Karen Eastwood v. Nancy A. Berryhill, No. 5:2017cv00918 - Document 24 (C.D. Cal. 2019)

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 details.) (sbou)

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Karen Eastwood v. Nancy A. Berryhill Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 KAREN E., 12 13 Plaintiff, v. 14 NANCY A. BERRYHILL, Acting 15 Commissioner of Social Security Administration, 16 Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 17-918-SP MEMORANDUM OPINION AND ORDER 19 I. 20 INTRODUCTION 21 On May 11, 2017, plaintiff Karen E. filed a complaint against defendant, the 22 Commissioner of the Social Security Administration (“Commissioner”), seeking a 23 review of a denial of a period of disability, disability insurance benefits (“DIB”), 24 and supplemental security income (“SSI”). The parties have fully briefed the 25 matters in dispute, and the court deems the matter suitable for adjudication without 26 oral argument. 27 Plaintiff presents one disputed issue for decision, whether there is 28 1 Dockets.Justia.com 1 substantial evidence to support the Administrative Law Judge’s (“ALJ”) residual 2 functional capacity (“RFC”) determination. Memorandum in Support of 3 Plaintiff’s Complaint (“P. Mem.”) at 5-9; see Memorandum in Support of 4 Defendant’s Answer (“D. Mem.”) at 1-5. 5 Having carefully studied the parties’ memoranda on the issue in dispute, the 6 Administrative Record (“AR”), and the decision of the ALJ, the court concludes 7 that, as detailed herein, the ALJ’s RFC finding is not supported by substantial 8 evidence. The court therefore remands this matter to the Commissioner in 9 accordance with the principles and instructions of this Memorandum Opinion and 10 Order. 11 II. 12 FACTUAL AND PROCEDURAL BACKGROUND 13 Plaintiff was forty-nine years old on her alleged disability onset date and has 14 an eighth grade education. AR at 56, 279. Plaintiff has past relevant work as a 15 heating and air conditioning installer and servicer and as a tractor trailer truck 16 driver. Id. at 51-52. 17 On June 11, 2013, plaintiff filed applications for DIB and SSI, alleging 18 disability due to herniated discs, depression, and mood swing disorder. Id. at 56, 19 66. The Commissioner denied plaintiff’s applications initially and upon 20 reconsideration, after which plaintiff filed a request for a hearing. Id. at 105-19. 21 On February 22, 2016, plaintiff, represented by counsel, appeared and 22 testified at a hearing before the ALJ. Id. at 38-55. The ALJ also heard testimony 23 from Sandra Fioretti, a vocational expert. Id. at 51-53. On March 15, 2016, the 24 ALJ denied plaintiff’s claims for benefits. Id. at 18-33. 25 The ALJ applied the well-known five-step sequential evaluation process and 26 found, at step one, that plaintiff had not engaged in substantial gainful activity 27 since February 1, 2013, the alleged disability onset date. Id. at 20. 28 2 1 At step two, the ALJ found plaintiff suffered from the following severe 2 impairments: obesity; degenerative disc disease of the lumbar spine; asthma; and 3 osteoarthritis of the right hip, status post right total hip arthroplasty. Id. 4 At step three, the ALJ found plaintiff’s impairments, whether individually 5 or in combination, did not meet or medically equal one of the listed impairments 6 set forth in 20 C.F.R. part 404, Subpart P, Appendix 1. Id. at 24. The ALJ then assessed plaintiff’s residual functional capacity,1 and 7 8 determined she had the RFC to perform medium work, with the limitations that 9 she could: lift and carry fifty pounds occasionally and twenty-five pounds 10 frequently; stand and walk for six hours out of an eight-hour workday with normal 11 breaks; sit for six hours out of an eight-hour workday with normal breaks; 12 occasionally push and pull with her right lower extremity; occasionally climb 13 ramps and stairs; and occasionally balance, bend, stoop, kneel, and crouch. Id. at 14 25. The ALJ precluded plaintiff from: climbing ladders, ropes, or scaffolds; 15 crawling; and moderate exposure to fumes, odors, dust, gases, and poor ventilation 16 in the workplace. Id. 17 The ALJ found, at step four, that plaintiff is unable to perform any past 18 relevant work. Id. at 30. 