holding that an ALJ’s finding that a claimant’s back condition 9 lacked medical support was unsupported by substantial evidence where an x-ray 10 considered by the Appeals Council showed marked multilevel degenerative changes 11 of the cervical spine
How later courts described this case
- holding that an ALJ’s finding that a claimant’s back condition 9 lacked medical support was unsupported by substantial evidence where an x-ray 10 considered by the Appeals Council showed marked multilevel degenerative changes 11 of the cervical spine
- holding that an ALJ’s 5 finding that a claimant did not have a mental impairment was unsupported by 6 substantial evidence where evidence considered by the Appeals Council showed 7 that he did
- “It is obvious that medical reports are 17 inevitably rendered retrospectively and should not be disregarded solely on that 18 basis.”
- “[The] Court 10 need not address the other claims plaintiff raises, none of which would provide 11 plaintiff with any further relief than granted, and all of which can be addressed on 12 remand.”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 NEAL B.,1 Case No. 2:19-cv-03283-MAA
12
Plaintiff,
MEMORANDUM DECISION AND
13
v. ORDER REVERSING DECISION OF
THE COMMISSIONER AND
14
REMANDING FOR FURTHER
15 ANDREW M. SAUL,2 ADMINISTRATIVE PROCEEDINGS
Commissioner of Social Security,
16
Defendant.
17
18
19 On April 24, 2019, Plaintiff filed a Complaint seeking review of the Social
20 Security Commissioner’s final decision denying his application for a period of
21 disability and disability insurance benefits pursuant to Title II of the Social Security
22 Act. This matter is fully briefed and ready for decision. For the reasons discussed
23 below, the Commissioner’s final decision is reversed, and this action is remanded
24 for further administrative proceedings.
25 1 Plaintiff’s name is partially redacted in accordance with Federal Rule of Civil
Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court
26 Administration and Case Management of the Judicial Conference of the United
States.
27
2 The Commissioner of Social Security is substituted as the Defendant pursuant to
28 Federal Rule of Civil Procedure 25(d).
1 PROCEDURAL HISTORY
2 On April 30, 2015, Plaintiff protectively filed an application for a period of
3 disability and disability insurance benefits, alleging disability beginning on April 2,
4 2015. (Administrative Record [AR] 23, 90, 250-53.) Plaintiff alleged disability
5 because of “depression; anxiety; [and] neurology problems.” (AR 108.) After the
6 application was denied initially and on reconsideration, Plaintiff requested a hearing
7 before an Administrative Law Judge (“ALJ”). (AR 138-39.) At the initial hearing
8 on October 17, 2017, the ALJ continued the proceeding so Plaintiff could obtain
9 counsel. (AR 83-89.) At the continued hearing on February 15, 2018, at which
10 Plaintiff appeared with counsel, the ALJ heard testimony from Plaintiff, a
11 vocational expert, and Plaintiff’s roommate. (AR 40-82.)
12 In a decision issued on May 2, 2018, the ALJ denied Plaintiff’s application
13 after making the following findings pursuant to the Commissioner’s five-step
14 evaluation. (AR 23-32.) Plaintiff had not engaged in substantial gainful activity
15 since his alleged disability onset date of April 2, 2015. (AR 26.) He had severe
16 impairments consisting of “possible multiple sclerosis; degenerative disc disease,
17 cervical spine; [and] affective disorder.” (Id.) He did not have an impairment or
18 combination of impairments that met or medically equaled the requirements of one
19 of the impairments from the Commissioner’s Listing of Impairments. (AR 26.) He
20 had a residual functional capacity for medium work with a limitation to simple,
21 repetitive tasks. (AR 28.) He could not perform his past relevant work as a
22 plumber. (AR 30; see also AR 69.) However, he could perform other work in the
23 national economy, in the occupations of dish washer; grocery bagger; and laborer,
24 stores. (AR 31.) Thus, the ALJ concluded that Plaintiff was not disabled as
25 defined by the Social Security Act. (AR 32.)
