Jennifer Grant v.Michael J. Astrue, No. 2:2011cv00554 - Document 16 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision. (bem)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JENNIFER GRANT, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 17 Defendant. ) Case No. CV 11-0554 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 I. 20 INTRODUCTION AND SUMMARY 21 On January 21, 2011, plaintiff Jennifer Grant ( Plaintiff ) filed a complaint 22 against defendant Michael J. Astrue ( Defendant ), the Commissioner of the Social 23 Security Administration, seeking reversal of a decision terminating her disability 24 insurance benefits ( DIB ) on the ground that her disability had ceased. [Docket 25 No. 3.] 26 On August 12, 2011, Defendant filed his answer, along with a certified copy 27 of the administrative record. [Docket Nos. 11-13.] In sum, having carefully studied, inter alia, the parties joint stipulation and 28 1 the administrative record, the Court concludes that, as detailed below, the 2 Administrative Law Judge ( ALJ ) improperly evaluated the medical evidence 3 regarding whether Plaintiff s impairment met or equaled the severity of any listing 4 set forth in the Social Security regulations. The Court thus remands this matter to 5 the Commissioner in accordance with the principles and instructions enunciated in 6 this Memorandum Opinion and Order. 7 II. 8 PERTINENT FACTUAL AND PROCEDURAL BACKGROUND Plaintiff was born on February 24, 1971. (Administrative Record ( AR ) at 9 10 36, 38.) In 1997, Plaintiff filed for DIB due to asthma and nasal polyps. (See id. at 11 36, 38, 60.) On June 17, 1998, Plaintiff was found to be disabled as of May 5, 1996 12 due to asthma that met § 3.02A of the Listing of Impairments (the Listing ).1/ (Id. 13 at 15-17.) On July 11, 2002, Plaintiff s disability was found to continue. (Id. at 1614 17, 60.) Subsequently, a continuing disability review was conducted, resulting in a 15 16 June 28, 2007 determination that Plaintiff s disability had ceased due to medical 17 improvement as of June 1, 2007, terminating her entitlement to benefits. (AR at 15, 18 38, 39, 87.) A disability hearing officer affirmed that decision after a hearing. (Id. 19 at 36, 57-68.) Plaintiff requested a hearing before an ALJ. (Id. at 22.) On October 2, 2008, Plaintiff, represented by counsel, appeared and testified 20 21 at a hearing before an ALJ. (See AR at 422-48.) The ALJ also heard testimony 22 from Howard Goldfarb, a vocational expert ( VE ). (Id.) On February 23, 2009, the ALJ issued a decision, concluding that Plaintiff s 23 24 disability ended on June 1, 2007.2/ (AR 15-21.) 25 26 1/ 27 2/ See 20 C.F.R. pt. 404, subpt. P, app. 1. The Commissioner s regulations establish a sequential evaluation procedure 28 consisting of up to eight steps for evaluating whether a claimant s disability 2 1 To support his conclusion, the ALJ made the following findings. 2 1.) The most recent favorable medical decision finding that Plaintiff was 3 disabled, known as the comparison point decision ( CPD ), was dated July 11, 2002. 4 (AR at 16.) 5 2.) At the time of the CPD, Plaintiff had a medically determinable impairment 6 of asthma that met the requirements of § 3.02A of the Listing. (Id. at 17.) 7 3.) Plaintiff did not engage in any substantial gainful activity through June 1, 8 2007. (Id.) 9 4.) The medical evidence establishes that as of June 1, 2007, Plaintiff 10 continued to suffer from severe asthma. (Id.) 11 5.) Since June 1, 2007, Plaintiff has not had an impairment, either 12 individually or in combination, that met or medically equaled the severity of any 13 listing set forth in the Social Security regulations. (Id.) 14 6.) Medical improvement3/ occurred as of June 1, 2007 and the improvement 15 16 17 18 continues. See 20 C.F.R. § 404.1594(f); see also 20 C.F.R. § 416.994(b)(5). If the 19 Commissioner finds that the claimant s condition has medically improved and the 20 improvement is related to her ability to work, the Commissioner will consider the claimant s current impairments and determine whether these may, nonetheless, 21 preclude substantial gainful activity. Id. In essence, the five-step analysis originally 22 applied to determine disability is applied once more. See Delph v. Astrue, 538 F.3d 940, 945-46 (8th Cir. 2008), cert. denied, 129 S.Ct. 1999 (2009); see also Anderson 23 v. Astrue, 2008 WL 4500882, at *3 (C.D. Cal. 2008). 24 3/ Medical improvement is defined as any decrease in the medical severity of 25 your impairment(s) which was present at the time of the most recent favorable 26 medical decision that you were disabled or continued to be disabled. A determination that there has been a decrease in medical severity must be based on 27 changes (improvement) in the symptoms, signs and/or laboratory findings associated 28 with your impairment(s). 20 C.F.R. §§ 404.1594(b)(1) & 416.994(b)(1)(i). 