Reveles v. Commissioner of Social Security Administration

Filing 20

ORDER - IT IS THEREFORE ORDERED that Stevan Reveles' claim on behalf of Lucile Reveles for disability is remanded to the Commissioner of the Social Security Administration for an award of benefits. IT IS FURTHER ORDERED that the Clerk of the Cou rt shall enter judgment accordingly. The judgment will serve as the mandate of this Court. IT IS FURTHER ORDERED that the Clerk of the Court shall send a copy of this Order to Judge Jennifer Horne, Regional Chief Administrative Law Judge, SSA Region IX, 555 Battery Street, 5th Floor, San Francisco, CA 94111. (See document for further details). Signed by Magistrate Judge David K Duncan on 1/9/18. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Stevan Reveles, No. CV-17-1024-PHX-DKD Plaintiff, 10 11 v. 12 Commissioner of Social Security Administration, 13 ORDER Defendant. 14 15 16 Stevan Reveles, in his capacity as substitute party, appeals from the 17 Commissioner’s denial of Lucile Reveles’ claim for Title II disability benefits.1 (Doc. 1) 18 This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and, with the parties’ consent 19 to Magistrate Judge jurisdiction, pursuant to 28 U.S.C. § 636(c). (Doc. 16) Because the 20 Court concludes that the ALJ’s decision contains harmful errors, and that further 21 proceedings are not useful or necessary, the Court remands for benefits. 22 Factual and Procedural History 23 Lucile Reveles first applied for disability benefits in September 2009, alleging an 24 onset date of September 2006. (Tr. 113) At the time of her hearing in April 2011, the 25 administrative record contained her treatment records through February 2010. (Tr. 43, 26 118) 27 Decision”). As relevant here, the First Decision concluded that Reveles’ fibromyalgia, In June 2011, the ALJ issued a decision denying Reveles benefits (“First 28 1 This Order will refer to Stevan and Lucile Reveles as “Reveles.” 1 tendonitis of the knees, insulin dependent diabetes, asthma, and obesity were severe but 2 that she was capable of performing less than the full range of light work. (Tr. 115-16) 3 The First Decision found that Reveles had been treated for “possible sarcoidosis” and 4 categorized it as nonsevere. (Tr. 116) 5 In 2012, Reveles again filed Title II and Title XVI applications with an alleged 6 onset date of October 1, 2011 (“Second Application”).2 (Tr. 21, 102, 395-408, 421) To 7 obtain benefits from her Second Application, Reveles had to rebut a presumption of 8 continuing non-disability and to establish “changed circumstances” pursuant to Chavez v. 9 Bowen, 844 F.2d 691 (9th Cir. 1988), and the Commissioner’s Acquiescence Ruling 97- 10 4(9). Moreover, because Reveles’ Title II benefits ended on December 31, 2011, her 11 Title II benefits depended on her showing that she was disabled between October 1 and 12 December 31, 2011 (“Relevant Period”). (Tr. 23, 102, 421) 13 Lucile Reveles died on May 26, 2015. Her Certificate of Death listed her 14 immediate cause of death as encephalopathy and listed secondary causes as respiratory 15 failure, sepsis, and diabetes. (Tr. 416) As relevant here, her death extinguished her Title 16 XVI claim and left only her Title II claim to be pursued by her son’s father, Stevan 17 Reveles. 18 Medical Records from the Relevant Period. During the Relevant Period, Reveles 19 was hospitalized twice. First, Reveles was admitted at Banner Thunderbird Medical 20 Center on September 29, 2011. In other words, she was hospitalized at the start of the 21 Relevant Period. (Tr. 10222-247, 10592-670) When she was discharged on October 2, 22 2011, her primary diagnoses were listed as “(1) abdominal pain; (2) history of 23 sarcoidosis, diabetes mellitus, chronic pain; (3) narcotic dependency. (Tr. 10225) 24 She was again admitted at Banner Thunderbird Medical Center on October 28, 25 2011. (Tr. 10450-474) She was discharged on November 2, 2011, and her primary 26 diagnoses were “(1) shortness of breath, multifactorial, likely secondary to a combination 27 2 28 The Court notes that the ALJ’s decision states Reveles’ onset date was November 1, 2007. (Tr. 21) Reveles, through counsel, subsequently amended the onset date to October 1, 2011. (Tr. 421) -2- 1 of pulmonary hypertension and sarcoid [and] (2) chest pain, atypical” and her secondary 2 diagnoses were “(1) sarcoid, history of; (2) diabetes mellitus, poorly controlled, 3 exacerbated by steroids; (3) anemia; (4) recurrent fevers of unclear etiology; (5) chronic 4 back pain; (6) asthma; (7) migraine headaches.” (Tr. 10452). 