(SS) Johnson 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 ERIC NEAL JOHNSON, ) Case No.: 1:19-cv-1647 JLT ) 12 Plaintiff, ) ORDER GRANTING PLAINTIFF’S APPEAL ) (DOC. 19) AND REMANDING THE ACTION 13 v. ) PURSUANT TO SENTENCE FOUR OF 42 ) U.S.C. § 405(g) 14 ANDREW SAUL, ) Commissioner of Social Security, ) ORDER DIRECTING ENTRY OF JUDGMENT 15 ) IN FAVOR OF ERIC NEAL JOHNSON, AND Defendant. ) AGAINST DEFENDANT ANDREW SAUL, THE 16 ) COMMISSIONER OF SOCIAL SECURITY ) 17

18 Eric Neal Johnson asserts he is entitled to disability insurance benefits and a period of disability 19 under Title II of the Social Security Act. Plaintiff argues the administrative law judge erred in 20 evaluating the medical record and his subjective complaints. For the reasons set forth below, the matter 21 is REMANDED for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). 22 BACKGROUND 23 In August 2016, Plaintiff filed an application for benefits, asserting disability due to deep 24 vascular thrombosis in his right leg, advanced degenerative joint disease in his left knee, 25 “hypercoagulable state of Lupus anticoagulant,” hypertension, dizziness, and weakness. (See Doc. 11-4 26 at 2-3) The Social Security Administration denied the application at the initial level and upon 27 reconsideration. (See generally Doc. 11-4) Plaintiff requested an administrative hearing on the 28 application and testified before an ALJ on August 1, 2018. (See Doc. 11-3 at 16, 33) The ALJ found 1 Plaintiff was not disabled and issued an order denying benefits on November 21, 2018. (Doc. 11-3 at 2 16-26) Plaintiff requested review by the Appeals Council, which denied the request on September 17, 3 2019. (Id. at 2-5) Therefore, the ALJ’s determination became the final decision of the Commissioner 4 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). Substantial evidence is “more than a mere 13 scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a 14 conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 15 305 U.S. 197 (1938)). The record as a whole must be considered, because “[t]he court must consider 16 both evidence that supports and evidence that detracts from the ALJ’s conclusion.” Jones v. Heckler, 17 760 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 the five-step process, the ALJ first determined Plaintiff had not engaged in 13 substantial gainful activity since the alleged onset date of April 20, 2017. (Doc. 11-3 at 18) Second, 14 the ALJ found Plaintiff’s severe impairments included: “history of non-occlusive [deep vein 15 thrombosis] of right leg; degenerative joint disease of the bilateral knees, status-post right total knee 16 replacement on April 11, 2018; hypertension; and degenerative disc disease of the lumbar spine.” (Id. 17 at 19) At step three, the ALJ determined Plaintiff’s impairments did not meet or medically equal a 18 Listing. (Id. at 21-22) Next, the ALJ found: 19 [T]he claimant has the residual functional capacity to perform work as follows: Lift 20 pounds [occasionally]; lift and or carry 10 pounds frequently; and stand and walk 20 not more than 4 hours total in an 8-hour workday. In addition, the claimant can only occasionally climb stairs or ramps. The claimant can frequently balance, but should 21 not kneel, crouch, or crawl, climb ladders, ropes, or scaffolding.

