Williams v. Saul

• Court: District Court, N.D. California
• Decided: February 9, 2021
• Docket: 3:19-cv-07274
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 TERRELL W., Case No. 19-cv-07274-JSC

5 Plaintiff, ORDER RE: CROSS-MOTIONS FOR 6 v. SUMMARY JUDGMENT

7 ANDREW SAUL, Comm’r of Soc. Sec. Re: Dkt. Nos. 18, 23 Admin., 8 Defendant.

10 Plaintiff seeks social security benefits for a combination of physical impairments including 11 carpal tunnel syndrome, tennis elbow, bursitis, high blood pressure, and numbness in both arms. 12 In accordance with 42 U.S.C. § 405(g), Plaintiff filed this lawsuit for judicial review of the final 13 decision by the Commissioner of Social Security denying her benefits claim. Under 28 U.S.C. § 14 636(c), the parties consented to the jurisdiction of a magistrate judge, (Dkt. Nos. 9, 11), and 15 moved for summary judgment. (Dkt. Nos. 18, 23.) Because the Administrative Law Judge erred 16 in his evaluation of the medical evidence in a manner which the Court cannot conclude was 17 harmless, the Court GRANTS Plaintiff’s motion and DENIES Defendant’s cross-motion for 18 summary judgment, and remands for further proceedings consistent with this Order. 19 BACKGROUND 20 On August 10, 2016, Plaintiff filed an application for disability insurance benefits under 21 Title II of the Social Security Act, alleging a disability onset date of August 1, 2014. 22 (Administrative Record (“AR”) 21, 181–90, 307–08.) At the time of the alleged disability onset 23 date, Plaintiff was 54 years of age. (AR 330.) She is a high school graduate, lives alone, is self- 24 reliant, and her recorded weight and height put her in the range of extreme obesity. (AR 27, 158– 25 60, 569, 714.) Plaintiff has an extensive work history dating back to 1979, (AR 325), and her past 26 work experience includes various assembly jobs and work as a department store sales 27 representative. (AR 345.) After her applications were denied initially and upon reconsideration, 1 she submitted a written request for a hearing and Administrative Law Judge (“ALJ”) Thomas J. 2 Gaye held a hearing on April 19, 2018, but concluded the hearing before any substantive 3 testimony because the available administrative record incorrectly included exhibits pertaining to 4 non-parties and did not include all of Plaintiff’s relevant medical records. (AR 133–51.) After the 5 administrative record was corrected, the ALJ scheduled a new hearing for August 10, 2018. Prior 6 to the new hearing date, Plaintiff submitted or informed the ALJ about additional written 7 evidence, but the ALJ declined to admit this additional evidence because it was submitted less 8 than five business days before the scheduled hearing date and thus, did not meet the requirements 9 of 20 C.F.R. 404.935(b). (AR 21.) The ALJ held a hearing on August 10, 2018. (AR 152–80.) 10 The ALJ issued a decision on October 19, 2018, and determined that Plaintiff had the 11 severe impairments of carpal tunnel syndrome, lateral epicondylitis (tennis elbow), osteoarthritis, 12 and obesity. (AR 24.) Further, the ALJ found that these severe impairments “significantly 13 limit[ed] the ability [of Plaintiff] to perform basic work activities . . . .” (AR 24.) But, the ALJ 14 concluded that these severe impairments—considered individually and in combination—did not 15 meet or medically equal one of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. 16 (AR 24.) The ALJ then determined Plaintiff had the residual functional capacity (“RFC”) to: 17 perform light work . . . except fine and gross manipulation of both hands frequently; frequent reaching with the right side; occasional climbing of ladders, ropes, or 18 scaffolds; frequent climbing of ramps and stairs; occasional crawling; and frequent balancing, stooping, kneeling, and crouching. 19 (AR 24, 27.) Based on this RFC, and in light of the vocational expert’s testimony, the ALJ found 20 that Plaintiff could perform her past work as a department store sales representative, a light semi- 21 skilled occupation, and therefore was not disabled. (AR 30.) 22 Plaintiff filed a request for review with the Appeals Council that was denied, making the 23 ALJ’s decision final. (AR 1–6.) Plaintiff thereafter sought review in this Court. (Dkt. No. 1.) In 24 accordance with Civil Local Rule 16-5, the parties filed cross-motions for summary judgment, 25 which are now ready for decision without oral argument. (Dkt. Nos. 18, 23.) 