Greg Allen Williams v. Nancy A. Berryhill, No. 5:2018cv02011 - Document 20 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION and Order of Remand by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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Greg Allen Williams v. Nancy A. Berryhill Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 Gregory A. W., ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, DEPUTY ) COMMISSIONER FOR OPERATIONS, ) SOCIAL SECURITY, ) ) Defendant. ) ____________________________________) NO. ED CV 18-2011-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 20 judgment are denied, and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on September 20, 2018, seeking review 26 of the Commissioner’s denial of benefits. The parties consented to 27 proceed before a United States Magistrate Judge on October 18, 2018. 28 Plaintiff filed a motion for summary judgment on February 1, 2019. Dockets.Justia.com 1 Defendant filed a motion for summary judgment on March 4, 2019.1 2 Court has taken the motions under submission without oral argument. 3 See L.R. 7-15; “Order,” filed September 25, 2018. The 4 BACKGROUND 5 6 7 Plaintiff, a former United States Navy Hospital Corpsman, asserts 8 disability since December 18, 2014, based on, inter alia, major 9 depressive disorder, anxiety, post traumatic stress disorder and 10 degenerative joint disease (Administrative Record (“A.R.”) 77-78, 84- 11 86, 260). 12 heard testimony from Plaintiff and a vocational expert (A.R. 10-23, 13 61-130). 14 disabling severity (A.R. 83-104).2 15 “severe” status post right tibial osteotomy, osteoarthritis of the 16 right knee, major depressive disorder (recurrent), bipolar disorder 17 and post traumatic stress disorder (A.R. 13). An Administrative Law Judge (“ALJ”) reviewed the record and Plaintiff testified to pain and limitations of allegedly The ALJ found that Plaintiff has 18 1 19 20 Both motions for summary judgment exceed the ten-page limit imposed by the Court in the “Order,” filed September 25, 2018. Both counsel shall heed the Court’s orders in the future. 2 21 22 23 24 25 26 27 28 Plaintiff testified that he could not work because he has physical limitations in lifting, bending, kneeling, and sitting, claiming that he has a hard time just getting ready in the morning and requires his wife’s help with showering (A.R. 83). Plaintiff said he has been unable to stand for more than a few minutes without extreme pain ever since a September, 2015 high tibial osteotomy surgery (A.R. 92-93, 96). Plaintiff said his most comfortable position is sitting with his right leg extended at waist level for up to 80 percent of the time he is seated, which he has done for pain since the September, 2015 surgery (A.R. 93-94). The vocational expert testified that if someone were required to elevate the right leg to waist level while seated, the requirement would eliminate all work (A.R. 12829). 2 1 The ALJ also found, however, that Plaintiff retains a residual 2 functional capacity for light work, limited to: (1) standing and 3 walking for two hours out of an eight-hour workday; (2) occasional 4 climbing of ramps and stairs, balancing and stooping; (3) no climbing 5 of ladders, ropes or scaffolds, and no kneeling, crouching or 6 crawling; (4) no concentrated exposure to hazards, such as moving 7 machinery or unprotected heights; and (5) simple, routine repetitive 8 tasks. 9 found by non-examining state agency physicians at A.R. 131-65, except 10 for (i) limits in pushing and pulling with the right lower extremity, 11 (ii) extreme temperature limits, and (iii) limits in interacting with 12 others; and (b) none to “mild” limitations found by the psychological 13 consultative examiner, but not the greater limitations the examiner 14 found). 15 Cashier II, Small Products Assembler II, and bench assembler and, on 16 that basis, denied disability benefits (A.R. 22-23 (adopting 17 vocational expert testimony at A.R. 110-14)). See A.R. 16-21 (adopting limitations similar to: (a) those The ALJ deemed Plaintiff capable of performing work as a 18 19 The Appeals Council denied review (A.R. 1-5). 20 21 STANDARD OF REVIEW 22 23 Under 42 U.S.C. section 405(g), this Court reviews the 24 Administration’s decision to determine if: (1) the Administration’s 25 findings are supported by substantial evidence; and (2) the 26 Administration used correct legal standards. 