Jesse Velez v. Carolyn W Colvin

Filing 26

MEMORANDUM OPINION AND ORDER by Magistrate Judge John D. Early (mt)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 ) Case No.: EDCV 16-01304-JDE ) Plaintiff, ) v. ) MEMORANDUM OPINION AND NANCY A. BERRYHILL, Acting ) ORDER Commissioner of Social Security, ) ) Defendant. ) _______________________________ ) JESSE VELEZ, 18 I. 19 INTRODUCTION 20 Plaintiff Jesse Velez filed a Complaint on June 20, 2016, seeking review of 21 the Commissioner’s denial of his application for Title II Disability Insurance 22 Benefits (“DIB”) and Title XVI Supplemental Security Income (“SSI”) benefits. 23 (See Dkt. No. 1.) On December 19, 2016, Defendant filed an Answer. (Dkt. No. 24 15.) All parties have consented to proceed, pursuant to 28 U.S.C. § 636(c), before 25 the undersigned Magistrate Judge for all further proceedings, including entry of 26 Judgment. (See Dkt. Nos. 19, 23, 24.) On April 13, 2017, the parties filed a “Joint 27 Stipulation” (sometimes hereinafter “J. Stip.”) setting forth the disputed issues. 28 (Dkt. No. 25.) The matter is now under submission and ready for decision. 1 1 II. 2 ADMINISTRATIVE PROCEEDINGS, BACKGROUND 3 On January 31, 2013, Plaintiff filed applications for Title II DIB and Title 4 XVI SSI benefits, alleging an onset of disability date of January 9, 2013. (See 5 Administrative Record [“AR”] 304-14, 315-21.) Plaintiff claimed that he cannot 6 work due to, among other things, a pulmonary embolism, “right heart failure,” 7 “diabetes type II,” deep vein thrombosis, and “chronic bronchitis.” (See AR 339.) 8 Plaintiff was born on November 9, 1981, and at the time he allegedly 9 became disabled he was 31 years old. (See AR 40, 83, 304, 315.) Plaintiff is 5’ 6” 10 tall, and has weighed from 250 to 270 pounds, which the Administrative Law 11 Judge (“ALJ”) found qualified as obese. (See, e.g., AR 30, 339, 628.) Plaintiff has a 12 General Equivalency Degree (“GED”), and he can read, write, and communicate 13 in English. (AR 40, 338.) Plaintiff used to work as a “tile setter” or “tile finisher.” 14 (AR 39, 83-84, 341.) He was laid off in 2011, and he collected unemployment 15 benefits for about a year-and-a-half. (See AR 29, 84-87.) He lives in an apartment 16 with his fiancé and their six children, who range in age from two to nine years old. 17 (AR 81.) Plaintiff’s fiancé works outside of their home, and they also receive 18 approximately $800 a month in food stamps, and $900 a month in aid for the 19 children, and Plaintiff himself is eligible for MediCal. (AR 82-83.) Plaintiff was a 20 cigarette smoker, but he finally managed to quit smoking sometime around 21 October 2013. (See AR 91-92.) 22 23 24 In June 2012, a car backing slowly out of a driveway struck Plaintiff, and he went to the emergency room complaining of back pain. (See AR 388-93.) Around January 9, 2013, Plaintiff suffered a “pulmonary embolism” for 25 which he was hospitalized for about a week. (AR 85-87, 492.) Tests at the hospital 26 showed a “saddle pulmonary embolus” in the main pulmonary artery, and large 27 “bilateral pulmonary emboli” in both lungs. (See AR 29, 410, 492.) Plaintiff also 28 had acute deep vein thrombosis (“DVT”) in his left popliteal vein, one of the 2 1 major blood vessels carrying blood from the lower leg to the heart. (See AR 29, 2 410-52.) Plaintiff was discharged from the hospital on January 16, 2013, and he 3 was given prescriptions for Coumadin and Lovenox, anticoagulant blood thinners, 4 and advised to do light work and light exercise. (See AR 29, 410-52, 525.) Plaintiff 5 has not worked since January 2013. (AR 85.) Plaintiff claims that he continues to 6 experience chronic chest pain which severely limits his activity. (See AR 89-95.) 7 Two hearings were held before the same ALJ, the first on January 24, 2014, 8 and a supplemental hearing on May 8, 2014. (See AR 25, 47, 76.) Plaintiff 9 appeared and testified at both hearings, and he was represented by a non-attorney 10 representative at both hearings. (See AR 25.) A vocational expert (“VE”) appeared 11 and testified at the first hearing, and a medical expert (“ME”) testified by phone at 12 the second hearing. (See AR 25.) 13 III. 14 SUMMARY OF ADMINISTRATIVE DECISION 15 The ALJ issued a “partially favorable” opinion on May 23, 2014 (see AR 21- 16 41), finding at step three of the five-step sequential evaluation that Plaintiff met a 17 listed impairment, Listing 3.09, primarily due to a pulmonary embolism and deep 18 vein thrombosis, and was disabled from January 9, 2013, through March 27, 2014, 19 and that he was therefore eligible for both DIB and SSI benefits for that period. 20 (AR 26-33.) However, the ALJ also employed a seven-step SSI sequential 21 evaluation and an eight-step DIB sequential evaluation, and determined that 22 “medical improvement” had occurred, and that Plaintiff’s disability ended March 23 28, 2014, and Plaintiff was no longer disabled after that date. (See AR 33-41.) 24 In particular, the ALJ found that Plaintiff had not engaged in substantial 25 gainful activity since January 9, 2013, the alleged onset of disability date. (AR 26 29.) The ALJ found that Plaintiff had three severe impairments: (1) a “massive 27 pulmonary embolism”; (2) deep vein thrombosis (“DVT”); and (3) obesity. (AR 28 29.) The ALJ found that Plaintiff’s pulmonary embolism and obesity, in 3 1 combination, equaled Listing 3.09, which concerns respiratory disorders and 2 “chronic pulmonary hypertension,” as set forth in the Listing of Impairments at 20 3 C.F.R. Part 404, Subpart P, Appendix 1. (See AR 29, 31.) However, while the ALJ found that Plaintiff’s conditions equaled Listing 4 5 3.09, the ALJ found that the record showed that “[m]edical improvement occurred 6 as of March 28, 2014,” making it “the date the claimant’s disability ended.” (AR 7 33.) The ALJ found that after March 28, 2014, Plaintiff’s condition had improved 8 and Plaintiff had the residual functional capacity (“RFC”) to perform “a reduced 9 range of sedentary work as defined in 20 C.F.R. [§§] 404.1567(a) and 416.967(a).” 10 (AR 34.) The ALJ primarily based his opinion on a report dated March 27, 2014, 11 from one of Plaintiff’s treating physicians, Dr. Weber Chen, a hematologist, who 12 opined that Plaintiff’s “[b]ilateral pulmonary emboli and left leg DVT” had 13 “resolved after 11 months of Coumadin.”1 (See AR 33-34, 617-18.) The ALJ’s opinion noted that the ME, Dr. Wallach, stated at the second 14 15 hearing that Plaintiff’s lung damage would have met a listing for “at least one 16 year” after the January 2013 pulmonary embolism incident. (See AR 32.) The ME 17 opined that the records showed that Plaintiff was improving, but in the ME’s 18 opinion Plaintiff was “still limited.” (See AR 32.) The ALJ stated that “I will grant 19 the claimant the benefit of the doubt and I will credit Dr. Wallach’s testimony 20 with respect to an approximate one-year period.” (AR 32.) The ALJ also noted 21 that Dr. Stephen Chen, whom he described as “a specialist in pulmonary and 22 23 Plaintiff has been under the care of two treating physicians, Dr. Stephen Chen, a pulmonologist, and Dr. Weber Chen, a hematologist and oncologist, since his pulmonary embolism incident in January 2013. There appears to be some confusion between the two Dr. Chens in the parties’ Joint Stipulation. For example, Defendant apparently attributes two records, one from Dr. Stephen Chen and one from Dr. Weber Chen, to Dr. Stephen Chen alone. (See, e.g., J. Stip. at 14 citing AR 509 (September 4, 2013 letter from Dr. Stephen Chen) and AR 617 (March 27, 2014 report from Dr. Weber Chen). For the sake of clarity, the Court will refer to each doctor by their full name. 1 24 25 26 27 28 4 1 critical care,” offered an opinion that “was materially consistent with that of the 2 medical expert” (i.e., Dr. Wallach); but the ALJ faulted Dr. Stephen Chen’s 3 comparison of Plaintiff’s dyspnea (i.e., difficult or labored breathing) on exertion 4 or ambulation to a “New York Heart Association Class III” categorization, saying 5 that Dr. Stephen Chen’s comparison was “vague and does not address specific 6 abilities and limitations.” (AR 38, citing 20 C.F.R. §§ 404.1513(e) and 416.913(e).) The ALJ also set forth a three-paragraph discussion of his concerns about 7 8 the handwriting in reports and records at Exhibits 3E, 3F, 5F, 6F, 10F, 11F, and 9 12F. (See AR 39.) Those reports and records generally concerned impairment 10 questionnaires about Plaintiff’s functionality that were signed by treating 11 physicians Dr. Stephen Chen and Dr. Tarek Nassif. (See id.) The impairment 12 questionnaires generally opined that Plaintiff would likely be absent from work 13 more than three days a month. (See AR 506-07, 585-86, 593-94, 634-39.) The ALJ 14 opined that much of the handwriting in these questionnaires appeared similar to 15 Plaintiff’s, calling the opinions in those reports into question. (See AR 39.)2 16 17 18 19 20 21 22 23 24 25 26 27 28 In particular, the Court notes that Dr. Stephen Chen signed off on two “Pulmonary Impairment Questionnaires” that were considered by the ALJ, and that opined that Plaintiff was likely to be absent from work more than three times a month. (See Ex. 6F at AR 506-07 [record dated August 31, 2013]; Ex. 12F at AR 593-94 [record dated October 10, 2013].) The record also contains a “Pulmonary Impairment Questionnaire” from Dr. Stephen Chen dated October 6, 2015 that was not before the ALJ, but that was before the Appeals Council and made part of the record. (See AR 1-7, 634-39.) Dr. Nassif, a treating general practitioner, also signed a “Multiple Impairment Questionnaire” on August 20, 2013, that stated that Plaintiff was likely to be absent from work more than three times a month. (See AR 585-86.) The ALJ noted that Exhibits 6F [AR 500-07] and 11F [AR 577-86] had handwriting that was very similar, but differed from the handwriting on Exhibits 3F [AR 456-64] and 10F [AR 567-76]. (AR 39.) The ALJ also commented that “the handwriting at Exhibit 6F and 11F appears remarkably similar to the handwriting at Exhibit 3E [AR 346-489] which is apparently the claimant’s handwriting.” (AR 39.) The ALJ went on to state that “[f]or the same reasons that I give little weight to the opinion at Exhibit 6F [i.e., Dr. Stephen Chen’s August 31, 2013 Pulmonary Impairment Questionnaire], the very similar opinion at Exhibit 12F [Dr. Stephen Chen’s October 10, 2013 Pulmonary Impairment Questionnaire] merits little 2 5 1 The ALJ also noted Plaintiff’s contention that, while medical records might 2 indicate improvement, Plaintiff could still not perform full time work. (See AR 34.) 