Julianne McCloskey v. Carolyn W. Colvin, No. 2:2015cv05223 - Document 23 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision. (See document for further details.) (iva)
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Julianne McCloskey v. Carolyn W. Colvin Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JULIANNE McCLOSKEY, 12 13 Plaintiff, v. 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security 15 Administration, 16 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 15-5223-SP MEMORANDUM OPINION AND ORDER 18 I. 19 INTRODUCTION 20 On July 10, 2015, plaintiff Julianne McCloskey filed a complaint against the 21 Commissioner of the Social Security Administration (“Commissioner”), seeking a 22 review of a denial of a period of disability and disability insurance benefits 23 (“DIB”). Both plaintiff and defendant have consented to proceed for all purposes 24 before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court 25 deems the matter suitable for adjudication without oral argument. 26 Plaintiff presents four issue for decision: (1) whether the administrative law 27 judge (“ALJ”) properly considered the opinions of certain physicians; (2) whether 28 1 Dockets.Justia.com 1 the ALJ properly considered plaintiff’s credibility; (3) whether the ALJ erred when 2 he determined plaintiff’s impairments did not medically equal Listing 11.14; and 3 (4) whether the ALJ erred in his residual functional capacity (“RFC”) assessment. 4 Memorandum in Support of Plaintiff’s Complaint (“P. Mem.”) at 5-22; 5 Memorandum in Support of Defendant’s Answer (“D. Mem.”) at 1-21; Plaintiff’s 6 Reply (“Reply”) at 1-12. 7 Having carefully studied the parties’ papers, the Administrative Record 8 (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein, 9 although the ALJ properly considered the Listings at step three, he failed to 10 properly consider the opinions of plaintiff’s physicians, and failed to develop the 11 record as directed by the Appeals Council. Additionally, the court finds these 12 errors may have adversely impacted the both ALJ’s credibility determination and 13 RFC determination. The court therefore remands this matter to the Commissioner 14 in accordance with the principles and instructions enunciated in this Memorandum 15 Opinion and Order. 16 II. 17 FACTUAL AND PROCEDURAL BACKGROUND 18 Plaintiff, who was thirty-seven years old on her alleged disability onset date, 19 is a high school graduate who completed three years of college and has 20 certifications as a child abuse prevention trainer and a parent educator. AR at 69, 21 105, 286, 361, 365. She has past relevant work as a trainer and as a social services 22 coordinator. Id. at 70, 90-91, 131-32, 365, 377-79, . 23 On May 24, 2010, plaintiff filed an application for a period of disability and 24 DIB due to Complex Regional Pain Syndrome and depression. Id. at 127, 134, 25 286-87, 364. The Commissioner denied plaintiff’s application initially and upon 26 reconsideration, after which she filed a request for a hearing. Id. at 163-74. 27 On July 6, 2011, plaintiff appeared pro se and testified at a hearing before 28 2 1 ALJ Sherwin F. Biesman. Id. at 102-26. On September 19, 2011, the ALJ denied 2 plaintiff’s claim for benefits. Id. at 141-48. 3 Plaintiff filed a timely request for review of the ALJ’s decision, which was 4 denied by the Appeals Council. Id. at 153-55. Thereafter, plaintiff retained 5 counsel and filed a request to reopen the decision or in the alternative for an 6 extension of time to file a civil action. Id. at 204-07. On October 15, 2012, the 7 Appeals Council set aside its denial of plaintiff’s request for review. Id. at 208-09. 8 On November 29, 2012, the Appeals Council remanded plaintiff’s case. Id. 9 at 157-61. Finding the ALJ failed to “recognize complex regional pain syndrome 10 (CRPS) as a severe impairment” and failed to evaluate plaintiff’s extreme obesity, 11 the Appeals Council issued an order directing the ALJ upon remand to: 12 • Obtain additional evidence concerning the claimant’s 13 impairments in order to complete the administrative record in 14 accordance with the regulatory standards regarding consultative 15 examinations and existing medical evidence (20 CFR 16 404.1512-1513). As warranted and available, obtain evidence 17 from a medical expert to clarify the nature and severity of the 18 claimant’s complex regional pain syndrome (20 CFR 404.1527 19 and Social Security Ruling 96-6p). 