVE DETERMINATION 4 To achieve uniform decisions, the Commissioner established a sequential five-step process for 5 evaluating a claimant’s alleged disability. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The process 6 requires the ALJ to determine whether Plaintiff (1) is engaged substantial gainful activity, (2) had 7 medically determinable severe impairments (3) that met or equaled one of the listed impairments set 8 forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether Plaintiff (4) had the residual functional 9 capacity to perform to past relevant work or (5) the ability to perform other work existing in significant 10 numbers at the state and national level. Id. The ALJ must consider testimonial and objective medical 11 evidence. 20 C.F.R. §§ 404.1527, 416.927. 12 Pursuant to this five-step process, the ALJ determined Plaintiff had not engaged in substantial 13 gainful activity since the alleged onset date of January 15, 2015. (Doc. 12-3 at 27) Second, the ALJ 14 found Plaintiff had “the following impairments which are severe in combination: tendinitis of the left 15 shoulder, diverticulosis, diabetes mellitus with gastroparesis, GERD, history of morbid obesity and 16 history of H. pylori infection.” (Id.) The ALJ found Plaintiff’s “status post cholecystectomy, vitamin 17 D deficiency, thrombocytopenia, leukocyte pain, hypertension, and anxiety are not ‘severe’ 18 impairments with the meaning of the Social Security Act and Regulations.” (Id. at 28) 19 At step three, the ALJ determined Plaintiff’s impairments did not meet or medically equal a 20 Listing. (Doc. 12-3 at 28-29) Next, the ALJ defined Plaintiff’s residual functional capacity as follows: 21 [T]he claimant can lift 50 pounds occasionally and lift and carry 25 pounds frequently. She can stand and/or walk 6 hours a day out of an 8-hour workday. She 22 can sit for 6 hours in an 8-hour workday. She can frequently reach overhead with the left upper extremity. 23

24 (Id. at 30) With this residual functional capacity, the ALJ determined at step four that Plaintiff was 25 “capable of performing past relevant work as a licensed vocational nurse,” both “as actually and 26 generally performed.” (Id. at 34-35) Thus, the ALJ concluded Plaintiff was not disabled as defined by 27 the Social Security Act from January 15, 2015, through the date of the decision. (Id. at 35) 28 /// 1 DISCUSSION AND ANALYSIS 2 Plaintiff argues, “The ALJ failed to include work-related limitations in the RFC consistent with 3 the nature and intensity of Plaintiff’s limitations and failed to offer any reason for discounting all of 4 Plaintiff’s symptoms related to Crohn’s disease.” (Doc. 19 at 1, 8) In addition, Plaintiff contends the 5 ALJ “failed to explain the basis for the portion of the RFC intended to accommodate Plaintiff’s 6 shoulder impairment.” (Id. at 10) On the other hand, the Commissioner argues the Court should affirm 7 the decision because the ALJ did not have a duty to develop the record and substantial evidence 8 supports the RFC identified by the ALJ. (See Doc. 21 at 10-20) 9 A. The Residual Functional Capacity Determination 10 A claimant's residual functional capacity is “the most [a claimant] can still do despite [her] 11 limitations.” 20 C.F.R. §§ 404.1545(a), 416.945(a); see also 20 C.F.R. Part 404, Subpart P, Appendix 2, 12 § 200.00(c) (defining an RFC as the “maximum degree to which the individual retains the capacity for 13 sustained performance of the physical-mental requirements of jobs”). In formulating an RFC, the ALJ 14 weighs medical and other source opinions, as well as the claimant’s credibility. See, e.g., Bray v. 15 Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 2009). Further, the ALJ must consider "all 16 of [a claimant’s] medically determinable impairments,” whether severe or not, when assessing a RFC. 17 20 C.F.R. §§ 405.1545(a)(2), 416.945(a)(2). 18 1. Crohn’s Disease and Plaintiff’s RFC 19 The burden is on a claimant to show a condition is a medically determinable impairment. 20 Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987)); see also 20 C.F.R. §§ 404.1520(c), 416.920(c). The 21 Ninth Circuit determined a diagnosis from an acceptable medical source is a prerequisite to a finding 22 that a medically determinable impairment exists, and symptoms by themselves are not sufficient to 23 establish such an impairment. Ukolov v. Barnhart, 420 F.3d 1002, 1005-06 (9th Cir. 2005). 