The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 CYNTHIA M., Case No.: 23-cv-354-KSC
12 Plaintiff,
ORDER REVIEWING FINAL
13 v. DECISION OF THE
COMMISSIONER OF SOCIAL
14 MARTIN O’MALLEY, Commissioner of
SECURITY
Social Security,
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Defendant.
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Plaintiff filed this action challenging the final decision of the Commissioner of
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Social Security denying plaintiff’s claim for benefits. Doc. No. 1. This Court directed the
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parties to explore informal resolution of the matter through the meet-and-confer process,
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but the parties were unable to resolve the case on their own. Doc. Nos. 12, 13. Having
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reviewed the parties’ briefing and the Administrative Record (“AR”), the Court
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REVERSES the decision of the Commissioner in this matter and REMANDS the case to
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the agency with directions to calculate and award benefits.
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1 I. BACKGROUND
2 The Social Security Administration determined plaintiff was disabled between
3 November 25, 2008, through December 1, 2017. AR 49.1 After two hearings before an
4 Administrative Law Judge (“ALJ”), who heard testimony from plaintiff and from a
5 vocational expert, the ALJ determined plaintiff was not disabled between December 1,
6 2017, and July 8, 2021, but became disabled again on July 8, 2021. Id. The ALJ’s decision
7 in this case adhered to the following seven-step evaluation process for determining if a
8 disability claimant’s disability has continued or ended. See AR 50.
9 At step one, the undersigned must determine whether the claimant has an
impairment or combination of impairments which meets or medically equals
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the criteria of an impairment listed in 20 CFR Part 404, Subpart P, Appendix
11 1 (20 CRF 416.920(d), 416.925 and 416.926). If the claimant does, her
disability continues (20 CFR 416.994(b)(5)(i)).
12
13 At step two, the undersigned must determine whether medical improvement
has occurred (20 CFR 416.994(b)(5)(ii)). Medical improvement is any
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decrease in medical severity of the impairment(s) as established by
15 improvement in symptoms, signs and/or laboratory findings (20 CFR
416.994(b)(1)(i)). If medical improvement has occurred, the analysis proceeds
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to the third step. If not, the analysis proceeds to the fourth step.
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At step three, the undersigned must determine whether medical improvement
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is related to the ability to work (20 CFR 416.994(b)(5)(iii)). Medical
19 improvement is related to the ability to work if it results in an increase in the
claimant’s capacity to perform basic work activities (20 CFR
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416.994(b)(1)(iii)). If it does, the analysis proceeds to the fifth step.
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At step four, the undersigned must determine if an exception to medical
22
improvement applies (20 CFR 416.994(b)(5)(iv)). There are two groups of
23 exceptions (20 CFR 416.994(b)(3) and (b)(4)). If one of the first group
exceptions applies, the analysis proceeds to the next step. If one of the second
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group exceptions applies, the claimant’s disability ends. If none apply, the
25 claimant’s disability continues.
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1 The Court adopts the parties’ citations to the certified record in this matter. All other
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1
At step five, the undersigned must determine whether all the claimant’s
2
current impairments in combination are severe (20 CFR 416.994(b)(5)(v)). If
3 all current impairments in combination do not significantly limit the
claimant’s ability to do basic work activities, the claimant is no longer
4
disabled. If they do, the analysis proceeds to the next step.
5
At step six, the undersigned must assess the claimant’s residual functional
6
capacity based on the current impairments and determine if she can perform
7 past relevant work (20 CFR 416.994(b)(5)(vi)). If the claimant has the
capacity to perform past relevant work, her disability has ended. If not, the
8
analysis proceeds to the last step.
9
At the last step, the undersigned must determine whether other work exists
10
that the claimant can perform, given her residual functional capacity and
11 considering her age, education, and past work experience (20 CFR
416.994(b)(5)(vii)). If the claimant can perform other work, she is no longer
12
disabled. If the claimant cannot perform other work, her disability continues.
13 In order to support a finding that an individual is not disabled at this step, the
Social Security Administration is responsible for providing evidence that
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demonstrates that other work exists in significant numbers in the national
15 economy that the claimant can do, given the residual functional capacity, age,
education, and work experience.
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17 See AR 50; 20 C.F.R. § 416.994(b)(5). Before beginning the seven-step process, the
18 ALJ first established plaintiff’s comparison point decision (“CPD”), i.e. “the most recent
19 favorable medical decision finding that the claimant continued to be disabled” was the
20 decision reached on February 27, 2009. AR 51. At the time of the CPD, plaintiff was
21 disabled because her depression “was found to meet listing 12.04 of 20 CFR Part 404,
22 Subpart P, Appendix 1.” Id. At step one, the ALJ noted plaintiff had the following
23 medically determinable impairments since December 1, 2017: “degenerative disc disease
24 of the lumbar, tobacco related breathing difficulties, history of cirrhosis, morbid obesity,
25 unspecified diastolic heart failure, degenerative changes of the left knee, and depression.”
26 Id. However, none of plaintiff’s impairments met or exceeded the severity of the regulatory
27 listings. Id.