22 (Id. at 22) With this residual functional capacity, the ALJ determined at step four that Plaintiff “was 23 unable to perform any past relevant work.” (Id. at 24) At step five, the ALJ found “there are jobs that 24 exist in significant numbers in the national economy that the claimant can perform.” (Id.) Thus, the 25 ALJ concluded Plaintiff was not disabled within the meaning of the Social Security Act. (Id. at 26) 26 DISCUSSION AND ANALYSIS 27 Plaintiff argues the ALJ had a duty to develop the record and obtain functional assessments 28 from a treating or examining source. (Doc. 19 at 9) In addition, Plaintiff asserts the ALJ erred “by 1 rejecting the more restrictive opinions from non-examining sources without comment.” (Id., emphasis 2 omitted) Finally, Plaintiff contends the ALJ failed to properly consider his subjective statements and 3 incorporate limitations consistent with his testimony in the residual functional capacity. (Id. at 13-15) 4 The Commissioner argues that “[t]he ALJ gave good reasons supported by substantial evidence, a 5 deferential standard of review, for finding Plaintiff not disabled.” (Doc. 20 at 7) 6 A. Waiver and Duty to Develop the Record 7 As an initial matter, the Commissioner argues that “Plaintiff forfeited his duty to develop 8 argument because his attorney advised the ALJ that the administrative record was complete.” (Doc. 9 20 at 12, emphasis omitted) Specifically, Plaintiff asserts the ALJ had a duty “to develop the record 10 and obtain an assessment of Plaintiff’s physical limitations from a treating or examining source.” 11 (Doc. 19 at 9, emphasis omitted) 12 The Ninth Circuit determined, “at least when claimants are represented by counsel, they must 13 raise all issues and evidence at their administrative hearings in order to preserve them on appeal" or 14 those issues are forfeited.” Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). Thus, the Court 15 indicated that when a claimant fails entirely to raise an issue before both the ALJ and the Appeals 16 Council, he “forfeits such a challenge on appeal, at least when that claimant is represented by 17 counsel.” Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017) (as amended Feb. 28, 2018); see 18 also Phillips v. Colvin, 593 F. App’x 683, 684 (9th Cir. 2015) (finding an “issue was by … failure to 19 raise it at the administrative level when he was represented by counsel”). 20 Importantly, courts have determined that when counsel represents a claimant at the hearing and 21 indicates the record is “complete,” the claimant waived any challenge that the ALJ erred by not 22 developing the record. See, e.g., Findley v. Saul, 2019 WL 4072364 at *6 (E.D. Cal. Aug. 28, 2019); 23 Chavez v. Berryhill, 2019 WL 4738235 at *10 (N.D. Cal. Sept. 27, 2019) (where counsel stated 24 “unequivocally” that “[t]he record is complete,” the court found the plaintiff waived her argument that 25 “the Commissioner failed to develop the record” because the issue was not raised at the hearing); 26 Michelle Alicia S. v. Berryhill, 2019 WL 631913 at *8 (C.D. Cal. Feb. 14, 2019) (“the ALJ did not err in 27 not developing the record further,” and the claimant “waived her right to make the [argument] by 28 agreeing that the record was complete”); Morussi v. Astrue, 2012 WL 5412106 (C.D. Cal. Nov. 5, 2012) 1 (rejecting an argument that “the ALJ erred in failing to obtain additional treatment records” because 2 “[t]he ALJ had no obligation to search for additional records when plaintiff’s attorney affirmatively 3 represented that the records were complete”). 4 For example, in Findley, the claimant was represented by counsel at the administrative hearing. 5 Id., 2019 WL 4072364 at *6. “[A]t the hearing, the ALJ asked Plaintiff’s attorney if the record was 6 complete, and he responded, ‘It is indeed.’” Id. Despite, this, on appeal, Findley argued the ALJ erred 7 in not developing the record, which included only opinions from the non-examining state agency 8 physicians. Id. at *5-6. The Court noted the crux of Findley’s argument was that “the ALJ erred by 9 failing to obtain additional medical source opinions.” Id. at *6. However, the burden was on the 10 claimant “to present evidence of disability” and “the mere absence of a report from a treating or 11 examining physician does not give rise to a duty to develop the record.” Id. Based upon counsel’s 12 representation at the hearing that the record was complete, the Court concluded “the ALJ was not 13 obligated to further develop the record.” Id. 14 As in Findley, Plaintiff observes that the only medical opinions in the record are from the state 15 agency physicians and argues the ALJ had a duty to develop the record to include “an assessment of 16 Plaintiff’s physical limitations from a treating