Sardina v. Kijakazki

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7 UNITED STATES DISTRICT COURT

8 SOUTHERN DISTRICT OF CALIFORNIA

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10 FRANCESCA S. for WENCY S.,1 Case No.: 22-cv-1993-MMP

11 Plaintiff,

ORDER REVERSING FINAL

12 v. DECISION OF THE

COMMISSIONER OF SOCIAL

13 MARTIN O’MALLEY, Commissioner of

SECURITY AND REMANDING

Social Security,2

14 DECISION FOR FURTHER

ADMINISTRATIVE PROCEEDINGS

15 Defendant.

UNDER SENTENCE FOUR OF 42

16 U.S.C. § 405(g)

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18 Plaintiff Francesca S. (“Plaintiff”), proceeding pro se and in forma pauperis, appeals

19 the final decision of the Commissioner of Social Security Administration (“Commissioner”

20 or “Defendant”) denying her late husband’s application for disability insurance benefits

21 and supplemental security income under Titles II and XVI of the Social Security Act. [ECF

22 No. 1 at 2; ECF No. 4.] Plaintiff brings this appeal pursuant to 42 U.S.C. § 405(g). Plaintiff

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1 In accordance with Civil Local Rule 7.1(e)(6)(b), the Court refers to all non-government

25 parties by using their first name and last initial.

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2 Martin O’Malley, the current Commissioner of Social Security, is automatically

27 substituted as defendant for Kilolo Kijakazi, the former Acting Commissioner of Social

Security, pursuant to Federal Rule of Civil Procedure 25(d).

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1 filed an opening brief, to which Defendant responded. [ECF Nos. 22, 25.] The parties have

2 consented to the undersigned for all purposes. [ECF No. 39.]

3 After a thorough review of the parties’ submissions, the administrative record, and

4 the applicable law, and for the reasons set forth below, the Court REVERSES the final

5 decision of the Commissioner of Social Security and REMANDS the matter for further

6 administrative proceedings under sentence four of 42 U.S.C. § 405(g).

7 I. PROCEDURAL HISTORY

8 On July 24, 2019, claimant Wency S. (“Claimant”) filed an application for disability

9 insurance benefits under Title II and supplemental security income under Title XVI of the

10 Social Security Act, alleging a disability onset date of October 31, 2018. Administrative

11 Record (“AR”) 9, 190–207. Claimant’s alleged impairments include diabetes type 2 with

12 retinopathy, peripheral neuropathy, and diabetic foot resulting in a right second toe

13 amputation; hypertension and diastolic heart failure; chronic kidney disease; late effects of

14 strokes; and shoulder and back pain. See AR 221, 281–87. The claims were denied initially

15 on April 22, 2020, and upon reconsideration on May 22, 2020. AR 9, 103–08, 112–18.

16 Claimant filed a written request for hearing. AR 119–20.

17 On November 24, 2020, the Administrative Law Judge (“ALJ”) held a telephonic

18 hearing in which Claimant, appearing with counsel and a non-attorney representative, as

19 well as a vocational expert testified. AR 9, 23–51. On May 20, 2021, the ALJ issued a

20 decision denying benefits. AR 9–18. Claimant filed a request for Appeals Council review.

21 While the request was pending, Claimant passed away, and his wife sought to be

22 substituted in as a party to the proceeding. See AR 316. Appeals Council review was denied

23 on May 31, 2022; thus, the ALJ’s decision is the final decision of the Commissioner of

24 Social Security. See AR 1–5.

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27 3 At Plaintiff’s request, the Court granted numerous extensions of time for Plaintiff to file

her reply, ultimately extending the deadline to December 13, 2023. [ECF Nos. 30, 32,

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1 II. SUMMARY OF ALJ’S FINDINGS

2 A. The Five-Step Evaluation Process

3 The ALJ follows a five-step sequential evaluation process in assessing whether a

4 claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Tackett v. Apfel, 180 F.3d 1094,

5 1098–99 (9th Cir. 1999). In the first step, the Commissioner must determine whether the

6 claimant is currently engaged in substantial gainful activity; if so, the claimant is not

7 disabled, and the claim is denied. 20 C.F.R. § 404.1520(a)(4)(i) and (b); see also 20 C.F.R.

8 § 416.920(a)(4)(i) and (b).

9 If the claimant is not currently engaged in substantial gainful activity, the second

10 step requires the ALJ to determine whether the claimant has a “severe” impairment or

11 combination of impairments significantly limiting his ability to do basic work activities,

12 and which has lasted or is expected to last for a continuous period of at least twelve (12)

13 months; if not, the claimant is not disabled and the claim is denied. 20 C.F.R. §§

14 404.1520(a)(4)(ii) and (c), 404.1509 (setting forth the twelve (12) month duration

15 requirement); see also 20 C.F.R. §§ 416.920(a)(4)(ii) and (c), 416.909. If the claimant has

16 a “severe” impairment or combination of impairments, the third step requires the ALJ to

17 determine whether the impairment or combination of impairments meets or equals an

18 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart

19 P, appendix 1; if so, disability is conclusively presumed, and benefits are awarded. 20

20 C.F.R. § 404.1520(a)(4)(iii) and (d); see also 20 C.F.R. § 416.920(a)(4)(iii) and (d).

21 If the claimant’s impairment or combination of impairments does not meet or equal

22 an impairment in the Listing, the ALJ proceeds to the fourth step of the disability evaluation

23 process. 20 C.F.R. §§ 404.1520(e), 416.920(e). The fourth step requires the ALJ to

24 determine whether the claimant has sufficient residual functional capacity (“RFC”) to

25 perform his past work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Therefore, the

26 ALJ must determine the claimant’s RFC before moving to step four.

27 An RFC is “an assessment of an individual’s ability to do sustained work-related

28 physical and mental activities in a work setting on a regular and continuing basis.” Soc.

1 Sec. Ruling (“SSR”)96-8p, 1996 WL 374184, at *1 (S.S.A. 1996). It reflects the most a

2 claimant can do despite his limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1); see

3 Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996). An RFC assessment must include

4 an individual’s functional limitations or restrictions as a result of all of his impairments –

5 even those that are not severe – and must assess his “work-related abilities on a function-

6 by-function basis.” SSR 96-8p, 1996 WL 374184, at *1; 20 C.F.R. §§ 404.1545(a)(1)–(2)

7 and (e), 416.945(a)(1)–(2) and (e); see also Valentine v. Comm’r Soc. Sec. Admin., 574

8 F.3d 685, 690 (9th Cir. 2009) (“[A]n RFC that fails to take into account a claimant’s

9 limitations is defective”). An RFC determination must be based on “all the relevant

10 evidence” including the diagnoses, treatment, observations, and opinions of medical

11 sources. 20 C.F.R. §§ 404.1545(a)(1)–(3), 416.945(a)(1)–(3). A court must uphold an

12 ALJ’s RFC assessment when the ALJ has applied the proper legal standards and substantial

13 evidence in the record as a whole supports the decision. See Bayliss v. Barnhart, 427 F.3d

14 1211, 1217 (9th Cir. 2005). An ALJ, however, errs when he provides an incomplete RFC

15 that ignores or discounts “significant and probative evidence in the record” favorable to a

16 claimant’s position. Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012). At step four of the

17 sequential process, if the ALJ determines a claimant has sufficient RFC to perform past

18 relevant work, the claimant is not disabled, and the claim is denied. 20 C.F.R. §

19 404.1520(a)(4)(iv) and (f)–(g); see also § 416.920(a)(4)(iv) and (f)–(g).

