Robert Rendon Guedea v. Nancy A. Berryhill, No. 5:2018cv00592 - Document 25 (C.D. Cal. 2019)
Court Description: MEMORANDUM DECISION 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 (See document for details.) (sbou)
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Robert Rendon Guedea v. Nancy A. Berryhill Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBERT RENDON G.,1 Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. ) Case No. EDCV 18-0592-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) REVERSING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying his applications for Social Security disability insurance 21 benefits (“DIB”) and supplemental security income benefits 22 (“SSI”). 23 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 24 matter is before the Court on the parties’ Joint Stipulation, The parties consented to the jurisdiction of the The 25 26 1 27 28 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 filed January 2, 2019, which the Court has taken under submission 2 without oral argument. 3 Commissioner’s decision is reversed and this action is remanded 4 for further proceedings. 5 II. 6 For the reasons stated below, the BACKGROUND Plaintiff was born in 1967. (Administrative Record (“AR”) 7 41.) 8 construction” jobs, most recently as a “construction paint[er]” 9 (AR 43). 10 He completed high school (AR 42) and worked “general Plaintiff applied for DIB on April 2, 2014 (AR 302),2 and 11 for SSI on January 16, 2015 (AR 24),3 alleging that he had been 12 disabled since February 10, 2014 (AR 24, 302). 13 disability from “arthritis in [his] right hip” and “possible hip 14 replacement needed.” 15 denied initially (AR 227) and on reconsideration (AR 239), he 16 requested a hearing before an Administrative Law Judge (AR 254). 17 A hearing was held on April 26, 2016, at which Plaintiff, who was 18 represented by an attorney, testified, as did a vocational 19 expert. 20 2016, the ALJ found Plaintiff not disabled. 21 Plaintiff requested review from the Appeals Council (AR 300-01) 22 and submitted additional medical records, including a detailed (AR 39-54.) (AR 217.) He claimed After his DIB application was In a written decision issued August 2, (AR 24-33.) 23 2 24 25 The parties and the ALJ state that the DIB application was filed on April 1, 2014. (See AR 24; J. Stip. at 2.) The timing of that application is not at issue here, and the Court uses the April 2 date listed on the application summary. (See AR 302.) 26 3 27 28 The record does not contain documentation of Plaintiff’s SSI application, but the ALJ and the parties state that he filed one in January 2015 alleging disability beginning February 10, 2014. (AR 24; J. Stip. at 2.) 2 1 opinion from his treating orthopedic surgeon indicating his 2 residual functional capacity. 3 Council declined to consider that opinion and other evidence 4 because it did not relate to the period at issue. 5 found that newly submitted evidence from the relevant time period 6 did not “show a reasonable probability”4 of changing the ALJ’s 7 decision. 8 review on February 22, 2018. 9 III. STANDARD OF REVIEW 10 (Id.) (See AR 10-12.) The Appeals (AR 2.) It The Appeals Council denied the request for (AR 1-4.) This action followed. Under 42 U.S.C. § 405(g), a district court may review the 11 Commissioner’s decision to deny benefits. 12 decision should be upheld if they are free of legal error and 13 supported by substantial evidence based on the record as a whole. 14 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 15 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 16 means such evidence as a reasonable person might accept as 17 adequate to support a conclusion. 18 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 19 is more than a scintilla but less than a preponderance. 