Opinion

Allison Redondo-Lugo v. Kilolo Kijakazi

Court
District Court, C.D. California
Filed
Mar 29, 2023
Cited by
0 cases
Authority
More cited than 16.4%

ALJ must provide evidentiary support for 26 his interpretation of medical evidence

How later courts described this case

  • ALJ must provide evidentiary support for 26 his interpretation of medical evidence
  • ALJ should not make his “own exploration and assessment” as to a 15 claimant’s impairments
  • ALJ is not qualified to 20 extrapolate functional limitations from raw medical data
  • it is improper for the ALJ to act as the medical expert

Written by the judges who cited it.

The opinion

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10

11 ALLISON R., ) Case No. 5:21-cv-00783-SP

)

12 Plaintiff, )

)

13 v. ) MEMORANDUM OPINION AND

) ORDER

14 )

KILOLO KIJAKAZI, Acting )

15 Commissioner of Social Security )

Administration, )

16 )

Defendant. )

17 )

)

18

19 I.

20 INTRODUCTION

21 On May 3, 2021, plaintiff Allison R. filed a complaint against defendant, the

22 Commissioner of the Social Security Administration (“Commissioner”), seeking a

23 review of a denial of a period of disability and disability insurance benefits

24 (“DIB”). The parties have fully briefed the issues in dispute, and the court deems

25 the matter suitable for adjudication without oral argument.

26 Plaintiff presents two disputed issues for decision: (1) whether the

27 Administrative Law Judge’s (“ALJ”) residual functional capacity (“RFC”)

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1 assessment was supported by substantial evidence; and (2) whether the ALJ

2 properly evaluated plaintiff’s testimony.1 See Memorandum in Support of

3 Plaintiff’s Complaint (“P. Mem.”) at 4-12; see Memorandum in Support of

4 Defendant’s Answer (“D. Mem.”) at 3-15.

5 Having carefully studied the parties’ memoranda, the Administrative Record

6 (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein,

7 the ALJ erred in assessing plaintiff’s RFC and failed to properly consider

8 plaintiff’s testimony. The court therefore remands this matter to the Commissioner

9 in accordance with the principles and instructions enunciated in this Memorandum

10 Opinion and Order.

11 II.

12 FACTUAL AND PROCEDURAL BACKGROUND

13 Plaintiff, was 38 years old on the alleged disability onset date. AR at 82.

14 Plaintiff has past relevant work as a vocational instructor, massage therapist, public

15 health nurse, general duty nurse, and case manager. AR at 71.

16 On April 15, 2019, plaintiff filed an application for DIB, alleging she

17 became disabled on July 19, 2018 due to fibroadipose vascular anomaly, femoral

18 acetabular impingement of the left hip with a torn labrum, sacroiliac joint

19 dysfunction, and postpartum depression. AR at 82-83. The agency denied the

20 application initially and on reconsideration. AR at 110-114, 117-120.

21 On August 18, 2020, plaintiff waived her right to counsel and testified at a

22 hearing before the ALJ. AR at 54-69. The ALJ also heard testimony from Mary E.

23 Jesco, a vocational expert. AR at 70-76. On September 30, 2020, the ALJ issued a

24 decision denying plaintiff’s claim. AR at 28-41.

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26 1 In her memorandum plaintiff also presented the issue of whether the

Agency’s decision was a product of an unconstitutional delegation of authority, but

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plaintiff withdrew the arguments regarding this issue in her reply memorandum.

28 The court therefore will not address this issue.

1 Applying the well-known five-step sequential evaluation process, the ALJ

2 found at step one that plaintiff had not engaged in substantial gainful activity since

3 her alleged onset date of July 19, 2018. AR at 31.

4 At step two, the ALJ found plaintiff suffered from the following severe

5 impairments: degenerative disc disease of the lumbar spine; torn labrum and

6 degenerative joint disease of the left hip status post reconstructive surgery;

7 fibroadipose vascular anomaly; degenerative disc disease of the cervical spine; left

8 carpal tunnel syndrome; depression; and anxiety. Id.

9 At step three, the ALJ found plaintiff’s impairments, whether individually or

10 in combination, did not meet or medically equal one of the listed impairments set

11 forth in 20 C.F.R. part 404, Subpart P, Appendix 1. AR at 32.

12 The ALJ then assessed plaintiff’s RFC,2 and determined plaintiff had the

13 RFC to perform sedentary work, except limited to: lifting or carrying no more than

14 10 pounds occasionally and less than 10 pounds frequently; standing or walking

15 for two hours each in an eight-hour workday; and sitting for six hours in an

16 eight-hour workday. AR at 34. The ALJ also limited plaintiff to frequent handling

17 and fingering with the left non-dominant upper extremity; and occasional overhead

18 reaching with left non-dominant upper extremity. Plaintiff could never climb

19 ladders, ropes, or scaffolds; but could occasionally climb ramps and stairs, balance,

20 stoop, kneel, crouch, and crawl. Id. Plaintiff could tolerate occasional exposure to

21 extreme cold, extreme heat, and vibration; but no exposure to hazards such as

22 unprotected heights and moving mechanical machinery. Id. Plaintiff was able to

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2 Residual functional capacity is what a claimant can do despite existing

25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155-

26 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation,

the ALJ must proceed to an intermediate step in which the ALJ assesses the

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claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151

28 n.2 (9th Cir. 2007).

