holding that, in relying on a 8 || medical expert’s equivocal opinion, an ALJ “was not free to ignore [the medical 9 || expert’s] equivocations and his concern over the lack of a complete record upon 10 || which to assess [the claimant’s] mental impairment”
How later courts described this case
- holding that, in relying on a 8 || medical expert’s equivocal opinion, an ALJ “was not free to ignore [the medical 9 || expert’s] equivocations and his concern over the lack of a complete record upon 10 || which to assess [the claimant’s] mental impairment”
- remanding for further proceedings where an ALJ did not address extensive 10 || evidence that the claimant used a cane
- holding 28 || that an ALJ must seek additional evidence to fill a “perceived gap in the record” 1 || about a claimant’s RFC
- holding that an ALJ should develop the record concerning the medical 3 |} necessity, if any, for use of a cane where the claimant had been given a cane by the 4 || Veterans Administration
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 | CONRADL.|! Case No. 5:18-cv-01645-MAA
Plaintiff,
13 MEMORANDUM DECISION AND
v. ORDER REVERSING DECISION OF
14 THE COMMISSIONER AND
REMANDING FOR FURTHER
15 || ANDREW M. SAUL2 ADMINISTRATIVE PROCEEDINGS
Commissioner of Social Security,
Defendant.
17
18 On August 7, 2018, Plaintiff filed a Complaint seeking review of the
19 || Commissioner’s final decision denying his applications for Disability Insurance
20 || Benefits and Supplemental Security Income pursuant to Titles II and XVI of the
21 || Social Security Act. This matter is fully briefed and ready for decision. For the
22 || reasons discussed below, the Commissioner’s final decision is reversed, and this
23 || matter is remanded for further administrative proceedings.
24 }) ——
' Plaintiffs name is partially redacted in accordance with Federal Rule of Civil
25 || Procedure 9 2¢(c)(2}t ) and the recommendation of the Committee on Court
36 Administration and Case Management of the Judicial Conference of the United
tates.
27 | 2 The Commissioner of Social Security is substituted as the Defendant pursuant to
38 Federal Rule of Civil Procedure 25(d).
1 ADMINISTRATIVE BACKGROUND
2 On February 27, 2013, Plaintiff filed applications Disability Insurance
3 || Benefits and Supplemental Security Income, alleging disability beginning on
4 || October 31, 2010. (Administrative Record [AR] 101, 110, 143.) Plaintiff alleged
5 || disability because of lower back problems. (AR 101, 110.) After Plaintiff's
6 || applications were denied initially (AR 101-18) and upon reconsideration (AR 121-
7 || 40), and after an administrative hearing (AR 48-75), an Administrative Law Judge
8 || (“ALJ”) denied the applications in a decision issued on December 28, 2015 (AR
9 || 146-155).
10 On February 28, 2017, the Appeals Council granted review, vacated the
11 || ALJ’s decision, and remanded the matter for further proceedings. (AR 163-65.)
12 || The Appeals Council directed the ALJ to obtain additional evidence concerning
13 || Plaintiff's physical and mental impairments, give further consideration to □□□□□□□□□□□
14 || maximum residual functional capacity, and obtain supplemental evidence from a
15 || vocational expert. (AR 163-64.) On July 14, 2017, the ALJ held an administrative
16 || hearing. (AR 76-100.) Plaintiff appeared at the hearing with counsel, and the ALJ
17 || heard testimony from Plaintiff and a vocational expert. (AR 77.)