20 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 21 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 22 meaning of ‘substantial’ in other contexts, the threshold for 23 such evidentiary sufficiency is not high.” 24 139 S. Ct. 1148, 1154 (2019). The ALJ’s findings and Substantial evidence Richardson, 402 U.S. at 401; It “[W]hatever the Biestek v. Berryhill, To determine whether substantial 25 26 27 28 4 The standard in the Ninth Circuit is whether the new evidence raises a reasonable “possibility,” not “probability,” that the outcome of the proceeding would have been different had the ALJ considered it. See Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001) (as amended). 3 1 evidence supports a finding, the reviewing court “must review the 2 administrative record as a whole, weighing both the evidence that 3 supports and the evidence that detracts from the Commissioner’s 4 conclusion.” 5 1998). 6 or reversing,” the reviewing court “may not substitute its 7 judgment” for the Commissioner’s. 8 IV. 9 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. “If the evidence can reasonably support either affirming Id. at 720-21. THE EVALUATION OF DISABILITY People are “disabled” for purposes of receiving Social 10 Security benefits if they are unable to engage in any substantial 11 gainful activity owing to a physical or mental impairment that is 12 expected to result in death or has lasted, or is expected to 13 last, for a continuous period of at least 12 months. 14 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 15 1992). 42 U.S.C. 16 A. The Five-Step Evaluation Process 17 The ALJ follows a five-step sequential evaluation process to 18 assess whether a claimant is disabled. 19 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 20 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). 21 step, the Commissioner must determine whether the claimant is 22 currently engaged in substantial gainful activity; if so, the 23 claimant is not disabled and the claim must be denied. 24 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). 25 20 C.F.R. In the first If the claimant is not engaged in substantial gainful 26 activity, the second step requires the Commissioner to determine 27 whether the claimant has a “severe” impairment or combination of 28 impairments significantly limiting his ability to do basic work 4 1 activities; if not, the claimant is not disabled and his claim 2 must be denied. 3 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 4 impairments, the third step requires the Commissioner to 5 determine whether the impairment or combination of impairments 6 meets or equals an impairment in the Listing of Impairments set 7 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 8 disability is conclusively presumed. 9 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), 10 If the claimant’s impairment or combination of impairments 11 does not meet or equal an impairment in the Listing, the fourth 12 step requires the Commissioner to determine whether the claimant 13 has sufficient residual functional capacity (“RFC”)5 to perform 14 his past work; if so, he is not disabled and the claim must be 15 denied. 16 has the burden of proving he is unable to perform past relevant 17 work. 18 burden, a prima facie case of disability is established. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Drouin, 966 F.2d at 1257. The claimant If the claimant meets that Id. 19 If that happens or if the claimant has no past relevant 20 work, the Commissioner then bears the burden of establishing that 21 the claimant is not disabled because he can perform other 22 substantial gainful work available in the national economy. 23 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 24 25 26 27 28 5 RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 5 1 That determination comprises the fifth and final step in the 2 sequential analysis. 3 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); 4 B. 5 At step one, the ALJ found that Plaintiff had not engaged in 6 substantial gainful activity since February 10, 2014, the alleged 7 disability onset date. 8 he had the following severe impairments: “bilateral hip 9 osteoarthritis vs. degenerative joint disease, bursitis of the The ALJ’s Application of the Five-Step Process (AR 26.) At step two, he concluded that 10 right hip, lumbar degenerative disc disease, and obesity[.]” 