Ricky R. Ortega v. Michael J. Astrue, No. 5:2012cv00431 - Document 16 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge John E. McDermott, IT IS HEREBY ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this case for further proceedings in accordance with this Memorandum Opinion and Order and with law. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 RICKY R. ORTEGA, Plaintiff, 13 14 v. MICHAEL J. ASTRUE, 15 Commissioner of Social Security, 16 Defendant. 17 18 19 ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 12-00431-JEM MEMORANDUM OPINION AND ORDER REVERSING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY AND REMANDING FOR FURTHER PROCEEDINGS PROCEEDINGS On March 29, 2012, Ricky R. Ortega ( Plaintiff or Claimant ) filed a complaint seeking 20 review of the decision by the Commissioner of Social Security ( Commissioner ) denying 21 Plaintiff s application for Supplemental Security Income benefits. The Commissioner filed an 22 Answer on July 19, 2012. On November 2, 2012, the parties filed a Joint Stipulation ( JS ). 23 The matter is now ready for decision. 24 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this Magistrate 25 Judge. After reviewing the pleadings, transcripts, and administrative record ( AR ), the Court 26 concludes that the Commissioner s decision must be reversed and remanded for further 27 proceedings in accordance with this Memorandum Opinion and Order and with law. 28 BACKGROUND 1 2 Plaintiff is a 47 year old male who applied for Supplemental Security Income benefits on 3 September 16, 2008, alleging disability beginning August 1, 2005. (AR 22.) The ALJ 4 determined that Plaintiff has not engaged in substantial gainful activity since September 16, 5 2008, the application date. (AR 25.) 6 Plaintiff s claim was denied initially on December 11, 2008, and on reconsideration on 7 March 24, 2009. (AR 22.) Plaintiff filed a timely request for hearing, which was held before 8 Administrative Law Judge ( ALJ ) Joseph D. Schloss on May 11, 2010, in San Bernardino, 9 California. (AR 22.) Claimant appeared at the hearing and testified, and was represented by 10 counsel. (AR 22.) Medical expert ( ME ) Samuel Landau, M.D. and vocational expert ( VE ) 11 Sandra M. Fioretti also appeared and testified at the hearing. (AR 22.) 12 The ALJ issued an unfavorable decision on June 24, 2010. (AR 22-31.) The Appeals 13 Council denied review on January 25, 2012. (AR 1-6.) 14 DISPUTED ISSUES 15 As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as 16 grounds for reversal and remand: 17 1. substantial evidence. 18 19 20 21 Whether the ALJ s residual functional capacity assessment is supported by 2. Whether the ALJ s credibility determination is supported by substantial evidence. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the ALJ s decision to determine whether 22 the ALJ s findings are supported by substantial evidence and free of legal error. Smolen v. 23 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 24 (9th Cir. 1991) (ALJ s disability determination must be supported by substantial evidence and 25 based on the proper legal standards). 26 Substantial evidence means more than a mere scintilla, but less than a 27 preponderance. Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. 28 Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is such relevant evidence as a 2 1 reasonable mind might accept as adequate to support a conclusion. Richardson, 402 U.S. at 2 401 (internal quotation marks and citation omitted). 3 This Court must review the record as a whole and consider adverse as well as 4 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Where 5 evidence is susceptible to more than one rational interpretation, the ALJ s decision must be 6 upheld. Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 7 However, a reviewing court must consider the entire record as a whole and may not affirm 8 simply by isolating a specific quantum of supporting evidence. Robbins, 466 F.3d at 882 9 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 10 F.3d 625, 630 (9th Cir. 2007). THE SEQUENTIAL EVALUATION 11 12 The Social Security Act defines disability as the inability to engage in any substantial 13 gainful activity by reason of any medically determinable physical or mental impairment which 14 can be expected to result in death or . . . can be expected to last for a continuous period of not 15 less than 12 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has 16 established a five-step sequential process to determine whether a claimant is disabled. 20 17 C.F.R. §§ 404.1520, 416.920. 