or examining source.” (Doc. 19 at 9, emphasis omitted) 17 However, Plaintiff was represented at the administrative hearing by counsel, Jonathan Pena, who is 18 also representing Plaintiff with this appeal. (Doc. 11-3 at 34) The ALJ asked Mr. Pena if he “had the 19 opportunity to review the record.” (Id.) Mr. Pena confirmed he reviewed the record. (Id.) The ALJ 20 inquired whether the record was “complete,” to which Mr. Pena responded: “Yes, it is.” (Id.) Because 21 counsel confirmed the record was complete—and did not raise the issue at the administrative level that 22 the only medical opinions in the record were those of non-examining physicians—the issue has been 23 waived on appeal. See Meanel, 172 F.3d at 1115; Findley, 2019 WL 4072364 at *6; Chavez, 2019 24 WL 4738235 at *10. 25 B. Evaluation of Plaintiff’s Subjective Statements 26 Plaintiff testified he had “deep vein thrombosis in [his] right leg” and arthritis in both feet.. 27 (Doc. 11-3 at 40) In addition, Plaintiff stated he had knee issues since 1985, when he was in a car 28 accident that required surgery on his left knee. (Id. at 42-43) He reported that due to the left knee 1 injury, he “favored [his] right knee so long that it actually became deteriorating as well.” (Id. at 42) 2 Plaintiff said he had right knee replacement surgery in April 2018. (Id. at 41) 3 He reported he felt “physically weaker” from taking blood thinners, and he was unable to stand 4 as long as he could before. (Doc. 11-3 at 40) For example, Plaintiff said he could stand for 15 to 20 5 minutes before his knees felt sore and his right calf started swelling. (Id.) Plaintiff said he walked 6 “without an assistive device,” and could walk “two city blocks before …[needing] to rest.” (Id. at 42- 7 43) However, on a “bad day,” he could walk [m]aybe a block” and stand for only “[f]ive, ten minutes” 8 before he needed to sit. (Id. at 47) He stated that even after surgery, he continued to have pain and 9 swelling in the right knee, for which he took “[l]ots of Tylenol” because he “refuse[d] to take 10 narcotics.” (Id. at 43) He stated he also iced his leg and sat “in a relined position as much as possible.” 11 (Id.) Plaintiff said he spent “8 to 12 hours a day” with his leg elevated. (Id. at 44-45) He said he took 12 several power naps throughout the day, that totaled “20 minutes to an hour” together. (Id. at 46) 13 Plaintiff said he and a partner owned a restaurant, that he visited “at least once a week.” (Doc. 14 11-3 at 37) He stated he was “a silent partner,” controlling “[t]he financial credit portion.” (Id.) 15 Plaintiff explained he “dictate[d] how the money is managed and so forth,” but he could not “take a 16 profit unless all bills are paid.” (Id.) According to Plaintiff, the business “filed a loss of $2,000” in the 17 year prior to the hearing. (Id.) Plaintiff stated that during his visits to the restaurant, he would “sit at a 18 table” because he did not have an office, and usually spent the entire day there. (Id. at 37-38) He stated 19 that he had two chairs on which to elevate his legs in the back of the restaurant. (Id. at 45) 20 1. Standards for reviewing a claimant’s statements 21 In evaluating a claimant’s statements regarding the severity of his symptoms, an ALJ must 22 determine first whether objective medical evidence shows an underlying impairment “which could 23 reasonably be expected to produce the pain or other symptoms alleged.” Lingenfelter v. Astrue, 504 24 F.3d 1028, 1035-36 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). 25 Second, if there is no evidence of malingering, the ALJ must make specific findings as to credibility by 26 setting forth clear and convincing reasons for rejecting a claimant’s subjective complaints. Id. at 1036. 27 If there is objective medical evidence of an impairment, an ALJ may not discredit a claimant’s 28 testimony as to the severity of symptoms merely because it is unsupported by objective medical 1 evidence. See Bunnell v. Sullivan, 947 F.2d 341, 347-48 (9th Cir. 1991). The Ninth Circuit explained: 2 The claimant need not produce objective medical evidence of the [symptom] itself, or the severity thereof. Nor must the claimant produce objective medical evidence of the 3 causal relationship between the medically determinable impairment and the symptom. By requiring that the medical impairment “could reasonably be expected to produce” 4 pain or another symptom, the Cotton test requires only that the causal relationship be a reasonable inference, not a medically proven phenomenon. 