(SS) Fox v. Commissioner of Social Security

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 LAURA FOX, Case No. 1:19-cv-00146-LJO-SAB

12 Plaintiff, FINDINGS AND RECOMMENDATIONS

RECOMMENDING GRANTING

13 v. PLAINTIFF’S SOCIAL SECURITY

APPEAL AND REMANDING ACTION FOR

14 COMMISSIONER OF SOCIAL SECURITY, FURTHER ADMINISTRATIVE

PROCEEDINGS

15 Defendant.

(ECF Nos. 27, 28, 29)

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OBJECTIONS DUE WITHIN FOURTEEN

17 DAYS

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19 I.

20 INTRODUCTION

21 Laura Fox (“Plaintiff” or “Fox”), proceeding in this action through Brittany L. Keenaas

22 as successor in interest,1 seeks judicial review of a final decision of the Commissioner of Social

23 Security (“Commissioner” or “Defendant”) denying her application for disability benefits

24 pursuant to the Social Security Act. The matter was referred to a United States magistrate judge

25 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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1 On the docket, the successor’s last name is spelled as “Keenaas,” however, the correct spelling appears to be

27 “Keena.” (AR 112.) Additionally, as early as the time of the administrative hearing, Ms. Keena had changed her

last name to “Gonzalez.” (AR 31.) The Court will refer to the successor as Ms. Keena in this opinion as it appears

1 On November 21, 2016, Plaintiff passed away at the age of fifty-three (53) from a post

2 cerebrovascular accident with cerebral edema. (AR 353.) Prior to her passing, Plaintiff suffered

3 from degenerative disc disease of the lumbar spine and amphetamine abuse. For the reasons set

4 forth below, the Court recommends that Plaintiff’s Social Security appeal be granted, and that

5 this action be remanded for further administrative proceedings consistent with this findings and

6 recommendations.

7 II.

8 BACKGROUND

9 A. Procedural History

10 On April 13, 2015, Plaintiff filed a Title II application for a period of disability and

11 disability insurance benefits. (AR 184-186, 187-193.) Plaintiff alleged disability beginning on

12 March 1, 2015. (AR 187.) Plaintiff’s application was initially denied on August 10, 2015, and

13 denied upon reconsideration on September 18, 2015. (AR 81-86, 89-94.) Plaintiff requested and

14 was scheduled to appear for a hearing before Administrative Law Judge Lisa Lunsford (the

15 “ALJ”). (AR 95-96, 97-111.) Plaintiff passed away prior to the scheduled hearing, and

16 Plaintiff’s daughter Brittany L. Keena substituted in as a surviving party. (AR 112.) Ms. Keena

17 appeared and testified before the ALJ via videoconference at a hearing conducted on November

18 27, 2017. (AR 29-59.) On January 10, 2018, the ALJ issued a decision finding Plaintiff was not

19 disabled prior to November 17, 2016, but became disabled on that date with a period of disability

20 continuing until her death on November 21, 2016. (AR 12-28.) On December 4, 2018, the

21 Appeals Council denied Plaintiff’s request for review. (AR 1-6.)

22 Plaintiff filed the instant action with this Court on February 2, 2019. (ECF No. 1.) On

23 October 2, 2019, Plaintiff filed a motion for summary judgment in support of remand. (ECF No.

24 27.) Defendant filed a brief in opposition on October 23, 2019. (ECF No. 28.) On November 1,

25 2019, Plaintiff filed a reply brief. (ECF No. 29.)

26 B. Summary of the Medical Evidence and Agency Opinions in the Record

27 The earliest medical evidence in the record is from Plaintiff’s visit to Adventist Health on

1 occurring for one week, stated there was no recent injury, and denied back pain. (AR 330.)

2 Plaintiff complained of weakness in the legs and trouble walking, but reported no neck or back

3 pain, and reported she had never experienced this before. (AR 330.) Plaintiff reported daily use

4 of liquor and tobacco, and had a history of methamphetamine use though she reported stopping

5 for a while, but admitted use the day prior on her birthday. (Id.) Plaintiff reported running out of

6 insurance a few years prior and stated that was when she stopped taking her thyroid medication.

7 (Id.) Current medications included aspirin and tramadol. (AR 331.) The musculoskeletal exam

8 showed antalgic gait, and the neurologic exam showed normal deep tendon reflexes and

9 difficulty with heel and toe walk due to decreased sensation in both lower extremities, though

10 Plaintiff was able to extend the great toes bilaterally. (Id.) Plaintiff was discharged with

11 instructions to go to the hospital for further evaluation and testing. (AR 329.)

12 Per the discharge instructions, on the same day, March 2, 2015, Plaintiff went to the St.

13 Agnes Hospital complaining of back pain and numbness, tingling, and weakness in the lower

14 legs lasting one week, and a pain score of four (4) in addition to another pain score of three (3)

15 on another assessment. (AR 270-276.) Plaintiff was out of her hypothyroid medication and had

16 not taken the medication for two years. (AR 277, 282.) The nurse practitioner (“NP”) wrote

17 “[n]o back pain” under history of illness and under musculoskeletal symptoms, but noted

18 numbness in the bilateral extremities, and Plaintiff’s reporting of a floating feeling when

19 standing up. (AR 277.) The musculoskeletal exam showed normal range of motion, normal

20 strength, and found Plaintiff was ambulatory. (AR 278.) The neurological exam found normal

21 steady gait. (Id.) An examination of the back showed no midline tenderness, and 5/5 strength on

22 bilateral upper and lower extremities. (Id.) Plaintiff reported alcohol, tobacco, and amphetamine

23 use. (Id.) Plaintiff was diagnosed with amphetamine abuse, a urinary tract infection, and

24 paresthesia. (AR 280.) Plaintiff was prescribed the pain medication gabapentin, levothyroxine

25 for hypothyroidism, a medication for the infection, as wells as recommended to take aspirin.

26 (Id.)

27 Plaintiff again visited Adventist Health on March 5, 2015, for follow-up after the hospital

1 several years ago but lost her insurance and didn’t have money for healthcare; that she had

2 symptoms for two weeks; denied injury; was willing to have x-rays of the lower back as well as

3 physical therapy; was aware she will have labs in eight to ten weeks to evaluate the effectiveness

4 of thyroid medication; and was also aware if her symptoms worsened she would need to be

5 evaluated again in an emergency room. (AR 326.) Current medications were listed as aspirin,

6 gabapentin, levothyroxine, and nitrofurantoin. (AR 327.) Hypothyroid, liver damage, and

7 numbness/tingling in the legs was confirmed. (Id.) A musculoskeletal exam showed normal

8 active range of motion of the lumbar spine, and “NVI to lower extremities” is written.2 (AR

9 327.) The treatment plan directed Plaintiff to obtain an x-ray of the lumbar spine, attend physical

10 therapy for evaluation, recheck the thyroid in eight to ten weeks, and follow-up in one month.

11 (Id.)

12 Two months later, on May 6, 2015, Plaintiff visited Adventist Health with a chief

13 complaint of needing a refill of levothyroxine. (AR 321.) The NP noted Plaintiff had visited

14 two months prior to establish care for paresthesia in the lower extremities, that Plaintiff denied

15 acute injury, denied weakness in the legs, and stated her symptoms persisted or are worsening.

16 (AR 321.) Plaintiff stated she had not had x-rays of the lumbar spine yet but would obtain them

17 after the visit, and stated she had not heard about physical therapy but would call the referral

18 specialist for an update. (AR 321.) Plaintiff stated she had been taking the levothyroxine but ran

19 out of the medication about one month prior. (Id.) Exam notes confirmed hypothyroid, liver

20 damage, and numbness/tingling in both legs. (AR 322.) A musculoskeletal exam showed:

21 decrease range of motion of the lumbar spine; mild lumbar paraspinal muscle tenderness to

22 palpation without obvious deformity, swelling or erythema; pedal pulses intact, strong and equal;

23 and slight decreased sensation to touch. (Id.) The proposed plan was for Plaintiff to obtain a

24 refill of levothyroxine, obtain x-rays, obtain lab tests, check on physical therapy, and to follow-

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2 “NVI” is associated with the phrase: “neurovascular intact.” See Appendix B. Medical Abbreviations, 3 Cal.

