Masterson v. Colvin

Filing 17

REPORT AND RECOMMENDATION on 15 MOTION for Summary Judgment filed by Carolyn W. Colvin and 13 MOTION for Summary Judgment filed by Arlene Elizabeth Masterson. Objections, if any, to R&R due on or before July 25, 2017. No reply briefs will be accepted.(ajf)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 14 15 Case No.: 16-CV-1300-GPC(WVG) ARLENE ELIZABETH MASTERSON, Plaintiff, REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT v. CAROLYN W. COLVIN, Defendant. [Doc. Nos. 13, 15.] 16 17 18 This is an action for judicial review of a decision by the Acting Commissioner 19 of Social Security, Carolyn W. Colvin (“the Commissioner,” or “Defendant”), 20 denying Plaintiff Arlene Elizabeth Masterson supplemental security income (“SSI”) 21 benefits under Title XVI of the Social Security Act. The parties have filed cross- 22 motions for summary judgment, and the matter is before the undersigned Magistrate 23 Judge for preparation of a Report and Recommendation. For the reasons stated 24 below, the Court RECOMMENDS that Plaintiff’s motion for summary judgment 25 be GRANTED, Defendant’s cross-motion for summary judgment be DENIED, and 26 the matter be remanded for further proceedings. 1 16-CV-1300-GPC(WVG) 1 I. OVERVIEW OF SOCIAL SECURITY CLAIM PROCEEDINGS 2 Pursuant to the Act, the Social Security Administration (“SSA”) administers 3 the SSI program. 42 U.S.C. § 901. The Social Security Act authorizes the SSA to 4 create a system by which it determines who is entitled to benefits and by which 5 unsuccessful claimants may obtain review of adverse determinations. Id. §§ 423 et 6 seq. Defendant, as Acting Commissioner of the SSA, is responsible for the Act’s 7 administration. Id. § 902(a)(4), (b)(4). 8 A. SSA’s Sequential Five-Step Process 9 The SSA employs a sequential five-step evaluation to determine whether a 10 claimant is eligible for benefits. 20 C.F.R. §§ 416.920, 404.1520. To qualify for 11 disability benefits under the Act, a claimant must show that (1) he or she suffers 12 from a medically-determinable impairment1 that can be expected to result in death 13 or that has lasted or can be expected to last for a continuous period of twelve months 14 or more and (2) the impairment renders the claimant incapable of performing the 15 work that he or she previously performed or any other substantially gainful 16 employment that exists in the national economy. See 42 U.S.C. §§ 423(d)(1)(A), 17 (2)(A); 1382(c)(3)(A). 18 A claimant must meet both of these requirements to qualify as “disabled” 19 under the Act, id. § 423(d)(1)(A), (2)(A), and bears the burden of proving that he 20 or she “either was permanently disabled or subject to a condition which became so 21 severe as to create a disability prior to the date upon which [his or] her disability 22 insured status expired.” Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). 23 An administrative law judge (“ALJ”) presides over the five-step process to 24 25 26 1 A medically-determinable physical or mental impairment “is an impairment that results from anatomical, physiological, or psychological abnormalities, which can be shown by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). 2 16-CV-1300-GPC(WVG) 1 determine disability. See Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003) 2 (summarizing the five-step process). If the Commissioner finds that a claimant is 3 disabled or not disabled at any step in this process, the review process is terminated 4 at that step. Corrao v. Shalala, 20 F.3d 943, 946 (9th Cir. 1994). 5 Step one in the sequential evaluation considers a claimant’s “work activity, 6 if any.” 20 C.F.R. § 404.1520(a)(4)(i). An ALJ will deny a claimant disability 7 benefits if the claimant is engaged in “substantial gainful activity.” 8 §§ 404.1520(b), 416.920(b). Id. 9 If a claimant cannot provide proof of gainful work activity, the ALJ proceeds 10 to step two to ascertain whether the claimant has a medically severe impairment or 11 combination of impairments. The so-called “severity regulation” dictates the course 12 of this analysis. Id. §§ 404.1520(c), 416.920(c); see also Bowen v. Yuckert, 482 13 U.S. 137, 140-41 (1987). 14 An ALJ will deny a claimant’s disability claim if the ALJ does not find that 15 a claimant suffers from a severe impairment or combination of impairments which 16 significantly limits the claimant’s physical or mental ability to do “basic work 17 activities.” 20 C.F.R. § 404.1520(c). The ability to do “basic work activities” 18 means “the abilities and aptitudes necessary to do most jobs.” Id. §§ 404.1521(b), 19 416.921(b). 20 However, if the impairment is severe, the evaluation proceeds to step three. 21 At step three, the ALJ determines whether the impairment is equivalent to one of 22 several listed impairments that the SSA acknowledges are so severe as to preclude 23 substantial gainful activity. Id. §§ 404.1520(d), 416.920(d). An ALJ conclusively 24 presumes a claimant is disabled so long as the impairment meets or equals one of 25 the listed impairments. Id. §§ 404.1520(d). 26 3 16-CV-1300-GPC(WVG) 1 If the ALJ has not yet deemed a claimant disabled, but before formally 2 proceeding to step four, the ALJ must establish the claimant’s Residual Functional 3 Capacity (“RFC”). Id. §§ 404.1520(e), 404.1545(a). An individual’s RFC is his or 4 her ability to do physical and mental work activities on a sustained basis despite 5 limitations from his or her impairments. Id. §§ 404.945(a)(1), 404.1545(a)(1). The 6 RFC analysis considers “whether [the claimant’s] impairment(s), and any related 7 symptoms, such as pain, may cause physical and mental limitations that affect what 8 [the claimant] can do in a work setting.” Id. §§ 404.1545(a)(1), 416.945(a)(1). In 9 establishing a claimant’s RFC, the ALJ must assess relevant medical and other 10 evidence, as well as consider all of the claimant’s impairments, including 11 impairments categorized as non-severe. Id. § 404.1545(a)(3), (e). If an ALJ does 12 not conclusively determine a claimant’s impairment or combination of impairments 13 is disabling at step three, the evaluation advances to step four. 14 At step four, the ALJ uses the claimant’s RFC to determine whether the 15 claimant has the RFC to perform the requirements of their past relevant work. Id. 16 § 404.1520(f). So long as a claimant has the RFC to carry out his or her past relevant 17 work, the claimant is not disabled. Id. §§ 404.1560(b)(3). Conversely, if the 18 claimant either cannot perform or does not have any past relevant work, the analysis 19 presses onward. 20 At the fifth and final step of the SSA’s evaluation, the ALJ must verify 21 whether the claimant is able to do any other work in light of his or her RFC, age, 22 education, and work experience. Id. § 404.1520(g). If the claimant is able to do 23 other work, the claimant is not disabled. However, if the claimant is not able to do 24 other work and meets the duration requirement, the claimant is disabled. Id. 25 Although the claimant generally continues to have the burden of proving disability 26 at step five, a limited burden of going forward with the evidence shifts to the SSA. 4 16-CV-1300-GPC(WVG) 1 At this stage, the SSA must present evidence demonstrating that other work that the 2 claimant can perform—allowing for his RFC, age, education, and work 3 experience—exists in significant numbers in the national economy. 4 §§ 404.1520, 1560(c), 416.920, 404.1512(f). 