Keyes v. Berryhill

Filing 46

ORDER GRANTING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS CROSS-MOTION FOR SUMMARY JUDGMENT by Judge Yvonne Gonzalez Rogers granting 23 Plaintiff's Motion for Summary Judgment; denying 36 Defendant's Cross-Motion for Summary Judgment and REMANDS case for further proceedings. (fs, COURT STAFF) (Filed on 7/14/2021)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALLAH KEYES,
Plaintiff,

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vs.

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ANDREW SAUL, COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

United States District Court
Northern District of California

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CASE NO. 19-cv-00345-YGR
ORDER GRANTING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT AND DENYING
DEFENDANT’S CROSS-MOTION FOR
SUMMARY JUDGMENT
Re: Dkt. Nos. 23, 36

Plaintiff Allah Keyes brings this action seeking judicial review of a final decision of the

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Commissioner of Social Security terminating his previously granted Supplemental Security

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Income (“SSI”) under Title XVI of the Social Security Act. Currently pending before the Court

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are the parties’ cross-motions for summary judgment. Having carefully considered the parties’

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submissions, and for the reasons stated below, the Court GRANTS the plaintiff’s motion, DENIES

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the defendant’s motion, and REMANDS for further proceedings.

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I. BACKGROUND

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Plaintiff filed an application for SSI on May 8, 2007, alleging that he had been disabled

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since April 1, 2007. (Administrative Record (“AR”), Dkt. No. 11, at 211–16.) The parties do not

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dispute that plaintiff was found to be disabled and awarded benefits in a decision dated September

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24, 2007.1 Plaintiff’s disability was subsequently determined to have continued in a determination

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dated August 15, 2012. (Id. at 98–100.)2 However, on May 23, 2016, the Social Security

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Administration (“SSA”) determined that plaintiff was no longer disabled. (Id. at 101–05.) This

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Although this fact is not disputed by the parties, the administrative record does not
contain this decision.
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This determination followed an earlier unfavorable determination dated May 7, 2012, for
which plaintiff sought reconsideration. (AR at 94–97.)

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determination was upheld upon reconsideration by a state agency disability hearing officer in a

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decision dated December 19, 2016. (Id. at 118–32.)

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Plaintiff subsequently requested a hearing before an administrative law judge (“ALJ”),

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which was held on December 12, 2017, before ALJ Robert Milton Erickson. (Id. at 31–68, 139.)

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Plaintiff had non-attorney Jolene Gray at the hearing. (Id. at 33.) The ALJ heard testimony from

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plaintiff, a vocational expert, and a medical expert. (Id. at 32.) On February 12, 2018, the ALJ

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issued a decision finding that plaintiff was no longer disabled under section 1614(a)(3)(A) of the

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Act. (Id. at 12–30.) Plaintiff’s request for Appeals Council review was denied on November 15,

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2018, rendering the ALJ’s decision as the final decision of the Commissioner. (Id. at 1–6.)

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II. LEGAL FRAMEWORK

United States District Court
Northern District of California

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The Social Security Act authorizes judicial review of final decisions made by the

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Commissioner. 42 U.S.C. § 405(g) (district courts may enter “a judgment affirming, modifying,

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or reversing the decision of the Commissioner of Social Security, with or without remanding the

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cause for a rehearing”). A decision denying disability benefits “should be upheld unless it

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contains legal error or is not supported by substantial evidence.” Garrison v. Colvin, 759 F.3d

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995, 1009 (9th Cir. 2014) (citation omitted). Substantial evidence is “more than a scintilla,” but

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“less than a preponderance.” Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). “Finally, the

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court will not reverse an ALJ’s decision for harmless error, which exists when it is clear from the

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record that the ALJ’s error was inconsequential to the ultimate nondisability determination.”

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Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (quotation marks omitted).

