Anglin v. Commissioner of Social Security

Filing 14

ORDER on Plaintiff's Social Security Complaint signed by Magistrate Judge Sheila K. Oberto on 08/04/2017. CASE CLOSED.(Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 BOBBY RAY ANGLIN, 11 Case No. 1:16-cv-00566-SKO Plaintiff, 12 v. 13 NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 14 (Doc. 1) Defendant. 15 ORDER ON PLAINTIFF’S SOCIAL SECURITY COMPLAINT 16 17 _____________________________________/ 18 19 I. 20 21 INTRODUCTION On April 21, 2016, Plaintiff Bobby Ray Anglin (“Plaintiff”) filed a complaint under 42 22 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social 23 Security (the “Commissioner” or “Defendant”) denying his application for disability insurance 24 benefits (“DIB”). (Doc. 1.) The matter is currently before the Court on the parties’ briefs, 25 which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States 26 27 28 1 On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of the Social Security Administration. See (last visited by the court on February 27, 2017). She is therefore substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper defendant”). 1 Magistrate Judge.2 2 II. 3 BACKGROUND On July 19, 2012, Plaintiff filed a claim for DIB payments alleging he became disabled on 4 January 1, 2012, due to “Stage 2 Kidney Failure,” “Type 2 Diabetes,” “Gout,” “High Blood 5 Pressure,” and “High Cholesterol.” (Administrative Record (“AR”) 24, 17, 188–89.) Plaintiff 6 was born on May 16, 1965, and was 46 years old on the alleged disability onset date. (AR 29, 7 43.) The highest level of education Plaintiff completed was the eleventh grade. (AR 46.) From 8 1994 to January 1, 2012, Plaintiff was self-employed as a handyman. (AR 208.) 9 A. 10 Relevant Medical Evidence3 Plaintiff complained of tiredness and weakness in his legs and lower leg pain in 11 September 2012. (AR 472.) On September 21, 2012, state agency consultative examiner Robert 12 Wagner, M.D., evaluated Plaintiff. (AR 267–71.) Plaintiff reported that he cooks, cleans, drives, 13 shops, performs his own activities of daily living without assistance, and does some yard work 14 and yard mowing for exercise. (AR 268.) Dr. Wagner observed that Plaintiff “was easily able to 15 get up and out of the chair in the waiting room, walk at a brisk pace back to the exam room 16 without assistance, and sat comfortably throughout the entire history taking.” (AR 269.) Plaintiff 17 “was easily able to get on and off the exam table, easily able to bend over at the waist and take 18 shows off and put them back on without difficulty.” (AR 269.) Plaintiff had normal station and 19 gait, and his straight leg test was negative both seated and supine. (AR 269–70.) Plaintiff had 20 5/5 motor strength, muscle bulk, and tone in the bilateral upper and lower extremities, including 21 grip strength bilaterally. (AR 270.) Dr. Wagner noted that Plaintiff had “some very mild left 22 ankle tenderness,” but “[n]o real swelling” and “[n]o redness or heat in any joints on the body.” 23 (AR 270.) 24 Dr. Wagner diagnosed Plaintiff with diabetes, chronic kidney disease, and gout. (AR 25 271.) Based on his objective findings on the exam, Dr. Wagner concluded that Plaintiff is limited 26 to standing and walking up to six hours, and lifting and carrying 50 pounds occasionally and 25 27 28 2 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 4,6.) As Plaintiff’s assertion of error is limited to the ALJ’s RFC findings, only evidence relevant to that argument is set forth below. 3 2 1 pounds frequently. (AR 271.) Dr. Wagner found no limitations on sitting, postural activities, 2 manipulative activities, and workplace environmental activities. (AR 271.) 3 In October 2012, Plaintiff developed right shoulder pain as a result of fixing a faucet. 4 (AR 487.) On examination, no swelling, deformity, effusion, or redness was noted, but Plaintiff’s 5 shoulder joints were not able to be examined due to pain. (AR 487.) Plaintiff was provided an 6 arm sling and prescribed pain medication, and was instructed to call to schedule physical therapy. 7 (AR 487.) He refused a steroid injection. (AR 487.) Plaintiff reported improved lower leg pain 8 following stopping Fenofibrate and Simvastatin. (AR 487.) 