Linda Du v. Commissioner of Social Security Administration, No. 8:2017cv02035 - Document 19 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Autumn D. Spaeth. IT IS ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter for further proceedings consistent with this Order. (see document for further information) (hr)
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Linda Du v. Commissioner of Social Security Administration Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 LINDA DU, an Individual, 11 Plaintiff, 12 v. 13 Case No.: 8:17-0 20 35 ADS MEMORANDUM OPINION AND ORDER OF REMAND Com m issioner of Social Security Adm inistration, 14 Defendant. 15 16 I. IN TROD U CTION Plaintiff Linda Du (“Plaintiff”) challenges the Defendant, Nancy A. Berryhill, 17 18 Acting Com m issioner of Social Security’s (hereinafter “Com m issioner” or “Defendant”) 19 denial of her application for a period 1 of disability and disability insurance benefits 20 (“DIB”). For the reasons stated below, the decision of the Com m issioner is REVERSED 21 and REMANDED. 22 23 24 1 Only the period of Novem ber 6, 20 10 to March 31, 20 16 is relevant here. In a subsequent application for DIB not at issue here, Plaintiff was found disabled beginning on April 1, 20 16. (AR 577, 664). -1Dockets.Justia.com 1 II. PROCEED IN GS BELOW Plaintiff filed an application for DIB on October 2, 20 12 and for supplem ental 2 3 security incom e (“SSI”) on October 10 , 20 12, alleging disability beginning Novem ber 6, 4 20 10 in both applications. (Adm inistrative Record (“AR”) 231-238, 239-248). 5 Plaintiff’s application was denied initially on March 22, 20 13 (AR 174-79), and upon 6 reconsideration on August 22, 20 13 (AR 182-88). A hearing was held before 7 Adm inistrative Law J udge Sharilyn Hopson (“ALJ ”) on February 13, 20 14. (AR 196-20 1, 8 225-26). On May 19, 20 14, the ALJ found that Plaintiff had not been under a disability, 9 pursuant to the Social Security Act 2 , since Novem ber 6, 20 10 . (AR 11-30 ). The ALJ ’s 10 decision becam e the Com m issioner’s final decision when the Appeals Council denied 11 Plaintiff’s request for review on J anuary 7, 20 16. (AR 1-6). 12 Plaintiff then filed an action in District Court on J anuary 26, 20 16, challenging 13 the ALJ ’s decision. (AR 640 -42). On Septem ber 9, 20 16, the Court reversed and 14 rem anded the m atter for further adm inistrative proceedings.3 (AR 653-61). Another hearing was held before the sam e ALJ on August 16, 20 17. (AR 598- 15 16 613). On Septem ber 19, 20 17, the ALJ again found that Plaintiff had not been under a 17 disability, pursuant to the Social Security Act, from Novem ber 6, 20 10 to March 31, 18 20 16. (AR 574-97). Plaintiff filed this action on Novem ber 21, 20 17. [Docket (“Dkt.”) 19 No. 1]. 20 21 22 23 24 2 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or m ental im pairm ent expected to result in death, or which has lasted or is expected to last for a continuous period of at least 12 m onths. 42 U.S.C. §423(d)(1)(A). 3 The case was rem anded based on the ALJ ’s failure to properly consider the opinion of a consultative exam iner, Dr. Ehsan Ali. The issue in the Septem ber 9, 20 16 rem and is not relevant to the issue addressed in this Mem orandum Opinion and Order of Rem and. -2- In the ALJ ’s decision of Septem ber 19, 20 17 (AR 574-97), the ALJ followed the 1 2 required five-step sequential evaluation process to assess whether Plaintiff was disabled 3 under the Social Security Act.4 20 C.F.R. § 40 4.1520 (a)(4). At s te p o n e , the ALJ found 4 that Plaintiff had not been engaged in substantial gainful activity since Novem ber 6, 5 20 10 , the alleged onset date. (AR 580 ). At s te p tw o , the ALJ found that Plaintiff had 6 the following severe im pairm ents: (a) trigger fingers (one on one hand, two on the other 7 hand); (b) peripheral neuropathy (PN); (c) plantar fasciitis; (d) foot spurs; (e) cervical 8 spine abnorm alities (x-ray dated February 20 13); and (f) lum bar spine im pairm ent. 9 (AR 580 ). At s te p th re e , the ALJ found that Plaintiff “does not have an im pairm ent or 10 com bination of im pairm ents that m eets or m edically equals the severity of one of the 11 listed im pairm ents in 20 CFR Part 40 4, Subpart P, Appendix 1 (20 CFR 40 4.1520 (d), 12 40 4.1525, 40 4.1526, 416.920 (d), 416.925 and 416.9256).” (AR 582). The ALJ then found that Plaintiff had the following Residual Functional 13 14 Capacity5 (“RFC”): [P]erform less than the full range of light work as defined in 20 CFR 40 4.1567(b) and 416.967(b). Specifically, she can lift/ carry 20 pounds occasionally and 10 pounds frequently; stand, walk or sit six 15 16 17 18 19 20 21 22 23 24 4 The ALJ follows a five-step sequential evaluation process to assess whether a claim ant is disabled: Step one: Is the claim ant engaging in substantial gainful activity? If so, the claim ant is found not disabled. If not, proceed to step two. Step two: Does the claim ant have a “severe” im pairm ent? