Laura Guardado v. Nancy A. Berryhill, No. 2:2017cv08606 - Document 22 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered REVERSING the Commissioner's decision, GRANTING Plaintiff's request for remand, and REMANDING this action for further proceedings consistent with this memorandum decision. (See document for details.) (sbou)
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Laura Guardado v. Nancy A. Berryhill Doc. 22 1 2 3 4 5 6 ` 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LAURA G.,1 Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. ) Case No. CV 17-8606-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) REVERSING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 terminating her disability insurance benefits (“DIB”). The 21 parties consented to the jurisdiction of the undersigned under 28 22 U.S.C. § 636(c). 23 Joint Stipulation, filed August 2, 2018, which the Court has 24 taken under submission without oral argument. The matter is before the Court on the parties’ For the reasons 25 26 27 28 1 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 Dockets.Justia.com 1 stated below, the Commissioner’s decision is reversed and this 2 action is remanded for further proceedings. 3 II. 4 BACKGROUND Plaintiff was born in 1959. (Administrative Record (“AR”) 5 38, 65.) 6 realtor for about 26 years (AR 198, 211). 7 She completed “[s]ome college” (AR 39) and worked as a On April 18, 2011, Plaintiff was found disabled as of July 8 16, 2010, because of breast cancer. 9 17-18.) (AR 67-74; see also AR 16, On March 21, 2014, she was notified that her disability 10 was determined to have ended as of March 1, 2014, and that her 11 benefits would be terminated. 12 After the decision was upheld on reconsideration (AR 80, 81), a 13 disability hearing officer found her not disabled based on “the 14 evidence in the file.” 15 hearing before an Administrative Law Judge. 16 hearing was held on May 5, 2016, at which Plaintiff, who was 17 represented by counsel, and a vocational expert testified. 18 33-64.) 19 (AR 79, 102-05; see also AR 16.) (AR 111-17.) She then requested a (AR 121, 279-86.) A (AR In a written decision issued June 21, 2016, the ALJ found 20 Plaintiff not disabled as of March 1, 2014.2 21 Plaintiff requested review from the Appeals Council (AR 180-81, 22 313-17), which denied it on July 28, 2017 (AR 4-6). 23 followed. (See AR 13-25.) This action 24 25 26 27 28 2 The ALJ stated in two places that “the claimant’s disability ended as of May 31, 2014” (AR 16; see also AR 18), but elsewhere in the decision she used the March 1, 2014 date (see, e.g., AR 14, 18, 19). The May 31, 2014 date is when Plaintiff’s disability payments ended. (AR 79, 103.) 2 1 III. STANDARD OF REVIEW 2 Under 42 U.S.C. § 405(g), a district court may review the 3 Commissioner’s decision to deny benefits. The ALJ’s findings and 4 decision should be upheld if they are free of legal error and 5 supported by substantial evidence based on the record as a whole. 6 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 7 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 8 means such evidence as a reasonable person might accept as 9 adequate to support a conclusion. Substantial evidence Richardson, 402 U.S. at 401; 10 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 11 is more than a scintilla but less than a preponderance. 12 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 13 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 14 substantial evidence supports a finding, the reviewing court 15 “must review the administrative record as a whole, weighing both 16 the evidence that supports and the evidence that detracts from 17 the Commissioner’s conclusion.” 18 720 (9th Cir. 1998). 19 either affirming or reversing,” the reviewing court “may not 20 substitute its judgment” for the Commissioner’s. 21 IV. 22 It To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY People are “disabled” for purposes of receiving Social 23 Security benefits if they are unable to engage in any substantial 24 gainful activity owing to a physical or mental impairment that is 25 expected to result in death or has lasted, or is expected to 26 last, for a continuous period of at least 12 months. 27 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 28 1992). 