26 LEGAL STANDARD 27 Claimants are considered disabled under the Social Security Act if they meet two 1 requirements. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 2 First, the claimant must demonstrate an “inability to engage in any substantial gainful activity by 3 reason of any medically determinable physical or mental impairment which can be expected to 4 result in death or which has lasted or can be expected to last for a continuous period of not less 5 than 12 months.” 42 U.S.C. § 423(d)(1)(A). Second, the impairment or impairments must be 6 severe enough that they are unable to do their previous work and cannot, based on age, education, 7 and work experience “engage in any other kind of substantial gainful work which exists in the 8 national economy.” 42 U.S.C. § 423(d)(2)(A). In determining disability, an ALJ employs a five- 9 step sequential analysis, examining: 10 (1) whether the claimant is doing substantial gainful activity; (2) whether the claimant has a severe medically determinable physical or mental impairment or 11 combination of impairments that has lasted for more than 12 months; (3) whether the impairment meets or equals one of the listings in the regulations; (4) whether, given 12 the claimant’s residual functional capacity, the claimant can still do his or her past relevant work; and (5) whether the claimant can make an adjustment to other work. 13 Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (internal quotation marks omitted). 14 An ALJ’s “decision to deny benefits will only be disturbed if it is not supported by 15 substantial evidence or it is based on legal error. Substantial evidence means such relevant 16 evidence as a reasonable mind might accept as adequate to support a conclusion.” Burch v. 17 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal quotation marks and citation omitted). 18 Where evidence is “susceptible to more than one rational interpretation,” a reviewing court must 19 uphold the ALJ’s findings. Id. In other words, “[i]f the evidence can reasonably support either 20 affirming or reversing, the reviewing court may not substitute its judgment for that of the [ALJ].” 21 Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 523 (9th Cir. 2014) (internal quotation marks and 22 citation omitted). But, “a decision supported by substantial evidence will still be set aside if the 23 ALJ did not apply proper legal standards.” Id. 24 DISCUSSION 25 Plaintiff contends the ALJ erred by rejecting the more restrictive limitations opined by her 26 treating physicians, and her examining physician, Dr. Sharma. In a nutshell, among other issues, 27 1 has no limitations with her left, (2) is limited only to frequent manipulation with both hands, and 2 (3) would not be required to miss at least four days of work a month. Plaintiff also contends the 3 ALJ erred in rejecting her testimony. 4 A. The Reaching Limitation 5 Examining physician Dr. Sharma prognosticated that Plaintiff was limited to occasionally 6 “reaching overhead above the shoulder with both arms.” (AR 28, 570.) Similarly, consultative 7 non-examining physician Dr. DeSouza stated that Plaintiff has “limited bilateral reaching.” (AR 8 28, 187.) Her treating hand surgeon Dr. Fox opined Plaintiff was limited to occasionally reaching 9 overhead with her left arm, but could continuously reach with her right. (AR 877.) Workers 10 compensation treating hand surgeon Dr. Pertsch found that Plaintiff has a one-pound right-side 11 restriction. (AR 29, 534.) Similarly, treating primary care physician Dr. Mokaya found that 12 Plaintiff can “rarely” engage in handling, fingering, feeling, pushing, or pulling with the bilateral 13 upper extremities. (AR 29, 1072.) 14 The ALJ nevertheless rejected any limitation on left side reaching as not consistent with 15 the medical evidence. In particular, the ALJ stated that Plaintiff “has only mild lateral 16 epicondylitis on the left, which does not support the need for a reaching limitation on the left 17 side,” and because the “lack of objective evidence of a shoulder impairment to support the 18 consultative examiner’s assessment of bilateral shoulder tendonitis causing reaching limitations.” 