5 6 Smolen v. Chater 80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in Cotton, 799 7 F.2d 1403 (9th Cir. 1986)). Further, an ALJ is directed to identify “specific reasons for the weight 8 given to the individual’s symptoms,” in a manner such that the claimant “and any subsequent reviewer 9 can assess how the adjudicator evaluated the individual’s symptoms.” Social Security Ruling1 16-3p, 10 2017 WL 5180304 (2017); see also Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (findings 11 “must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's 12 testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony”). 13 An ALJ may consider additional factors to assess a claimant’s statements including, for 14 example: (1) the claimant’s reputation for truthfulness, (2) inconsistencies in testimony or between 15 testimony and conduct, (3) the claimant’s daily activities, (4) an unexplained, or inadequately 16 explained, failure to seek treatment or follow a prescribed course of treatment, and (5) testimony from 17 physicians concerning the nature, severity, and effect of the symptoms of reported by a claimant. Fair 18 v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see also Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th 19 Cir. 2002) (an ALJ may consider a claimant’s reputation for truthfulness, inconsistencies between a 20 claimant’s testimony and conduct, and a claimant’s daily activities). 21 2. The ALJ’s analysis of Plaintiff’s statements 22 Addressing Plaintiff’s statements regarding his impairments and the severity of his symptoms, 23 the ALJ stated: 24 The claimant estimated that he could stand for only 15-20 minutes, and then his knees become sore and his right calf starts to swell. However, as of September 8, 2017, the 25 claimant: “admits he is on and off his feet all day, which is not helping his knees” (Ex. 15F, p. 8). The undersigned appreciates that the claimant had knee pain, that ultimately 26

27 1 Social Security Rulings (SSRs) are “final opinions and orders and statements of policy and interpretations” issued by the Commissioner. 20 C.F.R. § 402.35(b)(1). The Ninth Circuit gives the Rulings deference “unless they are 28 plainly erroneous or inconsistent with the Act or regulations.” Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 1 necessitated total knee replacement in April 2018. However, standing only 15-20 minutes, as alleged by the claimant, is very much less than being on and off his feet “all 2 day,” as the claimant reported he was doing, circa September 2017. The claimant acknowledged that at the time of the hearing, he was able to walk without use of an 3 assistive device such as a cane or walking stick. The undersigned notes that at the time that the claimant filed his application, circa August 2016, he also denied the need to use 4 an assistive device such as a cane (Ex. 6E, p. 7).

5 To address his pain symptoms, the claimant testified that he took “lots of Tylenol” along with ice, and that he sits in a reclined position as much as possible. The claimant 6 acknowledged that he could walk about 2 city blocks and that he had received no medical treatment for his feet. However, the claimant asserted that he needed to elevate his left 7 foot for 8-8½ hours on average each day, an alleged requirement the undersigned is unable to locate the claimant having reported to his physicians in the record. The 8 claimant added that he also had problems with prolonged sitting because then, his calf starts to swell. The claimant estimated that as often as 3-4 days a week, he suffered “bad 9 days” in which he could walk only “maybe 1 block” and he could sit for only 5-10 minutes. The undersigned finds no durational medical explanation or findings to support 10 the claimant’s extreme sitting limitation as subjectively alleged during the hearing.

11 (Doc. 11-3 at 23) Plaintiff argues that the ALJ failed to provide “clear and convincing” reasons for 12 rejecting his statements regarding his “symptoms and limitations.” (Doc. 19 at 15) 13 a. Capacity to work 14 The Commissioner asserts that “the ALJ reasonably cited Plaintiff’s capacity to work cited 15 Plaintiff's ability to work while impaired with the allegedly disabling symptoms” in evaluating the 16 credibility of Plaintiff’s subjective complaints. (Doc. 20 at 22, citing AR at 19 [Doc. 11-3 at 20]) In 17 the portion of the decision cited by the Commissioner, the ALJ provided a chronological history of the 18 medical record and noted: “As of September 8, 2017, after reportedly opening a restaurant, the claimant 19 reported that he was “on and off his feet all day, which is not helping his knees.” (Doc. 11-3 at 20) At 20 no point in the decision did the ALJ make a finding that Plaintiff’s activity with the restaurant 21 demonstrated a “capacity to work,” and the ALJ did not consider Plaintiff’s work history in relation to 22 the hearing testimony. 