Leonora Petate Millera v. Martin O'Malley

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 LEONORA M.,1 Case No. 2:20-cv-02104-MAA

12 Plaintiff,

MEMORANDUM DECISION AND

13 v. ORDER REVERSING DECISION OF

THE COMMISSIONER AND

14 REMANDING FOR FURTHER

ADMINISTRATIVE PROCEEDINGS

15 ANDREW M. SAUL,

Commissioner of Social Security,

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Defendant.

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19 On March 4, 2020, Plaintiff filed a Complaint seeking review of the

20 Commissioner’s final decision denying her application for Supplemental Security

21 Income pursuant to Title XVI of the Social Security Act. This matter is fully

22 briefed and ready for decision. For the reasons discussed below, the

23 Commissioner’s final decision is reversed, and this matter is remanded for further

24 administrative proceedings.

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26 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

27 Administration and Case Management of the Judicial Conference of the United

States.

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1 ADMINISTRATIVE HISTORY

2 On December 31, 2015, Plaintiff filed an application for Supplemental

3 Security Income, alleging disability beginning on February 1, 2008.

4 (Administrative Record [AR] 48, 443-51.) Plaintiff alleged disability because of

5 asthma, back pain, anxiety, depression, knee pain, arthritis, and gastritis. (AR 315,

6 331.) After the application was denied initially and on reconsideration, Plaintiff

7 requested a hearing before an Administrative Law Judge (“ALJ”). (AR 356-58.)

8 At an initial hearing held on May 18, 2018, at which Plaintiff appeared with

9 counsel, the ALJ heard testimony from Plaintiff and a vocational expert. (AR 677-

10 99.) At a second hearing held on October 18, 2018, at which Plaintiff appeared

11 with counsel, the ALJ heard testimony from Plaintiff, a medical expert, and a

12 vocational expert. (AR 282-309.)

13 In a decision issued on January 18, 2019, the ALJ denied Plaintiff’s disability

14 claim after making the following findings pursuant to the Commissioner’s five-step

15 evaluation. (AR 48-57.) Plaintiff had not engaged in substantial gainful activity

16 since her application date of December 31, 2015. (AR 50.) She had severe

17 impairments consisting of “history of ventricular septal defect (VSD), status post

18 surgical repair in 1991 [AR 632]; ‘mild’ scoliosis [AR 635] with normal MRI of the

19 lumbar spine [AR 648]; and gastritis (20 CFR 416.920(c)).” (AR 50.) She did not

20 have an impairment or combination of impairments that met or medically equaled

21 the requirements of one of the impairments from the Commissioner’s Listing of

22 Impairments. (AR 53.) She had a residual functional capacity (“RFC”) for the full

23 range of light work. (Id.) She could perform her past relevant work as a data entry

24 clerk. (AR 56.) In sum, the ALJ concluded that Plaintiff was not disabled as

25 defined by the Social Security Act. (AR 57.)

26 Plaintiff requested review by the Appeals Council. (AR 440-42.) As part of

27 her request, Plaintiff submitted several pages of additional medical evidence. (AR

28 24-44, 63-281.) The Appeals Council accepted the evidence that predated the

1 ALJ’s decision on January 18, 2019 but rejected the evidence that postdated it.

2 (AR 2.) On February 7, 2020, the Appeals Council denied Plaintiff’s request for

3 review. (AR 1.) Thus, the ALJ’s decision became the final decision of the

4 Commissioner.

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6 DISPUTED ISSUES

7 The parties raise two disputed issues:

8 1. Whether the ALJ and/or the Appeals Council have properly considered

9 the relevant medical evidence of record in assessing Plaintiff’s residual functional

10 capacity; and

11 2. Whether the ALJ has properly considered Plaintiff’s subjective

12 statements of record and testimony under oath in assessing Plaintiff’s residual

13 functional capacity.

14 (ECF No. 21, Parties’ Joint Stipulation [“Joint Stip.”] at 3-4.)

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16 STANDARD OF REVIEW

17 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s final

18 decision to determine whether the Commissioner’s findings are supported by

19 substantial evidence and whether the proper legal standards were applied. See

20 Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir.

21 2014). Substantial evidence means “more than a mere scintilla” but less than a

22 preponderance. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter

23 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). Substantial evidence is “such

24 relevant evidence as a reasonable mind might accept as adequate to support a

25 conclusion.” Richardson, 402 U.S. at 401. The Court must review the record as a

26 whole, weighing both the evidence that supports and the evidence that detracts from

27 the Commissioner’s conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is

28 susceptible of more than one rational interpretation, the Commissioner’s

1 interpretation must be upheld. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.

