# (SS) Madrid v. Commissioner of Social Security

> District Court, E.D. California · June 11, 2020

URL: https://www.frixlaw.com/law-library/cases/10019759

## Case

- **Court:** District Court, E.D. California
- **Decided:** June 11, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10019759

## How later opinions describe it (automated extraction)

- finding the ALJ’s 11 rejection of, among other things, certain medical records “was based on neither clear and 12 convincing reasons nor specific and legitimate reasons that are supported by substantial evidence 13 in the record.”

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 FRANK FERNANDO MADRID, No. 2:19-cv-1421-KJM-KJN
12 Plaintiff, FINDINGS AND RECOMMENDATIONS
ON PARTIES’ CROSS-MOTIONS FOR
13 v. SUMMARY JUDGMENT
14 COMMISSIONER OF SOCIAL (ECF Nos. 17, 23)
SECURITY,
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Defendant.
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17 Plaintiff seeks judicial review of a final decision by the Commissioner of Social Security
18 denying an application for Disability Insurance Benefits under Title II of the Social Security Act.1
19 In his summary judgment motion, plaintiff contends the Administrative Law Judge (“ALJ”) erred
20 by relying on his own lay opinion over the medical record evidence, and by improperly rejecting
21 plaintiff’s symptom testimony and the diagnoses of his physicians. The Commissioner filed an
22 opposition and cross–motion for summary judgment.
23 The court FINDS the ALJ failed in formulating plaintiff’s residual functional capacity.
24 Thus, the court RECOMMENDS the Commissioner’s motion for summary judgment be denied,
25 plaintiff’s motion for summary judgment be granted in part, and the case be remanded for further
26 proceedings.
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1 This action was referred to the undersigned for resolution as findings and recommendations,
28 pursuant to Local Rule 302(c)(15). (See ECF Nos. 5, 9.)
1 I. BACKGROUND AND ALJ’S FIVE–STEP ANALYSIS2

2 On March 31, 2016, plaintiff filed a claim for disability, alleging an onset date of

3 November 15, 2015. (Se e Administrative Transcript (“AT”) 80.) Plaintiff listed as medical

4 conditions the following: “Back Injury; Diabetes.” (AT 78.) Plaintiff’s application was denied

5 initially and again upon reconsideration. (AT 77-84; 86-93.) Plaintiff, aided by an attorney,

6 sought review of these denials with an ALJ. (AT 110.) At an April 17, 2018 hearing, plaintiff

7 testified about his conditions, and t he ALJ heard testimony from a vocational expert regarding the
8 plaintiff’s employment prospects. (AT 27-76.)
9 On June 25, 2018, the ALJ issued a decision determining plaintiff was not disabled from
10 his onset date through the present. (AT 13-22.) At Step One, the ALJ concluded plaintiff had not
11 engaged in substantial gainful activity since November 15, 2016, his alleged disability onset date.
12 (AT 15.) At Step Two, the ALJ found plaintiff had the following severe impairments:
13 degenerative disc disease of the lumbar spine, diabetes with peripheral neuropathy, and obesity.
14 (Id.) However, the ALJ determined at Step Three that plaintiff’s impairments did not meet or
15 medically equal the severity of an impairment listed in Appendix 1. (Id.) (citing 20 C.F.R. Part
16 404, Subpart P, Appendix 1).)

17 2 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social
Security program. 42 U.S.C. §§ 401 et seq. Disability is defined, in part, as an “inability to
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engage in any substantial gainful activity” due to “a medically determinable physical or mental
19 impairment. . . .” 42 U.S.C. § 423(d)(1)(a). A parallel five-step sequential evaluation governs
eligibility for benefits. See 20 C.F.R. §§ 404.1520, 404.1571—76; Bowen v. Yuckert, 482 U.S.
20 137, 140—42 (1987). The following summarizes the sequential evaluation:
Step One: Is the claimant engaging in substantial gainful activity? If so, the
21 claimant is found not disabled. If not, proceed to step two.
Step Two: Does the claimant have a “severe” impairment? If so, proceed to step
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three. If not, then a finding of not disabled is appropriate.
23 Step Three: Does the claimant’s impairment or combination of impairments meet
or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the
24 claimant is automatically determined disabled. If not, proceed to step four.
Step Tour: Is the claimant capable of performing past relevant work? If so, the
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claimant is not disabled. If not, proceed to step five.
Step Five: Does the claimant have the residual functional capacity to perform any
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other work? If so, the claimant is not disabled. If not, the claimant is disabled.
27 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). The claimant bears the burden of proof in
the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5. The
28 Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.
1 The ALJ found plaintiff had the residual functional capacity (“RFC”) to perform medium

