Robert M. Nakagawa v. Carolyn W. Colvin

Filing 28

MEMORANDUM OPINION AND ORDER by Magistrate Judge John D. Early. IT THEREFORE IS ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings consistent with this Order. (twdb)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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ROBERT M. NAKAGAWA,

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Plaintiff,

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v.
NANCY A. BERRYHILL,1 Acting
Commissioner of Social Security,

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Defendant.

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) Case No.: CV 16-05512-JDE
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) MEMORANDUM OPINION AND
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) ORDER
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Plaintiff Robert M. Nakagawa (“Plaintiff”) filed a Complaint on July 23,

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2016, seeking review of the Commissioner’s denial of his application for

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disability insurance benefits (“DIB”) and supplemental security income

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(“SSI”). The parties filed consents to proceed before the undersigned

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Magistrate Judge. In accordance with the Court’s Order Re: Procedures in

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Social Security Appeal, the parties filed a Joint Stipulation (“Jt. Stip.”) on June

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20, 2017, addressing their respective positions. The Court has taken the Joint

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Nancy A. Berryhill, now the Acting Commissioner of Social Security (“Defendant”
or “Commissioner”), is substituted in as defendant. See 42 U.S.C. § 405(g).
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Stipulation under submission without oral argument and as such, this matter

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now is ready for decision.

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I.

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BACKGROUND

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On January 3, 2014, Plaintiff applied for DIB and SSI, alleging disability

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beginning December 26, 2012. (Administrative Record [“AR”] 182-93.) After

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his application was denied initially (AR 107-12), Plaintiff requested an

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administrative hearing, which was held on March 16, 2016. (AR 43-78, 115-

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17.) Plaintiff, represented by counsel, appeared and testified at the hearing

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before an Administrative Law Judge (“ALJ”). (AR 43-78.)
On March 28, 2016, the ALJ issued a partially favorable decision. (AR

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18-31.) The ALJ found that Plaintiff had not engaged in substantial gainful

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activity since the alleged onset date. (AR 24.) The ALJ determined that prior

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to November 1, 2014, Plaintiff had the following medically determinable

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impairments: history of hepatitis A and C; diabetes; history of hernia, status

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post remote surgical intervention; history of substance abuse; and history of

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depression. The ALJ, however, also found that none of these impairments or

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combination of impairments significantly limited the ability to perform basic

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work-related activities for 12 consecutive months, and therefore, Plaintiff did

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not have a severe impairment or combination of impairments prior to

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November 1, 2014. (AR 25-28.)

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The ALJ additionally determined that, beginning on November 1, 2014,

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Plaintiff had the following severe impairment: renal cell carcinoma. (AR 28.)

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The ALJ found that Plaintiff did not have an impairment or combination of

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impairments that met or medically equaled a listed impairment. (AR 29.) The

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ALJ found that, since November 1, 2014, Plaintiff had the residual functional

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capacity (“RFC”) to perform light work, with the following limitations.

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Plaintiff could: (1) lift and carry 10 pounds frequently and 20 pounds
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occasionally; (2) sit for four hours cumulatively in an eight-hour period; (3)

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stand and walk for four hours cumulatively in an eight-hour period with

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frequent breaks; and (4) could occasionally bend. (AR 29.) The ALJ further

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found that, since November 1, 2014, Plaintiff was unable to perform any past

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relevant work (AR 29), and considering his age, education, work experience,

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and RFC, there were no jobs that existed in significant numbers in the national

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economy that Plaintiff could perform. (AR 30.) The ALJ concluded that

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Plaintiff was not disabled prior to November 1, 2014, but became disabled on

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that date and has continued to be disabled through the date of the decision.

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(Id.)

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Plaintiff filed a request with the Appeals Council for review of the ALJ’s

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decision. (AR 15-17.) On May 27, 2016, the Appeals Council denied Plaintiff’s

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request for review, making the ALJ’s decision the Commissioner’s final

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decision. (AR 1-4.) This action followed.

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II.