5 Reveles was an established patient of Shashi J. Goel, M.D., before the Relevant 6 Period. 7 appointments for on-going pain and follow-up with Dr. Goel. (Tr. 2309-15) In February 8 2015, Dr. Goel wrote a letter that stated, “Lucile was under my care for many years. She 9 had multiple medical problems. She was totally disabled and unable to work during 2010 10 and 2011.” (Tr. 10474) In January 2016, Dr. Goel wrote a letter that stated: 11 Lucile Reveles was my patient for several years. She has [sic] multiple medical diagnoses including sarcoidosis, diabetes mellitus with diabetic neuropathy, renal insufficiency and chronic pain. During the time I treated her, she was in a lot of pain. She required numerous hospitalizations due to her medical conditions. 12 13 14 Due to her many medical problems and constant hospitalizations, I believe that she was totally disabled and not able to work the entire time she was under my care. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Between and after her Relevant Period hospitalizations, Reveles had six (Tr. 10874) Reveles received regular treatment with Valley Arthritis Care. (Tr. 1113-65) During the Relevant Period, Reveles had one appointment where she was assessed with hypertension; respiratory disorder sarcoidosis; diabetes mellitus; longstanding inflammatory arthropathy, suspected sarcoid arthropathy; and osteoarthritis. (Tr. 112930) During the Relevant Period, Reveles saw her pain management provider monthly and all three medical records indicate a diagnosis of depression. (Tr. 1035, 1041, 1044) State Agency Review. When reviewing her Second Application in 2013, the State agency reviewing physicians concluded that Reveles’ sarcoidosis and back impairments were severe. They found a Chavez “changed circumstance” during the Relevant Period because of her worsening condition, because medical records that were not reviewed in -3- 1 the First Decision showed a diagnosis of sarcoid arthropathy, and because depression was 2 a newly diagnosed impairment. (Tr. 138) 3 ALJ Hearings. A hearing, set for May 2015, was continued to September 2015 4 because of Reveles’ death. (Tr. 417, 42) At the September 2015 hearing, an orthopedic 5 medical expert was available to testify but the ALJ dismissed him without any testimony. 6 (Tr. 82, 87) At the end of the hearing, the ALJ held the record open for missing medical 7 records.3 Subsequently, Reveles requested a supplemental hearing with a medical expert. 8 (Tr. 102-07, 667) This hearing occurred in January 2016, but no medical experts were 9 scheduled to testify. (Tr. 102-07) 10 In February 2016, the ALJ issued decision that found Reveles had not shown “a 11 changed circumstance material to the determination of disability and the presumption of 12 continuing nondisability has not been rebutted.” (Tr. 21) The ALJ’s decision cited to 13 only two medical records during the Relevant Period and afforded “little weight” to Dr. 14 Goel’s opinion. (Tr. 26-27, 29) 15 Standard of Review 16 This court must affirm the ALJ’s findings if they are supported by substantial 17 evidence and are free from reversible error. Marcia v. Sullivan, 900 F.2d 172, 174 (9th 18 Cir. 1990). 19 preponderance; it is “such relevant evidence as a reasonable mind might accept as 20 adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). In 21 determining whether substantial evidence supports the ALJ’s decision, the court 22 considers the record as a whole, weighing both the evidence that supports and that which 23 detracts from the ALJ’s conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 24 1998). 25 credibility. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Magallanes v. 26 Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is sufficient evidence to support the Substantial evidence is more than a mere scintilla, but less than a The ALJ is responsible for resolving conflicts, ambiguity, and determining 27 28 3 It appears that the ALJ also offered to find Reveles’ disability started on a date after the Relevant Period. Reveles declined. (Tr. 667) -4- 1 ALJ’s determination, the Court cannot substitute its own determination. See Young v. 2 Sullivan, 911 F.2d 180, 184 (9th Cir. 1990). 