Med. Malprac. L. & Prac. Appendix B (2018 ed.) (defining the acronym NVI as neurovascularly intact); Hogan v.

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Colvin, No. 1:12-CV-1093 MAT, 2015 WL 667906, at *5 (W.D.N.Y. Feb. 17, 2015) (citing medical record utilizing

acronym NVI to mean neurovascular intact). However, the term “neurovascular injury” is also utilized in medical

27 terminology, however the Court could not locate any documents clearly associating the term with the acronym NVI.

See, e.g., Skeens v. Colvin, No. 14-CV-05754 JRC, 2015 WL 4459342, at *1 (W.D. Wash. July 21, 2015) (utilizing

1 up in two months or sooner if there were abnormal x-rays. (Id.)

2 On the same date, May 6, 2015, Plaintiff received an x-ray of the lumbar spine. (AR

3 309.) Dr. Athate found the x-ray showed normal lumbar lordosis, no substantial scoliosis,

4 normal alignment of the vertebrae, unremarkable soft tissues, along with spondylytic changes

5 seen in the lumbar vertebrae with reduced disc space at L5-S1, and mild retrolisthesis seen in the

6 body of L5 vertebra. (Id.)

7 On June 10, 2015, Plaintiff visited Adventist Health with a chief complaint of leg

8 numbness and a bruise to the mid-back, and reported pain at a level seven (7) or eight (8). (AR

9 318.) Plaintiff stated bending, twisting, and lifting made the symptoms worse, while resting,

10 warmth, and medications improved the symptoms. (Id.) Plaintiff exhibited radicular symptoms

11 to the right lower extremity. (Id.) Plaintiff stated she had not heard about physical therapy, and

12 that she took one Norco daily for pain management. (Id.) Exam notes confirmed chronic

13 radicular lower back pain, hypothyroid, liver damage, and numbness and tingling in both legs.

14 (AR 319.) A musculoskeletal exam showed: active range of motion to the upper spine was

15 limited by pain; no obvious deformity, swelling or erythema; confirmed bruising in the mid to

16 lower back; and that the area was tender to palpation. (Id.) Plaintiff was prescribed Norco once

17 a day for pain and was to follow-up in one month for evaluation and thyroid tests. (Id.)

18 On July 2, 2015, Plaintiff visited Adventist Health with chief complaints noted as refill of

19 Norco pain medication, and a pregnancy test. (AR 310.) Current medications were noted as

20 Norco, levothyroxine, and non-prescription aspirin. (Id.) Exam notes confirmed chronic

21 radicular lower back pain, hypothyroid, liver damage, missed period, and numbness and tingling

22 in both legs. (AR 311.) The musculoskeletal exam showed the active range of motion of the

23 lumbar spine was essentially normal with pain at the end range, with tenderness to palpation of

24 lumbar paraspinal muscles. (AR 311.) Plaintiff’s Norco prescription was filled, with zero future

25 refills authorized. (AR 312.)

26 In August of 2015, state agency physician Deborah Wafer, reviewed Plaintiff’s medical

27 records specifically noting the records were limited, appearing to only have the March 2, 2015

1 2, 2015 exam record reflected normal exam findings with a discharge diagnosis of acute lower

2 back pain, amphetamine abuse, paresthesia, and urinary tract infection. (AR 63.) Dr. Wafer

3 noted that Plaintiff had not taken hypothyroid medication in two years, and stated

4 “hypothyroidism can cause paresthesias especially when one has not taken medication.” (AR

5 64.) Dr. Wafer opined that Plaintiff “would resolve her impairments if she took medications,”

6 and found her allegations partially credible but not supported by the medical record evidence,

7 and the agency denied Plaintiff’s application. (AR 64-67, 81-86.)

8 Plaintiff’s request for reconsideration was denied on September 18, 2015. (AR 89-94.)

9 In reviewing Plaintiff’s application for reconsideration, the agency considered the following

10 alleged changes in Plaintiff’s condition: (1) Plaintiff’s indication that her condition changed

11 around June of 2015 when she began experiencing greater difficulty walking and began taking

12 pain medication; and (2) Plaintiff’s claim of a new condition beginning in July of 2015 when she

13 was diagnosed with lumbar radiculopathy and had x-rays showing signs of mild retrolisthesis.

14 (AR 69.) State agency physician J. Frankel reviewed the following medical records: (1) the

15 March 2, 2015 visit to the emergency room; (2) the May 6, 2015 office visit and x-ray results; (3)

16 the June 10, 2015 office visit; and (4) the July 2, 2015 office visit. (AR 72.) Given the new

17 records, including the x-ray results, Dr. Frankel found Plaintiff’s claims partially credible and

18 found a medium residual functional capacity determination was appropriate. (AR 73.) Dr.

19 Frankel opined that Plaintiff could stand and walk six hours per day, sit six hours per day, lift

20 and carry up to 50 pounds occasionally and 25 pounds frequently, and limited Plaintiff to

21 stooping frequently. (AR 74-75.) The agency denied Plaintiff’s application for reconsideration

22 finding Plaintiff not disabled. (AR 76-78, 89-94.)

23 On November 20, 2015, Plaintiff presented to Clinica Sierra Vista for back care treatment

24 following a change in residence. (AR 482.) On February 1, 2016, Plaintiff followed up for

25 treatment and Plaintiff’s doctor increased her Meloxicam dosage and added Gabapentin. (AR

26 465.) Plaintiff’s straight-leg raising test was negative. (Id.) On February 15, 2016, Plaintiff

27 again had a negative straight-leg raising test, and a CT scan was requested. (AR 466-68.) On

1 gait and was diagnosed with vitamin D deficiency, hypothyroid, lower back pain, and lumbar

2 radiculopathy/paresthesia. (AR 471.)

3 On March 8, 2016, Plaintiff received a CT scan of the lumbar spine. (AR 439.) The scan

4 showed: (1) mild leftward scoliosis associated with disc desiccation and advanced disc

5 degenerations at T11-12, T12-L1, L1-L2, L2-L3, and L5-S1; (2) mild disc bulges at L3-L4 and

6 L4-L5; (3) no fractures or lytic or blastic metastatic lesions, with anterior osteophytes visible;

7 and (4) unremarkable paravertebral soft tissues. (AR 440.) On March 21, 2016, Plaintiff was

8 referred to an orthopedist for further evaluation and treatment of her lower back pain. (AR 474.)

9 On June 15, 2016, Plaintiff visited orthopedist Dr. Wahba. (AR 475.) Plaintiff stated she

10 had been experiencing back pain for many years that was slowly getting worse, and that a year

11 and a half prior she had developed numbness and tingling in the bilateral legs. (AR 475-478.)

12 Plaintiff complained that the pain was generally across the entire lower back area, was at a level

13 seven (7), and was constant regardless of position or activity level with nothing making it feel

14 better. (AR 475.) The physical exam showed Plaintiff had steady gait, had normal posture, was

15 able to perform both a heel walk and a tandem walk, had tenderness in the midline spine, had

16 normal range of motion in the hips, had normal 5/5 strength in all areas of the lower extremity

17 motor exam, had normal sensation in her legs apart from decreased sensation that did not

18 correspond to dermatomal patterns, and had pain with deep flexion in the lumbar spine. (AR

19 477-478.) Plaintiff received x-rays of the lumbar spine which showed a 14-degree scoliosis from

20 L2-L4 apex south 3-4, severe degenerative disc disease at L5-S1, as well as moderate

21 degenerative disc disease at T12-L3. (AR 478.) Dr. Wahba reviewed the March 8, 2016 CT

22 scan which showed multilevel moderate to severe spondylosis with moderate degenerative disc

23 disease at T12-L1, L1-2, and L2-3, as well as severe degenerative disc disease at L5-S1 with

24 foraminal stenosis bilaterally greater on the right than on the left. (AR 478.) Based on the

25 symptoms exhibited with the lower extremities, Dr. Wahba recommended an MRI to determine

26 if there is any focal stenosis, noting “[h]owever, given the diffuse pattern of her complaints I

27 believe it’s unlikely that this will end up being a clear spinal ideology [and] [i]f her MRI does

1 consultation as well to evaluate for non-spine related neuropathies or other conditions.” (AR

2 478.)

