Koschier v. Commissioner of Social Security

Filing 18

REPORT AND RECOMMENDATION on Cross Motions for Summary Judgment. Objections to R&R due by 9/24/2021 Replies due by 10/1/2021. Signed by Magistrate Judge Mitchell D. Dembin on 9/8/2021.(jrm)

Case 3:20-cv-01916-W-MDD Document 18 Filed 09/08/21 PageID.1849 Page 1 of 11

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

SHERRI LASHAWN K.,

Case No.: 20cv1916-W-MDD
Plaintiff,

12
13

v.

14

KILOLO KIJAKAZI,1 Acting
Commissioner of Social Security,

15

Defendant.

16
17

REPORT AND
RECOMMENDATION ON CROSS
MOTIONS FOR SUMMARY
JUDGMENT
[ECF Nos. 15, 16]

This Report and Recommendation is submitted to United States

18

District Judge Thomas J. Whelan pursuant to 28 U.S.C. § 636(b)(1) and Local

19

Civil Rule 72.1(c) of the United States District Court for the Southern

20

District of California.

21

Sherri Lashawn K. (“Plaintiff”) filed this action pursuant to 42 U.S.C.

22

§ 405(g) for judicial review of the final administrative decision of the

23

Commissioner of the Social Security Administration (“Commissioner” or

24
25
26
27

Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021 and is
therefore substituted for Andrew M. Saul as Defendant. See 42 U.S.C. § 405(g); Fed. R.
Civ. P. 25(d).
1

1
20cv1916-W-MDD

Case 3:20-cv-01916-W-MDD Document 18 Filed 09/08/21 PageID.1850 Page 2 of 11

1

“Defendant”) denying Plaintiff’s application for a period of disability and

2

disability insurance benefits under Title II of the Social Security Act (“Act”).

3

(AR at 18, 292-99).2 For the reasons expressed herein, the Court

4

RECOMMENDS Plaintiff’s motion for summary judgment be GRANTED,

5

Defendant’s motion for summary judgment be DENIED, and the case be

6

REMANDED for further administrative proceedings.

7

I.

BACKGROUND

8

Plaintiff was born on June 27, 1968. (AR at 29). At the time of

9

Plaintiff’s alleged disability onset date of May 25, 2015, Plaintiff was 46 years

10

old which categorized her as a younger person. 20 C.F.R. § 404.1563. (AR at

11

18, 29). At the time of the ALJ’s decision on March 2, 2020, Plaintiff’s age

12

category changed to a person closely approaching advanced age. (AR at 29).

13

A.

Procedural History

14

On October 13, 2015, Plaintiff protectively filed an application for a

15

period of disability and disability insurance benefits under Title II of the Act,

16

alleging a disability beginning on May 25, 2015. (AR at 18). After her

17

application was denied initially and upon reconsideration, Plaintiff requested

18

a hearing before an administrative law judge (“ALJ”). An administrative

19

hearing was held on December 8, 2017. (AR at 42-64). Plaintiff appeared

20

and was represented by her attorney. (Id.). Testimony was taken from

21

Plaintiff and Gloria Lasoff, a vocational expert (“VE”). (Id.). On March 16,

22

2018, the administrative law judge (“ALJ”) issued an unfavorable decision.

23

(AR at 18). Plaintiff appealed that decision. (Id.). On June 19, 2019, the

24

Appeals Council vacated the hearing decision and remanded the case for

25

further consideration. (Id.).

26
27

2

“AR” refers to the Certified Administrative Record filed on April 13, 2020. (ECF No. 11).
2
20cv1916-W-MDD

Case 3:20-cv-01916-W-MDD Document 18 Filed 09/08/21 PageID.1851 Page 3 of 11

1

A second administrative hearing was held on December 16, 2019. (AR

2

at 65-85). Plaintiff appeared and was represented by an attorney, Tim

3

Carpenter. (Id.). Testimony was taken from Plaintiff and VE Katie Macy-

4

Powers. (Id.). On March 2, 2020, the ALJ issued a decision denying

5

Plaintiff’s claim for a period of disability and disability insurance benefits.