2 2007).

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4 DISCUSSION

5 For the reasons discussed below, reversal and remand for further

6 administrative proceedings are warranted for Issue One, based on the ALJ’s

7 reliance on the medical expert’s testimony in assessing Plaintiff’s RFC for light

8 work. Having found that remand is warranted, the Court declines to address

9 Plaintiff’s remaining arguments. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir.

10 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline

11 to reach [plaintiff’s] alternative ground for remand.”); see also Augustine ex rel.

12 Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court

13 need not address the other claims plaintiff raises, none of which would provide

14 plaintiff with any further relief than granted, and all of which can be addressed on

15 remand.”).

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17 A. Plaintiff’s Residual Functional Capacity (Issue One).

18 1. Legal Standard.

19 A claimant’s RFC represents the most a claimant can do despite his or her

20 limitations. 20 C.F.R. § 416.945(a)(1); Reddick v. Chater, 157 F.3d 715, 724 (9th

21 Cir. 1998); Smolen v. Chater, 80 F.3d 1273, 1291 (1996). An ALJ’s RFC

22 determination “must set out all the limitations and restrictions of the particular

23 claimant.” Valentine v. Commissioner Social Sec. Admin., 574 F.3d 685, 690 (9th

24 Cir. 2009) (emphasis in original). An ALJ will assess a claimant’s residual

25 functional capacity “based on all of the relevant medical and other evidence.” 20

26 C.F.R. § 416.945(a)(3). A claimant “is ultimately responsible for providing the

27 evidence to be used in making the RFC finding,” but an ALJ has “a special duty to

28 fully and fairly develop the record and to assure that the claimant’s interests are

1 considered.” Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006) (citations

2 omitted).

3 Moreover, a district court’s resolution of this issue accounts for the evidence

4 that the Appeals Council accepted for the record before denying a claimant’s

5 request for review. See Brewes v. Commissioner of Social Sec. Admin., 682 F.3d

6 1157, 1159-60 (9th Cir. 2012) (“We hold that when a claimant submits evidence for

7 the first time to the Appeals Council, which considers that evidence in denying

8 review of the ALJ’s decision, the new evidence is part of the administrative record,

9 which the district court must consider in determining whether the Commissioner’s

10 decision is supported by substantial evidence.”).

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12 2. Background.

13 At the initial hearing, the ALJ noted that records relating to Plaintiff’s breast

14 cancer were missing. (AR 679-80.) The ALJ left the record open for Plaintiff’s

15 attorney to submit additional records after the hearing, but the ALJ nonetheless

16 heard Plaintiff testify about her conditions. (AR 680-81.) Plaintiff testified, in

17 pertinent part, that she also had congenital heart disease. (AR 687.)

18 At the second hearing, the ALJ heard the testimony of Dr. Savage, a medical

19 expert. (AR 291-305.) Dr. Savage, a cardiologist and internist (AR 304), had

20 questions about the records relating to Plaintiff’s heart condition. Specifically, Dr.

21 Savage did not see, in the record that existed at the time, an exercise test or stress

22 test (AR 296), nor did he see an echocardiogram (AR 300). Dr. Savage commented

23 that such evidence “would be the key.” (AR 304.) Without the evidence, Dr.

24 Savage could not determine whether Plaintiff had coronary disease (AR 301) or

25 pulmonary hypertension (AR 300), which Dr. Savage called “a pathetic disease”

26 (AR 304). Nonetheless, based on the evidence that was before him, Dr. Savage

27 opined that Plaintiff had a residual functional capacity for “probably light” work.

28 (AR 302-03.)

1 In his decision, the ALJ gave greater weight to Dr. Savage’s opinion than to

2 other medical opinions. (AR 55.) Thus, the ALJ concluded that Plaintiff had a

3 residual functional capacity for light work (AR 53) and was not disabled (AR 57).

4 The Appeals Council, in considering Plaintiff’s request for review, accepted

5 and considered new evidence that Dr. Savage had commented might have been

6 missing from the record. An exercise test from March 2017 showed that Plaintiff

7 had exercised for three and a half minutes before stopping due to shortness of

8 breath. (AR 255.) An echocardiogram from July 2017 showed multiple “normal”

9 findings, as well as “mild tricuspid regurgitation.” (AR 257.) An echocardiogram

10 from November 2017 showed multiple “normal” findings, but also “Doppler

11 findings [that] are consistent with mild pulmonary hypertension.” (AR 164.) An

12 echocardiogram from May 2018 led to a diagnosis of hypertensive heart disease.

13 (AR 116.)

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15 3. Analysis.