3 However, the ALJ found that Plaintiff’s complaints of further limitations were 4 “not entirely credible,” and while the ALJ acknowledged that Plaintiff “was 5 symptomatic for a period,” and that Plaintiff “remains somewhat symptomatic,” 6 the ALJ nevertheless found Plaintiff would now only be “limited to a range of 7 sedentary work.” (See AR 36-37.) 8 9 The ALJ went on to find that Plaintiff could not perform his past relevant work as a tile setter. (AR 39.) However, the ALJ found that, based on the 10 testimony from the VE at the first hearing, Plaintiff was able perform three other 11 unskilled jobs that the VE had identified: (1) “addresser,” listed in the Dictionary 12 of Occupational Titles (“DOT”) as no. 209.587-010; (2) “order clerk,” DOT no. 13 209.567-014; and (3) “call out operator,” DOT no. 237.367-014. (AR 40.) 14 Accordingly, the ALJ found that, while Plaintiff was disabled and eligible 15 for DIB and SSI benefits for the “closed period” from January 9, 2013, the alleged 16 onset date, through March 27, 2014, Plaintiff’s disability ended on March 28, 17 2014, the day after Dr. Weber Chen’s March 27, 2014 report. (See AR 40-41.) 18 IV. 19 APPEALS COUNCIL DECISION 20 In June 2014, Plaintiff filed a request for the Appeals Council to review the 21 decision of the ALJ. (See AR 1, 20.) Subsequently, four new exhibits were 22 submitted to the Appeals Council that were not before the ALJ, that is, Exhibits 23 10E [AR 379-82], 18F [AR 627-31], 19F [AR 632], and 20F [AR 633-39]. (See, e.g., 24 25 26 27 28 weight.” (AR 39.) The ALJ also stated that “[t]he principle reason, however, why I give little weight to these reports is because they are inconsistent with the objective evidence as stated earlier. I note the handwriting issues only as [a] possible additional reason for caution in accepting the opinions at face value.” (AR 39.) 6 1 AR 5, 6, 630-39.) Exhibit 10E is a “representative’s brief” dated March 10, 2016 2 from Plaintiff’s counsel which noted, inter alia, the submission of this “new and 3 material evidence” to the Appeals Council. (See AR 379-82.) Plaintiff “ask[ed] that 4 this case be remanded back to the ALJ for the period of March 28, 2014 onward so 5 that he can seek clarification from Dr. Stephen Chen and/or obtain additional ME 6 evidence to evaluate the updated record.” (AR 382, citing, inter alia, 20 C.F.R. §§ 7 404.1520b, 404.1527, 416.920b, 416.927, and Social Security Ruling 96-2p.) The 8 Appeals Council stated that it was making the newly-submitted Exhibits 10E, 18F, 9 19F, and 20F “part of the record.” (AR 6.) Exhibit 18F is a one-page record documenting a “venous duplex sonogram” 10 11 by Dr. Roy Kwak that revealed no DVT in either of Plaintiff’s legs. (See AR 630.) 12 It appears that Exhibit 19F (AR 632), treatment notes from Dr. Stephen Chen 13 from February 2014, is identical to treatment notes at Exhibit 17F at 1 (AR 625). 14 Exhibit 20F is the “Pulmonary Impairment Questionnaire” signed by Dr. Stephen 15 Chen on October 6, 2015. (See AR 634-39.) As discussed below, that questionnaire 16 was virtually identical to the two prior questionnaires from Dr. Stephen Chen, 17 signed on August 31, 2013 (AR 501-07) and October 10, 2013 (AR 588-94), and 18 that new questionnaire still stated that Plaintiff would likely be absent from work 19 more than three times a month as a result of his impairments. (AR 639.) On April 19, 2016, the Appeals Council found that the new evidence did not 20 21 provide a basis for changing the ALJ’s decision, and the Appeal Council denied 22 Plaintiff’s request for review. (AR 1-4.)3 23 24 25 26 27 28 3 In particular, the Appeal Council’s opinion stated, in pertinent part: We found that this information does not provide a basis for changing the Administrative Law Judge’s decision. [¶] We also looked at the additional evidence you submitted from Stephen Chen, M.D. dated December 17, 2014 to February 25, 2014 [sic]; Garfield Medical Center dated July 14, 2015; Peter Fung, M.D. dated November 11, 2015; and Comprehensive Cardiovascular Specialists dated November 19, 2015. The Administrative Law Judge decided 7 1 V. 2 STANDARD OF REVIEW The primary issue in Social Security disability cases is whether the claimant 3 4 is “disabled” under section 1614(a)(3)(A) of the Social Security Act. Disability is 5 defined as the inability to engage in any substantial gainful activity by reason of 6 any medically determinable impairment or mental impairment or combination of 7 impairments that can be expected to result in death or that has lasted or can be 8 expected to last for a continuous period of not less than 12 months. See 42 U.S.C. § 9 423(d)(1)(A); Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). 10 11 A. Five-Step Sequential Evaluation When the claimant’s case has proceeded to consideration by an ALJ, the 12 ALJ conducts a five-step sequential evaluation to determine at each step if the 13 claimant is or is not disabled. See Molina, 674 F.3d at 1110 (citing, inter alia, 20 14 C.F.R. §§ 404.1520(a), 416.920(a)). First, the ALJ considers whether the claimant 15 is currently working in substantial gainful activity. Id. If not, the ALJ proceeds to a 16 second step to determine whether the claimant has a “severe” medically 17 18 19 20 21 22 23 24 25 26 27 28 your case through May 23, 2014. This new information is about a later time. Therefore, it does not affect the decision about whether you were disabled beginning on or before May 23, 2014. [¶] If you want us to consider whether you were disabled after May 23, 2014, you need to apply again. (AR 2; bracketed material added.) The Appeals Council stated that it made the new evidence submitted in Exhibits 10E, 18F, 19F, and 20F part of the record. (AR 6.) However, it also stated that it did not consider “additional evidence,” because it was “about a later time,” identifying that evidence as records from Dr. Stephen Chen “dated December 17, 2014 to February 25, 2014” [sic]; a July 14, 2015 record from “Garfield Medical Center,” a November 11, 2015 record from Dr. Peter Fung; and a November 2015 record from “Comprehensive Cardiovascular Specialists.” (AR 2.) The Appeals Court did not identify that “additional evidence” with exhibit numbers, and it appears to the Court that that “additional evidence” has not been included in the record that is before this Court. Taken together, it appears that the Appeals Council made a part of the record and considered Exhibits 10E, 18F, 19F, and 20F in denying Plaintiff’s appeal of the ALJ’s decision and, as discussed below, this Court will consider the exhibits to the extent that they are relevant. 8 1 determinable physical or mental impairment or combination of impairments that 2 has lasted for more than 12 months. Id. If so, the ALJ proceeds to a third step to 3 determine whether the claimant’s impairments render the claimant disabled 4 because they “meet or equal” any of the “listed impairments” set forth in the 5 Social Security regulations at 20 C.F.R. Part 404, Subpart P, Appendix 1. See 6 Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1001 (9th Cir. 2015). 7 If the claimant’s impairments do not meet or equal a “listed impairment,” 8 before proceeding to the fourth step, the ALJ assesses the claimant’s “residual 9 functional capacity” (“RFC”), that is, what the claimant can do on a sustained 10 basis despite the limitations from his or her impairments. See 20 C.F.R. §§ 11 404.1520(a)(4), 416.920(a)(4); Social Security Ruling (“SSR”) 96-8p. After 12 determining the claimant’s RFC, the ALJ determines at the fourth step whether 13 the claimant has the RFC to perform her past relevant work, either as she 14 “actually” performed it in the past, or as that same job is “generally” performed in 15 the national economy. See Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (citing, 16 inter alia, SSR 82-61); see also 20 C.F.R. §§ 404.1560(b), 416.960(b). 