9 On October 5, 2012, a Disability Determinations Service non-examining consultant, P. 10 Frye, M.D., reviewed the record and analyzed the case. (AR 91–97.) Dr. Frye concluded that 11 Plaintiff could lift and carry 50 pounds occasionally and 25 pounds frequently, and stand, walk, 12 and sit 6 hours in an 8-hour workday, with no other limitations. (AR 96–97.) Dr. Frye’s 13 conclusion that Plaintiff could perform a medium range of work was affirmed by Disability 14 Determinations Service non-examining consultant J. Frankel, M.D., on April 10, 2013. (AR 15 110.) In November 2013, Plaintiff lacerated his left finger while using a skill saw. (AR 398.) 16 The bleeding was controlled, and Plaintiff’s blood test showed his liver/kidney function was 17 stable. (AR 428.) 18 On May 2, 2014, Plaintiff was seen by neurologist Madhav Suri, M.D. (AR 508–09.) Dr. 19 Suri evaluated Plaintiff for lumbosacral radiculopathy, diabetic polyneuropathy, possible carpal 20 tunnel syndrome, and possible diabetic complications. (AR 508.) Plaintiff described “back pain 21 radicular suggestive of a left greater than right L5-S1 lumbosacral radiculopathy,” with “some 22 neck pain” suggestive of “underlying cervical spondylosis.” (AR 508.) 23 On May 7, 2014, Dr. Suri saw Plaintiff for “bilateral hand numbness, tingling, pain, and 24 parathesis, possible entrapment neuropathy median [], left leg pain, burning, with numbness and 25 tingling as well, possible lumbosacral radiculopathy [], [and] peripheral neuropathy in the lower 26 extremities.” (AR 505.) Dr. Suri performed Electromyography (“EMG”) and a Nerve 27 Conduction Study (“NCS”) on Plaintiff, and noted “[a]bnormal nerve conduction studies 28 indicative of bilateral median nerve entrapment at the wrists” and “[a]bnormal EMG to both 3 1 lower extremities indicating of a left L5 lumbosacral radiculopathy.” (AR 507.) 2 On May 20, 2014, a MRI of Plaintiff’s lumbar spine was performed, which, according to 3 reviewing radiologist Bruce Ginier, M.D., revealed “marked bilateral foraminal narrowing” at 4 L5-S1, which was “greater on the left, with effacement of fat around the exiting nerve roots, 5 suggesting compression.” (AR 511–12.) “Mild grade I retrolisthesis at this level” was also seen 6 and “[m]arked facet hypertrophy” was noted. (AR 511–12.) 7 On July 31, 2014, Plaintiff presented to neurosurgeon Ali Najafi, M.D., with complaints 8 of low back pain, lower extremity pain, and parethesias. (AR 529.) Plaintiff reported that he is 9 unable to stand without help from an assisted walking device, such as a cane, and has difficulty 10 standing upright without flexion in his hips and leaning forward, due to “severe back and left leg 11 pain upon standing.” (AR 529.) Plaintiff stated the leg pain is “constant” and “radiates to the 12 posterior buttock, thigh, and calf with associated numbness and tingling.” (AR 529.) Plaintiff 13 reported that the symptoms are “worse with prolonged sitting, standing, and heavy lifting, and are 14 alleviated with lying supine; however, the pain is still present in a moderate to severe level.” (AR 15 529.) 16 Upon examination, Dr. Najafi noted Plaintiff had 5/5 strength for left dorsiflexors, 17 extensor halluces longi, iliopsis, quadriceps, and plantar flexors, with no atrophy noted. (AR 18 530.) There was diminished perception of soft touch in bilateral lateral thighs, anterior shin, and 19 feet. (AR 530.) Plaintiff’s deep tendon reflexes were 1+ for quadriceps and Achilles jerk 20 bilaterally. (AR 530.) Dr. Najafi observed that Plaintiff had difficulty standing from a seated 21 position, was unable to stand on toes and heels, and had diminished tandem gait and heel/toe 22 walk. (AR 530.) Plaintiff had tenderness to palpation over the lumbosacral spine, and a positive 23 straight leg test on the left side at 30 degrees. Dr. Najafi’s impression was that Plaintiff had 24 spondylolisthesis at L5-S1 and bilateral nerve root impingement due to spondylolisthesis and 25 microinstability. (AR 530.) Dr. Najafi concluded that Plaintiff had “maximized conservative 26 medical therapy including pain medication management, physical therapy and epidural steroid 27 injections,” and recommended a transforaminal lumbar interbody fusion at L5-S1. (AR 531.) 28 Plaintiff indicated he wished to “continue with the surgical recommendation” (AR 531). 