2 work, except that he “needed to change positions once per hour for stretch breaks of 5 minutes.”

3 (AT 16.) In reaching thi s conclusion, the ALJ stated she considered plaintiff’s symptom

4 testimony and the objective medical evidence in the record. (Id.) Relevant here, the ALJ found

5 that plaintiff’s testimony regarding the intensity and persistence of his symptoms was inconsistent

6 with the medical and other evidence in the record. (AT 16.) To support her conclusions, the ALJ

7 primarily relied upon the “minimal and sporadic medical records” available, including various
8 examinations and diagnoses between November 2015 and December 2017. (AT 17-20.) The
9 ALJ rejected the only two medical source opinions in the record (the two state-agency physicians
10 who reviewed plaintiff’s claim initially and upon reconsideration), as those doctors errantly
11 disregarded most of the medical evidence due to a coding error in the Commissioner’s system.
12 (AT 17.) Ultimately, the ALJ concluded at Step Four that while plaintiff was incapable of
13 performing his past relevant work, he could perform other jobs existing in significant numbers in
14 the national economy. (AT 21.)
15 On May 23, 2019, the Appeals Council denied plaintiff’s request for review. (AT 1-6.)
16 Plaintiff then filed this action within sixty days, requesting judicial review of the Commissioner’s
17 final decision; the parties filed cross–motions for summary judgment. (ECF Nos. 1, 17, 23, 25.)
18 II. STANDARD OF REVIEW
19 The court reviews the Commissioner’s decision de novo, and should reverse “only if the
20 ALJ's decision was not supported by substantial evidence in the record as a whole or if the ALJ
21 applied the wrong legal standard.” Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017).
22 Substantial evidence is more than a mere scintilla, but less than a preponderance; i.e. “such
23 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
24 Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). “The ALJ is responsible for
25 determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Id.
26 The court will uphold the ALJ’s conclusion where “the evidence is susceptible to more than one
27 rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). Further, the
28 court may not reverse the ALJ’s decision on account of harmless error. Buck, 869 F.3d at 1048.
1 III. ISSUES PRESENTED

2 Plaintiff contends the ALJ’s decision is based on legal error not supported by substantial

3 evidence. First, plaintiff a rgues the ALJ inappropriately translated raw medical data into

4 functional terms without the aid of any medical source statements. Plaintiff notes the ALJ

5 (correctly) gave little weight to the two state-agency opinions because of a coding error, but then

6 had no other physician’s opinion on which to rely when translating his impairments into the RFC.

7 This shortcoming led to the ALJ all egedly relying on her own lay opinion of the evidence and
8 ignoring certain diagnoses from plaintiff’s physicians, which plaintiff contends is error. Second,
9 plaintiff argues the ALJ improperly rejected his symptom testimony. The ALJ stated she did so
10 based on the medical evidence as well as “the state agency sources and consultative examiners
11 [who] found [plaintiff] capable of full range of [] medium work.” Plaintiff contends this
12 conclusion is vague and circular, given that the ALJ had earlier (correctly) rejected the state-
13 agency sources and that the record was otherwise absent of any medical source statements.
14 Plaintiff argues that when his symptom testimony and the diagnoses of his physicians are credited
15 as true, the only remedy is to remand for benefits. (ECF No. 17.)
16 The Commissioner argues the ALJ adequately supported her RFC findings, as it is within
17 her purview to formulate the RFC, and plaintiff failed in his burden to proffer evidence
18 supporting his claims. The Commissioner notes the ALJ reviewed the evidence in the record and
19 found plaintiff’s physical examinations reflected normal and unremarkable diagnoses. Further,
20 the Commissioner argues the ALJ sufficiently detailed why she properly discounted plaintiff’s
21 symptom testimony, as the sparse evidence in the record demonstrated a history of conservative
22 treatment. Thus, the Commissioner argues the decision is free of legal error and supported by
23 substantial evidence, which should result in affirmance. Alternatively, the Commissioner argues
24 any finding for plaintiff should result in a remand further proceedings, as plaintiff challenges
25 ambiguity in the decision. (ECF No. 23.)
26 ///
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1 IV. DISCUSSION