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An individual is disabled for the purpose of receiving benefits under the Act if he

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demonstrates a medically determinable physical or mental impairment that prevents him from

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engaging in substantial gainful activity that is expected to result in death or last for a continuing

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period of at least twelve months. See Reddick v. Chater, 153 F.3d 715, 721 (9th Cir. 1998) (citing

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42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the

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work he previously performed and incapable of performing any other substantial gainful

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employment that exists in the national economy. See Tackett v. Apfel, 180 F.3d 1094, 1098 (citing

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42 U.S.C. § 423(d)(2)(A)).
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After a person is found to be entitled to disability benefits, the Commissioner is required to

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periodically review whether continued entitlement to such benefits is warranted. 42 U.S.C. §

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423(i); 20 C.F.R. §§ 404.1588–1598. The Commissioner may terminate benefits if:

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Northern District of California

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(A) there has been any medical improvement in the individual’s impairment or
combination of impairments (other than medical improvement which is not related to the
individual’s ability to work), and
(B) the individual is now able to engage in substantial gainful activity.
42 U.S.C. § 423(f)(1).
The Act has established a seven-step sequential evaluation procedure for determining
continuing disability claims for purposes of Title XVI. See 20 C.F.R. § 416.994(b)(5). At step
one, the ALJ considers whether the impairment or combination of impairments meets or equals
any of the Listed Impairments under 20 C.F.R. pt. 404, subpt. P, app. 1. Id. At step two, the ALJ
assesses whether there has been medical improvement. Id. At step three, the ALJ considers
whether the improvement is related to the claimant’s ability to work and whether the claimant’s
residual functional capacity (“RFC”) has increased. Id. At step four, if the ALJ found no medical
improvement (step two), or that the improvement was not related to the claimant’s ability to work
(step three), the ALJ determines whether an exception to medical improvement applies. Id. At
step five, the ALJ will determine whether the claimant’s impairments in combination are
severe. Id. At step six, the ALJ assesses the claimant’s RFC based on the current impairment(s)
and whether the claimant is capable of performing his past relevant work. Id. At step seven, the
ALJ examines whether the claimant has the RFC to perform any other work. Id. If the ALJ
reaches step seven and finds that the claimant has the RFC to perform other work, the claimant’s
disability has ended. Id. If the claimant cannot perform other work, his disability continues. Id.
During step two3, which is of particular importance to the instant dispute, the ALJ

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Determination of whether the claimant medically improved occurs at step three under the
eight-step framework for Title II claims. The seven-step process for a Title XVI claim, as the one
here, is materially identical except for omitting the first step addressing substantial gainful
activity. See generally 20 C.F.R. §§ 404.1594, 416.994. Therefore, some of these cases cited in
this Order refer to the ALJ’s medical improvement finding at step three, rather than at step two.
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determines whether the claimant has experienced medical improvement, which is defined as

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follows:

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Medical improvement is any decrease in the medical severity of impairment(s) present at
the time of the most recent favorable medical decision that you were disabled or continued
to be disabled and is determined by a comparison of prior and current medical evidence
which must show that there have been changes (improvement) in the symptoms, signs or
laboratory findings associated with that impairment(s) . . . .
20 C.F.R. § 404.1594(c)(1). Moreover:
[f]or purposes of determining whether medical improvement has occurred, we
will compare the current medical severity of that impairment(s) which was
present at the time of the most recent favorable medical decision that you were
disabled or continued to be disabled to the medical severity of that impairment(s)
at that time.
20 C.F.R. 404.1594(b)(7).
III. THE ALJ’S DECISION
In a decision dated February 12, 2018, the ALJ made the following specific findings:
1. The most recent favorable medical decision finding that the claimant
continued to be disabled is the determination dated August 15, 2012. This is
known as the “comparison point decision” or CPD.
2. At the time of the CPD, the claimant had the following medically
determinable impairments: broken pelvis and low back pain status post motor
vehicle accident, depression, and posttraumatic stress disorder. These
impairments were found to result in an adverse mental residual functional
capacity with marked limits performing complex tasks, maintain[ing]
concentration, persistence and pace, performing activities within a schedule,
interacting appropriately with others, completing a normal workweek without
interruptions from psychological impairment, and adapting.
3. The medical evidence establishes that, since May 23, 2016, the claimant has
had the following medically determinable impairments: status post fractured
pelvis with recurrent infection in right buttocks and chronic pain, degenerative
disc disease, status post left foot sprain, post-concussion syndrome, major
depressive disorder, and personality disorder. These are the claimant’s current
impairments.
4. Since May 23, 2016, the claimant has not had an impairment or combination
of impairments which meets or medically equals the severity of an impairment
listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.925 and 416.926).
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5. Medical improvement occurred on May 23, 2016 (20 CFR 416.994(b)(1)(i)).
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6. Since May 23, 2016, the impairments present at the time of the CPD
decreased in medical severity to the point where the claimant has had the residual
functional capacity to perform less than the full range of light work.