4 1 B. Administrative Proceedings 2 Plaintiff filed an application for DIB payments on July 19, 2012, alleging he became 3 disabled on January 1, 2012. (AR 24, 17, 188–89.) The Social Security Administration denied 4 Plaintiff’s applications for benefits initially on October 9, 2012, and again on reconsideration on 5 April 12, 2013. (AR 119–22, 128–32.) Plaintiff requested a hearing before an Administrative 6 Law Judge (“ALJ”). (AR 134–42.) On May 8, 2014, Plaintiff appeared with counsel and 7 testified before an ALJ as to his alleged disabling conditions. (AR 36–81.) Plaintiff’s wife 8 also testified at the hearing. (AR 81–82.) 9 A Vocational Expert (“VE”) testified at the hearing that Plaintiff had past work as a 10 building repairer, Dictionary of Operational Titles (DOT) code 899.381-010, which was medium 11 exertional work, with a specific vocational preparation (SVP)4 of 7. (AR 83–84.) The ALJ asked 12 the VE to consider a person of Plaintiff’s age, education, and with his past job. (AR 84.) The VE 13 was also to assume this person is limited to performing work at the medium exertional level, and 14 is limited to only frequent postural maneuvering such as stooping, crouching, and crawling. (AR 15 84.) The VE testified that such a person could perform Plaintiff’s past relevant work per the 16 DOT, but not as performed. (AR 84.) The ALJ asked a follow up question regarding the first 17 hypothetical worker who was limited to performing work at the light exertional level, could 18 perform postural maneuvers on an occasional basis, could not climb ladders, ropes or scaffolds, 19 and could perform fingering and handling on a frequent basis. (AR 84–85.) The VE testified that 20 this individual could not perform Plaintiff’s past work, but could perform other work in the 21 national economy as a palletizer, DOT code 929.687-054, light exertion level and SVP 2; 22 garment sorter, DOT code 222.687-014, light exertion level and SVP 2; and package operator, 23 DOT code 920.685-082, light exertion level and SVP 2. (AR 85.) 24 The ALJ then proposed a third hypothetical, assuming the same individual in the second 25 hypothetical but the individual was limited to performing at the sedentary level, with all other 26 27 28 4 Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). Jobs in the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest level – over 10 years of preparation). Id. 5 1 limitations remaining the same. (AR 85–86.) The VE testified that such a person could perform 2 work as a document preparer, DOT code 249.587-018, sedentary exertion level and SVP 2; 3 ampoule sealer, DOT code 559.687-014, sedentary exertion level and SVP 2; and weight tester of 4 paper, DOT code 539.485-010, sedentary exertion level and SVP 2. (AR 86.) When asked by 5 the ALJ to assume that same person would require frequent, unscheduled breaks of up to four a 6 day lasting 10 to 15 minutes, the VE testified that there would be no work such person could 7 perform. (AR 86.) 8 Upon Plaintiff’s counsel’s request, the ALJ agreed to leave the record open for three 9 weeks following the hearing to allow Plaintiff time to submit additional medical records. (AR 10 87.) 11 C. The ALJ’s Decision 12 In a decision dated August 1, 2014, the ALJ found that Plaintiff was not disabled. (AR 13 24–35.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. § 416.920. 14 (AR 26–31.) The ALJ decided that Plaintiff has not engaged in substantial gainful activity since 15 January 1, 2012, the alleged onset date (step 1). (AR 26.) The ALJ found that Plaintiff had the 16 severe impairments of (1) degenerative disc disease, (2) carpal tunnel syndrome, (3) chronic 17 kidney disease, (4) diabetes mellitus, (5) gout, and (6) hypertension (step 2). (AR 26.) However, 18 Plaintiff did not have an impairment or combination of impairments that met or medically 19 equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the 20 Listings”) (step 3). (AR 26–27.) The ALJ determined that Plaintiff had the residual functional 21 capacity (“RFC”)5 to perform light work as defined in 20 CFR 404.1567(b) except he can only occasionally stoop, crouch, and crawl. [Plaintiff] cannot climb ladders, ropes, or scaffolds. He can handle and finger frequently. 22 23 24 25 26 27 28 (AR 27.) 