Christopher John Asta v. Andrew Saul, No. 5:2020cv00804 - Document 23 (C.D. Cal. 2021)
Court Description: OPINION AND ORDER by Magistrate Judge Shashi H. Kewalramani. IT IS HEREBY ORDERED that the Commissioner's decision is REVERSED and this case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 405(g). (see document for further details) (hr)
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Christopher John Asta v. Andrew Saul Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 C.J.A., Case No. 5:20-cv-00804-SHK 12 Plaintiff, v. 13 OPINION AND ORDER ANDREW SAUL, Commissioner of Social Security, 14 15 Defendant. 16 17 Plaintiff C.J.A. 1 (“Plaintiff”) seeks judicial review of the final decision of 18 19 the Commissioner of the Social Security Administration (“Commissioner,” 20 “Agency,” or “Defendant”) denying his application for disability insurance 21 benefits (“DIB”), under Title II of the Social Security Act (the “Act”). This Court 22 has jurisdiction under 42 U.S.C. § 405(g), and, pursuant to 28 U.S.C. § 636(c), the 23 parties have consented to the jurisdiction of the undersigned United States 24 Magistrate Judge. For the reasons stated below, the Commissioner’s decision is 25 REVERSED and this action is REMANDED for further proceedings consistent 26 with this Order. 27 28 1 The Court substitutes Plaintiff’s initials for Plaintiff’s name to protect Plaintiff’s privacy with respect to Plaintiff’s medical records discussed in this Opinion and Order. Dockets.Justia.com 1 I. 2 BACKGROUND Plaintiff filed an application for DIB on February 9, 2015, alleging disability 3 beginning on December 29, 2013. Transcript (“Tr.”) 180-81.2 Following a denial 4 of benefits, Plaintiff requested a hearing before an administrative law judge 5 (“ALJ”) and, on August 17, 2018, ALJ Robert Lenzini determined that Plaintiff 6 was not disabled. Tr. 21-34. Plaintiff sought review of the ALJ’s decision with 7 the Appeals Council, however, review was denied on July 15, 2019. Tr. 7-12. 8 This appeal followed. 9 II. STANDARD OF REVIEW The reviewing court shall affirm the Commissioner’s decision if the decision 10 11 is based on correct legal standards and the legal findings are supported by 12 substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm’r Soc. 13 Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence is “more 14 than a mere scintilla. It means such relevant evidence as a reasonable mind might 15 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 16 401 (1971) (citation and internal quotation marks omitted). In reviewing the 17 Commissioner’s alleged errors, this Court must weigh “both the evidence that 18 supports and detracts from the [Commissioner’s] conclusions.” Martinez v. 19 Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “‘When evidence reasonably supports either confirming or reversing the 20 21 ALJ’s decision, [the Court] may not substitute [its] judgment for that of the ALJ.’” 22 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Batson, 359 F.3d 23 at 1196); see also Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (“If the 24 ALJ’s credibility finding is supported by substantial evidence in the record, [the 25 Court] may not engage in second-guessing.”) (citation omitted). A reviewing 26 27 28 2 A certified copy of the Administrative Record was filed on November 20, 2020. Electronic Case Filing Number (“ECF No.”) 19. Citations will be made to the Administrative Record or Transcript page number rather than the ECF page number. 2 1 court, however, “cannot affirm the decision of an agency on a ground that the 2 agency did not invoke in making its decision.” Stout v. Comm’r Soc. Sec. Admin., 3 454 F.3d 1050, 1054 (9th Cir. 2006) (citation omitted). Finally, a court may not 4 reverse an ALJ’s decision if the error is harmless. Burch v. Barnhart, 400 F.3d 5 676, 679 (9th Cir. 2005) (citation omitted). “[T]he burden of showing that an error 6 is harmful normally falls upon the party attacking the agency’s determination.” 7 Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 8 III. 9 A. Establishing Disability Under The Act To establish whether a claimant is disabled under the Act, it must be shown 10 11 DISCUSSION that: 12 (a) the claimant suffers from a medically determinable physical or 13 mental impairment that can be expected to result in death or that has 14 lasted or can be expected to last for a continuous period of not less than 15 twelve months; and 16 (b) the impairment renders the claimant incapable of performing the 17 work that the claimant previously performed and incapable of 18 performing any other substantial gainful employment that exists in the 19 national economy. 20 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. 