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***

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7. The claimant’s medical improvement is related to the ability to work because
it has resulted in an increase in the claimant’s residual functional capacity (20
CFR 416.994(b)(2)(iv)(B)).

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8. Since May 23, 2016, the claimant has continued to have a severe impairment
or combination of impairments (20 CFR 416.994(b)(5)(v)).
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9. Since May 23, 2016, based on the current impairments, the claimant has had
the residual functional capacity to perform light work as defined in 20 CFR
416.967(b) except lift and carry 20 pounds occasionally and 10 pounds
frequently, stand and walk two hours of an eight hour workday, sit about six hours
of an eight hour workday, and push/pull consistent with lift and carry. He can
frequently balance o[r] kneel, and occasionally climb, stoop, crouch and craw. He
is capable of simple repetitive tasks, no public interaction, no teamwork [ ] with
coworkers, and occasional interaction with supervisors.
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10. The claimant has no past relevant work (20 CFR 416.965).
11. On May 23, 2016, the claimant was a younger individual age 18–49 (20 CFR
416.963).
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12. The claimant has at least a high school education and is able to communicate
in English (20 CFR 416.964).
13. Transferability of job skills is not an issue because the claimant does not
have past relevant work (20 CFR 416.968).
14. Since May 23, 2016, considering the claimant’s age, education, work
experience, and residual functional capacity based on the current impairments, the
claimant has been able to perform a significant number of jobs in the national
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economy (20 CFR 416.960(c) and 416.966).
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Northern District of California

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15. The claimant’s disability ended on May 23, 2016, and the claimant has not
become disabled again since that date (20 CFR 416.994(b)(5)(vii)).
(Id. at 15–25.)
IV. ANALYSIS
Plaintiff alleges the following errors in the Commissioner’s final decision: (1) the ALJ
improperly weighed the medical evidence; (2) substantial evidence does not support the ALJ’s
RFC determination; (3) substantial evidence does not support the ALJ’s finding of medical
improvement; and (4) the ALJ did not meet his duty to develop the record in his questioning of the
vocational expert. The Court first addresses the ALJ’s finding of medical improvement (at step
two) as it precedes the other issues in the seven-step sequential evaluation.
Although plaintiff identifies the ALJ’s finding of medical improvement as erroneous, he
does not elaborate on the issue, even after the Court invited supplemental briefing.
Notwithstanding, plaintiff having raised the issue, the Court cannot overlook the ALJ’s discussion,
or lack thereof. Here, the ALJ determined that medical improvement occurred, but offered only a
vague, conclusory statement to that effect. In making this finding, the ALJ wrote, in full, that:

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Medical improvement occurred on May 23, 2016 (20 CFR 416.994(b)(1)(i)).

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The medical evidence supports a finding that, by May 23, 2016, there had been a decrease
in medical severity of the impairments present at the time of the CPD.