5 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. Social Security Ruling 96-8p. The RFC assessment considers only functional limitations and restrictions that result from an individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 6 1 The ALJ determined that Plaintiff had no past relevant work (step 4), but that Plaintiff 2 was not disabled because, given his RFC, he could perform a significant number of other jobs in 3 the local and national economies, specifically palletizer, garments order, and package operator 4 (step 5). (AR 29–31.) In reaching his conclusions, the ALJ also determined that Plaintiff’s 5 subjective complaints were not fully credible. (AR 27, 29.) 6 D. Appeals Council Decision 7 Plaintiff sought review of this decision before the Appeals Council. (AR 19–20.) 8 Plaintiff submitted records from his July 31, 2014 examination by Dr. Najafi and his October 13, 9 2014 lumbar spine surgery (AR 5–11) to the Appeals Council, and requested that the matter be 10 remanded so that the ALJ could consider the new records (AR 8). The Appeals Council 11 incorporated the July 31, 2014 exhibit into the record. (AR 5.) On December 17, 2008, the 12 Appeals Council denied review, finding that the additional medical information “does not provide 13 a basis for changing the Administrative Law Judge’s decision.” (AR 1–7.) With respect to the 14 October 2014 records, which were not incorporated into the record (see AR 5), the Appeals 15 Council noted that the information “was from a later time” and therefore “does not affect the 16 decision about whether you were disabled on or before August 1, 2014,” the date of the ALJ’s 17 decision. (AR 2.) Therefore, the ALJ’s decision became the final decision of the Commissioner. 18 20 C.F.R. §§ 404.981. 19 20 III. SCOPE OF REVIEW The ALJ’s decision denying benefits “will be disturbed only if that decision is not 21 supported by substantial evidence or it is based upon legal error.” Tidwell v. Apfel, 161 F.3d 599, 22 601 (9th Cir. 1999). In reviewing the Commissioner’s decision, the Court may not substitute its 23 judgment for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). 24 Instead, the Court must determine whether the Commissioner applied the proper legal standards 25 and whether substantial evidence exists in the record to support the Commissioner’s findings. 26 See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). “Substantial evidence is more than a 27 mere scintilla but less than a preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 28 (9th Cir. 2008). “Substantial evidence” means “such relevant evidence as a reasonable mind 7 1 might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 2 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). The Court 3 “must consider the entire record as a whole, weighing both the evidence that supports and the 4 evidence that detracts from the Commissioner’s conclusion, and may not affirm simply by 5 isolating a specific quantum of supporting evidence.” Lingenfelter v. Astrue, 504 F.3d 1028, 6 1035 (9th Cir. 2007) (citation and internal quotation marks omitted). 7 8 IV. APPLICABLE LAW An individual is considered disabled for purposes of disability benefits if he or she is 9 unable to engage in any substantial, gainful activity by reason of any medically determinable 10 physical or mental impairment that can be expected to result in death or that has lasted, or can be 11 expected to last, for a continuous period of not less than twelve months. 42 U.S.C. 12 §§ 423(d)(1)(A), 1382c(a)(3)(A); see also Barnhart v. Thomas, 540 U.S. 20, 23 (2003). The 13 impairment or impairments must result from anatomical, physiological, or psychological 14 abnormalities that are demonstrable by medically accepted clinical and laboratory diagnostic 15 techniques and must be of such severity that the claimant is not only unable to do his previous 16 work, but cannot, considering his age, education, and work experience, engage in any other kind 17 of substantial, gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)–(3), 18 1382c(a)(3)(B), (D). 