26 Plaintiff requested review by the Appeals Council. (AR 249.) As part of the
27 request, Plaintiff submitted new evidence relating to multiple sclerosis. (AR 7-10,
28 38-39.) On March 12, 2019, the Appeals Council denied review. (AR 1-6.) The
1 Appeals Council also found that the new evidence did not show a reasonable
2 probability of changing the outcome of the ALJ’s decision. (AR 2.) Thus, the
3 ALJ’s decision became the final decision of the Commissioner.
4
5 DISPUTED ISSUES
6 The parties raise the following disputed issues:
7 1. Whether the ALJ’s step two, step three, residual functional capacity,
8 and step five findings contain legal errors and are supported by substantial
9 evidence; and
10 2. Whether the ALJ improperly discredited Plaintiff testimony.
11 (ECF No. 18, Parties’ Joint Stipulation [“Joint Stip.”] at 2.)
12
13 STANDARD OF REVIEW
14 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s final
15 decision to determine whether the Commissioner’s findings are supported by
16 substantial evidence and whether the proper legal standards were applied. See
17 Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir.
18 2014). Substantial evidence means “more than a mere scintilla” but less than a
19 preponderance. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter
20 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). Substantial evidence is “such
21 relevant evidence as a reasonable mind might accept as adequate to support a
22 conclusion.” Richardson, 402 U.S. at 401. The Court must review the record as a
23 whole, weighing both the evidence that supports and the evidence that detracts from
24 the Commissioner’s conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is
25 susceptible of more than one rational interpretation, the Commissioner’s
26 interpretation must be upheld. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.
27 2007).
28 ///
1 DISCUSSION
2 For the reasons discussed below, reversal and remand for further
3 administrative proceedings are warranted for Issue One, in which Plaintiff’s
4 challenges the ALJ’s findings during the five-step evaluation in light of new
5 evidence considered by the Appeals Council. Thus, the Court declines to address
6 Plaintiff’s remaining arguments. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir.
7 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline
8 to reach [plaintiff’s] alternative ground for remand.”); see also Augustine ex rel.
9 Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court
10 need not address the other claims plaintiff raises, none of which would provide
11 plaintiff with any further relief than granted, and all of which can be addressed on
12 remand.”).
13
14 I. Evidence Considered by the Appeals Council.
15 A. Legal Standard.
16 A decision by the Appeals Council denying review of an ALJ’s decision,
17 including any reasoning for denying review, is not subject to subsequent judicial
18 review. See Luther v. Berryhill, 891 F.3d 872, 876 (9th Cir. 2018). However,
19 “when the Appeals Council considers new evidence in deciding whether to review a
20 decision of the ALJ, that evidence becomes part of the administrative record, which
21 the district court must consider when reviewing the Commissioner’s final decision
22 for substantial evidence.” Brewes v. Commissioner of Social Sec. Admin., 682 F.3d
23 1157, 1163 (9th Cir. 2012) (citing Tackett v. Apfel, 180 F.3d 1094, 1097-98 (9th
24 Cir. 1999)). The Court then “must give the facts a full review and must
25 independently determine whether the Commissioner’s findings are supported by
26 substantial evidence.” See Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996)
27 (citing Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985)).
28 ///
1 B. Background.
2 The primary basis for Plaintiff’s alleged disability is multiple sclerosis
3 (“MS”). (AR 45-46.) The record before the ALJ had conflicting evidence as to
4 whether Plaintiff had a diagnosis of MS. In May 2015, Dr. Germin, a neurologist,
5 diagnosed Plaintiff with MS in part because of a magnetic resonance image
6 (“MRI”) of the brain showing “Dawson’s fingers.” (AR 373.) However, in July
7 2015, Dr. Corazza, a neurologist who had not seen an MRI, stated that “I do not see
8 much on examination to support [the MS diagnosis].” (AR 393.) Other physicians
9 also apparently thought Plaintiff might have MS (AR 414, 462), but the only
10 neurologists who opined on the matter, in the record before the ALJ, were Dr.