11 27.) 12 or combination of impairments that met or equaled a Listing. 13 27-28.) 14 15 At step three, he found that he did not have an impairment to perform light work6 with some additional limitations: He can lift and carry 20 pounds occasionally and 10 17 pounds frequently. 18 six hours in an eight-hour day. 19 in an eight-hour day. The claimant can stand and walk for He can sit for six hours The claimant can occasionally 20 21 6 “Light work” is defined as 22 24 25 26 27 28 (AR At step four, the ALJ determined that Plaintiff had the RFC 16 23 (AR lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. §§ 404.1567(b) & 416.967(b). 6 1 climb ramps and stairs but never climb ladders, ropes, 2 and scaffolds. 3 kneel, crouch, and crawl. 4 extreme cold and hazards. He can occasionally balance, stoop, The claimant should avoid 5 (AR 28.) 6 Plaintiff could not perform his past relevant work as a 7 construction worker. 8 9 Based on the VE’s testimony, the ALJ concluded that (AR 31.) At step five, he found that given Plaintiff’s age, education, work experience, and RFC, and “[b]ased on the 10 testimony of the vocational expert,” he could perform at least 11 three representative jobs in the national economy. 12 Thus, he found Plaintiff not disabled. 13 V. (AR 32.) (AR 33.) DISCUSSION7 14 The Commissioner Did Not Properly Consider the Medical 15 Evidence in Determining Plaintiff’s RFC 16 Plaintiff contends that the ALJ erred in finding that he 17 could stand for six hours a day on a continuous basis. (See J. 18 Stip. at 4.) 19 failed to weigh the opinion of treating orthopedic surgeon He argues that in so finding the ALJ improperly 20 21 7 22 23 24 25 26 27 28 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 his administrative proceedings. (See AR 39-54, 378-79); 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), pet. for cert. filed, __ U.S.L.W. __ (U.S. Feb. 22, 2019) (No. 18-1117). 7 1 Stephen Chow (see id. at 7-9, 12-15) and rejected Plaintiff’s 2 subjective symptom statements (see id. at 6-8). 3 contends that the new evidence he submitted to the Appeals 4 Council from Dr. Chow demonstrates that the ALJ mistakenly 5 assessed his RFC based on old evidence that did not reflect the 6 progressive nature of his condition, which was steadily 7 deteriorating. 8 warranted based on the Commissioner’s failure to consider Dr. 9 Chow’s medical opinion. 10 11 A. (See id. at 9.) He further As discussed below, remand is Applicable law A claimant’s RFC is “the most [he] can still do” despite the 12 impairments and related symptoms that “may cause physical and 13 mental limitations that affect what [he] can do in a work 14 setting.” 15 must uphold an ALJ’s RFC assessment when the ALJ has applied the 16 proper legal standard and substantial evidence in the record as a 17 whole supports the decision. 18 1217 (9th Cir. 2005). 19 opinions “together with the rest of the relevant evidence.” 20 §§ 404.1527(b), 416.927(b);8 see also §§ 404.145(a)(1), §§ 404.1545(a)(1), 416.945(a)(1). A district court Bayliss v. Barnhart, 427 F.3d 1211, The ALJ must consider all the medical 21 22 23 24 25 26 27 28 8 Social Security regulations regarding the evaluation of opinion evidence were amended effective March 27, 2017. When, as here, the ALJ’s decision is the final decision of the Commissioner, the reviewing court generally applies the law in effect at the time of the ALJ’s decision. See Lowry v. Astrue, 474 F. App’x 801, 804 n.2 (2d Cir. 2012) (applying version of regulation in effect at time of ALJ’s decision despite subsequent amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) (“We apply the rules that were in effect at the time the Commissioner’s decision became final.”); Spencer v. Colvin, No. 3:15-CV-05925-DWC, 2016 WL 7046848, at *9 n.4 (W.D. Wash. Dec. 1, 2016) (“42 U.S.C. § 405 does not contain any 8 1 416.945(a)(1) (“We will assess your residual functional capacity 2 based on all the relevant evidence in your case record.”). 