3 On June 24, 2016, Plaintiff received an MRI of the lumbar spine. (AR 441.) The MRI

4 showed: (1) degenerative changes most marked at L5-S1, with a mild canal, and severe right and

5 moderate to severe left-sided foraminal stenosis; (2) mild to moderate canal and bilateral

6 foraminal stenosis at L3-L4; (3) mild canal stenosis and mild to moderate bilateral foraminal

7 stenosis at T12-L1, L1-2, L2-3, and L4-5; (4) mild canal stenosis with no compression upon the

8 underlying thoracic spinal cord at T10-11 and T11-12; and (5) an otherwise negative MRI scan

9 of the lumbar spine. (AR 442.)

10 On November 18, 2016, Plaintiff was admitted to a hospital “complaining of left-sided

11 weakness with a history of substance abuse with positive drug screen for amphetamine and

12 opiates,” and was diagnosed with an altered mental status and a cerebrovascular accident. (AR

13 343, 353.) On November 21, 2016, Plaintiff passed away and was diagnosed on discharge with

14 “[s]tatus post cerebrovascular accident with cerebral edema, status post craniotomy with

15 herniation and hemorrhage,” hypothyroidism, and leukocytosis. (Id.)

16 C. The Relevant Hearing Testimony

17 The daughter of Plaintiff and successor in interest, Ms. Keena,3 testified at an

18 administrative hearing via video on November 27, 2017. (AR 31.) Counsel Sidney Mickell was

19 present on behalf of Plaintiff. (Id.)

20 Counsel confirmed there were no outstanding records that he was aware of and confirmed

21 an alleged disability onset date of March 1, 2015. (AR 33.) Counsel then emphasized that while

22 the Plaintiff passed away from a catastrophic cerebrovascular incident, Plaintiff was disabled

23 prior to this incident due to other physical ailments aside from the stroke that caused her to be

24 disabled. (AR 35.) Counsel also argued that Plaintiff’s vocational profile would fall within grid

25 rule 201.14, as disabled with a residual functional capacity for sedentary work. (AR 35.) Ms.

26 Keena testified that she recalled Plaintiff mainly working as a cook, at the Trading Post, and then

27 3 As discussed above, by the time of the hearing testimony, Ms. Keena had changed her last name to Gonzalez, and

was going by the name Brittany Lorraine Gonzalez during the testimony. (AR 31.) However, both parties refer to

1 South Gate Brewing Company. (AR 36.)

2 The ALJ then asked the VE what information he may require to clarify any part of the

3 record. (AR 36-37.) The VE stated the descriptions of the jobs showed a lot more preparation,

4 stocking, dishwashing, and other work aside from cooking. (AR 37.) The VE found the

5 definition for “kitchen helper” seemed more inclusive of these types of duties. (Id.) The VE

6 stated he would like to know if Plaintiff was essentially only a cook, or if the other duties were

7 more frequent than the cooking duties. (Id.)

8 Counsel then emphasized the job description included moving 25 to 50 pounds of wood

9 for the pizza oven and heavy cooking pots, and the VE responded such work was more

10 consistent with a kitchen helper position. (AR 37.) The ALJ noted other jobs including manager

11 with tasks including stocking, ordering products, customer service, book work, and cleaning the

12 store, along with substantial gainful activity level earnings at a food mart from that time period,

13 and thus the ALJ found three jobs performed as substantial gainful activity. (AR 38.) The VE

14 stated he considered the manager position to be a retail manager because Plaintiff supervised

15 other people and the definition permits the manager to perform the actual work in addition to

16 supervising such work. (AR 38-39.)

17 Counsel then examined Ms. Keena. Ms. Keena was not living with Plaintiff in March of

18 2015, as at that time Plaintiff was living with Ms. Keena’s brother’s father in Ahwahnee,

19 California. (AR 39.) During that time, Ms. Keena had occasional contact with Plaintiff through

20 phone calls, or maybe a visit for a birthday or Christmas. (Id.) As of March 1, 2015, the alleged

21 onset date, Ms. Keena recalls Plaintiff frequently complaining about health problems such as

22 back pain, numbness or weakness in the legs, cramping or numbness in the hands, and occasional

23 headaches. (AR 39-40.) Ms. Keena recalled that when she was five to ten years old, about

24 fifteen or twenty years prior to the testimony, Plaintiff would have problems with her hands

25 when she would help Ms. Keena with her hair or makeup. (AR 40.) At that time, Ms. Keena

26 also recalled Plaintiff had some lower back pain and when Plaintiff would return home from

27 work she would have to sit because of back pain. (Id.) Plaintiff was not active other than going

1 complaints about headaches at that time, though the complaints were significantly greater in the

2 last three years prior to the hearing. (Id.) Ms. Keena was not aware of the reason why the

3 complaints increased in the past three years. (Id.) During this more recent period of time,

4 Plaintiff would complain about not wanting to walk the dogs because her legs or head hurt, and

5 wouldn’t feel like staying up to watch a movie because of a headache. (Id.)

6 About a year and a half prior to the hearing, Plaintiff moved closer to Ms. Keena when

7 she moved in with her mother, son, and his family. (AR 41-42.) During this time period, Ms.

8 Keena would usually see Plaintiff at least once a week. (AR 42.) They would not go out but

9 would either sit around the house and watch a movie, or try to play with Plaintiff’s grandchild by

10 sitting down and tossing a ball, coloring, or playing computer games. (Id.) During this time,

11 Ms. Keena observed that Plaintiff was always physically limited with everything. (Id.) For

12 example, Plaintiff would need frequent sitting breaks when assisting with cooking. (Id.)

13 Plaintiff would do some quick activities for about twenty minutes and then need to take a break

14 for about twenty or thirty minutes. (AR 43.) This level of limitation was in contrast to how

15 Plaintiff acted when Ms. Keena was a teenager and Plaintiff would do things such as going to

16 Magic Mountain theme park, but stopped doing that five years ago because she could not walk

17 that much and was afraid to go on the rides. (Id.) After moving back in the area Plaintiff did not

18 leave the house much but would occasionally go to a friend’s house, however, those visits would

19 involve a lot of sitting and just hanging out, and Plaintiff would get to the friend’s house by

20 getting a ride from somebody else. (Id.)

21 Plaintiff told Ms. Keena that she stopped working because she couldn’t stand as long as

22 she needed to at work anymore. (AR 43-44.) At this time, Plaintiff said she would have to lay

23 down and take a nap because her head hurt or couldn’t feel her legs, so she couldn’t go on walks

24 or be more active with Ms. Keena. (AR 44.) Ms. Keena said Plaintiff would comment on her

25 legs often, and after sitting for a time, if she tried to get up she would have to sit right back down

26 because she couldn’t feel her legs. (AR 44.) Plaintiff was wobbly when standing up, would take

27 her time, and brace herself on nearby objects. (Id.) Ms. Keena did not observe Plaintiff using a

1 affecting Plaintiff other than the pain in the legs, back, hands, and the headaches. (AR 46-47.)