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(AR at 18 (bold in original).) This determination is erroneous for two reasons.
First, the ALJ failed to conduct any comparative analysis in his decision. The ALJ does
not cite to even a “scintilla” of evidence to support this finding. See Smolen, 80 F.3d at 1279. As
explained above and as the Ninth Circuit noted, “medical improvement is defined as ‘any decrease
in the medical severity’ of a recipient’s impairment . . . and requires a ‘comparison of prior and
current medical evidence which must show that there have been changes (improvement) in the
symptoms, signs or laboratory findings associated with that impairment(s)[.]” Attmore v. Colvin,
827 F.3d 872, 875 (9th Cir. 2016) (quoting 20 C.F.R. §§ 404.1594 (b)(1), (c)(1)). The ALJ “failed
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to point to a single symptom, sign, or laboratory finding at all.” Patricia M. v. Saul, No. 19-CV-

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5829 (WHA), 2020 WL 4601629, at *5 (N.D. Cal. Aug. 11, 2020) (remanding where ALJ did not

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support medical improvement finding; “the ALJ’s substantiation at [this step] is wholly

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conclusory”). “Instead here, the ALJ gestured broadly to ‘the medical evidence.’” Id.

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The Ninth Circuit recently reversed a district court’s decision upholding the ALJ’s

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determination in this regard. In Gallant v. Saul, 783 F. App’x 688, 690 (9th Cir. 2019), the Court

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explained:

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Northern District of California

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Here, the ALJ did not properly analyze whether there was medical improvement in
Gallant’s preexisting impairments between April 2009 [when she was found disabled] and
April 2012 [when she was deemed no longer eligible for benefits]. Nothing in the ALJ’s
opinion addresses the medical severity of Gallant’s impairments in April 2009. Instead,
the ALJ concluded there was medical improvement because Gallant suffered only
‘minimal limitations’ from her mental health impairments between 2009 and 2012 than
before. But, as discussed, the ALJ was first required to compare the medical severity of
Gallant’s traumatic brain injury and mood disorder in 2009 and 2012, by considering the
symptoms, signs, and laboratory findings associated with those impairments in both those
years. . . .

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Id. (emphasis supplied).
Similarly, here, the ALJ did not cite the medical records reflecting plaintiff’s condition at
the time of the comparison point decision, much less analyze the medical severity of his
impairments in 2012. Indeed, the record does not contain the actual favorable medical decision
dated August 15, 2012 with corresponding analysis. Nonetheless, the ALJ somehow made the
following finding:
At the time of the CPD, the claimant had the following medically determinable
impairments: broken pelvis and low back pain status post motor vehicle accident,
depression, and posttraumatic stress disorder. These impairments were found to
result in an adverse mental residual functional capacity with marked limits
performing complex tasks, maintain[ing] concentration, persistence and pace,
performing activities within a schedule, interacting appropriately with others,
completing a normal workweek without interruptions from psychological
impairment, and adapting.

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(AR at 16–17 (bold in original)). No explanation or even citation followed. Thus, it is unclear

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how the ALJ could have recited plaintiff’s medically determinable impairments and residual

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functional capacity at the time of the comparison point decision when that decision was not
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identified in the list of exhibits attached to his decision. (Id. at 27–30.)4
Second, the ALJ’s improper finding of medical improvement is not only evident from the

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discussion itself but also from a review of the administrative record filed in this case, which is

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virtually devoid of prior medical evidence. Although the Court cannot know for certain what

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evidence served as the basis for the comparison point decision without it on hand, the record offers

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a clue. Upon reconsideration of the 2016 determination that plaintiff was no longer disabled, the

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disability hearing officer’s decision dated December 19, 2016 identified at least two specific

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sources of evidence underlying the CPD: medical records between 2011 and 2012 from the San

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Francisco County Hospital and a March 8, 2012 orthopedic consultative examination by Dr.
Calvin Pon. (AR at 118.) The disability hearing officer proceeded to summarize this evidence

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while also referring to various progress notes from 2011 as well as a November 6, 2011

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psychological evaluation. (Id. at 122–23.)

