Jesse Velez v. Carolyn W Colvin

Filing 26

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

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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) Case No.: EDCV 16-01304-JDE
)
Plaintiff,
)
v.
) MEMORANDUM OPINION AND
NANCY A. BERRYHILL, Acting
) ORDER
Commissioner of Social Security, )
)
Defendant.
)
_______________________________ )
JESSE VELEZ,

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I.

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INTRODUCTION

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Plaintiff Jesse Velez filed a Complaint on June 20, 2016, seeking review of

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the Commissioner’s denial of his application for Title II Disability Insurance

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Benefits (“DIB”) and Title XVI Supplemental Security Income (“SSI”) benefits.

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(See Dkt. No. 1.) On December 19, 2016, Defendant filed an Answer. (Dkt. No.

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15.) All parties have consented to proceed, pursuant to 28 U.S.C. § 636(c), before

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the undersigned Magistrate Judge for all further proceedings, including entry of

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Judgment. (See Dkt. Nos. 19, 23, 24.) On April 13, 2017, the parties filed a “Joint

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Stipulation” (sometimes hereinafter “J. Stip.”) setting forth the disputed issues.

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(Dkt. No. 25.) The matter is now under submission and ready for decision.
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II.

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ADMINISTRATIVE PROCEEDINGS, BACKGROUND

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On January 31, 2013, Plaintiff filed applications for Title II DIB and Title

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XVI SSI benefits, alleging an onset of disability date of January 9, 2013. (See

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Administrative Record [“AR”] 304-14, 315-21.) Plaintiff claimed that he cannot

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work due to, among other things, a pulmonary embolism, “right heart failure,”

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“diabetes type II,” deep vein thrombosis, and “chronic bronchitis.” (See AR 339.)

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Plaintiff was born on November 9, 1981, and at the time he allegedly

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became disabled he was 31 years old. (See AR 40, 83, 304, 315.) Plaintiff is 5’ 6”

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tall, and has weighed from 250 to 270 pounds, which the Administrative Law

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Judge (“ALJ”) found qualified as obese. (See, e.g., AR 30, 339, 628.) Plaintiff has a

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General Equivalency Degree (“GED”), and he can read, write, and communicate

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in English. (AR 40, 338.) Plaintiff used to work as a “tile setter” or “tile finisher.”

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(AR 39, 83-84, 341.) He was laid off in 2011, and he collected unemployment

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benefits for about a year-and-a-half. (See AR 29, 84-87.) He lives in an apartment

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with his fiancé and their six children, who range in age from two to nine years old.

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(AR 81.) Plaintiff’s fiancé works outside of their home, and they also receive

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approximately $800 a month in food stamps, and $900 a month in aid for the

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children, and Plaintiff himself is eligible for MediCal. (AR 82-83.) Plaintiff was a

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cigarette smoker, but he finally managed to quit smoking sometime around

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October 2013. (See AR 91-92.)

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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

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which he was hospitalized for about a week. (AR 85-87, 492.) Tests at the hospital

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showed a “saddle pulmonary embolus” in the main pulmonary artery, and large

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“bilateral pulmonary emboli” in both lungs. (See AR 29, 410, 492.) Plaintiff also

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had acute deep vein thrombosis (“DVT”) in his left popliteal vein, one of the
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major blood vessels carrying blood from the lower leg to the heart. (See AR 29,

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410-52.) Plaintiff was discharged from the hospital on January 16, 2013, and he

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was given prescriptions for Coumadin and Lovenox, anticoagulant blood thinners,

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and advised to do light work and light exercise. (See AR 29, 410-52, 525.) Plaintiff

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has not worked since January 2013. (AR 85.) Plaintiff claims that he continues to

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experience chronic chest pain which severely limits his activity. (See AR 89-95.)

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Two hearings were held before the same ALJ, the first on January 24, 2014,

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and a supplemental hearing on May 8, 2014. (See AR 25, 47, 76.) Plaintiff

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appeared and testified at both hearings, and he was represented by a non-attorney

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representative at both hearings. (See AR 25.) A vocational expert (“VE”) appeared

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and testified at the first hearing, and a medical expert (“ME”) testified by phone at

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the second hearing. (See AR 25.)