2 Ms. Keena stated that Plaintiff would sometimes lay in bed napping almost all day, or

3 other parts of the day she would do things like helping Ms. Keena’s grandmother in cleaning the

4 bathroom or parts of the house after taking sit breaks, and then she would go take a nap for a

5 couple hours. (AR 45.) Plaintiff would nap all day about twice a week. (Id.) The farthest that

6 Ms. Keena saw Plaintiff walk in the last year of her life was to the mailbox and back, about three

7 houses down. (Id.) Ms. Keena saw Plaintiff occasionally drive during the last year to the store

8 or to a friend’s house, only about once a week, as Ms. Keena’s grandmother would not give

9 Plaintiff the car too often. (AR 45-46.)

10 To Ms. Keena’s most recent knowledge, Plaintiff was not taking her medication because

11 she could not afford to do so, but prior to then Plaintiff was always regular with taking

12 medication. (AR 46.) Plaintiff could not afford the medication because she didn’t have a job

13 after working at South Gate and only had limited money paid by Ms. Keena’s grandmother if she

14 helped around the house, which wasn’t enough money for medication from what Ms. Keena

15 observed. (Id.)

16 Ms. Keena believes Plaintiff received her GED and was attempting to go back to college.

17 (AR 47.) Plaintiff wanted to be an alcohol and drug counselor, but that did not work out. (Id.)

18 The ALJ then began examination of the vocational expert Lawrence Hughes (the “VE”).

19 (AR 47-48.) The VE classified Plaintiff’s first two jobs listed as cook, but clarified they really

20 appeared to be a kitchen helper position as discussed previously during the hearing, which is

21 medium work. (AR 48-49.) The other position of retail manager was classified as light work,

22 but heavy as performed according to the records. (AR 49.)

23 The ALJ first presented a hypothetical person of the same age, education, and work

24 experience as Plaintiff, who was limited to light work but also limited to frequent stooping. (AR

25 49.) The VE testified that the person would be able to perform the retail manager job as the job

26 is typically classified. (Id.) For a second hypothetical the ALJ reduced the exertional level to

27 sedentary, again with a limitation of frequent stooping, and the VE testified the person would not

1 testified that the retail manager position has financial transaction skills and trains other people on

2 the forms of payment. (AR 49-50.) The VE noted a sedentary position as check cashier in the

3 check cashing industry was a position that would fit within Plaintiff’s skill set. (AR 50.) The

4 VE stated this was likely the only sedentary job without more information about Plaintiff’s

5 previous level of interaction with customers, however telemarketer was another potential

6 position with Plaintiff’s experience as a retail manager. (AR 50-52.)

7 The ALJ presented a third hypothetical person who was unable to complete a full

8 workday in any combination of sitting, standing, or walking, and the VE Confirmed the inability

9 to complete an eight-hour workday would preclude all work. (AR 52.)

10 Plaintiff’s counsel then examined the VE. (AR 52.) Counsel inquired about the VE’s

11 reliance on the description of Plaintiff’s position as retail manager, which did not explicitly

12 mention anything about cashing checks, and the VE conceded it did not. (AR 53.) The VE

13 conceded check cashing is becoming less common with more people using debit cards. (Id.)

14 The VE stated he did not have knowledge of whether Plaintiff had ever cashed a check in her life

15 in a store, but stated retail managers routinely do so, particularly in the earlier time period of

16 2004 to 2011. (Id.) Counsel asked the VE if Plaintiff’s job description specifically discussed

17 whether she trained people, and the VE stated the job description stated she supervised two to

18 three people, called herself a manager, and did customer service, and the VE stated he makes

19 certain assumptions when someone says they are a manager and supervises people in a retail

20 environment. (AR 53-54.)

21 Counsel then inquired about the telemarketing position’s requirement for inputting

22 information into a computer and asked if the VE was aware of any computer skills that the

23 Plaintiff had. (AR 54.) The VE responded that he makes assumptions from her previous

24 positions, such as that she used a cash register, a form of a computer, and that Plaintiff said she

25 did book work and that during the time period in question there would ordinarily be a computer

26 involved. (Id.) The VE also stated that computers are involved in every part of life now, and

27 such skills are not a big part of the keyboarding involved in telemarketing. (AR 55.) Counsel

1 setting, and the VE stated it is not that different, particularly if you are a manager in sales. (Id.)

2 The VE stated the SVP for a telemarketer is as low as it gets in the unskilled or semi-skilled job

3 categories, and the Department of Labor now rates telemarketing as unskilled. (Id.)

4 The fourth hypothetical was in line with the second, but with occasional fingering. (AR

5 55-56.) The VE stated this would change the analysis in that the check cashier and telemarketing

6 positions require frequent fingering. (AR 56.)

7 At the end of the hearing, counsel asked Ms. Keena whether Plaintiff ever trained people,

8 and Ms. Keena stated she had never personally seen her train anyone. (Id.) Counsel also made a

9 final statement that he had run telemarketing companies, and while hard to argue against an

10 expert, commonsense says that the requirements of telemarketing including convincing someone

11 to buy something they can’t see, versus standing behind a counter waiting for someone to buy an

12 item and hand over money is completely different. (AR 57.) Counsel then stated that as to

13 check cashier, counsel’s experience was that if you try and cash a check at such store they would

14 “laugh at you,” and there is no evidence that Plaintiff had any of these skills that the VE

15 suggested she may have. (Id.) Counsel also stated 11,000 check cashing jobs in the country is

16 not enough. Further, counsel argued the evidence clearly showed that for about a year and half

17 after stopping work in March of 2015, Plaintiff was having severe problems with her hands and

18 feet, and would be limited to sedentary work, as Ms. Keena testified that Plaintiff required breaks

19 every twenty minutes, couldn’t stand and cook longer than twenty minutes, and was essentially

20 in bed all day a couple days a week. (AR 58.) Counsel argued that if Plaintiff was limited to

21 sedentary work she would not have any transferable skills and would not fall within the grid

22 guidelines, and even if she didn’t “grid out” with hypothetical three, with even one day off a

23 week or a need for a twenty minute break every twenty minutes, a finding of disabled was

24 required. (AR 58.)

25 D. The ALJ’s Findings

26 The ALJ made the following findings of fact and conclusions of law:

27 • Plaintiff meets the insured status requirements of the Social Security Act through June

1 • Plaintiff had not engaged in substantial gainful activity after the alleged onset date.

2 • From the alleged onset date of disability, March 1, 2015, until the determined later onset

3 date, November 17, 2016, Plaintiff had the following severe impairments: degenerative

4 disc disease of the lumbar spine and amphetamine abuse. Beginning on the established

5 onset date of disability, November 17, 2016, Plaintiff had the following severe

6 impairments: degenerative disc disease of the lumbar spine, amphetamine abuse, and

7 catastrophic cerebrovascular accident (CVA) with brain herniation status-post

8 craniectomy.

9 • Since the alleged onset date of disability, March 1, 2015, Plaintiff has not had an

10 impairment or combination of impairments that meets or medically equals the severity of

11 one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.

12 • Prior to November 17, 2016, the date Plaintiff became disabled, Plaintiff had the residual

13 functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) except

14 Plaintiff was limited to no more than frequent stooping.

15 • Beginning on November 17, 2016, Plaintiff had the residual functional capacity to

16 perform sedentary work as defined in 20 C.F.R. 404.1567(a) except Plaintiff was unable

17 to complete an 8-hour workday.

18 • Prior to November 17, 2016, Plaintiff was capable of performing past relevant work as a

19 retail manager. This work did not require the performance of work-related activities

20 precluded by Plaintiff’s residual functional capacity.

21 • Beginning on November 17, 2016, Plaintiff’s residual functional capacity has prevented

22 Plaintiff from being able to perform past relevant work.

23 • Plaintiff was an individual closely approaching advanced age on November 17, 2016, the

24 established disability onset date.

25 • Plaintiff had at least a high school education and was able to communicate in English.

26 • Plaintiff did not have work skills that are transferable to other occupations within the

27 residual functional capacity defined above.

