Anzaldo v. Social Security, No. 2:2023cv00196 - Document 25 (D. Nev. 2024)
Court Description: ORDER Granting 18 Motion to Remand and Denying 22 Countermotion to Affirm the Agency Decision. IT IS FURTHER ORDERED that the Clerk of the Court enter judgement REVERSING the decision of the Commissioner and REMANDING this matter for further administrative proceedings pursuant to 42 U.S.C. § 405(g). Signed by Magistrate Judge Brenda Weksler on 3/15/2024. (Copies have been distributed pursuant to the NEF - RJDG)
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Anzaldo v. Social Security Doc. 25 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 MYRA A., 5 Case No. 2:23-cv-0196-BNW Plaintiff, 6 v. 7 ORDER MARTIN O’MALLEY, Commissioner of Social Security ∗, 8 Defendant. 9 10 11 Presently before the Court is Plaintiff’s Motion for Reversal and Remand. (ECF No. 18). 12 Defendant filed a response in opposition (ECF No. 23) and a Countermotion to Affirm the 13 Agency Decision (ECF No. 22). Plaintiff then filed a Reply in support of her motion (ECF No. 14 24). For the reasons stated below, the Court remands the Commissioner’s final decision. 15 I. 16 Background On August 1, 2019, Plaintiff applied for disability insurance benefits under Title II of the 17 Social Security Act, alleging an onset date of August 1, 2019. ECF No. 14-1 1 at 202-210. 18 Plaintiff’s claim was denied initially and on reconsideration. Id. at 124 and 134. A telephonic 19 hearing was held before Administrative Law Judge (“ALJ”) Cynthia R. Hoover on February 15, 20 2022. Id. at 53-77. On March 9, 2022, ALJ Hoover issued a decision finding that Plaintiff was not 21 disabled. Id. at 25-38. On December 16, 2022, the Appeals Council denied review. Id. at 5-10. 22 On February 21, 2023, Plaintiff commenced this action for judicial review under 42 U.S.C. § 23 405(g). See Compl. (ECF No. 6). 24 /// 25 26 27 28 ∗ Martin O’Malley has been substituted for his predecessor in office, Kilolo Kijazaki, pursuant to Federal Rule of Civil Procedure 25(d). 1 ECF No. 14-1 refers to the Administrative Record in this matter which, due to COVID-19, was electronically filed. (Notice of Electronic Filing (ECF No. 14-1)). All citations to the Administrative Record will use the CM/ECF page numbers. Dockets.Justia.com 1 II. Discussion 2 A. Standard of Review 3 Administrative decisions in Social Security disability benefits cases are reviewed under 42 4 U.S.C. § 405(g). See Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). Section 405(g) 5 provides that “[a]ny individual, after any final decision of the Commissioner of Social Security 6 made after a hearing to which [s]he was a party, irrespective of the amount in controversy, may 7 obtain a review of such decision by a civil action . . . brought in the district court of the United 8 States for the judicial district in which the plaintiff resides.” The court may enter “upon the 9 pleadings and transcripts of the record, a judgment affirming, modifying, or reversing the 10 decision of the Commissioner of Social Security, with or without remanding the cause for a 11 rehearing.” 42 U.S.C. § 405(g). 12 The Commissioner’s findings of fact are conclusive if supported by substantial evidence. 13 See id.; Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005). However, the Commissioner’s 14 findings may be set aside if they are based on legal error or not supported by substantial evidence. 15 See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); Thomas v. Barnhart, 16 278 F.3d 947, 954 (9th Cir. 2002). The Ninth Circuit defines substantial evidence as “more than a 17 mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind 18 might accept as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 19 Cir. 1995); see also Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). In determining 20 whether the Commissioner’s findings are supported by substantial evidence, the court “must 21 review the administrative record as a whole, weighing both the evidence that supports and the 22 evidence that detracts from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 23 720 (9th Cir. 1998); see also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 24 Under the substantial evidence test, findings must be upheld if supported by inferences 25 reasonably drawn from the record. Batson v. Commissioner, 359 F.3d 1190, 1193 (9th Cir. 2004). 26 When the evidence supports more than one rational interpretation, the court must defer to the 27 Commissioner’s interpretation. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); Flaten 28 v. Sec’y of Health and Human Serv., 44 F.3d 1453, 1457 (9th Cir. 1995). Consequently, the issue Page 2 of 11 1 before the court is not whether the Commissioner could reasonably have reached a different 2 conclusion, but whether the final decision is supported by substantial evidence. It is incumbent on 3 the ALJ to make specific findings so that the court does not speculate as to the basis of the 4 findings when determining if the Commissioner’s decision is supported by substantial evidence. 