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STANDARD OF REVIEW

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Under 42 U.S.C. § 405(g), a district court may review the

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Commissioner’s decision to deny benefits. The ALJ’s findings and decision

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should be upheld if they are free from legal error and supported by substantial

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evidence based on the record as a whole. Brown-Hunter v. Colvin, 806 F.3d

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487, 492 (9th Cir. 2015) (as amended); Parra v. Astrue, 481 F.3d 742, 746 (9th

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Cir. 2007). Substantial evidence means such relevant evidence as a reasonable

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person might accept as adequate to support a conclusion. Lingenfelter v.

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Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less

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than a preponderance. Id. To determine whether substantial evidence supports

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a finding, the reviewing court “must review the administrative record as a

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

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from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720
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(9th Cir. 1998). “If the evidence can reasonably support either affirming or

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reversing,” the reviewing court “may not substitute its judgment” for that of

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the Commissioner. Id. at 720-21; see also Molina v. Astrue, 674 F.3d 1104,

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1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than one

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rational interpretation, [the court] must uphold the ALJ’s findings if they are

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supported by inferences reasonably drawn from the record.”). However, a

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court may review only the reasons stated by the ALJ in his decision “and may

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not affirm the ALJ on a ground upon which he did not rely.” Orn v. Astrue,

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495 F.3d 625, 630 (9th Cir. 2007).

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Lastly, even when the ALJ commits legal error, the Court upholds the

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decision where that error is harmless. Molina, 674 F.3d at 1115. An error is

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harmless if it is “inconsequential to the ultimate nondisability determination,”

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or if “the agency’s path may reasonably be discerned, even if the agency

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explains its decision with less than ideal clarity.” Brown-Hunter, 806 F.3d at

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492 (citation omitted).

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III.

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DISCUSSION

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Plaintiff contends that the ALJ failed to properly consider the medical

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evidence in finding that he did not suffer from a medically determinable severe

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impairment prior to November 1, 2014. (See Jt. Stip. at 3.)

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At step two of the sequential evaluation process, the ALJ determines

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whether the claimant has any severe, medically determinable impairment or

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combination of impairments that meets the durational requirement. See 20

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C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Smolen v. Chater, 80 F.3d

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1273, 1289-90 (9th Cir. 1996). In assessing severity, the ALJ must determine

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whether the claimant’s medically determinable impairment or combinations of

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impairments significantly limits his ability to do basic work activities. See

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Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). Step two is a “de
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minimis screening device to dispose of groundless claims.” Smolen, 80 F.3d at

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1290. A medically determinable impairment or combination of impairments

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may be found “not severe only if the evidence establishes a slight abnormality

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that has no more than a minimal effect on an individual’s ability to work.”

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Webb, 433 F.3d at 686 (quoting Smolen, 80 F.3d at 1290). The ALJ “may find

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that a claimant lacks a medically severe impairment or combination of

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impairments only when [that] conclusion is ‘clearly established by medical

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evidence.’” Id. at 687 (citation omitted).
Here, the ALJ found that Plaintiff had a severe impairment beginning on

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November 1, 2014, but did not have a severe impairment or combination of

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impairments prior to that date. (AR 28.) Although the ALJ acknowledged that

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Plaintiff had medically determinable impairments prior to November 1,

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2014—history of hepatitis A and C; diabetes; history of hernia, status post

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remote surgical intervention; history of substance abuse; and history of

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depression—the ALJ found that Plaintiff did not have an impairment or

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combination of impairments that significantly limited his ability to perform

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basic work-related activities for 12 consecutive months. (AR 25-28.) As

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explained below, the Court concludes that the ALJ erred in finding that

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Plaintiff’s mental impairment was not severe.

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A.

The ALJ erred by finding Plaintiff’s mental impairment was not

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severe at step two.

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The ALJ found that Plaintiff had medically determinable mental

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impairments, but that those impairments were not severe. The ALJ found that

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Plaintiff had no more than mild limitation in any of the first three broad

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functional areas used to determine severity and no episodes of decompensation

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that have been of extended duration in the fourth area: activities of daily living;

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social functioning; concentration, persistence, or pace; and episodes of

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decompensation. (AR 27-28.) As to Plaintiff’s depression, the ALJ concluded
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that it was stabilized when he was compliant with medication and that he

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mostly functioned well when he was in a stable living environment. (AR 26-

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27.) With respect to Plaintiff’s substance abuse, the ALJ concluded that there

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was no evidence that his drug usage was ever assessed in terms of what bearing

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it had on his mental health treatment, and it was immaterial. (AR 27.)