1 understand, remember, and carry out simple, and some complex, tasks in a routine,

2 low-stress work setting involving few workplace changes. Id.

3 The ALJ found at step four that plaintiff was unable to perform any past

4 relevant work. AR at 39.

5 At step five, the ALJ considered plaintiff’s age, education, work experience,

6 and RFC, and found she could perform jobs that exist in significant numbers in the

7 national economy, including order clerk, call-out operator, and lens inserter. AR at

8 40. The ALJ therefore concluded plaintiff was not under a disability, as defined in

9 the Social Security Act, at any time from July 19, 2018 through the date of the

10 decision. AR at 41.

11 Plaintiff filed a timely request for review of the ALJ’s decision, which the

12 Appeals Council denied. AR at 1-6. The ALJ’s decision stands as the final

13 decision of the Commissioner.

14 III.

15 STANDARD OF REVIEW

16 This court is empowered to review decisions by the Commissioner to deny

17 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security

18 Administration must be upheld if they are free of legal error and supported by

19 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001)

20 (as amended). But if the court determines the ALJ’s findings are based on legal

21 error or are not supported by substantial evidence in the record, the court may

22 reject the findings and set aside the decision to deny benefits. Aukland v.

23 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d

24 1144, 1147 (9th Cir. 2001).

25 “Substantial evidence is more than a mere scintilla, but less than a

26 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such

27 “relevant evidence which a reasonable person might accept as adequate to support

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1 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276

2 F.3d at 459. To determine whether substantial evidence supports the ALJ’s

3 finding, the reviewing court must review the administrative record as a whole,

4 “weighing both the evidence that supports and the evidence that detracts from the

5 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be

6 affirmed simply by isolating a specific quantum of supporting evidence.’”

7 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th

8 Cir. 1998)). If the evidence can reasonably support either affirming or reversing

9 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that

10 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir.

11 1992)).

12 IV.

13 DISCUSSION

14 A. The ALJ’s RFC Determination Is Not Supported by Substantial

15 Evidence

16 Plaintiff argues that the ALJ erred in finding that plaintiff had the RFC to

17 perform sedentary work with some limitations. P. Mem. at 4-8. Specifically,

18 plaintiff contends the ALJ’s RFC determination was not supported by any medical

19 opinion and instead was based on his own improper lay interpretation of the

20 medical evidence. Id.

21 RFC is what one can “still do despite [his or her] limitations.” 20 C.F.R.

22 § 404.1545(a)(1)-(2). The ALJ reaches an RFC determination by reviewing and

23 considering all of the relevant evidence, including non-severe impairments. Id.

24 When the record is ambiguous, the Commissioner has a duty to develop the record.

25 See Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005); see also Mayes, 276

26 F.3d at 459-60 (ALJ has a duty to develop the record further only “when there is

27 ambiguous evidence or when the record is inadequate to allow for proper

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1 evaluation of the evidence”); Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)

2 (“If the ALJ thought he needed to know the basis of [a doctor’s] opinion[ ] in order

3 to evaluate [it], he had a duty to conduct an appropriate inquiry, for example, by

4 subpoenaing the physician[ ] or submitting further questions to [him or her].”).

5 This may include retaining a medical expert or ordering a consultative

6 examination. 20 C.F.R. § 404.1519a(a). The Commissioner may order a

7 consultative examination when trying to resolve an inconsistency in evidence or

8 when the evidence is insufficient to make a determination. 20 C.F.R.

9 § 404.1519a(b).

10 1. The Medical Evidence

11 Plaintiff’s medical records reflect that plaintiff has a history of a motor

12 vehicle accident in 1999 and a motorcycle accident in 2009. AR at 384. Plaintiff

13 injured her hip in February 2016 by trying to lift something while 15 weeks

14 pregnant with her first child. AR at 310. Plaintiff underwent an MRI of the

15 lumbar spine on January 8, 2019, which revealed minimal facet arthrosis resulting

16 in minimal narrowing of the bilateral neural foramina without significant central

17 canal stenosis. AR at 333. Orthopaedic treatment records from March 2019

18 showed that plaintiff complained of persistent pain, including when alternating

19 positions. AR at 310. In April 2019, plaintiff underwent a successful left hip

20 arthroscopy with labral repair, femoroplasty, and capsular closure and was

21 subsequently noted for ambulating with a post-surgery assistive device later that

22 month. AR at 305-06, 316.