20 • 21 22 CRPS pursuant to Social Security Ruling 03-2p. • 23 24 Further evaluate the nature, severity and limiting effects of Evaluate the nature, severity and limiting effects of obesity pursuant to Social Security Ruling 02-1p. • Give further consideration to the claimant’s maximum residual 25 functional capacity and provide appropriate rationale with 26 specific references to evidence of record in support of the 27 assessed limitations (20 CFR 404.1545 and Social Security 28 3 1 2 Ruling 96-8p). • Further evaluate the claimants subjective complaints and ’ 3 provide rationale in accordance with the disability regulations 4 pertaining to evaluation of symptoms (20 CFR 404.1529) and 5 Social Security Ruling 96-7p. 6 • If warranted by the expanded record, obtain evidence from a 7 vocational expert to clarify the effect of the assessed limitations 8 on the claimant’s occupational base. The hypothetical 9 questions should reflect the specific capacity/limitations 10 established by the record as a whole. 11 Id. at 160-61. The ALJ was additionally directed to provide plaintiff “an 12 opportunity for a hearing, [and to] take any further action needed to complete the 13 administrative record and issue a new decision.” Id. at 161. 14 On September 9, 2013, plaintiff represented by counsel, appeared and 15 testified at a hearing before ALJ John Wojciechowski. Id. at 68-89, 93-95, 99-100. 16 The ALJ also heard testimony from vocational expert (“VE”) Barbara Misick. Id. 17 at 89-99. On November 1, 2013, the ALJ denied plaintiff’s claim for benefits. Id. 18 at 17-30. 19 Applying the well-known five-step sequential evaluation process, the ALJ 20 found, at step one, that plaintiff had not engaged in substantial gainful activity 21 since February 2, 2009, the alleged onset date. Id. at 19. 22 At step two, the ALJ found plaintiff suffered from the following severe 23 impairments: chronic pain syndrome, complex regional pain syndrome (“CRPS”), 24 obesity, regional peripheral neuropathy, depression, bilateral carpal tunnel 25 syndrome status post bilateral release. Id. at 20. 26 At step three, the ALJ found plaintiff’s impairments, individually or in 27 combination, did not meet or medically equal one of the listed impairments set 28 4 1 forth in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “Listings”). Id. The ALJ 2 specifically considered Listings 1.02 and 12.04, in combination with plaintiff’s 3 obesity and in light of plaintiff’s CRPS. Id. at 20-21. The ALJ found plaintiff’s 4 impairments do not meet or medically equal “any pertinent listing.” Id. The ALJ then assessed plaintiff’s RFC,1 and determined plaintiff had the 5 6 RFC to perform light work, with the limitations that plaintiff could: frequently 7 climb ramps and stairs, balance, stoop, crouch, crawl, and kneel; no more than 8 occasionally climb ladders, ropes, and scaffolds; and perform frequent handling 9 and fingering. Id. at 21. The ALJ also determined that plaintiff was limited to 10 simple, repetitive tasks with no more than occasional contact with the public, 11 coworkers, and supervisors. Id. 12 The ALJ found, at step four, that plaintiff was incapable of performing her 13 past relevant work. Id. at 28. 14 At step five, the ALJ found there were jobs that exist in significant numbers 15 in the national economy plaintiff could perform, including advertising material 16 distributor and laundry sorter. Id. at 29. Consequently, the ALJ concluded 17 plaintiff did not suffer from a disability as defined by the Social Security Act. Id. 18 at 30. 19 Plaintiff filed a timely request for review of the ALJ’s decision, which was 20 denied by the Appeals Council. Id. at 1-4, 12. The ALJ’s decision stands as the 21 final decision of the Commissioner. 22 23 24 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 115526 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the 27 claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 28 n.2 (9th Cir. 2007). 5 1 III. 2 STANDARD OF REVIEW 3 This court is empowered to review decisions by the Commissioner to deny 4 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 5 Administration must be upheld if they are free of legal error and supported by 6 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). 7 But if the court determines the ALJ’s findings are based on legal error or are not 8 supported by substantial evidence in the record, the court may reject the findings 9 and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 10 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). 11 “Substantial evidence is more than a mere scintilla, but less than a 12 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 13 “relevant evidence which a reasonable person might accept as adequate to support 14 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 15 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 16 finding, the reviewing court must review the administrative record as a whole, 17 “weighing both the evidence that supports and the evidence that detracts from the 18 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 19 affirmed simply by isolating a specific quantum of supporting evidence.’” 