3 Three types of physicians may offer opinions in Social 4 Security cases: (1) those who directly treated the plaintiff, (2) 5 those who examined but did not treat the plaintiff, and (3) those 6 who did neither. 7 opinion is generally entitled to more weight than an examining 8 physician’s, and an examining physician’s opinion is generally 9 entitled to more weight than a nonexamining physician’s. Lester, 81 F.3d at 830. A treating physician’s Id.; 10 see §§ 404.1527(c)(1), 416.927(c)(1). 11 treating physicians are employed to cure and have a greater 12 opportunity to know and observe the claimant. 13 80 F.3d 1273, 1285 (9th Cir. 1996). 14 This is so because Smolen v. Chater, The ALJ may reject a treating physician’s opinion whether or 15 not that opinion is contradicted. 16 747, 751 (9th Cir. 1989). 17 not contradicted by other medical-opinion evidence, however, it 18 may be rejected only for a “clear and convincing” reason. 19 see Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 20 (9th Cir. 2008) (citing Lester, 81 F.3d at 830-31). 21 contradicted, the ALJ must provide only a “specific and 22 legitimate reason[]” for discounting it. 23 1164 (citing Lester, 81 F.3d at 830-31). 24 Magallanes v. Bowen, 881 F.2d When a treating physician’s opinion is Id.; When it is Carmickle, 533 F.3d at An ALJ may not disregard a treating physician’s opinion 25 26 27 28 express authorization from Congress allowing the Commissioner to engage in retroactive rulemaking”). Accordingly, citations to §§ 404.1527 and 416.927 are to the versions in effect from August 24, 2012, to March 26, 2017. 9 1 unless he sets forth “specific, legitimate reasons for doing so 2 that are based on substantial evidence in the record.” 3 80 F.3d at 1285 (citation omitted). 4 rejects a medical opinion” by “doing nothing more than ignoring 5 it.” 6 (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)). 7 Smolen, “[A]n ALJ errs when he Garrison v. Colvin, 759 F.3d 995, 1012–13 (9th Cir. 2014) The Court must consider the ALJ’s decision in the context of 8 “the entire record as a whole,” and if the “‘evidence is 9 susceptible to more than one rational interpretation,’ the ALJ’s 10 decision should be upheld.” Ryan v. Comm’r of Soc. Sec., 528 11 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). 12 At the time of the relevant proceedings here, Social 13 Security regulations allowed claimants to submit “new and 14 material evidence to the Appeals Council and require[d] the 15 Council to consider that evidence in determining whether to 16 review the ALJ’s decision, so long as the evidence relate[d] to 17 the period on or before the ALJ’s decision.” 18 Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012); see also 19 §§ 404.970(b), 416.1470(b). 20 considers new evidence in deciding whether to review a decision 21 of the ALJ, that evidence becomes part of the administrative 22 record, which the district court must consider when reviewing the 23 Commissioner’s final decision for substantial evidence.” 24 682 F.3d at 1163. 25 possibility” exists that “the new evidence might change the 26 outcome of the administrative hearing.” 27 F.3d 453, 462 (9th Cir. 2001) (as amended); Borrelli v. Comm’r of 28 Soc. Sec., 570 F. App’x 651, 652 (9th Cir. 2014). Brewes v. Comm’r of “[W]hen the Appeals Council Brewes, Remand is necessary when a “reasonable 10 Mayes v. Massanari, 276 1 Medical examinations after the ALJ’s decision may still 2 relate to a claimant’s conditions “during the relevant time 3 period.” 4 at *3 (C.D. Cal. Sept. 30, 2014). 5 Appeals Council errs in dismissing the evidence solely because it 6 was dated after the ALJ’s decision. 7 Colvin, No. EDCV 13–2393 RNB., 2014 WL 6065900, at *2 (C.D. Cal. 8 Nov. 13, 2014) (that claimant submitted evidence to Appeals 9 Council that was “generated after the ALJ’s decision . . . is not 10 dispositive of whether the evidence was chronologically relevant” 11 and collecting cases). 