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1 At steps two and three, the ALJ found medical improvement had occurred for
2 plaintiff’s impairments, and the medical improvement affected plaintiff’s ability to work
3 because plaintiff’s impairments no longer met or exceeded the severity of the regulatory
4 listings. AR 53.2 At step five, the ALJ determined plaintiff had the following severe
5 impairments: “degenerative disc disease of the lumbar spine lumbar [sic], tobacco related
6 breathing difficulties, history of cirrhosis, morbid obesity, unspecified diastolic heart
7 failure, and depression.” AR 53-54.3 Plaintiff also suffered from non-severe impairments
8 of thyroidectomy and diabetes mellitus. AR 54.
9 At step six, the ALJ found plaintiff had the residual functional capacity (“RFC”) to
10 perform light work, except she could “never climb ladders, ropes or scaffolds”; could climb
11 ramps and stairs, balance, stoop, kneel, crouch, or crawl “occasionally”; and she should
12 “avoid concentrated exposure to extreme cold, fumes, odors, dust, and gases, unprotected
13 heights and moving and dangerous machinery.” AR 54. The ALJ also noted plaintiff “was
14 able to understand, remember and carry out simple instructions and tasks.” Id.
15 At the final step, the ALJ found no past relevant work. AR 63. The ALJ found
16 plaintiff was “an individual closely approaching advanced age” between December 1,
17 2017, and July 8, 2021. Id. Plaintiff became “an individual of advanced age” on July 8,
18 2021. Id.4 During the period where plaintiff was closely approaching advanced age, and
19 given plaintiff’s RFC, the ALJ found plaintiff could perform jobs that existed in significant
20 numbers in the national economy, such as bagger, packager, and sorter. AR 63-64.
21
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23 2 When a Social Security claimant’s previous finding of disability was based on the
listings, medical improvement that causes a claimant’s impairments to no longer satisfy the
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lisitings is “related to [the] ability to work.” 20 C.F.R. § 416.994(b)(2)(iv)(A).
25 3 Because plaintiff’s medical improvement was related to her ability to work, the ALJ
did not assess the “exceptions” at step four.
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4 A “[p]erson closely approaching advanced age” is between 50 and 54 years old. 20
27 C.F.R. § 416.963(d). Age 55 or older is considered “advanced age.” Id. § 416.963(e). A
finding of “advanced age” causes a more significant effect on the claimant’s ability to work
28
1 However, after plaintiff obtained “advanced age,” plaintiff became disabled under a “direct
2 application of Medical-Vocational Rule 202.01.” AR 64. The ALJ found “[b]ased on the
3 application for” benefits filed on November 25, 2008, plaintiff’s “disability ended on
4 December 1, 2017,” but plaintiff once again became disabled on July 8, 2021. AR 65.
5 Plaintiff challenged the ALJ’s findings of non-disability between December 1, 2017,
6 and July 8, 2021, but the ALJ’s decision became the final decision of the Commissioner
7 when the Appeals Council declined to overturn the ALJ’s finding of a period of non-
8 disability. See AR 1-7, 384-87. This appeal followed.
9 II. DISPUTED ISSUES
10 The only issue on appeal is whether the ALJ’s RFC assessment was supported by
11 substantial evidence. Doc. No. 14 at 4. More specifically, plaintiff contends the ALJ failed
12 to account for limitations caused by plaintiff’s orthopedic impairments in her back and
13 knees. See generally id. at 6-8.
14 III. STANDARD OF REVIEW
15 This Court will affirm the ALJ’s decision if (1) the ALJ applied the correct legal
16 standards; and (2) the decision is supported by substantial evidence. See Batson v. Comm’r
17 of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Under the substantial
18 evidence standard, the Commissioner's findings are upheld if supported by inferences
19 reasonably drawn from the record, and if there is evidence in the record to support more
20 than one rational interpretation, the Court will defer to the Commissioner. Id.
21 Even if the ALJ makes an error, this Court can nonetheless affirm the denial of
22 benefits if such error was “harmless, meaning it was ‘inconsequential to the ultimate
23 nondisability determination.’” Ford v. Saul, 950 F.3d 1141, 1154 (quoting Tommasetti v.
24 Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). The Court’s ability to uphold the ALJ’s
25 decision is limited in that this Court may not make independent findings and therefore
26 cannot uphold the decision on a ground not asserted by the ALJ. See Stout v. Comm’r of
27 the Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006).
28 ////
1 IV. ANALYSIS OF THE COMMISSIONER’S DECISION
2 Despite the voluminous record, this case turns on a narrow issue. The parties
3 disagree only as to whether the ALJ properly accounted for plaintiff’s orthopedic
4 impairments in her back and knees when the ALJ assessed plaintiff’s RFC. Compare Doc.
5 No. 14 at 8, Doc. No. 17 at 2 with Doc. No. 16 at 3. This is a dispositive issue because if
6 plaintiff had any exertional limitations that would restrict her to “sedentary work” (or less),
7 as opposed to the modified light work the ALJ’s decision reflects, a finding of “disabled”
8 would be directed under Medical-Vocational Guidelines Rule 201.09 because plaintiff is
9 closely approaching advanced age, has limited education, and does not have transferrable
10 skills. See 20 C.F.R. ch. III, part 404, subpart P, app. 2; AR 63. Thus, plaintiff’s physical
11 impairments may dictate whether she was disabled during the period between December
12 1, 2017, and July 8, 2021. Specifically, if plaintiff were limited to lifting ten pounds or less
13 and limited in her ability to stand and walk no more than “occasionally,” her work
14 restrictions would limit her to sedentary work. 20 C.F.R. § 416.967(a).