20 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 21 (9th Cir. 1998)). If the evidence can reasonably support either affirming or 22 reversing the ALJ’s decision, the reviewing court “‘may not substitute its judgment 23 for that of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th 24 Cir. 1992)). 25 26 27 28 6 1 IV. 2 DISCUSSION 3 A. The ALJ Failed to Properly Consider Physicians’ Opinions 4 Plaintiff argues the ALJ failed to properly consider the opinions of two 5 CRPS experts who examined plaintiff as part of her ongoing litigation against her 6 health insurance provider, and erred in giving great weight to the State Agency 7 examiners who only reviewed plaintiff’s medical records through 2010. P. Mem. 8 at 5-10; Reply at 1-5. Plaintiff contends the ALJ improperly discounted the 9 opinions of Dr. Edward A. Smith and Dr. Steven Feinberg based only on the 10 context in which the examinations were sought, and without providing any 11 independent specific and legitimate reasons. P. Mem. at 5-8. Plaintiff further 12 contends evidence in the record acquired after 2010 undermines the agency 13 consultants’ contradictory conclusions. Id. at 8-10. 14 In determining whether a claimant has a medically determinable impairment, 15 among the evidence the ALJ considers is medical evidence. 20 C.F.R. 16 § 404.1527(b). In evaluating medical opinions, the regulations distinguish among 17 three types of physicians: (1) treating physicians; (2) examining physicians; and 18 (3) non-examining physicians. 20 C.F.R. § 404.1527(c), (e); Lester v. Chater, 81 19 F.3d 821, 830 (9th Cir. 1996) (as amended). “Generally, a treating physician’s 20 opinion carries more weight than an examining physician’s, and an examining 21 physician’s opinion carries more weight than a reviewing physician’s.” Holohan v. 22 Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 404.1527(c)(1)-(2). 23 The opinion of the treating physician is generally given the greatest weight because 24 the treating physician is employed to cure and has a greater opportunity to 25 understand and observe a claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 26 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 27 Nevertheless, the ALJ is not bound by the opinion of the treating physician. 28 7 1 Smolen, 80 F.3d at 1285. If a treating physician’s opinion is uncontradicted, the 2 ALJ must provide clear and convincing reasons for giving it less weight. Lester, 3 81 F.3d at 830. If the treating physician’s opinion is contradicted by other 4 opinions, the ALJ must provide specific and legitimate reasons supported by 5 substantial evidence for rejecting it. Id. at 830. Likewise, the ALJ must provide 6 specific and legitimate reasons supported by substantial evidence in rejecting the 7 contradicted opinions of examining physicians. Id. at 830-31. The opinion of a 8 non-examining physician, standing alone, cannot constitute substantial evidence. 9 Widmark v. Barnhart, 454 F.3d 1063, 1066-67 n.2 (9th Cir. 2006); Morgan v. 10 Comm’r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 11 813, 818 n.7 (9th Cir. 1993). 12 Here, although the ALJ determined plaintiff’s Complex Regional Pain 13 Syndrome to be a severe impairment, as directed upon remand by the Appeals 14 Council, he unreasonably discounted nearly all the evidence related to CRPS, 15 including the findings of both medical experts who confirmed the diagnosis. AR at 16 22-28. The ALJ concluded that “physicians appeared to have difficulty 17 pinpointing a diagnosis” (id. at 24), “[t]he only constant in [plaintiff]’s allegations 18 were its inconsistencies” (id.), plaintiff’s “clinical reactions appeared to worsen 19 dramatically during the course” of one expert examination (id. at 25), and 20 “definitive clinical tests failed to support [plaintiff]’s extensive allegations of 21 ongoing symptomatology.” Id. at 25. 22 The Commissioner recognizes some impairments do not manifest in a 23 standard way and cannot easily be diagnosed or evaluated using standard 24 diagnostic tools. CRPS is such an impairment. The Commissioner states: 25 It may be noted in the treatment records that [] signs [associated with 26 CRPS] are not present continuously, or the signs may be present at 27 one examination and not appear at another. Transient findings are 28 8 1 characteristic of RSDS/CRPS . . . . [¶¶] It should be noted that 2 conflicting evidence in the medical record is not unusual in cases of 3 RSDS due to the transitory nature of its objective findings and the 4 complicated diagnostic process involved. Clarification of any such 5 conflicts in the medical evidence should be sought first from the 6 individual’s treating or other medical sources. 