23 The Court is constrained to review only the reasons identified by the ALJ and cannot consider 24 post-hoc reasoning provided by the Commissioner. See Connett v. Barnhart, 340 F.3d 871, 874 (9th 25 Cir. 2003) (noting a reviewing court is “constrained to review the reasons the ALJ asserts”); Pinto v. 26 Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001) (decision cannot be affirmed on the basis of a ground 27 that was not invoked in the decision). Because the ALJ did not identify Plaintiff’s “capacity to work” 28 or work history as reasons to discount Plaintiff’s subjective complaints, the Court is unable to consider 1 this reason identified by the Commissioner. See id.; see also Vera v. Colvin, 2015 WL 7271750 at *7 2 n.6 (E.D. Cal. Nov. 18, 2015) (“the court declines to consider the Commissioner's additional reason in 3 support of the ALJ's determination”). 4 b. Inconsistent statements 5 An ALJ may consider “inconsistent statements concerning the symptoms” a claimant alleges as 6 part of a credibility determination. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). Here, the 7 ALJ purports to identify inconsistent statements by Plaintiff regarding his ability to stand. (See Doc. 8 11-3 at 23) In the treatment note to which the ALJ refers, Plaintiff reported he owned a sandwich shop 9 and admitted he was “on and off his feet all day ‘which is not helping his knees in any way.’” (Doc. 11- 10 16 at 64) However, it is unclear the extent to which Plaintiff being “on and off his feet” is inconsistent 11 with his testimony that he could stand for 15-20 minutes on a good day, and 5-10 minutes on a bad day, 12 before he needed to sit. (See id. at 40, 47) 13 Further, the ALJ has not identified any conflicting statements from Plaintiff regarding use of an 14 assistive device. Instead, Plaintiff consistently stated that he was able to walk without a cane, walking 15 stick, or other assistive device. (See Doc. 11-3 at 23; see also Doc. 11-7 at 45 [Exh. 6E, p. 7]; Doc. 11- 16 3 at 43 [hearing testimony]) It is unclear how Plaintiff’s candor regarding the fact he did not need an 17 assistive device undermines his credibility regarding the severity of his symptoms. Thus, the Court is 18 unable to find the ALJ identified inconsistent statements that are “clear and convincing” support for the 19 rejection of Plaintiff’s testimony. 20 c. Inconsistency with objective medical evidence 21 Generally, “conflicts between a [claimant’s] testimony of subjective complaints and the 22 objective medical evidence in the record” can constitute “specific and substantial reasons that 23 undermine … credibility.” Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 24 1999). The Ninth Circuit explained, “Although lack of medical evidence cannot form the sole basis for 25 discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis.” Burch, 26 400 F.3d at 681; see also SSR 96-7p, 1996 SSR LEXIS 4, at *2-3 (the ALJ “must consider the entire 27 case record, including the objective medical evidence” in determining credibility, but statements “may 28 not be disregarded solely because they are not substantiated by objective medical evidence”). In 1 rejecting testimony as conflicting with the medical record, it is not sufficient for the ALJ to make a 2 simple statement that the testimony is contradicted by the record. Holohan v. Massanari, 246 F.3d 3 1195, 1208 (9th Cir. 2001). The ALJ “must state which pain testimony is not credible and what 4 evidence suggests the claimants are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 5 The ALJ did not base her decision solely on the fact that the medical record did not support the 6 degree of symptoms alleged by Plaintiff. However, the other reason identified by the ALJ failed to 7 support the adverse credibility determination, and a conflict with the objective medical evidence is the 8 only reason remaining in support of the credibility finding. Because it is well-established that a 9 claimant’s subjective complaints may not be discredited as unsupported by the medical record, this 10 factor alone cannot support the ALJ’s decision to reject Plaintiff’s testimony. See Rollins v. Massanari, 11 261 F.3d 853, 857 (9th Cir. 2001) (“subjective pain testimony cannot be rejected on the sole ground 12 that it is not fully corroborated by objective medical evidence”). 13 Moreover, the ALJ failed to identify evidence in the record that conflicted with Plaintiff’s 14 testimony concerning his pain. Although the ALJ indicated she found no medical evidence “to support 15 the claimant’s extreme limitation” and was “unable to locate” records related to Plaintiff’s need to 16 elevate his foot, the treatment record supports Plaintiff’s testimony that he needs to keep his leg elevate. 