error not harmless where “the reviewing court can determine from the ‘circumstances of the case’ that further administrative review is needed to determine whether there was prejudice from the 21
How later courts described this case
- error not harmless where “the reviewing court can determine from the ‘circumstances of the case’ that further administrative review is needed to determine whether there was prejudice from the 21
- ALJ’s residual functional capacity assessment cannot stand in the absence of evidentiary support
- remarking on the seeming irony of reviewing an ALJ’s decision in the light of evidence the ang never saw
- where available 28| medical evidence is insufficient to determine the severity of the 20 claimant’s impairment, the ALJ should order a consultative examination 2| by a specialist
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 TASCHE E., ) NO. ED CV 19-1829-E
)
12 Plaintiff, )
)
13 v. ) MEMORANDUM OPINION
)
14 ANDREW SAUL, Commissioner of ) AND ORDER OF REMAND
Social Security, )
15 )
Defendant. )
16 ____________________________________)
17
18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS
19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary
20 judgment are denied, and this matter is remanded for further
21 administrative action consistent with this Opinion.
22
23 PROCEEDINGS
24
25 Plaintiff filed a complaint on September 24, 2019, seeking review
26 of the Commissioner’s termination and denial of disability benefits.
27 The parties consented to proceed before a United States Magistrate
28 Judge on November 5, 2019. Plaintiff filed a motion for summary
1 judgment on February 26, 2020. Defendant filed a motion for summary
2 judgment on March 27, 2020. The Court has taken the motions under
3 submission without oral argument. See L.R. 7-15; “Order,” filed
4 September 26, 2019.
5
6 BACKGROUND
7
8 Plaintiff was found disabled as of May 1, 2008, because of major
9 depressive disorder (Administrative Record (“A.R.”) 31, 35, 126-28).
10 Subsequently, the Administration found that Plaintiff had medically
11 improved such that, as of November 1, 2014, Plaintiff supposedly was
12 no longer disabled1 (A.R. 31, 126).
13
14 On February 18, 2016, an Administrative Law Judge (“ALJ”) heard
15 testimony from Plaintiff and a vocational expert (A.R. 90-120).
16 Plaintiff was not then represented (id.). In a decision dated
17 March 16, 2016, the ALJ agreed that Plaintiff’s disability supposedly
18 had ended as of November 1, 2014 (A.R. 126-34). Specifically, the ALJ
19 found that: (1) Plaintiff did not develop any additional impairments
20 beyond major depressive disorder through November 1, 2014;2
21 (2) Plaintiff’s depression medically improved as of November 1, 2014;
22 and (3) Plaintiff had a residual functional capacity to perform work
23 at all levels of exertion, limited to simple, routine, repetitive
24
25
1 See 20 C.F.R. § 404.1594(f) (eight step sequential
26 evaluation process to assess continued disability).
27 2 Plaintiff had testified at the February, 2016 hearing
that she also had fibromyalgia, carpal tunnel syndrome and back
28
1 tasks, with incidental contact with coworkers and no public contact
2 (A.R. 128-32).3 The ALJ found that a person with this capacity could
3 perform work existing in significant numbers in the national economy
4 (A.R. 132-34 (adopting vocational expert testimony at A.R. 115-16)).
5
6 Plaintiff appealed the ALJ’s decision and also filed new
7 applications for disability insurance benefits and supplemental
8 security income (A.R. 54, 58-59). Plaintiff alleged disability based
9 on major depression, bilateral carpal tunnel syndrome, right lateral
10 epicondylitis, fibromyalgia and bilateral ulnar neuropathy (A.R. 305).
11
12 The Appeals Council vacated the ALJ’s March 16, 2016 decision and
13 remanded the matter for an ALJ to: (1) consider the severity or
14 effects of Plaintiff’s mental impairment under 20 C.F.R. § 404.1520a;
15 (2) provide rationale with specific references to the medical evidence
16 in support of assessed limitations per Social Security Ruling 96-8p,
17 and evaluate treating/examining source opinions per 20 C.F.R. §
18 404.1527, requesting further evidence and/or clarification from those
19 sources “as appropriate”; and (3) obtain supplemental evidence from a
20 vocational expert, if warranted by the expanded record (A.R. 54-55).
21 The Appeals Council ruled that there was “no support” for the ALJ’s
22 residual functional capacity assessment because the ALJ’s decision
23
3 In assessing this residual functional capacity, the ALJ
24 reportedly did not give great weight to the state agency
physicians’ opinions, gave little weight to an opinion from
25
treating psychiatrist Dr. Harry Lewis and gave no weight to
26 treating physician Dr. Karen Keiko Murata’s opinion regarding
Plaintiff’s physical impairments (A.R. 131). As discussed in the
27 medical record summary herein, it appears that none of these
opinions are included in the Administrative Record presently
28
1 assertedly lacked an evaluation of the mental impairment’s severity or
2 a rationale for the limitations assessed (A.R. 54).
3
4 On February 14, 2018, a new ALJ heard testimony from Plaintiff
5 and a vocational expert (A.R. 56-89). Plaintiff then was represented
6 by counsel (id.).4 At the hearing, the ALJ stated that he was not
7 bound by the prior ALJ’s determination, which the ALJ erroneously
8 believed had been based on a finding that Plaintiff had performed
9 substantial gainful activity (A.R. 59-60). On June 6, 2018, the ALJ
10 issued a decision purportedly addressing the Appeals Council’s remand
11 order and Plaintiff’s new applications for benefits (A.R. 31-46).
12 Although the Appeals Council had vacated the prior ALJ’s decision, and
13 had ruled specifically that there had been “no support” for the prior
14 ALJ’s residual functional capacity assessment, the new ALJ deemed the
15 prior ALJ’s decision to be res judicata through the March, 2016 date
16 of that decision (A.R. 31).5 Even so, the new ALJ also found “changed
17 circumstances” because Plaintiff then had “more functional limitations
18 than she did when the case was considered by [the prior ALJ]” (A.R.
19 31). The new ALJ went on to find: (1) Plaintiff’s disability had
20
21
4 The ALJ’s ensuing decision erroneously states that
22 Plaintiff was not represented at the February 14, 2018 hearing
(A.R. 32).
23
5 “[T]he Commissioner may not apply res judicata where
24 the claimant raises a new issue, such as the existence of an
impairment not considered in the previous application. . . . Nor
25
is res judicata to be applied where the claimant was
26 unrepresented by counsel at the time of the prior claim.” Lester
v. Chater, 81 F.3d 821, 827–28 (9th Cir. 1995) (citation
27 omitted). Both of these conditions apply in the present case.
Thus, the new ALJ would have erred by invoking res judicata, even
28
1 ended on November 1, 2014; and (2) Plaintiff had not become disabled
2 again since that date (A.R. 32-46).
3
4 Specifically, the ALJ found that, after November 1, 2014:
5 (1) Plaintiff has had severe bilateral carpal tunnel syndrome,
6 bilateral epicondylitis, bilateral ulnar neuropathy, lumbar back pain,
7 cervical stenosis, affective disorder, anxiety disorder and obesity
8 (A.R. 35, 38);6 (2) Plaintiff’s previously disabling depression
9 medically improved, as reportedly evidenced by her mental status
10 examinations and activities of daily living (A.R. 37-38);7
11 (3) Plaintiff had a residual functional capacity to perform light
12 work, limited to the following: frequently pushing and pulling with
13 the bilateral upper and lower extremities, occasionally climbing ramps
14 and stairs, no climbing ladders, ropes, or scaffolds, occasionally
15 balancing, stooping, kneeling, crouching, and crawling, frequently
16
17
6 The ALJ acknowledged that the record also notes
18 fibromyalgia, sickle cell traits, cholelithiasis, “allegories”
[allergies] and tendinitis of the left ankle, which the ALJ found
19 nonsevere (A.R. 36, 38-39). According to the ALJ, there was
insufficient evidence to find that fibromyalgia is a severe
20
impairment per American College of Rheumatology guidelines (A.R.