1 November 21, 2016, considering Plaintiff’s age, education, work experience, and residual

2 functional capacity, there are no jobs that exist in significant numbers in the national

3 economy that Plaintiff can perform.

4 • Plaintiff was not disabled prior to November 17, 2016, but became disabled on that date

5 and continued to be disabled through the date of her death on November 21, 2016.

6 • Plaintiff’s substance use disorder(s) is not a contributing factor material to the

7 determination of disability.

8 (AR 16-24.)

9 III.

10 LEGAL STANDARD

11 To qualify for disability insurance benefits under the Social Security Act, the claimant

12 must show that he is unable “to engage in any substantial gainful activity by reason of any

13 medically determinable physical or mental impairment which can be expected to result in death

14 or which has lasted or can be expected to last for a continuous period of not less than 12

15 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Regulations set out a five-step

16 sequential evaluation process to be used in determining if a claimant is disabled. 20 C.F.R. §

17 404.1520; Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1194 (9th

18 Cir. 2004). The five steps in the sequential evaluation in assessing whether the claimant is

19 disabled are:

20 Step one: Is the claimant presently engaged in substantial gainful activity? If so,

the claimant is not disabled. If not, proceed to step two.

21

Step two: Is the claimant’s alleged impairment sufficiently severe to limit his or

22 her ability to work? If so, proceed to step three. If not, the claimant is not

disabled.

23

Step three: Does the claimant’s impairment, or combination of impairments, meet

24 or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the

claimant is disabled. If not, proceed to step four.

25

Step four: Does the claimant possess the residual functional capacity (“RFC”) to

26 perform his or her past relevant work? If so, the claimant is not disabled. If not,

proceed to step five.

27

Step five: Does the claimant’s RFC, when considered with the claimant’s age,

1 exists in significant numbers in the national economy? If so, the claimant is not

disabled. If not, the claimant is disabled.

2

3 Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).

4 Congress has provided that an individual may obtain judicial review of any final decision

5 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g).

6 In reviewing findings of fact in respect to the denial of benefits, this court “reviews the

7 Commissioner’s final decision for substantial evidence, and the Commissioner’s decision will be

8 disturbed only if it is not supported by substantial evidence or is based on legal error.” Hill v.

9 Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” means more than a

10 scintilla, but less than a preponderance. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996)

11 (internal quotations and citations omitted). “Substantial evidence is relevant evidence which,

12 considering the record as a whole, a reasonable person might accept as adequate to support a

13 conclusion.” Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002) (quoting Flaten v. Sec’y of

14 Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)).

15 “[A] reviewing court must consider the entire record as a whole and may not affirm

16 simply by isolating a specific quantum of supporting evidence.” Hill, 698 F.3d at 1159 (quoting

17 Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006). However, it is not

18 this Court’s function to second guess the ALJ’s conclusions and substitute the court’s judgment

19 for the ALJ’s. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is

20 susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be

21 upheld.”).

22 IV.

23 DISCUSSION AND ANALYSIS

24 Plaintiff raises three primary arguments: (A) that the ALJ failed to apply the medical

25 vocational guidelines which find Plaintiff presumptively disabled; (B) that the ALJ failed to

26 develop the record; (C) that the ALJ failed to provide proper weight to the specialists’ opinions.

27

1 (Pl.’s Mot. Summ. J. (“Mot.”) 9-14, ECF No. 27; Pl’s Reply Br. (“Reply”) 4-8, ECF No. 29.)4

2 Above, the Court summarized the relevant medical evidence and agency opinions in the

3 record, infra Section II(B). The Court will now summarize the relevant portions of the ALJ’s

4 opinion before turning to Plaintiff’s specific arguments.

5 A. The ALJ’s Opinion

6 Prior to the catastrophic cerebrovascular accident (CVA”) on November 17, 2016, the

7 ALJ found Plaintiff’s degenerative disc disease of the lumbar spine and amphetamine abuse

8 qualified as severe impairments, however, found Plaintiff’s hypothyroidism was not a severe

9 impairment because it appeared the condition could have been helped medicinally and Plaintiff

10 did not take the medication for more than two years. (AR 19, 277.) Further, the ALJ found the

11 condition did not result in any functional limitations or secondary symptoms, and the state

12 agency physicians found the condition non-severe. (AR 19, 73.)

13 The ALJ evaluated the statements provided by the substituted party, Plaintiff’s daughter

14 Ms. Keena, concerning Plaintiff’s complaints of lower back pain, numbness, weakness in the

15 legs, hand cramps, and occasional headaches, as well as the claim that Plaintiff had stopped

16 working because she could no longer stand for long periods. (AR 20.) The ALJ found the

17 witness statements about the Plaintiff’s symptoms were inconsistent with the objective medical

18 evidence and medical opinions. (AR 20.) The ALJ stated there was no treating source medical

19 opinion that supported greater functional restrictions prior to November 17, 2016. (Id.)

20 The ALJ acknowledged the limited treatment evidence in the record prior to the CVA in

21 November of 2016. (Id.) The ALJ evaluated the March 2015 records reflecting Plaintiff’s

22 hospital visit for low back pain, amphetamine abuse, and paresthesia in the lower extremities,

23 finding it significant that the treatment notes showed the lower extremity numbness was

24 intermittent, for just one week, and that Plaintiff reported no lower back injury. (AR 20, 270,

25 276.) The ALJ noted that while Plaintiff was prescribed gabapentin, there was no treatment

26 evidence to show whether it had an effect on her symptoms, Plaintiff reported a pain score of 4,

27 4 All references herein to pagination of electronically filed documents pertain to those as indicated on the upper

right corners via the CM/ECF electronic court docketing system.

1 and was discharged with a diagnosis of lower back pain in stable condition. (AR 20, 271, 275-

2 76.)

3 The ALJ reviewed the May 2015 lumbar x-ray and acknowledged it revealed spondylytic

4 changes with reduced disc space at the L5-S1 and mild retrolisthesis seen in the L5 vertebra.

5 (AR 20, 309-311.) The ALJ noted Plaintiff was then prescribed Norco and that a lumbar exam

6 revealed Plaintiff’s active range of motion was essentially normal with pain at the end range.

7 (Id.)

8 The ALJ reviewed the March 8, 2016 CT scan of the lumbar spine and acknowledged

9 that it revealed mild scoliosis associated with disc desiccation and degeneration, and mild disc

10 bulges at the L3-4 and L4-5 levels. (AR 20-21, 440.)5

11 The ALJ reviewed the June 24, 2016 MRI of the lumbar spine acknowledging that it

12 showed mild to moderate degenerative disc disease with mild to severe stenosis but no

13 compression on the underlying spinal cord. (AR 21, 442.)

14 The ALJ then again emphasized that “[t]here [was] minimal treatment evidence prior to

15 the established onset date.” (AR 21.) The ALJ stated Plaintiff “was seen on an intermittent basis

16 at Clinica Sierra Vista primarily for complaints of back pain that were treated conservatively

17 with medication only.” (AR 21, 446-511.) The ALJ: (1) stated there was no clear evidence of

18 past physical therapy or pain management treatment; (2) considered Plaintiff presented with

19 negative straight-leg raising testing on February 1 and 15, 2016 (AR 465-66); and (3) noted an

20 “evaluating orthopedist indicated an essentially normal musculoskeletal examination despite the

21 claimant’s subjective allegations . . . but found no clear spinal explanation” for the complaints

22 (AR 475, 477-78). (AR 21.)6

23

24 5 While the ALJ’s summary stated the scoliosis was associated with disc degeneration, the report stated it was

related to advanced disc degenerations at T11-12, T12-L1, L1-L2, L2-L3, and L5-S1 levels. (AR 440.)