3 42 U.S.C. 1 A. The Eight-Step Evaluation Process 2 The ALJ follows an eight-step sequential evaluation process 3 to assess whether a recipient continues to be disabled. 4 C.F.R. § 404.1594(f); see also Nathan v. Colvin, 551 F. App’x 5 404, 407 (9th Cir. 2014); Held v. Colvin, 82 F. Supp. 3d 1033, 6 1037 (N.D. Cal. 2015). 7 determine whether the recipient is currently engaged in 8 substantial gainful activity; if so, she is no longer disabled. 9 § 404.1594(f)(1); see also McCalmon v. Astrue, 319 F. App’x 658, 10 20 In the first step, the Commissioner must 659 (9th Cir. 2009). 11 If the recipient is not engaged in substantial gainful 12 activity, the second step requires the Commissioner to determine 13 whether she has an impairment or combination of impairments that 14 meets or equals an impairment in the Listing of Impairments 15 (“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix 16 1; if so, she continues to be disabled. 17 § 404.1594(f)(2). If the recipient’s impairment or combination of impairments 18 does not meet or equal an impairment in the Listing, the third 19 step requires the Commissioner to determine whether medical 20 improvement has occurred.3 21 analysis proceeds to step four; if not, it proceeds to step five. 22 Id. § 404.1594(f)(3). If so, the 23 24 25 26 27 28 3 Medical improvement is “any decrease in the medical severity of [a recipient’s] impairment(s) which was present at the time of the most recent favorable medical decision that [the recipient was] disabled or continued to be disabled.” § 404.1594(b)(1). “A determination that there has been a decrease in medical severity” must be based on “improvement[] in the symptoms, signs, and/or laboratory findings associated with [a recipient’s] impairment(s).” Id. 4 1 If medical improvement has occurred, the fourth step 2 requires the Commissioner to determine whether the improvement is 3 related to her ability to work — that is, whether there has been 4 an increase in the recipient’s residual functional capacity 5 (“RFC”)4 from the most recent favorable medical decision. 6 § 404.1594(f)(4). 7 recipient’s ability to work, the analysis proceeds to step five; 8 if it is, it proceeds to step six. 9 If medical improvement is not related to the Id. If medical improvement has not occurred or if it is not 10 related to the recipient’s ability to work, the fifth step 11 requires the Commissioner to determine whether an exception 12 applies. 13 the Commissioner can find a recipient no longer disabled even 14 though she has not medically improved if she is able to engage in 15 substantial gainful activity; if one of those exceptions applies, 16 the analysis proceeds to step six. 17 second group of exceptions, the Commissioner can find a recipient 18 no longer disabled without determining medical improvement or an 19 ability to engage in substantial gainful activity; if one of 20 those exceptions applies, the recipient is no longer disabled. 21 § 404.1594(e). 22 continues to be disabled. § 404.1594(f)(5). Under the first group of exceptions, § 404.1594(d). Under the If none of the exceptions apply, the recipient § 404.1594(f)(5). 23 The sixth step requires the Commissioner to determine 24 whether all the recipient’s current impairments in combination 25 are “severe,” which means that they significantly limit her 26 27 28 4 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545; see also Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 5 1 ability to do basic work activities; if not, she is no longer 2 disabled. 3 § 404.1594(f)(6). If the recipient’s current impairments in combination are 4 severe, the seventh step requires the Commissioner to determine 5 whether she has sufficient RFC, “based on all [her] current 6 impairments,” to perform her past relevant work; if so, she is no 7 longer disabled. 8 9 § 404.1594(f)(7). If the recipient is unable to do her past work, the eighth and final step requires the Commissioner to determine, using the 10 RFC assessed in step seven, whether she can perform any other 11 substantial gainful work; if so, she is no longer disabled. 