27 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 28 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 3 See Carmickle v. 1 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such 2 relevant evidence as a reasonable mind might accept as adequate to 3 support a conclusion.” 4 (1971) (citation and quotations omitted); see also Widmark v. 5 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Richardson v. Perales, 402 U.S. 389, 401 6 7 If the evidence can support either outcome, the court may 8 not substitute its judgment for that of the ALJ. 9 Commissioner’s decision cannot be affirmed simply by 10 isolating a specific quantum of supporting evidence. 11 Rather, a court must consider the record as a whole, 12 weighing both evidence that supports and evidence that 13 detracts from the [administrative] conclusion. But the 14 15 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 16 quotations omitted). 17 DISCUSSION 18 19 After consideration of the record as a whole, the Court reverses 20 21 the Administration’s decision in part and remands the matter for 22 further administrative proceedings. 23 Administration materially erred in evaluating the evidence of record. 24 /// 25 /// 26 /// 27 /// 28 /// 4 As discussed below, the 1 I. Summary of the Relevant Medical Record3 2 3 Plaintiff was discharged from the Navy on December 18, 2014, 4 reportedly after being charged with driving under the influence of 5 alcohol in August of 2013 (A.R. 81, 252-53, 563). 6 disability starting the next day (A.R. 77-78). 7 Veterans Affairs (“VA”) issued a letter certifying that Plaintiff was 8 receiving 100 percent service-connected disability payments of a 9 certain sum as of December 1, 2017 (A.R. 317). Plaintiff asserts The Department of The letter does not 10 indicate how Plaintiff’s disability was determined, or if December 1, 11 2017 was the first date the VA deemed Plaintiff disabled (A.R. 317). 12 The earliest VA medical record referencing Plaintiff’s 100 percent 13 disability rating is dated March 3, 2015, and lists the following 14 rated disabilities: 15 musculospiral nerve (30%), sinusitis (maxillary, chronic) (30%), 16 limited extension of knee (30%), migraine headaches (30%), stricture 17 of the urethra (20%), superficial scars (20%), lumbosacral or cervical 18 strain (10%), tinnitis (10%), knee condition (10%), superficial scars 19 (10%) and limited flexion of the knee (10%) (A.R. 971-72). 20 record, though lengthy, does not contain the VA ratings decision 21 itself or the report(s) on which the decision may have been based. major depressive disorder (50%), paralysis of The 22 23 24 The record does contain a later medical opinion from Dr. Candice Barnett who reviewed Plaintiff’s VA medical records, examined 25 26 3 27 28 Because Plaintiff’s challenges to the ALJ’s decision focus on the ALJ’s consideration of Plaintiff’s alleged physical limitations, the Court has not summarized the record regarding Plaintiff’s mental health treatment. 5 1 Plaintiff and completed VA Disability Benefits Questionnaires dated 2 April 15, 2015 (A.R. 997-1024). 3 an ankle condition; (2) evidence that Plaintiff was treated for a back 4 condition consistent with lumbar strain during his service; (3) a 5 diagnosis of eczema from 2009 with no current lesions observed; and 6 (4) a diagnosis of urinary retention in October of 2013, which causes 7 urinary frequency every one to two hours in the daytime (A.R. 999- 8 1000, 1014, 1016-17, 1018-19). 9 Plaintiff reportedly had normal range of motion, no evidence of pain Dr. Barnett found: (1) no evidence of On examination of Plaintiff’s back, 10 on weight bearing, mild to moderate tenderness in the lumbar 11 paraspinal muscles, muscle spasm, local tenderness and guarding not 12 resulting in an abnormal gait or abnormal spinal contour, normal 13 strength in hip flexion, knee extension, ankle plantar flexion, ankle 14 dorsiflexion and great toe extension, no muscle atrophy, normal reflex 15 and sensory examination, negative straight leg raising testing, no 16 signs or symptoms of radiculopathy, no ankylosis and no neurological 17 abnormalities (A.R. 1001-04). 18 he reportedly had normal range of motion, no evidence of pain with 19 weight bearing, tenderness, or crepitus, normal muscle strength and no 20 atrophy or ankylosis (A.R. 1008-11). 