15 Plaintiff characterizes the ALJ’s RFC analysis as relying on the opinions of state
16 agency physicians S. Pak and L. Tanaka, neither of whom accounted for plaintiff’s
17 orthopedic conditions. See Doc. No. 14 at 4-6. Plaintiff’s knee and back impairments are
18 both documented in the record. Id. at 6-7. The ALJ’s conclusion that plaintiff could stand
19 and walk six hours out of an eight-hour workday and lift 20 pounds, plaintiff argues, is
20 therefore not supported by the record because the ALJ did not rely on any medical opinion
21 addressing plaintiff’s back and knees. Id. at 7-9. Instead, plaintiff suggests the ALJ
22 impermissibly drew his own medical conclusions based on the raw medical data contained
23 in the record. Id.
24 Defendant characterizes this case as plaintiff’s request for the court to adopt
25 plaintiff’s preferred interpretation of the record. See Doc. No. 16 at 3-5. Defendant argues
26 the ALJ did not rest his decision entirely on the state agency medical records. Id. at 6.
27 Rather, the ALJ considered more recent evidence in the record that rebutted plaintiff’s
28 claims of orthopedic impairments. Id. Thus, defendant argues, the record as a whole
1 supports the ALJ’s conclusion that plaintiff’s orthopedic issues did not render her disabled.
2 Id. at 8.
3 The ALJ took note of plaintiff’s orthopedic impairments, noting her “degenerative
4 disc disease of the lumbar spine” and “osteoarthritis of the left knee.” See AR 55. However,
5 he concluded these two limitations did not restrict plaintiff to sedentary work based on (a)
6 plaintiff’s treatment history for both conditions; and (b) rejecting or giving only minimal
7 weight to medical opinions that supported a restriction to sedentary work based on
8 exertional limitations related to standing, walking, and lifting. See generally AR 55-62. As
9 a general matter, the two bases substantially overlap because the ALJ’s decision to reject
10 supportive medical opinions rested largely on the ALJ’s interpretation of plaintiff’s
11 medical records and treatment history. See AR 60-62. The Court will nonetheless address
12 both bases separately.
13 (A) Plaintiff’s Treatment History and Medical Records
14 The ALJ cited plaintiff’s treatment history related to her back and knees as
15 supporting a non-disability finding for the time at issue. See generally AR 55-56, 58-59. In
16 so finding, the ALJ cited a vast number of medical records. Id. The Court must,
17 accordingly, review the ALJ’s findings to determine whether the records at issue were
18 substantial evidence that plaintiff’s RFC was properly calculated to allow light work.
19 (1) Records of Treatment History Related to Plaintiff’s Back
20 The ALJ reviewed plaintiff’s medical treatment history and made the following
21 assessment about plaintiff’s impairments to her back:
22 The longitudinal record supported a finding that, since December 1, 2017,
there has been an improvement in the claimant’s impairments. Treatment
23
notes revealed that the claimant has a history of treatment for her degenerative
24 disc disease of the lumbar spine. However, treatment notes from 2016
revealed that the claimant had no significant objective findings related to her
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reported lower back pain. She was in no acute distress. She had normal
26 examination of the bilateral lower extremities, with full range of motion, and
intact strength and sensation. Treatment notes from Imperial Beach Health
27
Center in January 2017 revealed that the claimant had five out of five strength
28 and normal sensation throughout. Treatment notes from Scripps Mercy
1 Hospital in February 2017 and May 2017 revealed that the claimant had no
complaints of tenderness to palpation of the lumbar spine. Treatment notes
2
from UCSD in June 2017 and September 2017 revealed that the claimant had
3 a normal examination of the back. She had normal strength and was
ambulatory. Treatment notes from Imperial Health Beach in October 2017 and
4
December 2017 revealed that the claimant had no tenderness to palpation of
5 the lumbar spine. She had five out of five strength and normal gait.
6
Treatment notes from Imperial Beach Health Center in January 2018 revealed
7 that the claimant complained of subjective decreased sensation in the left
lower extremity. However, she was in no acute distress. She had no tenderness
8
to palpation of the lumbar spine, five out of five strength throughout, and
9 negative straight leg raise bilaterally. She also had a normal gait. An x-ray of
her lumbar spine in January 2018 revealed anterolisthesis of L4 on L5 likely
10
from posterior facet arthropathy. Treatment notes from Imperial Beach Health
11 Center in April 2018 revealed that the claimant complained of sudden onset
of pain in her lower back. She had positive straight leg raise on the right.
12
However, she was in no acute distress. She had five out of five strength,
13 normal sensation, and intact deep tendon reflexes. An MRI of her lumbar
spine in May 2018 revealed multilevel degenerative changes, grade one
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anterolisthesis of L4 on L5 with mild central canal stenosis, moderate left and
15 mild resulting right neural foraminal narrowing, small saddle shaped disc
bulge and mild facet hypertrophy at L2-L3 causing mild to moderate right and
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mild left-sided neural foraminal narrowing.