23 On April 16, 2019, an x-ray of the right knee showed mild degenerative

24 changes. AR at 343. A subsequent MRI of the knee revealed a low grade sprain,

25 trace popliteal cyst trace pes anserine bursitis, low grade cartilage loss, and mild

26 edema. AR at 387. Hospital records from May 2019 indicated that plaintiff was

27 recently diagnosed with vascular anomaly of the left lateral calf, most likely to

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1 represent a fibroadipose vascular anomaly, as she exhibited pain to deep

2 palpation and mildly restricted active range of motion. AR at 373-76.

3 Records from July 5, 2019 revealed that plaintiff was not responding to

4 conservative medical management, including over-the-counter non-steroidal anti-

5 inflammatory medications and prescription analgesics. AR at 384. During this

6 same doctor visit, plaintiff underwent an MRI of the cervical spine that revealed

7 osteophytes with mild right joint hypertrophy. AR at 385. In June 2019 an

8 angiogram of the left calf confirmed venous malformation. AR at 577. Plaintiff

9 experienced calf stiffness and contraction, feeling like the whole left side has

10 compensated for the tightness in the calf. AR at 580. Plaintiff’s treating physician

11 recommended sclerotherapy of the lesions. Id. An MRI of the left shoulder

12 revealed low grade partial thickness bursal sided tearing and/or fraying; mild

13 bursitis with synovitis; mild infraspinatus and moderate upper and mid

14 subscapularis tendonosis. AR at 586. An MRI of the left hand revealed mild

15 degenerative changes. AR at 697.

16 An MRI of the claimant’s lumbar spine conducted in January 2019 revealed

17 at L4-5 no more than minimal facet arthrosis, resulting in minimal narrowing of the

18 bilateral neural foramina without significant central canal stenosis. AR at 332-333.

19 In March 2019, plaintiff stated that she had been undergoing physical therapy for

20 nine months and felt she was making progress. AR at 310. In November 2019,

21 plaintiff underwent an electromyogram/nerve conduction study, which revealed

22 positive findings for moderate carpal tunnel syndrome. AR at 590. Physical

23 therapy records from February 2020 show plaintiff exhibited some improvement.

24 AR at 875. By April 2020, plaintiff was assessed with cervical disc disorder with

25 myelopathy. AR at 637.

26 Additionally, plaintiff reported that she had problems with her memory and

27 concentration due to depression, but her mental status examinations revealed that

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1 she exhibited fair memory, insight, and judgment, and normal attention and

2 concentration skills. AR at 300, 423. She also exhibited good eye contact and

3 was calm and cooperative. AR at 301, 422-23.

4 2. ALJ’s RFC Determination

5 The ALJ determined plaintiff had the ability to perform a reduced range of

6 sedentary work, and assessed specific limitations: lifting or carrying no more than

7 10 pounds occasionally and less than 10 pounds frequently; standing or walking

8 for two hours each in an eight-hour workday; sitting for six hours in an eight-hour

9 workday; frequent handling and fingering with the left non-dominant upper

10 extremity; occasional overhead reaching with left non-dominant upper extremity;

11 no climbing of ladders, ropes, or scaffolds; occasional climbing of ramps and

12 stairs, balancing, stooping, kneeling, crouching, and crawling; occasional exposure

13 to extreme cold, extreme heat, and vibration; no exposure to hazards such as

14 unprotected heights and moving mechanical machinery; and able to understand,

15 remember, and carry out simple, and some complex, tasks in a routine, low-stress

16 work setting involving few workplace changes. AR at 34.

17 The ALJ generally based the RFC determination by reviewing plaintiff’s

18 impairments and finding many of her symptoms improved with treatment. AR at

19 35-38. In reaching this RFC assessment, the ALJ considered the objective medical

20 evidence pertaining to plaintiff’s degenerative disc disease of the lumbar spine,

21 torn labrum and degenerative joint disease of the left hip post reconstructive

22 surgery, fibroadipose vascular anomaly, degenerative disc disease of the cervical

23 spine, left carpal tunnel syndrome, depression, and anxiety. Id.

24 The ALJ also considered the opinions of the non-examining state agency

25 physicians, Drs. R. Bitonte and U. Reddy, and found them unpersuasive and

26 unsupported by the medical evidence in the record. AR at 38. Drs. Bitonte and

27 Reddy reviewed the medical records available at the time, and provided their

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1 assessments on June 13 and September 20, 2019, respectively. AR at 90-91, 106-

2 07. The doctors generally assessed that plaintiff could perform light work with

3 certain limitations. Id. The ALJ discounted their opinions because they overstate

4 plaintiff’s exertional levels, overlook manipulative limitations due to plaintiff’s

5 cervical spine degenerative disc disease and left carpal tunnel syndrome, and

6 predate “at least part of the relevant period, thereby preventing them from being

7 accurate, comprehensive opinions regarding [plaintiff’s] overall physical

8 limitations.” AR at 38. The ALJ noted, however, that Dr. Reddy’s opinion was

9 “more but not fully consistent with the record” because Dr. Reddy also added

10 environmental limitations to plaintiff’s functional limitations assessment, which

11 limitations the ALJ accepted. Id.