12 § 404.1594(f)(8). If not, she continues to be disabled. Id. 13 B. The ALJ’s Application of the Eight-Step Process 14 At step one, the ALJ found that Plaintiff had not engaged in 15 substantial gainful activity from April 18, 2011, the date of her 16 most recent favorable medical decision,5 through March 1, 2014, 17 the alleged cessation date. 18 Plaintiff had the impairment of breast cancer. 19 March 1, 2014, the ALJ found her to have medically determinable 20 impairments of “history of breast cancer in remission and mild 21 small airway disease/reactive airway disease.” 22 two, the ALJ concluded that these impairments did not meet or 23 equal a listing. 24 medical improvement had occurred, and her “treatment records (Id.) (AR 17-18.) In the 2011 CPD, (AR 18.) (Id.) As of At step At step three, the ALJ found that 25 26 27 28 5 The most recent favorable medical decision is also known as the comparison-point decision (“CPD”). See Program Operations Manual System (POMS) DI 28010.105, U.S. Soc. Sec. Admin. (Jan. 13, 2016), http://policy.ssa.gov/poms.nsf/lnx/0428010105; see also § 404.1594(b)(7). 6 1 since March 1, 2014 reveal grossly conservative and infrequent 2 medical treatment.” 3 Plaintiff’s medical improvement was related to her ability to 4 work “because it resulted in an increase in [her] residual 5 functional capacity.” 6 (Id.) At step four, she determined that (Id.) At step six, the ALJ found that since March 1, 2014, 7 Plaintiff continued to have “a severe impairment or combination 8 of impairments.” 9 “nonsevere” “medically determinable impairments of degenerative (AR 19.) She also noted that Plaintiff had 10 disc disease of the cervical and lumbar spine and age related 11 osteoporosis.” 12 of Plaintiff’s impairments, she had the RFC to perform “light 13 work” with the following limitations: (Id.) At step seven, she found that based on all 14 lift and/or carry twenty pounds occasionally, ten pounds 15 frequently[;] . . . sit, stand, or walk for six hours out 16 of an eight-hour workday with normal breaks[;] . . . 17 occasionally 18 scaffolds[;] . . . frequently balance, stoop, kneel or 19 crouch 20 concentrated exposure to pulmonary irritants, including 21 dust, fumes, odors and gases. [and] climb ramps, stairs, occasionally ladders, crawl[;] . . ropes . or avoid 22 (Id.) The ALJ concluded that Plaintiff could perform her past 23 work as a real-estate sales agent. 24 found that Plaintiff’s disability had ended as of March 1, 2014. 25 (Id.) 26 27 28 7 (AR 24.) Accordingly, she 1 V. DISCUSSION6 2 Plaintiff argues that the ALJ failed to (1) “fully and 3 fairly” develop the record (J. Stip. at 4)7 or (2) “provide clear 4 and convincing reasons” for rejecting her subjective pain 5 testimony (id. at 14; see also id. at 4). 6 remand is warranted based on the ALJ’s failure to fully develop 7 the record. 8 issue. 9 10 A. As discussed below, Accordingly, the Court does not reach the other The ALJ Did Not Fully and Fairly Develop the Record Plaintiff argues that the ALJ failed to “fully and fairly” 11 develop the record. (J. Stip. at 4; see also generally id. at 4- 12 10, 13-14.) 13 “cited to the objective findings of the [lumbar] MRI” (id. at 9) Specifically, she contends that the ALJ improperly 14 15 16 17 18 19 20 21 22 6 In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme Court held that ALJs of the Securities and Exchange Commission are “Officers of the United States” and thus subject to the Appointments Clause. To the extent Lucia applies to Social Security ALJs, Plaintiff has forfeited the issue by failing to raise it during her administrative proceedings. (See AR 313-17; J. Stip. at 4-10, 13-17, 19-20); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended) (plaintiff forfeits issues not raised before ALJ or Appeals Council); see also generally Kabani & Co. v. SEC, 733 F. App’x 918, 919 (9th Cir. 2018) (rejecting Lucia challenge because plaintiff did not raise it during administrative proceedings); Davidson v. Comm’r of Soc. Sec., No. 2:16-cv-00102, 2018 WL 4680327 (M.D. Tenn. Sept. 28, 2018) (same). 23 7 24 25 26 27 28 Plaintiff never raised this argument during her administrative proceedings. (See generally AR 33-64 (hearing transcript), 313-17 (brief on appeal arguing only that ALJ erred in assessing her statements’ credibility).) Normally, the claim would be forfeited. See Meanel, 172 F.3d at 1115. But because Defendant has not challenged it on this ground (see generally J. Stip. at 10-13), the Court proceeds to consider it. See Dexter v. Colvin, 731 F.3d 977, 979 n.3 (9th Cir. 2013); Saari v. Berryhill, 745 F. App’x 775, 776 (9th Cir. 2018). 