19 At step five, the ALJ found that given plaintiff’s age, education, work 20 experience, and RFC, there were jobs that existed in significant numbers in the 21 national economy that plaintiff could perform, including machine feeder, dining 22 room attendant, and hand packager. Id. at 31-32. Consequently, the ALJ 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, 26 1155-56 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 27 assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 28 F.3d 1149, 1151 n.2 (9th Cir. 2007). 3 1 concluded plaintiff did not suffer from a disability as defined by the Social 2 Security Act. Id. at 32-33. 3 Plaintiff filed a timely request for review of the ALJ’s decision, which was 4 denied by the Appeals Council. Id. at 1-4. The ALJ’s decision stands as the final 5 decision of the Commissioner. 6 III. 7 STANDARD OF REVIEW 8 This court is empowered to review decisions by the Commissioner to deny 9 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 10 Administration must be upheld if they are free of legal error and supported by 11 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 12 (as amended). But if the court determines the ALJ’s findings are based on legal 13 error or are not supported by substantial evidence in the record, the court may 14 reject the findings and set aside the decision to deny benefits. Aukland v. 15 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 16 1144, 1147 (9th Cir. 2001). 17 “Substantial evidence is more than a mere scintilla, but less than a 18 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 19 “relevant evidence which a reasonable person might accept as adequate to support 20 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 21 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 22 finding, the reviewing court must review the administrative record as a whole, 23 “weighing both the evidence that supports and the evidence that detracts from the 24 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 25 affirmed simply by isolating a specific quantum of supporting evidence.’” 26 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 27 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 28 4 1 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 2 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 3 1992)). 4 IV. 5 DISCUSSION 6 Plaintiff challenges the ALJ’s RFC determination, arguing it was not 7 supported by substantial evidence. P. Mem. at 5-9. In particular, plaintiff argues 8 the ALJ’s reliance on State Agency physicians’ opinions from August 2013 and 9 January 2014 failed to account for medical evidence from the following two years 10 for treatment plaintiff received for lower back pain and carpal tunnel syndrome. 11 RFC is what one can “still do despite [his or her] limitations.” 20 C.F.R. 12 § 416.945(a)(1)-(2).2 The ALJ reaches an RFC determination by reviewing and 13 considering all of the relevant evidence, including non-severe impairments. Id. 14 Here, the ALJ found plaintiff could perform medium work, with the additional 15 limitations that she could: stand and walk or sit for six hours out of an eight-hour 16 workday with normal breaks; occasionally push and pull with her right lower 17 extremity; occasionally climb ramps and stairs; and occasionally balance, bend, 18 stoop, kneel, and crouch; but she could not: climb ladders, ropes, or scaffolds; 19 crawl; or have moderate exposure to fumes, odors, dust, gases, and poor 20 ventilation in the workplace. AR at 25, 21 In reaching this RFC determination, the ALJ expressly gave significant 22 weight to the opinions of the State Agency physicians, Dr. K. Vu and Dr. H.M. 23 Estrin, who opined limitations for plaintiff largely consistent with the RFC found 24 by the ALJ. Id. at 29; see id. at 61-62, 84-85. Dr. Vu’s opinion was given on 25 August 5, 2013, and Dr. Estrin’s was given on January 15, 2014. 26 27 2 All citations to the Code of Federal Regulations refer to regulations 28 applicable to claims filed before March 27, 2017. 5 1 Plaintiff argues these opinions, which were rendered more than two years 2 before the ALJ’s decision, are inadequate to support the RFC determination. 3 Plaintiff points out that Drs. Vu and Estrin could not have considered the bulk of 4 the medical evidence in the record, since most of it is from after January 2014. 