20 At step five, the burden then shifts to the ALJ to establish the claimant is not disabled

21 because there is other work existing in “significant numbers in the national economy” the

22 claimant can do, taking into account the claimant’s RFC, age, education, and work

23 experience. 20 C.F.R. §§ 404.1560(c), 416.960(c); see also 20 C.F.R. §§ 404.1520(a)(4)(v)

24 and (g)(1), 416.920(a)(4)(v) and (g)(1); see Hill, 698 F.3d at 1162. The ALJ usually meets

25 this burden either (1) by the testimony of a vocational expert who assesses the employment

26 potential of a hypothetical individual with all the claimant’s physical and mental limitations

27 that are supported by the record or (2) by reference to the Medical-Vocational Guidelines

28 at 20 C.F.R. part 404, subpart P, appendix 2. Id. The determination of this issue comprises

1 “the fifth and last step” in the sequential analysis. 20 C.F.R. §§ 404.1520(a)(4)(v),

2 416.920(a)(4)(v).

3 B. The ALJ’s Application of the Five-Step Process

4 1. Step One

5 At step one, the ALJ found Claimant “had not engaged in substantial gainful activity

6 since October 31, 2018, the alleged onset date.” AR 12.

7 2. Step Two

8 At step two, the ALJ found Claimant had the following severe impairments:

9 “diabetes mellitus, with peripheral neuropathy, status-post right second toe amputation;

10 right shoulder myofascial disorder; and hypertension.” Id. (citing 20 CFR §§ 404.1520(c),

11 416.920(c)).

12 The ALJ found Plaintiff’s treatment for strokes, cataract extractions, and diastolic

13 heart failure were not severe impairments. AR 12. The ALJ noted Claimant suffered an

14 initial stroke on May 31, 2019 and another lacunar stroke around March 2020, yet

15 “maintained normal gait, normal strength, intact sensation, and notations from treatment

16 providers that he had good recovery from these events.” Id. (citing AR 337–39, 670–76,

17 787–89). Thus, the ALJ concluded Claimant’s strokes were not severe impairments

18 because he recovered fully within twelve months of his strokes. AR 12.

19 The ALJ next addressed Claimant’s diastolic heart failure, noting he suffered from

20 two episodes of heart failure within two months in September and October 2020, and he

21 presented with edema and was given medication to help purge his body of excess fluid. Id.

22 The ALJ found there was “no evidence of additional complications from this impairment”

23 outside of the two episodes. Id. (citing AR 1623–2019, 4035–4252). Thus, the ALJ

24 concluded Claimant’s diastolic heart failure did not qualify as a severe medically

25 determinable impairment because “this problem resolved with treatment” and did not last,

26 or was not expected to last, a continuous twelve-month period. AR 12.

27 The ALJ also noted Claimant “presented with eye problems and was diagnosed with

28 cataracts” and had initially planned to undergo surgery in October 2020, but due to

1 complications from other problems, pushed his surgery back. Id. (citing AR 3306–09,

2 4275–81). The ALJ further explained Claimant underwent bilateral cataract extraction and

3 lens replacement on February 22, 2021. AR 12 (citing AR 3306–09, 4400–03). The ALJ

4 found Claimant’s cataracts did not qualify as a severe impairment because his “eye surgery

5 was successful and from the time the claimant initially sought treatment for eye problems

6 to the successful surgery, was less than 12-consecutive months.” AR 12.

7 The ALJ further found Claimant’s mild degenerative joint disease of the lower

8 thoracic spine was not a severe medically determinable impairment because there was no

9 evidence of limitations on range of motion or mobility or pain in the Claimant’s back that

10 was under care or treatment. AR 13.

11 Finally, the ALJ noted Plaintiff was diagnosed with kidney stones but found there

12 was no evidence of additional complications from this impairment, including worsening of

13 Claimant’s kidneys. Id. (citing AR 331–33). Thus, the ALJ found Claimant’s kidney stones

14 did not cause “more than minimal limitation on [his] ability to perform basic work

15 activities” and thus was not a severe impairment. AR 13.

16 3. Step Three

17 At step three, the ALJ found Claimant did “not have an impairment or combination

18 of impairments that meets or medically equals the severity of one of the listed impairments

19 in 20 CFR Part 404, Subpart P, Appendix 1.” Id. (citing 20 CFR §§ 404.1520(d), 404.1525,

20 404.1526, 416.920(d), 416.925, and 416.926).

21 4. RFC Determination

22 The ALJ determined Claimant had the RFC to perform light work as defined in 20

23 C.F.R. §§ 404.1567(b) and 416.967(b) except: he could “lift and/or carry 20 pounds

24 occasionally, 10 pounds frequently; stand or walk for 6 hours in an 8-hour workday; sit for

25 6 hours in an 8-hour workday; never climb ladders, ropes, or scaffolds; occasionally climb

26 ramps, stairs, balance, stoop, kneel, crouch, crawl; occasional right overhead reaching, and

27 need to avoid unprotected heights, dangerous moving machinery.” AR 13.

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1 In determining Claimant’s RFC, the ALJ explained he “considered all symptoms

2 and the extent to which these symptoms can reasonably be accepted as consistent with the

3 objective medical evidence and other evidence based on the requirements of 20 CFR

4 404.1529 and 416.929 and SSR 16-3p” and “also considered the medical opinion(s) and

5 prior administrative medical finding(s) in accordance with the requirements of 20 CFR

6 404.1520c and 416.920c.” AR 13–14.

7 The ALJ found Claimant’s “medically determinable impairments could reasonably

8 be expected to cause the alleged symptoms” but Claimant’s “statements concerning the

9 intensity, persistence and limiting effects” of his symptoms were “not entirely consistent

10 with the medical evidence” and Claimant’s daily activities. AR 14–15. In considering the

11 medical evidence, the ALJ concluded Claimant underwent amputation of his right second

12 toe in August 2020 but “recovered from the toe amputation well with no deficits on his

13 ambulation despite this procedure.” AR 14 (citing AR 4255–57).