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claim ant’s im pairm ent or com bination of im pairm ents m eet or equal an im pairm ent listed in 20 C.F.R., Pt. 40 4, Subpt. P, App. 1? If so, the claim ant is autom atically determ ined disabled. If not, proceed to step four. Step four: Is the claim ant capable of perform ing his past work? If so, the claim ant is not disabled. If not, proceed to step five. Step five: Does the claim ant have the residual functional capacity to perform any other work? If so, the claim ant is not disabled. If not, the claim ant is disabled. Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (citing 20 C.F.R. §40 4.1520 ). 5 A Residual Functional Capacity is what a claim ant can still do despite existing exertional and nonexertional lim itations. See 20 C.F.R. §§ 40 4.1545(a)(1), 416.945(1)(1). -3- hours in an eight-hour workday; occasionally clim b stairs, no ladders, ropes or scaffolds; occasionally stoop, kneel, crouch and crawl; occasional exposure to extrem e heat and cold; no work at unprotected heights; no work with dangerous m achinery; frequent gross and fine m anipulation; and no forceful gripping, grasping and twisting such as opening a pickle jar for the first tim e. 1 2 3 4 5 (AR 583-84). At s te p fo u r, based on Plaintiff’s RFC and the vocational expert’s testim ony, the 6 7 ALJ found that Plaintiff was capable of perform ing past relevant work as an electronic 8 assem bler. (AR 589) The ALJ noted, “[t]his work does not require the perform ance of 9 work-related activities precluded by the claim ant’s residual functional capacity...”. The 10 ALJ did not proceed to s te p five . (AR 589-90 ). Accordingly, the ALJ determ ined that 11 Plaintiff has not been under a disability, as defined in the Social Security Act, from 12 Novem ber 6, 20 10 through March 31, 20 16. (AR 590 ). 13 14 15 III. STAN D ARD OF REVIEW Under 42 U.S.C. §40 5(g), a district court m ay review the Com m issioner’s decision 16 to deny benefits. A court m ust affirm an ALJ ’s findings of fact if they are supported by 17 substantial evidence and if the proper legal standards were applied. Mayes v. 18 Massanari, 276 F.3d 453, 458-59 (9th Cir. 20 0 1). “Substantial evidence” m eans m ore 19 than a m ere scintilla, but less than a preponderance; it is such relevant evidence as a 20 reasonable person m ight accept as adequate to support a conclusion.” Lingenfelter v. 21 Astrue, 50 4 F.3d 10 28, 10 35 (9th Cir. 20 0 7) (citing Robbins v. Soc. Sec. Adm in., 466 22 F.3d 880 , 882 (9th Cir. 20 0 6)). An ALJ can satisfy the substantial evidence 23 requirem ent “by setting out a detailed and thorough sum m ary of the facts and 24 -4- 1 conflicting clinical evidence, stating his interpretation thereof, and m aking findings.” 2 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation om itted). “[T]he Com m issioner’s decision cannot be affirm ed sim ply by isolating a specific 3 4 quantum of supporting evidence. Rather, a court m ust consider the record as a whole, 5 weighing both evidence that supports and evidence that detracts from the Secretary’s 6 conclusion.” Aukland v. Massanari, 257 F.3d 10 33, 10 35 (9th Cir. 20 0 1) (citations and 7 internal quotation m arks om itted). ‘“Where evidence is susceptible to m ore than one 8 rational interpretation,’ the ALJ ’s decision should be upheld.” Ryan v. Com m ’r of Soc. 9 Sec., 528 F.3d 1194, 1198 (9th Cir. 20 0 8) (citing Burch v. Barnhart, 40 0 F.3d 676, 679 10 (9th Cir. 20 0 5)); see Robbins, 466 F.3d at 882 (“If the evidence can support either 11 affirm ing or reversing the ALJ ’s conclusion, we m ay not substitute our judgm ent for that 12 of the ALJ .”). The Court m ay review only “the reasons provided by the ALJ in the 13 disability determ ination and m ay not affirm the ALJ on a ground upon which he did not 14 rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 20 0 7) (citing Connett v. Barnhart, 340 15 F.3d 871, 874 (9th Cir. 20 0 3)). 