12 plaintiff’s condition is “chronic” or relatively “longstanding.” 13 See Baccari, 2014 WL 6065900, at *2 (citations omitted); Bergmann 14 v. Apfel, 207 F.3d 1065, 1070 (8th Cir. 2000) (finding that 15 posthearing evidence required remand because it concerned 16 deterioration of “relatively longstanding” impairment). 17 18 Handy v. Colvin, No. CV 14–02149–SH., 2014 WL 4895678, B. In such circumstance, the See id.; see also Baccari v. This is especially true when the Medical evidence from Dr. Chow Plaintiff saw orthopedic surgeon Chow regularly from 19 December 2014 through April 2016 for hip pain. (See AR 421-25, 20 480-507.) 21 Trendelenburg gait9 (see AR 422, 480, 484, 488, 492, 496, 500, 22 505) and tested his right-hip range of motion (see AR 423, 481, 23 485, 489, 492-93, 497, 500-01, 505). 24 same scores virtually every time, indicating right-hip pain with At each visit, Dr. Chow noted his antalgic The results revealed the 25 26 9 27 28 The Trendelenburg gait is abnormal and is caused by weakness of the hip abductor muscles. See Trendelenburg Gait, Physiopedia, https://www.physio-pedia.com/Trendelenburg_Gait (last visited May 6, 2019). 11 1 movement. (Id.) At his April 3, 2015 visit, Plaintiff reported 2 that injections and physical therapy were “moderately helpful.” 3 (AR 504.) 4 had injections the week before that relieved 70 percent of his 5 pain. 6 working,” he reported that the pain was coming back. 7 June 24, 2015, he could walk only a short distance before needing 8 to stop. 9 helpful.” At visits on May 15 and June 24, 2015, he noted having (AR 496, 500.) (AR 496.) (AR 498.) Although those injections were “still (Id.) By He stated that the injections “ha[d] been Dr. Chow prescribed Norco.10 (AR 498.) In 10 August and September 2015, Plaintiff was still experiencing “some 11 pain” but the “shot still seem[ed] to be working,” and Norco was 12 “helpful.” 13 hearing, he noted that injections and Norco were helping and that 14 there was “no real change” in his condition. 15 16, 2015), 484, 486 (Jan. 6, 2016), 480, 482 (Apr. 13, 2016).) 16 At every visit, Dr. Chow explained that Plaintiff needed a hip 17 replacement but recommended delaying surgery until better, 18 longer-lasting prosthetics became available. 19 482-83, 486-87, 490-91, 494-95, 498-99, 502-03, 506-07.) (AR 488, 492.) At his three visits preceding the (AR 488, 490 (Sept. (See AR 424-25, 20 Plaintiff provided the Appeals Council additional evidence 21 from Dr. Chow, including treatment notes from two office visits 22 in 2016 and an RFC questionnaire Dr. Chow had filled out on 23 October 31, 2016. (See AR 74-78 (June 10, 2016 office visit), 24 25 26 10 27 28 Norco is name-brand hydrocodone-acetaminophen. See Norco, WebMD, https://www.webmd.com/drugs/2/drug-63/norco-oral/ details (last visited May 6, 2019). Hydrocodone is an opioid pain reliever. Id. 12 1 69-73 (Oct. 28, 2016 office visit), 10-12 (RFC questionnaire).)11 2 Records from Plaintiff’s June 10, 2016 visit to Dr. Chow noted 3 that his hip pain was “now . . . progressive[.]” 4 had an antalgic Trendelenburg gait, a limited range of motion, 5 and pain with movement. 6 was painful. 7 symptomatic osteoarthritis” and stated that conservative 8 treatment had failed. 9 using a cane and had “severe pain about the hip interfering with (AR 75.) (AR 74-75.) (AR 74.) He A straight-leg-raising test Dr. Chow assessed him with “right hip (AR 76.) He noted that Plaintiff was now 10 functional daily activities, especially with the initiation of 11 activities and weightbearing.” 12 proceed with hip-replacement surgery, and Dr. Chow gave his 13 authorization for the procedure.12 14 right-hip x-rays taken on June 13, 2016, which showed “increased 15 interval degenerative changes and joint space narrowing[.]” 16 75.) 