21 § 423(d)(2)(A)). “If a claimant meets both requirements, he or she is ‘disabled.’” 22 Id. 23 The ALJ employs a five-step sequential evaluation process to determine 24 whether a claimant is disabled within the meaning of the Act. Bowen v. Yuckert, 25 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a). Each step is potentially 26 dispositive and “if a claimant is found to be ‘disabled’ or ‘not-disabled’ at any step 27 in the sequence, there is no need to consider subsequent steps.” Tackett, 180 F.3d 28 at 1098; 20 C.F.R. § 404.1520. The claimant carries the burden of proof at steps 3 1 one through four, and the Commissioner carries the burden of proof at step five. 2 Tackett, 180 F.3d at 1098. 3 The five steps are: 4 Step 1. Is the claimant presently working in a substantially 5 gainful activity [(“SGA”)]? If so, then the claimant is “not disabled” 6 within the meaning of the [] Act and is not entitled to [DIB]. If the 7 claimant is not working in a [SGA], then the claimant’s case cannot be 8 resolved at step one and the evaluation proceeds to step two. See 20 9 C.F.R. § 404.1520(b). 10 Step 2. Is the claimant’s impairment severe? If not, then the 11 claimant is “not disabled” and is not entitled to [DIB]. If the claimant’s 12 impairment is severe, then the claimant’s case cannot be resolved at 13 step two and the evaluation proceeds to step three. See 20 C.F.R. 14 § 404.1520(c). 15 Step 3. Does the impairment “meet or equal” one of a list of 16 specific impairments described in the regulations? If so, the claimant 17 is “disabled” and therefore entitled to [DIB]. 18 impairment neither meets nor equals one of the impairments listed in 19 the regulations, then the claimant’s case cannot be resolved at step three 20 and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(d). 21 Step 4. Is the claimant able to do any work that he or she has 22 done in the past? If so, then the claimant is “not disabled” and is not 23 entitled to [DIB]. If the claimant cannot do any work he or she did in 24 the past, then the claimant’s case cannot be resolved at step four and 25 the evaluation proceeds to the fifth and final step. See 20 C.F.R. 26 § 404.1520(e). If the claimant’s 27 Step 5. Is the claimant able to do any other work? If not, then 28 the claimant is “disabled” and therefore entitled to [DIB]. See 20 4 1 C.F.R. § 404.1520(f)(1). If the claimant is able to do other work, then 2 the Commissioner must establish that there are a significant number of 3 jobs in the national economy that claimant can do. There are two ways 4 for the Commissioner to meet the burden of showing that there is other 5 work in “significant numbers” in the national economy that claimant 6 can do: (1) by the testimony of a vocational expert [(“VE”)], or (2) by 7 reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, 8 subpt. P, app. 2. If the Commissioner meets this burden, the claimant 9 is “not disabled” and therefore not entitled to [DIB]. See 20 C.F.R. 10 §§ 404.1520(f), 404.1562. If the Commissioner cannot meet this 11 burden, then the claimant is “disabled” and therefore entitled to [DIB]. 12 See id. 13 Id. at 1098-99. 14 B. 15 The ALJ determined that “[Plaintiff] last met the insured status requirements Summary Of ALJ’s Findings 16 of the . . . Act through December 31, 2015.” Tr. 23. The ALJ then found at step 17 one, that “[Plaintiff] did not engage in [SGA] during the period from his alleged 18 onset date of December 29, 2013 through his date last insured of December 31, 19 2015 (20 CFR 404.1571 et seq.).” Id. At step two, the ALJ found that “through 20 the date last insured, [Plaintiff] had the following severe impairments: 21 fibromyalgia; degenerative disc disease of the lumbar, cervical and thoracic spine; 22 history of carpal tunnel syndrome bilaterally; asthmatic bronchitis; migraines; 23 obesity (20 CFR 404.1520(c)).” Tr. 24. At step three, the ALJ found that 24 “[t]hrough the date last insured, [Plaintiff] did not have an impairment or 25 combination of impairments that met or medically equaled the severity of one of 26 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 27 404.1520(d), 404.1525 and 404.1526).” Tr. 25. 28 5 1 2 In preparation for step four, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) to: 3 perform sedentary work as defined in 20 CFR 404.1567(a). 4 Specifically, [Plaintiff] can lift and carry, push and pull, up to 10 5 pounds occasionally and less than 10 pounds frequently. He can stand 6 and/or walk for up to 2 hours in an 8-hour workday, and sit for up to 6 7 hours in an 8-hour workday. [Plaintiff] can occasionally operate foot 8 controls bilaterally; frequently handle and finger with the bilateral 9 hands; occasionally operate a motor vehicle. He can occasionally climb 10 ramps and stairs, but never ladders, ropes or scaffolds. 