7 Social Security Ruling (“SSR”) 03-2p.2 8 When an ALJ is uncertain about the clinical findings related to CRPS or “the 9 evidence is inadequate to determine whether the individual is disabled,” the 10 Commissioner specifically directs the ALJ to “first recontact the individual’s 11 treating or other medical source(s) to determine whether the additional information 12 needed is readily available,” and if such information is not, the ALJ should 13 “arrange for a consultative examination(s).” Id. Here, the ALJ neither contacted 14 plaintiff’s treating physicians nor ordered any additional consultative examination, 15 review of the complete records, or expert testimony. Instead, the ALJ relied on the 16 findings of agency experts, all of which were made prior to ALJ Biesman’s 2011 17 original denial of benefits, and none of which included evidence of plaintiff’s 18 CRPS found in the record after 2010. See AR at 28 (giving great weight to agency 19 medical opinions and discounting the “two supposedly comprehensive 20 examinations” by plaintiff’s CRPS experts); see also id. at 824-38 (Dr. S. 21 Jacobson, July 8, 2010 Report), 841-46 (Dr. Michael S. Wallack, July 29, 2010 22 Report), 849-58 (Dr. G. Jansen, August 10, 2010 Report), 912-13 (Dr. F.L. 23 24 25 26 27 28 2 “The Commissioner issues Social Security Rulings to clarify the Act’s implementing regulations and the agency’s policies. SSRs are binding on all components of the SSA. 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). 9 1 Williams, December 10, 2010 Report). 2 Defendant first argues the ALJ rejected the opinions of Dr. Smith and Dr. 3 Feinberg because they relied primarily on plaintiff’s subjective complaints. D. 4 Mem. at 4-5, 7; see AR at 25-27. But as the Commissioner states, “[t]he most 5 common acute clinical manifestations [of CRPS] include complaints of intense 6 pain . . . . out of proportion to the severity of the injury sustained.” SSR 03-2p. 7 Notwithstanding the ALJ’s credibility determination, which this court finds was 8 negatively impacted by the ALJ’s failure to properly consider the medical evidence 9 or further develop the record as directed by the Appeals Council, under the instant 10 circumstances this is not a specific and legitimate reasons supported by substantial 11 evidence for rejecting these opinions. See Hunt v. Astrue, 2009 WL 1519543, at *5 12 (C.D. Cal. May 29, 2009) (explaining “CRPS is a disease diagnosed primarily 13 based on subjective complaints, and the absence of ‘objective medical evidence,’ 14 such as x-rays or laboratory tests, cannot be cited as a legitimate basis for” 15 discounting information provided by plaintiff). 16 Defendant next argues the ALJ found the doctors’ reports contained internal 17 inconsistences. D. Mem. at 3-4, 7; see AR at 25 (indicating plaintiff’s pain seemed 18 to “worsen dramatically over the course of the exam” and recounting all the 19 negative tests that fail to substantiate plaintiff’s alleged pain), 27 (noting Dr. 20 Feinberg based his opinion on plaintiff’s observed dragging of her foot, but finding 21 no observable physical problem with the limb). But neither doctor’s report 22 substantiates the conclusion drawn by the ALJ, as both diagnose CRPS, which 23 specifically manifests under apparent conflicting physical test results (SSR 03-2p), 24 and neither doctor found inconsistencies in plaintiff’s presentation. See AR at 25 1363 (describing plaintiff as “pleasant and cooperative” and diagnosing her with 26 Complex Regional Pain Syndrome II), 1642 (finding plaintiff “is an excellent 27 historian”), 1652 (reporting twice that “several breaks were taken during the 28 10 1 physical examination at [the doctor’s] discretion, not the patients request, in order 2 to allow her pain level to subside”), 1654 (concluding plaintiff “meets the criteria 3 for complex regional pain disorder”). This reason also falls short of the specific 4 and legitimate standard required to discount plaintiff’s examining physicians’ 5 opinions. 