6

(AR at 18-31). On March 10, 2020, Plaintiff sought review with the Appeals

7

Council. (AR at 290). On July 3, 2020, the Appeals Council denied Plaintiff’s

8

request for review and declared the ALJ’s decision to be the final decision of

9

the Commissioner in Plaintiff’s case. (AR at 1). This timely civil action

10

followed.

11

II.

DISCUSSION

12

A.

Legal Standard

13

Sections 405(g) and 1383(c)(3) of the Social Security Act allow

14

unsuccessful applicants to seek judicial review of a final agency decision of

15

the Commissioner. 42 U.S.C. §§ 405(g), 1383(c)(3). The scope of judicial

16

review is limited in that a denial of benefits will not be disturbed if it is

17

supported by substantial evidence and contains no legal error. Id.; see also

18

Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1993 (9th Cir. 2004).

19

Substantial evidence “is a ‘term of art’ used throughout administrative

20

law to describe how courts are to review agency factfinding.” Biestek v.

21

Berryhill, 139 S. Ct. 1148, 1154 (2019). Courts look “to an existing

22

administrative record and ask[] whether it contains ‘sufficien[t] evidence’ to

23

support the agency’s factual determinations.” Id. “[T]he threshold for such

24

evidentiary sufficiency is not high. Substantial evidence, [the Supreme

25

Court] has said, is ‘more than a mere scintilla.’ It means—and only means—

26

‘such relevant evidence as a reasonable mind might accept as adequate to

27

support a conclusion.” Id. The Ninth Circuit explains that substantial
3
20cv1916-W-MDD

Case 3:20-cv-01916-W-MDD Document 18 Filed 09/08/21 PageID.1852 Page 4 of 11

1

evidence is “more than a mere scintilla but may be less than a

2

preponderance.” Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012)

3

(quotation marks and citations omitted), superseded by regulation on other

4

grounds.

5

An ALJ’s decision is reversed only if it “was not supported by

6

substantial evidence in the record as a whole or if the ALJ applied the wrong

7

legal standard.” Id. “To determine whether substantial evidence supports

8

the ALJ’s determination, [the Court] must assess the entire record, weighing

9

the evidence both supporting and detracting from the agency’s conclusion.”

10

Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (citing Mayes v.

11

Massanari, 276 F.3d 453, 459 (9th Cir. 2001)). The Court “may not reweigh

12

the evidence or substitute [it’s] judgment for that of the ALJ.” Id. “The ALJ

13

is responsible for determining credibility, resolving conflicts in medical

14

testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035,

15

1039 (9th Cir. 1995). “When the evidence can rationally be interpreted in

16

more than one way, the court must uphold the [ALJ’s] decision.” Mayes, 276

17

F.3d at 459.

18

Section 405(g) permits a court to enter a judgment affirming, modifying

19

or reversing the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing

20

court may also remand the matter to the Social Security Administration for

21

further proceedings. Id.

22

B.

Summary of the ALJ’s Findings

23

In rendering his decision, the ALJ followed the Commissioner’s five-step

24

sequential evaluation process. See C.F.R. § 404.1520. At step one, the ALJ

25

found that Plaintiff had not engaged in substantial gainful activity since May

26

25, 2015. (AR at 20).

27

At step two, the ALJ found that Plaintiff had the following severe
4
20cv1916-W-MDD

Case 3:20-cv-01916-W-MDD Document 18 Filed 09/08/21 PageID.1853 Page 5 of 11

1

impairments: history of coronary artery disease, chondromalacia of the left

2

knee, adhesive capsulitis of the left shoulder, and obesity. (Id.).

3

At step three, the ALJ found that Plaintiff did not have an impairment

4

or combination of impairments that met or medically equaled one of the

5

impairments listed in the Commissioner’s Listing of Impairments. (AR at 23)

6

(citing 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),

7

404.1525 and 404.1526)).

8
9
10
11
12
13
14
15
16
17
18

Next, after considering the entire record, the ALJ determined that
Plaintiff had the residual functional capacity (“RFC”) to perform light work
with the following limitations:
the claimant can lift and carry no more than 20 pounds with
frequent lifting or carrying of objects weighing up to ten pounds.
The claimant can sit for six hours in an eight-hour workday and
stand or walk for six hours in an eight-hour workday. The claimant
can occasionally balance, stoop, kneel, crouch, crawl, and climb
ramps and stairs, but should never climb ladders, ropes or scaffolds.
The claimant can occasionally perform overhead reaching using her
left upper extremity (she is right hand dominant). The claimant
should also avoid concentrated exposure to extreme cold and heat,
unprotected heights, and moving and dangerous machinery.
(AR at 25).