21 39; see also A.R. 142 (state agency physician’s finding that
Plaintiff did not meet criteria for fibromyalgia by history or
22 examination)).
23 7 The ALJ cited “Exhibit 7E, CDR file” which appears to
have been a function report completed by Plaintiff. See A.R. 38,
24 43; see also A.R. 129 (prior ALJ’s decision citing same, which
reportedly stated that Plaintiff was able to care for her
25
personal needs, cook and do laundry). The function report
26 referenced in both of the ALJs’ decisions is not included in the
Administrative Record. In fact, whatever comprised the “CDR
27 file” (or “CRD file” as it is also referenced in the most recent
decision) apparently is entirely missing from the Administrative
28
1 handling and fingering with the bilateral hands, no concentrated
2 exposure to extreme cold, no moderate exposure to hazards, and no
3 fast-paced work, but she can maintain concentration, persistence and
4 pace for simple, routine and repetitive tasks with no interaction with
5 the general public, no jobs that require teamwork, and low demand work
6 settings consistent with simple work and gradual changes in the work
7 setting (A.R. 38-44 (giving great weight to the state agency medical
8 consultants’ opinions at A.R. 167-79, and little weight to the other
9 medical opinion evidence (not included in the record) that the prior
10 ALJ had considered and rejected8)); and (4) Plaintiff has been unable
11 to perform her past relevant work as a secretary, but she has been
12 able to perform other jobs existing in significant numbers in the
13 national economy (A.R. 44-46 (adopting vocational expert testimony at
14 A.R. 80-86)).9
15
16 On May 4, 2019, the Appeals Council denied review (A.R. 10-15).
17 The Appeals Council considered a Mental Impairment Questionnaire from
18 Dr. Sajak Mahta dated July 19, 2018 (A.R. 22-27), but found that the
19
20
8 See A.R. 44 (citing other exhibits from the missing
21 “CDR file,” apparently March, 2015 state agency medical
consultants’ opinions, as well as referenced opinions from
22 treating physicians Drs. Murata and Lewis).
23 9 Although the Administration had not ordered any
consultative examinations and the ALJ did not seek the opinion of
24 a medical expert, the ALJ said he thought he had “enough evidence
to make an opinion” (see A.R. 63-64, 88). The ALJ did not
25
develop the record by requesting additional evidence or
26 clarification from Plaintiff’s treating sources concerning the
bases for their opinions, as suggested in the Appeals Council’s
27 remand order. See id. (ALJ discussing same at the hearing and
declining counsel’s request for a continuance to obtain a medical
28
1|| opinions expressed therein did not relate to the time period at issue
2 (A.R. 11).*°
3
4 STANDARD OF REVIEW
5
6 Under 42 U.S.C. section 405(g), this Court reviews the
7) Administration’s decision to determine if: (1) the Administration’s
8| findings are supported by substantial evidence; and (2) the
Administration used correct legal standards. See Carmickle v.
10] Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,
11] 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner,
682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such
13] relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
15] (1971) (citation and quotations omitted); see also Widmark v.
16) Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).
17
18 If the evidence can support either outcome, the court may
19 not substitute its judgment for that of the ALJ. But the
20
70 Dr. Mahta completed the questionnaire on behalf of
treating psychiatrist Dr. Williams, whom Plaintiff had visited on
22| June 12 and July 2, 2018 (A.R. 22, 27). Dr. Mahta diagnosed
major depressive disorder (severe, recurrent), generalized
anxiety disorder and chronic pain, and reported “poor response”
to treatment with a “guarded” prognosis (A.R. 22). Dr. Mahta
24! indicated Plaintiff is “seriously limited” (i.e., has noticeable
25 difficulty for 11-20 percent of a work day or work week) in
Plaintiff's ability to maintain attention for two hour segments,
26|| make simple work-related decisions, deal with normal work stress,
and set realistic goals or make plans independently of others
(A.R. 24-25). The vocational expert had opined that, if a person
were off task more than 10 percent of a workday, employment would
be precluded (A.R. 87).
1 Commissioner’s decision cannot be affirmed simply by
2 isolating a specific quantum of supporting evidence.
3 Rather, a court must consider the record as a whole,
4 weighing both evidence that supports and evidence that
5 detracts from the [administrative] conclusion.
6
7| Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and
8] quotations omitted).
9
10 Where, as here, the Appeals Council “considers new evidence in
11] deciding whether to review a decision of the ALJ, that evidence
becomes part of the administrative record, which the district court
13) must consider when reviewing the Commissioner’s final decision for
14] substantial evidence.” Brewes v. Commissioner, 682 F.3d at 1163.
15] “[A]s a practical matter, the final decision of the Commissioner
includes the Appeals Council’s denial of review, and the additional
17|| evidence considered by that body is evidence upon which the findings
and decision complained of are based.” Id. (citations and quotations
19] omitted).** Thus, this Court has reviewed the evidence submitted for
the first time to the Appeals Council.
21] ///
22
23 +t And yet, the Ninth Circuit sometimes had stated that
there exists “no jurisdiction to review the Appeals Council’s
24! decision denying [the claimant’s] request for review.” See,
o5| 2-9-, Taylor v. Commissioner, 659 F.3d 1228, 1233 (9th Cir.
2011); but see Smith v. Berryhill, 139 S. Ct. 1765 (2019) (court
26|| has jurisdiction to review Appeals Council’s dismissal of request
for review as untimely); see also Warner v. Astrue, 859 F. Supp.
27) 2d 1107, 1115 n.10 (C.D. Cal. 2012) (remarking on the seeming
irony of reviewing an ALJ’s decision in the light of evidence the
ang never saw).
1 DISCUSSION
2
3 Plaintiff contends, inter alia, that the ALJ should have
4 developed the record to obtain a treating or examining opinion
5 regarding Plaintiff’s mental residual functional capacity, rather than
6 giving great weight to the non-examining state agency reviewer’s
7 October, 2016 opinion. See Plaintiff’s Motion at 4-6. Plaintiff also
8 contends that the ALJ improperly used his own lay judgment to fill in
9 the gaps in the record to reach a residual functional capacity
10 determination. Id. at 5. For the reasons discussed below, the Court
11 agrees. On the current record, substantial evidence does not support
12 the ALJ’s residual functional capacity determination.
13
14 I. Summary of the Relevant Medical Record
15
16 The medical record, which includes a decade of treatment
17 documents from Kaiser Permanente, is extraordinarily voluminous.