17 If the claimant cannot perform her past relevant work, the ALJ proceeds to a 18 fifth and final step to determine whether there is any other work, in light of the 19 claimant’s RFC, age, education, and work experience, that the claimant can 20 perform and that exists in “significant numbers” in either the national or regional 21 economies. See 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett v. Apfel, 180 F.3d 22 1094, 1100-01 (9th Cir. 1999). If the claimant can do other work, she is not 23 disabled; but if the claimant cannot do other work and meets the duration 24 requirement, the claimant is disabled. See Tackett, 180 F.3d at 1099 (citing 20 25 C.F.R. § 404.1560(b)(3)); see also 20 C.F.R. § 416.960(b)(3). 26 The claimant generally bears the burden at steps one through four to show 27 that she is disabled, or that she meets the requirements to proceed to the next step; 28 and the claimant bears the ultimate burden to show that she is disabled. See, e.g., 9 1 Molina, 674 F.3d at 1110; Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). 2 However, at step five, the ALJ has a “limited” burden of production to identify 3 representative jobs that the claimant can perform and that exist in “significant” 4 numbers in the economy. See 20 C.F.R. §§ 404.1560(c)(1)-(2), 416.960(c)(1)-(2); 5 Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Tackett, 180 F.3d at 1100. 6 B. Seven-or Eight-Step Sequential Evaluation Re: Medical Improvement 7 Where a claimant has been found disabled during a certain qualifying 8 “closed period,” but there is an issue about whether the claimant’s disability 9 continues through the date of the ALJ’s decision, the ALJ conducts a further 10 multi-step sequential evaluation. See 20 C.F.R. §§ 404.1594 and 416.994; see also 11 Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016). For a Title II DIB claim, the 12 evaluation essentially consists of eight steps; and for an SSI benefits claim, the 13 evaluation essentially consists of seven steps. Cf. 28 C.F.R. §§ 404.1594(f)(1)-(8), 14 416.994(f)(1)-(7); see also Attmore, 827 F.3d at 875; AR 27-28. The distinguishing 15 step between the eight-step DIB evaluation and the seven-step SSI evaluation is at 16 step one of a DIB claim’s evaluation, which requires a determination about 17 whether the claimant is presently engaging in substantial gainful activity, a step 18 which is generally not a relevant factor used to determine if the claimant’s 19 disability continues for purposes of an SSI claim. Cf. 28 C.F.R. §§ 404.1594(f)(1), 20 416.994(f)(1); see also AR 28. 21 22 In analyzing whether a claimant’s disability is continuing, the Social Security Administration has stated as follows: 23 We must determine if there has been any medical improvement in your 24 impairment(s) and, if so, whether this medical improvement is related 25 to your ability to work. If your impairment(s) has not medically 26 improved we must consider whether one or more of the exceptions to 27 medical improvement applies. If medical improvement related to your 28 ability to work has not occurred and no exception applies, your benefits 10 1 will continue. Even where medical improvement related to your ability 2 to work has occurred or an exception applies, in most cases . . . we 3 must also show that you are currently able to engage in substantial 4 gainful activity before we can find that you are no longer disabled. 5 6 20 C.F.R. § 404.1594(a); see also 20 C.F.R. § 416.994(b) The ALJ must determine whether “medical improvement” in the claimant’s 7 condition has occurred at step three of the eight-step evaluation for a DIB claim 8 and step two of the seven-step evaluation for an SSI claim. See 20 C.F.R. §§ 9 404.1594(f)(3) and 416.994(b)(5)(ii); see also AR 28. “Medical improvement” is any 10 decrease in severity of the impairment(s) in symptoms, signs, or laboratory 11 findings. See 20 C.F.R. §§ 404.1594(b)(1) and 416.994(b)(1)(i); see also Attmore, 827 12 F.3d at 875. “Medical improvement” requires a comparison of prior and current 13 medical evidence which must show that there has been improvement in the 14 symptoms, signs or laboratory findings associated with an impairment(s); and the 15 ALJ must compare the medical severity of the impairment(s) that was present at 16 the time the claimant was last found disabled to the time of the comparison. See 17 Attmore, 827 F.3d at 875-76. The Ninth Circuit has noted that “Congress enacted 18 the medical improvement standard as a safeguard against the arbitrary termination 19 of benefits.” Attmore, 827 F.3d at 876 (citation omitted). 20 If “medical improvement” related to the claimant’s ability to do work has 21 occurred (or if certain exceptions apply that obviate the need for a showing of 22 medical improvement (see 20 C.F.R. §§ 404.1595(d) and (e), 416.994(b)((3) and 23 (4)), the ALJ must determine whether all of the claimant’s current impairments in 24 combination are severe. See 20 C.F.R. §§ 404.1594(f)(6) and 416.994(b)(5)(v). If 25 the claimant’s impairments are severe, the ALJ proceeds to consider whether, 26 based on the claimant’s current RFC, the claimant can do her past relevant work 27 or any other work, given the claimant’s RFC and age, education, and past work 28 experience. See 20 C.F.R. §§ 404.1594(f)(7), (8) and 416.994(b)(5)(vi), (vii). “A 11 1 decrease in the severity of an impairment as measured by changes (improvement) 2 in symptoms, signs or laboratory findings can, if great enough, result in an 3 increase in the functional capacity to do work activities.” 20 C.F.R. 4 § 404.1594(b)(4)(i); see also 20 C.F.R. §§ 416.994(b)(v)-(vii). 5 A “closed period case” is where an ALJ simultaneously found, within the 6 same decision, that the claimant was disabled for a “closed” period of time, but 7 also found that the claimant had “medically improved” since the end of that 8 “closed period.” See Attmore, 827 F.3d at 876 (citation omitted). However, once a 9 claimant has been found to be disabled, a presumption of continuing disability 10 arises in the claimant’s favor. See Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007); 11 Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1993). The Commissioner bears the 12 burden of establishing that a claimant has experienced medical improvement that 13 would allow him to engage in substantial gainful activity. See Lape v. Comm’r Soc. 14 Sec. Admin., No. 3:16-CV-00712-MA, 2017 WL 1430613, at *4 (D. Or. Apr. 20, 15 2017) (applying presumption of continuing disability in “closed period” case) 16 (citing Murray, 722 F.2d at 500). 17 C. Review of the Commissioner’s Decision 18 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision 19 denying benefits to determine whether it is free from legal error and supported by 20 substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th 21 Cir. 2007). “Substantial evidence” is “more than a mere scintilla but less than a 22 preponderance; it is such relevant evidence as a reasonable mind might accept as 23 adequate to support a conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 24 522-23 (9th Cir. 2014) (citations and internal punctuation omitted). 25 “The ALJ is responsible for determining credibility, resolving conflicts in 26 medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 27 1035, 1039 (9th Cir. 1995). Although this Court cannot substitute its discretion for 28 the Commissioner’s, the Court nonetheless must review the record as a whole, 12 1 “weighing both the evidence that supports and the evidence that detracts from the 2 [Commissioner’s] conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 3 2007) (internal quotation marks and citation omitted). “Even when the evidence is 4 susceptible to more than one rational interpretation, we must uphold the ALJ’s 5 findings if they are supported by inferences reasonably drawn from the record.” 6 Molina, 674 F.3d at 1110. See also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 7 2005) (court will uphold Commissioner’s decision when evidence is susceptible to 8 more than one rational interpretation). Overall, the standard of review of an ALJ’s 9 decision is “highly deferential.” Rounds, 807 F.3d at 1002 (citing Valentine v. 10 Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)). However, the Court 11 may only review the reasons provided by the ALJ in the disability determination, 12 and may not affirm the ALJ on a ground upon which the ALJ did not rely. 13 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (citation omitted); see also 14 Orn, 495 F.3d at 630 (citation omitted). Likewise, a reviewing court may not 15 affirm an ALJ’s opinion simply by isolating a specific quantum of supporting 16 evidence, but must consider the record as a whole, weighing both supporting and 17 detracting evidence. Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016) (citing 18 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). Lastly, even if an ALJ has erred, a reviewing court will still uphold the 19 20 ALJ’s decision if the error was harmless, that is, if it was inconsequential to the 21 ultimate nondisability determination, or where, despite the error, the 22 Commissioner’s path “may reasonably be discerned,” even if the Commissioner 23 has explained its decision “with less than ideal clarity.” Brown-Hunter v. Colvin, 806 24 F.3d 487, 492 (9th Cir. 2015) (citations and internal punctuation omitted). 