5 Plaintiff particularly points to the substantial evidence pertaining to plaintiff’s 6 lower back pain and carpal tunnel syndrome. She contends the ALJ simply relied 7 on his own interpretation of the medical records, but he was “not medically 8 qualified to translate the medical evidence” into an RFC determination, and 9 instead should have ordered a consultative examination or a medical expert to 10 review the record as a whole. P. Mem. at 7-9. The court agrees with plaintiff in 11 part. 12 It is true that an ALJ may not act as his own medical expert, since he is 13 “simply not qualified to interpret raw medical data in functional terms.” Nguyen v. 14 Chater, 172 F.3d 31, 35 (1st Cir. 1999); see Day v. Weinberger, 522 F.2d 1154, 15 1156 (9th Cir. 1975) (hearing examiner should not go outside the record to 16 medical textbooks to make his “own exploration and assessment” as to a 17 claimant’s impairments); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) 18 (“ALJs must not succumb to the temptation to play doctor and make their own 19 independent medical findings.”); Miller v. Astrue, 695 F. Supp. 2d 1042, 1048 20 (C.D. Cal. 2010) (it is improper for the ALJ to act as the medical expert); Padilla 21 v. Astrue, 541 F. Supp. 2d 1102, 1106 (C.D. Cal. 2008) (ALJ is not qualified to 22 extrapolate functional limitations from raw medical data). But that is not what the 23 ALJ did here with respect to plaintiff’s lower back pain. 24 Drs. Vu and Estrin considered the evidence then available to them 25 concerning plaintiff’s back problems, among other impairments, and opined 26 limitations accordingly. See AR at 59-62, 81-85. The ALJ gave significant 27 weight to these opinions, but also reviewed in detail the subsequent medical 28 6 1 evidence in the record of plaintiff’s treatment for low back pain, including MRI 2 findings, epidural steroid injections, pain medication, and the results of these 3 treatments. Id. at 26-30. The ALJ particularly noted that plaintiff reported 4 receiving good pain relief from the injections and medication, with her symptoms 5 improving as a result of this treatment. Id. at 29-30; see id. at 367-69, 877, 882. 6 Thus, although there was additional evidence not considered by the State Agency 7 physicians, the ALJ concluded it did not demonstrate a more severe lower back 8 impairment than what Drs. Vu and Estrin already considered in formulating their 9 opinions. 10 Certainly it may have been helpful for the ALJ to retain a medical expert to 11 review these records, but it was not necessarily required where, as here, the ALJ 12 reviewed the substantial medical evidence that supported his RFC determination 13 with respect to plaintiff’s lower back pain. See Tackett v. Apfel, 180 F.3d 1094, 14 1102-03 (9th Cir. 1999) (ALJ must provide evidentiary support for his 15 interpretation of medical evidence). Ultimately, a claimant’s RFC is a matter for 16 the ALJ to determine. 20 C.F.R. § 404.1546(c); see Vertigan v. Halter, 260 F.3d 17 1044, 1049 (9th Cir. 2001) (“It is clear that it is the responsibility of the ALJ . . . to 18 determine residual functional capacity.”). Thus, the court finds no error in 19 assessing plaintiff’s RFC with respect to plaintiff’s low back pain. 20 Plaintiff’s carpal tunnel syndrome is another matter. Although the ALJ did 21 not find carpal tunnel syndrome to be a severe impairment at step two, and 22 plaintiff does not challenge this, he was still obligated to consider plaintiff’s carpal 23 tunnel syndrome in assessing plaintiff’s RFC. See SSR 96-8p (“In assessing RFC, 24 the adjudicator must consider limitations and restrictions imposed by all of an 25 individual’s impairments, even those that are not ‘severe.’”). 26 There was substantial evidence in the record of carpal tunnel syndrome. On 27 January 14, 2015, in response to complaints by plaintiff of numbness and tingling 28 7 1 in both hands, Dr. Antoine Elhajjar performed nerve conduction velocity and 2 electromyography tests on plaintiff. AR at 859. The tests revealed abnormal 3 results, with evidence of bilateral median neuropathies at the wrists, or carpal 4 tunnel syndrome. Id. at 860. On July 16, 2015, Dr. David Duffner observed 5 positive Phalen and Tinel’s testing. Id. at 344. He agreed with Dr. Elhajjar’s 6 carpal tunnel diagnosis, and requested authorization for bilateral carpal tunnel 7 release. Id. at 345. 8 Although the ALJ recognized (and rejected) plaintiff’s allegations of 9 numbness and needle-like sensations in her arms, particularly after lifting 10 something like a gallon of milk (id. at 25-26), in assessing plaintiff’s RFC the ALJ 11 did not discuss any of the medical evidence of carpal tunnel syndrome. See id. at 12 25-30. Certainly plaintiff’s RFC does not reflect any manipulative, gripping, or 13 other limitations that might be expected for someone with carpal tunnel syndrome. 