19 The regulations provide that the ALJ must undertake a specific five-step sequential 20 analysis in the process of evaluating a disability. In the First Step, the ALJ must determine 21 whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. §§ 22 404.1520(b), 416.920(b). If not, in the Second Step, the ALJ must determine whether the 23 claimant has a severe impairment or a combination of impairments significantly limiting him 24 from performing basic work activities. Id. §§ 404.1520(c), 416.920(c). If so, in the Third Step, 25 the ALJ must determine whether the claimant has a severe impairment or combination of 26 impairments that meets or equals the requirements of the Listing of Impairments (“Listing”), 20 27 C.F.R. 404, Subpart P, App. 1. Id. §§ 404.1520(d), 416.920(d). If not, in the Fourth Step, the 28 ALJ must determine whether the claimant has sufficient residual functional capacity despite the 8 1 impairment or various limitations to perform his past work. Id. §§ 404.1520(f), 416.920(f). If 2 not, in Step Five, the burden shifts to the Commissioner to show that the claimant can perform 3 other work that exists in significant numbers in the national economy. Id. §§ 404.1520(g), 4 416.920(g). If a claimant is found to be disabled or not disabled at any step in the sequence, there 5 is no need to consider subsequent steps. Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th Cir. 6 1999); 20 C.F.R. §§ 404.1520, 416.920. 7 V. 8 DISCUSSION Plaintiff contends that the ALJ erred in assessing Plaintiff’s RFC because the medical 9 evidence, which now includes Dr. Najafi’s July 31, 2014 medical record submitted to the Appeals 10 Council following the ALJ’s decision, citing Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 11 1157 (9th Cir. 2012), establishes that the RFC findings lack substantial evidence. (Doc. 11 at 8– 12 9.) Plaintiff also asserts that the ALJ erred in interpreting Plaintiff’s EMG and MRI evidence “on 13 her own without the help of a medical expert.” (Id. at 9.) The Commissioner contends that the 14 ALJ’s RFC findings were supported by substantial evidence, and that the ALJ had no duty to 15 further develop the record. (Doc. 12 at 7–9.) 16 A. 17 The July 31, 2014 Medical Record Does Not Render the ALJ’s RFC Findings Unsupported by Substantial Evidence. 1. 18 Legal Standard The RFC is the “maximum degree to which [a plaintiff] retains the capacity for sustained 19 performance of the physical-mental requirements of jobs.” 20 C.F.R. 404, Subpt. P, App. 2 § 20 200(c). It is an administrative decision as to the most a plaintiff can do, despite limitations. SSR 21 96–8p. 22 The ALJ must assess all of the relevant evidence, including evidence regarding symptoms that are not severe, to determine if the claimant retains the ability to work on a “regular 23 and continuing basis,” e.g., eight hours a day, five days a week. Reddick v. Chater, 157 F.3d 715, 24 724 (9th Cir. 1998); Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995); SSR 96–8p. The RFC 25 assessment must be based on all of the relevant evidence in the case record, such as: medical 26 history; the effects of treatment, including limitations or restrictions imposed by the mechanics of 27 treatment (e.g., side effects of medication); reports of daily activities; lay activities; recorded 28 9 1 observations; medical source statements; effects of symptoms, including pain, that are reasonably 2 attributed to a medically determinable impairment; evidence from work attempts; need for 3 structured living environment; and work evaluations. SSR 96–8p. 4 2. 5 The July 31, 2014 Report Does Not Necessitate a Reevaluation of Plaintiff’s RFC. “[W]hen the Appeals Council considers new evidence in deciding whether to review a 6 7 decision of the ALJ, that evidence becomes part of the administrative record, which the district 8 court must consider when reviewing the Commissioner’s final decision for substantial evidence” 9 Brewes, 682 F.3d at 1163 (expressly adopting Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 10 1993)). See also Taylor v. Commissioner, 659 F.3d 1228, 1232 (2011) (courts may consider 11 evidence presented for the first time to the Appeals Council “to determine whether, in light of the 12 record as a whole, the ALJ’s decision was supported by substantial evidence and was free of legal 13 error”); Penny v. Sullivan, 2 F.3d 953, 957 n.7 (9th Cir. 1993) (“the Appeals Council considered 14 this information and it became part