5 B. Id. SSA Hearings and Appeals Process 6 In accordance with Defendant’s delegation, the Office of Disability 7 Adjudication and Review administers a nationwide hearings and appeals program. 8 SSA regulations provide for a four-step process for administrative review of a 9 claimant’s application for disability payments. See id. §§ 416.1400, 404.900. Once 10 the SSA makes an initial determination, three more levels of appeal exist: 11 (1) reconsideration, (2) hearing by an ALJ, and (3) review by the Appeals Council. 12 See id. §§ 416.1400, 404.900. If the claimant is not satisfied with the decision at 13 any step of the process, the claimant has sixty days to seek administrative review. 14 See id. §§ 404.933, 416.1433. If the claimant does not request review, the decision 15 becomes the SSA’s—and hence Defendant’s—binding and final decree. See id. 16 §§ 404.905, 416.1405. 17 A network of SSA field offices and state disability determination services 18 initially process applications for disability benefits. The processing begins when a 19 claimant completes both an application and an adult disability report, and submits 20 those documents to one of the SSA’s field offices. If the SSA denies the claim, the 21 claimant is entitled to a hearing before an ALJ in the SSA’s Office of Disability 22 Adjudication and Review. Id. §§ 404.929, 416.1429. A hearing before an ALJ is 23 informal and non-adversarial. Id. § 404.900(b). 24 If the claimant receives an unfavorable decision by an ALJ, the claimant may 25 request review by the Appeals Council. Id. §§ 404.967, 416.1467. The Appeals 26 Council will grant, deny, dismiss, or remand a claimant’s request. Id. §§ 416.1479, 5 16-CV-1300-GPC(WVG) 1 404.979. If a claimant disagrees with the Appeals Council’s decision or the Appeals 2 Council declines to review the claim, the claimant may seek judicial review in a 3 federal district court pursuant to 42 U.S.C. § 405(g) or § 1383(c). 4 §§ 404.981, 416.1481. If a district court remands the claim, the claim is sent to the 5 Appeals Council, which may either make a decision or refer the matter to another 6 ALJ. Id. § 404.983. 7 8 II. A. See id. BACKGROUND Administrative Proceedings 9 In June 2012, Plaintiff protectively filed an application for SSI, alleging 10 disability as of February 12, 2011. (AR 178-87.) Also in June 2012, the SSA denied 11 Plaintiff’s initial application. (AR 61-87.) In December 2012, Plaintiff was again 12 denied benefits upon reconsideration. (AR 88-101.) 13 On July 2, 2014, the ALJ held a hearing to review Plaintiff’s claim. (AR 35- 14 59.) Plaintiff and a vocational expert (“VE”) testified at the hearing. (AR 36.) The 15 ALJ issued her written decision on September 9, 2014. (AR 16-29.) At step one of 16 the sequential evaluation process described above, the ALJ found Plaintiff had not 17 engaged in substantial gainful activity since her alleged onset date of February 12, 18 2011. (AR 18.) 19 At step two, the ALJ found Plaintiff had severe impairments of (1) a spine 20 disorder, (2) right shoulder disorder, and (3) cystitis (an inflammation of the 21 bladder), but found various other claimed impairments were either not severe or 22 lacked medical support.2 (AR 18-22.) 23 24 25 26 2 These included an episode of syncope (the temporary loss of consciousness caused by a fall in blood pressure), cardiac disorder, carpel tunnel, depressive disorder, pain disorder with psychological factors, and personality disorder with borderline features. 6 16-CV-1300-GPC(WVG) 1 At step three, the ALJ concluded that Plaintiff did not have an impairment or 2 combination of impairments that met or medically equaled one of the listed 3 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 22.) 4 Between steps three and four, in her RFC assessment, the ALJ found Plaintiff 5 could perform light work, except that she was limited to lifting and carrying no 6 more than 20 pounds occasionally and 10 pounds frequently; pushing and pulling 7 within the same weight limits; standing and walking six out of eight hours with no 8 prolonged walking for more than approximately 60 minutes at a time; sitting for six 9 out of eight hours with the ability to stand and stretch for no more than 10 percent 10 of the day; avoiding ladders, ropes, or scaffolds; no work hazards; occasional 11 overhead reaching with the right extremity; unskilled work; and close proximity to 12 a restroom facility. (Id.) 13 At step four, the ALJ found Plaintiff was able to perform her past relevant 14 work as a caregiver. (AR 27.) The ALJ concluded the caregiver work qualified as 15 past relevant work because Plaintiff had performed it within the prior 15 years, had 16 done so for a sufficient period of time to learn the position and to provide average 17 performance, and she had performed it “at the level of substantial gainful activity.” 18 (Id.) However, the ALJ did not explain the specific bases behind each of these 19 findings. 20 At step five, based on the VE’s testimony, the ALJ made an alternative 21 finding that considering Plaintiff’s age, education, work experience, and RFC, there 22 were jobs in significant numbers in the national economy that Plaintiff could 23 perform. (AR 27-28.) These jobs were “mail clerk,” “small parts assembler,” and 24 “garment folder.” (AR 28.) 25 26 7 16-CV-1300-GPC(WVG) 1 Accordingly, the ALJ found that Plaintiff was not disabled from February 12, 2 2011, her alleged onset of disability date, through the date of the decision. (AR 28- 3 29.) 4 Plaintiff thereafter requested a review of the ALJ’s decision (AR 7-12), but 5 the Appeals Council denied her request for review (AR 1-6). The ALJ’s decision 6 thereafter became the SSA’s final and definitive determination in Plaintiff’s case. 7 42 U.S.C. § 405(g). 8 On February 18, 2016, Plaintiff commenced the instant action for judicial 9 review. (Doc. No. 1.)3 Plaintiff thereafter filed a motion for summary judgment 10 (“MSJ”) (Doc. No. 14), and Defendant filed a cross-motion for summary judgment 11 (“Cross-MSJ”) and opposition to Plaintiff’s MSJ (Doc. No. 16). Plaintiff did not 12 file an opposition to Defendant’s Cross-MSJ or a reply to Defendant’s opposition 13 to her MSJ. 14 B. Summary of Medical Records Submitted to the ALJ for Review 15 On January 23, 2009, more than two years before the date Plaintiff alleged 16 she became disabled, Luis C. Maas, III, M.D., conducted an MRI on Plaintiff’s right 17 shoulder. 18 degenerative change, and trace bursal fluid, but otherwise the findings were 19 unremarkable. (AR 324.) Dr. Maas also investigated Plaintiff’s complaint of pain 20 in her neck and arm, and diagnosed her with mild diffuse degenerative spondylosis 21 (degeneration) of the cervical spine, mild central canal stenosis (narrowing), and 22 mild to moderate bilateral neural foraminal narrowing at multiple levels. (AR 326- 23 27.) Later, on November 20, 2009, Plaintiff had an orthopedic evaluation of her (AR 324-27.) The MRI indicated tears in her tendon, moderate 24 25 26 3 Unless otherwise noted, references to page numbers in documents filed on the Court’s CM/ECF system are to electronically-stamped page numbers created by the CM/ECF system, not to the document’s original pagination. 8 16-CV-1300-GPC(WVG) 1 right shoulder with and was diagnosed with impingement syndrome and subcromial 2 bursitis (inflammation). (AR 449.) 3 On June 24, 2011, Diana Sandoval-Cortez, M.D., examined Plaintiff for 4 chronic lower back pain and determined that Plaintiff had mild degenerative 5 changes in her lower lumbar spine. (AR 383-84.) There was mild bilateral 6 neuroforaminal narrowing, moderate left paravertebral bridging osteophyte (bony 7 outgrowth), and mild disc space narrowing but no other abnormalities. (AR 383.) 