24 Here, Plaintiff argues that the ALJ “failed to include any work-related limitations in the RFC 25 that correspond to Plaintiff’s Crohn’s disease and resulting symptoms.” (Doc. 19 at 8) However, 26 Plaintiff does not cite any evidence in the record to support her assertion that she suffers from Crohn’s 27 disease, or that it is a medically determinable impairment that the ALJ should have considered to 28 determine the RFC. Indeed, it appears the argument presented in Plaintiff’s opening brief may have 1 been duplicated from another action, as the argument addresses Plaintiff by the wrong gender and refers 2 to hearing testimony that she did not make. For example, the brief states: “Plaintiff testified that his 3 symptoms were never cured, and the record as described above corroborates his repeated flares.” (Doc. 4 19 at 9) Further, the brief refers to the ALJ’s “ultimate conclusion at Step Five,” while the matter now 5 before the Court was terminated at Step Four when the ALJ determined Plaintiff could perform her past 6 relevant work. (See Doc. 12-3 at 34-35) 7 Regardless, Plaintiff has not identified any evidence in the medical record that supports a 8 conclusion that she suffered from Crohn’s disease, such as a diagnosis from a physician. (See Doc. 19 9 at 8-9) Without this evidence, the Court is unable find Plaintiff carried the burden to show Crohn’s 10 disease was a “medically determinable impairment” that the ALJ was required to consider when 11 determining her RFC. See Ukolov, 420 F.3d at 1005-06. Thus, Plaintiff fails to show any error by the 12 ALJ in evaluating her alleged Crohn’s disease and related symptoms. 13 2. Limitations related to Plaintiff’s left shoulder impairment 14 Plaintiff argues the ALJ committed a “legal error” with addressing her shoulder impairment in 15 the RFC, because “the ALJ simply included a limitation in the RFC that Plaintiff can frequently reach 16 overhead, without ever evaluating or explaining the basis for this limitation, or pointing to any 17 evidence which supports this portion of the RFC assessment.” (Doc. 19 at 11) The Commissioner 18 argues the RFC determination was proper, noting “[a]n ALJ, not a physician, is responsible for 19 assessing the residual functional capacity.” (Doc. 21 at 19, citing 20 C.F.R. § 404.1546; Vertigan v. 20 Halter, 260 F.3d 1044, 1049 (9th Cir. 2001)) 21 a. Relevant evidence 22 Dr. Bobba reviewed available records related to Plaintiff’s applications at the initial level on 23 October 19, 2016. (Doc. 12-4 at 7-9) Dr. Bobba noted Plaintiff had a history of diet-controlled diabetes 24 mellitus and hypertension, and her examinations had “minimal findings.” (Id. at 9) Dr. Bobba opined 25 Plaintiff’s impairments were “[a]lmost non severe,” but with “giving benefit of doubt,” an RFC limiting 26 Plaintiff to medium work was “appropriate.” (Id. at 9) Specifically, Dr. Bobba determined Plaintiff 27 could lift and carry 50 pounds occasionally and 25 pounds frequently, sit about six hours in an eight- 28 hour day, stand and/or walk about six hours in an eight-hour day. (Id. at 11) Dr. Bobba found Plaintiff 1 did not have postural or manipulative limitations. (Id.) 2 On December 21, 2016, Dr. John Bonner reviewed the available records related to Plaintiff’s 3 request for reconsideration. (See Doc. 12-4 at 49-50) Dr. Bonner found Plaintiff had “more physical 4 complaints than actual noted findings.” (Id.) He noted Plaintiff alleged “severe weakness,” but found 5 the “evidence on file indicate[d] physical exam [was] mostly normal.” (Id. at 51) Dr. Bonner “agree[d] 6 that [a] medium RFC, as previously decided[,] is appropriate.” (Id. at 50) Furthermore, Dr. Bonner 7 opined Plaintiff did not have postural or manipulative limitations. (Id. at 52) 8 In January 2017, Plaintiff reported she had “2 weeks of left shoulder pain.” (Doc. 12-17 at 67) 9 Upon examination, Plaintiff exhibited “decreased range of motion (secondary to pain) and tenderness 10 (diffusely, no trigger point)” in her left shoulder. (Id. at 67) Dr. Scott Ford noted that an x-ray of 11 Plaintiff’s shoulder “showed calcific tendinitis.” (Id. at 71; see also id. at 67) Plaintiff “was offered a 12 sling but not advised to use it for fear of frozen shoulder,” and was shown some range of motion 13 exercises. (Id. at 67) Later that month, Plaintiff visited an emergency room “for progressively 14 worsening left shoulder pain,” reporting her shoulder felt “stuck” and her pain was “severe with 15 movement.” (Id.) 16 On February 5, 2017, Plaintiff continued to report pain in her left shoulder, and said she “cant 17 (sic) lift her arm.” (Doc. 12-16 at 6) The following week, Plaintiff described “[b]ilateral shoulder pain” 18 during a telemedicine appointment. (Id. at 4) Dr. Frank Scott noted Plaintiff had x-rays that showed 19 “calcium tendon deposits,” and testing did not reveal findings compatible with rheumatoid arthritis. 