14 This failure to even consider what limitations might be warranted due to plaintiff’s 15 carpal tunnel syndrome was error. 16 Moreover, even if the ALJ had discussed the evidence of carpal tunnel 17 syndrome, he would have had little basis to determine what functional limitations 18 it warranted since there was no such evidence in the record. Drs. Vu and Estrin 19 considered medical evidence concerning plaintiff’s lower back pain and certain 20 other impairments, but it does not appear they reviewed any records concerning 21 carpal tunnel syndrome, and certainly they did not opine any limitations related to 22 carpal tunnel syndrome. See AR at 57-62, 79-86. Thus, for the ALJ to assess 23 functional limitations due to carpal tunnel syndrome on this record, he would have 24 been forced to act as his own medical expert and translate the data himself, 25 something he was not qualified to do. See Nguyen, 172 F.3d at 35. Under these 26 circumstance, the ALJ had a duty to develop the record further, at a minimum by 27 retaining a medical expert to evaluate the records of carpal tunnel syndrome, if not 28 8 1 by ordering a consultative examination. See Mayes, 276 F.3d at 459-60 (“An 2 ALJ’s duty to develop the record is triggered only when there is ambiguous 3 evidence or when the record is inadequate to allow for proper evaluation of the 4 evidence.”); see also Reed v. Massanari, 270 F.3d 838, 842 (9th Cir. 2001). 5 In sum, the record was inadequate with respect to plaintiff’s carpal tunnel 6 syndrome for the ALJ to properly determine plaintiff’s RFC. The ALJ erred in 7 failing to consider plaintiff’s carpal tunnel impairment, and erred in failing to 8 develop the record further. As such, the ALJ’s RFC determination was not 9 supported by substantial evidence. 10 V. 11 REMAND IS APPROPRIATE 12 The decision whether to remand for further proceedings or reverse and 13 award benefits is within the discretion of the district court. McAllister v. Sullivan, 14 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this 15 discretion to direct an immediate award of benefits where: “(1) the record has been 16 fully developed and further administrative proceedings would serve no useful 17 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 18 evidence, whether claimant testimony or medical opinions; and (3) if the 19 improperly discredited evidence were credited as true, the ALJ would be required 20 to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 21 (9th Cir. 2014) (setting forth three-part credit-as-true standard for remanding with 22 instructions to calculate and award benefits). But where there are outstanding 23 issues that must be resolved before a determination can be made, or it is not clear 24 from the record that the ALJ would be required to find a plaintiff disabled if all the 25 evidence were properly evaluated, remand for further proceedings is appropriate. 26 See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 27 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, the court must “remand for 28 9 1 further proceedings when, even though all conditions of the credit-as-true rule are 2 satisfied, an evaluation of the record as a whole creates serious doubt that a 3 claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021. 4 Here, remand is required because the ALJ failed to consider all of plaintiff’s 5 impairments in determining her RFC, and failed to fully and fairly develop the 6 record. On remand, the ALJ shall develop the record further with respect to 7 plaintiff’s carpal tunnel syndrome, including by retaining a medical expert to 8 review the entire record or by ordering a consultative examination. The ALJ shall 9 then consider all of plaintiff’s impairments in reassessing her RFC, and proceed 10 through steps four and five to determine what work, if any, plaintiff is capable of 11 performing. 12 VI. 13 CONCLUSION 14 IT IS THEREFORE ORDERED that Judgment shall be entered 15 REVERSING the decision of the Commissioner denying benefits, and 16 REMANDING the matter to the Commissioner for further administrative action 17 consistent with this decision. 18 19 DATED: March 27, 2019 20 21 SHERI PYM United States Magistrate Judge 22 23 24 25 26 27 28 10

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