18 In a decision issued on September 19, 2017, the ALJ denied Plaintiff's
19 || applications after making the following findings pursuant to the Commissioner’s
20 || five-step evaluation. (AR 15-29.) Plaintiff had not engaged in substantial gainful
21 || activity since his alleged onset date of October 31, 2010. (AR 18.) He had severe
22 || impairments consisting of degenerative disc disease of the lumbar spine, status post
23 || fusion; spondylosis; post laminectomy syndrome; depressive disorder, not
24 || otherwise specified; and anxiety disorder, not otherwise specified. (AR 19.) He
25 || did not have an impairment or combination of impairments that met or medically
26 || equaled the requirements of one of the impairments from the Commissioner’s
27 || Listing of Impairments. Ud.) He had a residual functional capacity to perform “a
28 || less than light level of exertional work” with a limitation to simple, repetitive tasks
1 || in a non-public setting with only occasional and superficial interaction with
2 || coworkers, and no work in a team setting. (AR 21.) Based on this residual
3 || functional capacity, Plaintiff could not perform his past relevant work as a material
4 || handler or an athletic trainer. (AR 27.) However, Plaintiff could perform other
5 || work in the national economy, in the occupations of marker, routing clerk, and
6 || photocopy machine operator. (AR 28.) Accordingly, the ALJ concluded that
7 || Plaintiff was not disabled as defined by the Social Security Act. (/d.)
8 On June 15, 2018, the Appeals Council denied Plaintiffs request for review.
9 | (AR 1-6.) Thus, the ALJ’s decision became the final decision of the
10 |} Commissioner.
11
12 DISPUTED ISSUES
13 The parties raise three disputed issues:
14 1. “Whether the ALJ properly considered the treating physician’s
15 || opinion.”
16 2. “Whether the ALJ conducted a proper residual functional capacity
17 || assessment.”
18 3. “Whether the ALJ properly evaluated Plaintiffs testimony.”
19 (ECF No. 23, Parties’ Joint Stipulation [“Joint Stip.”] at 3.)
20
21 STANDARD OF REVIEW
22 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s final
23 || decision to determine whether the Commissioner’s findings are supported by
24 || substantial evidence and whether the proper legal standards were applied. See
25 || Treichler y. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir.
26 || 2014). Substantial evidence means “more than a mere scintilla” but less than a
27 || preponderance. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter
28 || v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). Substantial evidence is “such
1 || relevant evidence as a reasonable mind might accept as adequate to support a
2 || conclusion.” Richardson, 402 U.S. at 401. The Court must review the record as a
3 || whole, weighing both the evidence that supports and the evidence that detracts from
4 || the Commissioner’s conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is
5 || susceptible of more than one rational interpretation, the Commissioner’s
6 || interpretation must be upheld. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.
7 || 2007).
8
9 DISCUSSION
10 For the reasons discussed below, reversal and remand for further
11 || administrative proceedings are warranted for Issue Two, based on the ALJ’s
12 || assessment of Plaintiffs residual functional capacity (“RFC”). Having found that
13 || remand is warranted, the Court declines to address Plaintiff's remaining arguments.
14 || See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the
15 || case to the ALJ for the reasons stated, we decline to reach [plaintiffs] alternative
16 || ground for remand.”); see also Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d
17 || 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court need not address the other claims
18 || plaintiff raises, none of which would provide plaintiff with any further relief than
19 || granted, and all of which can be addressed on remand.”’).
20
21] A. Plaintiff’s Residual Functional Capacity (Issue Two).
22 1. Legal Standard.
23 A claimant’s residual functional capacity represents the most he can do
24 || despite his limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1); Reddick v.
25 || Chater, 157 F.3d 715, 724 (9th Cir. 1998); Smolen v. Chater, 80 F.3d 1273, 1291
26 || (1996). An ALJ’s RFC determination “must set out a// the limitations and
27 || restrictions of the particular claimant.” Valentine v. Commissioner Social Sec.
28 | Admin., 574 F.3d 685, 690 (9th Cir. 2009) (emphasis in original). An ALJ will
1 || assess a claimant’s residual functional capacity “based on all of the relevant
2 || medical and other evidence.” 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). A
3 || claimant “is ultimately responsible for providing the evidence to be used in making
4 || the RFC finding,” but an ALJ has “a special duty to fully and fairly develop the
5 || record and to assure that the claimant’s interests are considered.” Widmark v.