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Plaintiff contends that the ALJ’s finding of no severe mental impairment

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was erroneous because he lacked an evidentiary basis for rejecting the opinions

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of state agency physicians Dr. Jay Rankin and Dr. Jon Etienne Mourot. (See

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Jt. Stip. at 8.)

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Dr. Rankin concluded that Plaintiff had an affective disorder, and

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described mild restrictions in activities of daily living, and moderate difficulties

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in maintaining social functioning and maintaining concentration, persistence,

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or pace. (AR 86.) Dr. Mourot concluded that Plaintiff had sustained

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concentration and persistence limitations. In particular, Dr. Mourot found that

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Plaintiff was moderately limited in his ability to carry out detailed instructions

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and ability to maintain attention and concentration for extended periods. (AR

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89.) Dr. Mourot also found that Plaintiff had social interaction limitations. Dr.

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Mourot concluded that Plaintiff was moderately limited in his ability to

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interact appropriately with the general public and ability to accept instructions

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and respond appropriately to criticism from supervisors. (AR 90.) Dr. Mourot

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concluded that Plaintiff had the capacity for work where interpersonal contact

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was incidental to work performed; complexity of tasks was learned and

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performed by rote, few variables, little judgment; and supervision required was

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simple, direct, and concrete. (AR 90.)

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Although the ALJ acknowledged that a consultative examining

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psychiatric source and non-examining physicians assigned mild to moderate

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limitations with regard to Plaintiff’s depressive disorder, he nevertheless found

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that Plaintiff’s treatment record was incompatible with any limitations that
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would last for a 12-month period. (AR 28.) As explained, he also concluded

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that Plaintiff’s history of substance abuse was immaterial. (AR 27.) The ALJ

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gave no weight to the opinion of Dr. Rankin that Plaintiff had moderate levels

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of impairment in concentration, persistence, or pace and in social function

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because it was “inconsistent with mental status examinations showing

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improvement with treatment and the source did not examine the claimant or

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have the benefit of the expanded record prior to the established onset date.”

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For the same reasons, the ALJ gave no weight to the opinions of Dr. Mourot

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finding moderate limitations in functioning. (Id.) These findings are not

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supported by the record.
First, the ALJ rejected Dr. Rankin and Dr. Mourot’s opinions because

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they were inconsistent with the examinations showing improvement with

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treatment. However, the ALJ does not cite to any evidence in the medical

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record demonstrating that Plaintiff’s mental status examinations showed

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improvement with treatment and the only record cited by the ALJ in support

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of her finding that Plaintiff did well when he was compliant with his

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medication was from outside the relevant time frame. In particular, the ALJ

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referred to a May 6, 2015 psychiatric evaluation after Plaintiff was placed on a

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Cal. Welf. & Inst. Code § 5150 hold as a danger to self. The evaluation noted

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that Plaintiff “used to be on Abilify and Seroquel,” although there was no

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finding that discontinuing these medications was the cause of Plaintiff’s

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symptoms. (AR 621-22.) At that time, Plaintiff was described as hopeless,

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helpless, depressed, and suicidal, and was diagnosed with paranoid

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schizophrenia with acute exacerbation. (Id.) When the treating physician

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evaluated Plaintiff at admission, he concluded that Plaintiff would need to be

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hospitalized four to six days. (AR 622.)

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Plaintiff’s medical records prior to November 1, 2014 does not appear to
reflect any connection between Plaintiff’s medication compliance and mental
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health. When read as a whole, the treatment notes do not undermine Drs.

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Rankin and Mourot’s opinions. See Ghanim v. Colvin, 763 F.3d 1154, 1164

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(9th Cir. 2014). The medical records consistently reveal that, despite some

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occasional periods of improvement, Plaintiff continued to suffer from mental

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health issues. Id.