19 (AR 28.) This finding was error. 20 In assessing medical opinion evidence, courts must “distinguish among the opinions of 21 three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who 22 examine but do not treat the claimant (examining physicians); and (3) those who neither examine 23 nor treat the claimant (non[-]examining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 24 1995). A treating physician’s opinion is entitled to more weight than that of an examining 25 physician, and an examining physician’s opinion is entitled to more weight than that of a non- 26 examining physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). “[T]he opinion of an 27 examining [physician], even if contradicted by another [physician], can only be rejected for 1 ALJ “must provide clear and convincing reasons for rejecting the uncontradicted opinion of an 2 examining physician.” Lester, 81 F.3d at 830–31 (internal quotation marks omitted). 3 The ALJ did not identify any physician’s opinion that contradicted Dr. Sharma’s finding of 4 no lifting restrictions (or the treating physicians’ more extreme restrictions); thus, clear and 5 convincing reasons were required. Lester, 81 F.3d at 830–31. Even under the assumption that Dr. 6 Swami’s lack of any left-side reaching limitation could be considered a contradictory opinion— 7 although not identified as such by the ALJ—the ALJ was still required to provide specific and 8 legitimate reasons supported by substantial evidence. Id. The ALJ failed to do so. 9 First, as a non-examining physician, Dr. Swami’s opinion alone cannot constitute the 10 required substantial evidence. Id. at 831. Second, the ALJ states that mild lateral epicondylitis 11 means Plaintiff cannot be limited in her left side reaching, however, the ALJ does not cite 12 anything in the record to support that conclusion. “An ALJ cannot arbitrarily substitute his own 13 judgment for competent medical opinion . . . [,] and he must not succumb to the temptation to play 14 doctor and make [his] own independent medical findings. Rather, the ALJ’s RFC determination 15 or finding must be supported by medical evidence, particularly the opinion of a treating or an 16 examining physician.” Banks v. Barnhart, 434 F. Supp. 2d 800, 805 (C.D. Cal. 2006) (internal 17 quotation marks and citation omitted). The ALJ’s determination alone contradicted that of the 18 treating and examining physicians. And, he did not identify anything, other than his own 19 interpretation of the medical evidence, to support his contrary determination. If the ALJ suspected 20 that Plaintiff’s mild lateral epicondylitis pointed toward a greater functional capacity than that 21 indicated by Dr. Sharma, “the ALJ should have consulted a qualified medical expert to attempt to 22 confirm or dispel [his] suspicion.” Cartwright-Ladendorf v. Berryhill, No. 17-CV-1920-BAS- 23 JMA, 2018 WL 4252132, at *8 (S.D. Cal. Sept. 6, 2018). The ALJ’s own lay judgment as to 24 whether a patient with mild lateral epicondylitis would have a reaching limitation is not substantial 25 evidence. 26 Although this issue was squarely raised by Plaintiff’s summary judgment motion, 27 Defendant’s cross-motion does not address it; instead, Defendant contends that any error with 1 Defendant insists that even if the ALJ accepted Dr. Sharma’s limitation of occasional bilateral 2 overhead reaching, the record would still support the ALJ’s finding that Plaintiff could perform 3 her past relevant work of department store sales representative. The DOT Listing for department 4 store sales representative requires frequent handling, fingering, and reaching, but does not further 5 define the type of reaching required. See DOT Listing No. 290.477-014. Dr. Sharma limited 6 Plaintiff to occasional overhead reaching and Defendant cites Gutierrez v. Colvin, for the 7 proposition that it is common sense knowledge that one can work as a cashier, or department store 8 sales representative, without engaging in frequent overhead reaching. 844 F.3d 804, 808–09 (9th 9 Cir. 2016). 10 The Court is not persuaded that the ALJ’s error in rejecting the limitation of occasional 11 overhead reaching was not material to his finding that Plaintiff could perform her past work as a 12 department store sales representative.