18 However, the inclusion of multiple copies of identical documents
19 accounts for some of this volume. Plaintiff reportedly was diagnosed
20 with, inter alia, cholelithiasis, panic disorder and major depressive
21 disorder (recurrent, job related) in 2003, gastroesaphageal reflux
22 disease (“GERD”) and obesity in 2004, carpal tunnel syndrome in 2005,
23 sickle cell trait in 2008, morbid obesity in 2013, major depressive
24 disorder (moderate, recurrent) in January of 2015, and carpal tunnel
25 syndrome, chronic low back, thoracic pain, fibromyalgia, right elbow
26 lateral epicondylitis, and right upper extremity ulnar nerve lesion in
27 February of 2016 (A.R. 339, 362).
28 ///
1 A. Mental Health Treatment Records from the Alleged Onset Date
2 through the State Agency Physicians’ Review in October of
3 2016
4
5 Plaintiff was found disabled due to major depressive disorder as
6] of May of 2008, when she delivered a baby who died after only six days
7) of life (A.R. 1045, 1054). By November of 2008, Plaintiff was in
counseling and taking Risperdal, Clonazepam and Imipramine (A.R.
9] 1150). Plaintiff pursued somewhat regular psychiatric treatment with
10] Dr. Harry Lewis in 2011 and into 2012, when her mental status
11] examinations reportedly were largely normal, apart from depressed
mood, and her Global Assessment of Functioning (“GAF)” scores
reportedly fell in the 51-60 range (A.R. 1706-10, 1803-04, 1852-53,
14] 1863-65, 1905-06, 1916-17, 1958-59) .*”
15
16 In July of 2013, Plaintiff said she had stopped taking her
depression medication and wanted an appointment for counseling because
she was under a lot of stress (A.R. 2430). She made an appointment
19] for August of 2013, but it appears that she did not keep the
appointment (A.R. 2430, 2440, 2445). When Plaintiff followed up with
21| her primary care doctor, Dr. Sangeeta Aggarwal, for left ankle pain in
22| March of 2014, she reportedly felt her depression was stable, and she
23
24 2 The GAF scale is used by clinicians to report an
25 individual’s overall level of functioning. See American
Psychological Association, Diagnostic and Statistical Manual of
Mental Disorders 34 (4th ed. 2000) (“DSM”). A GAF of 51-60
indicates “[m]oderate symptoms (e.g., flat affect and
27| circumstantial speech, occasional panic attacks) or moderate
difficulty in social, occupational, or school functioning (e.g.,
28 temporarily falling behind in schoolwork) .” Id.
17
1 was not then taking any depression medication or interested in
2 medications or counseling (A.R. 2544). However, in an April, 2014
3 phone call, Plaintiff said that she was so depressed she was having
4 suicidal thoughts (A.R. 2581-83). The police were dispatched for a
5 wellness check (id.). Plaintiff asked for a medication evaluation for
6 her depression (A.R. 2592).
7
8 In July of 2014, Plaintiff presented to Dr. Alejandra Clark for
9 an initial psychiatric evaluation (A.R. 2641-48). Plaintiff
10 reportedly had not taken drugs for her depression in over a year, but
11 wanted to restart medication (Celexa and Risperidone) (A.R. 2641). On
12 mental status examination, Plaintiff reportedly was anxious, depressed
13 and irritable, with a congruent mood and otherwise normal findings
14 (A.R. 2644). Dr. Clark diagnosed major depression (recurrent,
15 moderate) and prescribed Celexa and therapy (A.R. 2644-45).13
16
17 Plaintiff followed up with Dr. Clark in September of 2014,
18 reporting that her symptoms had mildly improved with medication and
19 saying that her depressed mood and anxiety were “less intense” (A.R.
20 2696). On mental status examination, Plaintiff reportedly had an
21 anxious and depressed mood that was improving (A.R. 2696-97). Dr.
22
23 13 Plaintiff had presented to a social worker earlier the
same day, reporting that she has had insomnia, anhedonia, crying
24 spells, low energy, low motivation, isolation/withdrawal and
panic attacks since 2008 (A.R. 2623-24). Although Plaintiff had
25
been seeing a psychiatrist since 2003, the record reportedly
26 reflected “very poor attendance” and no inpatient treatment (A.R.
2624). On mental status examination, she reportedly had
27 restricted, tearful affect, anxiety and depression (A.R. 2626-
27). She was assigned a GAF score of 50-55 and a highest
28
1 Clark believed Plaintiff’s depression was then “in partial remission”
2 (A.R. 2698). Dr. Clark continued Plaintiff’s medications and therapy
3 (id.).
4
5 A note from Dr. Lewis, dated November 12, 2014, states: “Let
6 patient know that since I have not seen her since 1/31/12 I am not
7 able to provide a letter stating how she has been doing since then and
8 currently” (A.R. 2772). Plaintiff reportedly had requested a letter
9 for the Social Security Administration stating that she was not
10 capable of performing her regular job duties (A.R. 2772, 2783-84).
11
12 In January of 2015, Plaintiff presented to Dr. Aggarwal,
13 reporting that her depression was not well controlled (A.R. 2795).
14 Plaintiff also followed up with Dr. Lewis, complaining that Celexa was
15 not sufficiently helping her mood (A.R. 2823). On mental status
16 examination, Plaintiff reportedly was depressed with a congruent
17 affect (A.R. 2824). Dr. Lewis increased Plaintiff’s Celexa and
18 referred her for therapy (A.R. 2824).
19
20 In February of 2015, Plaintiff returned to Dr. Lewis, reporting
21 continued stressors (A.R. 2952). On mental status examination, she
22 reportedly was mildly anxious and mildly depressed with congruent mood
23 (A.R. 2953). Her medications were continued (A.R. 2953). She also
24 presented for therapy the same day and was assessed with a GAF of 75
25 ///
26 ///
27 ///
28 ///
1 (A.R. 2963-64).14 At a session the next month, Plaintiff’s therapist
2 again assessed a GAF of 75 (A.R. 2997).
3
4 In March of 2015, Plaintiff reported to Dr. Lewis that she was
5 experiencing excessive sweating and nightmares with difficulty
6 sleeping (A.R. 3024-25). Dr. Lewis prescribed Trazodone for sleep at
7 Plaintiff’s next visit in April, where she reportedly had a normal
8 mental status examination except for mildly depressed mood (A.R. 3075-
9 76).
10
11 In May and June of 2015, plaintiff again requested that Dr. Lewis
12 prepare a letter for the Social Security Administration advising that
13 she was not able to work due to her condition (A.R. 3086-87, 3097).
14 Dr. Lewis advised that he would fill out any paperwork sent by the
15 Administration but would not write a separate letter (A.R. 3086).
16 Plaintiff had also requested a letter from her therapist stating why
17 she was unable to work (A.R. 3128). When she saw her therapist,
18 Plaintiff reported that her mood was preventing her from working and
19 she was anxious, irritable and mildly agitated (A.R. 3142). Her
20 ///
21 ///
22 ///
23 ///
24
25
14 A GAF score of 71-80 indicates: “If symptoms are
26 present, they are transient and expectable reactions to
psycho-social stressors (e.g., difficulty concentrating after a
27 family argument); no more than slight impairment in social,
occupational, or school functioning (e.g., temporarily falling
28
1 therapist assessed a current GAF of 65 (A.R. 3143).15
2
3 On June 26, 2015, Plaintiff reportedly again requested a letter
4 from Dr. Lewis stating that she was under treatment and currently
5 unable to work due to her diagnoses (A.R. 3153-54). This time, Dr.
6 Lewis indicated he would provide a letter, and a follow up notation
7 states that a form was ready for pickup at the front desk (A.R. 3153-
8 54). Plaintiff’s therapist also emailed Plaintiff on July 8, 2015,
9 stating that a letter had been provided for her to pick up which
10 stated that Plaintiff had been receiving treatment from him (A.R.