25 D. Consideration of New Evidence Submitted to Appeals Council 26 The Social Security regulations provide that the Appeals Council may 27 review a case for a number of reasons, including if “the Appeals Council receives 28 additional evidence that is new, material, and relates to the period on or before the 13 1 date of the hearing decision, and there is a reasonable probability that the 2 additional evidence would change the outcome of the decision.” 20 C.F.R. § 3 404.970(a)(5); see also 20 C.F.R. § 416.1470(a)(5); Brewes v. Comm’r of Soc. Sec. 4 Admin., 682 F.3d 1157, 1162 (9th Cir. 2012) (citing 20 C.F.R. § 404.970). 5 As noted, the ALJ found that Plaintiff was not disabled from March 28, 6 2014, though the date of the ALJ’s decision on May 23, 2014. (See AR 40-41.) 7 Plaintiff submitted new evidence to the Appeals Council after the ALJ’s decision, 8 including Exhibits 10E, 18F, 18F, and 20F, and the Appeals Council stated that it 9 made those exhibits “part of the record.” (See AR 6 and footnote 3, supra.) 10 In Brewes, the Ninth Circuit held “that when a claimant submits evidence for 11 the first time to the Appeals Council, which considers that evidence in denying 12 review of the ALJ’s decision, the new evidence is part of the administrative record, 13 which the district court must consider in determining whether the Commissioner’s 14 decision is supported by substantial evidence.” Brewes, 682 F.3d at 1159-60. A 15 claimant need not show “good cause” before submitting new evidence to the 16 Appeals Council. Id. at 1162 (citations omitted). The Ninth Circuit also held that a 17 plaintiff is not required to demonstrate that the later-admitted records meet the 18 materiality standard of 42 U.S.C. § 405(g), since that standard applies only to new 19 evidence that is not part of the administrative record and is presented in the first 20 instance to the district court. Brewes, 682 F.3d at 1164 (implying that evidence 21 accepted and considered by the Appeals Council and made part of the record is an 22 apparent conclusion that the new evidence is material). Instead, “evidence 23 submitted to and considered by the Appeals Council is not new but rather part of 24 the administrative record properly before the district court.” Id.; see also Borelli v. 25 Comm’r of Soc. Sec., 570 F. App’x 651, 652 (9th Cir. Apr. 17, 2014) (unpublished) 26 (claimants need not show good cause before submitting new evidence to the 27 Appeals Council; and new evidence is material if it bears directly and substantially 28 on the matter in dispute (citing, inter alia, Brewes). 14 1 VI. 2 DISCUSSION 3 A. Disputed Issues 4 The Joint Stipulation of the parties presents two disputed issues: 5 (1) Whether the ALJ, in finding that Plaintiff had shown “medical 6 improvement” after March 27, 2014, erred in rejecting the opinions from one of 7 Plaintiff’s treating physicians, pulmonologist Dr. Stephen Chen, about Plaintiff’s 8 impairments and RFC; and (2) 9 Whether the ALJ erred in his credibility findings regarding Plaintiff’s 10 complaints of continued disabling symptoms after March 27, 2014. (J. Stip. at 6.) 11 A. 12 Disputed Issues 1 & 2: RFC After Medical Improvement, Credibility Because the two disputed issues raised here are essentially intertwined, and 13 depend to a large extent on analysis of doctors’ opinions which are themselves 14 based on the record of Plaintiff’s subjective complaints and Plaintiff’s credibility, 15 the Court considers both disputed issues together here. 16 1. Plaintiff’s Arguments Re: Medical Improvement, RFC, Credibility 17 The Court construes the gravamen of the first disputed issue to be Plaintiff’s 18 argument that the ALJ improperly credited the opinion of Dr. Weber Chen, 19 Plaintiff’s treating hematologist and oncologist, over opinions of Dr. Stephen 20 Chen, Plaintiff’s treating pulmonologist. (See J. Stip. at 6-18.) Plaintiff contends 21 that the ALJ’s characterizations of the records from Dr. Stephen Chen are 22 “materially inaccurate,” and he argues that “[t]he Ninth Circuit does not take a 23 lenient view of ALJs’ [sic] misrepresentation of the record.” (J. Stip. at 10-11, 24 citing, inter alia, Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999).) 25 Plaintiff notes that Dr. Stephen Chen opined on September 4, 2013 that, 26 among other things, Plaintiff’s “conditions are thought to have originated from the 27 events in January of 2013 and are expected to persist for at least 2-3 years, if not 28 permanent [sic], depending on the follow-up cardiac assessments in the near 15 1 future.” (J. Stip. at 8, citing AR 509.) Plaintiff notes that a “Pulmonary 2 Impairment Questionnaire” dated October 10, 2013 and signed by Dr. Stephen 3 Chen states that Plaintiff “is likely to be absent from work as a result of the 4 impairments or treatment” for “more than three times a month.” (See AR 593-94.) 5 Plaintiff notes that records from Dr. Stephen Chen from January and February of 6 2014 indicate that Plaintiff “was still having shortness of breath and dyspnea on 7 exertion with hoarseness.” (J. Stip. at 9, citing AR 625; see also J. Stip. at 19.) 8 9 Plaintiff also notes, somewhat indirectly, that the testimony of the ME at the second, supplemental hearing on May 8, 2014, Dr. Stephen J. Wallach, endorses 10 the functional limitations found by Dr. Stephen Chen. (See J. Stip. at 9-10.) 11 Plaintiff argues that, to a somewhat “less specific degree” than Dr. Stephen Chen, 12 Dr. Wallach believed that Plaintiff’s symptoms persisted beyond March 27, 2014 13 and continued to render Plaintiff disabled. (See J. Stip. at 10, citing AR 69-70 and 14 509; J. Stip. at 13, citing AR 58, 69-70.) 15 Plaintiff also takes issue with the ALJ’s criticism of Dr. Stephen Chen’s 16 reference to the “New York Heart Association Class III” descriptors as “vague.” 17 (See J. Stip. at 11-12, citing AR 38.) Plaintiff also argues that the ALJ’s reference to 18 a recommendation from the hospital that discharged Plaintiff after his January 19 2013 pulmonary incident to engage in “light home exercise” is not comparable or 20 transferable to the demands of a work setting. (See J. Stip. at 12, citing AR 38.) 21 Plaintiff also contests the ALJ’s “concern” about whether some records from Dr. 22 Chen are in Plaintiff’s own handwriting. (See J. Stip. at 12-13, citing AR 39.) 23 Plaintiff argues in support of the second disputed issue that the ALJ’s 24 reasons for discounting the credibility of Plaintiff’s complaints of ongoing and 25 disabling shortness of breath, chest pain, and “fatigability” [sic] are not sufficiently 26 “clear and convincing” to withstand review. (See J. Stip. at 19-23.) 27 28 In particular, Plaintiff argues that the ALJ’s reliance on opinions from Dr. Rocely Ella-Tamayo, who performed an internal medicine evaluation on Plaintiff 16 1 around May 2013, and Dr. Tarek Nassif, Plaintiff’s primary care physician, is 2 misplaced because those opinions are “not illustrative of the larger pattern of 3 respiratory symptoms that [Plaintiff] reported in every visit to his treating 4 pulmonologist, Dr. Stephen Chen, through his most recent visit of February of 5 2014.” (See J. Stip. at 19.) Plaintiff also complains that the ALJ has relied on his 6 own interpretations of Dr. Stephen Chen’s records to discredit Plaintiff’s 7 credibility, asserting such determinations require medical expertise that is beyond 8 the ALJ’s purview. (See J. Stip. at 20, citing, inter alia, Day v. Weinberger, 522 F.2d 9 1154, 1156 (9th Cir. 1975).) Plaintiff also argues, as he did in support of disputed 10 issue no. 1, that the opinion from Dr. Wallach, the ME, supports Plaintiff’s claims 11 of ongoing symptoms. (See J. Stip. at 20-21.) Plaintiff notes that at the 12 supplemental hearing Dr. Wallach disputed the opinions from Dr. Weber Chen on 13 the ground that Dr. Weber Chen was a hematologist. (See J. Stip. at 22, citing AR 14 64.) Lastly, Plaintiff argues that the inconsistencies that the ALJ purportedly found 15 between treatment notes and Plaintiff’s testimony are not legitimate. (See J. Stip. at 16 22-23.) Plaintiff argues the records do not show that Plaintiff can regularly climb 17 stairs, or that he does not feel shortness of breath, or that he can lift any significant 18 weight on a regular, daily basis. (See id.) 19 2. Further Background 20 The following represents a chronology of significant facts: 21 Plaintiff went to the emergency room at Alhambra Hospital on January 9, 22 2013 after suffering a pulmonary embolism and he was in the hospital until 23 January 16, 2013. (See, e.g., AR 87, 118, 410, 489-92, 510-54.) Hospital records 24 reflect that Plaintiff was treated at the hospital by Dr. Wu Liu. and apparently 25 began seeing Dr. Stephen Chen at that time or shortly thereafter. (See AR 410-17, 26 475-77, 489-554.) Plaintiff testified that he has been seeing both Dr. Stephen Chen 27 and Dr. Weber Chen every two or three months since his hospitalization. (See AR 28 72-73.) 17 1 On May 28, 2013, Dr. Rocely Ella-Tamayo performed an internal medicine 2 evaluation on Plaintiff at the Commissioner’s request. (See Ex. 4F [AR 465-72].) 3 Dr. Ella-Tamayo noted generally normal heart and lung signs. (See AR 468.) Dr. 4 Ella-Tamayo noted a “diagnostic impression” of obesity, diabetes mellitus, 5 hypertension, a history of pulmonary embolism that was being treated with 6 Warfarin, and “past chronic nicotine abuse.” (AR 469.) Dr. Ella-Tamayo set forth 7 a “functional assessment” that stated, inter alia, that Plaintiff could lift 20 pounds 8 occasionally and 10 pounds frequently, “[s]itting is unrestricted,” and stand 9 and/or walk for 6 hours out of an 8-hour workday. (AR 469.) 