(SS) De Williams v. Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SILEY RIVERA DE WILLIAMS, No. 2:18-cv-2750-EFB 12 Plaintiff, 13 v. ORDER 14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16 17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”) denying her application for Supplemental Security Income (“SSI”) under Title 20 XVI of the Social Security Act. The parties have filed cross-motions for summary judgment. 21 ECF Nos. 12 & 19. For the reasons discussed below, plaintiff’s motion is granted, the 22 Commissioner’s motion is denied, and the matter is remanded for further proceedings. 23 I. Background 24 Plaintiff filed an application for SSI, alleging that she had been disabled since January 1, 25 2010. Administrative Record (“AR”) at 188-93. Plaintiff’s application was denied initially and 26 upon reconsideration. Id. at 114-18, 124-30. A hearing was subsequently held before 27 Administrative Law Judge (“ALJ”) Christopher Knowdell. Id. at 55-84. 28 ///// 1 On October 18, 2017, the ALJ issued a decision finding that plaintiff was not disabled 2 under section 1614(a)(3)(A) of the Act.1 Id. at 16-27. The ALJ made the following specific 3 findings:

4 1. The claimant has not engaged in substantial gainful activity since February 17, 2015, the 5 application date (20 CFR 416.971 et seq.).

6 2. The claimant has the following severe impairments: lumbar spine degenerative disc disease; anxiety disorder; and cognitive disorder (20 CFR 416.920(c)). 7 * * * 8 3. The claimant does not have an impairment or combination of impairments that meets or 9 medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart 10

11 1 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income (“SSI”) is paid 12 to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions, disability is defined, in part, as an “inability to engage in any substantial gainful activity” due to 13 “a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. 14 §§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The 15 following summarizes the sequential evaluation:

16 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed 17 to step two. Step two: Does the claimant have a “severe” impairment? 18 If so, proceed to step three. If not, then a finding of not disabled is 19 appropriate. Step three: Does the claimant’s impairment or combination 20 of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically 21 determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past 22 work? If so, the claimant is not disabled. If not, proceed to step 23 five. Step five: Does the claimant have the residual functional 24 capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 25

26 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

27 The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential 28 evaluation process proceeds to step five. Id. 1 P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

2 * * * 3 4. After careful consideration of the entire record, the undersigned finds that the claimant has 4 the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except: can perform postural activities on an occasional basis; capable of simple and 5 detailed tasks but not complex tasks.

6 * * *

7 5. The claimant is capable of performing past relevant work as a Title Clerk. This work does not require the performance of work-related activities precluded by the claimant’s residual 8 functional capacity (20 CFR 416.965). 9 * * * 10 6. The claimant has not been under a disability, as defined by the Social Security Act, since 11 February 17, 2015, the date the application was filed (20 CFR 416.920(f)).

12 13 Id. at 18-26. 14 Plaintiff’s request for Appeals Council’s review was denied on December 14, 2017, 15 leaving the ALJ’s decision as the final decision of the Commissioner. Id. at 1-6. 16 II. Legal Standards 17 The Commissioner’s decision that a claimant is not disabled will be upheld if the findings 18 of fact are supported by substantial evidence in the record and the proper legal standards were 19 applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); 20 Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 21 180 F.3d 1094, 1097 (9th Cir. 1999). 22 The findings of the Commissioner as to any fact, if supported by substantial evidence, are 23 conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is 24 more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th 25 Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a 26 conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. 27 N.L.R.B., 305 U.S. 197, 229 (1938)). 28 1 “The ALJ is responsible for determining credibility, resolving conflicts in medical 2 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 3 2001) (citations omitted). “Where the evidence is susceptible to more than one rational 4 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” 5 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 6 III. Analysis 7 Plaintiff raises two principal arguments. First, she argues that the ALJ’s finding that she 8 can perform light work is not based on substantial evidence. Second, she argues that the ALJ 9 erred in finding that she was able to perform simple and detailed tasks. As discussed below, 10 remand is warranted based on the first argument. Accordingly, the court declines to reach 11 plaintiff’s remaining argument. 12 In between the third and fourth steps of the sequential evaluation, the ALJ must assess the 13 claimant’s residual functional capacity (“RFC”). 20 C.F.R. § 416.920(a)(4). The RFC is the 14 most the claimant can do despite her physical and mental limitations. 20 C.F.R. § 416.945(a)(1). 15 In assessing a claimant’s RFC, the ALJ is required to consider all relevant evidence, including 16 plaintiff’s testimony and opinions from medical sources. Carmickle v. Comm’r Soc. Sec. Admin., 17 533 F.3d 1155, 1164 (9th Cir. 2008); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 18 2006) (“In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the 19 record, including, inter alia, medical records, lay evidence, and the effects of symptoms, 20 including pain, that are reasonably attributed to a medically determinable impairment.”) (internal 21 quotations omitted). The ALJ, and not a physician, is responsible for determining a claimant’s 22 RFC. Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). Here, as discussed below, three 23 different physicians rendered opinions as to the plaintiff’s RFC, but it appears that the ALJ 24 reviewed a subsequent MRI and arrived at his own medical opinion on the matter. 25 In May 2015, plaintiff underwent a comprehensive internal medicine evaluation, which 26 was performed by Dr. Jonathan Schwartz. AR 671-74. Based on an examination, Dr. Schwartz 27 opined that plaintiff could perform medium work with frequent, but not constant, stooping and 28 crouching. Id. at 674. In the following months two non-examining physicians, Dr. Amon and Dr. 1 Acinas, reviewed plaintiff’s medical records, including Dr. Schwartz’s report. Id. at 94-95, 110- 2 11. Based on their review, both physicians opined that plaintiff could perform medium work with 3 only occasional postural activities. Id. 4 In assessing plaintiff’s RFC, the ALJ afforded some, but not full, weight to the opinions of 5 Dr. Schwartz, Dr. Acinas, and Dr. Amon. Id. at 23. All three rendered their opinions in 2015. 6 For that reasons, the ALJ noted, none of these physicians were able to review the results of a 7 2017 MRI “when determining the claimant’s residual functional capacity.” Id. That MRI 8 showed a left paracentral disc herniation at L4-5, which was displacing and compressing the left 9 L5 nerve. Id. at 824. In light of this new medical evidence, the ALJ concluded that “the opinions 10 of these three physicians is [sic] only partially consistent with the full medical evidence of 11 record.”2 Id. at 23. 12 Ultimately, the ALJ concluded that plaintiff had the RFC to perform light work with 13 occasional postural activities. But the ALJ’s decision does not identify the specific evidence that 14 supported that determination. For instance, the ALJ did not specifically find that plaintiff’s daily 15 activities demonstrate an ability to perform light work on a sustained basis. The only logical 16 inference is that the ALJ concluded that the 2017 MRI reflected that plaintiff was more limited in 17 2017 than she was at the time Dr. Schwartz, Dr. Acinas, and Dr. Amon provided their opinions. 18 Thus, it appears the ALJ limited plaintiff to light, rather than medium, work based on the 2017 19 MRI results. 20 There was nothing inappropriate in noting that the 2017 MRI might alter medical opinions 21 that were not informed by the MRI. But the ALJ went beyond that. His approach was to use the 22 2017 MRI to find that the plaintiff’s RFC is more limited than the opinions expressed by the three 23 physicians in 2017, but not so limited as to preclude light work, and on that basis, find plaintiff 24 not disabled. The problem with that approach is that the ALJ is not a medical expert and is