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The ALJ also rejected Drs. Rankin and Mourot’s opinions on the

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grounds that they “did not examine the claimant or have the benefit of the

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expanded record prior to the established onset date.” (AR 28.) Again,

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however, the ALJ did not cite to any medical evidence contradicting their

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findings, and a review of Plaintiff’s medical records reflects a long history of

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mental health treatment for depression, and that Plaintiff’s treating physicians’

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opinions were consistent with the state agency physicians’ findings. Plaintiff

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has been repeatedly diagnosed with a major depressive disorder with and

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without psychotic features. (See, e.g., AR 380, 384, 389, 419, 561-62.) For

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example, in March 2013, Plaintiff was admitted to the Kedren Community

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Mental Health Center for treatment, after the USC Medical Center Emergency

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Department placed a 5150 hold on Plaintiff because he was exhibiting suicidal

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thoughts. (AR 299-301, 430-34.) Dr. Anahit Matevosyan noted that, at

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admission, Plaintiff was depressed, unkempt, disheveled with poor activities of

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daily living, and had used drugs the day before his hospitalization. (AR 431.)

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Plaintiff was discharged more than a month later, after being diagnosed with a

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major depressive disorder, recurrent, severe, without psychotic features and

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polysubstance dependence, in early, full remission. (AR 433.) At that time, his

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response to treatment was listed as “fair.” (Id.) In May 2013, Plaintiff again

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was diagnosed with a major depressive disorder without psychotic features.

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(AR 384, 389.) At that time, his mood was described as hopeless and anxious;

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he exhibited paranoid delusions; his speech was slowed; his memory was

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impaired; and he exercised poor impulse control. (AR 383.) Plaintiff’s treating
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physician noted that Plaintiff’s depression caused difficulty with daily

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activities, isolation, maintaining housing, and working. (AR 380, 384.)

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Plaintiff’s hopelessness and fear of people caused problems with others in the

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community. (AR 380.) He also noted that Plaintiff had poor judgment, was

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easily persuaded, could not handle stress and boredom, and suffered from

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anger issues. (AR 384.) His physician expressly noted that substance abuse was

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a precipitating factor that caused Plaintiff’s symptoms to manifest. (AR 381.)

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Although the treating physician noted several medications Plaintiff was taking,

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the physician did not indicate that non-compliance was an issue. (Id.)

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Plaintiff’s progress notes following the May 2013 assessment indicated that

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Plaintiff continued to suffer from feelings of hopelessness, stress, and

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depression (AR 419 (progress note dated 6/13/13) 421 (progress note dated

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5/23/13)), difficulty interacting with others (AR 420 (progress note dated

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5/31/13)), disorganized thoughts and poor impulse control (AR 426 (progress

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note dated 5/15/13)), and poor concentration and insight (AR 428 (progress

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note dated 5/6/13)).

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Plaintiff’s mental health treatment continued into 2014. In May 2014,

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Plaintiff again was diagnosed with a major depressive disorder, recurrent,

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moderate. (AR 559, 561.) Although he was medication compliant at that time,

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he still noted difficulty with focus and concentration. (Id.) Dr. Alonso Martin

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Del Campo found that Plaintiff had poor eye contact, insight, and judgment;

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his affect was constricted; and his symptoms were under “moderately good

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control” with the current medications. (AR 560-61.) In July 2014, Plaintiff

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reported feeling angry and paranoid. (AR 562-63.) He indicated that other

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people triggered his episodes of anger. (AR 562.) Dr. Martin Del Campo

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indicated that Plaintiff’s insight and judgment remained poor and his thought

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processes were tangential. He diagnosed Plaintiff with a major depressive

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disorder, recurrent, moderate with psychotic features. (AR 563.) The progress
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notes reflected that Plaintiff demonstrated a clear understanding and

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willingness to take his medication. (Id.) Later in the month, Plaintiff reported

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that his medication was not helping his symptoms and caused him to feel

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detached with cloudy thinking. (AR 564.) In October 2014, Plaintiff’s progress

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notes reflected improvement with a new medication, but that he continued to

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suffer from mood swings, and his insight and judgment remained poor. (AR

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568-69.)
In sum, the ALJ’s severity determination is not supported by substantial

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evidence. The medical evidence did not clearly establish the absence of a

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medically determinable, severe mental impairment, or combination of

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impairments. See Webb, 433 F.3d at 687. An ALJ may not selectively cite to

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only those portions of the medical record favorable to a decision and ignore

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less favorable evidence. See, e.g., Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th

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Cir. 2014). In this case, the ALJ erred by applying an overly stringent legal

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standard to find that Plaintiff had no medically determinable, severe

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impairment, or combination of impairments.