11 3166). Plaintiff’s therapist advised that any other information would
12 have to come from Plaintiff’s medical records (A.R. 3166). The actual
13 letters that Dr. Lewis and Plaintiff’s therapist reportedly provided
14 to Plaintiff are not in the Administrative Record.16
15
16 Plaintiff returned to Dr. Lewis in November of 2015, reporting
17 back pain, ankle pain and concern that she might need surgery (A.R.
18 3488). On mental status examination, Plaintiff reportedly had slowed
19 motor activity, somewhat depressed mood and congruent affect (A.R.
20
21
15 A GAF score of 61-70 indicates “[s]ome mild symptoms
22 (e.g., depressed mood and mild insomnia) OR some difficulty in
social, occupational, or school functioning (e.g., occasional
23 truancy, or theft within the household), but generally
functioning pretty well, has some meaningful interpersonal
24
relationships.” See DSM, p. 34.
25
16 It appears that Dr. Lewis’s letter may have been among
26 the records reviewed by both ALJs. See A.R. 44 (ALJ giving
little weight to Dr. Lewis’s opinion that “due to her condition
27 she is not able to work,” and citing an exhibit from “the CDR
file”); A.R. 131 (prior ALJ also rejecting Dr. Lewis’s referenced
28
1 3489). Dr. Lewis continued Plaintiff’s medications (A.R. 3489). The
2 same day, Plaintiff discussed with her therapist her physical
3 ailments, disability claim and difficulty with finances, but she
4 reportedly was alert, cooperative and pleasant and had appropriate
5 engagement and expression with good insight and judgment (A.R. 3477).
6 Her GAF was assessed at 75 (A.R. 3478).
7
8 At her therapy session in January of 2016, Plaintiff reported
9 that she did not want to leave her room or talk to anybody, could not
10 walk far because her leg hurt and she wore a brace, her mind was
11 always racing, she had gone to the emergency room because she thought
12 she was having a heart attack, her back hurt all the time, her doctors
13 thought she has fibromyalgia, she had GERD, and she had an upcoming
14 disability hearing (A.R. 3705). Plaintiff reportedly appeared anxious
15 and was making poor progress (A.R. 3705). Her GAF was assessed at 65
16 (A.R. 3706).
17
18 Plaintiff returned to Dr. Lewis in March of 2016, reporting
19 nightmares and a recent fibromyalgia diagnosis (A.R. 371-72).
20 Plaintiff’s mental status examination reportedly was normal except for
21 slightly slowed motor activity and mildly anxious/depressed mood (A.R.
22 372). Dr. Lewis lowered Plaintiff’s Celexa dose (A.R. 372).
23
24 Plaintiff’s next psychiatric session was in September of 2016, by
25 telephone with Dr. Nadia Haddad (A.R. 4954-55). Plaintiff had started
26 Effexor on May 9, 2016, prescribed by her pain doctor (A.R. 4955).
27 Plaintiff reported that she was not feeling better, had not been the
28 same since she lost her baby, felt depressed, in pain, and was having
1 difficulty adjusting to life after the devastation of losing her job,
2 house, fiancé and baby (A.R. 4955). Plaintiff reported anxiety,
3 palpitations, shortness of breath, dizziness, inability to think,
4 frozen speech, panic attacks, nightmares, hearing things and seeing
5 shadows passing (A.R. 4955). On mental status examination, Plaintiff
6 reportedly had psychomotor retardation, reduced vocal inflection,
7 homicidal ideation and depressed and hopeless mood with congruent and
8 constricted affect (A.R. 4956-57). Dr. Haddad diagnosed major
9 depressive disorder (severe), mild psychotic symptoms with panic and
10 fibromyalgia (A.R. 4957). Dr. Haddad increased Plaintiff’s Effexor
11 dose, discontinued Trazodone, continued Celexa, started melatonin and
12 Benadryl, and recommended grief group psychotherapy and increased
13 physical activity (A.R. 4958).
14
15 B. Treatment Records for Physical Conditions from the Alleged
16 Onset Date through the State Agency Physicians’ Review in
17 October of 2016
18
19 The record also reflects ongoing treatment with various providers
20 for ankle pain/tibialis tendon tear/tendinosis following a car
21 accident in 2009, lumbar and cervical radiculopathy, knee pain, carpal
22 tunnel syndrome and right epicondylitis, for which Plaintiff was
23 prescribed Flexeril, Mobic, Lidocaine ointment, splints, a CAM boot, a
24 tennis elbow band and physical therapy. See, e.g., A.R. 361-63, 1193-
25 95, 1263, 1284, 1411-12, 1418, 1894, 1978-81, 2003-05, 2027-30, 2034-
26 39, 2107, 2124-25, 2544, 2609-11, 3212-16, 3245-48, 3306-09, 3327-34,
27 3374-76, 3403-06, 3449-52, 3559-60 (treatment notes from April of 2009
28 through December of 2015).
1 The first treatment note following Plaintiff’s alleged medical
2 improvement in November of 2014 is an emergency room visit from July
3 of 2015, when Plaintiff presented complaining of low back pain
4 radiating to her left leg, for which she was given Toradol and
5 referred to her primary doctor (A.R. 3212-16). Plaintiff followed up
6 with Dr. Aggarwal in August of 2015 requesting a referral to a
7 specialist for her back pain (A.R. 3245-46).
8
9 In September of 2015, Plaintiff consulted with Dr. Eckhardt
10 Campos of Kaiser’s Physical Medicine Department in regard to
11 Plaintiff’s back pain (A.R. 3306). On examination, Plaintiff
12 reportedly had nonantalgic, narrow based gait without the cane she
13 sometimes used, and also had tenderness to palpation and tenderness
14 with range of motion (A.R. 3307-08). Dr. Campos diagnosed low back
15 pain with some extension into the left lower extremity which was
16 suspicious of myofascial syndrome (pain from spastic neck muscles)
17 versus lumbar strain (A.R. 3308-09). Dr. Campos prescribed Flexeril,
18 Mobic, Lidocaine ointment, weight loss, physical therapy and possible
19 trigger point injections. Plaintiff returned for her first physical
20 therapy appointment later in September (A.R. 3327-30).
21
22 Plaintiff also followed up in October of 2015 with her podiatrist
23 regarding left ankle pain and swelling, which Plaintiff stated was
24 getting worse (A.R. 3374). She was given a splint and told to
25 continue taking Mobic as needed (A.R. 3375-76). Three of Plaintiff’s
26 physical therapy goals noted in October of 2015, were to be
27 independent with a home exercise program, to be able to bend
28 forward/squat to lift from the floor, and to tolerate 30 minutes of
1 standing to do housework without limitations before taking a break
2 (A.R. 3449).17
3
4 Plaintiff returned to Dr. Campos in November of 2015 (A.R. 3501).
5 At that time, she reportedly was exercising zero minutes per week
6 (A.R. 3513). She stated that her pain was worse with prolonged
7 standing, that she had frequent intermittent numbness in both legs and
8 arms, she had widely diffuse pain in her shoulders and neck, and she
9 had right tennis elbow (A.R. 3501). Her examination results were
10 consistent with her last visit with Dr. Campos (A.R. 3502-03). Dr.