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However, this summary, which appears to be the only reference to the prior medical

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evidence in the record, is unhelpful for three separate reasons. First, the ALJ makes no mention of

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it. Second, even if he had, “making reference to the DHO’s [summary of evidence] . . . cannot

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substitute for the ALJ’s own obligation set forth in 20 C.F.R. §§ 404.1594(b)(1) that the ALJ

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compare prior to current medical evidence.” Medina v. Colvin, No. 14-CV-1967 (DMR), 2015

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WL 5448498, at *11 (N.D. Cal. Aug. 21, 2015) (citing Veino v. Barnhart, 312 F.3d 578, 587 (2d

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Cir. 2002) (“The Commissioner also argues that the record before us in adequate because the 1982

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medical evidence was summarized in the Hearing Officer’s decision. . . . . The difficulty with the

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Commissioner’s position is that these decisions are not evidence. . . . [W]ithout any of the 1982

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medical evidence in the record before us, this Court cannot make a reasoned determination as to

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whether the DHO’s summary is accurate or adequate.”)). Third, the evidence which the disability

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hearing officer summarizes does not even appear to be in the administrative record. The Court is

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The record does contain a 3-page letter dated August 15, 2012, notifying plaintiff that the
Administration determined that he was still disabled. (AR at 98–100.) However, none of the
enclosures are included as part of the record. Thus, the Court cannot evaluate the basis for the
ALJ’s finding.
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unable to locate in the record Dr. Pon’s 2012 orthopedic examination report, the 2011

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psychological evaluation by an unnamed provider, or the various progress notes discussed.5

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Therefore, by failing to conduct the required comparative analysis and by lacking any

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evidence in support, the ALJ’s finding that medical improvement occurred cannot stand. Contrary

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to the defendant’s suggestion in supplemental briefing, it is not enough for the ALJ to simply

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compare the medically determinable impairments and RFC determination assessed at the time of

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the most recent favorable decision to those at present. See, e.g., Turpin v. Berryhill, No. 16-CV-

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1695 (RFB), 2018 WL 5410926, at *3 (D. Nev. Oct 29, 2018) (remanding where the ALJ

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“summarily stated [p]laintiff’s medically determinable impairments and RFC at the time of the
[most recent] favorable decision” without conducing a comparative analysis). “Conclusory

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Northern District of California

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language that leaves the reader to intuit the ALJ’s reasoning does not clear this low evidentiary

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hurdle. The ALJ did not ground his finding of medical improvement in substantial evidence and

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thus failed to conduct a comparative analysis. This legal error merits remand.” Patricia M., 2020

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WL 4601629, at *5.6

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While the record does contain reports of X-rays from 2012 with respect to plaintiff’s
pelvis, both hips, left foot, and right wrist (AR at 539, 563), the disability hearing officer’s
summary refers to evidence beyond these reports. In any event, as noted above, the ALJ did not
cite any medical evidence with respect to his finding of medical improvement.
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See also Turpin, 2018 WL 5410926, at *3 (“Absent either (1) a record outlining a prior
disability analysis for Plaintiff’s favorable medical decision or (2) a renewed analysis of Plaintiff’s
2007 [residual functional capacity] supported by substantial evidence, the ALJ lacked a viable
reference point to properly conduct step three of the analysis. Without a viable and identified
reference point for comparison, the Court finds that the ALJ necessarily could not find and thus
failed to find medical improvement supported by substantial evidence.”); Price v. Colvin, No. 16CV-08 (BMM), 2016 WL 8678865, at *2 (D. Mont. Nov. 22, 2016) (“The ALJ failed to compare,
however, the current severity of Mr. Price’s renal function impairments with the severity of his
impairments when he was deemed disabled on December 22, 2003. The ALJ committed legal
error by failing to perform this comparison as required by 20 C.F.R. § 404.1594(b)(7).”); Zutphen
v. Colvin, No. 15-CV-2429 (SI), 2016 WL 5358589, at *6 (N.D. Cal. Sept. 26, 2016) (“The Court
finds that the ALJ committed legal error at step three in several ways. Most importantly, the
ALJ’s decision cited to no medical evidence that pre-dated the October 2006 CPD.”); Newmiller v.
Colvin, No. 15-CV-0139 (FFM), 2016 WL 3034670, at *4 (C.D. Cal. May 27, 2016) (“Here, the
ALJ failed to adequately compare current evidence of Plaintiff’s impairments with the evidence of
Plaintiff’s impairments that existed at the time of the CPD.”); Hryzhuk v. Colvin, No. 14-CV-2561
(EFB), 2016 WL 1162697, at *3 (E.D. Cal. Mar. 24, 2016) (“[T]he medical records from the time
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This error is not harmless because “an ALJ may not move to the evaluation of a claimant’s
RFC without first finding medical improvement, and the Act does not authorize an ALJ to find

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medical improvement without making the comparison of prior and current medical evidence. A

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termination decision is not ‘legally proper and supported by substantial evidence when the CPD

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evidence is absent from the record.’” Medina, 2015 WL 5448498, at *12 (quoting Spratt v.