5 Mere cursory findings of fact without explicit statements as to what portions of the evidence were 6 accepted or rejected are not sufficient. Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir. 1981). 7 The ALJ’s findings “should be as comprehensive and analytical as feasible, and where 8 appropriate, should include a statement of subordinate factual foundations on which the ultimate 9 factual conclusions are based.” Id. 10 B. Disability Evaluation Process and the ALJ Decision 11 The individual seeking disability benefits has the initial burden of proving disability. 12 Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995). To meet this burden, the individual must 13 demonstrate the “inability to engage in any substantial gainful activity by reason of any medically 14 determinable physical or mental impairment which can be expected . . . to last for a continuous 15 period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A). Moreover, the individual must 16 provide “specific medical evidence” in support of her claim for disability. 20 C.F.R. 17 § 404.1514. If the individual establishes an inability to perform her prior work, then the burden 18 shifts to the Commissioner to show that the individual can perform other substantial gainful work 19 that exists in the national economy. Reddick, 157 F.3d at 721. 20 The ALJ follows a five-step sequential evaluation process in determining whether an 21 individual is disabled. See 20 C.F.R. § 404.1520(a); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). 22 If at any step the ALJ determines that she can make a finding of disability or non-disability, a 23 determination will be made, and no further evaluation is required. See 20 C.F.R. 24 § 404.1520(a)(4); Barnhart v. Thomas, 540 U.S. 20, 24 (2003). 25 Step one requires the ALJ to determine whether the individual is engaged in substantial 26 gainful activity (“SGA”). 20 C.F.R. § 404.1520(a)(4)(i). If the individual is engaged in SGA, then 27 a finding of not disabled is made. If the individual is not engaged in SGA, then the analysis 28 proceeds to step two. Page 3 of 11 1 Step two addresses whether the individual has a medically determinable impairment that 2 is severe or a combination of impairments that significantly limits her from performing basic 3 work activities. Id. § 404.1520(a)(4)(ii). If the individual does not have a severe medically 4 determinable impairment or combination of impairments, then a finding of not disabled is made. 5 If the individual has a severe medically determinable impairment or combination of impairments, 6 then the analysis proceeds to step three. 7 Step three requires the ALJ to determine whether the individual’s impairments or 8 combination of impairments meets or medically equals the criteria of an impairment listed in 20 9 C.F.R. Part 404, Subpart P, Appendix 1. Id. § 404.1520(a)(4)(iii). If the individual’s impairment 10 or combination of impairments meets or equals the criteria of a listing and the duration 11 requirement, then a finding of disabled is made. Id. § 404.1520(d). Otherwise, the analysis 12 proceeds to step four. 13 However, before moving to step four, the ALJ must first determine the individual’s 14 residual functional capacity (“RFC”), which is a function-by-function assessment of the 15 individual’s ability to do physical and mental work-related activities on a sustained basis despite 16 limitations from impairments. See 20 C.F.R. § 404.1560; see also SSR 96-8p. In making this 17 finding, the ALJ must consider all the relevant evidence, such as all symptoms and the extent to 18 which the symptoms can reasonably be accepted as consistent with the objective medical 19 evidence and other evidence. 20 C.F.R. § 404.1545. To the extent that statements about the 20 intensity, persistence, or functionally limiting effects of pain or other symptoms are not 21 substantiated by objective medical evidence, the ALJ must make a finding on the credibility of 22 the individual’s statements based on a consideration of the entire case record. 23 Step four requires the ALJ to determine whether the individual has the RFC to perform 24 her past relevant work (“PRW”). 20 C.F.R. § 404.1520(a)(4)(iv). PRW means work performed 25 either as the individual actually performed it or as it is generally performed in the national 26 economy within the last 15 years. In addition, the work must have lasted long enough for the 27 individual to learn the job and performed an SGA. If the individual has the RFC to perform her 28 Page 4 of 11 1 past work, then a finding of not disabled is made. If the individual is unable to perform any PRW 2 or does not have any PRW, then the analysis proceeds to step five. 3 The fifth and final step requires the ALJ to determine whether the individual can do any 4 other work considering her RFC, age, education, and work experience. 