11 Campos ordered nerve conduction studies, stressed the importance of
12 weight loss, and continued Flexeril, Mobic and physical therapy, with
13 a note that Plaintiff could try trigger point injections, which she
14 declined (A.R. 3503-04). Dr. Campos stated:
15
16 At the end of the encounter, at checkout desk, patient
17 inquires about a letter to [assist] her in re-establishing
18 long-term disability through social security, which she
19 states has previously secured. (SSI) I have not been
20 involved in that past history and presently see no medically
21 justifiable reason to argue for long-term disability that I
22 am aware of. I advise the patient such letters are not a
23 KP-covered benefit and that she will need to seek out a
24 Qualified Medical Examiner certified by the state of
25
26 17 Although Plaintiff reportedly had a “good” “rehab
potential” according to her physical therapist, she went to three
27 appointments and then was discharged from physical therapy in
December of 2015, because she did not return for scheduled
28
1 California for just such purposes.
2
3 (A.R. 3501).18
4
5 In December of 2015, Plaintiff presented to Dr. Gerald Goodlow
6 complaining of numbness in both hands (A.R. 361-63). A nerve
7 conduction study reportedly showed bilateral carpal tunnel syndrome
8 (A.R. 361-63). Plaintiff tested negative for myalgias and neck pain
9 but positive for tingling in the hands and sensory deficits (A.R.
10 363). Dr. Goodlow diagnosed mild carpal and ulnar neuropathy and
11 right lateral epicondylitis and skin numbness (A.R. 363). Dr. Goodlow
12 referred Plaintiff for physical therapy, and ordered her to continue
13 ///
14 ///
15 ///
16
18 Dr. Campos subsequently wrote a note to Plaintiff’s
17
physical therapist which states:
18
. . . In reviewing her chart, a few issues concern me
19 with regards to this patient previously seeking to get
me to support her [c]ause to extend medically-
20 sanctioned permanent disability [t]hrough Social
Security. (I do not see how she secured this in the
21
first place).
22
On the other hand, she has clearly dragged her feet
23 when it comes [t]o pursuing her end of the
recommendations to loose [sic] weight, [v]isit
24 regularly with Physical Therapy and implement their
recommendations, [o]r to try a series of offered
25
trigger-point injections (has declined this twice) for
26 her very diffuse upper and lower back pains that she
describes as “severe.”
27
(A.R. 3528). Dr. Campos apparently did not know that Plaintiff’s
28
1 wearing hand braces and a right tennis elbow band (A.R. 363).19 Dr.
2 Goodlow reported that he would “notify Dr. Campos to consider
3 fibromyalgia and a rheumatology referral,” trigger point injections
4 and acupuncture (A.R. 363). There are no records of any rheumatology
5 visits or any trigger point examination findings.
6
7 In January of 2016, Plaintiff spoke with Dr. Aggarwal, reporting
8 that she was on Social Security disability for major depression, and
9 requesting a “DMI or letter stating she [is] unable to work
10 permanently due to current medical conditions[.] Reports severe
11 mental problem (major depression), generalized body pains, unable to
12 function at work, unable to walk or lift and recent MD office visit
13 stated possible fibromyalgia, she also states she is wearing a brace
14 which covers left foot, left ankle and left knee” (A.R. 3666).
15 Plaintiff reported that she already had letters from her psychiatrist
16 and therapist (A.R. 3666). Dr. Aggarwal stated:
17
18 Advised that I cannot write a letter for chronic disability
19 but can write a temporary “DMI” as she is continuing to
20 undergo [t]reatments by various specialists. Requests I
21 fill it out from when I last saw her [in October of 2015]
22 until the beginning of March. DMI written.
23
24 (A.R. 3666). Dr. Aggarwal’s office reportedly mailed the “DMI” to
25 Plaintiff (A.R. 3666). Any “DMI” that Dr. Aggarwal completed for
26
27 19 Orthopedic surgeon Dr. Paul C. Liu subsequently
recommended carpal tunnel release surgery, and rated the chance
28
1 Plaintiff appears to be missing from the Administrative Record.20
2
3 On January 26, 2016, Plaintiff left a message at Kaiser
4 requesting a letter stating that she is not able to stand for long
5 periods of time, along with a diagnosis and a treatment plan (A.R.
6 3732). On January 29, 2016, Plaintiff presented to podiatrist Dr.
7 Anthony Kimball for evaluation of left ankle pain and swelling (A.R.
8 3762). She reportedly was using shoe inserts, supportive shoes, ankle
9 supports, Mobic and ice (A.R. 3762). A left ankle MRI showed likely
10 tenosynovitis, high grade chondrosis, small tibular joint effusion
11 with fluid, small plantar calcaneal heel spur and small Haglund’s
12 deformity at the posterior superior calcaneus (A.R. 3766-67).
13
14 In February of 2016, Plaintiff presented to physical medicine Dr.
15 Karen Keiko Murata for a second opinion regarding her lumbar
16 radiculopathy, carpal tunnel syndrome and lateral epicondylitis (A.R.
17 3835). Plaintiff reported that she had back pain radiating to her
18 legs aggravated by walking, bending and standing less than five
19 minutes (A.R. 3836). On examination, she reportedly had a slow gait
20 without her ankle brace/shoes, tenderness on palpation, and positive
21 Tinel’s and Phalen’s tests (A.R. 3839-40). Dr. Murata diagnosed
22 chronic back pain radiating to the bilateral lower extremities with
23 bilateral upper extremity paresthesias, bilateral carpal tunnel
24 syndrome, and possible bilateral cervical and lumbar radiculopathy
25
26
20 Yet, the ALJ appears to have had a copy of Dr.
27 Aggarwal’s DMI. See A.R. 44 (ALJ giving limited weight to Dr.
Aggarwal’s report that Plaintiff was “placed off work” from
28
1 (A.R. 3840-41). Dr. Murata prescribed a low back brace as needed,
2 increased Plaintiff’s Mobic, discontinued Flexeril, prescribed
3 methocarbomal as needed, and ordered cervical, thoracic and lumbar MRI
4 studies which showed degenerative disc disease of the lower cervical
5 spine from C4-C5 through C6-C7 (A.R. 382-83, 3841-42).
6
7 Plaintiff followed up with Dr. Murata by telephone in March of
8 2016 (A.R. 367). She reportedly had tried physical therapy and found
9 the exercises “difficult to tolerate” (A.R. 367). Plaintiff had
10 declined acupuncture or local injection for pain (A.R. 368). Dr.
11 Murata referred Plaintiff to the Kaiser pain program (A.R. 368).
12
13 Plaintiff had requested that Dr. Murata complete a form for in
14 home health services to help her with her activities of daily living
15 due to pain (A.R. 377). It is noted, “[a]t the end of appointment,
16 patient does not want off work note but wants letter with [diagnoses]
17 and Not able to work” (A.R. 368). On March 22, 2016, Plaintiff called
18 to state she would be faxing over a doctor statement to be completed
19 by Dr. Murata for General Relief because she is unable to work, which
20 she needed completed by March 30, 2016 (A.R. 365-66). Dr. Murata
21 completed a form and sent it to Plaintiff on or around March 25, 2016,
22 indicated that Plaintiff had submitted two more types of forms, and
23 asked that all future forms be sent through Kaiser’s Insurance
24 Department (A.R. 4202). As with many of the other forms/letters
25 referenced in the record, any form(s) Dr. Murata completed are absent
26 ///
27 ///
28 ///
1 from the present Administrative Record.21
2
3 In April of 2016, Plaintiff presented for an initial pain
4 psychologist assessment as part of Kaiser’s integrated pain management
5 program (A.R. 355-56). Plaintiff complained of chronic pain in her
6 neck, shoulder, arms, hands, back, chest, hip, lower leg and ankle
7 with numbness and tingling, increased with standing, walking, lifting,
8 bending, twisting, weather changes, fatigue, stress and tension, and
9 decreased by lying down, sleeping or resting (A.R. 356). Plaintiff
10 reportedly was taking Tylenol #3, Relafen, Meloxicam, Flexeril,
11 Robaxin, Trazodone, Celexa, Ativan and Imitrex (A.R. 356). She
12 reportedly was not exercising (A.R. 357). Plaintiff admitted also
13 using THC for pain in January of 2016, but agreed not to use it while
14 working in a pain program (A.R. 357). Testing showed high Beck
15 Depression Inventory with suicidal thoughts in the past two weeks,
16 moderate opioid risk score due to her age, anxiety and depression, and
17 presentation consistent with chronic pain (A.R. 357-58).