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III.

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SUMMARY OF ADMINISTRATIVE DECISION

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The ALJ issued a “partially favorable” opinion on May 23, 2014 (see AR 21-

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41), finding at step three of the five-step sequential evaluation that Plaintiff met a

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listed impairment, Listing 3.09, primarily due to a pulmonary embolism and deep

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vein thrombosis, and was disabled from January 9, 2013, through March 27, 2014,

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and that he was therefore eligible for both DIB and SSI benefits for that period.

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(AR 26-33.) However, the ALJ also employed a seven-step SSI sequential

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evaluation and an eight-step DIB sequential evaluation, and determined that

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“medical improvement” had occurred, and that Plaintiff’s disability ended March

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28, 2014, and Plaintiff was no longer disabled after that date. (See AR 33-41.)

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In particular, the ALJ found that Plaintiff had not engaged in substantial

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gainful activity since January 9, 2013, the alleged onset of disability date. (AR

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29.) The ALJ found that Plaintiff had three severe impairments: (1) a “massive

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pulmonary embolism”; (2) deep vein thrombosis (“DVT”); and (3) obesity. (AR

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29.) The ALJ found that Plaintiff’s pulmonary embolism and obesity, in
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combination, equaled Listing 3.09, which concerns respiratory disorders and

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“chronic pulmonary hypertension,” as set forth in the Listing of Impairments at 20

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C.F.R. Part 404, Subpart P, Appendix 1. (See AR 29, 31.)
However, while the ALJ found that Plaintiff’s conditions equaled Listing

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3.09, the ALJ found that the record showed that “[m]edical improvement occurred

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as of March 28, 2014,” making it “the date the claimant’s disability ended.” (AR

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33.) The ALJ found that after March 28, 2014, Plaintiff’s condition had improved

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and Plaintiff had the residual functional capacity (“RFC”) to perform “a reduced

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range of sedentary work as defined in 20 C.F.R. [§§] 404.1567(a) and 416.967(a).”

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(AR 34.) The ALJ primarily based his opinion on a report dated March 27, 2014,

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from one of Plaintiff’s treating physicians, Dr. Weber Chen, a hematologist, who

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opined that Plaintiff’s “[b]ilateral pulmonary emboli and left leg DVT” had

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“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

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hearing that Plaintiff’s lung damage would have met a listing for “at least one

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year” after the January 2013 pulmonary embolism incident. (See AR 32.) The ME

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opined that the records showed that Plaintiff was improving, but in the ME’s

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opinion Plaintiff was “still limited.” (See AR 32.) The ALJ stated that “I will grant

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the claimant the benefit of the doubt and I will credit Dr. Wallach’s testimony

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with respect to an approximate one-year period.” (AR 32.) The ALJ also noted

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that Dr. Stephen Chen, whom he described as “a specialist in pulmonary and

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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.

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critical care,” offered an opinion that “was materially consistent with that of the

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medical expert” (i.e., Dr. Wallach); but the ALJ faulted Dr. Stephen Chen’s

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comparison of Plaintiff’s dyspnea (i.e., difficult or labored breathing) on exertion

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or ambulation to a “New York Heart Association Class III” categorization, saying

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that Dr. Stephen Chen’s comparison was “vague and does not address specific

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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

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the handwriting in reports and records at Exhibits 3E, 3F, 5F, 6F, 10F, 11F, and

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12F. (See AR 39.) Those reports and records generally concerned impairment

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questionnaires about Plaintiff’s functionality that were signed by treating

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physicians Dr. Stephen Chen and Dr. Tarek Nassif. (See id.) The impairment

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questionnaires generally opined that Plaintiff would likely be absent from work

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more than three days a month. (See AR 506-07, 585-86, 593-94, 634-39.) The ALJ

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opined that much of the handwriting in these questionnaires appeared similar to

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Plaintiff’s, calling the opinions in those reports into question. (See AR 39.)2

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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

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The ALJ also noted Plaintiff’s contention that, while medical records might

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indicate improvement, Plaintiff could still not perform full time work. (See AR 34.)