14 The ALJ also considered medical opinions and prior administrative medical

15 findings, finding persuasive the opinions from Dr. S. Laiken dated April 22, 2020 and Dr.

16 K. Mauro dated May 19, 2020, two state agency medical consultants. AR 15 (citing AR

17 52–73, 76–85). Drs. Laiken and Mauro each reviewed the medical evidence and opined

18 Claimant was able to lift and carry twenty pounds occasionally, ten pounds frequently;

19 stand and/or walk about six hours; sit about six hours; occasionally climb ramp/ stairs,

20 balance, stoop, kneel, crouch, crawl; never climb ladders/ ropes/ scaffolds; occasional

21 overhead reaching with right upper extremity; and avoid concentrated exposure hazards.

22 AR 15. The ALJ explained “[b]oth supported their conclusions with the analysis provided”

23 in their respective disability determination explanation form, noting Claimant had “poorly

24 controlled diabetes mellitus but normal physical examinations.” Id. The ALJ further

25 concluded their findings were consistent with the objective medical evidence of record,

26 which showed Claimant “had normal physical examinations including normal strength and

27 normal gait despite the consistent peripheral neuropathy and the toe amputation along with

28 the pain in the right shoulder.” AR 15 (citing AR 52–73, 76–85).

1 In summary, the ALJ acknowledged Claimant was “not able to perform all work at

2 all exertional levels because of his impairments” and further found the “full medical

3 evidence of record shows that while the claimant suffers from diabetes mellitus with

4 complications of peripheral neuropathy and while he suffered strokes, the full medical

5 evidence of record shows the claimant continues to maintain full strength and that he has a

6 normal gait despite the additional complication of the toe amputation.” AR 15–16.

7 5. Steps Four and Five

8 At step four, the ALJ found Claimant is unable to perform any past relevant work.

9 AR 16 (citing 20 C.F.R. §§ 404.1565 and 416.965).

10 At step five, the ALJ found that considering Claimant’s age of fifty-one years old,

11 high school education, work experience, and RFC, there were jobs that exist in significant

12 numbers in the national economy Claimant could perform. AR 16 (citing 20 C.F.R. §§

13 404.1569, 404.1596(a), 416.969, and 416.969(a)). The ALJ based his conclusion on the

14 testimony of the vocational expert, who testified an individual with Claimant’s age,

15 education, work experience, and RFC would be able to perform the requirements of

16 representative occupations such as Marker (DOT 209.587-034), Mail Clerk (DOT

17 209.687-026), or Production Assembler (DOT 706.687-010). AR 17–18.

18 Accordingly, the ALJ found Claimant had not been under a disability, as defined by

19 the Social Security Act, from October 31, 2018, through the date of the ALJ’s decision.

20 AR 18.

21 III. STANDARD OF REVIEW

22 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the

23 Commissioner’s decision to deny benefits. The Commissioner’s decision will be disturbed

24 only if “it is either not supported by substantial evidence or is based upon legal error.”

25 Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022) (quoting Luther v. Berryhill, 891 F.3d

26 872, 875 (9th Cir. 2018)).

27 The substantial-evidence standard requires a reviewing court to “look to the existing

28 administrative record and ask whether it contains sufficient evidence to support the

1 agency’s factual determinations.” Woods, 32 F.4th at 788 (citing Biestek v. Berryhill, 139

2 S. Ct. 1148, 1154 (2019)) (internal quotation marks omitted). Substantial evidence means

3 “such relevant evidence as a reasonable mind might accept as adequate to support a

4 conclusion.” Biestek, 139 S. Ct. at 1154 (quoting Consol. Edison Co. v. NLRB, 305 U.S.

5 197, 229 (1938)). The standard requires “more than a mere scintilla” of evidence, “but less

6 than a preponderance.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation

7 omitted). “Overall, the standard of review is highly deferential.” Kitchen v. Kijakazi, 82

8 F.4th 732, 738 (9th Cir. 2023); see also Valentine, 574 F.3d at 690. Thus, “[w]here

9 evidence is susceptible to more than one rational interpretation, it is the ALJ’s conclusion

10 that must be upheld.” Woods, 32 F.4th at 788 (quoting Burch v. Barnhart, 400 F.3d 676,

11 679 (9th Cir. 2005)).

12 The Court “must consider the entire record as a whole, weighing both the evidence

13 that supports and the evidence that detracts from the Commissioner’s conclusion, and may

14 not affirm simply by isolating a specific quantum of supporting evidence.” Garrison v.

15 Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The ALJ is responsible for resolving conflicts

16 in medical testimony as well as any ambiguities in the record. Id.; see also Magallanes v.

17 Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The Court will “review only the reasons

18 provided by the ALJ in the disability determination and may not affirm the ALJ on a ground

19 upon which he did not rely.” Garrison, 759 F.3d at 1010; see also Collings v. Saul, 856 F.

20 App’x 729, 730 (9th Cir. 2021).

21 The Court may also overturn the Commissioner’s denial of benefits if the denial is

22 based on legal error. Garcia v. Comm'r of Soc. Sec., 768 F.3d 925, 929 (9th Cir. 2014).

23 However, even if the Court finds the ALJ committed legal error, a court may not reverse

24 an ALJ’s decision if the error is harmless, “which exists when it is clear from the record

25 that the ALJ’s error was inconsequential to the ultimate nondisability determination.” Id.

26 at 932 (internal quotations and citation omitted); see also Burch, 400 F.3d at 679 (citation

27 omitted).

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1 IV. DISCUSSION

2 In her opening brief, Plaintiff asserts a consultative examination of Claimant was

3 scheduled in Claimant’s underlying disability case; however, due to a scheduling error

4 regarding the location of the appointment, the examination never took place and was not

5 subsequently rescheduled. [ECF No. 22 at 1–2.] Plaintiff also asserts several of Claimant’s

6 doctors found Claimant was unable to work due to his medical condition. In support of her

7 brief, Plaintiff attaches two documents from physicians dated in 2023 and three “Work

8 Status Reports” issued in 2020—none of which are part of the administrative record. Both

9 2023 documents as well as two Work Status Reports address Claimant’s strokes, and the

10 remaining Work Status Report addresses Claimant’s toe amputation. [See id. at 3–10.]

11 In response, Defendant contends generally the ALJ’s decision is supported by

12 substantial evidence and free from reversible error. [ECF No. 25 at 3.] Defendant also

13 asserts the ALJ properly found the opinions of State agency medical consultants Dr. S.