18
19 Plaintiff had a physical therapy evaluation in April of 2016
20 (A.R. 346). She said she had upper back pain radiating to her low
21 back and extremities with tingling (id.). An MRI of her spine
22 reportedly showed disc osteophytes with mild spinal stenosis (A.R.
23
21 Yet, it appears that the record reviewed by both ALJs
24 did include an opinion from Dr. Murata. See A.R. 44 (ALJ giving
little weight to Dr. Murata’s opinion that Plaintiff was unable
25
to work due to chronic thoracic and lumbar pain, fibromyalgia,
26 bilateral carpal tunnel syndrome, cervical and lumbar
radiculopathy, and right lateral epicondylitis, and citing an
27 exhibit from “the CDR file”); A.R. 131 (prior ALJ giving no
weight to Dr. Murata’s opinion as based on Plaintiff’s physical
28
1 346). Plaintiff’s goals included improving gait tolerance to one hour
2 and improving sitting tolerance to two hours (A.R. 346). Plaintiff
3 reported that she could stand for up to 10 minutes, walk for up to 10
4 minutes, sit for up to 15 minutes, and sleep for up to six hours at
5 one time (A.R. 348). She reported that she did not drive and did not
6 do any household chores (A.R. 348; see also A.R. 353-54 (Plaintiff
7 reporting to another provider that she did zero exercise)).
8
9 In May of 2016, Plaintiff consulted with Dr. Chakradhar Penta for
10 pain management, at which time Plaintiff showed signs of depression
11 and was nervous/anxious (A.R. 341). Plaintiff reported suffering from
12 chronic pain for the past five years (A.R. 342). Plaintiff had
13 declined carpal tunnel release surgery and trigger point injections,
14 and claimed that physical therapy had not helped (A.R. 342-43).
15 Plaintiff reported that standing more than five minutes, walking more
16 than 10 minutes, sitting more than five minutes, bending, twisting,
17 fatigue, stress and tension increased her pain, and lying down/
18 sleeping/resting decreased her pain (A.R. 342-43). Plaintiff wore
19 wrist splints most days, and previously had used a back brace (A.R.
20 343). Plaintiff had used marijuana for pain four months prior, and
21 was interested in using it again since there were no reported side
22 effects (A.R. 344). On examination, Plaintiff reportedly had a
23 depressed mood, stiff gait, and tenderness to palpation along the
24 axial spine and at some trigger points (A.R. 344). Dr. Penta
25 diagnosed chronic pain syndrome, myofascial pain syndrome,
26 cervicogenic headache and fibromyalgia (A.R. 344). Plaintiff was
27 encouraged to continue with physical therapy to build a tolerance to
28 activity, to pace activities to prevent flares, to take prescribed
1 medications (Effexor, Celexa, lidocaine ointment, Relafen and
2 Robaxin), and to postpone resuming medical marijuana while she tried
3 other pain medicine options (A.R. 344-45). Dr. Penta noted that
4 trigger point injections in the bilateral upper trapezius might be
5 needed in the future (A.R. 345).
6
7 At a follow up physical therapy appointment in May of 2016,
8 Plaintiff reported that she was “doing ok,” and she was prescribed a
9 TENS unit (A.R. 640-42). Plaintiff thereafter attended 12 pain
10 management classes and group cognitive behavioral therapy sessions for
11 pain (A.R. 654-779). On July 20, 2016, she was approved for 12 more
12 weeks of physical therapy and cognitive behavioral group therapy (A.R.
13 780-81). She again reported that she did not drive and did no chores
14 (A.R. 783). She was given a portable neck traction machine (A.R.
15 783).
16
17 Plaintiff returned to Dr. Penta in June of 2016, reporting
18 continuous, fluctuating pain, left knee “giving out,” left arm
19 numbness, tightness in the bilateral trapezius, and lateral left hip
20 pain when she lies on that side (A.R. 690-91). She also reported that
21 long sitting or walking or any amount of exercise bothered her left
22 side but she was walking “some” (A.R. 691). Dr. Penta prescribed
23 Effexor in addition to the other medications Plaintiff was taking
24 (A.R. 691-93). Dr. Penta also prescribed a cane (A.R. 4718).
25
26 Plaintiff returned to Dr. Penta in August of 2016, reporting that
27 her pain was the same or slightly improved (A.R. 790). Where
28 Plaintiff previously had reported doing no chores, she now reported
1 that she had been taking breaks with shopping and cleaning and was
2 delegating more work to her son (A.R. 791). She reportedly also was
3 walking, using a cane for left foot pain as needed (A.R. 791).
4 However, she reported that she was unable to do a home exercise
5 program due to pain (A.R. 791). Her medications were refilled and she
6 reportedly was “really interested” in trying marijuana again (A.R.
7 791-92). She denied a trial of trigger point injections in favor of
8 physical therapy (A.R. 791). On August 17, 2016, she reportedly was
9 stable on her current pain medications (A.R. 801). In October of
10 2016, Plaintiff requested another referral for pain management after
11 she had been discharged from the program in September (A.R. 5045-46,
12 5057).
13
14 C. The State Agency Physicians’ Opinions
15
16 State agency review physicians examined Kaiser records received
17 in May of 2016, as well as the March, 2016 adverse decision which had
18 not considered Plaintiff’s alleged physical impairments (A.R. 139-51).
19 These physicians opined in June/July of 2016 that Plaintiff was not
20 disabled (A.R. 139-51). At that time, there reportedly were no
21 medical opinions in the record for the physicians to review (A.R.
22 145). Dr. Stuart L. Laiken, M.D., Ph.D., found that for the period
23 beginning March 17, 2016 – the day after the first ALJ’s adverse
24 decision – Plaintiff was capable of light work with occasional
25 postural activities, some bilateral upper extremity and left lower
26 extremity limitations, and some environmental limitations (A.R. 142,
27 145-47). Dr. P.G. Hawkins, Ph.D., found for the same period that
28 Plaintiff was capable of performing simple tasks in a non-public
1 setting, finding no material change in Plaintiff’s mental condition
2 since the first ALJ’s adverse decision (A.R. 142-44, 147-49).
3
4 On reconsideration as of October of 2016, state agency review
5 physicians examined additional records from Kaiser received in
6 September of 2016, and again found Plaintiff not disabled (A.R. 167-
7 79). Plaintiff reportedly asserted that her fibromyalgia had worsened
8 and that, due to her left trochanteric bursitis, she has to use a cane
9 (A.R. 168, 170, 318). She was morbidly obese (A.R. 170). Again, the
10 state agency physicians had no medical opinions to review (A.R. 172).