17 Robert McLeod, PA, indicated in September 2017 that he “[s]poke with [Plaintiff] about him elevating 18 his leg above his heart as often as he can to relieve the symptoms of DVT.” (Doc. 11-16 at 65) 19 Because the ALJ failed to identify specific evidence in the record that conflicted with Plaintiff’s 20 testimony concerning his symptoms and limitations, the objective medical record could not support the 21 decision to reject Plaintiff’s statements concerning his need to sit and elevate his leg. 22 3 Conclusion 23 The factors considered by the ALJ do not support her decision to reject Plaintiff’s statements 24 concerning his physical limitations, and the ALJ failed to reject Plaintiff’s testimony “on permissible 25 grounds.” Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); see also Thomas, 278 F.3d at 958. 26 C. The Residual Functional Capacity 27 A claimant’s residual functional capacity is “the most [a claimant] can still do despite [his] 28 limitations.” 20 C.F.R. §§ 404.1545(a), 416.945(a); see also 20 C.F.R. Part 404, Subpart P, Appendix 2, 1 § 200.00(c) (defining an RFC as the “maximum degree to which the individual retains the capacity for 2 sustained performance of the physical-mental requirements of jobs”). In formulating an RFC, the ALJ 3 weighs medical and other source opinions, as well as the claimant’s credibility. See, e.g., Bray v. 4 Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 2009). Further, the ALJ must consider “all 5 of [a claimant’s] medically determinable impairments,” whether severe or not, when assessing an RFC. 6 20 C.F.R. §§ 405.1545(a)(2), 416.945(a)(2). 7 Plaintiff contends the ALJ erred in her formulation of the RFC not only for not incorporating the 8 limitations to which he testified, but also rejecting portions of the opinions identified by Drs. Kohng 9 and Tayloe. (Doc. 19 at 9-13) The ALJ noted that Drs. Khong and Tayloe “opined a range of 2 to 4 10 hours continuous standing and walking for a total of 6 hours standing and walking, which is equivocal 11 with respect to the sedentary or light range of work.” (Doc. 11-3 at 25, citing Exhs. 1A, 3A [Doc. 11-4 12 at 5-9, 20-22]) In her RFC determination, the ALJ indicated Plaintiff could “stand and walk not more 13 than 4 hours total in an 8-hour workday.” (Doc. 11-3 at 22) Thus, Plaintiff argues the ALJ committed 14 reversible error by failing to adopt the specific limitations identified by Drs. Khong and Tayloe, who 15 gave a “more limited classification of Plaintiff’s ability to stand and walk.” (Doc. 19 at 10, citing 16 Roach v. Comm’r of Soc. Sec., 2019 WL 3026992, at *12 (E.D. Cal. July 11, 2019)). 17 Significantly, the opinions of non-examining physicians may “serve as substantial evidence 18 when the opinions are consistent with independent clinical findings or other evidence in the record.” 19 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). “[T]he fact that a non-examining state agency 20 physician fails to review the entire record does not, by itself, mean that his or her opinion cannot serve 21 as substantial evidence.” Maliha K. v. Saul, 2020 WL 2113671, at *6 (C.D. Cal. May 4, 2020); see also 22 Meadows v. Saul, 807 Fed. App’x 643, 647 (9th Cir. 2020) (finding the ALJ did not err in giving great 23 weight to the opinions of non-examining physicians, though they did not review any evidence in the file 24 after a specific date); Owen v. Saul, 808 Fed. App’x 421, 423 (9th Cir. 2020) (“there is always some 25 time lapse between a consultant's report and the ALJ hearing and decision, and the Social Security 26 regulations impose no limit on such a gap in time”). On the other hand, the opinion of a non-examining 27 physician is not substantial evidence “if the physician had no opportunity to review subsequent 28 evidence that undermined that opinion.” Maliha K., 2020 WL 2113671, at *6 (citing Hill v. Astrue, 698 1 F.3d 1153, 1160-61 (9th Cir. 2012) (a non-examining physician’s opinion was not substantial evidence 2 when the physician could not have considered a more recent, severe panic attack). 3 Plaintiff asserts the decisions of Drs. Khong and Tayloe could not be substantial evidence to 4 support the RFC because “their opinions were not based upon personal examination or access to a 5 complete medical file.” (Doc. 19 at 11) Plaintiff observes that after the non-examining physicians 6 reviewed the record in 2016, x-rays that revealed “extensive arthritic changes” in the left foot and 7 degenerative change in the navicular/talar joint in the right foot. (Id. at 12, citing AR 551, 573-74, 484- 8 92 [Doc. 11-12 at 48-50; Doc. 11-13 at 2-7; Doc. 11-14 at 22, 44-45]) Plaintiff was advised to elevate 9 his leg above his heart “as often as he can” due to his DVT in September 2017. (Id.; see also Doc. 11- 10 16 at 65) Plaintiff also underwent imaging of his lumbar spine in February 2018, which showed 11 “severe spondylosis,” “facet joint