8 Then on January 17, 2012, Plaintiff saw Dr. Sandoval-Cortez again for back pain, 9 and the doctor determined that Plaintiff had multi-level degenerative changes in her 10 thoracic spine. (AR 381.) 11 On March 6, 2012, Facika Tafara, M.D. completed a Supplemental 12 Certification. (AR 556.) Dr. Tafara opined that the Plaintiff was disabled based on 13 lumbar degenerative disc disease, cervical degenerative disc disease, and rotator 14 cuff tear and that Plaintiff would be able to return to her regular or customary work 15 on June 30, 2012. 16 On July 9, 2012, Plaintiff was hospitalized for chest pains. (AR 329-35.) 17 Plaintiff performed a treadmill test, where she essentially had normal results. (AR 18 329.) Plaintiff did not have further chest pain after admission, and the doctor 19 recommended that she exercise and cease tobacco use. Plaintiff was discharged in 20 stable condition and diagnosed with chest pain, dyslipidemia, hypertension, and 21 depression. The doctor prescribed Baclofen, Diphenhydramine, Prozac, Fluticasone 22 nasal spray, Percocet, and Simvastatin, and advised her to take aspirin. (AR 330.) 23 Also, on the same date, another doctor examined Plaintiff and found minimal 24 atelectasis (collapsed lung) or scarring but found no abnormalities. (AR 376-77.) 25 26 9 16-CV-1300-GPC(WVG) 1 Plaintiff was then referred to Alborz Hassankhani, M.D., on July 16, 2012, 2 who found that Plaintiff had a negative (normal) exercise treadmill test, a slightly 3 elevated level of LDL and total cholesterol, and palpitations. (AR 339.) 4 On October 8, 2012, Jaga Glassman, M.D. performed a psychiatric 5 evaluation. (AR 385-91.) Dr. Glassman noted that Plaintiff was clean and well- 6 dressed, maintained good eye contact, and had a calm, cooperative, polite, and 7 respectful attitude and demeanor, though she showed some mild depressed mood. 8 (AR 388-89.) 9 remembering three words; correctly solving a money-changing problem; 10 appropriately interpreting a proverb; stating Sacramento as the current capital of 11 California; knowing that the sun rose from the east; and naming the current and 12 previous presidents. (AR 389.) Dr. Glassman diagnosed her with pain disorder 13 with medical and psychological factors, probable personality disorder, and 14 musculoskeletal/orthopedic problems. (AR 390.) Dr. Glassman assessed a Global 15 Assessment of Functioning (GAF)4 score of 60, and opined that Plaintiff was 16 capable of behaving in a socially appropriate manner, getting along with others, 17 adapting to changes and stresses in the workplace; maintaining concentration, 18 persistence, and pace for simple and complex tasks; and managing her own funds. 19 (AR 390-91.) She exhibited average intellectual functioning, repeating and 20 The following day, Vicente R. Bernabe, D.O., conducted an orthopedic 21 evaluation. (AR 392-96.) Dr. Bernabe did not observe any abnormal curvatures or 22 scoliosis in Plaintiff’s spine or deformities, scars, or masses in her shoulders. (AR 23 24 25 26 4 A GAF score of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). Am. Psychiatry Assoc., Diagnostic and Statistical Manual of Mental Health Disorders, Fourth Ed. Text Revision (DSM-IV-TR), 34 (2000). 10 16-CV-1300-GPC(WVG) 1 394.) The range of motion in her left shoulder was within normal limits, though 2 she had a positive impingement sign and pain in her right shoulder. She was able 3 to walk on her toes and heels without difficulty, and her alternating hand 4 movements were normal. (AR 395.) Dr. Bernabe opined, among other things, that 5 Plaintiff did not have any restrictions for fine and gross manipulative movements, 6 but overhead motion was limited to an occasional basis due to her right upper 7 extremity secondary to a rotator cuff tear and impingement syndrome. (AR 396.) 8 On October 30, 2012, S. Lee, M.D., a State agency physician, reviewed the 9 medical evidence of record, and found, among other things, that Plaintiff’s ability 10 to reach to the right overhead was limited, but she could handle, finger, and feel 11 without limitations. (AR 71.) 12 On November 1, 2012, State agency physician Nicole Lazorwitz, Psy.D, 13 found that Plaintiff had mild restrictions in activities of daily living, but had no 14 difficulties in maintaining social functioning or concentration, persistence, or pace 15 and no repeated episodes of decompensation of extended duration. (AR 81.) Dr. 16 Lazorwitz noted that Plaintiff seemed frustrated but otherwise was independent and 17 could engage in basic activities of daily living. (AR 82.) 18 During the reconsideration phase, State agency physician R. Bitonte, M.D., 19 reviewed the medical evidence on March 29, 2013. (AR 98-100.) His findings as 20 to Plaintiff’s manipulative limitations mirrored those of Dr. Lee. (AR 98-99.) On 21 April 8, 2013, Richard Kaspar, Ph.D., another State agency physician, also 22 reviewed the medical evidence. (AR 95-97.) He confirmed Dr. Lazorwitz’s 23 findings and the functional capacity assessed on October 30, 2012. (AR 95.) 24 On October 2, 2014, after the ALJ’s decision, Plaintiff had an appointment 25 with Akther Kotha, M.D. (AR 569-73.) Dr. Kotha found that Plaintiff had 26 tenderness in the PIP and MCP joints, wrists, elbows, and ankles. (AR 572.) In a 11 16-CV-1300-GPC(WVG) 1 section titled, “Discussion,” Dr. Kotha stated that Plaintiff had fibromyalgia and 2 pain, swelling, and stiffness in her joints. (AR 573.) Dr. Kotha determined that 3 Plaintiff possibly had rheumatoid arthritis and prescribed Lyrica.5 (Id.) 4 C. Plaintiff’s Testimony 5 Plaintiff testified at the hearing before the ALJ that she suffered from a 6 number of conditions. She confirmed her application for benefits was based on 7 osteoarthritis, tendinitis, carpel tunnel syndrome, right shoulder impingement, 8 sciatica, chronic obstructive pulmonary disease, migraines, depression, high blood 9 pressure, and high cholesterol. (AR 40-41.) In addition to those ailments, she 10 reported plaque buildup in her heart and carotid arteries and weight gain. (AR 40.) 11 She reported difficulty sleeping, staying focused, and felt nervous. (AR 42.) She 12 reported that her chronic pain was the most problematic physical ailment she 13 suffered and that the pain spread from the top of her neck to the bottom of her spine. 14 (AR 42.) Her right shoulder and arm also caused her significant problems with 15 maintaining strength. (AR 45.) She wore a back brace every day and was required 16 to elevate her feet periodically throughout the day to alleviate pain, which became 17 worse by lifting and by general exertion. (AR 48-49.) She believed she could lift 18 no more than 10 pounds. (AR 51.) She reported constant, periodic spasms in her 19 neck, legs, feet, and even stated her feet were becoming numb during the hearing. 20 (AR 49-50.) She took a variety of medications for her ailments, and her side effects 21 included diarrhea, swelling, and problems with memory and concentration. (AR 22 51.) 23 24 25 26 5 Generically known as “pregabalin,” Lyrica “is a prescription medicine approved . . . to treat fibromyalgia, diabetic nerve pain, spinal cord injury nerve pain and pain after shingles. [It] is also indicated to treat partial onset seizures in adults with epilepsy who take 1 or more drugs for seizures.” about-lyrica (last visited July 5, 2017). 