25

6 As summarized above, on June 15, 2016, Plaintiff presented with steady gait, had normal posture, was able to

perform both a heel walk and a tandem walk, had tenderness in the midline spine, had normal range of motion in the

26

hips, normal 5/5 strength, and normal sensation in her legs apart from decreased sensation that did not correspond to

dermatomal patterns, and had pain with deep flexion in the lumbar spine. (AR 477-478.) Based on the symptoms

27 exhibited with the lower extremities, Dr. Wahba recommended an MRI to determine if there is any focal stenosis,

noting “[h]owever, given the diffuse pattern of her complaints I believe it’s unlikely that this will end up being a

1 Based on the above evidence, the ALJ concluded that while the Plaintiff’s impairments

2 could reasonably be expected to cause the alleged symptoms, the statements concerning the

3 intensity, persistence and limiting effects were not supported prior to November 17, 2016. (AR

4 21.) The ALJ specifically stated that “[o]f great significance, there is no medical opinion

5 consistent with the claimant’s allegation of disability or which supports any greater restrictions

6 than those determined herein.” (AR 21.) Turning to the opinion evidence, the ALJ gave partial

7 weight to the non-examining state agency sources “in light of a lack of treating or examining

8 source functional assessment [AR 68-77],” giving “great weight to their assessment, except with

9 regard to the exertional level, which is reduced from medium to light to better account for the

10 claimant’s pain and other subjective symptoms.” (AR 21.)

11 The ALJ found that prior to the CVA, the evidence of record did not support the

12 witness’s testimony that Plaintiff was limited to no more than sedentary work. (AR 21.) Here,

13 the ALJ again relied on the June 15, 2016 orthopedist’s exam findings (AR 477-78), also noting

14 that overall Plaintiff only “sought treatment on an intermittent basis for complaints of back pain

15 that were treated conservatively with medication only,” that Plaintiff had a pain score of only

16 four (4) (AR 275), and negative straight-leg-raising tests (AR 465-66). (AR 22.)

17 B. Application of the Medical Vocational Guidelines

18 Plaintiff argues that under the medical vocational guidelines, Fox was presumptively

19 disabled if she could not perform light work as she was approaching advanced age and had

20 minimal education. (Mot. 10.) In support of this argument, Plaintiff highlights that: (1) in her

21 application Plaintiff wrote she could not work because of weakness, numbness in the legs,

22 unsteadiness, pain from prolonged standing, and swelling in the feet and ankles and lower back

23 (AR 219); (2) Ms. Keena’s testimony showed Plaintiff could not stand without taking breaks

24 every twenty minutes and was in pain (AR 57); (3) Orthopedist Dr. Wahba found Plaintiff had an

25 antalgic gait and difficulty with the heel to toe walk due to decreased sensation in the lower

26 extremities (AR 331); (4) Dr. Wahba analyzed four x-rays of Fox’s spine and referred her for

27

a formal neurology consultation as well to evaluate for non-spine related neuropathies or other conditions.” (AR

1 further work up due to lower body numbness (AR 479); and (5) subsequent CT scans showed

2 multilevel moderate to severe spondylosis with moderate degenerative disc disease (AR 478).

3 (Mot. 10-11.) In sum, Plaintiff argues she could not stand or walk six hours a day because of

4 bulging discs which rested on the spine with associated pain, and because of such, body

5 numbness and pain prevented Plaintiff from being able to stand for six hours a day. (Mot. 11.)

6 In briefing, Defendant states that Plaintiff’s briefing is unclear. Defendant does not

7 directly respond to Plaintiff’s argument concerning the medical vocational guidelines, and

8 instead views Plaintiff’s arguments as a collective challenge to the ALJ’s evaluation of the

9 medical and opinion evidence, in addition to arguing that the ALJ had a duty to further develop

10 the record. (Def.’s Opp’n Pl.’s Opening Br. (“Opp’n”) 5-7, ECF No. 28; Mot. 9-14.) The Court

11 agrees with Defendant that Plaintiff’s briefing is unclear in this regard, and the Court views

12 Plaintiff’s argument as essentially a challenge to the ALJ’s evaluation of the evidence of record

13 and the RFC determination. The Court will nonetheless briefly address Plaintiff’s argument that

14 the ALJ failed to properly apply the medical vocational guidelines.

15 The Social Security Administration created the Medical-Vocational Guidelines (the

16 “grids”) to assist in the step-five determination. Hoopai v. Astrue, 499 F.3d 1071, 1075 (9th Cir.

17 2007). The grids “consist of a matrix of the four factors identified by Congress—physical

18 ability, age, education, and work experience—and set forth rules that identify whether jobs

19 requiring specific combinations of these factors exist in significant numbers in the national

20 economy.” Heckler v. Campbell, 461 U.S. 458, 461–62 (1983). “Where a claimant’s

21 qualifications correspond to the job requirements identified by a rule, the guidelines direct a

22 conclusion as to whether work exists that the claimant could perform, [and] [i]f such work exists,

23 the claimant is not considered disabled.” Id. at 462. For each combination of the four factors,

24 the grids “direct a finding of either ‘disabled’ or ‘not disabled’ based on the number of jobs in

25 the national economy in that category of physical-exertional requirements.” Lounsburry v.

26 Barnhart, 468 F.3d 1111, 1115 (9th Cir. 2006). “If a claimant is found able to work jobs that

27 exist in significant numbers, the claimant is generally considered not disabled.” Id.

1 binding on ALJs,” and “reflect the official interpretation of the [SSA] and are entitled to some

2 deference as long as they are consistent with the Social Security Act and regulations.” Molina v.

3 Astrue, 674 F.3d 1104, 1114 n.5 (9th Cir. 2012) (citations omitted). Plaintiff is correct that SSR

4 83-10 states that “the full range of light work requires standing or walking, off and on, for a total

5 of approximately 6 hours of an 8-hour workday.” Soc. Sec. Ruling 83–10. However, Plaintiff

6 only conclusively argues: “Fox could not stand for 6 hours a day and could not meet the

7 requirement for light work . . . the ALJ did not explain how Fox could stand for six hours a day

8 five days a week,” and “[t]herefore, the ALJ did not use the Medical Vocational Profiles

9 accurately.” (Reply 6.) In this regard, Plaintiff appears to make an argumentative leap by

10 contending that Plaintiff could not perform light work due to not being able to stand or walk for

11 more than six hours.

12 The ALJ’s RFC determination limited Plaintiff to light work, but limited Plaintiff to no

13 more than frequent stooping. (AR 19.) The Court notes that SSR 83-10, which Plaintiff relies

14 on, does not explicitly restrict light work to occasional stooping, however does acknowledge that

15 most light positions do not require frequent stooping, as it states that: “[t]he lifting requirement

16 for the majority of light jobs can be accomplished with occasional, rather than frequent,

17 stooping.” Soc. Sec. Ruling 83–10. There is no medical opinion in the record restricting

18 Plaintiff to less than six hours of standing or walking a day, and the ALJ was permitted to weigh

19 the clinical findings and medical evidence in the record in making an RFC determination as “the

20 ALJ is responsible for translating and incorporating clinical findings into a succinct RFC.”

21 Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). Plaintiff was a person

22 closely approaching advanced age, was a high school graduate, and was able to communicate in

23 English. (AR 23, 47.) Therefore, even with an RFC limiting her to light work, and no

24 transferable skills, Plaintiff would not be presumptively disabled under the Medical-Vocational

25 Guidelines. See 20 C.F.R. § Pt. 404, Subpt. P, App. 2.

26 Thus, the Court finds the ALJ did not err by declining to find Plaintiff presumptively

27 disabled under the medical vocational guidelines, as Plaintiff seems to be arguing. The ALJ was

1 hour workday based on the evidence in the record, and therefore was not required to find

2 Plaintiff disabled under the grids. Nonetheless, as explained below, the ALJ did err in failing to

3 have a medical expert provide an opinion or testify concerning objective medical imaging results

4 that were never addressed by a medical expert or physician.