14 Laiken and Dr. K. Mauro persuasive, though Defendant acknowledges Plaintiff does not

15 address these issues. [Id. at 7.] Defendant further contends the Court should not consider

16 Plaintiff’s new evidence because it is nonprobative, addresses issues reserved for the ALJ,

17 and “[e]ven if one were to string together the periods from all status reports discussed

18 above, they would not equal at least one year, let alone a ‘continuous period of not less

19 than 12 months.’” [Id. at 9 (quoting 20 CFR § 404.1505(a)).]

20 Courts liberally construe documents filed by pro se litigants. Erickson v. Pardus,

21 551 U.S. 89, 94 (2007); Woods v. Carey, 525 F.3d 886, 889–90 (9th Cir. 2008). Because

22 Plaintiff is appearing pro se, the Court liberally construes her brief as asserting the

23 following challenges to the ALJ’s opinion: (1) the ALJ erred in concluding Claimant’s

24 stroke was not a severe impairment, (2) the ALJ’s finding Claimant’s toe amputation had

25 no deficits on his ambulation is not supported by substantial evidence, and (3) the ALJ

26 violated his duty to develop the record. In addition, the Court construes Plaintiff’s brief as

27 requesting remand for consideration of new evidence not in the administrative record under

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1 sentence six of 42 U.S.C. § 405(g). The Court addresses the challenges to the ALJ’s opinion

2 first before considering Plaintiff’s new evidence.

3 A. Plaintiff’s Challenges to the ALJ’s Opinion

4 1. Whether the ALJ Properly Concluded Claimant’s Stroke Was Not a

Severe Impairment

5

6 At step two, an ALJ must determine whether the claimant has a medically

7 determinable impairment—or combination of impairments—that is “severe.” 20 C.F.R. §§

8 404.1520(c), 416.920(c). To qualify as “severe,” the impairment must significantly limit

9 the claimant’s “physical or mental ability to do basic work activities,” 20 C.F.R. §§

10 404.1520(c), 416.920(c), and “must have lasted or be expected to last for a continuous

11 period of at least 12 months” or be expected to result in death. 20 C.F.R. §§ 404.1509,

12 416.909; see also Titles II & XVI: Med. Impairments That Are Not Severe, SSR 85-28,

13 1985 WL 56856 (S.S.A. 1985) (hereinafter “SSR 85-28”). “Basic work activities” include

14 not only physical functions like walking, standing, lifting, pushing, pulling, carrying, but

15 also cognitive functions like using judgment, and understanding, carrying out, and

16 remembering simple instructions. SSR 85-28, 1985 WL 56856 at *3. An impairment is not

17 severe if “the evidence establishes a slight abnormality that has ‘no more than a minimal

18 effect on an individual’s ability to work.’” Smolen, 80 F.3d at 1290 (quoting SSR 85-28,

19 1985 WL 56856, at *3).

20 “A determination that an impairment(s) is not severe requires a careful evaluation of

21 the medical findings which describe the impairment(s) and an informed judgment about its

22 (their) limiting effects on the individual’s physical and mental ability(ies) to perform basic

23 work activities.” SSR 85-28, 1985 WL 56856, at *4. “Even though a non-severe

24 ‘impairment[ ] standing alone may not significantly limit an individual’s ability to do basic

25 work activities, it may—when considered with limitations or restrictions due to other

26 impairments—be critical to the outcome of a claim.” Carmickle v. Comm’r, Soc. Sec.

27 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing SSR 96–8p (1996)).

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1 The ALJ found Claimant’s initial stroke on May 31, 2019 and second lacunar stroke

2 around March 2020 were not severe impairments because Claimant recovered fully within

3 twelve-months of the alleged events. AR 12. The ALJ reasoned “[d]espite the claimant’s

4 strokes, the claimant maintained normal gait, normal strength, intact sensation, and

5 notations from treatment providers that he had good recovery from these events.” Id. (citing

6 AR 337–39, 670–76, 787–89). The ALJ further explained “[t]he claimant did suffer from

7 strokes, but the claimant recovered from these events and was able to walk normally, and

8 had normal strength, despite the allegations that he did not recover from this event.” Id.

9 In support of his finding, the ALJ cites three treatment records. First, a treatment

10 record from July 3, 2019, in which Dr. Schlosser Covell, Neurology, treated Claimant for

11 a follow up after stroke, including a cognitive evaluation. AR 337–39. She noted “good

12 recovery” and Claimant was “improving.” AR 339. She also ordered a one-month follow

13 up MRI to assess for evolving stroke and rule out underlying CNS lesion. AR 339, 2311–

14 12. Based on the MRI results, Dr. Schlosser Covell noted the strokes were “healing as

15 expected” and no new lesions were found, though there was some “bleeding into region of

16 strokes” that likely occurred when Claimant’s blood pressure was uncontrolled. AR 322.

17 In addition, Dr. Schlosser Covell referred Claimant to physical therapy, which occurred on

18 August 20, 2019. AR 339, 787–89. At that physical therapy initial evaluation, Claimant’s

19 gait was found to be “independent with no device x 500+ feet” and within functional limits.

20 AR 789. The treatment notes from this visit indicate Claimant was able to ambulate “river

21 stones with cone tap” and on balance beam with no loss of balance. Id. Claimant was found

22 to have no impairments with no further need for skilled physical therapy. Id.; see also AR

23 2780. Lastly, the ALJ cited a treatment record from Claimant’s primary care physician, Dr.

24 Turla, who treated claimant on December 26, 2019 for a routine follow up, noting Claimant

25 was “doing better.” AR 671. Dr. Turla’s treatment notations from this visit indicate “Patient

26 advised that he no longer has any neurological deficits and has to return to work.” AR 675.

27 While the ALJ cites portions of the administrative record that support his finding

28 that Claimant recovered physically from his May 31, 2019 stroke, the ALJ does not address

1 the other treatment notations reflecting Claimant experienced late effects of strokes.

2 Notably, following Dr. Turla’s finding Claimant “no longer has any neurological deficits”

3 from his stroke, on December 31, 2019, Dr. Schlosser Covell noted Claimant was “still

4 symptomatic s/p stroke” in light of Claimant’s complaints of increased memory issues in a

5 telephonic appointment and, as a result, extended his off-work status until February 2020.

6 AR 744. On February 11, 2020, Dr. Schlosser Covell treated Claimant for a subsequent

7 follow up after stroke, noting Claimant complained he recently experienced a spell of leg

8 dragging and times when he was speaking “gibberish.” AR 718. In light of Claimant’s

9 reported symptoms, Dr. Schlosser Covell ordered another brain MRI and noted Claimant

10 “may have some permanent issues related to prior stroke but reassuring mental status on

11 last exam, and good exam today.” AR 722. She also extended his time off work through

12 March 2020. AR 722. On March 23, 2020, Radiologist Dr. Asako Miyakoshi performed

13 an MRI confirming Claimant suffered from another lacunar stroke. AR 3059–61; see AR

14 907. On or around March 24, 2020, Dr. Schlosser Covell extended Claimant’s off work

15 status again and separately noted Claimant experienced “[n]ew lacunar stroke, likely from

16 uncontrolled [Diabetes mellitus], HL, and small vessel disease.” Id.