of the record we are required to review as a whole”); see 15 generally 20 C.F.R. §§ 404.970(b), 416.1470(b). Thus, in light of Brewes, this Court will 16 consider Dr. Najafi’s July 31, 2014 report that Plaintiff submitted to the Appeals Council, and 17 which the Appeals Council incorporated into the record (AR 5–6), in determining whether 18 substantial evidence supports the ALJ’s decision.6 19 Dr. Najafi’s impression was that Plaintiff had spondylolisthesis at L5-S1 and bilateral 20 nerve root impingement due to spondylolisthesis and microinstability, and recommended a 21 transforaminal lumbar interbody fusion at L5-S1. (AR 530.) Plaintiff asserts that Dr. Najafi’s 22 6 Plaintiff neither appears to urge consideration of, nor does the Court consider, Plaintiff’s October 2014 surgical 23 records in determining whether the ALJ’s RFC findings were supported by substantial evidence. These records, which the Appeal Council “looked at” but rejected because they did not relate to the period under review (see AR 2), 24 are not part of the record that the Court must, as a matter of law, consider when determining if substantial evidence supports the denial of benefits under Brewes. See Smith v. Berryhill, No. 16-CV-03934-SI, 2017 WL 993072, at *13 25 (N.D. Cal. Mar. 15, 2017) (refusing to consider records that did not involve “evaluations, treatment, or other contact 26 27 28 with plaintiff during the period prior to the ALJ’s February 2015 decision,” distinguishing Brewes). The Court notes that Plaintiff does not argue in his opening or reply brief that this Court should reopen the record because the October 2014 surgical record warrants a remand under “Sentence Six” of 42 U.S.C. § 405(g). However, to the extent that Plaintiff’s request for relief could be construed as seeking remand under Sentence Six, Plaintiff has not “demonstrate[d] that there is a ‘reasonable possibility’ that the new evidence would have changed the outcome of the administrative hearing.” Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001) (quoting Booz v. Sec. of Health & Human Servs., 734 F.2d 1378, 1380–81 (9th Cir. 1983)). 10 1 assessment “illustrates the severity of [Plaintiff’s] back problem, which needed surgery.” (Doc. 2 11 at 9.) Dr. Najafi’s evaluation does not, however, contain a clinical assessment of any 3 limitations associated with Plaintiff’s low back condition. (See AR 529–31.) Moreover, 4 neurologist Dr. Suri’s clinical findings pertaining to Plaintiff’s low back also noted likely lumbar 5 spondylosis (see AR 508), similar to Dr. Najafi. Further, Dr. Najafi’s diagnosis of 6 “spondylolisthesis at L5-S1 and bilateral nerve root impingement due to spondylolisthesis and 7 microinstability,” merely repeats the findings from the May 20, 2014 MRI, which showed 8 “bilateral neural foraminal narrowing with nerve root impingement seen at L5-S1 with a grade I 9 spondylolisthesis,” “[f]actet hypertrophy . . . bilaterally with facet effusion seen mostly on the left 10 side indicating microinstability.” (AR 530). Thus, Dr. Najafi’s report was essentially identical to 11 the clinical findings and diagnostic testing in the record before the ALJ, and Plaintiff has not 12 shown that there were any additional functional limitations caused by his low back impairment(s) 13 that were indicated in Dr. Najafi’s assessment. See Medina v. Colvin, No. 1:13-CV-00664-SKO, 14 2014 WL 1922541, at *9 (E.D. Cal. May 14, 2014); Santos v. Colvin, No. CV 13–00967 RZ, 15 2014 WL 241993, at *2 (C.D. Cal. Jan. 21, 2014) (refusing to remand for further consideration by 16 the ALJ where the newly-admitted evidence “differed little from what was in the record 17 already.”). Finally, the portions of Dr. Najafi’s report that are based on Plaintiff’s subjective 18 complaints (see AR 529) are not persuasive evidence of Plaintiff’s disability, as the ALJ 19 discounted Plaintiff’s credibility as to his subjective complaints (AR 27, 29)—a finding not 20 challenged here. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) 21 (a treating physician’s opinion is properly rejected if based on discounted subjective complaints); 22 Tonapetyan v. Halter, 242 F.3d 1144, 1148-49 (9th Cir. 2001.) In sum, the ALJ’s analysis is not 23 undermined by Dr. Najafi’s July 31, 2014 report and remains supported by substantial evidence 24 in the record. Accordingly, remand for consideration of Dr. Najafi’s findings is unwarranted. 