5 C. Development of the Administrative Record and Weight Given to Physician

Opinions

6

7 Next, Plaintiff argues that the ALJ failed to properly develop the administrative record,

8 and when she gave full weight to the non-examining doctors’ decisions, she committed factual

9 error. (Mot. 11-14.) Plaintiff highlights the ALJ’s acknowledgment that there was minimal

10 evidence in the record and the fact the ALJ gave the non-examining state agency sources great

11 weight. Again, Plaintiff’s arguments in briefing are somewhat unclear and her brief section

12 V(B), entitled “the ALJ failed to develop the record,” and brief section V(C), entitled “the ALJ

13 failed to provide proper weight top Fox’s specialists,” appear to overlap in many regards.

14 Therefore, the Court shall address both arguments collectively here. For the reasons explained

15 below, the Court finds the ALJ erred in failing to utilize a medical expert or state agency

16 physician to opine on the interpretation of objective medical imaging results that no physician or

17 expert provided an opinion regarding in relation to Plaintiff’s limitations.

18 The claimant generally has the duty to provide the agency with evidence proving that

19 they are disabled. See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); 42 U.S.C. §

20 423(d)(5)(A) (“An individual shall not be considered to be under disability unless he furnishes

21 such medical and other evidence of the existence thereof”). In making a determination, the

22 agency “shall consider all evidence available in such individual’s case record . . . shall develop a

23 complete medical history of at least the preceding twelve months,” and “shall make every

24 reasonable effort to obtain from the individual’s treating physician (or other treating health care

25 provider) all medical evidence, including diagnostic tests, necessary in order to properly make

26 such determination, prior to evaluating medical evidence obtained from any other source on a

27 consultative basis.” 42 U.S.C. § 423(c)(5)(B).

1 claimant’s interests are considered.” Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006)

2 (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). The ALJ must be especially

3 diligent when the claimant is unrepresented. Widmark, 454 F.3d at 1068; McLeod v. Astrue,

4 640 F.3d 881, 885 (9th Cir. 2011). The “ALJ’s duty to develop the record further is triggered

5 only when there is ambiguous evidence or when the record is inadequate to allow for proper

6 evaluation of the evidence.” Mayes, 276 F.3d 453 at 459-60 (citing Tonapetyan v. Halter, 242

7 F.3d 1144, 1150 (9th Cir. 2001)). A specific finding of ambiguity or inadequacy in the record is

8 not required to trigger the necessity to further develop the record where the record itself

9 establishes the ambiguity or inadequacy. McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011).

10 Plaintiff argues the ALJ based her findings on the non-examining state physician

11 opinions sources which Plaintiff states were based solely on the records from Saint Agnes

12 Medical Center where Fox was seen for one day in urgent care for leg numbness on March 2,

13 2015 (AR 81), and the ALJ gives no other source weight. (Mot. 12.) Plaintiff highlights that

14 Plaintiff wrote in the disability application that her treating doctors were Dr. Ewing and Dr.

15 Gerwahl (AR 256), yet Plaintiff contends those records are not in the administrative record.

16 (Mot. 12.) Plaintiff also emphasizes a record from Dr. Wahba who found antalgic gait and

17 difficulty with the heel to toe walk due to decreased sensation in the lower extremities with a

18 referral to neurology for further analysis (AR 331, 475). (Mot. 12-13.) Plaintiff argues Dr.

19 Wahba’s treatment was not addressed. (Mot. 14.) Plaintiff further argues that the ALJ has the

20 power to subpoena Plaintiff’s doctors, or obtain consultation from a medical expert, but the ALJ

21 did not obtain any medical consultation, and as such, argues the ALJ’s findings are independent

22 medical findings that are not supported by medical evidence, were made using a sparse record

23 that did not include the medical records leading up until Plaintiff’s death, and are thus not

24 supported by substantial evidence. (Mot. 12-14.)

25 As to these specific arguments put forth from Plaintiff, the Court finds the briefing is

26 inaccurate in multiple regards where Plaintiff states certain records were unavailable to the state

27 agency physicians or in her argument that the ALJ wholly failed to address certain aspects of the

1 Gerwahl were not in the administrative record (Mot. 12), is not accurate. Plaintiff reported the

2 following records from Dr. Ewing and Gerwahl in her disability application: (1) November 20,

3 2015; (2) February 1, 2016; (3) February 15, 2016; (4) February 22, 2016; and (5) March 21,

4 2016. (AR 256.) These records all appear in the administrative record as described in the

5 Court’s summary of the medical evidence above, infra Section II(B). (AR 465, 466, 471, 474,

6 482.) Additionally, the ALJ explicitly referenced the records dated February 1 and 15, 2016, in

7 her opinion. (AR 21.)

8 Plaintiff’s argument that the ALJ failed to address Dr. Wahba’s opinion (Mot. 14), is also

9 inaccurate. The ALJ specifically stated that “[a]n evaluating orthopedist indicated an essentially

10 normal musculoskeletal examination despite the claimant’s subjective allegations [AR 475, 477],

11 but found no clear spinal explanation for the claimant’s complaints [AR 478].” (AR 21.) The

12 evaluating orthopedist referred to by the ALJ here is in fact Dr. Wahba, and thus Plaintiff again

13 misstates the record in this regard.

14 Plaintiff’s argument that the non-examining consultants did not have access to the entire

15 record and only used one medical source from the emergency visit to St. Agnes is only partially

16 accurate. The initial review of Plaintiff’s application occurred in August of 2015, and it appears

17 that Dr. Wafer only reviewed the March 2, 2015 treatment records in making the disability

18 determination, with Dr. Wafer specifically opining the records were limited. (AR 63-64.) Thus,

19 on the date of the initial review by Dr. Wafer, Dr. Wafer did not review the following records:

20 (1) the follow-up visit to Adventist on March 5, 2015 (AR 325-27); (2) the visit to Adventist on

21 May 6, 2015 for a refill of medication (AR 321-22); (3) the May 6, 2015 x-ray of the lumbar

22 spine (AR 309); (4) the clinic visit on June 10, 2015 when she was prescribed Norco; and (5) the

23 July 2, 2015 visit to Adventist (AR 310-319).

24 However, as for Plaintiff’s application for reconsideration which was denied on

25 September 18, 2015, in addition to the March 2, 2015 records, Dr. Frankel also reviewed the

26 May 6, 2015 records including the x-ray results, the June 10, 2015 record, and the July 2, 2015

27 records. (AR 71-72.) Therefore, upon reconsideration review, the state agency physician

1 reflect any significant findings differing from the other records reviewed.7

2 The Court does not find the ALJ erred in failing to develop the record insofar as

3 Plaintiff’s argument that the ALJ was required to obtain additional medical records from

4 Plaintiff’s previous treatment, as it appears the sparseness of medical records was due to

5 Plaintiff’s own gaps in seeking treatment, and Plaintiff’s arguments that certain records were not

6 in the record or were never considered by the ALJ is inaccurate. Further, at the administrative

7 hearing, Plaintiff was represented by counsel, and counsel confirmed there were no outstanding

8 records that he was aware of. (AR 33.)

9 Nonetheless, the Court finds the ALJ erred in her RFC determination as there were

10 objective medical testing imaging results in the record that were not analyzed by any doctor or

11 medical expert, and no opinion as to how those medical imaging results would impact Plaintiff’s

12 ultimate RFC or limitations generally. Following the state agency’s reconsideration review on

13 September 18, 2015 (AR 71-72), Plaintiff received a CT scan on March 8, 2016, which showed

14 advanced disc degenerations at T11-12, T12-L1, L1-L2, L2-L3, and L5-S1. (AR 474.) On June

15 15, 2016, Dr. Wahba opined that the CT scan showed multilevel moderate to severe spondylosis

16 with moderate degenerative disc disease at T12-L1, L1-2, and L2-3, as well as severe

17 degenerative disc disease at L5-S1 with foraminal stenosis bilaterally greater on the right than on

18 the left. (AR 478.) Dr. Wahba recommended an MRI to determine if there was any focal

19 stenosis. (Id.) The subsequent June 24, 2016 MRI showed: (1) degenerative changes most

20 marked at L5-S1, with a mild canal, and severe right and moderate to severe left-sided foraminal

21 stenosis; (2) mild canal stenosis and mild to moderate bilateral foraminal stenosis at T12-L1, L1-

22 2, L2-3, and L4-5; and (3) mild canal stenosis with no compression upon the underlying thoracic

23 spinal cord at T10-11 and T11-12. (AR 442.)