19

The ALJ said that his RFC assessment was based on all the evidence

20

and the extent to which Plaintiff’s symptoms can reasonably be accepted as

21

consistent with the objective medical evidence and other evidence. (Id.). The

22

ALJ also stated that he considered the opinion evidence in accordance with

23

the requirements of 20 C.F.R. 404.1527. (Id.).

24

The ALJ then proceeded to step four of the sequential evaluation

25

process. He found Plaintiff was unable to perform her past relevant work.

26

(AR at 29). For the purposes of his step five determination, the ALJ accepted

27

the testimony of VE Gloria Lasoff. The ALJ determined that Plaintiff could
5
20cv1916-W-MDD

Case 3:20-cv-01916-W-MDD Document 18 Filed 09/08/21 PageID.1854 Page 6 of 11

1

perform jobs identified by the VE which exist in significant numbers in the

2

national economy. For example, cashier II (DOT 211.462-010), housekeeper

3

cleaner (DOT 323.687-014), and small products assembler (DOT 706.684-

4

022). (AR at 30).

5

C.

Issue in Dispute

6

The sole issue in dispute in this case is whether the ALJ’s RFC

7

determination is supported by substantial evidence. (ECF No. 15 at 18).

8

Plaintiff argues the ALJ’s RFC determination is not supported by medical

9

opinion evidence and the ALJ failed to fully and fairly develop the record by

10

not obtaining such evidence. (Id. at 17-24). In making this argument,

11

Plaintiff also highlights two factual issues raised by the ALJ’s

12

“interpretation” of the medical record. First, she contends that the ALJ

13

errantly discredited her subjective complaints because she did not have

14

surgery. (Id. at 22-23). Second, Plaintiff argues the ALJ misinterpreted the

15

medical record to find that she could lift her left arm overhead occasionally.

16

(Id. at 21). The Court addresses each sub-argument in turn.

17
18
19

1.

Medical Opinion Evidence and Duty to Fully and Fairly

Develop the Record
There are only two medical source opinions from 2015 and 2016, despite

20

additional medical records detailing Plaintiff’s impairments and treatments

21

up to 2019. (AR at 28). Both are non-examining state agency medical

22

consultant opinions. (Id.). The ALJ accorded these opinions “little weight”

23

because “the record is more consistent with limiting the claimant to

24

performing light exertional work” and because the “consultants did not

25

examine the claimant or review the record available at the hearing level

26

when they formed these opinions.” (Id.). Plaintiff contends the ALJ should

27

have solicited a more recent medical source opinion instead of relying on his
6
20cv1916-W-MDD

Case 3:20-cv-01916-W-MDD Document 18 Filed 09/08/21 PageID.1855 Page 7 of 11

1

own “lay interpretation of the evidence.” (ECF No. 15 at 18).

2

The ALJ has a special duty to fully and fairly develop the record and to

3

assure that the claimant’s interests are considered. Garcia v. Comm’r of Soc.

4

Sec., 768 F.3d 925, 930 (9th Cir. 2014). However, it remains the claimant’s

5

duty to prove that she is disabled. See Mayes v. Massanari, 276 F.3d 453, 459

6

(9th Cir. 2001). An ALJ’s duty to develop the record further is triggered only

7

when there is ambiguous evidence or when the record is inadequate to allow

8

for proper evaluation of the evidence. Id. Plaintiff suggests the record is

9

ambiguous or inadequate because the only medical opinions pre-date other

10

medical evidence and the ALJ did not rely on them in formulating his RFC

11

determination. (ECF No. 15 at 17-24).

