Lemus v. Colvin

Filing 21

ORDER by Judge Richard Seeborg GRANTING 14 PLAINTIFFS ALTERNATIVE MOTION TO REMAND AND DENYING 19 DEFENDANTS CROSS-MOTION FOR SUMMARY JUDGMENT. (cl, COURT STAFF) (Filed on 1/24/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANA MARGARITA LEMUS,

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Case No. 16-cv-06163-RS

Plaintiff,
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United States District Court
Northern District of California

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

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Defendant.

ORDER GRANTING PLAINTIFF’S
ALTERNATIVE MOTION TO
REMAND AND DENYING
DEFENDANT’S CROSS-MOTION FOR
SUMMARY JUDGMENT

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I. INTRODUCTION

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Plaintiff Ana Margarita Lemus appeals the decision of the Commissioner of Social

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Security (“the Commissioner”) to withdraw Supplemental Security Income (“SSI”) and Disability

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Insurance Benefits (“DIB”) pursuant to Titles II and XVI of the Social Security Act (“SSA”), 42

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U.S.C. §§ 416, 423, 1382c. An Administrative Law Judge (“ALJ”) determined that she was no

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longer disabled and therefore not eligible for continued benefits. For the reasons that follow, the

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decision of the ALJ is vacated, and the matter is remanded for further proceedings consistent with

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this opinion.
II. BACKGROUND1

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In 2005 the Commissioner determined Lemus was disabled because of her metastatic

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This synopsis is based on the certified administrative record (“AR”).

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breast carcinoma. In May 2013, based on evidence that the cancer had been in remission since

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before 2011, the Commissioner informed Lemus that her benefits would be terminated because her

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disability had ended. Lemus challenged this decision, and an ALJ reviewed her case in 2015. The

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ALJ found that the impairment caused by Lemus’s cancer was reduced in severity, such that as of

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July 1, 2013, she was no longer disabled and thus not entitled to benefits.

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Now, Lemus argues that a more recent impairment in her shoulders qualifies her for
continuing SSI and DIB under a different Listing from the one originally qualifying her for

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benefits. The record indicates she also has problems with her knees and lower back. Lemus

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sought treatment for pain in both shoulders in 2014, and underwent surgery on the right shoulder

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on March 14, 2015, one month before the ALJ’s decision. Lemus submitted evidence from Dr.

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United States District Court
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Bonilla, her primary care physician, and from Dr. Khan, the surgeon who operated on her

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shoulder. Dr. Khan submitted a check box form given to him by Lemus’s counsel, MRI data, and

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a physical therapy order.

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In his decision, the ALJ gave very limited weight to Dr. Khan’s submissions, which Lemus

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contends was an improper application of law, such that the ALJ did not base his decision on

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substantial evidence. The ALJ determined Lemus’s shoulder pain would not last 12 months, and it

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was not severe enough to maintain the SSI and DIB from her initial impairment. Lemus requested

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the Appeals Council review her case later in 2015. In support of her request, she submitted

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treatment notes from Dr. Khan’s orthopedic office ranging from November 2014 to July 2015.

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The Council denied the request for review in August 2016. On October 25, 2016, Lemus brought

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this suit, seeking reversal of the ALJ’s decision and a finding that she is entitled to reinstatement

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of her benefits, or in the alternative, remand to the ALJ for another hearing to reexamine the

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evidence in support of her claim. Lemus argues that the ALJ’s failure to give proper weight to a

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treating physician’s opinion was legal error, and that the ALJ’s decision was not supported by

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substantial evidence. The Commissioner filed a cross-motion for summary judgment, asking the

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court to affirm the ALJ’s decision.

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ORDER GRANTING ALTERNATIVE MOTION TO REMAND
CASE NO. 16-cv-06163-RS

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III. STANDARD OF REVIEW
This court has the right to review the Commissioner’s final decision pursuant to 42 U.S.C.
§ 405(g). The ALJ’s decision shall not be overturned unless it was not supported by substantial

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evidence, or if it was made based on legal error. Beltran v. Astrue, 700 F.3d 386, 388 (9th Cir.

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2012). Substantial evidence is defined as “more than a mere scintilla but less than a

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preponderance — it is such relevant evidence that a reasonable mind might accept as adequate to

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support the conclusion.” Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam). In

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determining whether substantial evidence supports a decision, the court must examine the

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administrative record as a whole, considering all the facts. Drouin v. Sullivan, 966 F.2d 1255,

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1257 (9th Cir. 1992). If the evidence supports more than one rational interpretation, the court

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must defer to the ALJ’s decision. Id. at 1258. However, the court should set aside the decision if

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it is not supported by substantial evidence or if “the ALJ's findings are based on legal error.”