17 On June 25, 2020, Dr. Schlosser Covell treated Claimant again, and her treatment

18 notes indicated he has a history of “stroke with residual memory loss, vision loss, and brittle

19 [Diabetes mellitus].” AR 3192–93. Though her treatment notations indicated Claimant had

20 “[n]o strokes in recent months,” they also noted Claimant “[s]till has vision loss and

21 depends on wife for ADLs [activities of daily living] due to stroke affecting cognition.”

22 AR 3193. Similar notations appear throughout treatment records through November 2020.

23 See, e.g., AR 3407, 4143.

24 In reviewing the ALJ’s opinion, the Court “must consider the entire record as a

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

26 Commissioner’s conclusion, and may not affirm simply by isolating a specific quantum of

27 supporting evidence.” Garrison, 759 F.3d at 1009. Moreover, an ALJ cannot selectively

28 rely on some entries of medical records to support his conclusion, while ignoring others

1 that may undermine or contradict it. Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir.

2 2001) (“[T]he ALJ selectively relied on some entries in Holohan’s records from San

3 Francisco General Hospital and ignored the many others that indicated continued, severe

4 impairment.”).

5 Here, the ALJ relied on certain notations from treatment providers through

6 December 26, 2019 to conclude Claimant fully recovered from his May 2019 and March

7 2020 strokes within twelve months. AR 12. However, other treatment notations from these

8 same providers, particularly Dr. Schlosser Covell, indicated Claimant suffered certain late

9 effects of strokes affecting cognition and was experiencing these late effects more than

10 twelve consecutive months after Claimant suffered his initial stroke on May 31, 2019. See

11 AR 3193. While the Court agrees substantial evidence supports the ALJ’s conclusion

12 Claimant recovered physically from the strokes as of December 2019—the last record cited

13 by the ALJ for his conclusion—the ALJ did not address treatment notations regarding the

14 late effects of Claimant’s strokes or other notations suggesting Claimant suffered cognitive

15 effects. While the late or cognitive effects of stroke may not ultimately be found to be a

16 severe impairment, it is unclear whether the ALJ considered such treatment notations when

17 assessing whether the strokes qualified as a severe impairment. See Garrison, 759 F.3d at

18 1010 (The Court may “review only the reasons provided by the ALJ in the disability

19 determination and may not affirm the ALJ on a ground upon which he did not rely.”).

20 Because the ALJ relied on some treatment notations supporting his conclusion that

21 Claimant recovered fully within twelve months without stating the other treatment

22 notations that potentially detract from this conclusion were considered, the Court cannot

23 conclude substantial evidence supports the ALJ’s determination Claimant fully recovered

24 from his strokes within twelve months and therefore his strokes were not a severe

25 impairment at step two.

26

27

28

1 2. Whether Substantial Evidence Supports the ALJ’s Conclusion That

Claimant Recovered from the Toe Amputation with No Deficits on His

2

Ambulation

3

4 The ALJ discounted Claimant’s subjective statements regarding intensity,

5 persistence, and limiting effects of his symptoms based on, inter alia, the ALJ’s conclusion

6 Claimant “recovered from the toe amputation well with no deficits on his ambulation

7 despite this procedure.” AR 14 (citing AR 4255–57). For the reasons discussed below, the

8 Court finds substantial evidence does not support the ALJ’s conclusion.

9 Relying on Claimant’s Function Report dated September 14, 2019, the ALJ noted in

10 relevant part Claimant “is still able to cook, perform some chores, engage in some

11 hobbies.” AR 14. The ALJ further noted Claimant testified he had limited lifting, standing,

12 and walking capacity. AR 14. The ALJ then discredited Claimant’s subjective statements,

13 finding his “medically determinable impairments could reasonably be expected to cause

14 the alleged symptoms” but Claimant’s “statements concerning the intensity, persistence

15 and limiting effects” of his symptoms were “not entirely consistent with the medical

16 evidence” and his activities of daily living. AR 14–15.

17 In analyzing the medical evidence in connection with discrediting Claimant’s

18 subjective statements, the ALJ addressed Claimant’s long history for treatment of diabetes

19 mellitus. The ALJ explained Claimant had difficulty complying with his medications and

20 was quickly diagnosed with peripheral neuropathy. AR 14. The ALJ also noted following

21 Claimant’s stroke, his treatment plan included the need for medications, medication

22 compliance, and exercise. The ALJ found Claimant “continued to have problems with his

23 diabetes mellitus resulting in the development of a wound on his right second toe” which

24 “worsened resulting in the need to amputate the toe during a hospitalization in August

25 2020.” AR 14 (citing AR 997–1622.) The ALJ concluded Claimant “recovered from the

26 toe amputation well with no deficits on his ambulation despite this procedure.” AR 14

27 (citing AR 4255–57).

28

1 The ALJ then incorporated this finding when determining the RFC, explaining

2 “while the claimant suffers from diabetes mellitus with complications of peripheral

3 neuropathy and while he suffered strokes, the full medical evidence of records shows the

4 claimant continues to maintain full strength and that he has a normal gait despite the

5 additional complication of the toe amputation.” AR 15–16.

6 a. Applicable Law

7 The Ninth Circuit has established a two-step analysis for evaluating a claimant’s

8 subjective symptom testimony. See Zuniga v. Saul, 801 F. App’x 465, 466 (9th Cir. 2019)

9 (citing Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). “First, the ALJ must

10 determine whether the claimant has presented objective medical evidence of an underlying

11 impairment ‘which could reasonably be expected to produce the pain or other symptoms

12 alleged.’” Garrison, 759 F.3d at 1014 (quoting Lingenfelter v. Astrue, 504 F.3d 1028,

13 1035–36 (9th Cir. 2007)). The claimant must only prove the impairment reasonably could

14 be expected to produce some degree of pain or other symptom; he is not required to prove

15 the impairment reasonably could be expected to produce the alleged degree of pain or other

16 symptoms. See Garrison, 759 F.3d at 1014 (quoting Smolen, 80 F.3d at 1282). Moreover,

17 the claimant is not required to produce “objective medical evidence of the pain or fatigue

18 itself, or the severity thereof.” Id. If the claimant satisfies the first step “and there is no

19 evidence of malingering, the ALJ can only reject the claimant’s testimony about the

20 severity of the symptoms if she gives ‘specific, clear and convincing reasons’ for the

21 rejection.” Zuniga, 801 F. App’x at 466 (quoting Lingenfelter, 504 F.3d at 1036). The Ninth

22 Circuit has reiterated “[t]his is not an easy requirement to meet: ‘The clear and convincing

23 standard is the most demanding required in Social Security cases.’” Garrison, 759 F.3d at

24 1015 (quoting Moore v. Comm'r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002));

25 see Glanden v. Kijakazi, 86 F.4th 838, 846 (9th Cir. 2023).