17
Treatment notes from UCSD in June 2018 revealed that the claimant
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complained of low back pain. However, she had no tenderness to palpation of
19 the lumbar spine. She had good range of motion of the bilateral lower
extremities, with intact sensation and five out of five strength. She had
20
negative straight leg raise bilaterally. She was able to heel and toe walk
21 without deficit, albeit with complaints of pain. Treatment notes from Imperial
Beach Health Center in August 2018 and October 2018 revealed that the
22
claimant continued to have positive straight leg raise on the right. However,
23 she was in no acute distress. She had no tenderness to palpation over the
lumbar spine. She had normal examination of the bilateral lower extremities,
24
with five out of five strength, intact sensation and deep tendon reflexes.
25
Additionally, although the claimant has received treatment for the allegedly
26
disabling back pain, that treatment has been essentially routine and
27 conservative in nature.
28
1 See AR 55-56 (internal citations omitted) (citing AR 784-89, 790-800, 806-11, 812-
2 21, 838-42, 879-80, 911-19, 952-53, 974-77, 990-92, 997-99, 1062-65, 1078-80, 1085-87,
3 1104-14, 1122-48, 1163-74, 1234-39, 1256-59, 1266-71, 1276-85, 1332, 1370-73, 1462-
4 63, 1465, 1498-1501, 1544-47, 1552-55, 1570-72, 1590-95, 1596-1605, 1649-59, 1677-
5 1700, 1732-38, 1858, 1860-61, 2322-31, 2336-38).
6 A substantial number of the records cited by the ALJ have nothing to do with
7 plaintiff’s back. See AR 838-42, 879-80, 952-53, 974-77, 990-92, 997-99, 1062-65, 1078-
8 80, 1085-87, 1256-59, 1266-71, 1370-73, 1498-1501. The ALJ’s conclusory analysis
9 provides no insight as to how these records support the finding that plaintiff’s back did not
10 impose any exertional limitations. Accordingly, these records are not substantial evidence
11 supporting the ALJ’s determination.
12 An equally substantial number of the cited records address plaintiff’s back, but they
13 do not convey any information that informs whether plaintiff’s back limited her ability to
14 work. See AR 784-89, 790-800, 806-11, 812-21, 911-19, 1104-14, 1163-74, 1276-85,
15 1333, 1465, 1544-47, 1590-95, 1596-1605, 1649-59, 1858, 1860-61, 2322-31, 2336-38.
16 For example, the ALJ cited records indicating plaintiff’s back did not hurt when it was
17 poked during examination. See, e.g., AR 787, 809, 1593, 1598. The ALJ’s cursory analysis
18 does not explain why a lack of acute pain when plaintiff is poked and prodded translates
19 into an ability to perform the level of standing, walking, and lifting that would be required
20 for plaintiff to perform light work. Other records identify the existence of plaintiff’s
21 degenerative disc disease, but they do not include any medical information that informs
22 how plaintiff’s back does or does not limit her ability to work. See, e.g., AR 1544-47, 1858,
23 1860-61, 2336. Although the ALJ cited all these records as supporting a conclusion that
24 plaintiff could perform light work, the Court concludes they are not substantial evidence
25 because they do not have any relation to the exertional limitations that could limit
26 plaintiff’s ability to work.
27 The remainder of the records cited by the ALJ also do not support a finding that
28 plaintiff could perform light work. In fact, they tend to rebut that finding. See AR 1122-
1 48, 1234-39, 1462-63, 1552-55, 1570-72, 1677-1700, 1732-38. Plaintiff’s UCSD progress
2 notes state she is limited to walking no more than “1 block” because of her physiological
3 limitations which are exacerbated by her obesity. See AR 1132, 1141, 1683, 1692.5 This is
4 not substantial evidence that plaintiff could stand and walk for six hours out of an eight-
5 hour workday. If anything, it is evidence showing plaintiff would be limited to sedentary
6 work, if work were even possible. Moreover, many of the records cited by the ALJ
7 supported plaintiff’s persistent complaints of pain that limited her ability to stand and walk.
8 See AR 1234, 1552, 1570, 1732, 1736. These records are not substantial evidence of
9 improvements in plaintiff’s condition, as the ALJ found. Instead, they support the
10 limitations she claimed at the hearing, and any contrary conclusion by the ALJ is not based
11 on any reasonable inference drawn from this record.
12 The ALJ concluded his assessment by noting plaintiff’s treatment had been
13 “conservative,” which in the ALJ’s opinion supported a finding that plaintiff could perform
14 light work. AR 56. But the record, when considered as a whole, provides the whole story
15 here. Plaintiff needed more aggressive treatment for her various conditions, but she was
16 limited to conservative (and ineffective) treatment because her various co-morbidities
17 (including her obesity and her organ damage) made her ineligible for more aggressive
18 treatments that might have relieved her orthopedic pain. See AR 1234, 2033, 2553. As
19 such, the ALJ’s comments about plaintiff’s conservative treatment are not substantial
20 evidence because they are not based on consideration of the entire record.
21 The Court has reviewed each record cited by the ALJ as tending to support his
22 conclusion that plaintiff’s severe back impairment would nonetheless allow her to perform
23 light work. None of the records even address the exertional limitations that would dictate
24 whether plaintiff could perform light work, sedentary work, or no work at all. In fact, some
25
26
27 5 As the ALJ acknowledged, plaintiff’s morbid obesity is a serious factor because it
cases “greater pain and functional limitations than might be expected from her other severe
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1 of the records support a conclusion opposite to that reached by the ALJ. The Court
2 concludes the records cited by the ALJ are not substantial evidence.