3 Thus, the Court must affirm the ALJ’s decision where the evidence considered in 4 its entirety substantially supports it and the decision is free from reversible error. 42 5 U.S.C. § 405(g); Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). The Court must 6 do more than merely rubber stamp the ALJ’s decision. Winans v. Bowen, 853 F.2d 643, 7 645 (9th Cir. 1988). However, where the evidence is susceptible to more than one rational 8 interpretation, the ALJ’s decision must be upheld. Magallanes, 881 F.2d at 750. 9 Analysis 10 On appeal, Reveles argues that she did rebut the Chavez presumption by 11 demonstrating “changed circumstances,” that the ALJ should have called a relevant 12 medical expert, and the ALJ should have reviewed most of her medical records from the 13 Relevant Period. (Docs. 17, 19) The Court agrees. 14 Changed Circumstances. As noted above, the State agency’s reviewing physicians 15 found that Reveles had rebutted the Chavez presumption. The ALJ’s decision rejected 16 the opinion of the State agency’s reviewing physicians because “their noted limitations 17 are just not reasonably supported by the available evidence of record, which show 18 noncompliance.” (Tr. 30) This alleged noncompliance is not explained in the ALJ’s 19 decision. 20 inability to manage her insulin-dependent diabetes in September 2012 and June 2013, 21 both after the Relevant Period. (Tr. 27, 29) Moreover, the Court notes that the record is 22 replete with evidence that Reveles’ chronic steroid prescriptions were related to her 23 diabetes and Stevan Reveles testified that Reveles could not afford her medications. (Tr. 24 58, 91, 1134, 10479, 10482, 10483) Not only were the ALJ’s citations to records well 25 after the Relevant Period, this kind of cherry-picking is impermissible. 26 Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014). The only noncompliance referred to in the ALJ’s decision was Reveles’ Ghanim v. 27 Medical Expert. At the September 2015 hearing, a medical expert in orthopedics 28 was available to testify but did not. (Tr. 82, 87) Reveles’ counsel requested a testifying -5- 1 medical expert at the January 2016 supplemental hearing. (Tr. 667) None appeared and 2 counsel requested that the hearing be continued to obtain testimony from a medical 3 expert in endocrinology. (Tr. 104) After some conversation, the ALJ stated, “we won’t 4 need the medical expert this morning, and I don’t really need a medical expert with the 5 field of diabetes. I can read the records as well.” (Tr. 105) 6 Reveles argues that the ALJ’s failure to obtain a medical expert constituted legal 7 error under Social Security’s program policy statements and rules and under Ninth 8 Circuit precedent. (Doc. 17 at 17-18; Doc. 19 at 7-8) The Court agrees. See generally, 9 Diedrich v. Berryhill, 874 F.3d 634, 638 (9th Cir. 2017). 10 Relevant Period Medical Records. The ALJ decision states that “[t]he treatment 11 records reveal [Reveles] received routine, conservative and non-emergency treatment 12 since the alleged onset date. The undersigned had read and considered all the medical 13 evidence in the record.” (Tr. 26) This characterization of the record is so incorrect that it 14 calls into question the ALJ’s assertion that he read and considered all of the medical 15 evidence. As noted above, during the three months of the Relevant Period, Reveles was 16 hospitalized twice for a total of six days for illnesses related to her disability claim, saw 17 her primary care provider six times for on-going management, saw her pain management 18 doctor three times, and saw her arthritis specialist once. None of these records are 19 referenced in the ALJ’s decision. 20 providers are consistent with each other and consistent with her stated secondary causes 21 of death. Moreover, these diagnoses from these various 22 Instead of acknowledging these records, the ALJ decision references just two 23 medical records during the Relevant Period and describes irrelevant portions of them: the 24 non-pain related aspects of one of her monthly appointment with her pain management 25 provider and a MRI of her lumbar spine. (Tr. 26-27 citing Tr. 1045, 1094) This does not 26 constitute substantial evidence. 