12 The ALJ also found plaintiff’s subjective symptom testimony not entirely

13 consistent with the objective medical findings that revealed largely unremarkable

14 findings and symptoms that were otherwise controlled with conservative treatment

15 modalities. AR at 35. The ALJ did not consider the opinions of any treating

16 physicians because they did not provide medical source statements. Additionally,

17 the ALJ did not consider any consultative examination opinions because there were

18 no such opinions in the record.3

19 3. Analysis

20 The issue here is whether the ALJ could solely rely on her own

21 interpretation of the medical records in order to make an RFC determination or had

22 a duty to further develop the record. See P. Mem. at 4-8. Apart from Dr. Bitonte

23 and Dr. Reddy, whose opinions the ALJ found unpersuasive in many respects, no

24 other physician reviewed plaintiff’s medical records reflecting her physical

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3 Because plaintiff does not appear to challenge the ALJ’s review of her

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mental impairments, medical opinions and administrative findings, the court does

28 not discuss those findings.

1 impairments or provided an opinion about her RFC. The ALJ’s RFC

2 determination was largely consistent with the environmental and some of the

3 postural limitations opined by Dr. Reddy, but the ALJ assessed greater exertional

4 and manipulative limitations. See AR at 34, 106-07. Thus, the ALJ’s RFC

5 determination concerning the limiting effects of plaintiff’s degenrative disc disease

6 of the lumbar spine, torn labrum and degenerative joint disease of the left hip post

7 reconstructive surgery, fibroadipose vascular anomaly, degenerative disc disease of

8 the cervical spine, and left carpal tunnel syndrome was largely based on the ALJ’s

9 own interpretation of the MRIs and treatment notes. AR at 34-39.

10 An ALJ may not act as her own medical expert because she is “simply not

11 qualified to interpret raw medical data in functional terms.” Rivera v. Berryhill,

12 2017 WL 5054656, at *4 (C.D. Cal. Oct. 31, 2017) (quoting Nguyen v. Chater, 172

13 F.3d 31, 35 (1st Cir. 1999)); see Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir.

14 1975) (ALJ should not make his “own exploration and assessment” as to a

15 claimant’s impairments); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996)

16 (“ALJs must not succumb to the temptation to play doctor and make their own

17 independent medical findings.”); Miller v. Astrue, 695 F. Supp. 2d 1042, 1048

18 (C.D. Cal. 2010) (it is improper for the ALJ to act as the medical expert); Padilla v.

19 Astrue, 541 F. Supp. 2d 1102, 1106 (C.D. Cal. 2008) (ALJ is not qualified to

20 extrapolate functional limitations from raw medical data); Afanador v. Barnhart,

21 2002 WL 31497570, at *4 (N.D. Cal. Nov. 6, 2002) (ALJ failed to develop the

22 record when she did not obtain a medical opinion concerning claimant’s specific

23 diagnosis). The absence of a medical opinion is not necessarily fatal, but the RFC

24 determination still must be supported by substantial evidence. See Tackett v. Apfel,

25 180 F.3d 1094, 1102-03 (9th Cir. 1999) (ALJ must provide evidentiary support for

26 his interpretation of medical evidence).

27 Defendant argues “[t]he ALJ properly found that plaintiff could perform a

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1 reduced range of sedentary exertion work with manipulative and postural

2 limitations in a low stress setting involving few workplace changes.” D. Mem. at

3 13. Defendant contends that this finding is supported by substantial evidence since

4 none of the medical sources who assessed plaintiff’s functional abilities found

5 limitations greater than those found by the ALJ. Id. (citing AR at 37-39). Plaintiff

6 contends the ALJ’s assessment of the medical evidence is “problematic because of

7 the wide array of objective and clinical findings that have manifested at different

8 times. P. Mem. at 6. Plaintiff cites to her MRI records reflecting severe and mild

9 findings (AR at 338, 340, 385), as well as records showing low grade and minimal

10 findings (AR at 333, 343). Id. at 7.

11 In Penny v. Sullivan, the Ninth Circuit held that “[w]ithout a personal

12 medical evaluation it is almost impossible to assess the residual functional capacity

13 of any individual.” 2 F.3d 953, 958 (9th Cir. 1993). As an initial matter, the

14 Penny’s court deference to examining opinions is no longer warranted by existing

15 SSA regulations. See 20 C.F.R. § 416.920c(a) (ALJs must not “defer or give any

16 specific evidentiary weight, including controlling weight, to any medical

17 opinion(s) or prior administrative medical finding(s), including those from [the

18 claimant’s] medical sources”); Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir.

19 2022) (“The revised social security regulations are clearly irreconcilable with our

20 caselaw according special deference to the opinions of treating and examining

21 physicians on account of their relationship with the claimant.” (citing 20 C.F.R.

22 § 404.1520c(a))).4 Thus, the question after the new regulations and Woods is

23 whether some medical source, examining or not, has to interpret every probative

24 piece of objective medical evidence before it can be used by the ALJ to formulate

25 the RFC.