17 Dr. Chow are nearly identical (compare AR 69-73, with AR 74-78) 18 except that at the later visit Dr. Chow also assessed him as 19 “unable to work” (AR 71). 20 21 (Id.) Plaintiff decided to (AR 77.) The notes reference (AR Treatment notes from Plaintiff’s October 28, 2016 visit to Dr. Chow completed an RFC questionnaire for Plaintiff on October 31, 2016, less than three months after the ALJ’s 22 23 24 25 26 27 28 11 Plaintiff also gave the Appeals Council evidence concerning a shoulder injury (AR 57-68, 93-94, 100-05) for which he first sought treatment after the ALJ’s decision (see AR 102-05 (earliest treatment records for shoulder pain from Sept. 13, 2016)). The Appeals Council properly found that that evidence “did not relate to the period at issue.” (AR 2.) 12 The record does not reflect whether Plaintiff actually had hip-replacement surgery. As of June 2017, he had “decided to hold off on [it] for now[.]” (AR 64.) 13 1 decision. (AR 10-12.) He indicated that he had been seeing 2 Plaintiff “bimonthly” and diagnosed him with “right hip 3 osteoarthritis[.]” 4 pain in right hip” and noted that he “[could] not walk too much 5 and [could] not work.” 6 one to two city blocks without rest or severe pain and checked a 7 box indicating that he could stand for less than two hours in an 8 eight-hour day. 9 or assistive device “[w]hile engaging in occasional standing/ (AR 10.) (Id.) He listed his “symptoms” as “severe (Id.) Dr. Chow noted that he could walk Dr. Chow also noted that he needed a cane 10 walking[.]” 11 Plaintiff’s impairments or treatment would make him absent from 12 work more than four days a month. 13 (AR 11.) He checked a box indicating that (AR 12.) The Appeals Council found that the medical records from Dr. 14 Chow postdating the ALJ’s August 2, 2016 decision — the October 15 31, 2016 RFC questionnaire and October 28, 2016 treatment notes — 16 did not “relate to the period at issue.” 17 that the records from his June 10, 2016 visit did not show a 18 “reasonable probability” of changing the outcome of the ALJ’s 19 decision. 20 consider any of that evidence. 21 22 (Id.) C. (AR 2.) It concluded Accordingly, the Appeals Council declined to (Id.) Analysis In assessing Plaintiff’s RFC, the ALJ gave significant 23 weight to the 2014 opinions of the consulting examining doctor 24 and the state-agency reviewing doctors that Plaintiff could 25 perform a limited range of light exertional work. 26 He considered Dr. Chow’s April 16, 2016 medical records and noted 27 that an x-ray that day showed “increased interval degenerative 28 changes and joint space narrowing,” demonstrating, as Plaintiff 14 (AR 30-31.) 1 contends (see, e.g., J. Stip. at 7), that his condition was 2 getting progressively worse. 3 The ALJ also noted that Dr. Chow diagnosed Plaintiff with “right 4 hip osteoarthritis.” 5 weight, if any, he assigned to Dr. Chow’s opinion or to discuss 6 its credibility at all.13 7 providing a specific and legitimate reason for apparently 8 rejecting the portion of the opinion relating to the progressive 9 nature of Plaintiff’s impairments (or, for that matter, any 10 reason at all).14 (Id.) (See AR 29 (citing AR 480-82).) Yet he failed to indicate what The ALJ therefore erred in not See Smolen, 80 F.3d at 1285. 11 This error was compounded by the Appeals Council’s failure 12 to consider Dr. Chow’s medical opinions postdating the hearing, 13 and remand is appropriate so that the ALJ can reconsider his 14 decision in light of that evidence. 15 relevant time period. 16 October 28, 2016 treatment notes (AR 69-72) postdated the ALJ 17 decision by only about three months, and they concerned 18 Plaintiff’s longstanding hip condition (see AR 451 (showing that 19 Plaintiff sought treatment for hip pain as early as January 20 2012)). First, it related to the The RFC questionnaire (AR 10-12) and the Such evidence was “chronologically relevant” to 21 13 22 23 24 25 Although current rules define a “medical opinion” as focusing on functional abilities and limitations, see §§ 404.1527(a)(1), 416.927(a)(1) (effective Mar. 27, 2017), under the rules in effect at the time of the ALJ’s decision, see supra note 8, a medical opinion included statements about things other than functioning, such as diagnoses, prognoses, and statements about symptoms, see §§ 404.1527(a)(1), 416.927(a)(1) (effective Aug. 24, 2012 through Mar. 26, 2017). 