16 17 18 IV. D ISCU SSION Plaintiff raises the following issues for review: (1) whether the ALJ properly 19 considered that Dr. Anh Tat Hoang, a consultative exam iner, found in a report dated 20 April 14, 20 16, that Plaintiff had alm ost com plete loss of the use of her left hand; 21 (2) whether the ALJ failed to properly consider the opinion of the consultative 22 exam iner, Dr. Ali, who opined that Plaintiff could only walk or stand in twenty m inute 23 intervals; (3) whether the ALJ failed to properly consider Dr. Dang’s opinion that 24 Plaintiff could only lift and carry ten pounds, and she was lim ited to standing and -5- 1 walking thirty m inutes at a tim e; (4) whether the ALJ properly considered Plaintiff’s 2 credibility; (5) whether the ALJ im properly appears to rely, at least in part, on the 3 testim ony of the m edical expert when form ing her residual function capacity; and 4 (6) whether the ALJ properly considered Dr. Dinh Nguyen’s treating doctor opinion 5 concerning Plaintiff’s lim itations. [Dkt. No. 18, J oint Stipulation (“J S”) 1-2]. For the 6 reasons below, the Court agrees with Plaintiff regarding the ALJ ’s failure to consider or 7 address Dr. Hoang’s April 20 16 report in the ALJ ’s written decision, and rem ands on 8 that ground. A. 9 10 Th e ALJ Faile d to Pro p e rly Co n s id e r th e Re p o rt o f D r. H o an g The ALJ failed to properly consider the report of Dr. Anh Hoang. In a report 11 dated April 14, 20 16, Dr. Hoang found that Plaintiff’s left hand function was 12 “significantly im paired” and that she had “alm ost com plete loss” of m anipulative 13 function (“Hoang Report”). (AR 946 and 947). The Hoang Report states that there was 14 “tenosynovitis of the fingers” and that Plaintiff “was unable to m ake a full fist” on the 15 left hand. (AR 944). Dr. Hoang diagnosed Plaintiff as having tenosynovitis of the left 16 hand and anesthesia of the fingers. (AR 946). Though im precise, the Hoang Report, 17 dated just two weeks after the period at issue, states that Plaintiff “started experiencing 18 pain since 20 14.”6 (AR 942.) 19 20 The findings of Dr. Hoang’s report were part of the testim ony at the August 16, 20 17 hearing and the report itself was included in the “List of Exhibits” (Com ponent No. 21 22 23 24 6 Dr. Hoang’s report lists four specific chief com plaints of Plaintiff: 1) neck pain; 2) back pain; 3) bilateral shoulder, left elbow and left wrist/ hand pain; and 4) right hip and left ankle pain. (AR 942). The report then goes on to state that Plaintiff “started experiencing pain since 20 14” without any further inform ation as to whether this purported onset date applied to all four chief com plaints or only individual ones. Id. -6- 1 HO B27F) from the hearing. (AR 591-97.) Indeed, Plaintiff’s counsel questioned the 2 vocational expert (“VE”) about the effect the com plete loss of the use of the left hand had 3 on the RFC. (AR 60 5). The VE testified that, with this condition, Plaintiff would then 4 not be able to perform past relevant work an d would have no transferable skills. Id. 5 Moreover, Plaintiff’s counsel’s closing statem ent specifically referenced the m ost recent 6 consultative exam ination finding -- that Plaintiff had significant lim itations in her upper 7 left extrem ity. (AR 611). As such, the Hoang Report contains findings that are directly 8 contrary to portions of the RFC, and the VE testified that the identified left hand 9 condition would render the Plaintiff not able to perform past relevant work and would 10 11 have no transferable skills. Despite the potential im pact of the Hoang Report, the ALJ ’s decision of 12 Septem ber 19, 20 17 ignores it com pletely. There is not a single reference to the report or 13 to the findings of the report in the ALJ ’s decision. In setting forth her basis for assessing 14 the stated RFC, the ALJ ’s decision reviews and considers what appears to be every 15 m edical report and opinion included as an exhibit or testim ony, other than Dr. Hoang’s 16 report. (AR 584-589). As such, this Court has no basis for determ ining that the Hoang 