21 significant findings, and Plaintiff reportedly had no use of assistive 22 devices “as a normal mode of locomotion” On examination of Plaintiff’s ankles, Imaging showed no arthritis or (A.R. 1004-05, 1011-12). 23 24 Dr. Barnett opined Plaintiff’s back condition and ankles would 25 have no functional impact on his ability to perform any occupational 26 tasks (standing, walking, lifting, sitting, etc.) (A.R. 1006, 1012). 27 Dr. Barnett recommended that Plaintiff file a claim for his “bilateral 28 feet condition” (unspecified) (A.R. 1012). 6 Dr. Barnett opined that 1 Plaintiff’s eczema would impact his ability to work, stating, 2 “Currently in school for nurse anesthetist. 3 ¶ He states sometimes its [sic] been hard to sit in car seat/truck 4 seat to go to school. 5 opined that Plaintiff’s bladder condition would impact his ability to 6 work in that he would have to get up every one to two hours to urinate 7 (A.R. 1021). Plan on graduating 2020. Itching rate 5/10.” (A.R. 1017). Dr. Barrett 8 9 In late April of 2015, Plaintiff was referred to an orthopedic 10 surgeon for a right knee meniscal tear, status post knee arthroscopy 11 in 2004, 2005, 2007 and 2011 (A.R. 967). 12 knee was locking and giving out (A.R. 967). 13 tried four steroid injections in the past two years, which had 14 provided approximately six weeks of relief (A.R. 967). 15 reportedly had undergone six months of physical therapy with minimal 16 benefit (A.R. 967). 17 to his next appointment and was offered another steroid injection, 18 which Plaintiff refused (A.R. 968). Plaintiff reported that his He also reportedly had Plaintiff Plaintiff was asked to bring his surgical records 19 20 On May 28, 2015, Plaintiff reported to his providers that 21 morphine was “working perfect” for his pain (A.R. 1533). On June 2, 22 2015, Plaintiff was diagnosed with right knee arthritis and was fitted 23 for a knee brace (A.R. 961). 24 the emergency room because of a fall (A.R. 1524). 25 Plaintiff reportedly had no deficits in his functional status (i.e., 26 he was ambulating independently, with a steady gait and no 27 observed/reported muscle weakness or decreased range of motion) (A.R. 28 1517). On June 13, 2015, Plaintiff presented to 7 On July 2, 2015, 1 On July 6, 2015, Plaintiff had surgery for his right knee (i.e., 2 diagnostic arthroscopy with medial meniscectomy and chondroplasty), 3 which showed grade 4 chondromalacia of the medial tibia and femur 4 (A.R. 1117-19, 1407). 5 as tolerated (A.R. 1118). Plaintiff was ordered to begin weight-bearing 6 7 On July 27, 2015, Physician Assistant (“PA”) Renee Wilterding 8 reviewed the record and completed a Disability Benefits Questionnaire 9 for Plaintiff’s “knee and lower leg conditions” following his surgery 10 (A.R. 1464-82). Reportedly, Plaintiff was still healing from his 11 surgery and using a brace (A.R. 1470-71). 12 Plaintiff would be limited to “sedentary employment” while recovering 13 from knee surgery, and should avoid prolonged kneeling, squatting and 14 climbing (A.R. 1472). The PA opined that 15 16 On September 30, 2015, Plaintiff had another right knee surgery 17 (i.e., high tibial osteotomy with placement of titanium spacer and 18 allograft bone graft (A.R. 855-58, 918-21, 926-32, 996-97, 1113-17). 19 Plaintiff was ordered to remain non-weight-bearing on the right lower 20 extremity for six weeks, with the use of a knee immobilizer (A.R. 21 1116; see also A.R. 1295 (October, 2015 treatment note re wheelchair 22 use post-surgery)).4 23 October 7, 2015, when he reportedly was able to walk with a “walking Plaintiff was discharged from the hospital on 24 4 25 26 27 28 An October, 2016 CT scan of Plaintiff’s right lower extremity showed the hardware from the osteotomy in place, progressive but incomplete bone fusion at the osteotomy tract, progressive resorption of bone cement and bone chips at the osteotomy tract, and osteopenia (chronic grade 3-4 chondromalacia medical compartment as known, with small joint effusion) (A.R. 1121-22). 8 1 aid” (crutches) (A.R. 1300, 1302, 1308). At an October 19, 2015 2 follow-up appointment, Plaintiff was instructed to remain non-weight- 3 bearing for three more weeks (A.R. 1297). 