6 || Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006) (citations omitted).
7 Here, the ALJ determined that Plaintiff had an RFC for “a less than light
8 || level of exertional work” that required, in pertinent part, an ability to “stand and
9 || walk for 6 hours out of an 8-hour workday.” (AR 21.) Standing and walking for
10 || six hours in an eight-hour workday is consistent with light work and signifies “the
11 || primary difference between sedentary and most light jobs.” See Social Security
12 | Ruling (“SSR”) 83-10, 1983 WL 31251, at *5-*6. But a claimant’s ability to meet
13 || the requirements of light work may be eroded by his need to use a cane or other
14 || hand-held assistive device to walk. See SSR 96-9P, 1996 WL 3741835, at *7
15 || (discussing the erosion of the sedentary occupational base by a claimant’s use of a
16 || medically required hand-held assistive device); see also Staples v. Astrue, 329 F.
17 | App’x 189, 191 n.1 (10th Cir. 2009) (noting that although SSR 96-9P analyzes the
18 || erosion of the sedentary occupational base by a claimant’s need to use a hand-held
19 || assistance device, the ruling also applies to the erosion of the light occupational
20 || base on the same basis); Contreras v. Berryhill, 2017 WL 2798521, at *7 (C.D. Cal.
21 || June 28, 2017) (“Use of a cane may limit a claimant’s ability to perform light work,
22 || but it is less likely to preclude sedentary work.”). Thus, an ALJ must consider a
23 || claimant’s need to use a cane that is “medically required.” See SSR 96-9P, 1996
24 || WL 374185, at *7. “To find that a hand-held assistive device is medically required,
25 || there must be medical documentation establishing the need for a hand-held assistive
26 || device to aid in walking or standing, and describing the circumstances for which it
27 || is needed[.]” Jd.
28 | ///
1 2. Background.
2 In August 2010, while working for a carboard box shipper, Plaintiff injured
3 || his lower back while lifting boxes from the floor and throwing them into an
4 | overhead container. (AR 504, 552, 1019.) Since then, Plaintiffhas reported lower
5 || back pain that travels down to his left leg. (AR 552.)
6 In October 2010, an MRI showed that “[a]t the L5-S1 level, there is
7 || degeneration of the intervertebral disc with a broad base bulging of the annular disc
8 || margin up to3 mm.” (AR 525.) In June 2011, Plaintiff began one of multiple
9 || rounds of physical therapy. (AR 624-25.) In January 2012, an MRI showed
10 || “degenerative disk disease and facet joint disease at L5-S1,” “concentric bulging of
11 || the disks at L5-S1 with posterior annular tear,” and “eccentric posterior lateral disk
12 || protrusion measuring up to 7 mm on the left side with secondary compromise of the
13 | left LS neural foramen” that “may also affect the L5 root lateral to the level of the
14 || neural foramen.” (AR 617.)
15 In November 2012, Plaintiff reported that his physical therapists had
16 || “dispensed a cane” to him, but that it gave him blisters so he bought a replacement
17 || cane. (AR 652.) In February 2014, Plaintiff underwent a “laminectomy and
18 || hemilaminectomy of LS with partial facetectomy and foraminotomy excision of far
19 || lateral disk herniation with microdiscectomy.” (AR 891.) In June 2014, an MRI
20 || showed degenerative disc disease at L5-S1 status post left hemilaminectomy. (AR
21 || 879-80.) In December 2014, a nerve conduction study and EMG were abnormal,
22 || suggestive of L5S-S1 radiculopathy. (AR 853.)
23 Physicians and therapists repeatedly observed that Plaintiff used a cane to
24 || walk any distance. (See, e.g., AR 552, 560, 708, 775, 848, 851, 871, 882, 988, 993,
25 || 1007.) In May 2015, Dr. Georgis, a worker’s compensation physician, examined
26 |) Plaintiff and commented that “[i]t is unclear why he is using the cane, as he does
27 || not have significant motor weakness on examination.” (AR 1036.) However, Dr.