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4 Plaintiff filed her application on April 15, 2019, so the March 27, 2017

28 regulations apply to this case. See 20 C.F.R. § 416.920c.

1 Some courts have interpreted Penny and its progeny to require that an ALJ’s

2 RFC determination be completely supported by a medical source opinion. See,

3 e.g., Banks v. Barnhart, 434 F. Supp. 2d 800, 805 (C.D. Cal. 2006) (“An ALJ

4 cannot arbitrarily substitute his own judgment for competent medical opinion . . . ,

5 and he must not succumb to the temptation to play doctor and make his own

6 independent medical findings.” (cleaned up)); De Gutierrez v. Saul, 2020 WL

7 5701019, at *5-6 (E.D. Cal. Sept. 24, 2020) (“The ALJ was not qualified to

8 translate the data into functional limitations and engage in her own exploration and

9 assessment of Plaintiff’s impairments.” (internal quotation marks omitted)). Other

10 courts have held that Penny does not establish such a requirement. See, e.g., Burns

11 v. Saul, 2020 WL 1547438, at *15 (E.D. Cal. Apr. 1, 2020) (“Penny did not hold

12 that an ALJ must always secure an expert medical opinion to deny benefits.”); Hall

13 v. Colvin, 2015 WL 5708465, at *3 n.3 (C.D. Cal. Sept. 29, 2015) (distinguishing

14 Penny because the ALJ in Hall relied on the findings and reports of plaintiff’s

15 treating physicians in assessing the RFC). Still other courts take a middle-ground

16 approach, namely, that “‘an expert’s RFC evaluation is ordinarily essential unless

17 the extent of functional loss, and its effect on job performance, would be apparent

18 even to a lay person.’” Javier A. G. v. Saul, 2020 WL 6940042, at *9 (C.D. Cal.

19 Nov. 25, 2020) (quoting Manso-Pizarro v. Sec’y of Health & Hum. Servs., 76 F.3d

20 15, 17 (1st Cir. 1996)); Manso-Pizarro, 76 F.3d at 17 (“Of course, where the

21 medical evidence shows relatively little physical impairment, an ALJ permissibly

22 can render a commonsense judgment about functional capacity even without a

23 physician’s assessment.” (citations omitted)); Duarte v. Saul, 2020 WL 5257597,

24 at *5 (E.D. Cal. Sept. 3, 2020) (“Barring a few exceptions, an ALJ must have a

25 doctor’s opinion of a claimant’s functional capacity in order for there to be

26 substantial evidence supporting the decision.” (citing Manso-Pizarro, 76 F.3d at

27 17)).

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1 Based on the conflicting caselaw, the new regulations, and the recent Woods

2 decision, the court is persuaded that a middle-ground approach is most appropriate.

3 That said, the court first notes that this is not a case in which the ALJ crafted the

4 RFC without the benefit of any medical opinion. The ALJ had the assessments of

5 Drs. Bitonte and Reddy, but rejected those assessments in many respects, finding

6 that the record as a whole warranted greater exertional and manipulative limitations

7 in the RFC determination. AR at 38. The issue, though, is that, as the ALJ notes,

8 those opinions predate part of the relevant period. See id. The question is whether

9 the ALJ fairly determined that the more recent medical records not considered by

10 Drs. Bitonte and Reddy needed no additional medical expert interpretation.

11 The court finds the ALJ erred by independently interpreting plaintiff’s

12 medical records and imaging data. Courts have considered MRIs, radiological

13 studies, and X-rays to be raw medical data. See Mack v. Saul, 2020 WL 2731032,

14 at *2 (E.D. Cal. May 26, 2020) (duty to develop where the ALJ improperly

15 determined RFC after considering MRIs and radiological studies absent a doctor’s

16 opinion regarding the effect on plaintiff’s ability to work on a function-by-function

17 basis); see also Escudero v. Comm’r of Soc. Sec., 2019 WL 4917634, *2 (E.D. Cal.

18 Oct. 4, 2019) (RFC not based on substantial evidence where the ALJ considered

19 x-rays and records indicating plaintiff’s diabetes diagnoses post-dated the accepted

20 physician’s opinion on which the ALJ based the RFC). Such records generally

21 reflect only the findings, impressions, and medical diagnoses, which are difficult

22 for a lay person to interpret. See Escudero, 2019 WL 4917634, at *2 (finding

23 “descriptions of medical documents post-dating the physician’s opinions appear to

24 be very medical in nature and not susceptible to a lay understanding.”).