4 On October 29, 2015, Plaintiff was admitted to the hospital and 5 6 treated for an infection to the surgical incision, and it was noted he 7 was still non-weight-bearing on the right lower extremity (A.R. 1270- 8 72, 1291, 1600-02; but see A.R. 1293 (noting no deficit in “functional 9 status,” i.e., ambulating independently, steady gait, no 10 observed/reported muscle weakness or decreased range of motion and 11 self care)). 12 axillary crutches to a single forearm crutch (A.R. 585). In November of 2015, Plaintiff transitioned from 13 On December 15, 2015, Plaintiff started physical therapy 14 15 following his tibial osteotomy (A.R. 335-39). Plaintiff reportedly 16 had been wearing a brace and using crutches until approximately two 17 weeks before the appointment, and reportedly was returning to work the 18 following Monday at Lowes (A.R. 335).5 19 gait reportedly was antalgic, he had decreased lumbar and cervical 20 lordosis, he had deep pitting edema, his right knee muscle strength 21 was 3/5, and right ankle strength was 4/5 (A.R. 335-36). 22 was advised to do physical therapy three times a week for four weeks 23 for his right knee pain, ankle pain and edema (A.R. 336-37). 24 was discharged from physical therapy in June of 2016 (A.R. 413-23). 25 /// On examination, Plaintiff’s Plaintiff Plantiff 26 27 28 5 at Lowes. A.R. 248. It is unclear when, if ever, Plaintiff may have worked There is no record of any FICA earnings in 2015. See 9 1 A treatment note from December 28, 2015, states that Plaintiff 2 reported right ankle pain not correlated with clinical and MRI 3 findings, which should have healed or improved with immobilization 4 post knee surgery (A.R. 552-54). 5 reportedly was ambulating with one forearm crutch, with 4/5 motor 6 strength in the right lower extremity (A.R. 537). 7 mild pitting edema and bluish discoloration (A.R. 537). 8 appointment that same month, Plaintiff reportedly was ambulating with 9 a limp favoring the right lower extremity, had 3/5 motor strength in In January of 2016, Plaintiff His right foot had At another 10 the right lower extremity but also had an “independent” gait without a 11 device (A.R. 543). 12 13 In a veteran caregiver assessment form dated April 6, 2016, it 14 was reported that Plaintiff needed assistance with ambulation and 15 transfers, bathing, and dressing, and was using a forearm crutch, knee 16 brace and a wheelchair for long distances (A.R. 470-71). 17 Plaintiff was not yet able to bear full weight on his right leg, and 18 his gait was unsteady (A.R. 471). 19 six knee surgeries, and his surgeon was trying to prevent Plaintiff 20 from requiring a knee replacement (A.R. 477). Reportedly, Plaintiff reportedly had undergone 21 22 Plaintiff reportedly was ambulating with a cane later in April of 23 2016, when he presented for group psychology classes and examinations 24 (A.R. 459-60, 463, 468). 25 impairments in his lumbar spine, as well as in his lower extremity 26 range of motion, strength and endurance (A.R. 464). 27 at high risk for falls (A.R. 464). 28 and home alpha stimulator unit (A.R. 469). Plaintiff reportedly had functional He reportedly was Plaintiff was given a TENS unit 10 On June 2, 2016, Plaintiff reportedly had an antalgic gait 1 2 “without device,” was ambulating with a cane (A.R. 417-18, 422). 3 Plaintiff reportedly had 4/5 right lower extremity strength with pain 4 (A.R. 418). 5 exercises for six weeks (A.R. 420). 6 oxycodone, and mobic daily in addition to clonazepam, which his 7 doctors wanted to wean to safer dosages (A.R. 421-22, 434-35, 480). Plaintiff’s doctor requested aquatic physical therapy Plaintiff was taking morphine, 8 Meanwhile, Plaintiff began complaining of a history of right 9 10 ankle pain in April and May of 2016 (A.R. 430, 445-46, 457-58, 461- 11 62). 12 (A.R. 331-33, 341-42). Plaintiff was treated with acupuncture in April and May of 2016 13 14 On June 9, 2016, Plaintiff was seen at Cactus Foot and Ankle for 15 possible surgery for pain in his right ankle, which Plaintiff claimed 16 had been present for more than one year (A.R. 326). 17 Plaintiff reportedly had muscle strength of 5/5 in all ranges of 18 motion, pain on palpation to the medial right ankle, pain in the 19 flexor tendons of the medial ankle with significant crepitation, 20 visible discoloration from the “chronic” injury, and pain on palpation 21 to the tarsal tunnel region of the medial right foot and ankle (A.R. 22 326). 