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B.

The ALJ did not err in rejecting the opinions of Dr. Alexandre and

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Dr. Sauer.

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As explained, the ALJ found that prior to November 1, 2014, Plaintiff

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had the following medically determinable physical impairments: history of

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hepatitis A and C; diabetes; and history of hernia, status post remote surgical

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intervention, but that these impairments or combination of impairments did

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not significantly limit Plaintiff’s ability to perform basic work-related activities.

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(AR 25.) In reaching this decision, the ALJ reasoned that although Plaintiff’s

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medically determinable impairments could have been reasonably expected to

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produce the alleged symptoms, Plaintiff’s statements concerning the intensity,

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persistence and limiting effects of the alleged symptoms were not entirely

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credible. (AR 26.) In addition, the ALJ noted that, prior to the onset date,
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physical examinations showed that Plaintiff had good diabetic control, good

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motor strength, walked normally, use his upper extremities without

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impairment, had no manipulative impairment, and no evidence of an ankle

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impairment or foot deformity. Plaintiff’s diabetes and hypertension were

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controlled with medication. The ALJ also found that Plaintiff had a history of

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hepatitis A and C and history of hernia with surgical intervention, but the

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hepatitis A resolved and although he needed to undergo treatment for hepatitis

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C, he was not experiencing any symptoms associated with it. (AR 26.) The

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ALJ noted that the medical records reflected that his history of hernia repair

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went back to 1980 and he had since worked at the medium to heavy exertional

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level. (Id.) He rejected the opinions of treating physician Dr. Lucien

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Alexandre, who concluded that Plaintiff was temporarily unemployable,

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because they were inconsistent and there was no credible correlation from the

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surrounding and overall record, and the opinions of state agency physician Dr.

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Lucy Sauer because her findings and opinions in favor of a range of medium

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work were not supported by the record. (AR 28.)

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Plaintiff contends that the ALJ erred in giving no weight to the opinions

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of Dr. Alexandre and Dr. Sauer. Defendant, in turn, contends that the ALJ’s

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conclusions were supported by substantial evidence and free from reversible

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legal error. As explained below, the ALJ did not err in rejecting these opinions.

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A treating physician’s opinions are entitled to greater weight because a

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treating physician is employed to cure and has a greater opportunity to know

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and observe the patient as an individual. See Magallanes v. Bowen, 881 F.2d

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747, 751 (9th Cir.1989). “The treating physician's opinion is not, however,

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necessarily conclusive as to either a physical condition or the ultimate issue of

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disability.” Id. “The ALJ may disregard the treating physician’s opinion

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whether or not that opinion is contradicted.” Id. For instance, “[t]he ALJ need

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not accept the opinion of any physician . . . if that opinion is brief, conclusory,
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and inadequately supported by clinical findings.” Bray v. Comm’r of Soc. Sec.

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Admin., 554 F.3d 1219, 1228 (9th Cir. 2009); Tonapetyan v. Halter, 242 F.3d

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1144, 1149 (9th Cir. 2001). To reject the uncontradicted opinion of a treating

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physician, the ALJ must provide “clear and convincing reasons that are

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supported by substantial evidence.” Bayliss v. Barhnart, 427 F.3d 1211, 1216

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(9th Cir. 2005). Where, as here, the treating physician’s opinion is

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controverted, the “ALJ may only reject it by providing specific and legitimate

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reasons that are supported by substantial evidence.” Id.

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i.

Dr. Alexandre

In February and May 2013, Dr. Alexandre completed disability

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assessments, finding that Plaintiff was temporarily disabled and unemployable,

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meaning “less than 12 months.” (AR 478; see also AR 473, 483.) Dr. Alexandre

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completed Referral for Physical Health Disability Assessment Services Forms,

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indicating that Plaintiff had a history of hypertension, major depression,

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diabetes, hepatitis B and C, a hernia, which required surgical intervention in

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1983, tobacco use, and wore glasses. (AR 474-75, 484-85.) He indicated that

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Plaintiff currently suffered from an inguinal hernia, a major depressive

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disorder, hepatitis C, diabetes, and hypertension. (AR 473, 483, 486.) In the

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February 2013 assessment, Dr. Alexandre noted that Plaintiff was not stable

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and needed to pursue a “surgical solution,” presumably for his hernia,

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although it is not specified. (AR 487.) On the May 2013 disability form, Dr.