26 14 27 28 Defendant contends that the ALJ “gave weight to all the medical opinions before him.” (J. Stip. at 19.) That is incorrect, as the ALJ did not assign any weight to Dr. Chow’s opinion. (See AR 28-31.) 15 1 Plaintiff’s condition at the time of the hearing. 2 WL 6065900, at *2; see also Beltz v. Berryhill, 679 F. App’x 576, 3 577 (9th Cir. 2017) (remanding to allow ALJ to consider new 4 evidence illuminating “nature, extent, and persistence” of 5 claimant’s disability); Stone v. Heckler, 761 F.2d 530, 532 (9th 6 Cir. 1985) (when claimant’s condition is progressively 7 deteriorating, most recent evidence is most probative). 8 Therefore, the Appeals Council erred in rejecting the evidence 9 merely because it postdated the ALJ’s decision by a few months. 10 Baccari, 2014 Second, there is a “reasonable possibility” that the new 11 evidence would have changed the outcome of the ALJ's decision. 12 See Borrelli, 570 F. App’x at 652. 13 with a limited light RFC, which included the ability to stand or 14 walk for six hours in an eight-hour day. 15 he relied on the 2014 opinions of the examining consultant (AR 16 30-31) and the reviewing doctors (AR 31) and on objective 17 evidence from 2014 and July 2015 that showed relatively normal 18 physical findings, with Plaintiff’s pain eased somewhat by 19 injections (AR 30 (citing 381-82, 407-08, 415-16, 480-82)). 20 analysis fails to account for the progressive nature of 21 Plaintiff’s condition, which the new evidence shows had 22 deteriorated further by the time of the hearing, in mid-2016. 23 For example, Dr. Chow noted on the October 31, 2016 RFC 24 questionnaire that Plaintiff could stand for only less than two 25 hours in an eight-hour day. 26 than one or two city blocks without resting or experiencing 27 severe pain. 28 an assistive device even to stand or walk occasionally. (Id.) The ALJ assessed Plaintiff (AR 10.) (AR 28.) In doing so, That He could not walk more Indeed, Dr. Chow noted that Plaintiff needed 16 (AR 11.) 1 And his October 28, 2016 treatment notes indicate that 2 Plaintiff’s hip pain had progressed to the point of interfering 3 with his ability to bear weight, and conservative treatment had 4 failed. 5 sudden injury or illness that could account for such a dramatic 6 deterioration in functioning between August 2, 2016, the date of 7 the ALJ’s decision, and October 31, when Dr. Chow filled in the 8 RFC questionnaire. 9 (AR 71.) Nothing indicates that Plaintiff suffered any As Plaintiff’s longstanding treating physician and a 10 specialist in orthopedics, Dr. Chow and his opinions should 11 presumptively have been afforded great weight. 12 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) 13 (“a treating physician’s opinion is generally afforded the 14 greatest weight in disability cases”); §§ 404.1527(c)(2)(i), 15 416.927(c)(2)(i) (“[T]he longer a treating source has treated you 16 and the more times you have been seen by a treating source, the 17 more weight we will give to the source’s medical opinion.”); 18 §§ 404.1527(c)(5), 416.927(c)(5) (“We generally give more weight 19 to the medical opinion of a specialist about medical issues 20 related to his or her area of specialty.”). 21 the record indicates that something besides Plaintiff’s 22 progressively deteriorating hip condition was responsible for his 23 alleged inability to stand for more than two hours by October 24 2016. 25 2016 treatment records, he might have determined Plaintiff’s RFC 26 — and thus his disability status, at least for some later portion 27 of the relevant period — differently to account for the See Batson v. Moreover, nothing in Had the ALJ considered the RFC questionnaire and October 28 17 1 progressive nature of his condition.15 2 reasonable possibility that Dr. Chow’s later opinions would have 3 changed the outcome of the ALJ’s decision. 