26 “Ultimately, the ‘clear and convincing’ standard requires an ALJ to show his work.

27 Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022). “The ALJ must state specifically

28 which symptom testimony is [discounted] and what facts in the record lead to that

1 conclusion.” Smolen, 80 F.3d at 1284; Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th

2 Cir. 2015) (holding “an ALJ does not provide specific, clear, and convincing reasons for

3 rejecting a claimant’s testimony by simply reciting the medical evidence in support of his

4 or her residual functional capacity determination”). “General findings are insufficient;

5 rather, the ALJ must identify what testimony is not credible and what evidence undermines

6 the claimant’s complaints.” Roberts v. Saul, 829 F. App’x 757, 760 (9th Cir. 2020) (quoting

7 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), superseded by regulation on other

8 grounds); see also Lambert v. Saul, 980 F.3d 1266, 1268 (9th Cir. 2020) (“Under our cases,

9 the ALJ must identify the specific testimony that he discredited and explain the evidence

10 undermining it.”). The ALJ’s findings must be “sufficiently specific to permit the court to

11 conclude that the ALJ did not arbitrarily discredit [Plaintiff’s] testimony.” Werlein v.

12 Berryhill, 725 F. App’x 534, 535 (9th Cir. 2018) (quoting Tommasetti v. Astrue, 533 F.3d

13 1035, 1039 (9th Cir. 2018)). If substantial evidence supports the ALJ’s finding, the court

14 may not second-guess the ALJ’s decision. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir.

15 2002) (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)).

16 Here, the ALJ determined Claimant’s “medically determinable impairments could

17 reasonably be expected to cause the alleged symptoms” and therefore the first prong of the

18 ALJ’s inquiry is satisfied. AR 14; see Lingenfelter, 504 F.3d at 1036. The ALJ did not find

19 Claimant was malingering and the record does not suggest as much; therefore, the Court

20 must determine whether the ALJ provided clear and convincing reasons for discounting

21 Plaintiff’s subjective claims regarding his symptoms. See id.

22 b. Analysis

23 While Claimant’s medical records are voluminous, there are only a few records that

24 address Claimant’s treatment after his toe amputation. On August 22, 2020, Claimant

25 presented to the Emergency Department for gangrene in his second right toe. He was

26 admitted to the hospital and, following multiple x-rays and MRIs of his foot, underwent

27 surgery to amputate the infected toe. See generally AR 1006–1622, 1033. The treatment

28 notes from Claimant’s August 31, 2020 discharge indicated his weight bearing status and

1 recommended activity level were “heel weightbearing right lower extremity in post op

2 shoe.” AR 1041, 1052, 1054, 1188, 1241.

3 Claimant was readmitted to the hospital on September 6, 2020 for diastolic heart

4 failure and hypoxia. See AR 1629–42. During his hospital admission, additional x-rays

5 were taken of Claimant’s foot, and Claimant was seen for a podiatry consult by Dr. Anne

6 Nhu-An Ngo on September 10, 2020. AR 1707. Dr. Ngo’s treatment notes indicated two

7 and a half weeks post operation Claimant was experiencing “delayed healing due to

8 uncontrolled diabetes, no signs of infection.” AR 1708; see AR 1706–10. Claimant’s x-

9 rays revealed “no apparent bone erosion or periosteal reaction to suggest acute

10 osteomyelitis.” AR 1707. The treatment notes indicated “Patient encouraged to stay off

11 right foot, okay to heel weight bear with post op shoe to bathroom, kitchen and medical

12 appointments only” and “to keep right foot out of water when bathing.” AR 1708. At the

13 time of Claimant’s discharge on September 11, 2020, his recommended activity level and

14 weightbearing status were “to try to stay off right foot” and “okay to heel weight bear with

15 post op shoe to bathroom, kitchen and medical appointments only.” AR 1650; see also AR

16 1760–61. The discharge instructions further directed the hospital to issue a front wheel

17 walker prior to discharge and ensure the patient had a post op shoe. AR 1762, 1776, 1780,

18 2003.

19 The next treatment record following Claimant’s toe amputation is on December 3,

20 2020, by Podiatrist Dr. Paula Nuguid for a recheck of Claimant’s status post operation of

21 the right second toe amputation and wound care. AR 4255–57. Dr. Nuguid’s treatment

22 notations indicated Claimant’s right second toe amputation was healed and observed a

23 “small pre ulcerative lesion medial base of nail” and “no drainage no swelling.” AR 4256.

24 She also noted “Vasc: DP and PT are 2/4” and “Neuro: protective sensation: 0/10

25 bilaterally” and “Sensation to temperature and sharp is absent.” AR 4256. The treatment

26 notes further stated “no tenderness to palpation. No bony prominences. Right 2nd toe amp.”

27 Id. The treatment notes do not address ambulation, gait, or Claimant’s functional

28 capabilities. Dr. Nuguid advised Claimant regarding daily dressing changes, to “[c]ontinue

1 to monitor for signs and symptoms of infection: redness, swelling, warmth, open wounds,

2 drainage, fever, chills, nausea, vomiting” and Claimant was able to wet his foot in the

3 shower. AR 4257. Dr. Nuguid recommended Claimant return in about four weeks for

4 follow up care. Id. This appears to be the most recent treatment note in the administrative

5 record addressing the recovery of Claimant’s toe amputation.