2 A. The ALJ’s RFC formulation is not supported by substantial evidence.

3 The posture of th i s case before the ALJ differs from most cases the undersigned has

4 reviewed. In a majority of these cases, the ALJ analyzes a plaintiff’s claim, including

5 formulation of his or her RFC, by reviewing the symptom testimony, the medical evidence of

6 record, and any number of medical source opinions from treating, examining, or consulting

7 professionals. Here, the ALJ had n o such medical opinions to rely upon, as the two state-agency
8 consultants who reviewed plaintiff’s case at the initial and reconsideration stages did so in error.3
9 Without these medical source statements, the ALJ only had plaintiff’s medical file and his
10 symptom testimony to rely upon, as plaintiff did not submit any other source statements from any
11 treating, examining, or consulting physicians. The question is, then, whether the ALJ’s reliance
12 primarily on the medical record evidence in formulating the RFC meets the “substantial
13 evidence” standard.
14 Plaintiff argues the lack of any medical opinions cuts against such a finding, as he
15 maintains the ALJ is not allowed to translate “raw medical data into functional terms.” Plaintiff
16 relies on such persuasive cases as Vaughn v. Berryhill, wherein Magistrate Judge Austin found
17 error in the ALJ’s substitution of his own lay opinion for that of the plaintiff’s medical experts.
18 242 F.Supp.3d 998, 1008-09 (E.D. Cal. 2017) (citing, among other cases, Nguyen v. Chater, 172
19 F.3d 31, 35 (1st Cir. 1999) (“[As a lay person, the ALJ is] not at liberty to ignore medical
20 evidence or substitute his own views for uncontroverted medical opinion; [he is] simply not
21 qualified to interpret raw medical data in functional terms.”). Plaintiff’s cases are distinguishable,
22 however, as it appears that in Vaughn (and others), the ALJ prioritized his or her opinion over
23 other physicians’ opinions in medical source statements. See Vaughn, 242 F.Supp.3d at 1009
24 (“In this instance, because the ALJ rejected the treating physicians' and the chiropractor's

25 3 As the ALJ noted, these two consulting physicians incorrectly determined plaintiff’s last date
insured was two years prior to the actual date, and so each denied plaintiff’s claim because there
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was insufficient evidence to show he had an impairment prior to 2015. However, the records
27 clearly demonstrated that plaintiff’s claim extended through 2017, and the bulk of the medical
records were from the period between 2015 and 2017. Thus, the ALJ correctly gave the opinions
28 of these two consulting physicians little weight.
1 opinions, he independently interpreted these most recent medical records and devised a sedentary

2 RFC without crediting a medical expert who reviewed all of the medical evidence.”) (emphasis

3 added). And, as other co u rts have noted, an ALJ has the power to “make a disability

4 determination without [medical source statements] in the record.” See Deanna M. v. Berryhill,

5 2019 WL 988691, at *4 (C.D. Cal. Jan. 3, 2019) (“[A]n ALJ properly may evaluate medical

6 evidence and translate it into an RFC assessment in the absence of a medical opinion specifically