25 Defendant fails to establish that the extent of plaintiff’s functional

26 limitations during the relevant time was apparent to a lay person. Specifically, the

27 court is not convinced the ALJ was qualified to extract functional limitations from

28

1 plaintiff’s treatment and radiology records reflecting severe enhancement of the

2 left trochanteric bursa or bursitis in addition to partial thickness tear of the left

3 gluteus medius tendon (AR at 338), fibroadipose vascular anomaly (“FAVA”)

4 versus venous malformation (AR at 340), lumbar spine minimal facet arthrosis and

5 foraminal stenosis (AR at 333), right knee mild degenerative changes (AR at 343),

6 low grade sprain; trace popliteal cyst, trace pes anserine bursitis; low grade

7 cartilage loss; and mild edema (AR at 387), osteophytes with mild right joint

8 hypertrophy in the cervical spine (AR at 385), angiogram of the left calf venous

9 malformation confirmed (AR at 577), low grade partial thickness bursal sided

10 tearing and/or fraying; mild bursitis with synovitis; mild infraspinatus and

11 moderate upper and mid subscapularis tendinosis of the left shoulder (AR at 586),

12 mild degenerative changes in the left hand (AR at 697), and EMG records showing

13 moderate carpal tunnel syndrome (AR at 590).

14 Significantly, the later records reflecting plaintiff’s cervical spine

15 impairment and carpal tunnel syndrome from late 2019 and 2020 do not include a

16 medical opinion about plaintiff’s capabilities or an analysis of plaintiff’s function-

17 by-function capabilities. The ALJ apparently interpreted the raw medical data,

18 independently evaluated plaintiff’s functional capabilities, and substituted her

19 judgment for that of a medical expert. The fact that the ALJ imposed greater

20 limitations than the reviewing physicians is inconsequential here. The ALJ

21 properly found those opinions unpersuasive because Drs. Bitonte and Reddy did

22 not have the entirety of plaintiff’s medical record at the time of their assessment.

23 The court recognizes the ALJ’s analysis here was quite thorough and

24 detailed. Nevertheless, there is no expert medical opinion in the record interpreting

25 a significant number of medical records, including imaging studies. A duty to

26 develop may exist where the ALJ is interpreting raw medical data or records that

27 are not “susceptible to a lay person’s understanding.” See Mack 2020 WL

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1 2731032, at *3 (remanded for further development of the record where the court

2 found that the ALJ substituted his own judgment for that of a medical professional

3 in considering MRIs and other radiology studies that no physician was asked to

4 review); Rivera v. Berryhill, 2017 WL 5054656 (C.D. Cal. Oct. 31, 2017) (an ALJ

5 “may not act as his own medical expert as he is ‘simply not qualified to interpret

6 raw medical data in functional terms’”). The court is particularly hesitant to find

7 no error or harmless error in the context of complex physical impairments that

8 require evaluation of radiology records.

9 Because the ALJ largely rejected Drs. Bitonte and Reddy’s opined

10 limitations and the record does not contain an opinion or interpretation of the

11 functional limitations resulting from the late 2019 through 2020 diagnoses in

12 combination with plaintiff’s prior diagnoses, the ALJ’s duty to further develop the

13 record was triggered, warranting either a consultative examination or medical

14 expert opinion by a physician who had access to plaintiff’s medical records

15 through, at minimum, the April 2020 diagnosis of cervical disc disorder with

16 myelopathy. See Tonapetyan, 242 F.3d at 1151 (reversing and remanding for

17 further proceedings where the ALJ’s RFC determination was not based on a fully

18 developed record). As such, the court concludes the ALJ’s RFC determination was

19 not supported by substantial evidence due to her failure to develop the record fully.

20 B. The ALJ Failed to Properly Consider Plaintiff’s Symptom Testimony

21 Plaintiff also argues the ALJ failed to articulate clear and convincing reasons

22 for discounting her testimony regarding the limiting effects of her physical and

23 mental impairments. P. Mem. at 8-12.

24 The court looks to Social Security Ruling (“SSR”) 16-3p for guidance on

25 evaluating plaintiff’s alleged symptoms. “Although SSRs do not have the same

26 force and effect as statutes or regulations, they are binding on all components of

27 the Social Security Administration.” Id. (citing 20 C.F.R. § 402.35(b)(1)). In

28

1 adopting SSR 16-3p, the SSA sought to “clarify that subjective symptom

2 evaluation is not an examination of an individual’s character.” Id. at *2.

3 [SSR 16-3p] makes clear what our precedent already required: that

4 assessments of an individual’s testimony by an ALJ are designed to

5 evaluate the intensity and persistence of symptoms after the ALJ finds

6 that the individual has a medically determinable impairment(s) that

7 could reasonably be expected to produce those symptoms, and not to

8 delve into wide-ranging scrutiny of the claimant’s character and

9 apparent truthfulness.

10 Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (cleaned up).

11 To evaluate a claimant’s symptom testimony, the ALJ engages in a two-step

12 analysis. Christine G. v. Saul, 402 F. Supp. 3d 913, 921 (C.D. Cal. 2019) (quoting

13 Trevizo, 871 F.3d at 678). First, the ALJ must determine whether the claimant

14 produced objective medical evidence of an underlying impairment that could

15 reasonably be expected to produce the symptoms alleged. Id. Second, if the

16 claimant satisfies the first step, and there is no evidence of malingering, the ALJ

17 must evaluate the intensity and persistence of the claimant’s symptoms and

18 determine the extent to which they limit her ability to perform work-related

19 activities. Id.