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Alexandre indicated that Plaintiff was temporarily unemployable and listed

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inguinal hernia, diabetes, and major depressive disorder/psychosis. (AR 473.)

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An additional assessment form, completed by Dr. Alexandre’s colleague in

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September 2013, indicated that Plaintiff could only perform sedentary work

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because of an inguinal hernia. (AR 457.) The physician noted that Plaintiff had

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surgery for the hernia in the 1980s, but it failed. He noted bilateral wheezing

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and a “tender [illegible] mass.” (AR 460-61.)
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The ALJ rejected these opinions because they were inconsistent and

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there was no credible correlation from the surrounding overall record. (AR 28.)

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An ALJ is permitted to reject a treating physician’s opinion that is

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unsupported by the record as a whole. Batson v. Comm’r of the Soc. Sec.

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Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); see also Shavin v. Comm’r of

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Soc. Sec. Admin., 488 F. App’x 223, 224 (9th Cir. 2012) (ALJ may reject

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physician’s opinion by “noting legitimate inconsistencies and ambiguities in

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the doctor’s analysis or conflicting lab test results, reports, or testimony”

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(internal citation omitted)). Although Dr. Alexandre and his colleague noted

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several diagnoses, it appears their ultimate disability conclusions were based

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on their assessment that Plaintiff continued to suffer from complications from

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the hernia, as this was the only condition listed on all three assessments. (See

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AR 457, 473, 483.) Even assuming that the hernia was the basis for the

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conclusion, their findings were inconsistent. Dr. Alexandre’s progress note

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from February 2013 made no reference to a hernia, but then he indicated in his

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February 2013 assessment that Plaintiff was unstable and needed to pursue a

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surgical solution. (AR 482, 487.) He did not clarify why surgery was necessary

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or explain the nature of any “surgical solution.” Nor did he reconcile his

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“temporary” disability assessment with the need for surgical intervention. The

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September 2013 assessment noted that Plaintiff had a failed hernia surgery in

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1982, and Plaintiff presented with a tender mass and wheezing. (AR 460.)

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Nevertheless, the treating physician concluded that Plaintiff could perform

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sedentary work and was not eligible for Social Security benefits. (AR 457.)

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Further, even assuming that these physicians’ conclusions were not

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inconsistent, the overall medical record did not support their disability

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assessments. In this case, the other medical records from 2013 do not reflect

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any ongoing issues with respect to a hernia. Indeed, Plaintiff did not even list

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the hernia as a medical condition limiting his ability to work. (AR 41, 209.)
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Plaintiff’s progress notes from the Wesley Health Centers, dated January 2,

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2013, February 25, 2013, June 10, 2013, September 16, 2013, and November

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27, 2013 all list a number of chronic issues, but none mention continuing

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problems from the hernia. (AR 450, 456, 464, 479, 489.) By July 2014, Plaintiff

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was jogging almost daily. (AR 580.) At that time, his physical examination did

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not reveal any masses, tenderness, or limitations caused by a hernia. (AR 580-

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81.) In October 2014, Plaintiff’s treating physician found no tenderness or

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masses in the abdominal area. (AR 591.) The overall medical records merely

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reflect that Plaintiff had surgery for the hernia in either the 1980s or 1990s, and

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do not show any limitations associated with the hernia or resulting surgery.

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(See, e.g., 450, 456, 464, 479, 489, 556, 572, 580.)

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In sum, the Court finds that the ALJ did not err in rejecting Dr.
Alexandre’s opinion.

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ii.

Dr. Sauer

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On August 14, 2014, state agency physician Dr. Sauer found that

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Plaintiff had the following medically determinable impairments: diabetes,

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hypertension, and hepatitis C. Dr. Sauer further noted that the medical records

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showed a left inguinal hernia and mental impairments. (AR 88.) Dr. Sauer

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concluded that Plaintiff could occasionally lift and/or carry 50 pounds;

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frequently lift and/or carry 25 pounds; stand and/or walk about six hours in

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an eight-hour workday; sit for about six hours in an eight-hour workday;

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perform unlimited pushing and/or pulling, other than as noted for lifting and

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carrying; and did not have any postural, manipulative, visual, communicative,

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or environmental limitations. (AR 88.)