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Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).

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Functioning as an appellate court reviewing the Commissioner’s decision, a district court

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applies the laws, regulations, and policy rulings as they were in effect at the time of the final

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decision. “When the Appeals Council declines review, ‘the ALJ's decision becomes the final

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decision of the Commissioner.’” Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161-62

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(9th Cir. 2012), (quoting Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th

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Cir.2011)). When a district court reviews the Commissioner’s decision for substantial evidence, it

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shall consider all evidence in the record, including evidence added after the ALJ’s decision, but

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accepted by the Appeals Council before the Council denied review. Brewes, 682 F.3d at 1159-60.

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IV. DISCUSSION

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As is relevant here, a person is “disabled” for the purposes of receiving SSI and DIB if she

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is unable “to engage in any substantial gainful activity by reason of any medically determinable

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physical or mental impairment which can be expected to result in death or which has lasted or can

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be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

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In evaluating whether a claimant’s disability has ended, the ALJ must follow an eight-step
ORDER GRANTING ALTERNATIVE MOTION TO REMAND
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process. The first step is only required for DIB, but the remaining seven steps apply to both SSI

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and DIB. The steps are summarized as follows: (1) if the claimant is engaging in substantial

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gainful activity, she is no longer disabled; (2) if she has an impairment meeting the requirements

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set forth in the regulation, she continues to be disabled; (3) if she does not have such an

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impairment, the ALJ will determine if there has been improvement from her initial qualifying

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impairment; (4) if her impairment has improved, the ALJ will determine whether it is such that the

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claimant may work; (5) if there has been no improvement, the disability will be found to continue,

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unless the ALJ determines an exception applies; (6) if there has been medical improvement, the

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ALJ will determine whether the impairment continues to be severe, based on whether the
claimant’s improvements enable her to do basic work activities; (7) if the impairment continues to

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be severe, the ALJ will assess the claimant’s residual functional capacity (“RFC”) to continue

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doing the work she has done in the past, and if her RFC is sufficient that she can do such work,

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she is no longer disabled; (8) if her RFC does not allow her to do her past work, the ALJ will

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determine if she can do other work, but if she cannot, she continues to be disabled. 20 C.F.R. §§

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404.1594(f), 416.994(b)(5).

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In this case, the ALJ went through all the proper steps. He found that as of July 2013,

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Lemus’s medical impairments were “right shoulder pain with tendinopathy and partial rotator tear

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and impingement with recent corrective surgery on March 14, 2015, remote history of resolved

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metastatic cancer to the breast, and adjustment disorder with depressed mood.” AR 30. The ALJ

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concluded, however, these impairments did not meet the requisite severity to prevent Lemus from

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working, particularly because he expected her shoulder to heal within a few months. AR 38.

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Despite these impairments, the ALJ found that Lemus’s RFC was such that she could either

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continue her previous work as a housekeeper, housekeeping supervisor, or telemarketer, or find

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alternative work as a cashier or assembler. AR 40.

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Lemus first argues the ALJ erred by not giving proper weight to Dr. Khan’s evidence. The

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record, however, does not support this conclusion. Treating and examining physicians’ opinions

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are generally given more weight than those of an expert who has not interacted with the patient.
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20 C.F.R. § 404.1527(c). The ALJ takes into account the length of the physician-patient

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relationship, as well as the nature and extent of the treatment. Id. To balance the evidence

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properly, the ALJ gives more weight to a physician’s opinion in correlation with the amount of

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evidence he or she provides to support the opinion. Id. Therefore if a physician provides no

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evidence to support his opinion, the ALJ does not have to give weight to that physician’s opinion.

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Molina v. Astrue, 674 F.3d 1104, 1111-12 (9th Cir. 2012).

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In this case, Dr. Khan initially offered little evidence to the ALJ. He submitted a form on

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which he checked a box indicating Lemus met the qualifications for Listing 1.02B, which requires

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impairment of both right and left upper extremities. AR 630; 20 C.F.R. Pt. 404, Subpt. P, App. 1
Listing of Impairments. As evidence of Lemus’s impairment, he submitted the MRI data

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indicating Lemus’s need for surgery on her right shoulder. AR 617-27. On the form, when asked

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whether Lemus had problems with her range of motion, he marked “yes” and wrote some

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abbreviations. AR 630. While Dr. Khan performed the surgery a month prior to the ALJ’s

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decision, he did not submit any evidence indicating what he thought would be the result of that

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surgery. He gave no recovery timeline, nor did he show whether or not Lemus would continue to

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be disabled such that she would meet the Listing requirement after she recovered from the surgery.

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As her surgeon, this is information that he could have provided to the ALJ.