11 occasionally balance, stoop, kneel, crouch, and crawl. He must avoid 12 concentrated exposure to dust, fumes, odors and pulmonary irritants. 13 [Plaintiff] must also avoid concentrated exposure to unprotected 14 heights. He can 15 Id. The ALJ then found, at step four, that “[t]hrough the date last insured, 16 [Plaintiff] was capable of performing [past relevant work (“PRW”)] as described in 17 detail below. This work did not require the performance of work-related activities 18 precluded by [Plaintiff’s] RFC (20 CFR 404.1565).” Tr. 32. 19 Specifically, the ALJ found that Plaintiff had PRW as a “Mental Health 20 Counselor” as the occupation is described in the Dictionary of Occupational Titles 21 (“DOT”) at DOT 045.107-010, and that Plaintiff “is able to perform this [PRW] as 22 actually and generally performed based on the testimony of the [VE].” Tr. 32, 34. 23 Consequently, the ALJ concluded that Plaintiff “was not under a disability, as 24 defined in the . . . Act, at any time from December 29, 2013, the alleged onset date, 25 through December 31, 2015, the date last insured (20 CFR 404.1520(f)).” Tr. 34. 26 C. 27 In this appeal, Plaintiff raises three issues, whether the ALJ: (1) “can discard 28 Issues Presented third party evidence as ‘not from a medical professional and therefore not 6 1 competent’”; (2) “was required to address the limitations of Fibromyalgia and 2 migraines”; and (3) “is excused from conducting a psychiatric evaluation because 3 [Plaintiff] adamantly denied that he had a psychiatric medical condition’ where his 4 doctors have determined he has Conversion Disorder; Adult mental listing 12.07.” 5 ECF No. 22, Joint Stip. at 9-10. 6 D. 7 Before addressing the issues raised by Plaintiff, the Court first observes the 8 ALJ’s Decision Is Not Supported By Substantial Evidence. following issue that is also dispositive in this case. 9 1. Plaintiff’s PRW As A Mental Health Counselor—As 10 Plaintiff Performed It—Requires Lifting In Excess Of 11 Plaintiff’s RFC. 12 As an initial matter, the Court observes that Plaintiff’s testimony about his 13 PRW as a mental health counselor reveals that Plaintiff lifted heavier amounts of 14 weight than Plaintiff’s RFC allows. Specifically, Plaintiff testified that his PRW as 15 a mental health counselor was for two companies called “Hospital Shared 16 Services” (“HSS”) and “Arapahoe.” Tr. 54-59. With respect to Plaintiff’s PRW at 17 HHS, Plaintiff testified that HHS “provided security and staffing services for 18 hospitals and various mental health agencies.” Tr. 54-55. Plaintiff added that HSS 19 “filled staffing needs” when “places that would have staff and would call off, for 20 whatever reason. And they would call our . . . agency. And . . . they would call 21 the pool of workers, to find out if any of us were available to fill that particular 22 opening.” Tr. 55. Plaintiff testified that while working for HHS, he “did a little 23 security, mostly mental health services, staffing, [and] support stuff.” Id. Plaintiff 24 added that his duties at HHS “[s]ometimes . . . involved patient transfer” that 25 involved lifting “over 100 pounds. If there were just four of [them] moving a 26 patient, it was—you know, some of the heavier people, heavy, it was over 100 27 pounds easy.” Tr. 57. 28 /// 7 1 Additionally, in response to a question by the ALJ regarding whether 2 Plaintiff lifted more than twenty pounds when we worked at Arapahoe, Plaintiff 3 testified that “on occasion—[he] ha[d] to restrain patients, when they were violent 4 . . . or they had first-aid emergencies. So on occasion, yes.” Tr. 59. Plaintiff 5 added that the most he lifted at Arapahoe was “[o]ver 100 pounds, when [he] had 6 to deal with moving a . . . person.” Tr. 59. 7 Thus, Plaintiff’s testimony reveals that Plaintiff occasionally lifted over 100 8 pounds at his PRW as a mental health counselor, whereas the ALJ found that 9 Plaintiff had the RFC to “lift and carry, push and pull, up to 10 pounds 10 occasionally and less than 10 pounds frequently.” Tr. 25, 54-59. Consequently, 11 the ALJ’s step four finding that Plaintiff can perform his PRW as a mental health 12 counselor as Plaintiff actually performed the work is not supported by substantial 13 evidence in the record because the record reveals that Plaintiff was required to 14 occasionally lift substantially more weight—at least ninety more pounds—at his 15 relevant PRW than Plaintiff’s RFC allows. 