3 (2) Records Related to Plaintiff’s Knees
4 The ALJ reviewed plaintiff’s medical treatment history and made the following
5 assessment about plaintiff’s impairments to her knees:
6 As for the claimant’s degenerative changes of the left knee, treatment notes
from 2017 and 2018 revealed that the claimant had normal examination of all
7
extremities with no gross joint abnormalities. She had five out of five strength
8 and normal gait. Treatment notes from March 2019 revealed that the claimant
had mild swelling of the left knee with tenderness to palpation over the medial
9
aspect. She had antalgic gait with difficulty bearing weight on left leg.
10 Treatment notes from May 2019 revealed that the claimant continued to have
antalgic gait, but she was not using an assistive device for ambulation.
11
Treatment notes form UCSD in May 2019 and June 2019 reveal that the
12 claimant had decreased range of motion of the left knee and complaints of
pain with full extension. She was unable to squat. She had positive effusion
13
and tenderness in the medial joint line. She had positive McMurray’s and
14 patellar grind. However, she was ambulating without an assistive device. MRI
of her left knee revealed full thickness tear and radial tear of the body of the
15
medial meniscus. An x-ray of her bilateral knees revealed mild bilateral
16 medial compartment joint space narrowing, left worse than right.
17
The claimant received left knee injections at Girard Orthopedic Surgeons. It
18 was noted that an xray of her left knee revealed osteoarthritic changes. She
received injections for her left knee pain. Treatment notes from July 2019
19
revealed that the claimant was in no acute distress. She had antalgic gait but
20 normal examination of the bilateral lower extremities. Treatment notes from
San Diego Coastal Endocrinology Group in August 2019 revealed that the
21
claimant had normal gait. Treatment notes from Imperial Beach Health Center
22 in October 2019 revealed that the claimant continued to complain of knee
pain. She had bilateral knee crepitus, and medial and joint line tenderness.
23
However, she had no effusion. She had normal gait and she did not use an
24 assistive device for ambulation. Treatment notes from Imperial Beach Health
Center between May 2020 and January 2021 revealed that the claimant
25
complained of difficulty walking and limited activities of daily living due to
26 knee pain. Treatment notes from Girard Orthopedic Surgeons between July
2020 and April 2021 revealed that the claimant complained of bilateral knee
27
pain. It was noted that she had some crepitation and medial joint line
28 tenderness, but not erythema or warmth to the bilateral knees. She continued
1 to receive injections for her knees.
2
See AR 58-590 (internal citations omitted) (citing AR 861-64, 911-19, 974-77, 1062-
3
65, 1104-14, 1122-48, 1163-74, 1192-21, 1225-30, 1234-39, 1256-59, 1498-1501, 1544-
4
47, 1649-69, 1677-1707, 1711-15, 1732-38, 1805-08, 1865-73, 1983-89, 2004-10, 2018-
5
34, 2028-34, 2163-64, 2171, 2206-10, 2252-53, 2260, 2295-99, 2306-08, 2354-57, 2359-
6
62, 2364, 2538-48, 2549-58).
7
As with plaintiff’s back, some of the cited records do not address plaintiff’s knees at
8
all. See AR 1104-14, 1225-30, 1711-15, 1805-08. The ALJ’s analysis provides no insight
9
as to how these records support the ALJ’s conclusion that plaintiff’s knees did not impose
10
any exertional limitations. Accordingly, these records are not substantial evidence
11
supporting the ALJ’s determination.
12
Other records do address plaintiff’s knees, but they neither support nor refute the
13
ALJ’s conclusion that plaintiff’s knees did not impose exertional limitations that would
14
have limited plaintiff to sedentary work. See AR 861-64, 911-19, 974-77, 1062-65, 1163-
15
74, 1498-1501, 1544-47, 1649-69, 2206-10, 2252-53, 2260, 2295-99, 2306-08, 2354-57,
16
2359-62, 2364, 2538-48. For example, the ALJ noted plaintiff received a course of
17
analgesic injections to treat her knee pain. See AR 59 (citing AR 2354-57, 2359-62, 2364,
18
2538-48). But all these records do is establish that plaintiff received the injections. They
19
do not convey whether the injections helped plaintiff walk and stand long enough to work
20
at more than a sedentary level, and the ALJ’s decision does not explain how the mere fact
21
of plaintiff having received injections in her knees belies her claims that she cannot stand
22
and walk enough to work at a light exertional level. As another example, the ALJ also made
23
multiple references to plaintiff having a “normal gait,” or having an “antalgic gait” (i.e., a
24
limp) but being able to walk without an “assistive device.” See, e.g., AR 58-59 (citing AR
25
2206-10, 2295-99, 2306-08). While the ALJ accurately reported the contents of these
26
records, the mere fact that plaintiff could walk without a cane, with or without a limp, do
27
not in and of themselves support the ALJ’s finding that plaintiff could stand or walk
28
1 consistently during an eight-hour workday. It is not enough to show plaintiff can stand and
2 walk at all. She needs to be able to work at a light exertional level, and because these
3 records do not address the plaintiff’s exertional limitations, they are not substantial
4 evidence supporting the ALJ’s decision.