20 C.F.R. 5 § 404.1520(a)(4)(v). If she can do other work, then a finding of not disabled is made. Although 6 the individual generally continues to have the burden of proving disability at this step, a limited 7 burden of going forward with the evidence shifts to the Commissioner. The Commissioner is 8 responsible for providing evidence demonstrating that other work exists in significant numbers in 9 the economy that the individual can do. Yuckert, 482 U.S. at 141–42. 10 11 12 13 14 15 Here, the ALJ followed the five-step sequential evaluation process set forth in 20 C.F.R. § 404.1520(a). ECF No. 14-1 at 25-38. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since August 1, 2019, the alleged onset date. Id. at 27. At step two, the ALJ concluded that Plaintiff had the following severe impairments: spine disorders. Id. at 27-30. 16 At step three, the ALJ found that Plaintiff did not have an impairment or combination of 17 impairments that met or medically equaled a listed impairment in 20 C.F.R. Part 404, Subpart P, 18 Appendix 1(20 CFR 404.1520(d), 404.1525 and 404.1526). Id. at 30. 19 The ALJ then found that Plaintiff has the RFC to perform sedentary work as defined in 20 20 CFR 404.1567(a) except she can lift 10 pounds occasionally and 10 pounds frequently; can stand 21 and walk for 6 hours or sit for 6 hours; can occasionally push and pull with the bilateral upper 22 extremities; can never climb ladders, ropes, or scaffolds; can occasionally climb ramps or stairs; 23 can occasionally stoop, kneel, crouch, or crawl; can reach on a frequent basis; needs to avoid 24 vibration and hazards such as unprotected heights and dangerous moving machinery like 25 chainsaws and jackhammers. Id. at 30-36. 26 27 At step four, the ALJ determined that Plaintiff could perform past relevant work as a reservation clerk and telephone solicitor. Id. at 36. 28 Page 5 of 11 At step five, the ALJ considered Plaintiff’s age, education, work experience, and RFC and 1 2 found the claimant is capable of making a successful adjustment to other work that exists in 3 significant numbers in the national economy. Id. at 38-39. Specifically, the ALJ found that 4 Plaintiff can work as bill sorter, addresser, and call out operator. Id. at 38. The ALJ then 5 concluded that Plaintiff was not under a disability at any time since November 30, 2016. Id. at 38. 6 III. Analysis 7 A. Whether the ALJ failed to properly evaluate the persuasiveness of the opinion 8 proffered by Elum Malik, PA-C. 9 When evaluating medical opinions, the ALJ is required to articulate findings regarding 10 only supportability and consistency with the evidence. 20 C.F.R. § 416.920c(b)(2) (identifying 11 two most important factors, supportability, and consistency), (c) (enumerating all factors); Woods 12 v. Kijakazi, 32 F.4th 785, 791 (9th Cir. 2022). “Supportability means the extent to which a 13 medical source supports the medical opinion by explaining the ‘relevant . . . objective medical 14 evidence.’” Id. (citing § 404.1520c(c)(1)). “Consistency means the extent to which a medical 15 opinion is ‘consistent . . . with the evidence from other medical sources and nonmedical sources 16 in the claim.’” Id. (quoting § 404.1520c(c)(2)). The higher the degree of supportability and 17 consistency a medical opinion has, the more persuasive it is. See 20 C.F.R. § 404.1520c(c)(1) and 18 (2). 19 1. Elum Malik, PA-C Opinion 20 Here, the ALJ considered the opinion of certified physician assistant, Elum Malik, who 21 completed a functional assessment of Plaintiff’s physical abilities on May 18, 2020. ECF 14-1 at 22 349. The ALJ found the opinion not persuasive: 23 24 25 26 27 Erum Malik, PA-C, opined the claimant could lift and carry less than 10 pounds occasionally and frequently; stand and/or walk less than 2 hours a day; sit less than 6 hours per day; was limited in pushing and pulling in the upper and lower extremities; could never climb ladders, ropes, or scaffolds, stoop, kneel, or crouch; could occasionally climb ramps and stairs, balance, and crawl; needed to avoid even moderate exposure to extreme cold and hazards; needed to avoid concentrated exposure to extreme heat; and was limited in reaching, handling, fingering, and feeling (Exhibits 3F at 2-11; 4F). This opinion is not persuasive. 