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However, the ALJ found that Plaintiff’s complaints of further limitations were

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“not entirely credible,” and while the ALJ acknowledged that Plaintiff “was

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symptomatic for a period,” and that Plaintiff “remains somewhat symptomatic,”

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the ALJ nevertheless found Plaintiff would now only be “limited to a range of

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sedentary work.” (See AR 36-37.)

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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

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testimony from the VE at the first hearing, Plaintiff was able perform three other

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unskilled jobs that the VE had identified: (1) “addresser,” listed in the Dictionary

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of Occupational Titles (“DOT”) as no. 209.587-010; (2) “order clerk,” DOT no.

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209.567-014; and (3) “call out operator,” DOT no. 237.367-014. (AR 40.)

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Accordingly, the ALJ found that, while Plaintiff was disabled and eligible

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for DIB and SSI benefits for the “closed period” from January 9, 2013, the alleged

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onset date, through March 27, 2014, Plaintiff’s disability ended on March 28,

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2014, the day after Dr. Weber Chen’s March 27, 2014 report. (See AR 40-41.)

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IV.

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APPEALS COUNCIL DECISION

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In June 2014, Plaintiff filed a request for the Appeals Council to review the

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decision of the ALJ. (See AR 1, 20.) Subsequently, four new exhibits were

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submitted to the Appeals Council that were not before the ALJ, that is, Exhibits

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10E [AR 379-82], 18F [AR 627-31], 19F [AR 632], and 20F [AR 633-39]. (See, e.g.,

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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.)

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AR 5, 6, 630-39.) Exhibit 10E is a “representative’s brief” dated March 10, 2016

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from Plaintiff’s counsel which noted, inter alia, the submission of this “new and

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material evidence” to the Appeals Council. (See AR 379-82.) Plaintiff “ask[ed] that

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this case be remanded back to the ALJ for the period of March 28, 2014 onward so

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that he can seek clarification from Dr. Stephen Chen and/or obtain additional ME

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evidence to evaluate the updated record.” (AR 382, citing, inter alia, 20 C.F.R. §§

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404.1520b, 404.1527, 416.920b, 416.927, and Social Security Ruling 96-2p.) The

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Appeals Council stated that it was making the newly-submitted Exhibits 10E, 18F,

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19F, and 20F “part of the record.” (AR 6.)
Exhibit 18F is a one-page record documenting a “venous duplex sonogram”

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by Dr. Roy Kwak that revealed no DVT in either of Plaintiff’s legs. (See AR 630.)

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It appears that Exhibit 19F (AR 632), treatment notes from Dr. Stephen Chen

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from February 2014, is identical to treatment notes at Exhibit 17F at 1 (AR 625).

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Exhibit 20F is the “Pulmonary Impairment Questionnaire” signed by Dr. Stephen

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Chen on October 6, 2015. (See AR 634-39.) As discussed below, that questionnaire

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was virtually identical to the two prior questionnaires from Dr. Stephen Chen,

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signed on August 31, 2013 (AR 501-07) and October 10, 2013 (AR 588-94), and

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that new questionnaire still stated that Plaintiff would likely be absent from work

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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

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provide a basis for changing the ALJ’s decision, and the Appeal Council denied

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Plaintiff’s request for review. (AR 1-4.)3

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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

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V.

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STANDARD OF REVIEW
The primary issue in Social Security disability cases is whether the claimant

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is “disabled” under section 1614(a)(3)(A) of the Social Security Act. Disability is

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defined as the inability to engage in any substantial gainful activity by reason of

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any medically determinable impairment or mental impairment or combination of

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impairments that can be expected to result in death or that has lasted or can be

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expected to last for a continuous period of not less than 12 months. See 42 U.S.C. §

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423(d)(1)(A); Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012).

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A.