12 16-CV-1300-GPC(WVG) 1 Plaintiff reported she lived alone in an apartment, washed dishes but did so 2 with difficulty and while taking frequent breaks, did laundry, possessed a driver’s 3 license, and drove herself to the hearing. (AR 45-47.) 4 As for her employment history, Plaintiff confirmed she had worked as a 5 caregiver for the prior 15 years. (AR 52.) In that capacity, she cooked for a client, 6 assisted with hygienic needs, cleaned the house, and attended to other necessities. 7 (Id.) 8 D. Vocational Expert’s Testimony 9 A vocational expert also testified at the hearing. (AR 52-58.) The VE 10 classified Plaintiff’s caregiver position as light work that involved lifting up to 10 11 pounds and standing and walking for four hours. (AR 54.) 12 The ALJ presented the VE a hypothetical where the worker was limited to 13 lifting and carrying no more than 20 pounds occasionally and 10 pounds frequently; 14 pushing and pulling within those same limits; standing and walking for six hours 15 out of an eight-hour workday, with no prolonged walking for more than about an 16 hour at a time; sitting six out of eight hours with the ability to stand and stretch for 17 no more than 10 percent of the day; no work hazards; and a restroom facility in 18 close proximity. (AR 54-55.) This hypothetical, based on Plaintiff’s RFC, also 19 limited her overhead reaching with her right extremity to occasional reaching. (AR 20 55.) 21 In response, the VE testified that there would be past work as actually 22 performed but not as generally performed. (AR 55.) As for other unskilled light 23 jobs in the national economy, the VE testified that other available jobs would 24 include a mail clerk, a small parts assembler, and a garment folder. (AR 56.) 25 26 13 16-CV-1300-GPC(WVG) 1 III. STANDARD OF REVIEW 2 A district court will not disturb the Commissioner’s decision unless it is based 3 on legal error or not supported by substantial evidence. Smolen v. Chater, 80 F.3d 4 1273, 1279 (9th Cir. 1996). Substantial evidence means more than a scintilla, but 5 less than a preponderance. Id. Substantial evidence is evidence that a reasonable 6 mind would consider adequate to support a conclusion. Id. The ALJ is responsible 7 for determining credibility, resolving conflicts in medical testimony, and resolving 8 ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). If the 9 evidence is subject to more than one rational interpretation, the ALJ’s conclusion 10 must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 11 The district court may enter a judgment affirming, modifying, or reversing 12 the Commissioner’s decision. 42 U.S.C. § 405(g). The Court may also remand the 13 matter to the Social Security Administration for further proceedings. Id. 14 IV. DISCUSSION 15 Plaintiff challenges the ALJ’s adverse decision on two grounds. First, she 16 contends a new medical examination that occurred after the ALJ’s decision issued 17 explains why objective medical evidence did not exist to support many of her 18 claimed impairments. Although, the ALJ did not have the opportunity to consider 19 this post-decision medical evidence, Plaintiff contends this new medical evidence 20 establishes that the ALJ’s RFC assessment was not based on substantial evidence. 21 Second, she claims the ALJ erred when she concluded Plaintiff’s past work was 22 “past relevant work” because she performed it at “substantial gainful activity” 23 (“SGA”) levels. She claims her work never met minimum earnings thresholds for 24 the relevant years and thus could not have qualified. The Court addresses the SGA 25 issue first and recommends remand for further proceedings by the ALJ. As part of 26 14 16-CV-1300-GPC(WVG) 1 that remand, the ALJ should also consider the new medical evidence and develop 2 the record. 3 A. 5 Substantial Evidence Does Not Support the ALJ’s Finding that Plaintiff’s Past Work Was Performed at a Substantial Gainful Activity Level; the Error Was Not Harmless; and the Matter Should be Remanded 6 So long as a claimant has the RFC to carry out her past relevant work, she is 7 not disabled. 20 C.F.R. § 404.1560(b)(3). In order for prior jobs to qualify as “past 8 relevant work,” they must have been “substantial gainful activity.” Lewis v. Apfel, 9 236 F.3d 503, 515 (9th Cir. 2001). Substantial gainful activity is defined as “work 10 activity that involves doing significant physical or mental activities . . . that [a 11 claimant does] for pay or profit.” 20 C.F.R. §§ 404.1572, 416.972. “Earnings can 12 be a presumptive, but not conclusive, sign of whether a job is substantial gainful 13 activity.” Lewis, 236 F.3d at 515. A presumption that a person engaged in 14 substantial gainful activity is made if that person’s average monthly income 15 attributable to that activity exceeds a certain average amount that is designated for 16 each applicable calendar year and which vary depending on the year. 20 C.F.R. 17 §§ 404.1574, 416.974; Keyes v. Sullivan, 894 F.2d 1053, 1056 (9th Cir. 1990). 4 18 In her decision, the ALJ found Plaintiff’s past work as a caregiver qualified 19 as “past relevant work” in part because she performed it “at the level of substantial 20 gainful activity.”6 (AR 27.) Plaintiff petitioned the Appeals Council to review the 21 ALJ’s SGA finding, contending that her past work did not meet the minimum 22 23 24 25 26 6 The ALJ found: “Based on the evidence of record, the undersigned finds . . . [Plaintiff’s work as a caregiver] is past relevant work because the claimant performed it within 15 years of the date of this decision, for a sufficient length of time to learn and provide average performance, and at the level of substantial gainful activity.” (AR 27 (emphasis added).) 15 16-CV-1300-GPC(WVG) 1 monthly earnings thresholds to qualify as such.7 (AR 8.) The Appeals Council 2 denied her request for review, and Plaintiff now again contends the ALJ erred in 3 finding her past work was performed at SGA levels. 4 Defendant contends Plaintiff waived this issue because she failed to raise it 5 before the ALJ. In the alternative, Defendant contends the ALJ did not err and, in 6 any event, error, if any, was harmless because the ALJ made an alternative finding 7 at step five that Plaintiff could perform three jobs that are available in the national 8 economy. Plaintiff preemptively addressed this harmless error argument in her 9 MSJ, arguing that the ALJ’s step five findings were not based on substantial 10 evidence and thus do not save the ALJ’s error at step four. Plaintiff is correct 11 This Court first finds that Plaintiff did not waive the SGA issue. Second, 12 substantial evidence does not support the ALJ’s conclusory finding that Plaintiff 13 performed the caregiver work at SGA levels. Third, this error was not harmless. 14 Finally, the Court recommends remand for further proceedings rather than ordering 15 that disability benefits be granted. 16 /// 17 /// 18 /// 19 /// 20 /// 21 22 23 24 25 26 7 Between 2001 and 2011, Plaintiff had earnings as a caregiver in nine years out of eleven years. (AR 8.) The minimum average monthly earnings thresholds for each year are as follows (with Plaintiff’s corresponding average monthly earnings in parentheses): 2001 $740 ($353.87); 2002 $780 ($765.61); 2004 $810 ($595.50); 2005 $830 ($520.55); 2006 $860 ($616.58); 2008 $940 ($408.85); 2009 $980 ($591.15); 2010 $1,000 ($961.84); and 2011 $1,000 ($537.66). (Id.) Plaintiff duplicated the earnings comparison chart she provided to the Appeals Council in the MSJ now pending before the Court. (Doc. No. 13-1 at 8.) 16 16-CV-1300-GPC(WVG) 1 1. 