23 tendons of the right medial ankle consistent with synovitis and 24 chronic tendon pathology (A.R. 326-27). 25 right ankle tendonitis, synovitis, limb pain, difficulty walking and 26 tarsal tunnel syndrome, and surgical options were discussed (A.R. 327; 27 see also A.R. 369-72, 376, 380 (December, 2015 right foot x-ray and 28 May, 2016 right lower extremity MRI studies and x-ray)). On examination, An ultrasound reportedly showed hypoechoic signal to the flexor 11 Plaintiff was diagnosed with Plaintiff 1 then was weaning off opioid medications and clonazepam at that time 2 (A.R. 400-03, 410-13). 3 4 On June 15, 2016, Plaintiff reportedly could walk over two blocks 5 (A.R. 408). On June 30, 2016, Plaintiff notedly was ambulating with a 6 single point cane and had an antalgic gait (A.R. 401). 7 8 9 Plaintiff underwent right ankle tendon and tarsal tunnel surgery on July 8, 2016 (A.R. 352-57). Plaintiff was fitted with crutches and 10 given gait training in July of 2016 following his surgery (A.R. 398). 11 On July 11, 2016, Plaintiff reported great improvement compared to his 12 preoperative pain (A.R. 349). 13 14 On August 20, 2016, Plaintiff went to the emergency room for a 15 wound to his ankle that was not healing after his ankle surgery, at 16 which time he “ambulate[d] without difficulty” (A.R. 881-83, 1108, 17 1215). 18 wound cleaning, and his gait reportedly was unassisted and steady 19 (A.R. 1030-32). Plaintiff followed up in September and October for additional 20 21 On September 15, 2016, Plaintiff apparently was ambulatory with 22 5/5 muscle strength (A.R. 1054). However, Plaintiff reported that his 23 right knee was worse than it had been before the high tibial osteotomy 24 surgery (A.R. 1055). 25 from the right tibia with diagnostic arthroscopy (A.R. 1055). Plaintiff’s doctor recommended hardware removal 26 27 28 On November 28, 2016, Plaintiff apparently was ambulatory without assistance (A.R. 2105). On December 22, 2016, Plaintiff reportedly 12 1 was able to walk 30 minutes a day, five days a week (A.R. 2084). 2 3 On January 12, 2017, Plaintiff presented for treatment for leg 4 and back pain, stating that he had tried bowling and had been having 5 severe right knee pain for the past eight days (A.R. 1621). 6 examination, he had mild swelling and reduced range of motion in full 7 flexion of the right knee (A.R. 1623). 8 osteoarthritis of the right knee and low back pain (A.R. 1623). 9 January 19, 2017, Plaintiff was given lumbar facet injections for back 10 On He was diagnosed with On pain (A.R. 1873-74). 11 12 On January 26, 2017, Plaintiff reportedly had a normal gait, 13 normal muscle strength, and no edema or tenderness (A.R. 1643). On 14 February 6, 2017, Plaintiff reportedly had normal range of motion in 15 his right knee with no swelling, some tenderness and a normal gait 16 (A.R. 1682). 17 options with his provider and expressed interest in a knee replacement 18 (A.R. 1696). 19 could ambulate a few blocks with a cane (A.R. 1693). On February 9, 2017, Plaintiff discussed his treatment Plaintiff said he had pain associated with walking, but 20 21 On March 1, 2017, Plaintiff complained of right ankle pain and 22 was diagnosed with right tarsal tunnel syndrome (A.R. 1707-09).6 23 March 23, 2017 physical therapy treatment note reflected a goal of 24 walking 15 minutes and doing more activities of daily living (A.R. 25 1741). 26 outside (A.R. 1745). The therapist recommended a “kneeling walker” for walking 27 6 28 A March, 2017 right ankle x-ray assertedly showed right-sided plantar calcaneal spurring (A.R. 1711). 13 A 1 On March 28, 2017, Plaintiff presented for follow up and 2 indicated that he was going to have his hardware from the osteotomy 3 taken out in June (A.R. 1751). 4 six oxycodone a day for his pain (A.R. 1751). 5 Plaintiff had an antalgic gait with a cane (A.R. 1754, 1860). 6 Plaintiff reportedly lived with his wife and children and had been 7 “disabled since 2014 due to back pain symptoms” (A.R. 1751). Apparently, Plaintiff then was taking On examination, 8 9 On April 4, 2017, Plaintiff reportedly had 5/5 muscle strength in 10 his lower extremities and a normal gait (A.R. 1767). On April 6, 11 2017, Plaintiff’s doctor recommended giving Plaintiff stem cell 12 injections in his right knee (A.R. 1902-03). 