Five-Step Sequential Evaluation
When the claimant’s case has proceeded to consideration by an ALJ, the

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ALJ conducts a five-step sequential evaluation to determine at each step if the

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claimant is or is not disabled. See Molina, 674 F.3d at 1110 (citing, inter alia, 20

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C.F.R. §§ 404.1520(a), 416.920(a)). First, the ALJ considers whether the claimant

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is currently working in substantial gainful activity. Id. If not, the ALJ proceeds to a

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second step to determine whether the claimant has a “severe” medically

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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.

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determinable physical or mental impairment or combination of impairments that

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has lasted for more than 12 months. Id. If so, the ALJ proceeds to a third step to

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determine whether the claimant’s impairments render the claimant disabled

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because they “meet or equal” any of the “listed impairments” set forth in the

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Social Security regulations at 20 C.F.R. Part 404, Subpart P, Appendix 1. See

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Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1001 (9th Cir. 2015).

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If the claimant’s impairments do not meet or equal a “listed impairment,”

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before proceeding to the fourth step, the ALJ assesses the claimant’s “residual

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functional capacity” (“RFC”), that is, what the claimant can do on a sustained

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basis despite the limitations from his or her impairments. See 20 C.F.R. §§

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404.1520(a)(4), 416.920(a)(4); Social Security Ruling (“SSR”) 96-8p. After

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determining the claimant’s RFC, the ALJ determines at the fourth step whether

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the claimant has the RFC to perform her past relevant work, either as she

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“actually” performed it in the past, or as that same job is “generally” performed in

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the national economy. See Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (citing,

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inter alia, SSR 82-61); see also 20 C.F.R. §§ 404.1560(b), 416.960(b).

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If the claimant cannot perform her past relevant work, the ALJ proceeds to a

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fifth and final step to determine whether there is any other work, in light of the

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claimant’s RFC, age, education, and work experience, that the claimant can

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perform and that exists in “significant numbers” in either the national or regional

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economies. See 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett v. Apfel, 180 F.3d

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1094, 1100-01 (9th Cir. 1999). If the claimant can do other work, she is not

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disabled; but if the claimant cannot do other work and meets the duration

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requirement, the claimant is disabled. See Tackett, 180 F.3d at 1099 (citing 20

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C.F.R. § 404.1560(b)(3)); see also 20 C.F.R. § 416.960(b)(3).

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The claimant generally bears the burden at steps one through four to show

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that she is disabled, or that she meets the requirements to proceed to the next step;

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and the claimant bears the ultimate burden to show that she is disabled. See, e.g.,
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Molina, 674 F.3d at 1110; Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995).

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However, at step five, the ALJ has a “limited” burden of production to identify

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representative jobs that the claimant can perform and that exist in “significant”

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numbers in the economy. See 20 C.F.R. §§ 404.1560(c)(1)-(2), 416.960(c)(1)-(2);

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Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Tackett, 180 F.3d at 1100.

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B.

Seven-or Eight-Step Sequential Evaluation Re: Medical Improvement

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Where a claimant has been found disabled during a certain qualifying

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“closed period,” but there is an issue about whether the claimant’s disability

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continues through the date of the ALJ’s decision, the ALJ conducts a further

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multi-step sequential evaluation. See 20 C.F.R. §§ 404.1594 and 416.994; see also

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Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016). For a Title II DIB claim, the

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evaluation essentially consists of eight steps; and for an SSI benefits claim, the

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evaluation essentially consists of seven steps. Cf. 28 C.F.R. §§ 404.1594(f)(1)-(8),

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416.994(f)(1)-(7); see also Attmore, 827 F.3d at 875; AR 27-28. The distinguishing

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step between the eight-step DIB evaluation and the seven-step SSI evaluation is at

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step one of a DIB claim’s evaluation, which requires a determination about

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whether the claimant is presently engaging in substantial gainful activity, a step

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which is generally not a relevant factor used to determine if the claimant’s

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disability continues for purposes of an SSI claim. Cf. 28 C.F.R. §§ 404.1594(f)(1),

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416.994(f)(1); see also AR 28.