18 The first step is to determine whether the claimant is presently engaging in substantial 19 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging 20 in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 482 U.S. 137, 21 140 (1987). Second, the ALJ must determine whether the claimant has a severe impairment or 22 combination of impairments. Parra, 481 F.3d at 746. An impairment is not severe if it does not 23 significantly limit the claimant s ability to work. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 24 1996). Third, the ALJ must determine whether the impairment is listed, or equivalent to an 25 impairment listed, in 20 C.F.R. Pt. 404, Subpt. P, Appendix I of the regulations. Parra, 481 F.3d 26 at 746. If the impairment meets or equals one of the listed impairments, the claimant is 27 presumptively disabled. Bowen v. Yuckert, 482 U.S. at 141. Fourth, the ALJ must determine 28 3 1 whether the impairment prevents the claimant from doing past relevant work. Pinto v. 2 Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). 3 Before making the step four determination, the ALJ first must determine the claimant s 4 residual functional capacity ( RFC ). 20 C.F.R. § 416.920(e). Residual functional capacity 5 ( RFC ) is the most [one] can still do despite [his or her] limitations and represents an 6 assessment based on all the relevant evidence. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 7 The RFC must consider all of the claimant s impairments, including those that are not severe. 8 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling ( SSR ) 96-8p. 9 If the claimant cannot perform his or her past relevant work or has no past relevant work, 10 the ALJ proceeds to the fifth step and must determine whether the impairment prevents the 11 claimant from performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 12 869 (9th Cir. 2000). The claimant bears the burden of proving steps one through four, 13 consistent with the general rule that at all times the burden is on the claimant to establish his or 14 her entitlement to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established 15 by the claimant, the burden shifts to the Commissioner to show that the claimant may perform 16 other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support 17 a finding that a claimant is not disabled at step five, the Commissioner must provide evidence 18 demonstrating that other work exists in significant numbers in the national economy that the 19 claimant can do, given his or her RFC, age, education, and work experience. 20 C.F.R. 20 § 416.912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and 21 entitled to benefits. Id. THE ALJ DECISION 22 23 In this case, the ALJ determined at step one of the sequential process that Plaintiff has 24 not engaged in substantial gainful activity since September 16, 2008, the application date. (AR 25 25.) 26 At step two, the ALJ determined that Plaintiff has the following combination of medically 27 determinable severe impairments: arthritis; restrictive lung disease; Cushing s disease; diabetes 28 mellitus; and obesity. (AR 25. ) 4 1 At step three, the ALJ determined that Plaintiff does not have an impairment or 2 combination of impairments that meets or medically equals one of the listed impairments. (AR 3 25.) 4 The ALJ then found that Plaintiff has the RFC to perform a significant range of light 5 work as defined in 20 C.F.R. § 416.967(b), with the following limitations: 6 . . . can lift and/or carry 20 pounds occasionally and 10 pounds frequently; 7 can stand and/or walk 2 hours in an 8-hour workday, with normal breaks; 8 can sit 8 hours in an 8-hour workday, with normal breaks; can occasionally 9 stoop and bend; can climb stairs, but is precluded from climbing ladders, 10 ropes or scaffolds; is precluded from working at heights or balancing; is 11 precluded from operating motorized equipment and working around 12 unprotected machinery; must work in an air conditioned environment which 13 is free of excessive pollutants. 14 (AR 25-26.) In determining this RFC, the ALJ also made an adverse credibility determination . 15 (AR 27.) 16 At step four, the ALJ found that Plaintiff has no past relevant work. (AR 30.) 17 At step five, the ALJ found that considering Plaintiff s age, education, work experience 18 and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff 19 can perform, including small products assembler II, optical assembler, order clerk food and 20 beverage, and assembler buttons and notions. (AR 30-31.) 21 Consequently, the ALJ concluded that Claimant is not disabled within the meaning of the 22 Social Security Act. (AR 31.) 