11 Germin and Dr. Corazza. The ALJ noted the evidentiary conflict regarding the MS
12 diagnosis (AR 29) and found that Plaintiff had “possible multiple sclerosis” (AR
13 26). The ALJ also found that Plaintiff was capable of medium work (AR 28), while
14 noting that no physician had imposed greater limitations (AR 30).
15 As part of his request that the Appeals Council review the ALJ’s decision,
16 Plaintiff submitted two pieces of evidence relating to MS. First, he submitted a
17 January 2018 MRI of his brain showing that, in pertinent part, “[e]xtensive cerebral
18 white matter plaques are present consistent with history of multiple sclerosis.” (AR
19 38.)3 Second, Plaintiff submitted an October 2018 questionnaire completed by Dr.
20 Galan, a neurologist, describing Plaintiff’s limitations because of MS. (AR 7-10.)
21 Dr. Galan wrote that Plaintiff’s condition displayed, inter alia, motor weakness, the
22 need for a cane and occasional rest periods while walking, weakness and instability
23 ///
24
25
3 This MRI was duplicative of evidence that was before the ALJ (AR 487-88), but
the Appeals Council accepted it as new evidence (AR 2). It makes no difference
26 whether the ALJ saw the MRI in the first instance, because the Court must “review
27 all the evidence submitted to the Appeals Council as if it had been before the ALJ.”
See Burrell v. Colvin, 775 F.3d 1133, 1139 n.4 (9th Cir. 2014) (citing Brewes, 682
28 F.3d at 1163).
1 in the lower extremities, weakness in the upper extremities, and an overall
2 progressive worsening of his symptoms. (AR 7-8.)
3 In its order denying review, the Appeals Council considered this evidence but
4 found that it did not show a reasonable probability of changing the outcome of the
5 ALJ’s decision. (AR 2.)
6
7 C. Analysis.
8 As an initial matter, the Commissioner contends that Dr. Galan’s October
9 2018 questionnaire is not significant and probative evidence because it post-dated
10 the ALJ’s May 2018 decision by five months. (Joint Stip. at 34.) The Court
11 disagrees. The Appeals Council did not reject the filing of Dr. Galan’s
12 questionnaire because it post-dated the ALJ’s decision, but instead accepted the
13 questionnaire and incorporated it into the record. (AR 2.) Moreover, the fact that
14 the questionnaire post-dated the ALJ’s decision by five months does not mean that
15 the questionnaire is not significant and probative evidence. See Smith v. Bowen,
16 849 F.2d 1222, 1225 (9th Cir. 1988) (“It is obvious that medical reports are
17 inevitably rendered retrospectively and should not be disregarded solely on that
18 basis.”) (citing Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985)). Finally,
19 although Dr. Galan’s questionnaire post-dated the ALJ’s May 2018 decision, the
20 medical basis for Dr. Galan’s questionnaire, the January 2018 MRI, did not. For
21 these reasons, the Court must consider Dr. Galan’s questionnaire when reviewing
22 the ALJ’s decision for substantial evidence. See Brewes, 682 F.3d at 1163.
23 Based on the evidence considered by the Appeals Council, two of the ALJ’s
24 findings were unsupported by substantial evidence. First, the ALJ found that
25 Plaintiff had a “possible” diagnosis of MS. (AR 26.) The apparent basis for this
26 finding was the assessment of Dr. Corazza, a neurologist who declined to diagnose
27 MS yet had been unable to review Plaintiff’s MRI. (AR 393.) The full record,
28 however, shows that two other neurologists, Dr. Germin and Dr. Galan, believed
1 Plaintiff had MS after reviewing Plaintiff’s MRI. (AR 7, 373.) Because the ALJ’s
2 doubts about an MS diagnosis apparently affected his non-disability determination,
3 it cannot be upheld for substantial evidence in light of the full record. See
4 Carmickle v. Colvin, 645 F. App’x 575, 576 (9th Cir. 2016) (holding that an ALJ’s
5 finding that a claimant did not have a mental impairment was unsupported by
6 substantial evidence where evidence considered by the Appeals Council showed
7 that he did); Cantrell v. Commissioner of Social Sec. Admin., 543 F. App’x 653,
8 654 (9th Cir. 2013) (holding that an ALJ’s finding that a claimant’s back condition
9 lacked medical support was unsupported by substantial evidence where an x-ray
10 considered by the Appeals Council showed marked multilevel degenerative changes
11 of the cervical spine).