5 Finally, some of the records cited by the ALJ actually supported the plaintiff’s claim
6 that she could not perform light work because her knee problems limited her ability to stand
7 and walk. For example, multiple records cited by the ALJ suggested plaintiff was limited
8 to walking no more than “1 block.” See AR 1122-48, 1192-21. Physical therapy progress
9 notes from June 11, 2018, noted plaintiff had difficulty walking due to pain; and directed
10 plaintiff to avoid “exacerbating activities,” including bending and lifting. See AR 1732-38.
11 A series of March 2019 reports noted plaintiff’s “leg pain” impaired her mobility to such
12 an extent that she should have assistance with her daily activities; her “constant and severe”
13 pain limited her daily activities; and she had difficulty bearing any weight on her left leg.
14 See AR 2004-10. June 26, 2019, records from Girard Orthopedic Surgeons noted that
15 plaintiff’s conservative treatment had been ineffective at alleviating her pain, and her
16 symptoms had seriously impacted her ability to engage in ordinary daily activities. AR
17 2028-34.
18 Dr. Dana Ryan’s examination notes from June 17, 2020, noted plaintiff’s knees
19 limited her activities. AR 2163-64. In May 2020, Dr. Danielle Richardson referred plaintiff
20 for a continued course of physical therapy and orthopedic injections due to disabling knee
21 pain. AR 2171. Treatment notes from Girard Orthopedic Surgeons generally showed
22 plaintiff had arthritic knees that caused her substantial pain (which did not respond to
23 conservative treatment). AR 2549-58. All of these records appear in the ALJ’s decision as
24 tending to support the ALJ’s conclusion that plaintiff could perform light work. They
25 cannot reasonably be interpreted to support the ALJ’s determination because the only
26 reasonable inferences drawn from these records are that plaintiff is too impaired to work at
27 a light exertional level. The Court concludes they, and all other records cited by the ALJ
28
1 are not substantial evidence supporting the ALJ’s conclusion that plaintiff could work at a
2 light exertional level notwithstanding her knee impairments.
3 (B) The Rejected Medical Opinions
4 The ALJ also rejected medical opinions from Dr. Dana Ryan; Dr. Danielle
5 Richardson; Arthur Roeher, DNP, PMHNP-BC; and the Imperial Beach Health Center
6 (“IBHC”); all of whom would have imposed exertional limitations inconsistent with the
7 ALJ’s finding that plaintiff could perform light work. See AR 60-62. When an ALJ
8 evaluates competing medical opinions in the administrative record, the ALJ must evaluate
9 the persuasiveness of any medical opinions and articulate his or her assessment as to each.
10 20 C.F.R. § 404.1520c. In evaluating persuasiveness, an ALJ considers the medical
11 opinions’ supportability and consistency; and the ALJ may also consider the relationship
12 between the source and the claimant, the source’s specialization, and other factors such as
13 the source’s knowledge of other evidence, social security requirements, and whether there
14 was subsequently submitted evidence. See 20 C.F.R. § 404.1520c(1)-(5). Although an ALJ
15 may discuss each of the factors to be considered in his or her opinion, the regulations only
16 require the ALJ to explain how he or she considered the most important factors—
17 supportability and consistency—when determining a medical opinion’s persuasiveness,
18 unless two conflicting medical opinions are both equally well-supported and consistent
19 with the record. 20 C.F.R. § 404.1520c(b)(2)-(3). Under the current regulations, the ALJ’s
20 decision “to discredit any medical opinion” will be upheld if it is “supported by substantial
21 evidence.” Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022).
22 The ALJ did not expressly make findings related to the consistency or supportability
23 of the opinions at issue. “Consistency” measures how consistent a medical opinion is with
24 other evidence in the record. See 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2).
25 “Supportability” is the extent to which a source presents relevant objective medical
26 evidence and explanations to support its opinion or finding. 20 C.F.R. § 404.1520c(c)(1),
27 416.920c(c)(1). The ALJ offered the same reason for discrediting each of the four medical
28 opinions at issue in this case: the longitudinal record revealed “stable, objective findings”
1 about claimant’s impairments, which the ALJ backed up with lengthy string citations to
2 plaintiff’s historical medical records. See AR 60-62. The Court construes this as a
3 conclusion based on consistency rather than supportability, because the ALJ was
4 comparing the various medical sources to other evidence in the record, rather than
5 analyzing whether the information considered by those sources supported (or did not
6 support) their medical conclusions.
7 Nothing in the ALJ’s decision appears to consider the supportability of the medical
8 sources, and the Court concludes the ALJ erred by failing to consider supportability
9 because the regulations require the ALJ to consider supportability. See 20 C.F.R.
10 404.1520c(b)(2). The ALJ’s rejection of these medical sources based on consistency was
11 also flawed because the ALJ relied on the same historical body of medical records that he
12 considered when he assessed plaintiff’s residual functional capacity and concluded she
13 could do light work—he did little more than incorporate-by-reference his prior analysis.