25 B. The ALJ Did Not Err in Its Consideration of Plaintiff’s EMG and MRI Evidence. 26 Plaintiff contends that the ALJ interpreted the May 2014 EMG and MRI results “on her 27 own and without the help of a medical expert,” and instead “should have utilized the services of a 28 medical expert” in fulfillment of the ALJ’s “affirmative obligation to fully and fairly develop the 11 1 record.” (Doc. 11 at 9–10.) The record, however, belies Plaintiff’s assertion. It is well-settled 2 that an ALJ may not substitute her own medical judgment for that of a physician. See Pietrunti v. 3 Dir., Office of Workers’ Comp. Programs, 119 F.3d 1035, 1042 (2d Cir. 1997) (“an ALJ cannot 4 arbitrarily substitute his own judgment for competent medical evidence”) (internal quotations and 5 citation omitted); Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990) (“But judges, including 6 administrative law judges of the Social Security Administration, must be careful not to succumb 7 to the temptation to play doctor.”); Kemp v. Bowen, 816 F.2d 1469, 1476 (10th Cir. 1987) 8 (“While the ALJ is authorized to make a final decision concerning disability, he cannot interpose 9 his own ‘medical expertise’ over that of a physician, especially when that physician is the regular 10 treating doctor for the disability applicant.”) (citations omitted); Ferguson v. Schweiker, 765 F.2d 11 31, 37 (3d Cir. 1985) (“an ALJ is not free to set his own expertise against that of a physician who 12 presents competent evidence”). That, however, was not the case here. 13 In concluding that the May 7, 2014 EMG and May 20, 2014 MRI evidence supported 14 “greater limitation[s]” than those assessed by consultative examiner Dr. Wagner and by non15 examining consultants Drs. Frye and Frankel (whose examination and review predated the 16 diagnostic testing) (AR 28), the ALJ correctly recounted, nearly verbatim, the impressions of 17 neurologist Dr. Suri, who performed the EMG testing (AR 505-07) and of radiologist Dr. Ginier, 18 who reviewed the MRI (AR 511–12). (See AR 28.) Her discussion of these diagnostic testing 19 results is consistent with the record and not a product of her lay opinion. See Saheed v. Colvin, 20 No. 1:15-CV-00848-SMS, 2016 WL 6522742, at *5–6 (E.D. Cal. Nov. 3, 2016). Moreover, an 21 ALJ’s duty to develop the record further is triggered only when the record contains ambiguous 22 evidence or is inadequate to allow for proper evaluation of the evidence. Mayes, 276 F.3d at 23 459–60 (citing Tonapetyan, 242 F.3d at 1150). Here, the EMG and MRI records were not 24 ambiguous and the record was not inadequate. Dr. Suri noted that Plaintiff’s low back pain was 25 “suggestive of a left greater than right L5-S1 lumbosacral radiculopathy” and likely caused by 26 “lumbar spondylosis” (AR 524), which was what both the EMG and MRI results showed (AR 27 511, 521.). See Pound v. Astrue, No. EDCV 11–2039–JPR, 2012 WL 4513638, at *8 (C.D. Cal. 28 Oct. 2, 2012). 12 1 As the ALJ noted, the record did not contain any opinions from treating or examining 2 physicians indicating that Plaintiff is disabled or even has limitations greater than those 3 determined in his decision. (AR 29.) None of Plaintiff’s treating doctors recommended 4 restrictions on Plaintiff’s ability to work. While Plaintiff obviously disagrees with the ALJ’s 5 assessment of the EMG and MRI reports, he fails to articulate exactly what medical evidence 6 supports his belief that those reports show greater limitations than those found by the ALJ. As 7 such, the Court finds the ALJ’s assessment of the EMG and MRI reports is not grounds for 8 reversal. 9 VI. 10 CONCLUSION AND ORDER After consideration of Plaintiff’s and Defendant’s briefs and a thorough review of the 11 record, the Court finds that the ALJ’s decision is supported by substantial evidence and is 12 therefore AFFIRMED. The Clerk of this Court is DIRECTED to enter judgment in favor of 13 Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, and against Plaintiff. 14 15 IT IS SO ORDERED. 16 Dated: 17 August 4, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 13 .

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