13 The ALJ may rely on an impartial vocational expert to provide testimony about jobs the applicant can perform despite his or her limitations. The Dictionary of 14 Occupational Titles (“Dictionary”), a resource compiled by the Department of Labor 15 that details the specific requirements for different occupations, guides the analysis. If the expert’s opinion that the applicant is able to work conflicts with, or seems to 16 conflict with, the requirements listed in the Dictionary, then the ALJ must ask the expert to reconcile the conflict before relying on the expert to decide if the claimant 17 is disabled. 18 Gutierrez v. Colvin, 844 F.3d 804, 806–07 (9th Cir. 2016). In Gutierrez, the vocational expert 19 opined that the claimant could work as a cashier based on the proposed RFC, which included the 20 inability to reach above shoulder level. Id. at 807. On appeal, the claimant argued that because 21 the DOT definition “specifies that cashiers must engage in frequent ‘reaching,’ the ALJ erred at 22 step five by not asking the expert more specific questions regarding her ability to perform the job 23 given that she can’t reach overhead with her right arm.” Id. The Ninth Circuit rejected this 24 argument and held that the ALJ’s step five finding was supported by substantial evidence:

25 [T]he ALJ didn’t err because there was no apparent or obvious conflict between the 26 expert’s testimony that [claimant] could perform as a cashier, despite her weight bearing and overhead reaching limitations with her right arm, and the Dictionary’s 27 general statement that cashiering requires frequent reaching. While “reaching” connotes the ability to extend one’s hands and arms “in any direction,” . . . not every good example. 1

2 According to the Dictionary, “frequent reaching” is required of both cashiers and stock clerks. But anyone who's made a trip to the corner grocery store knows that 3 while a clerk stocking shelves has to reach overhead frequently, the typical cashier never has to. To be sure, an ALJ must ask follow up questions of a vocational expert 4 when the expert’s testimony is either obviously or apparently contrary to the Dictionary, but the obligation doesn’t extend to unlikely situations or circumstances. 5 Had the expert opined that [claimant] could stock shelves or wash windows, the 6 conflict would have been apparent and obvious, and the ALJ would have needed to follow up with more specific questions. But where the frequency or necessity of a 7 task is unlikely and unforeseeable—as it is with cashiers having to reach overhead— there’s no similar obligation. 8 Given how uncommon it is for most cashiers to have to reach overhead, we conclude 9 that there was no apparent or obvious conflict between the expert's testimony and the 10 Dictionary. The requirement for an ALJ to ask follow up questions is fact-dependent. While we acknowledge that there may be exceptional circumstances where cashiers 11 have to reach overhead, this case doesn't present any. Responding to the ALJ’s hypothetical question that specifically accounted for [claimant’s] limitations, the 12 expert eliminated all jobs that would have required weight bearing and overhead reaching with her right arm, identifying a single job she could perform despite her 13 limitations. The ALJ was entitled to rely on the expert's “experience in job 14 placement” to account for “a particular job’s requirements,” . . . and correctly did so here. 15 Id. at 808–09 (citations omitted). 16 Here, unlike Gutierrez, the ALJ’s hypothetical question to the vocational expert did not 17 account for Plaintiff’s potential limitations: the issue here is the ALJ’s rejection of the bilateral 18 overhead reaching limitation. Thus, the ALJ could not rely on the expert’s “experience in job 19 placement” because the expert was not asked to use that experience to opine whether a claimant 20 who is limited to only occasional reaching with both arms can perform the department store sales 21 representative position. Further, it is not obvious that a department store sales representative only 22 engages in occasional overhead reaching. (Dkt. No. 24 at 3.) See Lamear v. Berryhill, 865 F.3d 23 1201, 1205 (9th Cir. 2017) (“Contrary to the facts in Gutierrez, we cannot say that, based on 24 common experience, it is likely and foreseeable that an office helper, mail clerk, or parking lot 25 cashier with limitations on his ability to handle, finger and feel with the left hand could perform 26 his duties.”). Thus, the ALJ’s error was not harmless. 27 B. Other Issues 1 As the ALJ erred in his weighing of the medical evidence as to the reaching limitation, and 2 || as the Court cannot conclude as a matter of law that the error is not material to the ALJ’s step four 3 determination, this action must be remanded. The Court declines to consider Plaintiffs additional 4 arguments and notes that many of those arguments touch on whether an ALJ can reject the 5 opinions of treating and examining physicians based on the ALJ’s own bare judgment as to what 6 medical findings in the record mean, an issue resolved by this Order. 7 CONCLUSION 8 For the reasons stated above, the Court GRANTS Plaintiffs motion and DENIES 9 Defendant’s cross-motion for summary judgment. 10 This Order disposes of Docket Nos. 18 and 23. 11 IT IS SO ORDERED. 12 Dated: February 9, 2021

= ’ ne CQWELINE SCOTT CORLEY, IS nited States Magistrate Judge 16

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