2 Although Defendant is correct that Plaintiff failed to raise the SGA issue 3 before the ALJ, Plaintiff nonetheless did not waive it because she presented it to the 4 Appeals Council when she sought review of the ALJ’s decision.8 Plaintiff Did Not Waive the SGA Issue 5 Defendant contends that under Meanel v. Apfel, 172 F.3d 1111 (9th Cir. 6 1999), Plaintiff waived the SGA issue because she did not raise it at the 7 administrative hearing. 8 vocational expert’s testimony, the jobs the vocational expert identified did not exist 9 in sufficient numbers in the local economy. 172 F.3d at 1115. In support, the 10 plaintiff relied on new statistical evidence not provided to the ALJ at the hearing or 11 to the Appeals Council. Id. The Ninth Circuit held that the plaintiff had not 12 preserved this argument, explaining that “when claimants are represented by 13 counsel, they must raise all issues and evidence at their administrative hearings in 14 order to preserve them on appeal.” Id. In Meanel, the plaintiff argued that, contrary to the 15 However, district courts in the Ninth Circuit have distinguished and declined 16 to apply Meanel where the claimant failed to present an argument or issue to the 17 ALJ but presented it to the Appeals Council in a subsequent request for review of 18 19 20 21 22 23 24 25 26 8 It appears Plaintiff may have implicitly agreed or at least assumed that the caregiver position was past relevant work and later ambushed the ALJ in her review request to the Appeals Council. Although she later protested to the Appeals Council that the work did not qualify (AR 8), in her initial letter-brief to the ALJ, she identified her prior work under the heading, “Past Relevant Work,” and simply contended she could “no longer perform past relevant work” due to her then-RFC. (AR 308.) This statement to the ALJ necessarily acknowledged or assumed that her past work was “past relevant work” in the first place, and she never argued otherwise to the ALJ. Indeed, at the hearing, her attorney sat silently as the ALJ told the vocational expert that Plaintiff “worked as a caregiver. That’s the only occupation she’s had at SGA level . . . ,” and she never challenged this statement at any point in the hearing. (AR 53-54 (emphasis added).) Nonetheless, there was no waiver here due to Plaintiff’s post-hearing letter-brief to the Appeals Council. 17 16-CV-1300-GPC(WVG) 1 the ALJ’s decision. See, e.g., Gomez v. Berryhill, 2017 U.S. Dist. LEXIS 95882, at 2 *5-6 (C.D. Cal. June 21, 2017); Ruiloba v. Colvin, 2016 U.S. Dist. LEXIS 70846, 3 at *13-15 (C.D. Cal. May 31, 2016); Chin v. Colvin, 2015 U.S. Dist. LEXIS 43876, 4 at *18-19 (D. Haw. Apr. 2, 2015). When district courts have applied Meneal, the 5 claimant had failed to present the issue to both the ALJ and Appeals Council. See, 6 e.g., Guerrero v. Colvin, 2017 U.S. Dist. LEXIS 64248, at *18-19 (S.D. Cal. Apr. 7 26, 2017); Simpson v. Colvin, 2016 U.S. Dist. LEXIS 71648, at *3-4 (C.D. Cal. 8 May 31, 2016); Harhaw v. Colvin, 2014 U.S. Dist. LEXIS 32256, at *13 (E.D. Cal. 9 Mar. 10, 2014). Here, although Plaintiff failed to raise the SGA issue both in her 10 letter-brief to the ALJ and during the hearing, she did raise it in her letter-brief to 11 the Appeals Council. (AR 8.) Accordingly, the SGA issue is not waived. 12 13 2. Substantial Evidence Does Not Support the ALJ’s Conclusory Finding that Plaintiff’s Past Work Was Performed at SGA Levels 14 Without in-depth analysis or explanation, and in a conclusory fashion, the 15 ALJ found Plaintiff’s past work as a caregiver qualified as “past relevant work” in 16 part because she performed it “at the level of substantial gainful activity.” (AR 27; 17 see also AR 53.) But she did not explain the specific bases behind this conclusion. 18 Then for the first time, and after the ALJ had issued her decision, Plaintiff argued 19 she did not perform her past work as the SGA level because her average monthly 20 pay fell well below the presumptive minimum thresholds. (See Doc. No. 13-1 at 8 21 (chart depicting SGA levels and shortfalls).) Defendant does not directly dispute 22 that Plaintiff’s average monthly income fell below the average amounts for any of 23 the nine years Plaintiff identified in her MSJ. See Doc. No. 15-1 at 17-18 (arguing 24 that earnings are not presumptive proof of SGA but not challenging Plaintiff’s 25 chart); see also Tables of SGA Earnings Guidelines and Effective Dates Based on 26 Year of Work Activity, Social Security Administration Program Operations Manual 18 16-CV-1300-GPC(WVG) 1 System (“POMS”) § DI 10501.015(B), available at 2 poms.nsf/lnx/0410501015 (last visited July 11, 2017) (listing threshold earnings 3 levels for years listed in Plaintiff’s chart). Instead, Defendant argues other factors— 4 the Lewis factors below—qualify the caregiver work as SGA. However, the ALJ 5 did not address these factors—indeed, Defendant does not contend she did so—and 6 the Court cannot affirm an ALJ’s decision based on reasons the ALJ did not cite. 7 Stout v. Comm’r, SSA, 454 F.3d 1050, 1054 (9th Cir. 2006) (“[W]e cannot affirm 8 the decision of an agency on a ground that the agency did not invoke in making its 9 decision”); see also Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002) 10 (“[R]egardless whether there is enough evidence in the record to support the ALJ’s 11 decision, principles of administrative law require the ALJ to rationally articulate the 12 grounds for her decision and [courts] confine [their] review to the reasons supplied 13 by the ALJ.”) (citing SEC v. Chenery Corp., 318 U.S. 80, 93-95 (1943) (other 14 citations omitted)). 15 Although it indeed appears Plaintiff did not meet the minimum average 16 monthly income, see supra footnote 7, the ALJ stated that she had past relevant 17 work as a caregiver without developing the record on, or even addressing, the SGA 18 issue.9 The ALJ could not have done so because the presumption that the position 19 was SGA was no triggered by sufficient earnings. This was error. However, the 20 SGA earnings consideration is merely one factor in the overall determination 21 whether past work qualifies as past relevant work that a claimant may continue to 22 23 24 25 26 9 To be fair, Plaintiff provided the ALJ no reason to believe she contested this issue. She assumed her past work was “past relevant work” in her letter-brief to the ALJ and simply stated she could no longer perform that work. And she never contested the ALJ’s representation to the VE that the caregiver work was “the only occupation she’s had at SGA level.” (AR 53.) Plaintiff essentially allowed the ALJ to proceed down the path of error and then sprung the issue upon the Appeals Council after the ALJ’s decision issued. 19 16-CV-1300-GPC(WVG) 1 perform—it is not the sole factor. As the Ninth Circuit has explained, when a 2 claimant’s earnings fall below the presumptive SGA thresholds, 3 4 5 6 7 8 9 10 11 12 The presumption that arises from low earnings shifts the stepfour burden of proof from the claimant to the Commissioner. Without the presumption, the claimant must produce evidence that he or she has not engaged in substantial gainful activity; if there is no such evidence, the ALJ may find that the claimant has engaged in such work. With the presumption, the claimant has carried his or her burden unless the ALJ points to substantial evidence, aside from earnings, that the claimant has engaged in substantial gainful activity. The regulations list five factors: the nature of the claimant’s work, how well the claimant does the work, if the work is done under special conditions, if the claimant is self-employed, and the amount of time the claimant spends at work. Generally, an ALJ should not consider activities like taking care of oneself, household tasks, hobbies, school attendance, club activities, or social programs to be substantial gainful activities. 