28 || Georgis qualified his conclusions because he had not had the chance to review most
1 || of Plaintiff's medical records: he had not seen any EMG studies (AR 1035, 1036)
2 || or indeed any medical records postdating October 2010 (AR 1021), including the
3 || records for Plaintiff's surgery in February 2014 (AR 1036).
4 In July 2015, Dr. Evans, a treating physician, stated that Plaintiff cannot
5 || work because he has “chronic low back pain with left lower leg radiculopathy with
6 || weakness due to lumbar stenosis, multilevel lumbar degenerative disc disease and
7 | facet joint disease.” (AR 1043.) In July 2016, Plaintiff underwent an anterior
8 || decompression and fusion at L5-S1. (AR 1067, 1075.) In May 2017, Plaintiff
9 || reported that he still felt lower back pain and that his knees gave out. (AR 1146.)
10 In the administrative decision, the ALJ rejected Plaintiff's alleged need to use
11 || a cane by agreeing with Dr. Georgis that “there is no objective evidence to support
12 || [Plaintiffs] requirement of a cane for ambulation.” (AR 26.) Thus, the ALJ’s RFC
13 || determination (AR 21) and the hypothetical question to the VE on which he relied
14 || (AR 93-94) did not incorporate the use of a cane.?
15
16 3. Analysis.
17 The ALJ found that a cane was not medically required by relying on the
18 || observation by Dr. Georgis that “[i]t is unclear why [Plaintiff] is using the cane, as
19 || he does not have significant motor weakness on examination.” (AR 1036.)
20 || However, Dr. Georgis’s opinion did not constitute reliable evidence to support that
21 || finding.
22 As noted, Dr. Georgis repeatedly expressed reservations because his review
23 || of the record was incomplete. (AR 1021, 1035, 1036.) Thus, he did not review the
24 || EMG study or the two most recent MRIs, which were abnormal (AR 617, 853, 879-
25 || 80), nor did he review the February 2014 surgical record (AR 891). And when he
26 □□□ though the hypothetical question on which the ALJ relied did not incorporate
27 | rejected) that added, among other things, the potas Meo ae oe nice MAR Sa.
98.) The VE responded that no work would be available because such a person
28 || would have too many limitations for an employer to tolerate. (AR 95.)
1 || examined Plaintiff in May 2015, Dr. Georgis could not have known that Plaintiff
2 || would have another back surgery in July 2016. (AR 1067, 1075.) Indeed, Dr.
3 || Georgis ultimately commented that “[t]he extent of the injury is in question in my
4 || mind” because he had not reviewed most of the relevant medical evidence. (AR
5 || 1036.) Because the ALJ ignored these reservations, he could not rely solely on Dr.
6 || Georgis’s opinion to find a cane was not medically required. See Tonapetyan v.
7 || Halter, 242 F.3d 1144, 1150-51 (9th Cir. 2001) (holding that, in relying on a
8 || medical expert’s equivocal opinion, an ALJ “was not free to ignore [the medical
9 || expert’s] equivocations and his concern over the lack of a complete record upon
10 || which to assess [the claimant’s] mental impairment”).
14 Moreover, the reliance on Dr. Georgis’s equivocal opinion was unreasonable
12 || in light of other evidence in the record suggesting that Plaintiff's use of a cane was
13 || medically required. Dr. Evans, the treating physician, stated that Plaintiff had
14 |] “chronic low back pain with left lower leg radiculopathy with weakness due to
15 || lumbar stenosis, multilevel lumbar degenerative disc disease and facet joint
16 || disease.” (AR 1043.) Records of Plaintiffs July 2016 surgery showed abnormality
17 || in the lower extremities and severe leg pain. (AR 1067, 1075.) Physicians and
18 || therapists repeatedly observed Plaintiff using a cane to walk. (See, e.g., AR 552,
19 || 560, 708, 775, 848, 851, 871, 882, 988, 993, 1007.) Objective medical findings
20 || included decreased pinprick and vibratory sensation in the left leg (AR 553),
21 || positive straight-leg tests on the left side (AR 648, 916), left lower extremity
22 || neuropathy (AR 656), and an antalgic gait (AR 988). Plaintiffs physical therapists
23 || reportedly “dispensed a cane” to him. (AR 652.)