3 1 related to Plaintiff s ability to work.4/ (Id. at 17-18.) 7.) The ALJ assessed Plaintiff s residual functional capacity5/ ( RFC ) and 2 3 determined that, as of June 1, 2007, she could perform work at all exertional levels 4 that would not require exposure to concentrated fumes, odors, dusts, gases and poor 5 ventilation. (Id. at 19.) 8.) The ALJ found that Plaintiff lacks the ability to perform her past relevant 6 7 work as a fast foods manager. (Id. at 20.) 9.) Based on Plaintiff s RFC, vocational factors, and the VE s testimony, the 8 9 ALJ found that, as of June 1, 2007, Plaintiff was able to perform a significant 10 number of jobs in the national economy, including sales clerk and hand packager. 11 (Id. at 20-21.) Thus, the ALJ concluded that Plaintiff s disability ended on June 1, 2007, and 12 13 that Plaintiff was no longer suffering from a disability as defined by the Act. (AR at 14 15, 21.) Plaintiff filed a timely request for review of the ALJ s decision, which was 15 16 denied by the Appeals Council. (AR at 4-6, 11.) The ALJ s decision stands as the 17 final decision of the Commissioner. 18 III. 19 STANDARD OF REVIEW This Court is empowered to review decisions by the Commissioner to deny 20 21 22 4/ Where, as here, the claimant was previously found disabled under the Listing and a finding of medical improvement is made on a continuing disability review, the 24 medical improvement is deemed related to the ability to work because no prior 25 residual functional capacity ( RFC ) finding exists to compare with the claimant s current RFC. See 20 C.F.R. §§ 404.1594(c)(1)-(c)(3)(i) & 416.994(b)(2)(iv)(A). 26 5/ Residual functional capacity is what a claimant can still do despite existing 27 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 28 n. 5 (9th Cir. 1989). 23 4 1 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 2 Administration must be upheld if they are free of legal error and supported by 3 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as 4 amended Dec. 21, 2001). If the court, however, determines that the ALJ s findings 5 are based on legal error or are not supported by substantial evidence in the record, 6 the court may reject the findings and set aside the decision to deny benefits. 7 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 8 242 F.3d 1144, 1147 (9th Cir. 2001). 9 Substantial evidence is more than a mere scintilla, but less than a 10 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 11 evidence which a reasonable person might accept as adequate to support a 12 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 13 at 459. To determine whether substantial evidence supports the ALJ s finding, the 14 reviewing court must review the administrative record as a whole, weighing both 15 the evidence that supports and the evidence that detracts from the ALJ s 16 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 17 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 18 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 19 evidence can reasonably support either affirming or reversing the ALJ s decision, 20 the reviewing court may not substitute its judgment for that of the ALJ. Id. 21 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 22 IV. 23 ISSUE PRESENTED 24 A single disputed issue is presented here: whether the ALJ erred in failing to 25 find Plaintiff s impairment met or equaled § 3.03B of the Listing. (Joint Stip. at 3-6, 26 10-12.) 27 / / / 28 / / / 5 1 V. 2 DISCUSSION AND ANALYSIS Plaintiff argues that the ALJ s cursory listing determination is legally 3 4 insufficient and Plaintiff s impairment meets or equals Listing 3.03B. 6/ (Joint 5 Stip. at 4.) Plaintiff contends that the ALJ s discussion or lack thereof flies in the 6 face of treatment records that reflect that between September 21, 2007 and 7 September 4, 2008, [Plaintiff] sought physician intervention on 6 occasions due to 8 asthma. (Id.) A. 9 Standard to Meet or Equal the Listing To meet or equal the Listing, plaintiff has the burden of establishing that she 10 11 meets or equals each characteristic of a listed impairment. Tackett v. Apfel, 180 F.3d 12 1094, 1099 (9th Cir. 1999). An impairment meets a listed condition in the Listing 13 of Impairments only when it manifests the specific findings described in the set of 14 medical criteria for that listed impairment. Social Security Ruling ( SSR ) 83-19,7/ 15 1983 WL 31248, at *2. An impairment equals a listed impairment when the set 16 of symptoms, signs, and laboratory findings in the medical evidence supporting a 17 claim . . . are at least equivalent in severity to the set of medical findings for the 18 listed impairment. Id. As relevant here, Listing § 3.03B pertains to asthma with attacks (as defined 19 20 in § 3.00C) in spite of prescribed treatment and requiring physician intervention, 21 22 23 24 25 26 27 28 6/ Plaintiff concedes that she no longer meets § 3.02A of the Listing. (See AR at 428-29.) 