23 24 DISCUSSION The ALJ decision must be reversed and remanded for further proceedings because the 25 ALJ failed to develop the record properly. Subsequent to the hearing but before the ALJ 26 decision was issued, Plaintiff presented new medical information from Riverside Memorial 27 Hospital, indicating an assessment of severe low back pain secondary to multilevel 28 degenerative joint disease. (AR 297.) The ALJ commented on this information in the decision 5 1 (AR 28), but did not submit the information to any medical source for consideration of its 2 cumulative impact on Plaintiff s functioning or appropriate limitations that should be assessed, 3 even though the information indicates a medical impairment not otherwise addressed by any of 4 the physicians relied on by the ALJ. This was error. 5 In Social Security cases, the ALJ has a special, independent duty to develop the record 6 fully and fairly and to assure that the Claimant s interests are considered. Tonapetyan v. Halter, 7 242 F.3d 1144, 1150 (9th Cir. 2001); Smolen, 80 F.3d at 1288; Brown v. Heckler, 713 F.2d at 8 441, 443 (9th Cir. 1983). The ALJ has a basic duty to inform himself about facts relevant to his 9 decision. Heckler v. Campbell, 461 U.S. 458, 471 n.1 (1983) (Brennan, J., concurring). The 10 ALJ's duty to develop the record exists even when the claimant is represented by counsel. 11 Tonapetyan, 242 F.3d at 1150. Ambiguous evidence or the ALJ s own finding that the record is 12 inadequate to allow for proper evaluation of the evidence triggers the ALJ s duty to conduct an 13 appropriate inquiry. Smolen, 80 F.3d at 1288; Tonapetyan, 242 F.3d at 1150. The ALJ may 14 discharge this duty by subpoenaing the claimant s physicians, submitting questions to them, 15 continuing the hearing, or keeping the record open after the hearing to allow supplementation of 16 the record. Smolen, 80 F.3d at 1288; Tonapetyan, 242 F.3d at 1150. 17 On September 17, 2009, Plaintiff presented at Riverside Community Hospital with 18 complaints of back pain and weakness in his legs which gave out, leading to a fall. (AR 29119 96.) Dr. Alphonso Benton at Riverside Community Hospital reported that Plaintiff had an MRI of 20 the thoracic spine without contrast, which indicated a mild chronic compression deformity. (AR 21 297.) Although there was no cord compression, there was multilevel cervical disc 22 degeneration. (AR 297.) The lumbar spine showed disc extrusion and moderate spinal canal 23 stenosis. (AR 297.) Based on the MRI, Dr. Alphonso diagnosed Plaintiff with [s]evere low 24 back pain, untreated, secondary to multilevel degenerative joint disease with mild compression 25 and moderate spinal stenosis. (AR 297.) Dr. Alphonso started Plaintiff on muscle relaxants, 26 but indicated a need to follow up at Moreno Valley Hospital for possible surgical intervention. 27 (AR 297.) 28 6 1 The ALJ states in his step two discussion of Plaintiff s medically determinable severe 2 impairments that Plaintiff s impairments include arthritis, restrictive lung disease, Cushing s 3 disease, diabetes mellitus, and obesity. (AR 25.) There is no discussion or mention of back 4 pain or thoracic, cervical, or lumbar disc degeneration. The same is true of the ALJ s step three 5 listings discussion. (AR 25.) The ALJ assessed Plaintiff with a RFC for light work with 6 limitations (AR 25-26), but cites no medical source opinion that addresses Plaintiff s back pain 7 and disc degeneration other than his own discussion of the medical records for Plaintiff s 8 September 18, 2009 visit to Riverside Community Hospital. (AR 25-30.) There is no indication 9 that any of the limitations in the ALJ s RFC are based on the new Riverside Community 10 Hospital medical records. 11 The ALJ gave the greatest weight to the medical expert, Dr. Samuel Landau, who 12 testified at the hearing. (AR 38-41.) Dr. Landau assessed Plaintiff with the RFC adopted by the 13 ALJ. (AR 25-26, 38.) Dr. Landau did not discuss back pain or degenerative disc disease, as 14 Plaintiff did not present medical information on those impairments until after the hearing. The 15 ALJ also gave great weight to the 2008 findings of Dr. Wong and Dr. Do, State reviewing 16 physicians. (AR 280-87.) These two physicians also did not discuss back pain or degenerative 17 disc disease and, like Dr. Landau, never saw Plaintiff s September 17, 2009 Riverside 18 Community Hospital medical records. 