17 Report was considered by the ALJ at all. 18 Defendant contends that the ALJ did not have to discuss Dr. Hoang’s report as it 19 is neither significant nor probative pursuant to Howard v. Barnhart, 341 F.3d 10 0 6 (9th 20 Cir. 20 0 3). In Howard, the Ninth Circuit upheld the District Court’s ruling that the ALJ 21 was not required to consider a report that was neither significant nor probative where 22 the ALJ decision was supported by substantial evidence. Id. at 10 12. Howard, however, 23 is distinguishable from the case here. 24 -7- 1 Defendant argues that Hoang Report is neither significant nor probative because 2 it is dated after the “relevant period” and not intended to be retrospective. Defendant 3 contends the report is thus not probative of Plaintiff’s lim itations during the relevant 4 period. The Hoang Report is dated April 14, 20 16, which is only tw o w eeks after the 5 close of the “relevant period”, and discusses the Plaintiff’s pain back to 20 14. The ALJ is 6 without question perm itted to review and consider m edical reports m ade after the 7 period of alleged disability if they reasonably relate to the applicable period. See Sm ith 8 v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988) (“We think it is clear that reports 9 containing observations m ade after the period for disability are relevant to assess the 10 claim ant’s disability . . . It is obvious that m edical reports are inevitably rendered 11 retrospectively and should not be disregarded solely on that basis.”). In holding that 12 m edical evaluations m ade after the expiration of claim ant’s insured status are relevant 13 to an evaluation of the pre-expiration condition, the Ninth Circuit in Sm ith cited to 14 num erous exam ples of decisions holding the sam e from the Eighth, Eleventh, Fourth, 15 Second and Seventh Circuits, m any of which allowed reports from up to several years 16 after the expiration date to be considered. 849 F.2d at 1225. 17 There is nothing in the report to indicate that this condition cam e on suddenly – 18 particularly within the prior two weeks. As stated by Defendant, “Dr. Hoang’s left hand 19 finding was apparently supported by the fact that on exam ination she found Plaintiff 20 had tenosynovitis of the fingers and was unable to m ake a full fist with the fingertips of 21 the index, m iddle, ring and little fingers m issing the m id palm ar crease from one to 22 three inches.” [Dkt. No. 18, J S 7]. As noted above, the only onset indication in the 23 24 -8- 1 report is the vague notation that Plaintiff had started experiencing pain in 20 14.7 2 (AR 942). Here, there is no basis to determ ine that the ALJ found the report not 3 probative to the relevant period because the ALJ failed to discuss the Hoang Report at 4 all. Defendant next contends that Dr. Hoang’s report is neither significant nor 5 6 probative because it is alm ost entirely consistent with the ALJ ’s RFC findings. This is 7 sim ply untrue. Dr. Hoang found that Plaintiff had alm ost com plete loss of the use of her 8 left hand. The ALJ ’s RFC included no such finding but rather seem s to rely on som e 9 am ount of m ovem ent and m anipulation. Defendant’s final contention is that the one respect where Dr. Hoang’s report was 10 11 not consistent with the ALJ ’s RFC findings – the loss of use of the left hand – is a “total 12 outlier” and should have been disregarded by the ALJ . [Dkt. 19, J S 6.] In support of 13 this argum ent, Defendant cites to num erous m edical reports from 20 13 and 20 14, 14 arguing that none of these reports m ade a finding of tenosynovitis or loss of function of 15 the left hand. Even if Defendant is correct as to the findings of the earlier medical 16 reports, that does not autom atically render Dr. Hoang’s finding to be neither significant 17 nor probative. To begin, it is an analysis to be undertaken by the ALJ . This Court 18 cannot review findings not articulated by the ALJ . See Pinto v. Massanari, 249 F.3d 19 20 21 22 23 24 7 Plaintiff contends that the ALJ should have called a m edical expert to testify how far back in tim e the lim itations would have been applicable. [Dkt. 18, J S 9]. While it is perm issible for the ALJ to call a m edical expert or advisor as to a disability onset date, such is not required and, here, on rem and, the ALJ should begin by considering and