13 Lewis v. Apfel, 236 F.3d 503, 515-16 (9th Cir. 2001) (citations omitted). Because 14 Plaintiff’s earnings did not exceed the minimum thresholds in the regulations, the 15 presumption that the past work was SGA did not arise. It simply meant that the 16 ALJ could not properly have concluded that the caregiver position was done at SGA 17 levels and that she had the duty to inquire further and develop the record. At that 18 point, the burden shifted to the ALJ to further inquire about Plaintiff’s past work, 19 develop the record, and provide other reasons to explain how the past work was 20 SGA despite the low earnings. The ALJ did not do so here and thus could not have 21 found that the factors above favored an SGA determination despite insufficient 22 earnings. Accordingly, substantial evidence does not support the ALJ’s finding that 23 the caregiver position was “past relevant work” based, in part, on Plaintiff 24 performing it at SGA levels. 25 26 20 16-CV-1300-GPC(WVG) 1 3. 2 Defendant contends that any error at step four was harmless because the ALJ 3 made alternative findings at step five that Plaintiff could perform three other jobs 4 that are available in the national economy. (Doc. No. 15-1 at 18-19.) Thus, even if 5 the ALJ erred at step four, the error was inconsequential to her ultimate finding that 6 Plaintiff was not disabled. Plaintiff argues the ALJ relied on suspect testimony 7 because the VE (1) stated there was no conflict between Plaintiff’s RFC and the 8 Dictionary of Occupational Titles’ (“DOT”) description of these three jobs when 9 (2) such a conflict in fact existed and was never resolved. (Doc. No. 13-1 at 10- 10 13.) As a result, she argues, the VE’s testimony is not substantial evidence for the 11 ALJ’s step five findings. (Id.) Plaintiff is correct. Although the ALJ made 12 alternative findings at step five, those findings do not find support in substantial 13 evidence. As a result, the ALJ’s error at step four was not harmless because the 14 ALJ also erred at step 5. The Error Was Not Harmless 15 Harmless error principles apply in the context of the Social Security Act. 16 Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015). Error is harmless “where 17 the mistake was nonprejudicial to the claimant or irrelevant to the ALJ’s ultimate 18 disability conclusion,” Stout, 454 F.3d at 1055, or where it is “clear from the record 19 that ‘the ALJ’s error was inconsequential to the ultimate nondisability 20 determination.’” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008); see 21 Parra v. Astrue, 481 F.3d 742, 747 (9th Cir. 2007); see also Batson v. Comm’r of 22 SSA, 359 F.3d 1190, 1197 (9th Cir. 2004) (finding an error harmless where it did 23 not negate the validity of the ALJ’s ultimate conclusion). Specifically relevant to 24 the SGA issue in this case, if an ALJ errs at step four, the error is harmless when 25 the ALJ makes alternative findings based on substantial evidence at step 5. 26 Tommasetti, 533 F.3d at 1042-43. 21 16-CV-1300-GPC(WVG) 1 At step five of the disability analysis, the burden shifts to the Commissioner 2 to show the existence of other work in the national economy that a claimant can 3 perform. See Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001) (citing 20 4 C.F.R. §§ 404.1520(f), 416.920(f)). To meet this burden, the Commissioner “must 5 ‘identify specific jobs existing in substantial numbers in the national economy that 6 [the claimant] can perform despite [her] identified limitations.’” Zavalin v. Colvin, 7 778 F.3d 842, 845 (9th Cir. 2015) (quoting Johnson v. Shalala, 60 F.3d 1428, 1432 8 (9th Cir. 1995)). In making this determination, the ALJ relies on the DOT, which 9 is the SSA’s “primary source of reliable . . . information” about jobs that exist in 10 the national economy. Id. at 845-46 (citations omitted). In addition to the DOT, 11 the ALJ relies on the testimony of vocational experts with respect to specific 12 occupations that a claimant can perform in light of her RFC. Id. at 846 (citations 13 omitted). The ALJ then determines “whether, given the claimant’s [RFC], age, 14 education, and work experience, [the claimant] actually can find some work in the 15 national economy.” Id. at 846 (citations omitted). Before relying on the testimony 16 of a VE, an ALJ has an “affirmative responsibility to ask about any possible conflict 17 between [the VE’s testimony] and information provided in the DOT.” Social 18 Security Ruling (“SSR”) 00-4p, 2000 SSR LEXIS 8, at *8. 19 The ALJ in this case considered at step five whether there were other jobs in 20 the national economy that Plaintiff could perform. At the outset, the ALJ asked the 21 VE to explain any conflict between her testimony and the DOT, and she agreed to 22 do so. (AR 53.) The VE then testified—that taking Plaintiff’s RFC into account— 23 Plaintiff could perform the jobs of a “mail clerk” (DOT 209.687-026), a “small parts 24 assembler” (DOT 929.587-010), and a garment folder (DOT 789.687-066). (AR 25 56.) Based on the VE’s testimony, the ALJ found Plaintiff could perform these 26 three jobs, that they existed in the national economy in sufficient numbers, and 22 16-CV-1300-GPC(WVG) 1 accordingly found Plaintiff was not disabled. However, the three occupations the 2 VE identified all had a key physical demand that plainly exceeded the RFC 3 determined by the ALJ and given in the hypothetical questions propounded to the 4 VE. (AR 54-55, 57-58.) 5 Plaintiff’s RFC explicitly limited her to “reaching overhead with the right 6 extremity” on only an occasional basis. (AR 55.) Reaching “occasionally” means 7 the activity is done only “up to 1/3 of the day.” See SSR 83-10, 1983 SSR LEXIS 8 30, at *13. However, all three jobs the VE identified exceeded Plaintiff’s RFC 9 limitations. DOT 209.687-026 (mail clerk; frequent reaching, where “[a]ctivity or 10 condition exists from 1/3 to 2/3 of the time”), DOT 929.587-010 (same for small 11 parts assembler), DOT 789.687-066 (garment folder; constant reaching, where 12 “[a]ctivity or condition exists 2/3 of the time or more”). Additionally, since Social 13 Security Ruling 85-15 notes that “reaching” is “extending the hands and arms in 14 any direction,” 1985 SSR LEXIS 20, at *18-19 (emphasis added), the necessary 15 implication is that all three jobs required frequent or constant reaching in all 16 directions—a requirement Plaintiff cannot fulfill with her right arm. Thus, the 17 reaching requirements of the three jobs the VE identified plainly conflicted with the 18 reaching limitation in Plaintiff’s RFC.10 Additionally, the requirement that Plaintiff 19 20 21 22 23 24 25 26 10 Numerous other district courts in this Circuit have found an apparent conflict existed where the ALJ limited a claimant to “occasional reaching” but a VE testified a worker with the limitation was able to perform work the DOT indicated required constant or frequent reaching. See, e.g., Murry v. Colvin, 2016 U.S. Dist. LEXIS 12345, at *20-21 (E.D. Cal. Feb. 1, 2016); Lang v. Comm’r of Soc. Sec., 2014 U.S. Dist. LEXIS 48558, at *19-20 (E.D. Cal. Apr. 8, 2014); Giles v. Colvin, 2013 U.S. Dist. LEXIS 132188, at *9-11 (C.D. Cal. Sep. 10, 2013); Ricker v. Colvin, 2013 U.S. Dist. LEXIS 107372, at *17-19 (D. Or. May 24, 2013); Richardson v. Astrue, 2012 U.S. Dist. LEXIS 138633, at *17-19 (N.D. Cal. Sept. 25, 2012); Duff v. Astrue, 2012 U.S. Dist. LEXIS 122442, at *10-13 (C.D. Cal. Aug. 28, 2012); Bentley v. Astrue, 23 16-CV-1300-GPC(WVG) 1 be able to reach in all directions conflicted with her inability to do so with her right 2 arm. 3 Given the above conflicts, the ALJ had a duty to ask follow-up questions to 4 resolve the conflicts. The ALJ did not fulfill this duty. Cf. Lidster v. Astrue, 2012 5 U.S. Dist. LEXIS 555, at *8-9 (S.D. Cal. Jan. 3, 2012) (Sabraw, J.) (“In her RFC 6 determination, the ALJ had found that Plaintiff was limited by ‘no reaching above 7 the shoulder level on the right.’ The ALJ questioned [the VE] about the reaching 8 requirement, and determined that the reaching was not repetitive and could be done 9 with either hand. Plaintiff had no limitations on reaching with his left hand. [¶] 10 [T]he ALJ fulfilled her duty of questioning the vocational expert regarding any 11 conflict between the DOT definition and Plaintiff’s limitations.”) (emphasis added). 12 Neither the ALJ nor the VE discussed the evident inconsistencies between the 13 reaching requirements listed in the DOT and the reaching limitation imposed in the 14 RFC. The ALJ’s failure to do so meant that her findings at step five were not based 15 on substantial evidence, and, as a result, her SGA error in step four was not 16 harmless.11 17 18 19 20 21 22 23 24 25 26 2011 U.S. Dist. LEXIS 77042, at *9-11 (C.D. Cal. July 14, 2011); Hernandez v. Astrue, 2011 U.S. Dist. LEXIS 6377, at *4-6 (C.D. Cal. Jan. 21, 2011). 11 The Court acknowledges that under some circumstances, the Court may rely on its common experience and find that no apparent conflict exists between a DOT occupation and a claimant’s limitation. See, e.g., Gutierrez v. Colvin, 844 F.3d 804, 808-09 (9th Cir. 2016). In Gutierrez, the court relied on common experience with the “familiar” occupation of cashiering to find that the occupation did not require overhead reaching. Id. at 808. As a result, the court reasoned that the ALJ did not have an obligation to ask follow-up questions where the “frequency or necessity of a task is unlikely and unforeseeable” as it was “with cashiers having to reach overhead.” Id. Here, the Court cannot do the same with the occupations the VE identified because they are not readily familiar occupations. 24 16-CV-1300-GPC(WVG) 1 Defendant contends that no conflict exists here because the VE agreed to 2 identify any conflicts at the beginning of her testimony and then did not identify 3 any conflicts, the implication being that a conflict must not have existed since the 4 VE did not identify one. This is unpersuasive given that a conflict is plainly evident 5 from the text of the DOT and Social Security Ruling 85-15. The VE not identifying 6 a conflict either means that no conflict existed or she failed to recognize and identify 7 one. The latter is a much more reasonable interpretation under the circumstances 8 of this case. Even if no conflict existed in the view of the VE, one certainly seems 9 apparent given the DOT requirements for the three jobs, Plaintiff’s RFC, and the 10 ALJ’s hypothetical. It was therefore incumbent upon either the ALJ or the VE to 11 affirmatively identify the conflict and address it rather than leave the record 12 uncertain about what the VE actually believed about the conflict and whether 13 Plaintiff could perform the jobs she identified despite the apparent conflict. 14 Defendant also notes that the ALJ’s RFC assessment “did not endorse a 15 limitation to frequent or constant reaching in general, but only to overhead reaching 16 with the right extremity.” (Doc. No. 15-1 at 14-15 (emphasis in general).) This 17 simply underscores the fact that the VE should have identified and then been asked 18 about the conflict between the reaching requirements in the DOT and Plaintiff’s 19 reaching limitation given that the ALJ specifically informed the VE about Plaintiff’s 20 overhead reaching limitation. The VE indeed may have excluded all jobs that 21 required significant overhead reaching, but that is not at all evident from the record. 22 The ALJ did not expressly instruct the VE to exclude such jobs, and the VE did not 23 state she had done so. 24 4. 25 In social security cases, remand may be for additional proceedings or for an 26 Remand for Further ALJ Proceedings award of benefits. Garrison v. Colvin, 759 F.3d 995, 1019 (9th Cir. 2014) 25 16-CV-1300-GPC(WVG) 1 (explaining that if “additional proceedings can remedy defects in the original 2 administrative proceeding, a social security case should be remanded[,]” but “in 3 appropriate circumstances courts are free to reverse and remand a determination by 4 the Commissioner with instructions to calculate and award benefits”) (internal 5 quotation marks omitted). “Courts have generally exercised this power [to grant 6 benefits] when it is clear from the record that a claimant is entitled to benefits, 7 observing on occasion that inequitable conduct on the part of the Commissioner can 8 strengthen, though not control, the case for such a remand.” Id. 9 To determine which type of remand is appropriate, the Ninth Circuit uses a 10 three-part test. Id. at 1020. First, the record must be fully developed and further 11 administrative proceedings would serve no useful purpose. Garrison, 759 F.3d at 12 1020. Second, the ALJ must fail to provide legally sufficient reasons for rejecting 13 evidence, whether claimant testimony or medical opinion. Id. Third, if the case is 14 remanded and the improperly discredited evidence is credited as true, the ALJ 15 would be required to find the claimant disabled. Id. To remand for an award of 16 benefits, each part of this test must be satisfied. Id. If the record is “uncertain and 17 ambiguous,” the matter is properly remanded for further proceedings. Treichler v. 18 Comm’r of SSA, 775 F.3d 1090, 1105 (9th Cir. 2014). 19 As explained above, the mere fact that Plaintiff’s earnings appear to be below 20 the SGA thresholds is not dispositive of whether her caregiver work qualifies as 21 past relevant work. The pertinent error in this case is the ALJ’s step four finding 22 that Plaintiff’s caregiver work was performed at the SGA level and the subsequent 23 failure to inquire into various relevant SGA factors. See Lewis v. Apfel, 236 F.3d 24 503, 515-16 (9th Cir. 2001) (identifying factors). Although the ALJ erred when she 25 did not develop the record and consider the factors in Lewis, the error does not 26 conclusively favor Plaintiff or compel the automatic grant of benefits. Moreover, 26 16-CV-1300-GPC(WVG) 1 the apparent conflict between the VE’s opinion and the DOT also merit further 2 exploration and clarification. It is not clear from such an undeveloped record that 3 Plaintiff is entitled to benefits. Accordingly, the Court cannot proceed past the first 4 step of the test in Garrison because the record is uncertain, not fully developed, and 5 additional administrative proceedings are required. 6 remand for further proceedings and findings by the ALJ on the SGA issue. 7 B. This Court recommends On Remand the ALJ Should Also Consider Dr. Kotha’s Assessment 8 Plaintiff’s challenge to the ALJ’s RFC assessment is very narrow and based 9 solely on a single medical report generated after the hearing and submitted to the 10 Appeals Council after the ALJ’s decision had already issued.12 (See AR 569-73.) 