24 The ALJ only passingly refers to the objective medical imaging results in her opinion. In

25 reviewing the March 8, 2016 CT scan, the ALJ acknowledged it showed disc degeneration,

26 however did not restate that it showed “advanced” disc degeneration. (AR 20-21.) In her review

27

7 The March 5, 2015 visit was for a follow-up after the March 2, 2015 hospital visit, showed a normal

1 of the June 2016 MRI, the ALJ acknowledged that it showed mild to moderate degenerative disc

2 disease and mild to severe stenosis, but the ALJ’s only explanation of this record is that it

3 showed no compression of the underlying spinal cord. (AR 21.) The ALJ did not explain the

4 impact of the 2016 MRI results showing mild to severe stenosis despite Dr. Wahba’s explicit

5 recommendation to obtain an MRI to determine the presence of stenosis. (AR 21, 478.)

6 The ALJ stated that “[o]f great significance, there is no medical opinion consistent with

7 the claimant’s allegation of disability or which supports any greater restrictions than those

8 determined herein.” (AR 21.) The ALJ then gave partial weight to the non-examining state

9 agency sources “in light of a lack of treating or examining source functional assessment [AR 68-

10 77],” but then gave “great weight to their assessment, except with regard to the exertional level,

11 which is reduced from medium to light to better account for the claimant’s pain and other

12 subjective symptoms.” (AR 21.)

13 The Court is unable to determine how the ALJ arrived at the conclusion that Plaintiff was

14 capable of light work. Further, there is no medical opinion opining on how the most recent

15 medical imaging would impact Plaintiff’s ultimate RFC. Absent adequate explanation of the

16 record, without specific support from a medical source, and with no testimony from a medical

17 expert, the ALJ appears to have defined her own limitations for Plaintiff. The Court finds that

18 this was error. See Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (the ALJ was not

19 qualified as a medical expert and therefore could not permissibly go outside the record to consult

20 medical textbooks for purpose of making his own assessment of the claimant’s physical

21 condition); Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (“As a lay person, ... the ALJ was

22 simply not qualified to interpret raw medical data in functional terms and no medical opinion

23 supported the determination.”); Hoskins v. Comm’r of Soc. Sec., No. 117CV01520LJOSAB,

24 2019 WL 423128, at *14 (E.D. Cal. Feb. 4, 2019) (finding that because an exam record and two

25 most recent MRIs were not reviewed by the state agency physicians, and there was no state

26 medical opinion addressing Plaintiff’s residual functional capacity incorporating these records, it

27 was error to give great weight to the state agency physicians’ RFC determinations when they did

1 117CV01520LJOSAB, 2019 WL 1004573 (E.D. Cal. Feb. 28, 2019); Daniel Garcia v. Comm’r

2 of Soc. Sec., No. 1:18-CV-00914-SAB, 2019 WL 3283171, at *7 (E.D. Cal. July 22, 2019)

3 (holding the ALJ erred in assigning great weight to the non-examining state expert opinion as

4 although the cervical MRI was considered by the ALJ, the MRI was not reviewed by the state

5 agency physician, and thus, there was no state medical opinion addressing Plaintiff’s residual

6 functional capacity that considers the cervical MRI); Samoy v. Saul, No. 2:18-CV-538-EFB,

7 2019 WL 4688638, at *4 (E.D. Cal. Sept. 26, 2019) (holding the ALJ’s RFC determination was

8 not supported by substantial evidence because recent “MRI results were not reviewed by the two

9 physicians who provided opinions regarding plaintiff’s functional limitations,” and yet “the ALJ

10 concluded, based on his review, that the MRI results were consistent with” limitations on

11 reaching, and the ALJ was not a medical expert and thus not qualified to interpret raw medical

12 data in functional terms, and thus “the ALJ was required to retain a medical expert to evaluate

13 this evidence.”); see also Tonapetyan, 242 F.3d at 1150-51 (ALJ erred in not developing record

14 and by relying on testimony of physician who indicated more information was needed to make

15 diagnosis and recommended a more detailed report be obtained); Hilliard v. Barnhart, 442

16 F.Supp.2d 813, 818-19 (N.D. Cal. 2006) (ALJ erred by failing to develop record where he relied

17 on the opinion of a physician who recognized he did not have sufficient information to make a

18 diagnosis).

19 D. Remand

20 The ordinary remand rule provides that when “the record before the agency does not

21 support the agency action, . . . the agency has not considered all relevant factors, or . . . the

22 reviewing court simply cannot evaluate the challenged agency action on the basis of the record

23 before it, the proper course, except in rare circumstances, is to remand to the agency for

24 additional investigation or explanation.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d

25 1090, 1099 (9th Cir. 2014). This applies equally in Social Security cases. Treichler, 775 F.3d at

26 1099. Under the Social Security Act “courts are empowered to affirm, modify, or reverse a

27 decision by the Commissioner ‘with or without remanding the cause for a rehearing.’ ”

1 discretionary. Treichler, 775 F.3d at 1100. In Social Security cases, courts generally remand

2 with instructions to calculate and award benefits when it is clear from the record that the

3 claimant is entitled to benefits. Garrison, 759 F.3d at 1019.

4 The Ninth Circuit has “devised a three-part credit-as-true standard, each part of which

5 must be satisfied in order for a court to remand to an ALJ with instructions to calculate and

6 award benefits: (1) the record has been fully developed and further administrative proceedings

7 would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for

8 rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly

9 discredited evidence were credited as true, the ALJ would be required to find the claimant

10 disabled on remand.” Garrison, 759 F.3d at 1020. The credit as true doctrine allows “flexibility”

11 which “is properly understood as requiring courts to remand for further proceedings when, even

12 though all conditions of the credit-as-true rule are satisfied, an evaluation of the record as a

13 whole creates serious doubt that a claimant is, in fact, disabled. Id. at 1021. Even when the

14 circumstances are present to remand for benefits, “[t]he decision whether to remand a case for

15 additional evidence or simply to award benefits is in our discretion.” Treichler, 775 F.3d at 1102

16 (quoting Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989)).

17 Here, further administrative proceedings are warranted as the record raises a serious

18 doubt that Plaintiff is in fact disabled. The Court recommends that this action be remanded for

19 further administrative proceedings consistent with this findings and recommendations.

20 V.

21 CONCLUSION AND RECOMMENDATION

22 Based on the foregoing, the Court finds that the ALJ erred in assigning great weight to

23 the state agency physician opinions and by failing to obtain expert review of recent objective

24 medical imaging by a medical expert or physician. Therefore, substantial evidence does not

25 support the residual functional capacity determination and this action should be remanded for

26 further administrative proceedings.

27 Accordingly, IT IS HEREBY RECOMMENDED that Plaintiff’s appeal from the

1 | back to the Commissioner of Social Security for further proceedings consistent with this

2 | findings and recommendations.

3 This findings and recommendations is submitted to the district judge assigned to this

4 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen

5 | (14) days of service of this recommendation, any party may file written objections to this

6 | findings and recommendations with the court and serve a copy on all parties. Such a document

7 | should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The

8 | district judge will review the magistrate judge’s findings and recommendations pursuant to 28

9 | U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified

10 | time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th

11 | Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

12

3 IT IS SO ORDERED. FA. ee

14 | Dated: _ December 10, 2019

Is UNITED STATES MAGISTRATE JUDGE

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