16 This error is critical here because there is no indication in the hearing 17 testimony or the ALJ’s finding of how many mental health counselor positions 18 there are nationally available that Plaintiff can perform. Thus, the Court cannot 19 conclude on the record before it whether work as a mental health counselor—the 20 only occupation the ALJ found Plaintiff could perform—as the occupation is 21 performed generally, exists in significant numbers in the national economy. 22 Consequently, the ALJ’s conclusion that Plaintiff is not disabled is not 23 supported by substantial evidence. As such, the Court finds that remand for further 24 proceedings is appropriate here so that the ALJ may reconsider his step four 25 finding in light of the above discussed evidence. 26 /// 27 /// 28 /// 8 1 2. The ALJ’s RFC Did Not Properly Consider The Side 2 Effects From Plaintiff’s Migraine Medication Or Plaintiff’s 3 Documented Use Of An Assistive Device. 4 Turning now to the second issue raised by Plaintiff, that, in relevant part 5 here, the ALJ did not address the limitations caused by Plaintiff’s migraines, the 6 Court agrees for the following reasons. Specifically, although the ALJ found that 7 Plaintiff’s migraines were a severe impairment at step two, the ALJ later rejected 8 Plaintiff’s symptom statements—including those related to Plaintiff’s migraines— 9 without considering or discussing the limitations caused by the medication Plaintiff 10 took to treat his migraines. See Holohan v. Massanari, 246 F.3d 1195, 1207-08 11 (9th Cir. 2001) (holding an ALJ cannot selectively rely on some entries in 12 plaintiff’s records while ignoring others). The record, however, indicates that 13 Plaintiff’s migraines were frequent and that the side effects caused by Plaintiff’s 14 migraine medication were severe. 15 Specifically, Plaintiff testified at the administrative hearing that he gets 16 migraine headaches “several times a week” that “last the better part of a day.” Tr. 17 78-79. Plaintiff also testified that his migraine medication causes a feeling like 18 “being hung over from [taking] it” and that Plaintiff is “pretty much useless for the 19 rest of the day” after taking his migraine medication. Tr. 79. Plaintiff added that if 20 he has a “more severe [migraine], where [he] ha[s] to go to urgent care or the ER, 21 . . . what they give [him] to knock out that migraine, [he is] basically done for the 22 day anyways.” Id. Plaintiff also added that he has “to go and lay down anyways 23 [b]ecause what they give [him] is strong enough that [he] basically—even if [he] 24 could drive, [he] would be, you know, kind of wee, you know, from it—is the best 25 way to describe it” “[b]ecause [he is] just kind of out of it afterwards from what 26 they give [him].” Tr. 79-80. 27 28 Plaintiff’s medical records also indicate that Plaintiff had side effects from his migraine medication. See, e.g., Tr. 1168 (Plaintiff’s doctor noting that Plaintiff 9 1 “with increasing frequency of migraines” and “[n]ow has a migraine most days of 2 the week” and was “[r]ecently discontinued off of Topamax 2/2 side effects.”). 3 Consequently, the Court finds that the ALJ’s failure to consider the 4 limitations caused by the side effects of Plaintiff’s migraine medications was 5 harmful error because the evidence not considered by the ALJ suggests that 6 Plaintiff was likely unable to work when he was “wee,” “out of it,” or “pretty much 7 useless for the rest of the day” after taking his migraine medications, one of which, 8 Plaintiff’s doctor discontinued due to the “2/2” side effects it caused. Tr. 78-80, 9 1168. As such, the ALJ shall consider and discuss this evidence on remand as 10 11 well. Before concluding, the Court observes one final issue that must be addressed 12 on remand. The ALJ’s RFC and step four findings are erroneous because they do 13 not account for all the functional limitations described in Plaintiff’s testimony and 14 the medical records. Specifically, evidence in the record suggests that Plaintiff 15 used an assistive device during the relevant time period that, pursuant to the VE’s 16 testimony, would preclude Plaintiff from maintaining substantial gainful 17 employment. 18 For example, Plaintiff testified at the hearing that he was prescribed a cane 19 by his primary doctor in September 2015 for “issues with balance and 20 coordination” and that an urgent care doctor later prescribed Plaintiff a walker. Tr. 21 72-73. Plaintiff’s medical records corroborate Plaintiff’s use of a cane and walker 22 during the relevant time period. See, e.g., Tr. 1159, 1168, 1171, 1173, 1174, 1202 23 (Plaintiff’s treatment providers documenting Plaintiff’s use of a cane); see also Tr. 24 1174, 1202, 1210, 1212 (Plaintiff’s treatment providers documenting Plaintiff’s 25 use of a walker). 