24 Although this evidence about Plaintiff's use of a cane does not necessarily
25 || demonstrate that a hand-held assistive device was medically required, it is
26 || sufficiently extensive to raise questions about that issue such that further
27 || development of the record is required. See Widmark, 454 F.3d at 1069 (holding
28 || that an ALJ must seek additional evidence to fill a “perceived gap in the record”
1 || about a claimant’s RFC); Spaulding v. Astrue, 379 F. App’x 776, 781 (10th Cir.
2 || 2010) (holding that an ALJ should develop the record concerning the medical
3 |} necessity, if any, for use of a cane where the claimant had been given a cane by the
4 || Veterans Administration); Cano v. Colvin, 2015 WL 10945616, at *4-*5 (C.D. Cal.
5 || Jan. 26, 2015) (reversing based on an ALJ’s failure to develop the record
6 || concerning the claimant’s need to use a cane and collecting several cases reaching
7 || varying results as to whether the claimant’s use of a cane would erode the relevant
8 || occupational base); see also Thomas v. Colvin, 534 F. App’x 546, 550 (7th Cir.
9 || 2013) (remanding for further proceedings where an ALJ did not address extensive
10 || evidence that the claimant used a cane). Thus, reversal is warranted on this basis.
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12 | B. Remand for further administrative proceedings.
13 Ninth Circuit case law “precludes a district court from remanding a case for
14 || an award of benefits unless certain prerequisites are met.” Dominguez v. Colvin,
15 || 808 F.3d 403, 407 (9th Cir. 2015) (citations omitted). “The district court must first
16 || determine that the ALJ made a legal error, such as failing to provide legally
17 || sufficient reasons for rejecting evidence.” Jd. “Ifthe court finds such an error, it
18 || must next review the record as a whole and determine whether it is fully developed,
19 || is free from conflicts and ambiguities, and all essential factual issues have been
20 || resolved.” Jd. (citation and internal quotation marks omitted).
21 Although the Court has found legal error in the assessment of whether
22 || Plaintiff's use of a cane is medically required, the record on the whole is not fully
23 || developed, and essential factual issues remain outstanding. Thus, the record raises
24 || factual conflicts about Plaintiffs level of functioning that “should be resolved
25 || through further proceedings on an open record before a proper disability
26 || determination can be made by the ALJ in the first instance.” See Brown-Hunter v.
27 || Colvin, 806 F.3d 487, 496 (9th Cir. 2015); see also Treichler, 775 F.3d at 1101
28 || (stating that remand for an award of benefits is inappropriate where “there is
1 || conflicting evidence, and not all essential factual issues have been resolved”)
2 || (citation omitted); Strauss v. Commissioner of the Social Sec. Admin., 635 F.3d
3 1135, 1138 (9th Cir. 2011) (same where the existing record does not clearly
4 || demonstrate that the claimant is disabled within the meaning of the Social Security
5 |} Act).
6 Therefore, based on its review and consideration of the entire record, the
7 || Court has concluded on balance that a remand for further administrative
8 || proceedings pursuant to sentence four of 42 U.S.C. § 405(g) is warranted here. It is
9 || not the Court’s intent to limit the scope of the remand.
10
11 ORDER
12 It is ordered that Judgment be entered reversing the decision of the
13 || Commissioner of Social Security and remanding this matter for further
14 || administrative proceedings.
LS
16 || DATED: October |! , 2019
17
is MARIA lee
19 UNITE ATES MAGISTRATE JUDGE
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