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The ALJ may reject a treating physician’s opinion if it is contradicted by “clear and

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convincing” evidence from another physician, and as long as the ALJ gives “specific and

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legitimate reasons” for doing so. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Dr. Sherman

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was the Commissioner’s expert witness who reviewed Lemus’s medical records. Dr. Sherman

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testified, based on the evidence in the record, that Lemus’s right shoulder would heal in four

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months and that there was no evidence her left shoulder, knees, and back issues were related to

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anything but age. AR 37. The ALJ rejected Dr. Khan’s opinion because it was directly

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contradicted by Dr. Sherman’s more detailed testimony, which is a specific and legitimate reason

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for the rejection. Given the limited information before the ALJ, the ALJ did not commit clear

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error in finding Dr. Sherman’s opinion more persuasive.
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Because there was no legal error, the next question is whether the ALJ’s decision was

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supported by substantial evidence. Beltran, 700 F.3d at 388. Lemus asserts that Social Security

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Ruling (“SSR”) 16-3p should govern this court’s evaluation of the ALJ’s reasoning. SSR 16-3p is

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a policy ruling interpreting how the Commissioner assesses a claimant’s symptoms when they are

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unsubstantiated by objective medical evidence. SSR 16-3p was published in 2016, and then

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clarified in 2017. SSR 16-3p explicitly states, “[w]hen a Federal court reviews our final decision

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in a claim . . . we expect the court to review the final decision using the rules that were in effect at

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the time we issued the decision under review” (emphasis in the original). The final decision was

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made by the ALJ, not the Appeals Council as Lemus contends, because the Appeals Council
denied review. Therefore, because SSR 96-7p was in effect at the time the ALJ made his decision,

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SSR 96-7p governs this analysis.

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The ALJ properly applied SSR 96-7p to Lemus’s case. According to the ruling’s

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instructions, “whenever the individual’s statements about the intensity, persistence, or functionally

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limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the

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adjudicator must make a finding on the credibility of the individual’s statements based on a

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consideration of the entire case record.” SSR 96-7p (1996). Lemus contends she was disabled

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because of pain in her shoulders, lower back, and knees. AR 34-36. In regards to her shoulders,

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the ALJ determined that the surgery should have corrected the problem (because Dr. Khan

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originally provided no prognosis), which would not make her disability last the requisite 12

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months. AR 37. Furthermore, the ALJ did not find her claims about her left shoulder, knees, and

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back credible based on his assessment of the record, because the Commissioner’s expert testified

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that there should not have been anything wrong. AR 37.

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Based on the additions to the record after the case was heard by the ALJ, however, there is

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now objective medical evidence supporting Lemus’s claims. The additional evidence includes an

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MRI revealing that she had a torn meniscus in her left knee, lumbar degeneration, and possibly

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other problems. AR 670, 678. The supplemented records also shows that Lemus received a

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cortisone injection to her left knee, something which presumably would not be done without
ORDER GRANTING ALTERNATIVE MOTION TO REMAND
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medical necessity. AR 673-74. As for her left shoulder, there is evidence of an “impingement,”

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“rotator cuff tendinopathy and tendinosis,” necessitating her participation in physical therapy to

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treat the shoulder. AR 648, 654. The status of her right shoulder is somewhat unclear beyond the

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fact that it was “slowly recuperating.” AR 675. Lemus’s treatment notes also state she had a

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“right-sided scapular injection,” possibly indicating continuing problems with her right shoulder.

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Furthermore, the most recent piece of evidence in the record is a work status report filled out by

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Dr. Khan in July 2015, which indicates that Lemus would be unable to work until at least October

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5, 2015, the date of her next exam. The treatment notes shed light on the fact that Lemus may not

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be recovering from the surgery as the Commissioner’s expert anticipated, and they provide

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Northern District of California

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objective medical evidence of her originally unsubstantiated claims about her knees and back.
Considering all the evidence in the record, there is a strong likelihood that Lemus

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continues to be disabled. As the health of Lemus’s knees and back is uncertain, the jobs suggested

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to Lemus by the vocational expert—which all involve a considerable amount of standing—may

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need to be reevaluated. In light of the treatment notes added to the record after the ALJ’s decision,

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that decision does not appear to be supported by substantial evidence. Because the administrative

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record stops in 2015, a factual determination of Lemus’s current state is not possible at this time.

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Thus, there are outstanding questions that need to be addressed by the Commissioner.
V. CONCLUSION

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The ALJ’s decision is vacated, and the matter is remanded for further evidentiary
proceedings and a new hearing consistent with this opinion.

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IT IS SO ORDERED.

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Dated: January 24, 2018
______________________________________
RICHARD SEEBORG
United States District Judge

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ORDER GRANTING ALTERNATIVE MOTION TO REMAND
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