12 Second, and more significantly, the ALJ found that Plaintiff’s residual
13 functional capacity (“RFC”) allowed him to perform work at the medium exertional
14 level (AR 28), while noting that no physician had imposed more restrictive
15 limitations (AR 30). However, the questionnaire completed by Dr. Galan indicated
16 that Plaintiff’s MS imposed significant strength-based, exertional limitations
17 affecting his ability to lift, stand, and walk. (AR 7-8.) Thus, the ALJ’s RFC
18 assessment for work at the medium exertional level cannot be upheld for substantial
19 evidence in light of the full record. See Hall v. Berryhill, 717 F. App’x 708, 711
20 (9th Cir. 2017) (holding that an ALJ’s RFC assessment was unsupported by
21 substantial evidence where evidence considered by the Appeals Council showed
22 additional mental limitations); see also Borrelli v. Commissioner of Social Sec., 570
23 F. App’x 651, 652 (9th Cir. 2014) (holding that an ALJ’s findings as to a claimant’s
24 abilities and limitations was unsupported by substantial evidence where evidence
25 considered by the Appeals Council showed claimant’s efforts to resolve arthritis
26 symptoms).
27 ///
28 ///
1 In sum, the evidence presented to the Appeals Council rendered unsupported
2 by substantial evidence the ALJ’s findings as to Plaintiff’s allegation of disability
3 premised on multiple sclerosis. Accordingly, reversal is warranted.
4
5 II. Remand for Further Administrative Proceedings.
6 Ninth Circuit case law “precludes a district court from remanding a case for
7 an award of benefits unless certain prerequisites are met.” Dominguez v. Colvin,
8 808 F.3d 403, 407 (9th Cir. 2015) (citations omitted). “The district court must first
9 determine that the ALJ made a legal error, such as failing to provide legally
10 sufficient reasons for rejecting evidence.” Id. “If the court finds such an error, it
11 must next review the record as a whole and determine whether it is fully developed,
12 is free from conflicts and ambiguities, and all essential factual issues have been
13 resolved.” Id. (citation and internal quotation marks omitted).
14 Here, all essential factual issues have not been resolved. The record raises
15 factual conflicts about Plaintiff’s level of functioning that “should be resolved
16 through further proceedings on an open record before a proper disability
17 determination can be made by the ALJ in the first instance.” See Brown-Hunter,
18 806 F.3d at 496; see also Treichler, 775 F.3d at 1101 (stating that remand for an
19 award of benefits is inappropriate where “there is conflicting evidence, and not all
20 essential factual issues have been resolved”) (citation omitted); Strauss v.
21 Commissioner of the Social Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011)
22 (same where the existing record does not clearly demonstrate that the claimant is
23 disabled within the meaning of the Social Security Act). Moreover, the ALJ should
24 have an opportunity to consider, and the Commissioner should have an opportunity
25 to rebut, the evidence that was presented to the Appeals Council in the first
26 instance. See Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000) (where
27 evidence is considered by the Appeals Council in the first instance, the “appropriate
28 remedy in this situation is to remand this case to the ALJ; the ALJ may then
1 || consider, the Commissioner then may seek to rebut and the [vocational expert] then
2 || may answer questions with respect to the additional evidence’).
3 Therefore, based on its review and consideration of the entire record, the
4 || Court has concluded on balance that a remand for further administrative
5 || proceedings pursuant to sentence four of 42 U.S.C. § 405(g) is warranted here. It is
6 || not the Court’s intent to limit the scope of the remand.
7
8 ORDER
9 It is ordered that Judgment be entered reversing the final decision of the
10 || Commissioner of Social Security and remanding this matter for further
11 || administrative proceedings.
12
13 || DATED: May 13, 2020 pe)
“
14
19 A. AUDERO
16 TED STATES MAGISTRATE JUDGE
17
18
19
20
21
22
23
24
25
26
27
28