25 2 The record also contains a June 2017 opinion from plaintiff’s treating physician, Dr. 26 Hopkins, who opined that plaintiff was not able to work due back and neck pain. AR 858. Dr. Hopkins further stated that he expected resolution of plaintiff’s back and neck problems by 27 November 2017 Id. The ALJ rejected this opinion because it lacked a description of plaintiff’s specific functional limitations and failed to establish a disability expected to last more than 12 28 months. Plaintiff has not challenged the ALJ’s rejection of this opinion. 1 “simply not qualified to interpret raw medical data in functional terms . . . . ” Nguyen v. Chater, 2 172 F.3d 31, 35 (1st Cir. 1999); see Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) 3 (ALJ should not make his “own exploration and assessment as to claimant’s physical 4 condition.”); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs must not succumb to the 5 temptation to play doctor and make their own independent medical findings.”); cf. Tawnya T. v. 6 Saul, 2019 WL 4422680, at *2 (C.D. Cal. July 9, 2019) (“It appears that, having rejected all the 7 medical opinions, the ALJ formulated his own opinion as to the impact of Plaintiff’s medical 8 condition on her ability to function. Although an ALJ need not adopt the RFC opined by any 9 particular physician, he must base his finding on some competent evidence. Here, the ALJ 10 impermissibly substituted his own opinion for that of the physicians.”) (citation omitted). The 11 harm here is that record is not supported by a competent medical opinion as to the plaintiff’s RFC 12 in light of the 2017 MRI. The ALJ was not permitted to formulate his opinion as to how 13 plaintiff’s herniated disc and compressed nerve impacted her ability to function. Instead, he was 14 required to retain a medical expert to evaluate the MRI results. 15 Furthermore, the court cannot find that the ALJ’s error was harmless. See Lockwood v. 16 Comm’r Soc. Sec., 616 F.3d 1068, 1071 (9th Cir. 2010) (“[E]ven if the ALJ erred, we will uphold 17 the decision so long as the error was harmless.”). The ALJ’s decision does not identify any 18 evidence in the record showing that plaintiff remained able to perform light work despite her 19 herniated disc and compressed nerve. For example, the ALJ did not find that plaintiff’s daily 20 activities demonstrated an ability to perform light work. Instead, the ALJ concluded that the 2017 21 MRI reflected a worsening in plaintiff’s functional abilities, but that plaintiff still maintained the 22 ability to perform light work. The ALJ, however, failed to identify any evidence in the record 23 supporting that conclusion. Accordingly, the court cannot find that the ALJ’s RFC determination 24 is supported by substantial evidence. 25 Accordingly, the matter must be remanded for proper consideration of the medical 26 evidence. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“A district court may reverse 27 the decision of the Commissioner of Social Security, with or without remanding the cause for a 28 ///// 1 | rehearing, but the proper course, except in rare circumstances, is to remand to the agency for 2 | additional investigation or explanation.”) (internal quotes and citations omitted). 3 | IV. Conclusion 4 Accordingly, it is hereby ORDERED that: 5 1. Plaintiff’s motion for summary judgment is granted; 6 2. The Commissioner’s cross-motion for summary judgment is denied; 7 3. The matter is remanded for further proceedings consistent with this order; and 8 4. The Clerk is directed to enter judgment in plaintiff's favor and close the case. 9 | DATED: April 7, 2020. 10 g Yo bil, f Lf bi AL 11 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

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