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In analyzing whether a claimant’s disability is continuing, the Social
Security Administration has stated as follows:

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We must determine if there has been any medical improvement in your

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impairment(s) and, if so, whether this medical improvement is related

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to your ability to work. If your impairment(s) has not medically

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improved we must consider whether one or more of the exceptions to

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medical improvement applies. If medical improvement related to your

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ability to work has not occurred and no exception applies, your benefits
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will continue. Even where medical improvement related to your ability

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to work has occurred or an exception applies, in most cases . . . we

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must also show that you are currently able to engage in substantial

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gainful activity before we can find that you are no longer disabled.

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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

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condition has occurred at step three of the eight-step evaluation for a DIB claim

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and step two of the seven-step evaluation for an SSI claim. See 20 C.F.R. §§

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404.1594(f)(3) and 416.994(b)(5)(ii); see also AR 28. “Medical improvement” is any

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decrease in severity of the impairment(s) in symptoms, signs, or laboratory

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findings. See 20 C.F.R. §§ 404.1594(b)(1) and 416.994(b)(1)(i); see also Attmore, 827

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F.3d at 875. “Medical improvement” requires a comparison of prior and current

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medical evidence which must show that there has been improvement in the

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symptoms, signs or laboratory findings associated with an impairment(s); and the

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ALJ must compare the medical severity of the impairment(s) that was present at

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the time the claimant was last found disabled to the time of the comparison. See

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Attmore, 827 F.3d at 875-76. The Ninth Circuit has noted that “Congress enacted

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the medical improvement standard as a safeguard against the arbitrary termination

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of benefits.” Attmore, 827 F.3d at 876 (citation omitted).

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If “medical improvement” related to the claimant’s ability to do work has

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occurred (or if certain exceptions apply that obviate the need for a showing of

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medical improvement (see 20 C.F.R. §§ 404.1595(d) and (e), 416.994(b)((3) and

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(4)), the ALJ must determine whether all of the claimant’s current impairments in

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combination are severe. See 20 C.F.R. §§ 404.1594(f)(6) and 416.994(b)(5)(v). If

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the claimant’s impairments are severe, the ALJ proceeds to consider whether,

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based on the claimant’s current RFC, the claimant can do her past relevant work

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or any other work, given the claimant’s RFC and age, education, and past work

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experience. See 20 C.F.R. §§ 404.1594(f)(7), (8) and 416.994(b)(5)(vi), (vii). “A
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decrease in the severity of an impairment as measured by changes (improvement)

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in symptoms, signs or laboratory findings can, if great enough, result in an

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increase in the functional capacity to do work activities.” 20 C.F.R.

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§ 404.1594(b)(4)(i); see also 20 C.F.R. §§ 416.994(b)(v)-(vii).

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A “closed period case” is where an ALJ simultaneously found, within the

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same decision, that the claimant was disabled for a “closed” period of time, but

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also found that the claimant had “medically improved” since the end of that

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“closed period.” See Attmore, 827 F.3d at 876 (citation omitted). However, once a

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claimant has been found to be disabled, a presumption of continuing disability

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arises in the claimant’s favor. See Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007);

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Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1993). The Commissioner bears the

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burden of establishing that a claimant has experienced medical improvement that

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would allow him to engage in substantial gainful activity. See Lape v. Comm’r Soc.

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Sec. Admin., No. 3:16-CV-00712-MA, 2017 WL 1430613, at *4 (D. Or. Apr. 20,

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2017) (applying presumption of continuing disability in “closed period” case)

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(citing Murray, 722 F.2d at 500).

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C.

Review of the Commissioner’s Decision

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Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision

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denying benefits to determine whether it is free from legal error and supported by

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substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th

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Cir. 2007). “Substantial evidence” is “more than a mere scintilla but less than a

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preponderance; it is such relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519,

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522-23 (9th Cir. 2014) (citations and internal punctuation omitted).

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“The ALJ is responsible for determining credibility, resolving conflicts in

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medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d

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1035, 1039 (9th Cir. 1995). Although this Court cannot substitute its discretion for

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the Commissioner’s, the Court nonetheless must review the record as a whole,
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“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

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