6 Substantial evidence does not support the ALJ’s conclusion Claimant had “no

7 deficits on his ambulation” following his toe amputation. AR 14. The ALJ relied on the

8 December 3, 2020 treatment records by Podiatrist Dr. Nuguid for this conclusion; however,

9 the treatment records merely reflect medical observations as to the progress of Claimant’s

10 amputated toe recovery, the encounter diagnoses, and further care instructions. The

11 treatment records do not address Claimant’s ambulation or gait; nor do they describe any

12 functional limitations (or lack thereof). AR 4255–65. Further, other treatment records do

13 not provide substantial evidence to support the ALJ’s conclusion there was no deficits to

14 Claimant’s ambulation post-amputation. The prior treatment records addressing

15 Claimant’s toe amputation from September 2020 directed Claimant to stay off his right

16 foot except to heel weight bear with a post operation shoe to the bathroom, the kitchen, and

17 medical appointments. AR 1650; see also AR 1760–61. While the administrative record

18 contains treatment records after the December 3, 2020 visit with Dr. Nuguid, these records

19 address Claimant’s treatment with Ophthalmology for cataracts—including his pre-op

20 visits on January 25, 2021 and February 16, 2021, bilateral cataract surgery on February

21 22, 2021, and post-operative exam on February 23, 2021. See 4297–4327, 4342–66, 4373–

22 84, 4397–4412. These treatment records do not address Claimant’s toe amputation,

23 ambulation, gait, or his post-toe-amputation function-by-function capabilities. See

24 generally AR 4263–4528. Thus, upon reviewing of the administrative record in detail—

25 and in particular, the treatment records the ALJ relied on to support this conclusion—the

26 Court cannot find substantial evidence supports the ALJ’s determination Claimant

27 recovered from the toe amputation “with no deficits on his ambulation.” See Garrison, 759

28 F.3d at 1010 (The Court may “only review the reasons provided by the ALJ in the disability

1 determination and may not affirm the ALJ on a ground upon which he did not rely.”). As

2 such, the Court cannot find the ALJ’s discounting of Claimant’s subjective statements

3 based on this conclusion to be clear and convincing.

4 3. Whether the ALJ Violated His Duty to Develop the Record

5 An ALJ has a “special duty to fully and fairly develop the record and to assure that

6 the claimant’s interests are considered.” Garcia, 768 F.3d at 930 (citation omitted); see

7 also Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (“In making a

8 determination of disability, the ALJ must develop the record and interpret the medical

9 evidence.”). “This duty exists even where when the claimant is represented by counsel.”

10 Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (citing Driggins v. Harris, 657 F.2d

11 187, 188 (8th Cir. 1981)). “Ambiguous evidence, or the ALJ’s own finding that the record

12 is inadequate to allow for proper evaluation of the evidence, triggers the ALJ’s duty to

13 ‘conduct an appropriate inquiry.’” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir.

14 2001) (citing Smolen, 80 F.3d at 1288); see also Mayes v. Massanari, 276 F.3d 453, 459–

15 60 (9th Cir. 2001). “A duty to develop also may exist where the ALJ is interpreting raw

16 medical data or records that are not ‘susceptible to a lay person’s understanding.’” Howell

17 v. Kijakazi, No. 20-cv-2517, 2022 WL 2759090, at *9 (S.D. Cal. July 14, 2022) (citing

18 Mack v. Saul, No. 18-cv-01287, 2020 WL 2731032, at *3 (E.D. Cal. May 26, 2020)).

19 “The ALJ may discharge this duty in several ways, including: subpoenaing the

20 claimant’s physicians, submitting questions to the claimant’s physicians, continuing the

21 hearing, or keeping the record open after the hearing to allow supplementation of the

22 record.” Tonapetyan, 242 F.3d at 1150. An ALJ has broad discretion in determining

23

24

25 4 The ALJ also found Claimant’s daily activities as listed in his function report were

inconsistent with his subjective statements, including that Claimant “can still walk a couple

26

of miles.” AR 15. The Court notes Claimant’s function report is dated September 14,

27 2019—almost a year prior to his toe amputation; as such, statements in Claimant’s function

report regarding his ability to walk do not constitute substantial evidence for the ALJ’s

28

1 whether to order a consultative examination and may do so when “ambiguity or

2 insufficiency in the evidence . . . must be resolved.” Reed v. Massanari, 270 F.3d 838, 842

3 (9th Cir. 2001) (citation omitted); see also 20 C.F.R. § 404.1519a(b) (“We may purchase

4 a consultative examination to try to resolve an inconsistency in the evidence, or when the

5 evidence as a whole is insufficient to allow us to make a determination or decision on your

6 claim.”).

7 As discussed above, the December 3, 2020 treatment records did not address

8 Claimant’s ambulation or gait; nor did they address Claimant’s function-by-function

9 capabilities post toe-amputation. In concluding Claimant had no deficits to his ambulation

10 and his gait was normal despite the toe amputation, the ALJ apparently interpreted the

11 treatment records himself to conclude there were no deficits to Claimant’s ambulation and

12 his gait was normal following the toe amputation. To do so was improper. See Howell,

13 2022 WL 2759090, at *7 (citing Manso-Pizarro v. Sec’y of Health & Human Servs., 76

14 F.3d 15, 17 (1st Cir. 1996) (“With exceptions, . . . an ALJ, as a layperson, is not qualified

15 to interpret raw data in a medical record.”); Stevenson v. Colvin, No. 15-cv-0463, 2015 WL

16 6502198, at *4 (E.D. Cal. Oct. 27, 2015) (finding the ALJ improperly interpreted raw

17 medical data when the treatment records consisted of diagnoses and descriptions of the

18 plaintiff’s impairments only without opining on the effects of the impairments on the

19 plaintiff’s ability to work); Rivera v. Berryhill, No. ED cv 16-791, 2017 WL 5054656 (C.D.

20 Cal. Oct. 31, 2017) (an ALJ “may not act as his own medical expert as he is ‘simply not

21 qualified to interpret raw medical data in functional terms’”) (citations omitted). Thus, the

22 issue facing the ALJ was the impact, if any, of Claimant’s toe amputation on his function-

23 by-function capabilities. The administrative record does not contain a medical opinion

24 addressing this issue. Because the record was inadequate to establish Claimant’s post-

25 amputation function-by-function capabilities, the ALJ had a duty to further develop the

26 record. See Howell, 2022 WL 2759090, at *9–10.

27

28

1 4. Whether the Errors Are Harmless

2 Where, as here, the ALJ has erred, the Court must then consider whether the errors

3 were harmless, “meaning it was ‘inconsequential to the ultimate nondisability

4 determination.’” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Tommasetti,

5 533 F.3d at 1038); see also Batson v. Comm'n Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th

6 Cir. 2004) (finding error harmless where it did “not negate the validity of the ALJ's ultimate

7 conclusion”).

8 The Court finds the ALJ’s errors were not harmless. The ALJ incorporated the

9 finding regarding the toe amputation when determining Claimant’s RFC, explaining “while

10 the claimant suffers from diabetes mellitus with complications of peripheral neuropathy

11 and while he suffered strokes, the full medical evidence of records shows the claimant

12 continues to maintain full strength and he has a normal gait despite the additional

13 complication of the toe amputation.” AR 15–16. As discussed above, the ALJ improperly

14 interpreted treatment records to assess the functional impact of Claimant’s toe amputation

15 on his abilities to work. See Howell, 2022 WL 2759090, at *8 (“The ALJ erred by using

16 his own interpretation and judgment of raw medical data to formulate Plaintiff's RFC.”);

17 Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (“As a lay person, however, the ALJ was

18 simply not qualified to interpret raw medical data in functional terms and no medical

19 opinion supported the determination.”).