12

“The mere existence of medical records post-dating a state agency

13

physician’s review does not in and of itself trigger a duty to further develop

14

the record.” Stivers v. Saul, No. 1:19-cv-01110-BAM, 2021 U.S. Dist. LEXIS

15

61358, at *26 (E.D. Cal. Mar. 30, 2021). The record contains Plaintiff’s

16

complete treatment records from 2015 to 2019. The ALJ also left the record

17

open after the administrative hearing and only closed it upon receipt of a

18

letter from Plaintiff’s counsel indicating the record was complete. (AR at 17,

19

453). The ALJ was not obligated to further develop the record where

20

Plaintiff’s counsel affirmatively stated that the record was complete. See

21

Stivers, 2021 U.S. Dist. LEXIS 61358, at *26; see also Findley v. Saul, No.

22

1:18-cv-00341-BAM, 2019 U.S. Dist. LEXIS 147761, at *19 (E.D. Cal. Aug. 29,

23

2019) (rejecting argument that the ALJ erred by failing to obtain additional

24

medical opinions in response to new medical evidence and finding the record

25

was not ambiguous or inadequate where the plaintiff’s attorney stated the

26

record was complete).

27

Additionally, the ALJ did not err by failing to obtain additional medical
7
20cv1916-W-MDD

Case 3:20-cv-01916-W-MDD Document 18 Filed 09/08/21 PageID.1856 Page 8 of 11

1

source opinions. It was Plaintiff’s burden to supplement the record with

2

additional medical source opinions if she believed it supported her claim.

3

Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999); 20 C.F.R. § 404.1512(a)

4

(“In general, you have to prove to us that you are blind or disabled.”). As

5

noted by Defendant, Plaintiff did not provide or request medical source

6

opinions before or after the administrative hearing, despite the record being

7

left open for additional evidence. (See ECF No. 16 at 5).

8
9

Nor did the Court err in evaluating medical evidence without the
benefit of new medical opinions interpreting it. Some courts have determined

10

that “an ALJ is ‘simply not qualified to interpret raw medical data in

11

functional terms.’” Padilla v. Astrue, 541 F.Supp.2d 1102, 1106 (C.D. Cal.

12

2008) (quoting Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)); see Day v.

13

Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (citation omitted) (stating

14

that the ALJ, “who [was] not a qualified medical expert, should not have gone

15

outside the record to the medical textbooks for the purpose of making his own

16

exploration and assessment as to claimant’s medical condition”). However,

17

the Court is unaware of any case where the Ninth Circuit has conclusively

18

held that an ALJ may not use or interpret the medical record in a disability

19

determination. “It is clear that it is the responsibility of the ALJ, not the

20

claimant’s physician, to determine the [RFC].” Vertigan v. Halter, 260 F.3d

21

1044, 1049 (9th Cir., 2001). An ALJ must base their RFC finding “on all the

22

relevant evidence in [one’s] case record,” rather than a single medical opinion

23

or piece of evidence. 20 C.F.R. § 404.1545(a)(1). The ALJ is “responsible for

24

translating and incorporating clinical findings into a succinct RFC.” Rounds

25

v. Comm’r of Social Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015).

26

Accordingly, it was well within the ALJ’s purview to evaluate medical

27

evidence without a medical source opinion interpreting it.
8
20cv1916-W-MDD

Case 3:20-cv-01916-W-MDD Document 18 Filed 09/08/21 PageID.1857 Page 9 of 11

1

2.

Factual Arguments

2

Plaintiff also argues the ALJ errantly discredited her testimony because

3

she did not have surgery on her knee or shoulder. (ECF No. 15 at 22). The

4

ALJ found that Plaintiff’s “treatment history suggests she is not as limited as

5

she has alleged” because she did not receive “surgical intervention to treat

6

her knee or shoulder impairments, or her history of coronary artery disease

7

(since 2009)” and she does not “need[] any specific treatment aside from

8

managed medication.” (AR at 28). Plaintiff does not challenge the ALJ’s

9

finding that her impairments are managed by medication and physical

10

therapy. (See ECF No. 15 at 22). Rather, Plaintiff avers that the ALJ was

11

wrong to discredit her for failing to pursue surgery because that was not an

12

option for her. (ECF No. 15 at 23) (citing AR at 1295). As noted by

13

Defendant, the record cited by Plaintiff does not indicate that she could not

14

have surgery. (ECF No. 16 at 10). The treatment note explains that Plaintiff

15

is a “questionable surgical candidate,” but that they could consider surgery.