28 Page 6 of 11 1 Id. at 34. The ALJ found this opinion was unpersuasive because “Malik supported his opinion 2 with narrative statements indicating the claimant had widespread pain worsened with physical 3 activity; pain was in the shoulders, wrists, and feet; had joint weakness and stiffness; had 4 decreased range of motion of multiple joints; symptoms lasted 8 years; and imaging correlated to 5 her symptoms” noted by Malik were “not supported by his own treatment notes” Id. Importantly, the ALJ also found Malik’s “restrictions in manipulation are not consistent 6 7 with exams that did not show swelling of the hands or limitations in range of motion of the wrists 8 or fingers (Exhibits 7F at 6- 7; 9F at 3; 13F at 19).” Id. Restrictions in fingering and manipulation 9 are crucial to the determination of whether Plaintiff is totally disabled or capable of performing 10 past relevant work or other jobs that exist in significant numbers in the national economy. See Id. 11 at 37-38. At the hearing, the vocational expert testified if Plaintiff was limited to occasional use 12 of her “upper right extremity for handling and fingering” all past relevant work and other jobs in 13 the national economy would be eliminated as a source of employment for Plaintiff. Id. at 76. 14 Plaintiff argues that the ALJ failed to adequately articulate how she considered the 15 consistency factor of Malik’s opinion. See ECF No. 18, Plaintiff’s Motion for Reversal, at 10-13. 16 Plaintiff asserts that the ALJ failed to account for the consistency of two medical opinions: (1) the 17 February 25, 2022, neurological consultation performed by Eric Gutgineck, M.D. (at ECF No. 14- 18 1 at 44-48).; and (2) the January 2022 physical therapy records of an initial evaluation and follow- 19 up by DPT Sarah Kisch (Id. at 505-507). 2 The Court agrees that the failure to consider these 20 records in describing the consistency and supportability of Malik’s opinion results in a legal error 21 that must be resolved in remand to the ALJ for their consideration. 22 a. Dr. Gutgineck’s Neurolgical Consultation 23 The neurological consultation occurred ten days after the February 15, 2022 hearing, but 24 before the ALJ issued his final decision. Id. at 25, 44. The records were first presented to the 25 Appeals Council (“AC”), who determined “[w]e find this evidence does not show a reasonable 26 27 28 2 Plaintiff cited a third report of an MRI of Plaintiff’s cervical spine in December 2021. ECF No. 18 at 12. However, that report was considered by the ALJ. ECF No. 14-1 at 32. Page 7 of 11 1 probability that it would change the outcome of the decision.” Id. at 6. The AC denied Plaintiff’s 2 request for review. Id. at 5. When the Appeals Council “considers” evidence that an ALJ did not 3 originally review in “deciding whether to review a decision of the ALJ, that evidence becomes 4 part of the administrative record, which the district court must consider when reviewing the 5 Commissioner's final decision for substantial evidence.” Brewes v. Comm’r of Soc. Sec. Admin., 6 682 F.3d 1157, 1163 (9th Cir. 2012) (citing Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 7 2000) (“We properly may consider the additional materials because the Appeals Council 8 addressed them in the context of denying Appellant's request for review.”)). 9 The additional evidence Plaintiff submitted to the Appeals Council was directly 10 responsive to the RFC, the vocational expert's testimony and to the ALJ’s failure to address 11 limitations imposed by rheumatoid arthritis. 3 Gutgineck’s report shows: cervical spinal canal 12 stenosis worst at the C4-5 and C5-6 levels with moderate to severe with multilevel 13 neuroforaminal narrowing and severe narrowing of the left lateral recesses from C4-5 through 14 C4-6 levels and hyperreflexion in the left upper extremity, numbness, pain and paresthesias in the 15 bilateral upper and lower extremities. ECF No. 14-1 at 47. Further, objective testing revealed 16 positive Tinel’s test at the bilateral wrists, and reduced sensation to pinprick of the hands. Id. at 17 47. Each of these diagnoses and symptoms supports and is consistent with Malik’s opinion. 18 Further, they suggest more limitations may be appropriate in the ALJ’s RFC, particularly, those 19 that involve reaching and manipulation which would have a direct impact on the vocational 20 expert’s testimony. Finally, the neurological report strengthens the need for the ALJ to address 21 any limitations imposed by rheumatoid arthritis, which would directly impact the testimony of the 22 vocational expert. 23 b. The January 2022 Physical Therapy Records of DPT Sarah Kisch 24 Unlike the records from the neurogical consultation, the ALJ had the physical therapy 25 (“PT”) records and expressly admitted them into evidence at 13F. Id. at 58, 492-515. The value of 26 27 28 3 “The ALJ is required to consider all of the limitations imposed by the claimant's impairments, even those that are not severe.