16 Based on the evidence that was presented for the first time to the Appeals

17 Council, the RFC assessment was no longer supported by substantial evidence. See

18 Brewes, 682 F.3d at 1159-60. The RFC assessment was based on the testimony of

19 Dr. Savage, who testified that Plaintiff “probably” could perform light work (AR

20 302-03) yet found it difficult to determine, from the record before him, the

21 seriousness of Plaintiff’s heart condition. See Tonapetyan v. Halter, 242 F.3d 1144,

22 1150 (9th Cir. 2001) (opinion of a medical expert who remained equivocal

23 throughout his testimony, because he perceived the record was incomplete, did not

24 support the ALJ’s findings). The new evidence presented to the Appeals Council—

25 specifically, the exercise test and the echocardiograms—was precisely the evidence

26 that Dr. Savage believed was missing yet was “key” to his opinion. (AR 304.)

27 To be sure, the new evidence presented to the Appeals Council was not

28 entirely in Plaintiff’s favor. It showed, as noted, multiple “normal” findings. (AR

1 164, 257.) Yet it also suggested hypertensive heart disease (AR 116) and mild

2 pulmonary hypertension (AR 164), which Dr. Savage called “a pathetic disease”

3 (AR 304). Thus, the Court is unable to conclude that this new evidence, on the

4 whole, is so benign that it would have made no difference to the medical expert’s

5 opinion, which in turn was the basis for the ALJ’s RFC assessment. See Hall v.

6 Berryhill, 717 F. App’x 708, 711 (9th Cir. 2017) (RFC assessment was unsupported

7 by substantial evidence where new evidence considered by the Appeals Council

8 suggested additional limitations). Moreover, this new evidence appears to have

9 been particularly significant because it directly addressed Dr. Savage’s repeated

10 concerns about the apparent inadequacy of the medical record. See Brewes, 682

11 F.3d at 1163 (evidence presented for the first time to the Appeals Council

12 warranted reversal because it “was directly responsive” to the witness’s testimony);

13 see also Borrelli v. Commissioner of Social Sec., 570 F. App’x 651, 652 (9th Cir.

14 2014) (ALJ’s findings based on the absence of medical records was no longer

15 supported by substantial evidence where the evidence presented to the Appeals

16 Council included those records). For these reasons, reversal is warranted.

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18 B. Remand for further administrative proceedings.

19 Ninth Circuit case law “precludes a district court from remanding a case for

20 an award of benefits unless certain prerequisites are met.” Dominguez v. Colvin,

21 808 F.3d 403, 407 (9th Cir. 2015) (citations omitted). “The district court must first

22 determine that the ALJ made a legal error, such as failing to provide legally

23 sufficient reasons for rejecting evidence.” Id. “If the court finds such an error, it

24 must next review the record as a whole and determine whether it is fully developed,

25 is free from conflicts and ambiguities, and all essential factual issues have been

26 resolved.” Id. (citation and internal quotation marks omitted).

27 Here, substantial evidence no longer supported the residual functional

28 capacity assessment, in light of the evidence presented to the Appeals Council.

1 || However, the record still is not free from conflicts and ambiguities, and essential

2 || factual issues remain outstanding. No ALJ or physician has had an opportunity to

3 || review the entire medical record to determine the seriousness of Plaintiff's

4 || conditions and to assess her functional abilities. Thus, the record raises factual

5 || conflicts about Plaintiff's level of functioning that “should be resolved through

6 || further proceedings on an open record before a proper disability determination can

7 || be made by the ALJ in the first instance.” See Brown-Hunter v. Colvin, 806 F.3d

8 || 487, 496 (9th Cir. 2015); see also Treichler, 775 F.3d at 1101 (stating that remand

9 || for an award of benefits is inappropriate where “there is conflicting evidence, and

10 || not all essential factual issues have been resolved”’) (citation omitted); Strauss v.

11 || Commissioner of the Social Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011)

12 || (same where the existing record does not clearly demonstrate that the claimant is

13 || disabled within the meaning of the Social Security Act).

14 Therefore, based on its review and consideration of the entire record, the

15 || Court has concluded on balance that a remand for further administrative

16 || proceedings pursuant to sentence four of 42 U.S.C. § 405(g) is warranted here. It is

17 || not the Court’s intent to limit the scope of the remand.

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19 ORDER

20 It is ordered that Judgment be entered reversing the decision of the

21 |} Commissioner of Social Security and remanding this matter for further

22 || administrative proceedings.

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24 || DATED: June 15, 2021

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26 MARIA A. (yo?

UNITED STATES MAGISTRATE JUDGE

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