16

(AR at 1295). Plaintiff chose to pursue physical therapy instead. (Id.). As

17

such, the ALJ did not errantly list lack of surgical intervention as a reason to

18

discredit Plaintiff’s subjective symptoms testimony. Further, the ALJ was

19

permitted to discredit Plaintiff’s subjective symptom testimony where her

20

impairments are managed by medication and physical therapy. See

21

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (finding a

22

claimant’s failure to seek an aggressive treatment program a permissible

23

reason to discredit his subjective symptom testimony).

24

Finally, Plaintiff argues that the ALJ’s decision to limit Plaintiff to

25

occasional overhead reaching with her left arm is not supported by

26

substantial evidence. (ECF No. 15 at 21-22). The ALJ found that Plaintiff

27

could “occasionally perform overhead reaching using her left upper
9
20cv1916-W-MDD

Case 3:20-cv-01916-W-MDD Document 18 Filed 09/08/21 PageID.1858 Page 10 of 11

1

extremity.” (AR at 25). At the administrative hearing Plaintiff demonstrated

2

her range of motion in her left shoulder and acknowledged that she has a

3

problem with her left arm reaching overhead. (See AR at 57). As of April 25,

4

2019, Plaintiff’s left shoulder range of motion was limited to “[f]orward

5

flexion to 85,” or roughly to shoulder height. (AR at 605, 1653). This is

6

Plaintiff’s best range of motion in her left shoulder in the medical record.

7

(See AR at 599, 602, 608, 649, 701, 705, 710, 715, 720, 725, 730, 735, 740, 745,

8

752, 838, 1148, 1152, 1156, 1161, 1167, 1172, 1177, 1186, 1192, 1197, 1199,

9

1204, 1209, 1284, 1286, 1293, 1295, 1636, 1647, 1653). The ALJ

10

acknowledged Plaintiff’s restricted range of motion and cited to the record

11

indicating that Plaintiff can raise her arm to about shoulder height, but

12

concluded that Plaintiff could occasionally raise her left arm overhead. (AR

13

at 25, 605). In light of Plaintiff’s testimony and the objective medical record

14

illustrating Plaintiff’s restricted range of motion, the ALJ’s decision to limit

15

her to occasional overhead reaching with her left arm is not supported by

16

substantial evidence.

17

3.

Remand for Further Proceedings

18

The law is well established that the decision whether to remand for

19

further proceedings or simply to award benefits is within the discretion of the

20

Court. See, e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990);

21

McCallister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); Lewin v.

22

Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand for further

23

proceedings is warranted where additional administrative proceedings could

24

remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497

25

(9th Cir. 1984); Lewin, 654 F.2d at 635. When error exists in an

26

administrative determination, “the proper course, except in rare

27

circumstances, is to remand to the agency for additional investigation or
10
20cv1916-W-MDD

Case 3:20-cv-01916-W-MDD Document 18 Filed 09/08/21 PageID.1859 Page 11 of 11

1

exploration.” INS v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotation

2

marks omitted); Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004).

3

Accordingly, this case should be remanded for further administrative action

4

consistent with the findings presented herein.

5

III. CONCLUSION

6

Based on the foregoing, the Court RECOMMENDS that the District

7

Court GRANT Plaintiff’s motion for summary judgment, DENY Defendant’s

8

cross-motion for summary judgment, and REMAND this case for further

9

administrative action consistent with the findings presented herein. This

10

Report and Recommendation of the undersigned Magistrate Judge is

11

submitted to the United States District Judge assigned to this case, pursuant

12

to the provisions of 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c) of the

13

United States District Court for the Southern District of California.

14

IT IS HEREBY ORDERED that any written objection to this report

15

must be filed with the court and served on all parties no later than

16

September 24, 2021. The document should be captioned “Objections to

17

Report and Recommendations.”

18

IT IS FURTHER ORDERED that any reply to the objections shall be

19

filed with the Court and served on all parties no later than October 1, 2021.

20

The parties are advised that failure to file objections within the specified time

21

may waive the right to raise those objections on appeal of the Court’s order.

22

Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

23
24

IT IS SO ORDERED.
Dated: September 8, 2021

25
26
27
11
20cv1916-W-MDD