13 Plaintiff reportedly was independent with ambulation and activities of 14 daily living, with a normal gait and 5/5 muscle strength (A.R. 3025). On April 24, 2017, 15 16 Consultative examiner Dr. Rashin D’Angelo interviewed Plaintiff 17 and prepared a “Mental Evaluation by Psychologist” dated April 18, 18 2017 (A.R. 1896-1900). 19 unsteady gait with a cane (A.R. 1896). 20 traumatic stress disorder (chronic) and bipolar disorder, and opined 21 that Plaintiff would have no limitations performing simple and 22 repetitive tasks, mild limitations in performing work on a consistent 23 basis without special or additional supervision, mild limitations in 24 accepting instructions from supervisors and interacting with coworkers 25 and the public, moderate limitations in completing a normal workday or 26 workweek due to his mental condition, and moderate limitations in 27 handling the usual stresses, changes, and demands of work (A.R. 1899- 28 1900). Plaintiff was observed to walk with an Dr. D’Angelo diagnosed post Dr. D’Angelo indicated that Plaintiff was adhering and 14 1 responding well to treatment, and predicted that Plaintiff’ condition 2 would significantly improve with treatment (A.R. 1900). 3 On May 17, 2017, Plaintiff underwent a diagnostic athroscopy and 4 5 removal of the hardware in his right knee (A.R. 1845, 2018-21, 3506- 6 12). 7 functional status (i.e., he was ambulating independently, with a 8 steady gait and no observed/reported muscle weakness or decreased 9 range of motion) (A.R. 1832; compare A.R. 1848-49 (caregiver Prior to surgery, Plaintiff reportedly had no deficits in his 10 assessment dated May 5, 2017, where Plaintiff stated that he could 11 “barely move” on his own due to right knee and right ankle pain, and 12 that he needed assistance standing up and pivoting and with activities 13 of daily living)). 14 on the right lower extremity after surgery (A.R. 3509). Plaintiff was ordered to bear weight as tolerated 15 16 On June 19, 2017, Plaintiff reportedly had a normal gait and 17 normal range of motion to the right knee and no swelling, but some 18 tenderness (A.R. 1776). 19 he was completely off of all narcotic pain medications, he had pain 20 with climbing stairs and his condition was worsening (A.R. 2203).7 On August 29, 2017, Plaintiff indicated that 21 22 23 On January 31, 2018, Plaintiff underwent a right knee open osteochondral allograft, tibial plateau with allograft, and high 24 25 26 27 28 7 A December, 2017 CT scan of Plaintiff’s right lower extremity showed mild-to-moderate degenerative joint disease with joint space narrowing involving the medial compartment of the tibiofemoral joint and patellofemoral joint, mild lateral displacement of the patella, and a small amount of effusion (A.R. 2176-77). 15 1 tibial osteotomy revision (A.R. 3491-3506). Plaintiff was ordered to 2 remain non-weight-bearing with no range of motion for the first week 3 after surgery, and he could start 20 percent weight-bearing in 4 extension at four weeks after surgery if x-rays showed stability (A.R. 5 3494). 6 eight weeks post-surgery, if x-rays showed stability and appropriate 7 healing (A.R. 3495). Plaintiff could start full weight-bearing as tolerated at 8 9 State agency physicians reviewed the record in December of 2016 10 and May and August of 2017 and found, inter alia, that Plaintiff did 11 not meet Listing 1.03 (A.R. 131-65). 12 Plaintiff's most restrictive residual functional capacity was for 13 light work with standing and walking limited to two hours in an eight 14 hour day, limited pushing and pulling in the lower extremities due to 15 “OA” (osteoarthritis) in the right knee, with occasional postural 16 limitations except no climbing of ladders, ropes or scaffolds due to 17 right knee problems post surgery, some environmental limitations, and 18 some “moderate” mental limitations (A.R. 131-65 (describing these 19 limitations as “sedentary”)). These physicians opined that 20 The record does not contain any opinion from a consultative 21 22 examiner regarding Plaintiff’s physical condition. At the 23 administrative hearing, Plaintiff’s counsel requested that a medical 24 expert render an opinion regarding Plaintiff’s knee impairment (A.R. 25 73-74, 127-28). 26 /// 27 /// 28 /// The ALJ denied the request (A.R. 11). 16 1 2 II. Substantial Evidence Does Not Support the ALJ’s Residual Functional Capacity Assessment. 