20 Additionally, the Court cannot find the ALJ’s failure to consider the effects of

21 Claimant’s strokes beyond twelve months was harmless. Where a claimant prevails at step

22 two and the ALJ considers all impairments—regardless of severity—in the subsequent

23 steps, an ALJ’s failure to consider an impairment “severe” is harmless. See Lewis v. Astrue,

24 498 F.3d 909, 911 (9th Cir. 2007). Although Claimant prevailed at step two, the ALJ did

25 not consider the late or cognitive effects of Claimant’s strokes at any of the subsequent

26 steps of the sequential evaluation. Thus, the Court cannot conclude the ALJ’s finding that

27 Claimant’s strokes were not a severe impairment at step two was harmless.

28

1 Accordingly, the Court has discretion to either remand for further proceedings before

2 the ALJ or remand for an award of benefits. Garrison, 759 F.3d at 1019. Where “additional

3 proceedings can remedy defects in the original administrative proceeding, a social security

4 case should be remanded.” Id. (quoting Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir.

5 1981)); see also Revels, 874 F.3d at 668.

6 The Court finds remand for further administrative proceedings under sentence four

7 of section 405(g) is appropriate. Further proceedings will serve a meaningful purpose by

8 allowing the ALJ to develop the record consistent with this opinion.

9 B. Request For Remand for Consideration of New Evidence

10 The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. §

11 405(g), which provides:

12 Any individual, after any final decision of the Commissioner of Social

Security made after a hearing to which he was a party . . . may obtain a review

13

of such decision by a civil action commenced within sixty days after the

14 mailing to him of notice of such decision or within such further time as the

Commissioner of Social Security may allow. Such action shall be brought in

15

the district court of the United States for the judicial district in which the

16 plaintiff resides. . . . As part of the Commissioner’s answer the Commissioner

of Social Security shall file a certified copy of the transcript of the record

17

including the evidence upon which the findings and decision complained of

18 are based. The court shall have power to enter, upon the pleadings and

transcript of the record, a judgment affirming, modifying, or reversing the

19

decision of the Commissioner of Social Security, with or without remanding

20 the cause for a rehearing. The findings of the Commissioner of Social Security

as to any fact, if supported by substantial evidence, shall be conclusive . . .

21

22 42 U.S.C. § 405(g). Thus, a federal court’s judicial review of the ALJ’s opinion is limited

23 to the certified administrative record. See id. The letters and Work Status Reports attached

24 to Plaintiff’s brief are evidence outside of the administrative record and are not properly

25 before the Court on judicial review of the ALJ’s opinion. See Miller v. Comm’r of Soc.

26 Sec., 811 F.3d 825, 838–39 (6th Cir. 2016) (“The district court simply was not in the

27 position to consider new evidence in ‘deciding whether to uphold, modify, or reverse the

28 ALJ’s decision.’”) (quoting Cline v. Comm'r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996)).

1 However, the Social Security Act provides courts with discretion to remand cases

2 for consideration of new evidence under sentence six of 42 U.S.C. § 405(g) “but only upon

3 a showing that there is new evidence which is material and that there is good cause for the

4 failure to incorporate such evidence into the record in a prior proceeding . . .” 42 U.S.C. §

5 405(g); Bruton v. Massanari, 268 F.3d 824, 827 (9th Cir. 2001), as amended (Nov. 9,

6 2001).

7 To qualify for such a remand, Plaintiff must present new evidence that is “material

8 to determining disability” meaning such evidence “must bear directly and substantially on

9 the matter in dispute” and show “a ‘reasonable possibility’ that the new evidence would

10 have changed the outcome of the administrative hearing.” Miller v. Berryhill, 732 F. App’x

11 526, 528 (9th Cir. 2018) (citing Mayes, 276 F.3d at 462 and Booz v. Sec’y of Health &

12 Human Servs., 734 F.2d 1378, 1380–81 (9th Cir. 1984) (internal quotation marks omitted)).

13 “The new evidence must be probative of the claimant’s condition as it existed during the

14 relevant time period and prior to the disability hearing.” Medina v. Colvin, No. 16-cv-215,

15 2016 WL 4705571, at *2 (S.D. Cal. Sept. 8, 2016) (citing Sanchez v. Sec'y of Health and

16 Human Servs., 812 F.2d 509, 511–12 (9th Cir. 1987)). Finally, the plaintiff “has the burden

17 of showing there is ‘good cause for his failure to submit the evidence in the prior

18 proceeding.’” Medina, 2016 WL 4705571, at *1 (citing Chaney v. Schweiker, 659 F.2d

19 676, 679 (5th Cir. 1981)).

20 Defendant argues all of Plaintiff’s new evidence is nonprobative. Notably, Plaintiff’s

21 new evidence includes one medical opinion as to Claimant’s functional capabilities for

22 work post-toe-amputation. The Work Status Report dated November 16, 2020 from Dr.

23 Nuguid reported Claimant was “at very high risk for re-ulceration and more proximal foot

24 amputation” and required modified activity at work and at home from November 16, 2020

25 through February 28, 2021 as follows: Claimant was able to stand, walk, or bend at the

26 waist occasionally (up to twenty-five percent of shift); lift, carry, and pull no more than ten

27 pounds, and never torso/ spine twist, which are more limited restrictions than the opinions

28 of state agency medical consultants. [ECF No. 22 at 10.] Had this evidence originally been

1 || presented to the ALJ, the ALJ would have been required to consider and evaluate it for

2 ||persuasiveness. See 20 C.F.R. §§ 404.1520c(a}H(b), 416.920c(a}(b). While Defendant

3 || contends this Work Status Report applies to a less-than-one year window of timing, ECF

4 ||No. 25 at 9, it is nevertheless material to determining Claimant’s post-toe amputation

5 || function-by-function capabilities—precisely the type of evidence that the ALJ failed to

6 || develop.

7 Nevertheless, as the Court has already found remand appropriate under sentence four

8 42 U.S.C. § 405(g) for the reasons stated above, the Court need not and does not decide

9 || whether remand for consideration of new evidence under sentence six of 42 U.S.C. §

10 405(g) is also appropriate.

11 CONCLUSION

12 Based on the foregoing analysis, the Court grants Plaintiff’s opening brief, ECF No.

13 REVERSES the final decision of the Commissioner of Social Security, and

14 || REMANDS the matter for further administrative proceedings consistent with this opinion

15 || pursuant to sentence four of 42 U.S.C. § 405(g).

16 The Clerk shall enter judgment accordingly and terminate the case.

17 IT IS SO ORDERED.

18 ||Dated: March 15, 2024 “ Wii hol My. x7

19 HON. MICHELLE M. PETTIT

United States Magistrate Judge

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