arthropathy on the right,” and “milder diffuse spondylosis.” (Id.; 12 Doc. 11-16 at 81) Finally, Plaintiff had a total right knee replacement in April 2018, as the ALJ 13 acknowledged in her finding of severe impairments. (Id., see also Doc. 11-3 at 19) 14 As Plaintiff argues, the non-examining physicians’ opinions were formed without knowledge of 15 Plaintiff’s total right knee replacement surgery, his need to elevate his leg, or his severe impairment of 16 degenerative disc disease of the lumbar spine. Because no physician reviewed the imaging results or 17 the clinical findings related to Plaintiff’s knee replacement surgery or degenerative disc disease, the 18 ALJ clearly rendered her own medical findings as to the physical limitations caused by these 19 impairments, concluding that Plaintiff could sit for four hours, and engage in limited postural 20 activities.2 It is well-settled law that an ALJ is not empowered to independently assess clinical findings 21 and may not render her own medical opinion. See, e.g., Tackett v. Apfel, 180 F.3d 1094, 1102-03 (9th 22 Cir. 1999) (holding an ALJ erred in rejecting physicians' opinions and rendering his own medical 23 opinion); Banks v. Barnhart, 434 F. Supp. 2d 800, 805 (C.D. Cal. 2006) (“An ALJ cannot arbitrarily 24 substitute his own judgment for competent medical opinion, and he must not succumb to the temptation 25 to play doctor and make his own independent medical findings”); Nguyen v. Chater, 172 F.3d 31, 35 26

27 2 The ALJ gave more restrictive postural limitations in the RFC than those of the physicians of record, who opined Plaintiff could occasionally kneel, crouch, and crawl. (Compare Doc. 11-4 at 9, 21 with Doc. 11-3 at 22 [ALJ indicated in 28 the RFC that Plaintiff could never perform these activities]) 1 (1st Cir. 1999) (as a lay person, the ALJ is “simply not qualified to interpret raw medical data in 2 functional terms”). Because the evidence before the ALJ undermined the limitations imposed by 3 Drs. Khong and Tayloe—as implicitly acknowledged by the more restrictive postural limitations 4 identified by the ALJ—their opinions are not substantial evidence in support of the RFC. See Hill, 698 5 F.3d at 1160-61; Maliha K., 2020 WL 2113671, at *6. 6 D. Remand is Appropriate 7 The decision whether to remand a matter pursuant to sentence four of 42 U.S.C. § 405(g) or to 8 order immediate payment of benefits is within the discretion of the district court. Harman v. Apfel, 9 211 F.3d 1172, 1178 (9th Cir. 2000). Except in rare instances, when a court reverses an administrative 10 agency determination, the proper course is to remand to the agency for additional investigation or 11 explanation. Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004) (citing INS v. Ventura, 537 U.S. 12 12, 16 (2002)). Generally, an award of benefits is directed when: 13 (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 14 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. 15

16 Smolen v, 80 F.3d at 1292. In addition, an award of benefits is directed where no useful purpose would 17 be served by further administrative proceedings, or where the record is fully developed. Varney v. 18 Sec’y of Health & Human Serv., 859 F.2d 1396, 1399 (9th Cir. 1988). 19 The ALJ failed to identify legally sufficient reasons for rejecting Plaintiff’s testimony related to 20 the severity of his symptoms and the resulting limitations. Because the ALJ is obligated to consider the 21 claimant’s testimony in determining the RFC, the matter should be remanded for further proceedings. 22 See, e.g., Bunnell, 947 F.2d at 348; see also Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003). In 23 addition, the matter should be remanded because the RFC articulated by the ALJ lacks the support of 24 substantial evidence in the medical record. See Tackett, 180 F.3d at 1102-03 (remanding the matter to 25 for reconsideration after finding the ALJ erred by offering his own medical conclusion). 26 CONCLUSION AND ORDER 27 For the reasons set for above, the Court finds the ALJ erred in evaluating the medical record and 28 Plaintiff’s subjective complaints. Consequently, the ALJ’s decision cannot be upheld. See Sanchez, 1 812 F.2d at 510. Accordingly, the Court ORDERS: 2 1. Plaintiff’s appeal of the administrative decision denying benefits (Doc. 19) is 3 GRANTED; 4 2. The matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 5 proceedings consistent with this decision; and 6 3. The Clerk of Court is DIRECTED to enter judgment in favor of Plaintiff Eric Neal 7 Johnson, and against Defendant Andrew Saul, Commissioner of Social Security. 8 9 IT IS SO ORDERED.

10 Dated: February 25, 2021 /s/ Jennifer L. Thurston 11 UNITED STATES MAGISTRATE JUDGE

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