6 Defendant also argues the ALJ cited the activities of daily living reported by 7 plaintiff at her exams as undermining her claims of pain, its effect on her gait, and 8 side effects from medication, and as thus undermining the doctors’ opinions. D. 9 Mem. at 5; see AR at 26. But plaintiffs reported activities – such as using games 10 and televison as distractions to cope with the pain and facilitate sleep; doing some 11 household chores, including making breakfast for her two children, doing laundry 12 daily, cooking twice per week, driving a few times per week, and changing diapers 13 – must be viewed in conjunction with her assertions that she rests for an extended 14 period daily, her husband and mother consistently help with the household chores, 15 and her medications affect her ability to focus. See AR at 69, 77-79, 81-84, 1358, 16 1650. In this context, plaintiff’s minimal activities of daily living undertaken with 17 significant assistance are not a specific and legitimate reason upon which to find 18 plaintiff’s physicians’ expert opinions not credible. See Cooper v. Bowen, 815 19 F.2d 557, 561 (9th Cir.1987) (“evidence that [plaintiff] could assist with some 20 household chores was not determinative of disability”); cf. Rollins v. Massanari, 21 261 F.3d 853, 856 (9th Cir. 2001) (discounting physician’s assignment of extreme 22 physical limitations, in part, due to plaintiff’s ability to run a household and take 23 care of two children without a husband or significant outside assistance). 24 Defendant finally argues the ALJ found both examinations unreliable 25 because they were “performed in direct relation to her ongoing litigation.” D. 26 Mem. at 5; see AR at 28 (“The evidence is highly suggestive that the claimant has 27 a strong motive for secondary gain in this Social Security Disability application 28 11 1 and appeal.”). But the Ninth Circuit has made clear, “[t]he purpose for which 2 medical reports are obtained does not provide a legitimate basis for rejecting 3 them.” Lester, 81 F.3d at 832. “‘The [Commissioner] may not assume that doctors 4 routinely lie in order to help their patients collect disability benefits.’” Id. (citation 5 omitted); see also Booth v. Barnhart, 181 F. Supp. 2d 1099, 1105 (C.D. Cal. 2002) 6 (citation omitted) (“ALJ may not disregard a physician’s medical opinion simply 7 because it was initially elicited in a state workers’ compensation proceeding, or 8 because it is couched in the terminology used in such proceedings.”). And 9 although neither of these examining physicians were treating plaintiff, she was 10 ultimately diagnosed by her primary care physicians with CRPS and received 11 spinal lumbar block injections every three months as part of her ongoing treatment 12 for the condition. See AR at 79, 1533, 1544, 1614, 1644. 13 Defendant additionally contends even “if evidence is susceptible of more 14 than one rational interpretation, the decision of the ALJ must be upheld.” Lewis v. 15 Astrue, 498 F.3d 909, 911 (9th Cir. 2007) see D. Mem. at 1-2. But when the 16 evidence is as ambiguous as that found in the records of the instant case, the 17 Commissioner has a duty to develop the record. See Webb v. Barnhart, 433 F.3d 18 683, 687 (9th Cir. 2005); see also Mayes, 276 F.3d at 459-60 (ALJ has a duty to 19 develop the record further “when there is ambiguous evidence or when the record 20 is inadequate to allow for proper evaluation of the evidence”); Smolen, 80 F.3d at 21 1288 (“If the ALJ thought he needed to know the basis of [a doctor’s] opinion[] in 22 order to evaluate [it], he had a duty to conduct an appropriate inquiry, for example, 23 by subpoenaing the physician[] or submitting further questions to [him or her].”). 24 As noted above, the Commissioner emphasizes the importance of retaining a 25 medical expert or ordering a consultative examination when CRPS is indicated and 26 evidence in the record is inadequate. SSR 03-2p; see also 20 C.F.R. 27 § 416.919a(a)-(b); AR at 160-61. The ALJ’s failure to develop the record is 28 12 1 especially harmful error where, as here, plaintiff’s treating physicians are 2 prohibited from providing “narrative reports or complet[ing] questionnaire forms” 3 and thus provide only minimal information related to plaintiff’s functional 4 limitations. Id. at 451. 5 Plaintiff additionally argues evidence in the record undermines conclusions 6 drawn by the agency physicians upon which the ALJ placed great weight. P. Mem. 7 at 8-10; Reply at 5. Specifically, Dr. Jansen’s August 2010 report found no 8 evidence in the record that plaintiff “ever manifested superficial stigmata of 9 [CRPS].” AR at 850-51; see SSR 03-2p (“RSDS/CRPS can be established in the 10 presence of persistent complaints of pain . . . and one or more clinically 11 documented signs in the affected region . . .: Swelling; Autonomic instability – 12 seen as changes in skin color or texture, changes in sweating (decreased or 13 excessive sweating), changes in skin temperature, and abnormal pilomotor erection 14 (gooseflesh); Abnormal hair or nail growth (growth can be either too slow or too 15 fast); Osteoporosis; or Involuntary movements of the affected region of the initial 16 injury”). But during Dr. Smith’s May 2011 