7/ The Commissioner issues Social Security Rulings [( SSRs )] to clarify the Act s implementing regulations and the agency s policies. SSRs are binding on all components of the [Social Security Administration]. SSRs do not have the force of law. However, because they represent the Commissioner s interpretation of the agency s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. Holohan v. Massanari, 246 F.3d 1195, 1203 n. 1 (9th Cir. 2001) (internal citations omitted). 6 1 occurring at least once every 2 months or at least six times a year, with inpatient 2 hospitalizations for longer than 24 hours counting as two attacks. 20 C.F.R., pt. 404, 3 subpt. P, app. 1, § 3.03B. Under § 3.00C of the Listing, asthma attacks are 4 defined as prolonged symptomatic episodes lasting one or more days and requiring 5 intensive treatment, such as intravenous bronchodilator or antibiotic administration 6 or prolonged inhalational bronchodilator therapy in a hospital, emergency room or 7 equivalent setting. Id. § 3.00C. 8 Section 3.00C further provides that [w]hen a respiratory impairment is 9 episodic in nature, as can occur with exacerbations of asthma . . . , the frequency and 10 intensity of episodes that occur despite prescribed treatment are often the major 11 criteria for determining the level of impairment. Documentation for these 12 exacerbations should include available hospital, emergency facility and/or physician 13 records indicating the dates of treatment; clinical and laboratory findings on 14 presentation, such as the results of spirometry and arterial blood gas studies 15 (ABGS); the treatment administered; the time period required for treatment; and the 16 clinical response. 20 C.F.R., pt. 404, subpt. P, app. 1, § 3.00C. The section also 17 explains that [t]he medical evidence must . . . include information documenting 18 adherence to a prescribed regimen of treatment as well as a description of physical 19 signs. For asthma, the medical evidence should include spirometric results obtained 20 between attacks that document the presence of baseline airflow obstruction. Id. 21 B. ALJ s Listing Determination 22 Having carefully reviewed the record and the joint stipulation, the Court is 23 persuaded that the ALJ s evaluation of the medical evidence and consideration of 24 whether Plaintiff s asthma meets or equals the requirements of Listing § 3.03B is not 25 legally sufficient and/or supported by substantial evidence. Two reasons guide this 26 Court s determination. 27 First, the Court finds that the ALJ erred in selectively considering Plaintiff s 28 treatment records. For instance, the ALJ found that, as of June 1, 2007, Plaintiff did 7 1 not meet or equal the requirements of Listing § 3.03B partly because treating 2 physician Jeffrey I. Hananel, D.O. ( Dr. Hananel ) found Plaintiff s asthma to be 3 controlled. 8/ (AR at 17; see also id. at 218.) However, while on occasional visits 4 Plaintiff s treating physicians noted her asthma to be controlled, (see, e.g., id. at 5 231 (treatment note dated May 1, 2007)), on numerous other occasions around the 6 same time period, treating physicians found her asthma to be persistent and not 7 controlled. (See, e.g., id. at 236-37 (treatment note, dated November 1, 2007, 8 reporting Plaintiff s asthma persistent, not controlled ), 243 (treatment note, dated 9 May 15, 2007, reporting asthma persistent not controlled ), 249-50 (treatment note, 10 dated April 6, 2007, reporting asthma persistent not controlled ), 256 (treatment 11 note, dated March 9, 2007, reporting asthma persistent not controlled ).) Further, the ALJ concluded that Plaintiff had five acute visits in 2007, but 12 13 that these exacerbations were generally caused by colds, acute bronchitis or sore 14 throats and were resolved with antibiotic therapy. (AR at 17.) The ALJ attempts 15 to parse out Plaintiff s asthma into two categories asthma exacerbated by colds, 16 acute bronchitis or sore throats and asthma exacerbated by other environmental 17 irritants. However, the Court fails to see how this is a relevant distinction. Nowhere 18 in §§ 3.00C and 3.03B of the Listing is an asthma attack defined by what triggers 19 it. Nor is it clear that the two pulmonary diseases asthma and bronchitis are not 20 interrelated. Plaintiff s treatment notes indicate that she has suffered from acute 21 bronchitis since as early as January 28, 2005. (See, e.g., id. at 263.) Contrary to the 22 ALJ s assertion that asthma caused by bronchitis and treated with antibiotic 23 therapy necessarily fails to meet the Listing, the Court notes that § 3.00C defines an 24 asthma attack by one involving prolonged symptomatic episodes lasting one or 25 26 8/ Defendant asserts, and Plaintiff does not contest, that the ALJ mistakenly refers to Listing § 3.02B in the decision, but was referring to Listing 3.03B. (Joint 28 Stip. at 7; see also AR at 17.) 