11
12 D. Treatment Records Post-Dating the State Agency Physicians’
13 Review
14
15 Plaintiff returned to Dr. Haddad in October of 2016, reporting
16 feeling overwhelmed from taking care of her mother after her mother
17 had cataract surgery, and not knowing if there was any improvement
18 from the increased Effexor dose (A.R. 5074-75). She reportedly felt
19 she had no time for herself in the last month because she was
20 caretaking, and she was irritable, not enjoying life, having bad
21 migraines, not sleeping well with poor energy, felt unsettled and was
22 seeing shadows and hearing someone calling her name (A.R. 5075-76).
23 On mental status examination, she reportedly had psychomotor
24 retardation, reduced vocal inflection, normal thought content but
25 visual hallucinations, and a depressed, euthymic sustained emotional
26 state with congruent blunted dysphoric affect (A.R. 5076-77). Dr.
27 Haddad increased Plaintiff’s Effexor, discontinued Benadryl,
28 prescribed Hydroxyzine, discontinued Celexa, continued melatonin and
1 again recommended increased activity (A.R. 5078). When Plaintiff
2 returned for therapy with a new therapist on October 20, 2016, she
3 reportedly was negative, angry and depressed (A.R. 5099). She was
4 assessed with a GAF of 51-60, and the highest GAF in the last 12
5 months was estimated at 55 (A.R. 5100).
6
7 Plaintiff returned to Dr. Haddad in November of 2016, reporting
8 that she felt overworked from caring for her mother (A.R. 5214-16).
9 She was still feeling depressed, still seeing shadows, still hearing
10 things, and anxious with constant worrying that bad things would
11 happen after Social Security was taken away (A.R. 5216). She was set
12 to start grief counseling the next week (A.R. 5216). On mental status
13 examination, she reportedly had mild motor retardation, reduced vocal
14 inflection, coherent yet vague thought processes, difficulty answering
15 questions with specificity, auditory misperceptions with mild paranoia
16 intermittently, visual misperceptions, inability to do serial 7s, and
17 she was anxious and irritable with depressed mood and congruent
18 blunted affect (A.R. 5217). Dr. Haddad prescribed Seroquel for sleep,
19 continued Effexor, discontinued Hydroxyzine, continued melatonin and
20 recommended increased physical activity (A.R. 5218-19).
21
22 Plaintiff restarted physical therapy in November of 2016, for her
23 chronic low back pain, with a long term goal of tolerating prolonged
24 standing for 30 minutes at a time to take a shower, tolerating sitting
25 30 minutes at a time and tolerating walking 30 minutes at a time (A.R.
26 5303). Her “rehab potential” was “fair” (A.R. 5303). Plaintiff
27 asserted that lying down, sitting or standing too long aggravated her
28 pain, and said she could sit less than 20 minutes at a time, stand
1 less than 10 minutes at a time and walk less than five minutes before
2 hurting (A.R. 5304).
3
4 The record includes subsequent treatment notes for Plaintiff’s
5 ailments as follows: (1) regular medication visits with Dr. Haddad
6 through May of 2017, which included increasing Plaintiff’s Seroquel
7 dose and adding Wellbutrin (A.R. 5406-10, 5531-34, 5613-16, 5677-80,
8 5759-63, 5863-66); (2) psychotherapy from February through July of
9 2017, during which time Plaintiff’s GAF was assessed at 51-60 (A.R.
10 5666-67, 5701-02, 5719-20, 5837-38, 5923-24, 5990-91); (3) treatment
11 from a new psychiatrist in July and November of 2017, which included
12 increasing Plaintiff’s Effexor dose (A.R. 6002-08, 6435-41);
13 (4) psychotherapy with a new therapist from August though November of
14 2017 (A.R. 6117-18, 6160-61, 6190-91, 6230, 6410-11); (5) physical
15 therapy through February of 2017, when Plaintiff was discharged to do
16 a home exercise program (A.R. 5389-92, 5646-48); (6) one physical
17 therapy visit in June of 2017, and a discharge from physical therapy
18 in October of 2017, because Plaintiff failed to return for treatment
19 (A.R. 5909-12, 5915); (7) pain management visits in October and
20 November of 2017 (A.R. 6260-65, 6344-48); and (8) treatment for her
21 ankle pain from April through August of 2017 (A.R. 5787-89, 5847-49,
22 6026-28). Dr. Murata reportedly also completed a General Relief form
23 on December 29, 2017, marking “permanent incapacity” (A.R. 6565-66).
24 This form is not in the Administrative Record.
25 ///
26 ///
27 ///
28 ///
1 II. Substantial Evidence Does Not Support the Conclusion that
2 Plaintiff No Longer was Disabled on and after November 1, 2014.
3
4 Substantial evidence does not support the Administration’s
5 decision that Plaintiff medically improved as of November 1, 2014, to
6 the point where she could perform light work then and thereafter. In
7 vacating the ALJ’s March 16, 2016 decision, the Appeals Council ruled
8 that there was no support for the residual functional capacity the ALJ
9 had adopted for the period November 1, 2014 to March 16, 2016 (A.R.
10 54). On remand, the new ALJ purported to adopt the non-examining
11 state agency physicians’ October, 2016 opinions in finding that
12 Plaintiff’s disability ended as of November 1, 2014 (A.R. 32, 37-44).
13 However, these state agency physicians’ opinions applied to the period
14 beginning in March of 2016 at the earliest. See A.R. 173 (indicating
15 physical residual functional capacity was for the period from
16 March 17, 2016 to the present); A.R. 175 (indicating mental residual
17 functional capacity was for the period from March 12, 2016 to the
18 present).
19
20 There is evidence suggesting that Plaintiff’s mental condition
21 did improve September, 2014 - February, 2015 (A.R. 2696-98, 2963-64).
22 See A.R. 42 (ALJ discussing evidence). However, there is no evidence
23 from a medical source to support the ALJ’s decision that Plaintiff’s
24 condition, which also included severe physical impairments, improved
25 as of November 1, 2014 to the point of non-disability. The record is
26 devoid of any medical source statement determining that Plaintiff had
27 the residual functional capacity the ALJ assessed from November 1,
28 2014 through March of 2016. Further, the only medical opinions
1 regarding this time period that are included in the record (which are
2 the prior non-examining opinions as to which the first ALJ declined to
3 give great weight) reportedly were contradicted by the treating
4 opinions of Drs. Lewis, Murata, or Aggarwal (which are missing from
5 the record) (A.R. 43-44).
6
7 Given the lack of any medical source statements covering the
8 period from November 1, 2014 through March of 2016, and the reported
9 contradiction between the non-examining opinions and Plaintiff’s
10 missing treating source opinions, the Court cannot find that the non-
11 examining state agency physicians’ opinions are substantial evidence
12 to support the new ALJ’s decision. Compare Tonapetyan v. Halter, 242
13 F.3d 1144, 1149 (9th Cir. 2001) (opinion of non-examining physician
14 “may constitute substantial evidence when it is consistent with other
15 independent evidence in the record”); see also Andrews v. Shalala, 53
16 F.3d 1035, 1041 (9th Cir. 1995) (where the opinions of non-examining
17 physicians do not contradict “all other evidence in the record” an ALJ
18 properly may rely on these opinions); Curry v. Sullivan, 925 F.2d
19 1127, 1130 n.2 (9th Cir. 1990) (same).