4 453 at 462; Sheri R. v. Comm’r of Soc. Sec., No. 2:18-CV-00136- 5 MKD, 2019 WL 1586757, at *4 (E.D. Wash. Apr. 12, 2019) (finding 6 reasonable possibility that treating physician’s new opinions of 7 plaintiff’s longstanding injuries would change outcome of ALJ’s 8 decision when, if credited, those opinions conflicted with the 9 assessed RFC). 10 Accordingly, there is a See Mayes, 276 F.3d For these reasons, the Commissioner failed to properly 11 consider the medical evidence in determining Plaintiff’s RFC. 12 Because the ALJ assessed Plaintiff’s credibility in part based on 13 his evaluation of the “objective medical evidence” (see AR 28), 14 any reevaluation of the latter will necessarily require a 15 reassessment of Plaintiff’s subjective symptom testimony. 16 the Court need not reach the issue of Plaintiff’s credibility. 17 See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) 18 (“Because we remand the case to the ALJ for the reasons stated, 19 we decline to reach [plaintiff’s] alternative ground for 20 remand.”). Thus, 21 22 23 24 25 26 27 28 15 Defendant argues that Dr. Chow’s more recent medical records do not “invalidate the evidence” the ALJ cited to support his decision. (J. Stip. at 20.) This argument misses the mark, as Plaintiff does not contend that the objective medical evidence cited by the ALJ was “invalid.” Rather, he contends (and the Court agrees) that because his condition was progressive, the new evidence gives a more complete picture of it as of the date of the ALJ’s decision. (See, e.g., id. at 4.) 18 1 2 D. Remand for further proceedings is appropriate When an ALJ errs, as here, the Court “ordinarily must remand 3 for further proceedings.” 4 1044-45 (9th Cir. 2017) (as amended Jan. 25, 2018); see also 5 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) (as 6 amended); Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003). 7 The Court has discretion to do so or to directly award benefits 8 under the “credit-as-true” rule. 9 direct award of benefits was intended as a rare and prophylactic Leon v. Berryhill, 880 F.3d 1041, Leon, 880 F.3d at 1045. “[A] 10 exception to the ordinary remand rule[.]” 11 whether to remand for further proceedings turns upon the likely 12 utility of such proceedings,” Harman, 211 F.3d at 1179, and when 13 an “ALJ makes a legal error, but the record is uncertain and 14 ambiguous, the proper approach is to remand the case to the 15 agency,” Leon, 880 F.3d at 1045 (citing Treichler v. Comm’r of 16 Soc. Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014)). 17 Id. The “decision of Here, further administrative proceedings would serve the 18 useful purpose of allowing the ALJ to give proper consideration 19 to Dr. Chow’s medical opinions. 20 5524-E, 2015 WL 12661949, at *5 (C.D. Cal. Mar. 24, 2015) (remand 21 appropriate when parties disputed extent and implications of 22 plaintiff’s degenerative disc condition and “it [wa]s not clear 23 that the ALJ would be required to find Plaintiff disabled” for 24 entire claimed period “if the rejected medical opinions were 25 fully credited”). 26 progressive nature of Plaintiff’s condition. 27 for further proceedings is appropriate. 28 at 1020 & n.26. See Pino v. Colvin, No. CV 14- In doing so, the ALJ should address the 19 Therefore, remand See Garrison, 759 F.3d 1 2 VI. CONCLUSION Consistent with the foregoing and under sentence four of 42 3 U.S.C. § 405(g),16 IT IS ORDERED that judgment be entered 4 REVERSING the Commissioner’s decision, GRANTING Plaintiff’s 5 request for remand, and REMANDING this action for further 6 proceedings consistent with this memorandum decision. 7 8 DATED: May 7, 2019 JEAN ROSENBLUTH U.S. Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 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.” 20
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