10 On August 30, 2013, a “family practice” treating physician, Dr. Tarek 11 Nassif, signed a “Multiple Impairment Questionnaire.” (See Ex. 11 F [AR 578- 12 86].) The questionnaire stated that Dr. Nassif began treating Plaintiff in 2006 or 13 2007 and had most recently examined Plaintiff on January 7, 2013. (See AR 578.) 14 The questionnaire said that Dr. Nassif diagnosed Plaintiff’s conditions as 15 “diabetes, high blood pressure, COPD [i.e., chronic obstructive pulmonary 16 disease], lower back pain.” (AR 579.) The questionnaire reflected that Plaintiff 17 could only sit for 2 hours, and stand or walk for 2 hours in an eight-hour day; 18 could occasionally lift up to 5 pounds; was incapable of tolerating even “low work 19 stress” due to high blood pressure and low back pain, and was likely to be absent 20 from work more than three times a month. (See AR 581-85.) 21 On August 31, 2013, about seven months after Plaintiff’s January 2013 22 pulmonary embolism incident, Dr. Stephen Chen signed a “Pulmonary 23 Impairment Questionnaire” regarding Plaintiff. (See AR 501-07.) Among other 24 things, the questionnaire stated that Plaintiff had “chronic” pulmonary-related 25 issues (AR 503), could only sit/stand for one hour each day (AR 504), and would 26 likely be absent from work more than three times a month. (AR 506.) 27 28 In a narrative letter dated September 4, 2013 prepared “to support [Plaintiff’s] application for Social Security Benefit[s],” and addressed to “To 18 1 Whom It May Concern” Dr. Stephen Chen stated, inter alia, that “[i]t is probably a 2 miracle that anyone with such degree of pulmonary artery occlusion survived 3 without sudden cardiac death.” (AR 509.) Dr. Stephen Chen also opined that 4 obesity and “COPD” [chronic obstructive pulmonary disease] “mak[e] his 5 dyspnea even more [sic] than those patients with pulmonary embolism alone.” 6 (AR 509.) Dr. Stephen Chen went on to opine that “[t]hese conditions are thought 7 to have originated from the events in January of 2013 and are expected to persist 8 for at least 2-3 years, if not permanent, depending on the follow-up cardiac 9 assessments in the near future.” (AR 509.) 10 Dr. Stephen Chen signed another “Pulmonary Impairment Questionnaire” 11 on October 10 2013. (See AR 588-94.) As with the first questionnaire in August 12 2013, Dr. Stephen Chen again opined that Plaintiff would be absent from work 13 more than three times a month. (AR 593.) 14 On October 21, 2013, Plaintiff saw Dr. Nassif, and the ALJ states that a 15 progress note reflects that Plaintiff complained of shortness of breath. (AR 37, 16 citing Ex. 14F at 2 [AR 608].) 17 An echocardiograph report dated January 30, 2014 from Dr. Tom Thao Yeh 18 at Alhambra Hospital concluded, inter alia, that Plaintiff had a normal-size left 19 ventricle, an ejection fraction of 55%, and “right ventricle systolic pressure of 33 20 mmhg.” (AR 611.) 21 On March 27, 2014, Dr. Weber Chen, Plaintiff’s treating hematologist and 22 oncologist, prepared a report after Plaintiff was apparently referred to him by Dr. 23 Stephen Chen. (See AR 617-18.) Dr. Weber Chen reported that a CT scan of 24 Plaintiff’s chest on August 3, 2013 “failed to reveal chronic pulmonary amboli.” 25 (AR 617.) Upon physical examination, Dr. Weber Chen found that Plaintiff’s 26 lungs were clear and his heart was normal. (AR 617.) Dr. Weber Chen assessed 27 “[b]ilateral pulmonary emboli and left leg DVT – idiopathic – resolved after 11 28 months of Coumadin. Hypercoagulable work-up negative.” (AR 617.) Dr. Weber 19 1 Chen’s treatment plan stated, inter alia, that Plaintiff should “[c]ontinue to be off 2 anti-coagulation since no evidence of hyper coagulable state and no radiographic 3 evidence of PE and DVT. At this point, clinical monitor only.” (AR 618.) 4 At the second supplemental hearing before the ALJ on May 8, 2014, the ME 5 Dr. Wallach initially testified that he thought that Plaintiff still suffered from the 6 effects of his pulmonary embolism and still met the requirement for a listed 7 impairment at Listing 3.09 (see AR 58-60); nonetheless, the ME opined that, while 8 Plaintiff “absolutely” met Listing 3.09 “for a year,” Plaintiff “doesn’t have any 9 significant pulmonary hypertension now, and you need that to meet [Listing] 10 3.09.” (AR 70.) The ME noted that there is a difference of opinion among medical 11 experts about whether patients such as Plaintiff should remain on Coumadin for 12 life. (See AR 59.) The ME noted an opinion from Dr. Stephen Chen in “fall of last 13 year” [i.e., fall of 2013] which “said he’s still limited.” (AR 69.) In response to a 14 question about Plaintiff’s RFC, the ME opined that “you can [] put him [Plaintiff] 15 on a treadmill and see what he can do.” (AR 66.) 16 Plaintiff testified at the second hearing that he doesn’t think he can do a sit- 17 down job because, among other things, he gets short of breath even when he sits. 18 (See AR 74, 100.) Plaintiff testified that he often gets chest pain, and when he does 19 he has to stop what he is doing until the pain goes away. (AR 100-01.) 20 The ALJ issued his opinion on May 23, 2014. (AR 25-41.) However, as 21 noted, the Administrative Record contains a number of records that were 22 submitted after the ALJ’s May 23, 2014 decision and pertain to examinations or 23 assessments that were made after May 23, 2014. 24 On July 23, 2014, Dr. Weber Chen prepared another report, again based on 25 the referral of Dr. Stephen Chen, that noted “[n]o recent SOB [shortness of breath] 26 or hemoptysis [coughing up blood].” (AR 628; bracketed material added.) The 27 report stated that “[a] repeat V/Q scan [i.e. a ventilation-perfusion scan to examine 28 lung air flow and blood flow] on 1/22/2014 showed low probability for PE and 20 1 venuos doppler of legs on 2/25/2014 was negative for DVT. Hypercoagulable 2 study was essentially unremarkable.” (AR 628.) The report went on to note 3 “[b]ilateral pulmonary emboli and left leg DVT – idiopathic – resolved after 11 4 months of Coumadin. Hypercoagulable work-up negative.” (AR 628.) The report 5 stated that the plan was for Plaintiff to return to the clinic in six months, and after 6 that return as necessary. (See AR 629.) 7 On November 13, 2014, Dr. Roy Kwak reported on a “venuous duplex” 8 sonogram examination, and stated that his impression was “[n]o evidence for deep 9 venous thrombosis in either leg,” and noted “[n]o significant change since the 10 11 prior study.” (AR 630.) The last record in the Administrative Record is Exhibit 20F, which is dated 12 October 6, 2015, and is another “Pulmonary Impairment Questionnaire” from Dr. 13 Stephen Chen. (See AR 634-39.) Its findings appear virtually identical to the 14 findings in the questionnaires signed by Dr. Stephen Chen on August 31, 2013 and 15 October 10, 2013. (Cf. AR 501-07, 588-94.) Among other things, the October 6, 16 2015 questionnaire noted Plaintiff’s condition as “chronic obstructive pulmonary 17 disease” (AR 634); noted “clinical signs or symptoms” of “dyspnea/near syncope” 18 (i.e., loss of consciousness caused by a fall in blood pressure) (AR 635); said that 19 Plaintiff could still only sit/stand for one hour each day (AR 636) and would 20 experience pain, fatigue, or other symptoms that would interfere with attention 21 and concentration “frequently,” from “1/3 – 2/3 of an 8-hour workday” (AR 22 638); and would be absent from work more than three times a month. (AR 639.) 23 24 25 3. Applicable Law a. Evaluation of Physician’s Opinions, Other Opinion Evidence In evaluating physicians’ opinions, the case law and regulations distinguish 26 among three types: (1) those who treat the claimant (i.e., treating physicians); (2) 27 those who see the claimant in person and perform a consultative examination but 28 do not treat the claimant (examining or consultative physicians); and (3) those 21 1 who neither treat nor examine the claimant, usually only reviewing records (non- 2 examining physicians). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); see also 20 3 C.F.R. §§ 416.902, 416.927(d). As a general rule, more weight should be given to 4 the opinion of a treating source than to the opinions of doctors who do not treat 5 the claimant. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987); see also 20 C.F.R. 6 §§ 404.1527(d)(2), 416.927(d)(2). 7 However, treating physician’s opinion is not necessarily conclusive as to 8 either a physical condition or the ultimate issue of disability. See Magallanes v. 9 Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ may disregard the treating 10 physician’s opinion whether or not that opinion is contradicted. Id. For example, 11 the ALJ need not accept a treating physician’s opinion which is “brief and 12 conclusionary in form with little in the way of clinical findings to support [its] 13 conclusion.” Id. (citing Young v. Heckler, 803 F.2d 963, 968 (9th Cir.1986)). 