20
21 The ALJ also cited to medical recommendations from Plaintiff’s
22 treatment providers (i.e., “reconditioning with daily aerobic
23 activities” recommended by Dr. Penta (A.R. 345), and “increased
24 physical activity” recommended by Dr. Haddad (A.R. 5692)). According
25 to the ALJ, these recommendations suggested that Plaintiff was capable
26 of a reduced range of light work and that her physical impairments “do
27 not preclude all activity.” See A.R. 41. Plaintiff has never
28 asserted that her impairments preclude all activity. Further,
1|| recommendations for Plaintiff to increase her activity from virtual
inactivity do not constitute substantial evidence to support the ALJ’s
3] lay conclusion that Plaintiff can perform light work. The ALJ was not
qualified to draw such a conclusion from these sparse references in
5] the voluminous medical record. An ALJ cannot properly rely on the
ALJ’s own lay knowledge to make medical interpretations of examination
results or to determine the severity of medically determinable
8| impairments. See Tackett v. Apfel, 180 F.3d 1094, 1102-03 (9th Cir.
9] 1999); Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (an “ALJ
cannot arbitrarily substitute his [or her] own judgment for competent
medical opinion”) (internal quotation and citation omitted); Rohan v.
12] Chater, 98 F.3d 966, 970 (7th Cir. 1996) (*ALJs must not succumb to
13] the temptation to play doctor and make their own independent medical
findings”); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an
15| ALJ is forbidden from making his or her own medical assessment beyond
16] that demonstrated by the record). Absent expert medical assistance,
17] the ALJ could not competently translate the medical evidence in this
case into a residual functional capacity assessment. See Tackett v.
19| Apfel, 180 F.3d at 1102-03 (ALJ’s residual functional capacity
assessment cannot stand in the absence of evidentiary support).
21
22 Rather than making his own lay assessment of Plaintiff's
limitations, the ALJ should have requested clarification from
Plaintiff’s treatment providers regarding Plaintiff’s limitations, or
25| ordered examination and evaluation of Plaintiff by consultative
26|| examiner(s). See Day v. Weinberger, 522 F.2d at 1156; see also Reed
27| v. Massanari, 270 F.3d 838, 843 (9th Cir. 2001) (where available
28| medical evidence is insufficient to determine the severity of the
20
claimant’s impairment, the ALJ should order a consultative examination
2| by a specialist); accord Kish v. Colvin, 552 Fed. App’x 650 (2014);
see generally Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001)
(ALJ’s duty to develop the record further is triggered “when there is
ambiguous evidence or when the record is inadequate to allow for the
6| proper evaluation of the evidence”) (citation omitted); Brown v.
7| Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (“[T]he ALJ has a special
duty to fully and fairly develop the record to assure the claimant’s
9] interests are considered. This duty exists even when the claimant is
represented by counsel.”).
11
12 The ALJ also referenced certain medical examination reports and
13] Plaintiff's daily activities since November 1, 2014, as supposedly
proving that depression would not preclude the performance of full
15] time work (A.R. 38 (citing Exhibit 7E, CDR file); see also A.R. 43
(discussing daily activities of driving, taking her son to and from
school, and reports in the medical record that Plaintiff exercised,
18] regularly attended church, appeared to take pride in her appearance,
and went to an event over a weekend)). The Administrative Record does
not contain the function statement(s) on which the ALJ reportedly
21|| relied. See Footnote 7, supra.”
22] ///
23
24 22 Plaintiff testified at the February, 2018 hearing that
25 her activities of daily living included doing no chores, watching
television, going to stores once a month, paying bills, going to
26|| doctor appointments, and getting her nails done once a month
(A.R. 77-79). Plaintiff testified at the February, 2016 hearing
27| that she watched television, made quick meals (sandwiches,
microwave food), could not make her bed, could not clean her room
and did not want to do anything (A.R. 106-07).
22
1 The generality of the ALJ’s findings, the lack of any medical
2|| source statements for the relevant time periods and the many
referenced documents’ absence from the Administrative Record prevent
4|| the Court from concluding that substantial evidence supports the
decision Plaintiff medically improved as of November 1, 2014 and was
6] no longer disabled then and thereafter.
7
8| III. Remand is Appropriate
9
10 The Court is unable to conclude that the ALJ’s errors were
11] harmless. “[A]n ALJ’s error is harmless where it is inconsequential
12] to the ultimate nondisability determination.” Molina v. Astrue, 674
13] F.3d 1104, 1115 (9th Cir. 2012) (citations and quotations omitted) ;
see Treichler v. Commissioner, 775 F.3d 1090, 1105 (9th Cir. 2014)
15 (“Where, as in this case, an ALJ makes a legal error, but the record
16] is uncertain and ambiguous, the proper approach is to remand the case
to the agency”); cf. McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir.
18] 2011) (error not harmless where “the reviewing court can determine
from the ‘circumstances of the case’ that further administrative
review is needed to determine whether there was prejudice from the
21) error”).
22
23 Remand is appropriate because the circumstances of this case
24] suggest that further development of the record and further
25|| administrative review could remedy the ALJ’s errors. See McLeod v.
26] Astrue, 640 F.3d at 888; see also INS v. Ventura, 537 U.S. 12, 16
(2002) (upon reversal of an administrative determination, the proper
28|| course is remand for additional agency investigation or explanation,
QA
except in rare circumstances); Leon v. Berryhill, 880 F.3d 1041, 1044
(9th Cir. 2017) (reversal with a directive for the immediate
3] calculation of benefits is a “rare and prophylactic exception to the
well-established ordinary remand rule”; Dominguez v. Colvin, 808 F.3d
5] 403, 407 (9th Cir. 2015) (“Unless the district court concludes that
6| further administrative proceedings would serve no useful purpose, it
7) may not remand with a direction to provide benefits”); Treichler v.
8] Commissioner, 775 F.3d at 1101 n.5 (remand for further administrative
9|| proceedings is the proper remedy “in all but the rarest cases”);
10] Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (court will
11] credit-as-true medical opinion evidence only where, inter alia, “the
record has been fully developed and further administrative proceedings
13] would serve no useful purpose”); Harman v. Apfel, 211 F.3d 1172, 1180-
14] 81 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) (remand for further
15|| proceedings rather than for the immediate payment of benefits is
16|| appropriate where there are “sufficient unanswered questions in the
17] record”); see also Brown-Hunter v. Colvin, 806 F.3d 487, 495-96 (9th
18] Cir. 2015) (discussing the narrow circumstances in which a court will
order a benefits calculation rather than further proceedings). There
20] remain significant unanswered questions in the present record.’
21] ///
22] ///
23] ///
24] ///
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26
2° For example, it is not clear whether the ALJ would be
27|| required to find Plaintiff disabled for the entire claimed period
of disability even if Dr. Mahta’s opinions were fully credited.
see Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).
25
1 CONCLUSION
2
3 For all of the foregoing reasons,24 Plaintiff’s and Defendant’s
4 motions for summary judgment are denied and this matter is remanded
5 for further administrative action consistent with this Opinion.
6
7 LET JUDGMENT BE ENTERED ACCORDINGLY.
8
9 DATED: May 20, 2020.
10
/s/
11 CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE
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24 The Court has not reached any other issue raised by
27 Plaintiff except insofar as to determine that reversal with a
directive for the immediate payment of benefits would not be
28