7 pertaining to the limitations caused by a claimant’s impairments.”); see also 20 C.F.R.
8 §§ 404.1527(d)(2), 416.927(d)(2) (“We use medical sources, including your treating source, to
9 provide evidence, including opinions, on the nature and severity of your impairment(s). Although
10 we consider opinions from medical sources on issues such as . . . your residual functional capacity
11 . . ., the final responsibility for deciding these issues is reserved to the Commissioner.”).
12 Here, there are no such source statements, as the only two in the record were properly
13 rejected. And at first blush, it appears that the ALJ performed a thorough review of the medical
14 record evidence in formulating plaintiff’s RFC. There are multiple citations to places in the
15 record where plaintiff’s physicians noted his treatment plan, his progress, and other such data.
16 However, upon closer inspection, it appears that almost all of these citations are used by the ALJ
17 solely to refute plaintiff’s symptom testimony. For example, at AT 17-18, the ALJ stated:
18 [W]hile the treatment records have been minimal from the
claimants alleged onset date of November 15, 2015 through his date
19 last insured on December 31, 2017, these same records do not
support the claimants allegations regarding the worsening of his
20 physical impairments and related symptoms causing him to have
functional limitations that impact her ability to work and perform
21 activities of daily living. (Exhibit 2F/1-16; 5F; 6F; 7F/14-19;
10F/1-83; 88-110; 11F/25-30; 40-45; 48-53; 56-59; 13F).
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23 This negating of plaintiff’s symptom testimony is repeated throughout the ALJ’s “Evaluation of
24 Evidence” section, (see AT 17-20). The use of medical record evidence is certainly within the
25 ALJ’s purview when evaluating a claimant’s symptom testimony, and the undersigned takes no
26 issue with this part of her analysis. See 20 C.F.R. § 404.1529(c)(2) (“We must always attempt to
27 obtain objective medical evidence and, when it is obtained, we will consider it in reaching a
28 conclusion as to whether you are disabled.”). But as to how the ALJ affirmatively supported her
1 RFC formulation, the undersigned sees no such discussion—not once does the decision explain

2 how the ALJ arrived at a conclusion that plaintiff should be restricted to “medium work . . .

3 [except that he] needed t o change positions once per hour for stretch breaks of 5 minutes.” The

4 ALJ repeatedly states throughout her “Evaluation of Evidence” that plaintiff’s medical records

5 show that he received “minimal and sporadic treatment,” that his “alleged impairments have been

6 stable without worsening despite the minimal treatments and minimal use of medications,” and

7 that “his overall physical examinati ons were within normal limits.” (AT 17-20.) This analysis
8 begs the question: why not assign an RFC with heavy work (which would match plaintiff’s prior
9 work as a truck driver)? These statements to not convince this “reasonable mind” that her RFC
10 conclusions are well supported. Edlund, 253 F.3d at 1156.
11 Viewed in this light, plaintiff’s case is similar to Bird v. Berryhill, 1:16-CV-00755-SKO,
12 2017 WL 3334009, at *9 (E.D. Cal. Aug. 4, 2017). There, the court noted that “[W]hile the
13 Commissioner regards overall RFC assessments as an administrative determination for the ALJ to
14 make, SSR 96–5p, 20 C.F.R. 404.1527(e), an ALJ’s RFC determination nonetheless must be
15 supported by substantial evidence and the reasoning behind the RFC explained.” Id. (citing 42
16 U.S.C. § 405(b) and 20 C.F.R. § 405.373). The court continued:
17 Here, in making his RFC findings, the ALJ merely described the
medical evidence and then stated conclusions, without explaining
18 how he arrived at his conclusions or what evidence supports his
conclusions. No medical opinions specifically endorse the particular
19 limitations the ALJ defined in the RFC assessment. Without
adequate explanation of the record, without specific support from an
20 expert source, and without potentially synthesizing testimony from a
medical expert, the ALJ apparently defined his own limitations for
21 Plaintiff. This was error.
22 Id. (citing, among others, Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (the ALJ was
23 not qualified as a medical expert and therefore could not permissibly go outside the record to
24 consult medical textbooks for purpose of making his own assessment of the claimant’s physical
25 condition); Nguyen, 172 F.3d at 35 (1st Cir. 1999) (“As a lay person, ... the ALJ was simply not
26 qualified to interpret raw medical data in functional terms and no medical opinion supported the
27 determination.”). As in Bird, the ALJ here must explain how she arrived at her “medium work”
28 formulation, and her failure to do so is error. Edlund, 253 F.3d at 1156.
1 Additionally, in her examination of the evidence, the ALJ appears to have glossed over