14 Furthermore, where a treating physician’s opinion about disability is premised to a 15 significant extent upon the claimant’s own accounts of his symptoms and 16 limitations, the treating physician’s opinion may be discounted where the 17 claimant’s complaints have been properly discounted. See Batson v. Comm’r of Soc. 18 Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (where treating physician’s views 19 were in form of checklist, did not have evidentiary support, were contradicted by 20 other statements and assessments, and were based on claimant’s own subjective 21 descriptions of pain, ALJ may properly give minimal weight to treating 22 physician’s opinion); Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989) (treating 23 physician’s opinion may be disregarded where it was premised on claimant’s own 24 subjective complaints which the ALJ had already properly discounted). 25 However, if a treating physician’s opinion is “well-supported by medically 26 acceptable clinical and laboratory diagnostic techniques and is not inconsistent 27 with the other substantial evidence in [the] case record, [it will be given] 28 controlling weight.” 20 C.F.R. § 404.1527(d)(2); see also 20 C.F.R. § 416.927(d)(2) 22 1 (same); Orn, 495 F.3d at 631 (discussing 20 C.F.R. § 404.1527(d)(2)). If a treating 2 physician’s opinion is not given “controlling weight” because it is not “well- 3 supported” or because it is inconsistent with other substantial evidence in the 4 record, the Commission considers other specified factors, including the “[l]ength 5 of the treatment relationship and the frequency of examination” by the treating 6 physician and the “nature and extent of the treatment relationship” between the 7 patient and the treating physician to determine what weight to give the opinion. 8 See 20 C.F.R. §§ 416.927(d)(2)(i)-(ii), (d)(4); Orn, 495 F.3d at 631. Under those 9 factors, even if a treating physician’s opinion does not meet the test for controlling 10 weight, it may still be entitled to the “greatest weight” and should be adopted. See 11 Social Security Ruling (“SSR”) 96-2p, 1996 WL 374188 (S.S.A.) at *4. 12 The Ninth Circuit has held that an ALJ may reject a treating physician’s 13 un-contradicted opinion on a medical impairment or the ultimate issue of 14 disability only with “clear and convincing” reasons supported by substantial 15 evidence in the record. See Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) 16 (quoting Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993)); see also Magallanes, 17 881 F.2d at 751. If the treating physician’s opinion on the issue of disability is 18 contradicted, the ALJ must still provide “specific and legitimate” reasons 19 supported by substantial evidence in the record in order to reject the treating 20 physician’s opinion. Lester, 81 F.3d at 830; Holohan v. Massanari, 246 F.3d 1195, 21 1202-03 (9th Cir. 2001). “The ALJ could meet this burden by setting out a detailed 22 and thorough summary of the facts and conflicting clinical evidence, stating his 23 interpretation thereof, and making findings."” Magallenes v. Bowen, 881 F.2d 747, 24 751 (9th Cir. 1989) (internal quotation marks omitted). 25 “Where the opinion of the claimant’s treating physician is contradicted, and 26 the opinion of a nontreating source is based on independent clinical findings that 27 differ from those of the treating physician, the opinion of the nontreating source 28 may itself be substantial evidence,” and in that case “it is . . . solely the province of 23 1 the ALJ to resolve the conflict.” Magallanes, 881 F.2d at 751. Where, on the other 2 hand, a nontreating source’s opinion contradicts that of the treating physician but 3 is not based on independent clinical findings, or rests on clinical findings also 4 considered by the treating physician, the opinion of the treating physician may be 5 rejected only if the ALJ gives specific, legitimate reasons for doing so that are 6 based on substantial evidence in the record. Id. at 751, 755. See also Ramirez v. 7 Shalala, 8 F.3d 1449, 1453 (9th Cir. 1993) (applying test where ALJ relied on 8 contradictory opinion of non-examining medical advisor). 9 An opinion from a non-examining physician, such as a medical expert, 10 cannot by itself constitute substantial evidence. See Lester v. Chater, 81 F.3d 821, 11 831 (9th Cir. 1995); Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir. 1995). 12 However, this does not mean that the opinions of non-examining sources and 13 medical advisors are entitled to “little” or no weight. Id. at 1041. However, reports 14 of a non-examining advisor “need not be discounted and may serve as substantial 15 evidence when they are supported by other evidence in the record and are 16 consistent with it.” Andrews, 53 F.3d at 1042. See also Thomas v. Barnhart, 278 F.3d 17 947, 957 (9th Cir. 2002) (“The opinions of non-treating or non-examining 18 physicians may also serve as substantial evidence when the opinions are consistent 19 with independent clinical findings or other evidence in the record.). 20 21 b. Credibility Determinations To determine whether a claimant’s testimony regarding subjective pain or 22 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter, 504 23 F.3d at 1035-36. First, the ALJ must determine whether the claimant has 24 presented objective medical evidence of an underlying impairment which could 25 reasonably be expected to produce the pain or other symptoms alleged. Lingenfelter, 26 504 F.3d at 1036. Second, if the claimant meets this first test, and there is no 27 evidence of malingering, “the ALJ can reject the claimant’s testimony about the 28 severity of her symptoms only by offering specific, clear and convincing reasons 24 1 for doing so.” Lingenfelter, 504 F.3d at 1036 (citing Smolen v. Chater, 80 F.3d 1273, 2 1281 (9th Cir. 1996)). 3 When analyzing subjective symptoms of pain, the ALJ may consider factors 4 relevant to the symptoms such as, inter alia, the claimant’s daily activities; 5 precipitating and aggravating factors; the type, dosage, effectiveness and side 6 effects of medication; treatment, other than medication, that the claimant receives 7 or has received for relief of pain or other symptoms; or any other measures that the 8 claimant has used to relieve pain or symptoms. See 20 C.F.R. § 404.1529. The ALJ 9 may employ “ordinary techniques of credibility evaluation,” such as prior 10 inconsistent statements concerning symptoms, testimony that appears less than 11 candid, or unexplained or inadequately explained failure to seek treatment or 12 follow a prescribed course of treatment, in assessing a claimant’s credibility. See 13 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citations omitted). 14 However, once a claimant has presented medical evidence of an underlying 15 impairment, the ALJ may not discredit the claimant’s testimony regarding 16 subjective pain and other symptoms merely because the symptoms, as opposed to 17 the impairments, are unsupported by objective medical evidence. Lingenfelter, 504 18 F.3d at 1035-36; Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). “‘[T]he ALJ 19 can reject the claimant’s testimony about the severity of [her] symptoms only by 20 offering specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d 21 at 1036 (quoting Smolen, 80 F.3d at 1281). 22 c. Determination of Residual Functional Capacity 23 An assessment of a claimant’s RFC is an assessment of the individual’s 24 ability to do sustained work-related physical and mental activities in a work setting 25 on a regular and continuing basis, that is, for 8 hours a day 5 days a week, or an 26 “equivalent” work schedule. See Social Security Ruling 96-8p. An ALJ is 27 responsible for determining a claimant’s RFC, that is, for making a determination 28 about the most a claimant can still do despite her limitations, including medically25 1 determinable impairments that are not severe and any related symptoms such as 2 pain. See 20 C.F.R. §§ 404.1545, 416.945. See also Reddick v. Chater, 157 F.3d 715, 3 724 (9th Cir. 1998) (“Social Security regulations define residual functional 4 capacity as the ‘maximum degree to which the individual retains the capacity for 5 sustained performance of the physical-mental requirements of jobs.’”) (quoting 20 6 C.F.R. 404, Subpt. P, App. 2 § 200.00(c)). An ALJ will assess a claimant’s RFC 7 based on all of the relevant medical and other evidence in the record, and will 8 consider descriptions and observations of the claimant’s limitations from her 9 impairments, including limitations resulting from symptoms such as pain, from 10 medical sources, from the claimant herself, or from family, neighbors, friends, or 11 other persons. See 20 C.F.R. §§ 404.1545, 416.945. An RFC determination by an 12 ALJ is not a “medical opinion,” but rather an “administrative finding” that is 13 reserved to the Commissioner. See 20 C.F.R. §§ 404.1527(d)(1), (2); 416.927(d)(1), 14 (2). See also Dominguez v. Colvin, 808 F.3d 403, 409 (9th Cir. 2015), as amended 15 (Feb. 5, 2016) (final responsibility for deciding RFC is up to the ALJ, not 16 reviewing court) (citing 20 C.F.R. § 416.927). 17 4. 18 As set forth above, the salient issues here are: (1) whether Plaintiff’s 19 condition has “medically improved” since March 27, 2014, the date that the ALJ 20 found that Plaintiff last met Listing 3.09 and was disabled; and, (2) if so: (i) 21 whether the medical improvement is related to Plaintiff’s ability to do work; and 22 (ii) whether Plaintiff has the RFC to perform other jobs. See 20 C.F.R. 23 §§ 404.1594(a)-(b), 416.994(b). 