8 1 and should have ordered a consultative examination or contacted 2 Plaintiff’s treating doctors “for further explanation or 3 clarification” “[i]n light of the evidence of cord impingement 4 and flattening at both the lumbar and cervical spine and the 5 severe osteoporosis” (id. at 8-9). 6 warranted on this ground. 7 8 9 1. As explained below, remand is Applicable law An ALJ has a “duty to fully and fairly develop the record” and “assure that [a] claimant’s interests are considered.” 10 Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) 11 (citation omitted); see also Howard ex rel. Wolff v. Barnhart, 12 341 F.3d 1006, 1012 (9th Cir. 2003) (“In making a determination 13 of disability, the ALJ must develop the record and interpret the 14 medical evidence.”). 15 burden to produce evidence in support of her disability claim. 16 See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (as 17 amended). 18 further is triggered only when there is ambiguous evidence or 19 when the record is inadequate to allow for proper evaluation of 20 the evidence.” 21 2010) (as amended May 19, 2011) (citation omitted); accord 22 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). 23 ALJ has broad discretion in determining whether to order a 24 consultative examination and may do so when “ambiguity or 25 insufficiency in the evidence . . . must be resolved.” 26 Massanari, 270 F.3d 838, 842 (9th Cir. 2001) (citation omitted); 27 see also § 404.1519a(b) (“We may purchase a consultative 28 examination to try to resolve an inconsistency in the evidence, But it nonetheless remains the claimant’s Moreover, the “ALJ’s duty to develop the record McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 9 An Reed v. 1 or when the evidence as a whole is insufficient to allow us to 2 make a determination or decision on your claim.”). 3 2. 4 5 Relevant background a. State-agency reviewing-physician records On March 21, 2014, general practitioner “H. Jone” assessed 6 Plaintiff’s RFC as “light” (AR 485) and limited her to 7 occasionally lifting or carrying 20 pounds; frequently lifting 10 8 pounds; standing, walking, and sitting six hours in an eight-hour 9 workday; occasionally climbing and crawling; and frequently 10 balancing, stooping, kneeling, and crouching (AR 477-78). 11 Jone found no manipulative, visual, or communicative limitations, 12 and her only environmental limitation was to “avoid concentrated 13 exposure” to “fumes, odors, gases, dusts, [and poor] 14 ventilation.” 15 source statement or specify which medical evidence was reviewed, 16 though the doctor wrote that “all the evidence in file” had been 17 reviewed. 18 (AR 479-80.) Dr. Dr. Jone did not review any medical- (See AR 482, 485; see also generally AR 476-83.) In the “additional comments” section, Dr. Jone remarked that 19 Plaintiff’s “physical examination and laboratory findings [were] 20 all normal,” and her treating physician “was very pleased that 21 [she] was doing very well” and did “not know why [she] [was] 22 alway[s] tired[,] which is not explainable by any objective 23 medical evidence.” 24 not been “taking lots of pain med[ications] for alleged severe 25 ‘bone’ pain” and that “chemotherapy usually does not cause ‘bone 26 pain.’” 27 doctor did not see any medical reason for her symptoms, noting 28 that tests showed “normal respiratory rate and oxygen level.” (Id.) (AR 483.) Dr. Jone also noted that she had Regarding Plaintiff’s shortness of breath, the 10 1 (Id.) In June 2014, Dr. Stuart Laiken8 completed an RFC assessment 2 3 and similarly limited Plaintiff’s RFC. (See AR 513-16.) 4 unlike Dr. Jone, he found that Plaintiff’s ability to “[r]each[] 5 in all directions” was limited, citing her surgical history. 6 515.) 7 . . . to a medically determinable impairment” but that the 8 “severity” or “duration of the symptom(s)” was “disproportionate 9 to the expected severity or expected duration on the basis of the But (AR He concluded that Plaintiff’s symptoms were “attributable 10 . . . medically determinable impairment(s).” 11 not review any medical-source statement (AR 518), but he reviewed 12 records from treating doctors and Plaintiff’s fatigue 13 questionnaire (AR 520-21). 