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Social Security Ruling (“SSR”) 96–8p (1996)). Page 8 of 11 1 the PT records is not in Plaintiff’s self-report of symptoms but in the evaluations and testing 2 conducted by Dr. Kisch. A functional status examination revealed moderate limitation in pushing 3 and pulling activity and lifting from the floor. Id. at 505. Plaintiff was assessed as severely limited 4 in lifting overhead and right-handed tasks lifting overhead. Id. Plaintiff’s examination also 5 revealed limited range of motion of the cervical spine and positive special tests, including the 6 upper limb tension test. Id. at 506. Plaintiff was noted to have decreased dermatomes, nerves 7 which send two-way singles to the brain and back. Id. The examination also revealed significant 8 hypertrophy, adhesions, and tenderness to palpation. Id. 9 These records, like Dr. Gutgineck’s, provide further support for the lifting, fingering and 10 manipulation limitations assessed by Malik. The ALJ failed to account for Dr. Kisch’s report at 11 all, other than to say she considered “all the evidence, including medical records not cited 12 herein.” Id. at 36. However, cursory findings of fact without explicit statements as to what 13 portions of the evidence were accepted or rejected are not sufficient. Lewin, 654 F.2d at 634. The 14 ALJ’s findings “should be as comprehensive and analytical as feasible, and where appropriate, 15 should include a statement of subordinate factual foundations on which the ultimate factual 16 conclusions are based.” Id. Here, a probative report was dealt with in cursory manner without 17 considering its supportability and consistency. 18 (c) The ALJ committed legal error by failing to consider these reports 19 In assessing whether a claimant is disabled, the ALJ must “develop the record and 20 interpret the medical evidence.” Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (citing 21 Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996)). The ALJ is not obligated to discuss “every 22 piece of evidence” where the evidence is “neither significant nor probative.” Id. However, Dr. 23 Gutgineck’s neurological consultation and Dr. Kisch’s functional status examination and other 24 testing are both significant and probative. They undermine the ALJ’s finding Malik’s opinion 25 unpersuasive. They are significant evidence that Plaintiff’s ability to manipulate and reach is 26 extremely limited. 27 As noted above, the ALJ has a duty to “explain how [she] considered the supportability 28 and consistency factors for a medical source’s medical opinions or prior administrative medical Page 9 of 11 1 findings in [her] determination or decision.” 20 C.F.R. § 404.1520c(b)(2). The ALJ’s 2 consistency and supportability findings must be supported by substantial evidence. See Woods, 32 3 F.4th at 792. In rejecting Malik’s opinion regarding Plaintiff’s limitations, the ALJ failed to 4 address significant evidence that was consistent with Malik’s opinion. This was legal error. See 5 id. (an ALJ cannot reject a doctor’s opinion “as unsupported or inconsistent without providing an 6 explanation supported by substantial evidence. The agency must articulate how persuasive it finds 7 all of the medical opinions from each doctor or other source and explain how [it] considered the 8 supportability and consistency factors in reaching these findings.”) (internal quotations and 9 citations omitted). Remand for further proceedings is appropriate where there are outstanding issues that 10 11 must be resolved before a disability determination can be made and it is not clear from the record 12 that the ALJ would be required to find the claimant disabled if all the evidence were properly 13 evaluated. See Taylor v. Comm’r of Soc. Sec. Admin, 659 F.3d 1228, 1233 (9th Cir. 2011). As a 14 result, remand to the ALJ for further consideration is in order, because Dr. Gutgineck’s and Dr. 15 Kisch’s medical source statements were not appropriately considered by the ALJ. On remand, the 16 ALJ should consider those records and weigh the consistency and supportability of Malik’s report 17 in consideration of those reports and the other medical evidence in the administrative record. 18 Further, she should consider whether those reports alter Plaintiff’s RFC and whether any change 19 in limitations alters the vocational expert’s opinion about past relevant work or other jobs in the 20 national economy. 21 IV. IT IS HEREBY ORDERED that Plaintiff’s Motion for Reversal and Remand (ECF No. 22 23 Conclusion 18) is GRANTED. IT IS FURTHER ORDERED that Defendant’s Countermotion to Affirm the Agency 24 25 Decision (ECF No. 22) is DENIED. 26 /// 27 /// 28 /// Page 10 of 11 1 IT IS FURTHER ORDERED that the Clerk of the Court enter judgement 2 REVERSING the decision of the Commissioner and REMANDING this matter for further 3 administrative proceedings pursuant to 42 U.S.C. § 405(g). 4 DATED: March 15, 2024. 5 6 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 11 of 11
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