27 28 Treating Physician. The Court notes that the ALJ’s decision afforded “little weight” to the February 2015 opinion of Reveles’ primary care physician, Dr. Goel, -6- 1 because it was “not supported by objective evidence and it [wa]s inconsistent with the 2 record as a whole.” (Tr. 29) The decision did not address the January 2016 opinion from 3 Dr. Goel. (Tr. 10874) 4 Dr. Goel’s views were entitled to great deference and to reject Dr. Goel’s opinion, 5 the ALJ’s decision needed to provide findings that were supported by clear and 6 convincing reasons based on substantial evidence. Lester v. Chater, 81 F.3d 821, 830 (9th 7 Cir. 1995). The ALJ did not do so. Instead, the ALJ stated that Dr. Goel opined on an 8 issue reserved to the Commissioner and had not “provided objective clinical or diagnostic 9 findings to support the functional assessment.” (Tr. 29) Next, the ALJ stated that Dr. 10 Goel’s conclusion of disability was inconsistent with Reveles’ admitted activities of daily 11 living and inconsistent with the medical record “which show[ed] mostly stable findings 12 when she was compliant with medication.” (Tr. 29) This kind of brief summary, without 13 more, does not constitute the substantial evidence necessary to reject Dr. Goel’s opinion. 14 Reddick, 157 F.3d at 726. Moreover, the Court notes that the ALJ’s failure to address Dr. 15 Goel’s second, consistent opinion was error. See Diedrich v. Berryhill, 874 F.3d 634, 16 638-40 (9th Cir. 2017) (ALJ should have heard testimony from medical advisor). 17 Remand 18 The decision to remand a case for additional evidence or for an award of benefits 19 is within the discretion of this court. Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 20 1989). The court can remand a case with instructions to award benefits when 21 22 23 24 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. 25 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Here, all three parts of this test 26 have been met. First, the record was fully developed for the fixed time period at issue 27 and further administrative proceedings would impermissibly allow the “ALJ to have a 28 mulligan.” Id. at 1021. Second, as described above, the ALJ did not provide a sufficient -7- 1 explanation for failing to review the medical records from the Relevant Period, for 2 rejecting the opinion of State agency’s reviewing physician, and for rejecting the opinion 3 of Reveles’ treating physician. Finally, if the ALJ had provided great weight to the 4 opinion of the agency’s reviewing physician and had incorporated the information 5 contained in the records from the Relevant Period, the ALJ would have found that 6 Reveles was disabled. 7 Professionalism 8 The Court notes that the hearing transcripts in this matter show that ALJ Michael 9 D. Tucevich repeatedly failed to treat Reveles’ counsel with the courtesy and respect that 10 the Court would have expected from a person holding the title judge. (Tr. 82-107) If 11 ALJ Tucevich was a judge subject to oversight by a judicial conduct commission or an 12 active member of a state bar, the Court would refer this matter for further proceedings to 13 the relevant oversight authority. Instead, the Court will direct the Clerk of the Court to 14 send a copy of this Order to the Chief ALJ for her review and any appropriate action. 15 IT IS THEREFORE ORDERED that Stevan Reveles’ claim on behalf of Lucile 16 Reveles for disability is remanded to the Commissioner of the Social Security 17 Administration for an award of benefits. 18 19 IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. The judgment will serve as the mandate of this Court. 20 IT IS FURTHER ORDERED that the Clerk of the Court shall send a copy of 21 this Order to Judge Jennifer Horne, Regional Chief Administrative Law Judge, SSA 22 Region IX, 555 Battery Street, 5th Floor, San Francisco, CA 94111. 23 Dated this 9th day of January, 2018. 24 25 26 27 28 -8-

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