20 (Id.) Dr. Scott indicated Plaintiff would “be referred to orthopedics to consider a cortisone injection to 21 her shoulders.” (Id. at 5) 22 b. Analysis 23 The ALJ determined Plaintiff’s severe impairments included “tendinitis of the left shoulder,” 24 but found Plaintiff could “frequently reach overhead with the left upper extremity.” (Doc. 12-3 at 27, 25 30) However, it is unclear how the ALJ determined Plaintiff could reach overhead on a frequent basis 26 with her left arm. 27 The record does not include any opinion addressing Plaintiff’s shoulder impairment, which 28 evidently arose after Drs. Bobba and Bonner reviewed the available records. No physician had the 1 opportunity to review Plaintiff’s x-ray results or records indicating she had a decreased range of motion 2 in the left shoulder. Because the record did not include any opinions from treating or examining 3 physicians related to Plaintiff’s left shoulder tendinitis—or her limitations and abilities as a result of the 4 impairment— the ALJ clearly rendered her own medical findings that Plaintiff could reach overhead on 5 a frequent basis. 6 Significantly, it is well-settled law that an ALJ may not render her own medical opinion and is 7 not empowered to independently assess clinical findings. See, e.g., Tackett v. Apfel, 180 F.3d 1094, 8 1102-03 (9th Cir. 1999) (holding an ALJ erred in rendering his own medical opinion); Banks v. 9 Barnhart, 434 F. Supp. 2d 800, 805 (C.D. Cal. 2006) (“An ALJ cannot arbitrarily substitute his own 10 judgment for competent medical opinion, and he must not succumb to the temptation to play doctor and 11 make his own independent medical findings”); Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (as a 12 lay person, the ALJ is “simply not qualified to interpret raw medical data in functional terms”). Without 13 medical opinions to support the conclusion that Plaintiff had the ability frequently reach overhead with 14 her left arm, the ALJ’s RFC lacks the support of substantial evidence. See Perez v. Sec’y of Health & 15 Human Servs., 958 F.2d 445, 446 (1st Cir. 1991) (“where an ALJ reaches conclusions about claimant's 16 ... capacity without any assessment of residual functional capacity by a physician, the ALJ’s 17 conclusions are not supported by substantial evidence”). Accordingly, the ALJ erred in evaluating the 18 record related to Plaintiff’s left shoulder tendinitis and assessing her RFC. 19 B. Remand is Appropriate 20 The decision whether to remand a matter pursuant to sentence four of 42 U.S.C. § 405(g) or to 21 order immediate payment of benefits is within the discretion of the district court. Harman v. Apfel, 22 211 F.3d 1172, 1178 (9th Cir. 2000). Except in rare instances, when a court reverses an administrative 23 agency determination, the proper course is to remand to the agency for additional investigation or 24 explanation. Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004) (citing INS v. Ventura, 537 U.S. 25 12, 16 (2002)). Generally, an award of benefits is directed when: 26 (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of 27 disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. 28 1 Smolen v, 80 F.3d at 1292. In addition, an award of benefits is directed where no useful purpose would 2 be served by further administrative proceedings, or where the record is fully developed. Varney v. 3 Sec’y of Health & Human Serv., 859 F.2d 1396, 1399 (9th Cir. 1988). 4 The RFC articulated by the ALJ lacks the support of substantial evidence in the record, and the 5 matter should be remanded for further consideration. See Tackett, 180 F.3d at 1102-03 (remanding the 6 matter to the Social Security Administration for reconsideration after finding the ALJ erred by offering 7 his own medical conclusion, which was not supported by any medical evidence); Perez, 958 F.2d at 8 446 (finding that where the ALJ offered any opinion “without any assessment of residual functional 9 capacity by a physician, ...it is necessary to remand for the taking of further functional evidence”). 10 Thus, upon remand, the ALJ shall obtain additional functional evidence as necessary to determine 11 Plaintiff’s RFC. 12 CONCLUSION AND ORDER 13 For the reasons set for above, the Court finds the ALJ erred in her evaluation of Plaintiff's RFC 14 and failed to apply the correct legal standards. Consequently, the ALJ’s decision cannot be upheld by 15 the Court. See Sanchez, 812 F.2d at 510. Accordingly, the Court ORDERS: 16 1. The matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 17 proceedings consistent with this decision; and 18 2. The Clerk of Court is DIRECTED to enter judgment in favor of Plaintiff Sara Chavez, 19 and against Defendant, the Commissioner of Social Security. 20 21 IT IS SO ORDERED.

22 Dated: August 20, 2020 /s/ Jennifer L. Thurston 23 UNITED STATES MAGISTRATE JUDGE

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