27 8 1 more days and requiring intensive treatment, such as . . . antibiotic administration[.] 2 20 C.F.R., pt. 404, subpt. P, app. 1 (emphasis added). 3 Moreover, Plaintiff points out approximately seven hospital visits relating to 4 her asthma between September 2007 and September 2008, which the ALJ failed to 5 expressly discuss. (See Joint Stip. at 4-5; see generally AR at 17.) While the Court 6 is not persuaded that all of these visits constitute an asthma attack under Listing §§ 7 3.00C and 3.03B, (see, e.g., AR at 236-37, 405, 416, 417-18), or that Plaintiff has 8 met her burden of establishing that she meets or equals Listing § 3.03B, it is difficult 9 for the Court to discern from the treatment notes how long Plaintiff s asthmatic 10 episodes lasted and what kind of treatment she received during each of the visits, and 11 the ALJ did not explain in the decision why he found Plaintiff s symptoms and 12 treatments insufficient to meet the requirements of the Listing. Accordingly, the 13 Court cannot conclude that Plaintiff definitively meets or equals Listing § 3.03B; 14 rather, the ALJ is in a better position to evaluate the medical evidence in this regard 15 (i.e., with the assistance of a medical expert) and the Court finds remand on this 16 issue appropriate. 17 Second, the ALJ improperly concluded that Listing §§ 3.00C and 3.03B 18 required asthma treatment to be administered at a hospital in order to establish 19 intensive treatment of severe asthma attacks. In the decision, the ALJ explained that 20 the evidence does not support the frequency of emergency room treatment or 21 hospitalization to meet the severity of this listed impairment. (AR at 17.) 22 However, while § 3.00C explains that asthma attacks are partly defined by a need 23 for intensive treatment, such as intravenous bronchodilator or antibiotic 24 administration or prolonged inhalational bronchodilator therapy in a hospital, 25 emergency room or equivalent setting, 20 C.F.R., Pt. 404, Subpt. P, App. 1 26 (emphasis added), § 3.00C does not require hospitalization or emergency room 27 treatment as stated by the ALJ. See, e.g., Russo v. Astrue, 2010 WL 4916628, at *5 28 (C.D. Cal. 2010) (home treatment may constitute the kind of asthma attack 9 1 treatment described in Listing sections 3.00C and 3.03B ); Martinez Nater v. Sec y 2 of Health and Human Serv., 933 F.2d 76, 78-79 (1st Cir. 1991) (remanding for 3 further proceedings to determine if claimant met Listing § 3.03B who was 4 hospitalized only twice in a two year period but who received asthma attack 5 treatment that included inhalation therapy and intravenous medications at home or 6 from treating physicians on at least 14 occasions); Cole v. Heckler, 587 F. Supp. 7 496, 497-98 (W.D.N.Y. 1984) (ALJ improperly concluded that Listing §§ 3.00C and 8 3.03B required asthma treatment to be administered in a hospital in order to establish 9 intensive treatment of asthma attacks). Thus, the treatment Plaintiff administered to 10 herself from home may constitute the kind of asthma attack treatment described in 11 Listing §§ 3.00C and 3.03B. (See, e.g., AR at 268-69 (treatment note, dated 12 September 21, 2007, indicating Plaintiff has been using her home nebulizer and 13 [metered dose inhaler] without resolution ). 14 VI. 15 REMAND IS APPROPRIATE 16 This Court has discretion to remand or reverse and award benefits. McAllister 17 v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989, as amended Oct. 19, 1989). Where no 18 useful purpose would be served by further proceedings, or where the record has been 19 fully developed, it is appropriate to exercise this discretion to direct an immediate 20 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); 21 Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000, as amended May 4, 2000), 22 cert. denied, 531 U.S. 1038 (2000). Where there are outstanding issues that must be 23 resolved before a determination can be made, and it is not clear from the record that 24 the ALJ would be required to find plaintiff disabled if all the evidence were properly 25 evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman, 211 26 F.3d at 1179-80. 27 Here, remand is required because the ALJ failed to properly evaluate the 28 medical evidence. If necessary, the ALJ shall, with the assistance of a medical 10 1 expert, obtain additional information and clarification regarding Plaintiff s asthma 2 treatment. 3 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 4 REVERSING the decision of the Commissioner denying benefits and 5 REMANDING the matter for further administrative action consistent with this 6 decision. 7 8 9 Dated: October 24, 2011 10 11 ____________________________________ Hon. Jay C. Gandhi United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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