24 25 Analysis a. Medical Improvement Finding The ALJ’s finding of medical improvement, at least as to pulmonary 26 embolism and deep vein thrombosis, is arguably well-supported. The ALJ’s 27 opinion notes that records showed that, after Plaintiff’s January 2013 embolism 28 incident, subsequent testing from August 2013 through February 2014 showed an 26 1 absence of pulmonary embolism, improved pulmonary arterial pressure of 33, a 2 normal ejection fraction of 55%, and no evidence of DVT in either leg. (See AR 33- 3 34 citing, inter alia, AR 474, 477, 480, 622, 624.) The ALJ went on to state, 4 however, that “[i]nstead of relying on any one of these tests to establish the date 5 the claimant medically improved, I base my decision regarding the cessation date 6 on the date of Dr. Weber Chen’s report,” that is, March 27, 2014. (See AR 34 7 (referring to AR 617-18).) As noted above, Dr. Weber Chen’s March 27, 2014 8 report stated that Plaintiff’s pulmonary emboli and DVT had resolved after 9 11 months of Coumadin treatment, and a hypercoagulable work-up was negative, 10 and therefore Plaintiff could be taken off anti-coagulants and would require only 11 further clinical monitoring. (See AR 617-18.) 12 While Plaintiff references the ALJ’s finding that there has been “medical 13 improvement,” Plaintiff does not set forth any specific argument as to why the 14 ALJ’s finding that Plaintiff’s condition has medically improved is not supported by 15 substantial evidence. (See J. Stip. at 6-13.) Plaintiff also does not apparently 16 directly address why the March 27, 2014 and July 23, 2014 reports from Dr. 17 Weber Chen do not show “medical improvement,” particularly as to the 18 pulmonary embolism and DVT. (See id.) Rather, as discussed below, Plaintiff 19 focuses on subsequent steps in the medical improvement sequential evaluation – 20 what the ALJ identified as steps seven eight for a DIB claim and steps six and 21 seven for an SSI claim (see AR 29) -- to essentially argue that Plaintiff currently 22 does not have the RFC to perform other work. (See id.) 23 To the extent that any of the new evidence that was before the Appeals 24 Council but was not before the ALJ is relevant to the medical improvement issue, 25 the absence appears to be harmless. Exhibit 18F is the July 23, 2014 office visit 26 report from Dr. Weber Chen, and that report essentially re-states the findings that 27 Dr. Weber Chen stated in his March 27, 2014 report. (Cf. Ex. 16F at 1-2 [AR 617- 28 18] with Ex. 18F at 2-3 [AR 628-29].) Likewise, the latest Pulmonary Impairment 27 1 Questionnaire from Dr. Stephen Chen dated October 6, 2015 that was submitted 2 to the Appeals Council is virtually identical to the two earlier questionnaires from 3 Dr. Stephen Chen that were before the ALJ. (Cf. Ex. 6F at 2-8 dated August 31, 4 2013 [AR 501-07], Ex. 12F at 2-8, dated October 10, 2013 [AR 588-94] with Ex. 5 20F at 2-7, dated October 6, 2015 [AR 634-39].) In sum, the pre-ALJ’s decision 6 and post-decision reports from Dr. Weber Chen both contain medical signs that 7 establish medical improvement, and the pre-decision and post-decision 8 questionnaires signed by Dr. Stephen Chen do not contradict Dr. Weber Chen’s 9 specific examination findings. (See AR 33-34.) 10 11 b. Residual Functional Capacity After Medical Improvement In the Court’s view, the issue comes down to whether the ALJ’s assessment 12 of Plaintiff’s post-“medical improvement” RFC – that is, the ALJ’s finding that the 13 Plaintiff can still perform a reduced range of sedentary work after March 28, 2014 14 – is supported by substantial evidence. In that regard, the Court notes that this case 15 is somewhat anomalous, because the ALJ found that Plaintiff was disabled at step 16 3, because he met Listing 3.09, and consequently the ALJ did not need to assess 17 Plaintiff’s RFC prior to finding Plaintiff disabled. (See five-step sequential 18 evaluation, supra, and Molina, 674 F.3d at 1110 (citing 20 C.F.R. §§ 404.1520(a), 19 416.920(a)). The Ninth Circuit has stated that “in closed period cases an ALJ 20 should compare the medical evidence used to determine that the claimant was 21 disabled with the medical evidence existing at the time of asserted medical 22 improvement.” Attmore, 827 F.3d at 874. Here, however, the ALJ’s opinion only 23 undertook an RFC evaluation after the ALJ found that Plaintiff’s condition had 24 medically improved and that Plaintiff no longer met Listing 3.09. (See AR 34.) 25 Consequently, the issue is whether the ALJ’s RFC determination is 26 supported by substantial evidence. The ALJ’s post-March 28, 2014 RFC finding 27 stated, in its entirety, as follows: 28 28 1 After careful consideration of the entire record, I find that, beginning 2 March 28, 2014, the claimant has had the residual functional capacity to 3 lift and/or carry 10 pounds occasionally and 5 pounds frequently, stand 4 and/or walk for two out of eight hours with normal breaks, and sit for 5 six hours in an eight-hour workday with normal breaks. He can never 6 climb ladders, ropes or scaffolds, but he can occasionally climb ramps 7 and stairs. Mr. Velez can also occasionally stoop, crouch, crawl, 8 balance and kneel. He must avoid concentrated exposure to temperature 9 extremes, pulmonary irritants such as dusts and gases, and hazards such 10 as dangerous machinery and unprotected heights. There are no other 11 work related limitations. This is a reduced range of sedentary work as 12 defined in 20 C.F.R. [§§] 404.1567(a) and 416.967(a). (AR 34.) 13 Plaintiff argues that the ALJ erred in assessing the opinions that are relevant 14 to the RFC finding, specifically that “[t]he only medical sources to have assessed 15 the functional limitations stemming from Mr. Velez’s pulmonary embolism and its 16 continuing, residual effects are treating pulmonologist [Dr. Stephen] Chen, 17 examining internist Ella-Tamayo, and testifying medical adviser [Dr. Stephen] 18 Wallach.” (J. Stip. at 9-10.) Plaintiff argues that “[t]he issue here is whether 19 Plaintiff’s symptoms persist beyond March 27, 2014 at a disabling level,” and 20 Plaintiff argues that “Dr. [Stephen] Chen (and, to a less specific degree, medical 21 adviser Wallach) believes that they do.” (Id.) Plaintiff argues that “[b]ecause the 22 only functionality assessments submitted by a treating source were discounted 23 without sufficient rationales, they were improperly unincorporated into the 24 determination of [Plaintiff’s RFC] beyond March 27, 2014.” (J. Stip. at 13.)4 25 26 27 28 Plaintiff concedes that the August 30, 2013 questionnaire signed by Dr. Nassif only concerns “impairments other than [Plaintiff’s] pulmonary embolism,” and is therefore “not relevant to the specific issue of the functional impact of Mr. Velez’s pulmonary impairment.” (J. Stip. at 9-10, n. 2, citing AR 579-86.) 4 29 1 In particular, Plaintiff argues that multiple records evidence shortness of 2 breath, chest pain, and dyspnea. (See J. Stip. at 10-11, n. 3.) In regard to Plaintiff’s 3 credibility, Plaintiff complains that the ALJ’s focus on individual examinations 4 where Plaintiff voiced no complaints about chest pain or dyspnea obscure the 5 overall record which clearly shows repeated complaints about those symptoms. 6 (See, e.g., J. Stip. at 19-20.) Plaintiff notes, among other things, that Plaintiff made 7 a trip to an emergency room “prior to October 28, 2013” due to shortness of 8 breath and chest pressure. (J. Stip. at 11, n.3, citing AR 626.) 9 In light of the whole record, the Court finds that the ALJ’s rejection of the 10 opinions from Dr. Stephen Chen are not sufficiently specific and legitimate, even 11 assuming, arguendo, that Dr. Stephen Chen’s opinions about Plaintiff’s RFC are 12 “contradicted.” See Lester, 81 F.3d at 830; Holohan, 246 F.3d 1195 at 1202-03; 13 Magallenes, 881 F.2d at 751. Likewise, the ALJ has not set out specific, clear, and 14 convincing reasons for discrediting the credibility of Plaintiff’s complaints of 15 shortness of breath, chest pain, and dyspnea. See Treichler, 775 F.3d at 1102. 16 First, the September 4, 2013 letter from Dr. Stephen Chen poses a 17 formidable barrier to a finding that Plaintiff retains the RFC to return to the 18 workforce. (See AR 509.) Dr. Stephen Chen treated Plaintiff from the time of his 19 hospitalization for his pulmonary embolism in January 2013 onward. The 20 September 4, 2013 letter documents more than just ongoing pulmonary and DVT 21 problems. The letter states that it is “probably a miracle” that Plaintiff survived, 22 but opines that “[n]evertheless, patients who were treated with this condition 23 remain at risk for development of pulmonary hypertension, if not recurrent 24 pulmonary embolism.” (Id.) Dr. Stephen Chen opined that “[t]he pressure within 25 the pulmonary arteries are so great that with any form of exertion, the pressure can 26 increase and patients can develop sever dyspnea and near syncope to actual 27 syncope.” (Id.) As noted, Dr. Stephen Chen compared Plaintiff’s “dyspnea on 28 exertion” condition to the “New York Heart Association Class 3” listing. (Id.) 30 1 While the ALJ called this comparison “vague,” the Court does not find that 2 criticism supported in light of the whole longitudinal record of Plaintiff’s history 3 with Dr. Stephen Chen. And while the ALJ points out instances where Plaintiff 4 apparently made no complaints of shortness of breath, chest pain, or dyspnea at 5 certain individual examinations, other records evidence such complaints, 6 apparently from at least March 2013 through February 2014, and, in particular, a 7 record mentions an ER visit before October 28, 2013. See, e.g., AR 569, 572-74, 8 576, 625-26. In the Court’s view, the fact that these complaints are episodic and 9 may come and go does not convincingly establish that Plaintiff has the RFC to 10 exert himself and work, even at only a sedentary level, without being at risk of 11 dyspnea or hypertension. Dr. Stephen Chen also noted in his September 4, 2013 12 letter that Plaintiff’s “near death experience has prompted him to quit smoking 13 already and he is dieting to lose weight,” but he also opined that “[h]owever, the 14 psychological burden also weighs on him, leading to development of anxiety and 15 depression.” (AR 509.) 