20 In assessing intensity and persistence, the ALJ may consider: a claimant’s

21 daily activities; the location, duration, frequency, and intensity of the symptoms;

22 precipitating and aggravating factors; the type, dosage, effectiveness, and side

23 effects of medication taken to alleviate the symptoms; other treatment received;

24 other measures used to relieve the symptoms; and other factors concerning the

25 claimant’s functional limitations and restrictions due to the symptoms. Id. (citing

26 20 C.F.R. § 416.929; SSR 16-3p, 2017 WL 5180304, at *4; Smolen, 80 F.3d at

27 1283-84 & n.8 (9th Cir. 1996)). To reject a claimant’s subjective symptom

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1 statements at step two, the ALJ must provide “specific, clear, and convincing”

2 reasons, supported by substantial evidence in the record, for doing so. Id. at 921,

3 929.

4 1. Plaintiff’s Subjective Symptom Testimony

5 The ALJ summarized plaintiff’s testimony as follows. At the hearing,

6 plaintiff testified that she began doing temporary work as of July 20, 2020,

7 investigating and calling patients who are positive for COVID-19, currently

8 working for 8 to 16 hours per week and is trying to commit to Mondays and

9 Wednesdays. AR at 35; see id. at 56-57. Plaintiff lives in a house with her two

10 sons, 18-year-old nephew, and husband, who is a “100%” disabled, unemployed

11 veteran and she acts as his caregiver through a Department of Veteran Affairs (VA)

12 support program. AR at 35; see id. at 58. Plaintiff testified that on an average day,

13 she and her husband do not sleep well and alternate caring duties for her sons

14 because of their respective issues, while her nephew helps out with the daily

15 chores. AR at 35; see id. at 59.

16 Plaintiff testified she had a fibroadipose vascular anomaly since age 8

17 involving her left calf and injured her back while working at UPS in 1999. AR at

18 35; see id. at 62-63. Plaintiff stated that not many physicians treat this anomaly,

19 but she found a leading surgeon in Boston who will help her start a treatment plan

20 as she will eventually need to have the cells and tumor removed from her leg. AR

21 at 35; see id. at 65.

22 Plaintiff also testified that she has headaches and eye pain, severe pain that

23 runs from her fingers to her hand to her arm. AR at 35; see id. at 65-66. She

24 experiences stomach problems including irritable bowel syndrome as a result of

25 taking her pain medications, she also experiences symptoms of depression,

26 including thoughts of suicide. AR at 35; see id. at 67.

27 In her memorandum, plaintiff highlighted additional parts of her hearing

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1 testimony. She testified that on May 26, 2020 she underwent carpal tunnel

2 surgery. AR at 67. She requires frequent breaks, which interferes with her ability

3 to work, and has difficulty standing or sitting for “too long.” AR at 66, 68-69. She

4 also experiences sedative effects from medication. Id.

5 2. The ALJ’s Findings

6 At the first step for evaluating a claimant’s symptom testimony, the ALJ

7 found plaintiff’s medically determinable impairments could reasonably be

8 expected to cause the symptoms alleged. AR at 35. At the second step, the ALJ

9 partly discounted plaintiff’s testimony concerning the intensity, persistence, and

10 limiting effects of her symptoms as not entirely consistent with the medical

11 evidence and other evidence in the record. Id. Because plaintiff cleared step one

12 and the ALJ found no evidence of malingering, the ALJ’s reasons for discounting

13 plaintiff’s testimony had to be specific, clear, convincing, and supported by

14 substantial evidence. Here, the ALJ found plaintiff’s symptom testimony was not

15 “entirely consistent” with the “objective medical findings in the record [revealing]

16 largely unremarkable findings and symptoms that were otherwise reasonably

17 controlled with conservative treatment modalities.” Id.

18 Plaintiff argues, the surgical procedures she received are not properly

19 characterized as conservative treatment. P. Mem. at 10. The record shows plaintiff

20 had undergone arthroscopic surgery (AR at 316), and she was in discussions with

21 Boston Children’s Hospital regarding obtaining surgical treatment for FAVA (AR

22 at 65). Plaintiff also testified at the hearing she had undergone carpal tunnel

23 release surgery on May 26, 2020. AR at 67, 781; see Ritchotte v. Astrue, 281 Fed.