examination, plaintiff exhibited “sever 17 hyperathia in the anteromedial half of the proximal half of right thigh” and 18 “[e]rythema of the medial middle third of the right thigh developed after the 19 proactive measures of examination were performed.” AR at 1653, 1655. These 20 are superficial stigmata of CRPS. 21 In sum, the ALJ failed to provided specific and legitimate reasons supported 22 by substantial evidence for giving little weight to plaintiff’s examining physicians’ 23 opinions, and instead improperly gave greater weight to agency physician opinions 24 rendered before the record was complete. Furthermore, the ALJ failed to develop 25 the record as directed by the Appeals Council, and as warranted where the 26 evidence is ambiguous and plaintiff’s treating physicians policies prohibit 27 reporting functional analyses. Accordingly, the ALJ erred in considering the 28 13 1 medical opinions. 2 B. The ALJ Did Not Err In His Step Three Determination 3 Plaintiff also contends the ALJ erred at step three. P. Mem. at 17-18; Reply 4 at 8. Specifically, plaintiff argues her impairments, in combination, medically 5 equal Listing 11.14. Id. The court disagrees. 6 At step three, plaintiff has the burden of proving she meets or equals a 7 Listing. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct. 2287, 96 L. Ed. 2d 8 119 (1987). To establish that an impairment is medically equivalent to a listed 9 impairment, it is the claimant’s burden to show his or her impairment “is at least 10 equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. § 11 416.926(a). For an impairment or combination of impairments to equal a Listing, 12 the claimant “must present medical findings equal in severity to all the criteria for 13 the one most similar listed impairment.” Sullivan v. Zebley, 493 U.S. 521, 531, 14 110 S. Ct. 885, 107 L. Ed. 2d 967 (1990), superseded by statute on other grounds 15 as stated in Kennedy v. Colvin, 738 F.3d 1172, 1174 (9th Cir. 2013); see 20 C.F.R. 16 § 416.926(a)-(b); SSR 83-19 (an impairment is “equivalent” to a listing only if a 17 claimant’s symptoms, signs, and laboratory findings are “at least equivalent in 18 severity” to the criteria for the listed impairment most like the claimant’s 19 impairment). A determination of medical equivalence must rest on objective 20 medical evidence. See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001) (“A 21 finding of equivalence must be based on medical evidence only.”) (citing 20 C.F.R. 22 § 404.1529(d)(3)). 23 “RSDS/CRPS is not a listed impairment . . . . [h]owever, the specific 24 findings in each case should be compared to any pertinent listing to determine 25 whether medical equivalence may exist.” SSR 03-2p; see AR at 20. To meet or 26 equal Listing 11.14 plaintiff must not only evidence peripheral neuropathies but 27 also “disorganization of motor function as described in 11.04(B), in spite of 28 14 1 prescribed treatment.” 20 C.F.R. part 404, Subpart P, Appendix 1, § 11.14. 2 Paragraph B of Listing 11.04 requires “[s]ignificant and persistent disorganization 3 of motor function in two extremities, resulting in sustained disturbance of gross 4 and dexterous movements, or gait and station,” and references Listing 11.00 5 paragraph C. Id. § 11.04(B). Paragraph C further explains: 6 Persistent disorganization of motor function in the form of paresis or 7 paralysis, tremor or other involuntary movements, ataxia and sensory 8 disturbances . . . which occur singly or in various combinations, 9 frequently provides the sole or partial basis for decision in cases of 10 neurological impairment. The assessment of impairment depends on 11 the degree of interference with locomotion and/or interference with 12 the use of fingers, hands, and arms. 13 Id. § 11.00(C). 14 The record does not indicate significant or persistent disorganization of any 15 of plaintiff’s motor functions. Plaintiff argues her difficulty walking equals 16 disorganization of motor function in both her legs and holding the cane affects the 17 use of her dominant hand when standing or walking, and thus her impairments 18 medically equal the Listing 11.14. P. Mem at 18; Reply at 8. There is evidence 19 plaintiff has some difficulty ambulating as a result of her neuropathy that could be 20 described as disorganization of motor function in plaintiff’s right leg. AR at 963, 21 1360, 1420-23, 1453, 1473, 1529, 1652. But it is neither persistent nor affecting 22 two of plaintiff’s extremities. See id. at 961 (reporting plaintiff does not use a 23 cane), 1527-28 (walking without cane after fall), 927, 1102, 1165-66, 1244, 1543 24 (recording gait as normal), 1529 (prescribing cane, but for use only “as needed”). 