14 b. 15 (AR 517.) He did MRIs and bone-density tests A December 2014 MRI of Plaintiff’s lumbar spine had mostly 16 “normal” and “unremarkable” results. (AR 538.) The radiologist 17 noted “mild to moderate disc space loss with endplate 18 degenerative changes,” “broad-based posterior disc osteophyte 19 complex,” and “mild bilateral neuroforaminal narrowing” at L5-S1. 20 (Id.) 21 L4-L5. 22 the lumbar spine” but suggested possible correlation between his 23 findings and complaints of neuropathy. He also noted “broad-based posterior disc protrusion” at (Id.) He found “no evidence for metastatic disease in (AR 539.) An MRI of the 24 8 25 26 27 28 Dr. Laiken appears to specialize in both internal medicine and cardiology because his electronic signature includes specialty codes of 19 and 04. (See AR 521); Program Operations Manual System (POMS) DI 24501.004, U.S. Soc. Sec. Admin. (May 15, 2015), https://secure.ssa.gov/apps10/poms.nsf/lnx/0424501004 (code 04 indicates cardiology practice; code 19 indicates internal-medicine practice). 11 1 cervical spine done at the same time also revealed “no evidence 2 for metastatic disease,” but it showed “multilevel degenerative 3 change . . . with mild cord flattening at C4-C5, C5-C6, and C6-C7 4 secondary to disc protrusions.” 5 (AR 540-41.) Plaintiff had a bone-density study on March 20, 2015. (AR 6 536-37.) The results were compared to a test done on December 7 14, 2010, which had apparently led to a diagnosis of osteopenia.9 8 (AR 536.) 9 in her lumbar spine, 4.3 percent in her left hip, and 8.3 percent Plaintiff’s bone density had decreased by 0.7 percent 10 in her right hip, and the doctor concluded that she now had 11 osteoporosis. 12 instructions other than advising her to follow up in “[two] 13 years, based on [National Osteoporosis Foundation] 14 recommendation[s].” 15 another bone-density test, which revealed slight improvement in 16 her lumbar and right-hip-bone mineral density. 17 also AR 564-68.) 18 not have “current pathological fracture” and “estimate[d] a 10- 19 year probability of major osteoporotic fracture at 8.5% and of 20 hip fracture at 1.7%.” 21 testing in two years. 22 (Id.) c. She did not give Plaintiff any treatment (AR 537.) In February 2016, Plaintiff had (AR 569-70; see The reviewing doctor noted that Plaintiff did (AR 569.) He recommended follow-up (AR 570.) Plaintiff’s statements related to bone pain 23 In a Fatigue Questionnaire dated March 2014, Plaintiff wrote 24 that “a typical day consist[ed] of staying in and resting, due to 25 26 27 28 9 Osteopenia is bone weakness that can progress into osteoporosis. What Is Osteopenia?, WebMD, https://www.webmd.com/ osteoporosis/guide/osteopenia-early-signs-of-bone-loss#1 (last updated Oct. 28, 2018). 12 1 small airway disease and bone pain.” 2 . . . cause[d] fatigue and shortness of breath.” 3 “prepar[ed] in advance for appointments and church” and “g[o]t 4 help for shopping.” 5 were “due to all the side effects from the multiple surgeries, 6 medications, cancer, small airway disease/COPD, neuropathy, 7 constant sore throat, neck pain, [and] bone pain.” 8 she “broke a rib” while doing laundry. 9 daily, but she did “try and do some stretching to help relieve 10 11 (Id.) (AR 261.) “[S]imple chores (Id.) She She asserted that her difficulties (Id.) the pain” and napped “at least once a day.” Once, (Id.) She did not walk (AR 262.) A couple months after Plaintiff was notified of the 12 cessation of her disability benefits, she asked for 13 reconsideration, stating that starting in January 2014, she had 14 had “dizzi[]ness, headache, recurring sore throat, sore neck, 15 upper [and] lower back pain, numbness in right hand and right leg 16 and foot.” 17 worse,” specifying “back pain and neck pain and throat pain.” 18 (AR 271.) 19 Plaintiff wrote that starting in January 2014 she had had a “very 20 bothersome” hernia, “difficulty standing and walking,” and 21 “worse” small-airway problems. 22 that she was having trouble breathing “more often,” was feeling 23 “very fatigued,” and was sleeping “longer hours.” 