24 Appx. 757, 759 (9th Cir. 2008) (rejecting the ALJ’s conclusion that the claimant’s

25 treatment was conservative where he had surgery); see also Barrino v. Berryhill,

26 2017 WL 977670, at *9 (E.D. Cal. Mar. 14, 2017) (“[s]urgery is not conservative

27 treatment”); Sanchez v. Colvin, 2013 WL 1319667, at *4 (C.D. Cal. Mar. 29, 2013)

28

1 (“surgery and conservative measures are at different ends of the treatment

2 spectrum”); Huerta v. Berryhill, 2019 WL 2009112, at *4 (C.D. Cal. May 7, 2019)

3 (“rotator cuff surgery obviously undermines the ALJ’s dismissal of [the claimant’s]

4 right shoulder impairment based on conservative treatment”). Defendant argues

5 that plaintiff’s symptoms improved with conservative treatment such as physical

6 therapy and medication, and that this was the bulk of her treatment. D. Mem. at 7-

7 8. Even so, the ALJ’s finding that plaintiff’s symptoms were controlled with

8 conservative treatment, which clearly was not entirely the case given her surgeries.

9 Thus, the ALJ erred in disregarding plaintiff's arthroscopic surgery and carpal

10 tunnel release surgery when discounting plaintiff’s subjective complaints.

11 The ALJ also discounted plaintiff’s testimony because there was no

12 objective medical evidence from the alleged period of disability to support

13 plaintiff’s purported limitations. AR at 35-38. The lack of objective medical

14 evidence to support allegations of limitations is a factor that may be considered

15 when evaluating credibility, but it is insufficient by itself. See Rollins v.

16 Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (lack of corroborative objective

17 medicine may be one factor in evaluating credibility); Bunnell v. Sullivan, 947

18 F.2d 341,345 (9th Cir. 1991) (an ALJ “may not reject a claimant’s subjective

19 complaints based solely on a lack of objective medical evidence to fully

20 corroborate the alleged severity of pain”). Accordingly, this reason for rejecting

21 plaintiff’s testimony is insufficient by itself.

22 Defendant argues that plaintiff’s activities of daily living constituted a

23 reason supported by substantial evidence for discounting plaintiff’s symptom

24 testimony. D. Mem. at 9-11. But as plaintiff correctly states, “the ALJ noted

25 [plaintiff’s] activities of daily living in assessing her mental capacity for

26 functioning in the specific category of adapting or managing one’s self,” not in

27 evaluating her symptom testimony. P. Reply at 10; see AR at 33. Likewise,

28

1 plaintiff’s work during the relevant period was not a reason given by the ALJ to

2 discount plaintiff’s testimony. See Connett v. Barnhart, 340 F.3d 871, 874 (9th

3 Cir. 2003) (reviewing court “is constrained to review the reasons the ALJ asserts”

4 and finding error where court affirmed ALJ’s decision “based on evidence that the

5 ALJ did not discuss”).

6 Accordingly, the ALJ failed to provide clear and convincing reasons

7 supported by substantial evidence to discount plaintiff’s testimony.

8 V.

9 REMAND IS APPROPRIATE

10 The decision whether to remand for further proceedings or reverse and award

11 benefits is within the discretion of the district court. McAllister v. Sullivan, 888

12 F.2d 599, 603 (9th Cir. 1989). Typically, in accordance with the “ordinary remand

13 rule,” the reviewing court will remand to the Commissioner for additional

14 investigation or explanation upon finding error by the ALJ. Treichler v. Comm’r,

15 775 F.3d 1090, 1099 (9th Cir. 2014). Nonetheless, it is appropriate for the court to

16 exercise its discretion to direct an immediate award of benefits where: “(1) the

17 record has been fully developed and further administrative proceedings would

18 serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons

19 for rejecting evidence, whether claimant testimony or medical opinions; and (3) if

20 the improperly discredited evidence were credited as true, the ALJ would be

21 required to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d

22 995, 1020 (9th Cir. 2014) (setting forth three-part credit-as-true standard for

23 remanding with instructions to calculate and award benefits). But where there are

24 outstanding issues that must be resolved before a determination can be made, or it

25 is not clear from the record that the ALJ would be required to find a plaintiff

26 disabled if all the evidence were properly evaluated, remand for further

27 proceedings is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th

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1 || Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition,

2 | the court must “remand for further proceedings when, even though all conditions

3 || of the credit-as-true rule are satisfied, an evaluation of the record as a whole creates

4 || serious doubt that a claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021.

5 || Here, remand is required because the ALJ failed to fully develop the record and

6 || failed to provide clear and convincing reasons for discounting plaintiff's testimony.

7 || On remand, the ALJ should obtain at least one expert medical opinion regarding all

8 || the relevant medical records. The ALJ should also reconsider plaintiffs subjective

9 || complaints and either credit her testimony or provide clear and convincing reasons

10 || supported by substantial evidence for rejecting it. The ALJ shall then reassess

11 } plaintiff's RFC and proceed through steps four and five to determine what work, if

12 } any, plaintiff was capable of performing.

13 VI.

14 CONCLUSION

15 IT IS THEREFORE ORDERED that Judgment shall be entered

16 || REVERSING the decision of the Commissioner denying benefits, and

17 | REMANDING the matter to the Commissioner for further administrative action

18 || consistent with this decision.

19

20 || DATED: March 29, 2023 LRP

21 Nome

22 Cinited States Magistrate Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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