19 Without any medical source opinions, the ALJ summarily dismisses Plaintiff s severe low 20 back pain, noting that the hospital assessed the claimant s multilevel degenerative joint 21 disease and only mild compression and moderate spinal stenosis; and his treatment plan was 22 conservative including only muscle relaxants. (AR 28.) Merely reciting Dr. Benton s diagnosis 23 does not address whether the acknowledged impairment is severe or what functional limitations 24 result from the impairment. The ALJ, moreover, does not acknowledge Dr. Benton s 25 observation that the impairment was untreated. (AR 297.) Also, Dr. Benton did not just 26 27 28 7 1 prescribe muscle relaxants. He also referred Claimant to Moreno Valley Hospital for possible 1 2 surgical intervention. The ALJ assessed Plaintiff with a RFC for a significant range of light work, but in fact 3 4 numerous limitations were imposed, including that Claimant can lift 20 pounds occasionally and 5 can stand and/or walk only 2 hours in an 8 hour workday. (AR 26.) An RFC must reflect all of a 6 claimant s impairments, severe and nonsevere, singly and in combination. 20 C.F.R. § 7 404.1545(a)(2). The addition of a new impairment not addressed by any other medical source 8 changes everything because, even if not disabling by itself, in combination with Plaintiff s other 9 impairments it may be. The ALJ opinion here never considers Plaintiff s new impairment in 10 combination with his other impairments. This was error. A claimant s illness must be 11 considered in combination and must not be fragmentized in evaluating their effects. Beecher 12 v. Heckler, 756 F.2d 693, 694-95 (9th Cir. 1985). The ALJ must consider the combined effect 13 of all of a claimant s impairments on his or her ability to function without regard to whether 14 each alone was sufficiently severe. Smolen, 80 F.3d at 1290. Thus, the ALJ s RFC is not supported by substantial evidence. There is no acceptable 15 16 medical source opinion addressing any limitations Plaintiff s new impairment may impose, 20 17 C.F.R. § 404.1513(a), especially in combination with other impairments. In other words, the 18 medical evidence of record is inadequate to allow for a proper evaluation of Plaintiff s 19 impairments, triggering the ALJ s duty to develop the record fully and fairly. Tonapetyan, 242 20 F.3d at 1150. The ALJ should have ordered a supplemental hearing or obtained medical 21 source opinion through interrogatories to Dr. Landau or in some other way evaluated Plaintiff s 22 new medical evidence. On remand, the ALJ should submit updated medical information from 23 Riverside Community Hospital to Dr. Landau or some other acceptable medical source, and 24 reconsider Claimant s RFC based on that information in combination with Plaintiff s other 25 impairments and limitations. 26 27 28 1 The ALJ also dismisses the new hospital records because of recent heroin use, a benign obesity treatment plan, and stable diabetes (AR 28), but these have nothing to do with Plaintiff s new, untreated multilevel joint degeneration. 8 1 There was discussion in the Joint Stipulation of the role of res judicata regarding the 2 ALJ s prior assessment in the August 28, 2008 decision. (AR 52-63.) Both sides agree, 3 however, that a claimant may rebut the presumption of non-disability with evidence of changed 4 circumstances, such as a new impairment. (AR 22-23.) The ALJ considered all new evidence 5 since the last decision and added the impairments of arthritis, restrictive lung disease, and 6 diabetes mellitus. (AR 25, 57.) The ALJ also changed the standing/walking limitation from 6 7 hours in an 8 hour day to 2 hours. (AR 25-26, 58.) There is no indication these changes were 8 based on the new post-hearing information from Riverside Community Hospital. There is other 9 medical opinion in the record supporting these changes. The ALJ s dismissal of Plaintiff s new 10 medical information, however, is not based on medical opinion. The record as it stands is 11 inadequate to determine whether the new information constitutes changed circumstances and 12 what impact it should have on the step two, three and five findings, and Plaintiff s RFC and 13 credibility. The Court expresses no opinion on whether it does, only that medical opinion to 14 make that determination is lacking. 15 ORDER 16 IT IS HEREBY ORDERED that Judgment be entered reversing the decision of the 17 Commissioner of Social Security and remanding this case for further proceedings in 18 accordance with this Memorandum Opinion and Order and with law. 19 20 21 DATED: December 6, 2012 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 9

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