16 The Court notes further that, to the extent that the ALJ relied on the March 17 27, 2014 report from Dr. Weber Chen, or to the extent that the ALJ’s opinion 18 depends on the later July 23, 2014 report from Dr. Weber Chen that was in the 19 record reviewed by the Appeals Council, while those reports may show medical 20 improvement in regard to pulmonary embolism and DVT, neither of those reports 21 convincingly shows that Plaintiff has the RFC to return to the workforce. In 22 particular, both reports apparently document high blood pressure (i.e., 149/88 on 23 March 27, 2014 and 141/83 on July 23, 2014) that could lead to hypertension, as 24 Dr. Stephen Chen posited. 25 The Court also notes that the ME Dr. Wallach opined at the second hearing 26 on May 8, 2014 that Plaintiff still had “the effects” of pulmonary hypertension. 27 (See AR 58.) While the ALJ legitimately noted that the ME may have been 28 mistaken about the records regarding Plaintiff’s pulmonary artery pressure (see AR 31 1 38, cf. AR 60-61), the ALJ’s criticism that the ME “could not provide a good 2 explanation why the claimant’s allegations of shortness of breath and chest pain 3 were not corroborated by the overall medical record” appears less convincing and 4 legitimate, in light of the record as discussed above. See, e.g., AR 569, 572-74, 576, 5 625-26. The ALJ also noted, while examining the ME at the second hearing, that 6 a record evidenced “chest pain occasionally” (see AR 64, citing Ex. 13F at 4 [AR 7 598]); but the ME stated that “sometimes everything is not recorded” and “[h]is 8 pulmonologist, you know, does talk about shortness of breath.” (AR 64.) The ME 9 went on to note the ambiguities in the records about functional limitations, and 10 noted that Dr. Stephen Chen’s “RFC in fall of last year said he’s still limited”; and 11 the ME said that “one of the things you can do is put him on a treadmill and see 12 what he can do.” (AR 66.) The ME went on to state that “there’s other tests that 13 could be done and . . . they can check his oxygen, they can do an exercise test with 14 oxygen to see if he’s still really limited, but I think he never quite made it back to 15 where he was.” (AR 67.) In response to the ALJ’s question about “the best way” 16 to measure pulmonary artery pressure and lung function, the ME answered “a 17 treadmill [test] with oxygen, a diffusing capacity.” (See AR 67-68.) 18 Furthermore, the Plaintiff’s representative asked the ME at the second 19 hearing whether it was reasonable, given Plaintiff’s medical history, that Plaintiff 20 could be “as limited as he’s describing periodically.” (AR 69.) The ME essentially 21 answered that it was, noting that Plaintiff “said he’s short of breath. He says it 22 takes him two hours to vacuum and he can lift 10 pounds and he says he can’t 23 walk too far,” and the ME said “I have to believe what he’s saying.” (AR 69.) 24 Plaintiff’s representative also asked the ME “is it reasonabl[e] to say that there are 25 some days that the claimant would be as limited as he is describing?” and the ME 26 said “I believe there are.” (AR 70.) In the Court’s view, that testimony from the 27 ME, based as it is on the overall record up to the date of the second hearing on 28 May 8, 2014, buttresses Plaintiff’s credibility. 32 Likewise, the Court finds that the ALJ has not offered sufficiently specific, 1 2 clear, and convincing reasons for discounting Plaintiff’s credibility about his 3 subjective complaints, and in particular his complaints about shortness of breath, 4 chest pain, and dyspnea. For example, the ALJ notes an otherwise-unidentified 5 record from April 2013 record where Plaintiff stated that he experienced shortness 6 of breath “at times” when walking up one flight of stairs. (AR 37, citing 7 unidentified “id.”) As discussed above, the fact that Plaintiff’s shortness of breath, 8 chest pain, or dyspnea may be episodic and occur only “at times” does not 9 preclude a functional limitation that could restrict work, or make it likely, as both 10 Dr. Stephen Chen and Dr. Nassif opined, that Plaintiff would miss three days or 11 more of work per month. Also, the fact that Plaintiff may be capable of certain 12 daily activities, such as doing household chores and walking his kids to school 13 (which Plaintiff stated can take 45 minutes just to walk two or three blocks (see AR 14 53)), does not necessarily mean that Plaintiff can handle the demands of the 15 workplace, or avoid hypertension brought on by exertion. Furthermore, the ALJ’s discussion of the handwriting in various records is 16 17 of limited probative value and ultimately unconvincing. For example, to the extent 18 that the ALJ questions whether it is Plaintiff’s handwriting on some or all of the 19 “Pulmonary Impairment Questionnaires” signed by Dr. Stephen Chen, the Court 20 notes that the ALJ does not suggest, much less prove, fraud, and Dr. Stephen 21 Chen’s opinions about Plaintiff’s functional limitations are essentially consistent 22 throughout the record, particularly in light of his September 4, 2013 letter. 23 C. 24 Remand for Further Consideration Is Warranted Taken together, the Court finds that the ALJ has not offered sufficiently 25 specific and legitimate reasons for rejecting the opinions of Dr. Stephen Chen and 26 has not offered sufficiently specific, clear, and convincing reasons for discounting 27 Plaintiff’s credibility. The Court notes the presumption of continuing disability 28 which the ALJ must overcome after the ALJ has found that Plaintiff was disabled 33 1 during an earlier “closed period.” See, e.g., Attmore, 827 F.3d at 876; Parra, 481 2 F.3d at 748. The Court also notes that the ALJ has not had the opportunity to 3 consider the significance of the most recent “Pulmonary Impairment 4 Questionnaire” dated October 6, 2015 from Dr. Stephen Chen, which was 5 submitted to the Appeals Council but was not before the ALJ, and which Dr. 6 Stephen Chen approved even after Dr. Weber Chen had issued his two earlier 7 PE/DVT reports in March and July 2014. (See AR 634-39; cf. AR 617-18, 628-29.) 8 The Ninth Circuit has commented that the submission of such new evidence can 9 warrant a remand to allow the ALJ to consider it. See, e.g., Gardner v. Berryhill, 856 10 F.3d 652, 658 (9th Cir. May 9, 2017) (stating that, as general rule, where critical 11 portions of treating physician’s opinion were presented for the first time to the 12 Appeals Council, and Appeals Council considered that evidence and incorporated 13 it into the record, remand is a “foregone conclusion” and the appropriate remedy 14 is for the district court to remand the case back to the ALJ to consider the 15 additional evidence (citing Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000))). 16 A district court may reverse the decision of the Commissioner with or 17 without remanding the case. See Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 18 2015), as amended (Feb. 5, 2016) (citing Treichler v. Comm'r of Soc. Sec. Admin., 775 19 F.3d 1090, 1099 (9th Cir. 2014)). However, if the reviewing Court has reviewed 20 the whole record and determined that it is not fully developed or free from 21 conflicts and ambiguities, the proper course is to remand the case to the Agency 22 for additional investigation or explanation. Id. 23 Here, in view of the medical records and Plaintiff’s complaints, both 24 indicating shortness of breath, chest pain, and dyspnea, and the possibility of 25 pulmonary hypertension upon exertion, there remain significant questions about 26 whether Plaintiff retains the RFC to do other work in spite of his apparent medical 27 improvement. As the ME opined, further testing may resolve these issues. 28 Likewise, further development of the record, particularly with records from Dr. 34 1 Stephen Chen and Dr. Weber Chen if they can be obtained, or with further 2 testimony from Plaintiff or family members, could be useful. Accordingly, the 3 Court finds that remand is warranted. See Dominguez, 80 F.3d at 407. 4 VII. 5 CONCLUSION 6 For the reasons stated above, 7 IT IS ORDERED that the decision of the Commissioner is REVERSED, 8 and this case is REMANDED for further proceedings consistent with this 9 Memorandum Opinion and Order. 10 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies 11 of this Memorandum Opinion and Order and the Judgment on counsel for 12 plaintiff and for defendant. 13 LET JUDGMENT BE ENTERED ACCORDINGLY. 14 15 DATED: June 20, 2017 16 _______________________________ JOHN D. EARLY United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 35

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