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Colvin, No. 13-CV-299 (TDD), 2016 WL 2153933, at *5 (W.D. Okla. May 20, 2014)); see also

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Newmiller, 2016 WL 3034670, at *5 (“The error is compounded because the ALJ proceeded with

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the sequential analysis even though a proper finding of medical improvement is required to

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continue to [the next step].”). “‘In the absence of the early medical records, the administrative

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record lacks a foundation for a reasoned assessment of whether there is substantial evidence to

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support the Commissioner’s finding that [a claimant’s current] condition represents an

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improvement.’” Medina, 2015 WL 5448498, at *12 (quoting Veino, 312 F.3d at 587).

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Accordingly, this matter is remanded for further development or review by the ALJ
consistent with the regulations and findings of medical improvement.7 Because a proper finding

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of the CPD should have been included in the administrative record in this case. Since such
evidence was not included in the administrative record, the Commissioner has failed to
demonstrate that medical improvement occurred and the matter must therefore be remanded for
further consideration.”); Medina, 2015 WL 5448498, at *11 (“[T]he plain language of 20 C.F.R.
§§ 404.1594(b)(1) and (c)(1) requires the ALJ to actually compare prior and subsequent medical
records in order to determine the existence of medical improvement. ALJ Laverdure’s opinion
does not address prior medical evidence. In fact, ALJ Laverdure appears not to have considered
prior medical evidence at all, since those prior records do not appear in the administrative record
submitted by the Commission to this court.”).
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The Court notes that the agency previously lost plaintiff’s records underlying his initial
disability determination. (AR at 122.) Therefore, medical improvement was not formally
considered for the period between September 14, 2007 (the initial disability determination) and
August 15, 2012 (the most recent disability determination). (Id.) In light of the disability hearing
officer’s discussion of the evidence underlying the August 15, 2012 decision, the Court assumes
that this more recent set of records was not also lost.
However, “[t]o the extent such records are not available, the ALJ should have conducted
the initial disability analysis anew based on medical evidence of [p]laintiff’s condition as of
[2012] to properly compare [p]laintiff’s past RFC to his current RFC.” Turpin, 2018 WL
5410926, at *3. The loss of the claimant’s records does not discharge the ALJ’s duty to determine
whether medical improvement has occurred as required by 20 C.F.R. § 404.1594(b)(7). The fact
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of medical improvement is required to continue with the sequential evaluation, the Court does not

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reach the additional arguments raised by plaintiff. See, e.g., Hryzhuk, 2016 WL 1162697, at *4

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n.2; Medina, 2015 WK 5448498, at *12 n.6; Tucker, 2015 WL 1240001, at *5 n.3; Lee, 2012 WL

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928741, at *7.

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V. CONCLUSION

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For the foregoing reasons, the ALJ’s finding that plaintiff experienced medical

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improvement is both legally erroneous for lacking a comparative analysis and unsupported by

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substantial evidence. Accordingly, the Court GRANTS plaintiff’s motion for summary judgment,

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DENIES the Commissioner’s cross-motion for summary judgment, and REMANDS this case

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pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Order.

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Northern District of California

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The Clerk of Court is directed to enter judgment in favor of plaintiff.

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This Order terminates the Docket Numbers 23 and 36.

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IT IS SO ORDERED.

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Dated: July 14, 2021
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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that claimants who are found to be disabled are not entitled to a presumption of a continuing
disability, see Lambert v. Saul, 980 F.3d 1266, 1268 (9th Cir. 2020), also does not relieve the ALJ
of his obligation.
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