24 suffered from “stiffness of neck, bone aches and difficulty 25 sitting for long periods of time.” 26 (AR 266.) She claimed that her “pain [had gotten] In her request for a hearing, dated September 8, 2014, (AR 279.) She also complained (Id.) She (Id.) At the May 5, 2016 hearing, Plaintiff testified that she had 27 pain in her “neck,” “ribs,” “arm,” “hip area,” “groin area,” 28 “leg,” and “feet.” (AR 42.) She took “pain medication” and 13 1 rested for the pain. (AR 44-45.) Her chest and rib pain was a 2 “daily problem” and was at least a “four or five” out of ten. 3 (AR 45.) Plaintiff testified that she took Norco,10 gabapentin,11 and 4 5 baclofen12 for pain and anastrazole13 as a hormone inhibitor. 6 (Id.) 7 loss.” 8 “probably half an hour,” and walk “just short distances.” 9 She could “comfortably” lift “about eight pounds, ten pounds.” 10 She had Prolia injections14 twice a year “for the bone She could “sit for about an hour or two,” stand (Id.) (AR 52.) 3. 11 12 (AR 51.) Analysis Plaintiff argues that the ALJ failed to “fully and fairly 13 develop the record” (J. Stip. at 8) because the state-agency 14 reviewing physicians, whose opinions she gave “great weight” (AR 15 23), did not review the MRIs or bone-density scans that showed 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Norco is brand-name hydrocodone-acetaminophen. See Norco, WebMD, https://www.webmd.com/drugs/2/drug-63/norco-oral/ details (last visited Jan. 24, 2019). 11 Gabapentin can be used to relieve nerve pain. See Gabapentin, WebMD, https://www.webmd.com/drugs/2/drug-14208-8217/ gabapentin-oral/gabapentin-oral/details (last visited Jan. 24, 2019). 12 Baclofen treats muscle spasms. See Baclofen, WebMD, https://www.webmd.com/drugs/2/drug-8615/baclofen-oral/details (last visited Jan. 24, 2019). 13 Anastrazole is a hormone inhibitor that treats breast cancer in women after menopause. See Arimidex, WebMD, https:// www.webmd.com/drugs/2/drug-1555/anastrozole-oral/details (last visited Jan. 24, 2019). 14 Prolia treats bone loss. See Prolia Syringe, WebMD, https://www.webmd.com/drugs/2/drug-154218/prolia-subcutaneous/ details (last visited Jan. 24, 2019). 14 1 Plaintiff suffered from osteoporosis and other spinal issues (see 2 J. Stip. at 8-9). 3 “recontacted the treating doctors for further explanation or 4 clarification or sent [her] out for a consultative examination.” 5 (Id.) 6 objective findings of the MRI” because she was not a doctor and 7 was not qualified to interpret them. 8 9 Plaintiff argues that the ALJ should have She further contends that the ALJ improperly “cited to the (Id. at 9.) The stage-agency physicians reviewed Plaintiff’s medical records in March and June 2014 (see AR 476-85, 512-18), and so 10 they did not see the December 2014 lumbar- and cervical-spine 11 MRIs showing degenerative changes and cord flattening, among 12 other issues (see AR 538-41). 13 Plaintiff’s osteoporosis, which wasn’t diagnosed until 2015. 14 (See AR 536-37.) 15 showing osteopenia. 16 osteopenia based on 2010 records).) 17 information they had available at the time, the state-agency 18 physicians discounted Plaintiff’s bone pain.15 19 483.) 20 osteoporosis diagnosis, the record was inadequate and the ALJ had 21 a duty to develop it further. 22 (holding that “inadequacy of the record to allow for proper 23 evaluation triggers duty of inquiry”). They also were not aware of At most, they may have had access to records (See AR 536 (indicating clinical history of Thus, based on the (See, e.g., AR Because no state-agency doctor ever evaluated the MRIs or See McLeod, 640 F.3d at 885 24 25 26 27 28 15 One of Plaintiff’s treating doctors found that Plaintiff’s “[c]ervical pain” could have been related to “severe osteoporosis from her medical treatments from breast cancer” (AR 560). That opinion postdated the reviewing doctors’ opinions and thus they never saw it. (Id. (doctor’s letter dated Apr. 27, 2016).) 15 1 When the record is inadequate, as here, an ALJ has 2 discretion to order a consultative examination.16 3 F.3d at 842; § 404.1519a. 4 not contained in the records,” a consultative examination is 5 “normally require[d].” 6 § 404.1519a(b)(1)). 7 record in this case, but the ALJ did not order one. 8 evaluated the MRIs and bone-density evidence herself, determining 9 that the MRIs showed only “slight abnormality that would have no 10 more than a minimal effect on [Plaintiff’s] ability to work” and 11 that the osteoporosis was nonsevere. 