reviewing Dr. Hoang’s report as to credibility and im pact on her analysis and finding. See Wellington v. Berryhill, 878 F.3d 867, 874-75 (9th Cir. 20 17) (holding that under ordinary circum stances, an ALJ is equipped to determ ine a claim ant’s disability onset date without calling on a m edical advisor, but when found necessary, the ALJ should call such an advisor). -9- 1 840 , 847-48 (9th Cir. 20 0 1) (review is lim ited to the reasons articulated by the ALJ in 2 the decision, not post hoc assertions); Bray v. Com m ’r, 554 F.3d 1219, 1226 (9th Cir. 3 20 0 9) (“Long standing principles of adm inistrative law require us to review the ALJ ’s 4 decision based on the reasoning and factual findings offered by the ALJ – not post hoc 5 rationalizations that attem pt to intuit what the adjudicator m ay have been thinking.”). 6 Second, it is also im portant to note that Dr. Hoang’s finding could be relevant to the 7 period of tim e unrelated to the earlier m edical reports, but still part of the “relevant 8 period” at issue. Again, this is a consideration for the ALJ on rem and. 9 Defendant’s final argum ent is that, even if it was error for the ALJ to have failed 10 to address the Hoang Report, the error should be found to be harm less. If the ALJ were 11 to review and find credible the findings of Dr. Hoang, the loss of use of function in 12 Plaintiff’s left hand could very well be outcom e determ inative on the issue of disability 13 based on the testim ony of the VE and the applicable Grid rules, including the age of 14 Plaintiff. Accordingly, the ALJ should have considered the Hoang Report, or explained 15 why she was not crediting this opinion in her decision. See Garrison v. Colvin, 759 F.3d 16 995, 10 12-13 (9th Cir. 20 14). The Ninth Circuit, in Garrison, recognized that “[w]here 17 an ALJ does not explicitly reject a m edical opinion or set forth specific, legitimate 18 reasons for crediting one m edical opinion over another… an ALJ errs when he rejects a 19 m edical opinion or assigns it little weight while doing nothing m ore than ignoring it….” 20 Id., (citing Nguyen v. Chater, 10 0 F.3d 1462, 1464 (9th Cir. 1996)). In light of the fact 21 that the Hoang Report directly relates to the ALJ ’s step four analysis but was not 22 considered, the Court finds the ALJ erred. 23 24 -10 - 1 B. Th e Co u rt D e clin e s to Ad d re s s Plain tiff’s Re m ain in g Argu m e n ts 2 Having found that rem and is warranted, the Court declines to address Plaintiff’s 3 rem aining argum ents. See Hiler v. Astrue, 687 F.3d 120 8, 1212 (9th Cir. 20 12) 4 (“Because we rem and the case to the ALJ for the reasons stated, we decline to reach 5 [plaintiff’s] alternative ground for rem and.”); see also Augustine ex rel. Ram irez v. 6 Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 20 0 8) (“[The] Court need not address 7 the other claim s plaintiff raises, none of which would provide plaintiff with any further 8 relief than granted, and all of which can be addressed on rem and.”) 9 C. 10 Re m an d Fo r Fu rth e r Ad m in is trative Pro ce e d in gs Rem and for further adm inistrative proceedings, rather than an award of benefits, 11 is warranted here because further adm inistrative review could rem edy the ALJ ’s errors. 12 See Brown-Hunter v. Colvin, 80 6 F.3d 487, 495 (9th Cir. 20 15) (rem anding for an award 13 of benefits is appropriate in rare circum stances). The Court finds that the ALJ failed to 14 properly consider or address the opinion of Dr. Hoang in her decision. On rem and, the 15 ALJ shall review, evaluate and address Dr. Hoang’s report and findings in her decision. 16 The ALJ shall then, if necessary based on the incorporation of Dr. Hoang’s report, 17 reassess Plaintiff’s RFC and proceed through step four and five, if necessary, to 18 determ ine what work, if any, Plaintiff is capable of perform ing. 19 20 V. 21 ORD ER IT IS ORDERED that J udgm ent shall be entered REVERSING the decision of the 22 Com m issioner denying benefits, and REMANDING the m atter for further proceedings 23 / / / 24 -11- 1 2 consistent with this Order. LET J UDGMENT BE ENTERED ACCORDINGLY. 3 4 5 6 DATE: Septem ber 28, 20 18 /s/ Autumn D. Spaeth THE HONORABLE AUTUMN D. SPAETH United States Magistrate J udge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 -12-
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