2 certain records that are supportive of plaintiff’s claims. As plaintiff notes in his brief, he was

3 referred to a pain special i s t for evaluation. (AT 359.) Dr. Davids noted that conservative

4 treatment failed to resolve plaintiff’s spinal issues, and after plaintiff better controlled his

5 diabetes, he was put under sedation and injected with steroids. (AT 359, 355, 577, 548.) Plaintiff

6 testified at the hearing that the injections had been ineffective and he was being considered for

7 further, less conservative treatment . (AT 44-45.) The ALJ does not appear to have addressed the
8 steroid injections or plaintiff’s treatment at all, and must (at a minimum) provide specific and
9 legitimate reasons for disregarding this issue. Lester v. Chater, 81 F.3d 821, 830-31 (9th
10 Cir.1995); see also Potts v. Colvin, 637 F. App'x 475, 476 (9th Cir. 2016) (finding the ALJ’s
11 rejection of, among other things, certain medical records “was based on neither clear and
12 convincing reasons nor specific and legitimate reasons that are supported by substantial evidence
13 in the record.”).
14 Further, set against this analysis, the undersigned is perplexed at the ALJ’s stated reliance
15 on the “medical opinion evidence” and “state agency” consultants. (See AT 20 (“The State
16 agency sources and consultative examiners found that the claimant is capable of full range of
17 work of medium work.”).) But, as noted above, the ALJ properly rejected the stage agency
18 sources due to the coding error, and there were no other consultative examiners who submitted
19 medical source opinions in this case. This error is likely due to reliance on boilerplate
20 conclusions, but again does not persuade the undersigned that the ALJ devoted the proper amount
21 of time to this decision. Edlund, 253 F.3d at 1156.
22 Given the combination of the above ambiguities and the odd procedural posture of a
23 record lacking in any medical source opinions, the ALJ would be wise to supplement the record
24 with a consultative examination—so as to obviate future disputes over plaintiff’s claims. See,
25 e.g., Deanna M. v. Berryhill, 2019 WL 988691 at * (C.D. Cal. Jan. 3, 2019) (“[A] consultative
26 examination may be required where additional medical evidence is needed to make a disability
27 determination, medical evidence cannot be obtained, technical or specialized evidence is required,
28 or there is a change in the claimant’s condition and the current severity of the claimant’s
2 LDV AITO LING INIT IN RATIO ON PO ee OY VI

1 | impairment has not been established.”) (citing 20 C.F.R. §§ 404.1519 and 416.919).
2 B. Plaintiff’s Other Claims
3 Because the court recommends remanding this case for renewed consideration of his RFC,
4 | the undersigned dispenses with an exhaustive analysis of the other issues raised in plaintiff's
5 | brief—namely, the ALJ’s evaluation of plaintiff's symptom testimony. This issue is inescapably
6 | linked to conclusions regarding the medical evidence, and as such likely requires re-evaluation of
7 | the medical evidence. On remand, the ALJ will have an opportunity to further consider this
8 || issues, and address the medical evidence and non-medical testimony in context of the record as a
9 | whole. The ALJ will also be free to reevaluate her analysis and/or further develop the record with
10 || respect to any or all of these additional issues.
11 RECOMMENDATIONS
12 Accordingly, IT IS HEREBY RECOMMENDED that:
13 1. The Commissioner’s motion for summary judgment (ECF No. 23) be DENIED;
14 2. Plaintiff's motion for summary judgment (ECF No. 17) be GRANTED;
15 3. This matter be REMANDED for further administrative proceedings; and
16 4. The Clerk be directed to enter judgment in plaintiffs favor and close the case.
17 These findings and recommendations are submitted to the United States District Judge
18 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14)
19 || days after being served with these findings and recommendations, any party may file written
20 | objections with the court and serve a copy on all parties. Such a document should be captioned
21 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
22 | shall be served on all parties and filed with the court within fourteen (14) days after service of the
23 | objections. The parties are advised that failure to file objections within the specified time may
24 | waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th
25 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).
26 || Dated: June 10, 2020
madr.1421 Frees Aharon
28 KENDALL J. NE
. UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10019759. Public record. Not legal advice.