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Again, the medical records do not support these functional limitations.

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Other than Dr. Sauer’s and Dr. Alexandre’s (and his colleague’s) conclusory

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opinions, Plaintiff has not cited to any evidence in his medical record

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demonstrating any significant work-related limitations based on his physical
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impairments. As explained, except for the disability assessments prepared by

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Dr. Alexandre’s clinic, Plaintiff’s medical records do not reflect any ongoing

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issues with respect to the hernia repaired years earlier. Similarly, the medical

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records do not reflect any ongoing issues with respect to Plaintiff’s other

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impairments. It is undisputed that Plaintiff had diabetes and hepatitis A and C.

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“But mere diagnosis of an impairment—or even treatment for it—is

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insufficient to establish severity at step two, especially when the objective

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medical evidence in the record fails to show any work-related limitations

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connected to the impairment.” Townsend v. Colvin, 2015 WL 6673677, at *3

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(C.D. Cal. Oct. 30, 2015); see also Harvey v. Colvin, 2013 WL 3899282, at *5

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(C.D. Cal. July 29, 2013) (citing Matthews v. Shalala, 10 F.3d 678, 680 (9th

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Cir. 1993)). There was no medical evidence in the record that supports Dr.

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Sauer’s functional limitations. As the ALJ noted, Plaintiff’s diabetes and

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hypertension were under control with medication and diet modifications (see,

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e.g., AR 50, 450, 466, 468-69, 480, 490, 514, 516, 534, 580, 582) and his

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hepatitis A had completely resolved (see AR 48, 590-91). With respect to

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Plaintiff’s allegation that the hepatitis C caused fatigue, although the record

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contains a few sporadic reports of fatigue, Plaintiff has not met his burden of

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showing how this intermittent symptom prevented him from performing work-

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related functions for a 12–month period. (See AR 328 (assessment dated

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2/12/12, indicating that hepatitis C undetectable, no need to treat), 469

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(progress note dated 5/13/13, indicating Plaintiff was negative for increased

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fatigue), 502 (progress note dated 7/18/12, noting fatigue), 580 (progress note

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dated 7/18/14, indicating that Plaintiff reported intermittent fatigue, but

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thought it was stress-related), 590-91 (progress note dated 10/3/14 for hepatitis

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C, noting that Plaintiff did not appear acutely ill, no nausea or abdominal pain,

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well nourished, no fever or yellowish skin or eyes, no fatigue, and declined a

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liver biopsy). The examining medical expert testified at the administrative
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1

hearing that, although Plaintiff had the antibody for hepatitis C, it had not

2

affected him yet, and it should clear up with the antivirus. (AR 49.)
The Court finds that the ALJ did not err in rejecting Dr. Sauer’s opinion.

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4

C.

Remand is appropriate.

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The decision whether to remand for further proceedings is within this

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Court’s discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000)

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(as amended). Where no useful purpose would be served by further

8

administrative proceedings, or where the record has been fully developed, it is

9

appropriate to exercise this discretion to direct an immediate award of benefits.

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See Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); Harman, 211 F.3d

11

at 1179 (noting that “the decision of whether to remand for further proceedings

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turns upon the likely utility of such proceedings”).

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Here, the proper remedy is reversal and remand for further

14

administrative proceedings. On remand, the Commissioner shall direct the

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ALJ to (1) conduct a supplemental hearing and fully develop the record; (2)

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reevaluate Plaintiff’s medically determinable impairments at step two and

17

continue the sequential evaluation process; and (3) reconsider whether Plaintiff

18

was disabled prior to November 1, 2014.

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IV.

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ORDER

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Pursuant to sentence four of 42 U.S.C. § 405(g), IT THEREFORE IS

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ORDERED that Judgment be entered reversing the decision of the

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Commissioner of Social Security and remanding this matter for further

24

administrative proceedings consistent with this Order.

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Dated:

July 28, 2017

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______________________________
JOHN D. EARLY
United States Magistrate Judge

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