14 Compare AR 60-62 with AR 55-59. But this Court has already concluded the vast body of
15 medical records cited by the ALJ does not constitute substantial evidence supporting the
16 conclusion plaintiff could perform light work because those records were (a) silent as to
17 plaintiff’s physical impairments; (b) not probative of plaintiff’s ability to perform light
18 work even if they did address plaintiff’s physical impairments; or (c) actually supportive
19 of greater work restrictions than the ALJ found. For the same reasons, the Court concludes
20 that same body of medical records is therefore not inconsistent with the medical sources at
21 issue opining that plaintiff suffered from exertional limitations that would preclude light
22 work.6
23
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25 6 The current regulations for evaluating medical sources apply to claims filed on or
after March 27, 2017. See 20 C.F.R. § 404.1520c. A different set of regulations cover the
26
evaluation of medical opinions in claims filed before March 27, 2017. See 20 C.F.R.
27 404.1527. Plaintiff filed her original claim before March 27, 2017. AR 49. Neither the
regulations nor case law provide a definitive answer for whether the ALJ’s determination
28
1 The ALJ further rejected Dr. Ryan’s opinion based on a conclusion that it was
2 “inadequate to truly determine the [plaintiff’s] limitations regarding basic work activities.”
3 AR 60. An ALJ must articulate why an opinion is unpersuasive, not merely state a
4 conclusion unsupported by analysis or evidence. See Tabor v. Kijakazi, 2:22-cv-1249-JDP
5 (SS), 2023 WL 5673040, 2023 U.S. Dist. LEXIS 155295, at *8-9 (E.D. Cal. Aug. 31, 2023)
6 (collecting cases). The ALJ in this case offered neither explanation nor support for his
7 conclusion that Dr. Ryan’s opinion was “inadequate.” He simply stated the conclusion as
8 if it were a given. That was an improper basis for rejecting Dr. Ryan’s opinion.
9 The ALJ also faulted Mr. Roeher and IBHC for stating their conclusions that plaintiff
10 was unable to work. See AR 62. Medical sources may not opine about the plaintiff’s ability
11 to work because the ability to work is a determination reserved solely for the
12 administration. 20 C.F.R. § 416.920b(c)(3). Mr. Roeher and IBHC both stated in their
13 opinions that plaintiff could perform “no work.” See AR 2125, 2347-48. The ALJ’s
14 decision to reject this conclusion was proper; but it does not follow that he could reject
15 otherwise proper aspects of these sources medical opinions solely because the sources also
16 stated conclusions about the ability to work. The record shows that both sources also
17 offered perfectly permissible opinions about exertional limitations: Mr. Roeher opined
18
19
20
2017—would be controlled by the current or former regulatory guidelines for evaluating
21 the credibility of medical sources. The primary distinction between the new and old
regulations is the abrogation of the so-called “treating source rule,” which formerly gave
22
extra weight to medical sources who had an ongoing treatment relationship with a social
23 security claimant. See Woods v. Kijakazi, 32 F.4th 785, 787, 789-92 (9th Cir. 2022). But,
other than the treating source rule, the new and old regulations consider the same factors,
24
including the “supportability” and “consistency” factors. Compare 20 C.F.R. § 404.1520c
25 with 20 C.F.R. § 404.1527. The ALJ’s decision here does not implicate the treating source
rule, so the result would have been the same under the new or the old regulations because
26
weighing the competing medical opinions would have boiled down to supportability,
27 consistency, and other factors under the old regulation. Accordingly, the Court concludes
the question of which regulation controls here would have no effect on the outcome of the
28
1 plaintiff was unable to lift, squat, kneel, or continuously stand. AR 2125. IBHC opined that
2 plaintiff could not lift, squat, crawl, kneel, or stand/walk more than two hours per day. AR
3 2347-48. To the extent the ALJ rejected these opinions because both sources obliquely
4 stated conclusions about plaintiff’s ability to work, such rejection was a legal error. The
5 valid portions of the opinions remained valid notwithstanding extraneous comments about
6 issues reserved to the commissioner.
7 In short, the ALJ’s rejection of these medical sources was (1) legally erroneous (for
8 failing to consider supportability and for improperly considering work-related conclusions
9 as tending to discount the validity of otherwise proper medical opinions); and (2) not
10 supported by substantial evidence (because the so-called stable, objective findings in the
11 record were not inconsistent with the sources’ conclusions). The ALJ erred by rejecting
12 them.
13 (C) Appropriate Remedy
14 The decision whether to remand for further proceedings or order an immediate award
15 of benefits is committed to the Court’s discretion. See Harman v. Apfel, 211 F.3d 1172,
16 1175-78 (9th Cir. 2000). Remand for further proceedings is the default rule. Benecke v.
17 Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). In a rare case, however, where the record
18 clearly establishes the plaintiff is disabled, then there is no point in conducting further
19 proceedings before the agency because further proceedings would serve only to waste
20 agency resources arriving at a foregone conclusion while further delaying plaintiff’s
21 needed benefits. Id. “Courts have generally exercised this power when it is clear from the
22 record that a claimant is entitled to benefits, observing on occasion that inequitable conduct
23 on the part of the Commissioner can strengthen, though not control, the case for such a
24 remand.” Garrison v. Colvin, 759 F.3d 995, 1019 (9th Cir. 2014)
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1 Courts in the Ninth Circuit utilize the “credit-as-true rule” in cases where a court
2 decides if remand for an award of benefits is appropriate. Garrison, 759 F.3d at 1020.7
3 Three factors “must be satisfied” before the Court may remand “with instructions to
4 calculate and award benefits: (1) the records has been fully developed and further
5 administrative proceedings would serve no useful purpose; (2) the ALJ has failed to
6 provide legally sufficient reasons for rejecting evidence, whether claimant testimony of
7 medical opinion; and (3) if the improperly discredited evidence were credited as true, the
8 ALJ would be required to find the claimant disabled on remand.” Id. Even if the rule is
9 satisfied, a court nonetheless retains discretion to remand for further proceedings if the
10 record leaves the court with doubts the plaintiff is in fact disabled. Id. at 1021.