11 Rather than argue that the ALJ erred in finding that many of her claimed 12 impairments were non-severe, she appears to acknowledge that this finding was 13 correct at the time the ALJ made her findings, but argues that the new medical 14 assessment by Dr. Akther Kotha explains why no objective medical evidence 15 existed to support those impairments. (See Doc. No. 13-1 at 5 (“The ALJ found 16 many of the impairments non[-]severe because of [the] lack of objective medical 17 evidence. The diagnosis of Fibromyalgia a month after the unfavorable decision[] 18 reasonably answers the question . . . why no objective evidence exists.”) (emphasis 19 added).) She contends that this new evidence renders the ALJ’s RFC assessment 20 unsupported by substantial evidence and asks the Court to remand the matter to 21 allow the ALJ to consider Dr. Kotha’s assessment as part of her RFC analysis. This 22 is an appropriate course of action. 23 24 25 26 12 Plaintiff also does not challenge the ALJ’s RFC assessment based on the evidence the ALJ actually had before her and was able to consider. Her challenge of the ALJ’s RFC finding is limited to reliance on post-hearing medical evidence that she claims undermines the RFC finding. 27 16-CV-1300-GPC(WVG) 1 Although Dr. Kotha did not generate her assessment until after the ALJ’s 2 decision issued, that evidence is part of the record in this case because the Appeals 3 Council considered it in its decision to deny Plaintiff’s request for review. Brewes 4 v. Comm’r of SSA, 682 F.3d 1157, 1160-61, 1163 (9th Cir. 2012) (holding that when 5 a claimant submits evidence for the first time to the Appeals Council, which 6 considers that evidence in denying review of the ALJ’s decision, the new evidence 7 is part of the administrative record, which the district court must consider in 8 determining whether the Commissioner’s decision is supported by substantial 9 evidence.”).13 Defendant contends that the record as a whole supports the ALJ’s 10 findings even when Dr. Kotha’s assessment is considered. That, however, is not 11 readily apparent to this Court given the nature of Fibromyalgia and Plaintiff’s 12 claimed impairments. See generally Benecke v. Barnhart, 379 F.3d 587, 589-90 13 (9th Cir. 2004) (“fibromyalgia . . . [is] a rheumatic disease that causes inflammation 14 of the fibrous connective tissue components of muscles, tendons, ligaments, and 15 other tissue. Common symptoms . . . include chronic pain throughout the body, 16 multiple tender points, fatigue, stiffness, and a pattern of sleep disturbance that can 17 exacerbate the cycle of pain and fatigue associated with this disease.”). Although 18 Plaintiff appears to experience some of the symptoms of Fibromyalgia, Dr. Kotha’s 19 report is ambiguous and is not conclusive. For example, it is unclear whether Dr. 20 21 22 23 24 25 26 13 Defendant contends the Court lacks jurisdiction to review the Appeals Council’s decision denying review of the ALJ’s decision because the Council’s decision is an unreviewable non-final agency action. (Doc. No. 15-1 at 12.) However, the Court is not reviewing the Appeals Council’s decision and acknowledges that the ALJ’s decision is the only agency action being reviewed in this matter. Yet, that doesn’t place Dr. Kotha’s report out of this Court’s reach. As Defendant acknowledges, Brewes clearly requires the Court to consider Dr. Kotha’s report as part of its review of the ALJ’s decision—Dr. Kotha’s report is part of the administrative record under the circumstances of this case. 28 16-CV-1300-GPC(WVG) 1 Kotha’s report is actually a Fibromyalgia diagnosis. While it appears she concludes 2 that Plaintiff has this condition (see AR 573), it also appears she may have believed 3 Plaintiff had been diagnosed with the condition in the past (see AR 569 4 (summarizing that Plaintiff “was dx [or diagnosed] with Fibro as well” and had been 5 taking Lyrica)). But the record does not reflect Plaintiff being diagnosed with 6 Fibromyalgia before Dr. Kotha’s assessment.14 Given these observations, the Court 7 is reluctant to fully credit Dr. Kotha’s report on a cold record. There may be factors 8 or circumstances that affect the report’s reliability or credibility. However, the 9 Court is not in the best position to evaluate these concerns and determine this 10 report’s ultimate import. The ALJ, who made the initial RFC decision after a full 11 hearing and based on the medical record, is in the best position to consider the 12 ultimate impact of Dr. Kotha’s assessment on the ALJ’s own RFC findings. See 13 Allen v. Sec’y of Health & Human Servs., 726 F.2d 1470, 1473 (9th Cir. 1984) (“It 14 is the ALJ’s role to resolve evidentiary conflicts.”). Not having had the benefit of 15 Dr. Kotha’s assessment, the ALJ should be afforded the opportunity to consider it 16 given the recommendation above that the matter be remanded for further 17 proceedings. 18 Ultimately, although Dr. Kotha’s report may support Plaintiff’s claimed 19 impairments, there may be qualitative issues with the report itself. This Court 20 should not be the first to resolve these issues. That initial analysis should be left to 21 the ALJ, who will have the benefit of being able to further explore Dr. Kotha’s 22 23 24 25 26 14 Even assuming that Dr. Kotha’s assessment was a formal Fibromyalgia diagnosis, a diagnosis alone is not dispositive. See Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (mere existence of impairment is insufficient proof of a disability; claimant bears the burden of proving that an impairment is disabling). The mere existence of this report does not necessarily mean that Plaintiff is disabled, and the Court is not persuaded that this report conclusively has the meaning Plaintiff assigns it. 29 16-CV-1300-GPC(WVG) 1 report and possibly seek medical expert testimony at the remand hearing if 2 necessary. 3 developed with respect to Dr. Kotha’s report, any Fibromyalgia diagnosis, and their 4 impact on the ALJ’s assessment. Additional administrative proceedings would 5 therefore be helpful both to the proceedings below and an eventual second judicial 6 review, if any, by this Court. 7 C. Remand is therefore appropriate because the record is not fully Defendant is Not Entitled to Summary Judgment 8 Based on the foregoing recommendation that Plaintiff’s MSJ be granted and 9 this matter be remanded for further proceedings, this Court necessarily recommends 10 that Defendant’s Cross-MSJ be DENIED. 11 VI. CONCLUSION 12 This Court RECOMMENDS that Plaintiff’s MSJ be GRANTED, that 13 Defendant’s Cross-MSJ be DENIED, and the matter be REMANDED for further 14 proceedings by the ALJ. 15 This Report and Recommendation is submitted to the United States District 16 Judge assigned to this case, pursuant to the provisions of 28 U.S.C § 636(b)(1) and 17 Federal Rule of Civil Procedure 72(b). 18 IT IS ORDERED that no later than July 25, 2017, any party to this action 19 may file written objection with the Court and serve a copy on all parties. The 20 document shall be captioned “Objections to Report and Recommendation.” The 21 parties are advised that failure to file objections within the specific time may waive 22 the right to raise those objections on the appeal. 23 /// 24 /// 25 /// 26 /// 30 16-CV-1300-GPC(WVG) 1 IT IS FURTHER ORDERED that, in consultation with the District Judge 2 assigned to this matter, no reply briefs will be accepted. 3 IT IS SO ORDERED. 4 DATED: July 11, 2017 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 31 16-CV-1300-GPC(WVG)

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