12 assessments without support from any physician was improper. 13 Padilla v. Astrue, 541 F. Supp. 2d 1102, 1106-07 (C.D. Cal. 14 2008); see also Zazueta v. Colvin, No. CV 14–1905 JC., 2014 WL 15 4854575, at *5 (C.D. Cal. Sept. 29, 2014) (collecting cases). 16 17 See Reed, 270 When “additional evidence needed is Reed, 270 F.3d at 842 (quoting Such an evaluation could have clarified the (AR 19.) Instead, she Making these See Thus, the ALJ did not fully and fairly develop the record, and remand is warranted on this ground. 18 19 20 21 22 23 24 25 26 27 28 16 An ALJ could also discharge her duty to develop the record fully and fairly by “subpoenaing the claimant’s physicians, submitting questions to the claimant’s physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record.” Tonapetyan, 242 F.3d at 1150. Here, the ALJ left the record open for 24 days after the hearing so that Plaintiff could submit additional treatment evidence. (See AR 37, 574.) But apparently none of that evidence related to the MRIs or osteoporosis diagnosis. (Cf. AR 36 (ALJ agreeing to hold record open for treating notes from neurologist and pulmonologist).) Thus, leaving the record open was insufficient to meet the ALJ’s duty to develop the record. 16 1 B. Remand for Further Proceedings Is Appropriate 2 When an ALJ errs, as here, the Court “ordinarily must remand 3 for further proceedings.” Leon v. Berryhill, 880 F.3d 1041, 1045 4 (9th Cir. 2017) (as amended Jan. 25, 2018); see also Harman v. 5 Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) (as amended). 6 Court has discretion to do so or to award benefits under the 7 “credit as true” rule. 8 omitted). 9 and prophylactic exception to the ordinary remand rule[.]” The Leon, 880 F.3d at 1045 (citation “[A] direct award of benefits was intended as a rare Id. 10 The “decision of whether to remand for further proceedings turns 11 upon the likely utility of such proceedings,” Harman, 211 F.3d at 12 1179, and when an “ALJ makes a legal error, but the record is 13 uncertain and ambiguous, the proper approach is to remand the 14 case to the agency,” Leon, 880 F.3d at 1045 (citing Treichler v. 15 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014)). 16 Here, further administrative proceedings would serve the 17 useful purpose of allowing the ALJ to fully develop the record. 18 See Tonapetyan, 242 F.3d at 1151. 19 receiving specialized treatment for osteoporosis other than 20 Prolia injections twice a year, two different physicians 21 confirmed that follow-up bone-density testing was needed only 22 once every two years (see, e.g., AR 537, 563), and, as the ALJ 23 noted, “treatment records document[ed] no treatment” for several 24 of Plaintiff’s alleged impairments (see AR 22), the Court has 25 serious doubt whether she was disabled during any or all of the 26 relevant period. 27 See Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 28 (recognizing flexibility to remand for further proceedings when Because Plaintiff was not For this reason, too, remand is appropriate. 17 1 “record as a whole creates serious doubt as to whether the 2 [plaintiff] is, in fact, disabled”). 3 Because the ALJ’s assessment of Plaintiff’s subjective pain 4 statements was based on a record that was not fully developed, 5 she should on remand reconsider those allegations. 6 chooses to discount Plaintiff’s subjective symptoms once again, 7 she can then provide an adequate discussion of the reasons why. 8 See Payan v. Colvin, 672 F. App’x 732, 733 (9th Cir. 2016). 9 Accordingly, the court does not reach that issue. If the ALJ See Hiler v. 10 Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand 11 the case to the ALJ for the reasons stated, we decline to reach 12 [plaintiff’s] alternative ground for remand.”). 13 VI. 14 CONCLUSION Consistent with the foregoing and under sentence four of 42 15 U.S.C. § 405(g),17 IT IS ORDERED that judgment be entered 16 REVERSING the Commissioner’s decision, GRANTING Plaintiff’s 17 request for remand, and REMANDING this action for further 18 proceedings consistent with this memorandum decision. 19 20 DATED: January 24, 2019 JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 17 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 18
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