26 Although the ALJ noted Plaintiff’s documented use of a cane and walker 27 during the relevant time period in the decision, see Tr. 28, 29, and ultimately found 28 Plaintiff’s symptom statements not credible, see Tr. 27, 32, the ALJ never 10 1 specifically found that Plaintiff’s stated need for a cane and walker was not 2 credible, nor did the ALJ address how the many notations in Plaintiff’s medical 3 records that Plaintiff consistently relied on such assistive devices, a sample of 4 which are cited above, did not support Plaintiff’s stated need for a cane or walker. 5 Consequently, it is unclear why Plaintiff’s documented need for, and use of, 6 a cane and walker was not included in Plaintiff’s RFC assessment and, therefore, 7 also the hypothetical question the ALJ posed to the VE at the administrative 8 hearing. See Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 2017) (When a 9 claimant has medically documented impairments that “might reasonably produce 10 the symptoms or pain alleged and there is no evidence of malingering, the ALJ 11 must give ‘specific, clear, and convincing reasons for rejecting’ the testimony by 12 identifying ‘which testimony [the ALJ] found not credible’ and explaining ‘which 13 evidence contradicted that testimony.’”) (emphasis in original) (quoting Brown- 14 Hunter v. Colvin, 806 F.3d 487, 489, 494 (9th Cir. 2015)); see also Garrison v. 15 Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (“This is not an easy requirement to 16 meet: ‘the clear and convincing standard is the most demanding required in Social 17 Security cases.’”) (quoting Moore v. Comm’r Soc. Sec. Admin., 278 F.3d 920, 924 18 (9th Cir. 2002)). 19 The RFC is the maximum a claimant can do despite his limitations. 20 20 C.F.R. § 404.1545. In determining the RFC, the ALJ must consider limitations 21 imposed by all of a claimant’s impairments, even those that are not severe, and 22 evaluate all of the relevant medical and other evidence, including the claimant’s 23 testimony. Social Security Regulation (“SSR”) 96-8p, available at 1996 WL 24 374184. The ALJ is responsible for resolving conflicts in the medical testimony 25 and translating the claimant’s impairments into concrete functional limitations in 26 the RFC. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Only 27 limitations supported by substantial evidence must be incorporated into the RFC 28 11 1 and, by extension, the dispositive hypothetical question posed to the Vocational 2 Expert. Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001). 3 The ALJ’s failure to include Plaintiff’s need for a cane and walker in 4 Plaintiff’s RFC was particularly harmful here because when question by Plaintiff’s 5 counsel whether someone with Plaintiff’s RFC who required the use of a walker 6 could perform Plaintiff’ PRW, the VE opined that such a person could not. See Tr. 7 84 (the VE opining that the use of a walker is “considered an accommodation in 8 the workplace, and that eliminates all jobs.”). 9 Accordingly, the ALJ’s failure to include Plaintiff’s documented need for an 10 assistive device in the RFC and resulting hypothetical question posed to the VE at 11 the administrative hearing was harmful error and undercuts the ALJ’s step four 12 finding that relies on the VE’s response to the ALJ’s incomplete hypothetical 13 question. See Osenbrock, 240 F.3d at 1165 (“An ALJ must propound a 14 hypothetical to a VE that is based on medical assumptions supported by substantial 15 evidence in the record that reflects all the claimant’s limitations.”). On remand, 16 the ALJ shall consider the aforementioned evidence relating to Plaintiff’s need for 17 a cane and walker and discuss whether Plaintiff’s need for these assistive devices 18 precludes Plaintiff from substantial gainful employment. 19 20 21 Because the Court remands as to the aforementioned issues, it does not address Plaintiff’s remaining assignments of error. IV. CONCLUSION 22 Because the Commissioner’s decision is not supported by substantial 23 evidence, IT IS HEREBY ORDERED that the Commissioner’s decision is 24 REVERSED and this case is REMANDED for further administrative proceedings 25 under sentence four of 42 U.S.C. § 405(g). See Garrison, 759 F.3d at 1009 26 (holding that under sentence four of 42 U.S.C. § 405(g), “[t]he court shall have 27 power to enter . . . a judgment affirming, modifying, or reversing the decision of 28 12 1 the Commissioner . . . , with or without remanding the cause for a rehearing.”) 2 (citation and internal quotation marks omitted). 3 4 IT IS SO ORDERED. 5 6 7 8 DATED: 04/15/2021 ________________________________ HON. SHASHI H. KEWALRAMANI United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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