11 (1) Whether Further Administrative Proceedings Would Serve No Useful
12 Purpose
13 Further administrative proceedings serve no useful purpose when the record is
14 complete and there are no outstanding issues that must be resolved. See Garrison, 759 F.3d
15 at 1021-22; Lingenfelter v. Astrue, 504 F.3d 1028, 1041 (9th Cir. 2007); see also Benecke
16 v. Barnhart, 3790 F.3d 587, 595 (9th Cir. 2004) (noting it would be appropriate to remand
17 for an agency to “consider in the first instance an issue that it had not previously
18 addressed”). Giving an ALJ a “mulligan” on assessing the plaintiff’s RFC is not a “useful
19 purpose.” Garrison, 759 F.3d at 1021-22. Here, the ALJ went through the entire seven-
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7 A court may apply the credit-as-true rule at any time, including for the first time on
23 appeal to the Circuit. See Garrison, 759 F.3d at 998-99. In that case, a District Court
vacated an administrative denial of benefits and remanded for further proceedings. Id. at
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999. The Court of Appeals concluded the decision to remand for further proceedings
25 constituted an abuse of discretion and directed the ALJ to calculate and award benefits. Id.
In fact, if the conditions for applying the credit-as-true rule are met, it can be an abuse of
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discretion for a court not to remand with directions to award benefits. Id. at 1020. Thus,
27 although plaintiff did not specifically request an award of benefits, the Court must sua
sponte consider the application of the credit-as-true rule to properly discharge the exercise
28
1 step sequential evaluation process to determine if plaintiff’s disability had continued. The
2 ALJ considered all the evidence there was to consider. Nothing suggests there are gaps in
3 the record that must be filled by additional evidence. Accordingly, the Court concludes
4 further administrative proceedings would serve no useful purpose.
5 (2) Whether The ALJ Failed to Present Legally Sufficient Reasons for
6 Rejecting Evidence
7 The standard for the second prong is met if the Court, in reviewing the ALJ’s benefits
8 determination, has already determined the ALJ’s decision was legally insufficient.
9 Garrison, 759 F.3d 995, 1022. In such a case, the Court “need not repeat this analysis” at
10 stage two of applying the credit-as-true rule. Id. As the ALJ noted, plaintiff presented
11 evidence at the hearing that she had exertional limitations not compatible with performing
12 light work. AR 55. There were also medical sources who opined plaintiff had exertional
13 limitations incompatible with light work. AR 2125, 2347-48. As was the case in Garrison,
14 this Court has already determined the ALJ’s decision was unsupported by substantial
15 evidence. The Court need to repeat that analysis here. The second prong of the credit-as-
16 true rule is satisfied.
17 (3) Whether The Evidence Would, if Credited as True, Establish Plaintiff’s
18 Disability As a Matter of Law
19 In an ordinary case where the ALJ erroneously found plaintiff could perform “light
20 work,” remand would be necessary to determine if modified light work or sedentary work
21 were an option. But this is an unusual case. Here, if plaintiff is limited to sedentary work,
22 a finding of “disabled” would be directed under Medical-Vocational Guidelines Rule
23 201.09 because plaintiff is closely approaching advanced age, has limited education, and
24 does not have transferrable skills. See 20 C.F.R. ch. III, part 404, subpart P, app. 2.; AR
25 63. As counsel put it at the hearing, plaintiff would “grid out at sedentary” and be qualified
26 for benefits. AR 135. The exertional requirements for “sedentary work” are occasionally
27 lifting small objects (never exceeding ten pounds) and occasional walking and sitting. 20
28 C.F.R. § 416.967(a). As the Court has already determined, the ALJ improperly discounted
1 || multiple medical opinions that even sedentary work was too strenuous for plaintiff. Even
2 || limiting plaintiff to sedentary work would entitle her to benefits. Plaintiff's testimony also
3 || described exertional limitations consistent with, at best, sedentary work. See, e.g., AR 130-
4 (describing an inability to walk or stand); AR 131 (describing plaintiffs ability to lift
5 ||“maybe a five-pound sack of potatoes”). If credited as true, this evidence in the record
6 || would limit plaintiff to sedentary work, or perhaps no work at all. The record thus
7 || establishes plaintiff “grids out,” and conclusively establishes her entitlement to benefits.
8 || Prong three is, therefore, satisfied.
9 V. CONCLUSION
10 Having review the final determination of the Commissioner in this matter, the Court
11 ||determines the decision to deny benefits was not supported by substantial evidence. The
12 || final decision of the Commissioner is REVERSED. Moreover, the record here establishes
13 three prongs of the “credit-as-true” doctrine. Accordingly, the matter is REMANDED
14 |/to the Administration and the Commissioner is DIRECTED to calculate and pay benefits.
15 IT IS SO ORDERED.
16 || Dated: May 17, 2024 Jl. Lan)
17 Ml Ye □□
18 Hori. Karen 8S. Crawford
United States Magistrate Judge
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