25 Plaintiff’s occasional use of a cane is not a persistent form of “paresis or paralysis, 26 tremor or other involuntary movements, ataxia and sensory disturbances,” and even 27 if it causes her dominant hand to be “in use,” such use does not constitute 28 15 1 “interference” or rise to the level of “sustained disturbance of gross and dexterous 2 movements” necessary to meet the Listing. 20 C.F.R. part 404, Subpart P, 3 Appendix 1, §§ 11.00(C), 11.04(B), 11.14. 4 Plaintiff had the burden to provide evidence that she met or equaled Listing 5 11.14, which she failed to do. Substantial evidence supports the ALJ’s conclusion 6 that plaintiff fails to meet the requirements of any pertinent listing. 7 C. Plaintiff’s Credibility and RFC Claims 8 In addition to the two issues discussed above, plaintiff also argues the ALJ 9 erred in discounting plaintiff’s credibility, and erred in assessing plaintiff’s RFC. 10 The court need not reach these issues because it finds the ALJ erred in his 11 consideration of plaintiff’s physicians, and thus the court will remand the case as 12 discussed further below. Moreover, the court declines to reach the issues of 13 plaintiff’s credibility and RFC at this juncture, given the extent to which the ALJ’s 14 failure to fully develop the record and consider the physicians’ opinions likely 15 affected his assessment of plaintiff’s credibility and RFC. 16 V. 17 REMAND IS APPROPRIATE 18 The decision whether to remand for further proceedings or reverse and 19 award benefits is within the discretion of the district court. McAllister v. Sullivan, 20 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this 21 discretion to direct an immediate award of benefits where: “(1) the record has been 22 fully developed and further administrative proceedings would serve no useful 23 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 24 evidence, whether claimant testimony or medical opinions; and (3) if the 25 improperly discredited evidence were credited as true, the ALJ would be required 26 to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 27 (9th Cir. 2014) (setting forth three-part credit-as-true standard for remanding with 28 16 1 instructions to calculate and award benefits). But where there are outstanding 2 issues that must be resolved before a determination can be made, or it is not clear 3 from the record that the ALJ would be required to find a plaintiff disabled if all the 4 evidence were properly evaluated, remand for further proceedings is appropriate. 5 See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 6 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, the court must “remand for 7 further proceedings when, even though all conditions of the credit-as-true rule are 8 satisfied, an evaluation of the record as a whole creates serious doubt that a 9 claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021. 10 Here, as set out above, remand is appropriate because there are outstanding 11 issues that must be resolved before it can be determined whether plaintiff is 12 disabled, including further development of the record. On remand, the ALJ shall: 13 (1) obtain additional evidence concerning plaintiff’s impairments in order to 14 complete the administrative record in accordance with the regulatory standards 15 regarding consultative examinations and existing medical evidence, and as 16 warranted, obtain evidence from a medical expert to clarify the nature and severity 17 of plaintiff’s complex regional pain syndrome (see 20 CFR §§ 404.1512-1513, 18 1527; SSR 96-6p; SSR 03-2p; SSR 02-1p); (2) reconsider the medical evidence 19 and opinions in the record, and either credit the opinions of plaintiff’s treating and 20 examining physicians or give specific and legitimate reasons supported by 21 substantial evidence for rejecting them; (3) reconsider plaintiff’s subjective 22 complaints regarding her CRPS, and either credit plaintiff’s testimony or provide 23 clear and convincing reasons supported by substantial evidence for rejecting it; 24 (4) reassess plaintiff’s RFC, specifically clarifying, as needed, limitations related to 25 plaintiff’s CRPS; and (5) proceed through steps four and five to determine what 26 work, if any, plaintiff is capable of performing in light of her impairments. 27 VI. 28 17 1 2 CONCLUSION IT IS THEREFORE ORDERED that Judgment shall be entered 3 REVERSING the decision of the Commissioner denying benefits, and 4 REMANDING the matter to the Commissioner for further administrative action 5 consistent with this decision. 6 7 DATED: September 30, 2016 ______________________________ 8 SHERI PYM United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18
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