3 4 On the present record, the ALJ’s assessment of Plaintiff’s 5 residual functional capacity is not supported by substantial evidence. 6 No medical opinion concurs with the ALJ’s assessment. 7 above, the state agency physicians found greater limitations that the 8 ALJ found to exist, the only consultative examiner evaluated 9 Plaintiff’s mental condition and found greater limitations than the As summarized 10 ALJ found to exist, and the VA concluded that Plaintiff was 100 11 percent disabled. 12 weight” to the opinions of the state agency physicians and the 13 psychological consultative examiner, and no weight to the VA 14 disability determination) with A.R. 140-45, 157-62 (state agency 15 physicians’ opinions) and A.R. 1899-1900 (consultative examiner’s 16 opinion). 17 ALJ appears to have relied heavily on his own lay opinion to define 18 Plaintiff’s functional capacity. Compare A.R. 16, 20-21 (ALJ only giving “partial In so far deviating from the medical opinion of record, the 19 20 An ALJ cannot properly rely on the ALJ’s own lay knowledge to 21 make medical interpretations of examination results or to determine 22 the severity of medically determinable impairments. 23 Apfel, 180 F.3d 1094, 1102-03 (9th Cir. 1999); Balsamo v. Chater, 142 24 F.3d 75, 81 (2d Cir. 1998); Rohan v. Chater, 98 F.3d 966, 970 (7th 25 Cir. 1996); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). 26 Absent expert medical assistance, the ALJ could not competently 27 translate the medical evidence in this case into a residual functional 28 capacity assessment. See Tackett v. See Tackett v. Apfel, 180 F.3d at 1102-03 (ALJ’s 17 1 residual functional capacity assessment cannot stand in the absence of 2 evidentiary support); Rohan v. Chater, 98 F.3d at 970 (“ALJs must not 3 succumb to the temptation to play doctor and make their own 4 independent medical findings”); Day v. Weinberger, 522 F.2d at 1156 5 (an ALJ is forbidden from making his or her own medical assessment 6 beyond that demonstrated by the record). 7 8 9 Additionally, even if the ALJ had wished to adopt in whole the opinions of the non-examining state agency physicians regarding 10 Plaintiff’s physical limitations, the ALJ could not properly have done 11 so in the absence of other corroborating medical evidence. 12 Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995) (ALJ may not rely 13 solely on opinions of non-examining physicians); Erickson v. Shalala, 14 9 F.3d 813, 818 n.7 (9th Cir. 1993) (same). See, e.g., 15 16 To aid in assessing Plaintiff’s physical limitations, the ALJ 17 should have ordered an examination and evaluation of Plaintiff by a 18 consultative specialist. 19 also Reed v. Massanari, 270 F.3d 838, 843 (9th Cir. 2001) (where 20 available medical evidence is insufficient to determine the severity 21 of the claimant’s impairment, the ALJ should order a consultative 22 examination by a specialist); accord Kish v. Colvin, 552 Fed. App’x 23 650 (2014); see generally Mayes v. Massanari, 276 F.3d 453, 459-60 24 (9th Cir. 2001) (ALJ’s duty to develop the record further is triggered 25 “when there is ambiguous evidence or when the record is inadequate to 26 allow for the proper evaluation of the evidence”) (citation omitted); 27 Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (“[T]he ALJ has a 28 special duty to fully and fairly develop the record to assure the See Day v. Weinberger, 522 F.2d at 1156; see 18 1 claimant’s interests are considered. 2 claimant is represented by counsel.”). This duty exists even when the 3 4 The ALJ’s failure to develop the record fully and fairly is 5 especially apparent here, where the VA found Plaintiff 100 percent 6 disabled but the record does not contain the VA’s underlying analysis. 7 An ALJ must always consider a VA rating of disability and must 8 ordinarily accord “great weight” to such a rating. 9 Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). McCartey v. An ALJ may accord 10 “less weight” to a VA rating of disability only if the ALJ “gives 11 persuasive, specific, valid reasons for doing so that are supported by 12 the record.” 13 694–95 (9th Cir. 2009) (quoting McCartey v. Massanari, 298 F.3d at 14 1076) (internal quotation marks omitted). Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 15 16 Here, the ALJ acknowledged that Plaintiff was receiving service- 17 connected disability compensation as of December 1, 2017, based on a 18 100 percent disability rating (A.R. 20 (citing A.R. 317)). 19 the ALJ discounted the rating, stating only that “the VA uses 20 different regulations and standards in analyzing disability that are 21 not entirely consistent with the evaluation of disability under Social 22 Security Administration regulations” (A.R. 20-21). 23 statement does not constitute the required “persuasive, specific, 24 valid reason” for discounting a VA rating of disability. 25 Astrue, 622 F.3d 1228, 1236 (9th Cir. 2010) (fact that rules governing 26 Social Security Administration and VA differ “is not a persuasive, 27 specific, valid reason for discounting the VA determination”) 28 (brackets, internal quotation marks and citation omitted). 19 However, The ALJ’s See Berry v. There is 1 no indication the ALJ attempted to obtain the actual ratings 2 decision(s) the VA may have issued in finding Plaintiff disabled. 3 There is no indication the ALJ sought clarification from Plaintiff’s 4 VA treatment providers regarding the bases for the VA decision. 5 the ALJ failed to discharge his duty to develop the record with 6 respect to the VA disability rating. 7 728 Fed. App’x 775, 776 (9th Cir. 2018) (administrative decision 8 reversed where ALJ failed to develop the record by attempting to 9 obtain the report on which a VA ratings decision was based); Goodman Thus, See, e.g., Fino v. Berryhill, 10 v. Berryhill, 2017 WL 2610043, at *3 (W.D. Wash. June 16, 2017) 11 (faulting the ALJ for failing to develop the record by attempting to 12 obtain the VA “Rating Decision” itself). 13 14 15 III. The Court is Unable to Deem the ALJ’s Errors Harmless; Remand for Further Administrative Proceedings is Appropriate. 16 17 The Court is unable to conclude that the ALJ’s errors were 18 harmless. See Treichler v. Commissioner, 775 F.3d 1090, 1105 (9th 19 Cir. 2014) (“Where, as in this case, an ALJ makes a legal error, but 20 the record is uncertain and ambiguous, the proper approach is to 21 remand the case to the agency”); see also Molina v. Astrue, 674 F.3d 22 1104, 1115 (9th Cir. 2012) (an error “is harmless where it is 23 inconsequential to the ultimate non-disability determination”) 24 (citations and quotations omitted); McLeod v. Astrue, 640 F.3d 881, 25 887 (9th Cir. 2011) (error not harmless where “the reviewing court can 26 determine from the ‘circumstances of the case’ that further 27 administrative review is needed to determine whether there was 28 prejudice from the error”). 20 Remand is appropriate because the circumstances of this case 1 2 suggest that further development of the record and further 3 administrative review could remedy the ALJ’s errors. 4 Astrue, 640 F.3d at 888; see also INS v. Ventura, 537 U.S. 12, 16 5 (2002) (upon reversal of an administrative determination, the proper 6 course is remand for additional agency investigation or explanation, 7 except in rare circumstances); Leon v. Berryhill, 880 F.3d 1041, 1044 8 (9th Cir. 2017) (reversal with a directive for the immediate 9 calculation of benefits is a “rare and prophylactic exception to the See McLeod v. 10 well-established ordinary remand rule”); Dominguez v. Colvin, 808 F.3d 11 403, 407 (9th Cir. 2015) (“Unless the district court concludes that 12 further administrative proceedings would serve no useful purpose, it 13 may not remand with a direction to provide benefits”); Treichler v. 14 Commissioner, 775 F.3d at 1101 n.5 (remand for further administrative 15 proceedings is the proper remedy “in all but the rarest cases”); 16 Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir.), cert. denied, 531 17 U.S. 1038 (2000) (remand for further proceedings rather than for the 18 immediate payment of benefits is appropriate where there are 19 “sufficient unanswered questions in the record”). 20 significant unanswered questions in the present record. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 21 There remain CONCLUSION 1 2 3 For all of the foregoing reasons,8 Plaintiff’s and Defendant’s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 DATED: May 1, 2019. 9 10 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 8 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 22
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