Dwight D. D. v. Andrew Saul, No. 8:2020cv00007 - Document 21 (C.D. Cal. 2020)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further proceedings consistent with this Memorandum Opinion. (es)
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Dwight D. D. v. Andrew Saul Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 12 DWIGHT D. D., 13 Plaintiff, 14 15 16 v. ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. SA CV 20-7-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Dwight D. D.1 (“plaintiff”) filed this action on January 2, 2020, seeking review of the 22 Commissioner’s denial of his application for a period of disability and Disability Insurance Benefits 23 (“DIB”). The parties filed Consents to proceed before a Magistrate Judge on January 21, 2020, 24 and January 31, 2020. Pursuant to the Court’s Order, the parties filed a Joint Submission 25 (alternatively “JS”) on September 23, 2020, that addresses their positions concerning the disputed 26 27 28 1 In the interest of protecting plaintiff’s privacy, this Memorandum Opinion and Order uses plaintiff’s (1) first name and middle and last initials, and (2) year of birth in lieu of a complete birth date. See Fed. R. Civ. P. 5.2(c)(2)(B), Local Rule 5.2-1. Dockets.Justia.com 1 issue in the case. The Court has taken the Joint Submission under submission without oral 2 argument. 3 4 II. 5 BACKGROUND 6 Plaintiff was born in 1953. [Administrative Record (“AR”) at 145, 496.] He has past relevant 7 work experience in the composite job of office machine repairer and bookkeeper. [Id. at 496, 524- 8 25.] 9 On May 1, 2012, plaintiff filed an application for a period of disability and DIB alleging that 10 he has been unable to work since January 1, 2010. [Id. at 598; see also id. at 145-46.] After his 11 application was denied initially and upon reconsideration, plaintiff timely filed a request for a 12 hearing before an Administrative Law Judge (“ALJ”). [Id. at 104-05.] A hearing was held on April 13 2, 2014, at which time plaintiff appeared represented by an attorney, and testified on his own 14 behalf. [Id. at 35-60.] A vocational expert (“VE”) also testified. [Id. at 53-59.] On April 23, 2014, 15 the ALJ issued a decision concluding that plaintiff was not under a disability from January 1, 2010, 16 the alleged onset date, through April 23, 2014, the date of the decision. [Id. at 20-30.] Plaintiff 17 requested review of the ALJ’s decision by the Appeals Council, which was denied on September 18 2, 2015. [Id. at 11-15.] Plaintiff then filed an action with this Court in case number SA CV 16-132- 19 PLA, and on November 8, 2016, this Court remanded the matter. [Id. at 570-85; see also id. at 20 590-94 (Appeals Council Remand Order).] On October 25, 2017, a remand hearing was held 21 before the same ALJ, at which time plaintiff again appeared represented by an attorney and 22 testified on his own behalf. [Id. at 504-31.] A different VE also testified. [Id. at 524-29.] On 23 December 6, 2017, the ALJ issued a decision again concluding that plaintiff was not under a 24 disability from January 1, 2010, the alleged onset date, through December 6, 2017, the date of the 25 decision. [Id. at 488-98.] Plaintiff again requested review of the ALJ’s decision with the Appeals 26 Council, which was denied on November 4, 2019. [Id. at 478-84.] At that time, the ALJ’s decision 27 became the final decision of the Commissioner. 20 C.F.R. § 404.984. This action followed. 28 / 2 1 III. 2 STANDARD OF REVIEW 3 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s 4 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 5 evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 6 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted). 7 “Substantial evidence . . . is ‘more than a mere scintilla[,]’ . . . [which] means -- and means 8 only -- ‘such relevant evidence as a reasonable mind might accept as adequate to support a 9 conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019) (citations 10 omitted); Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). “Where evidence is susceptible 11 to more than one rational interpretation, the ALJ’s decision should be upheld.” Revels, 874 F.3d 12 at 654 (internal quotation marks and citation omitted). However, the Court “must consider the 13 entire record as a whole, weighing both the evidence that supports and the evidence that detracts 14 from the Commissioner’s conclusion, and may not affirm simply by isolating a specific quantum 15 of supporting evidence.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) 16 (internal quotation marks omitted)). The Court will “review only the reasons provided by the ALJ 17 in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” 18 Id. (internal quotation marks and citation omitted); see also SEC v. Chenery Corp., 318 U.S. 80, 19 87, 63 S. Ct. 454, 87 L. Ed. 626 (1943) (“The grounds upon which an administrative order must 20 be judged are those upon which the record discloses that its action was based.”). 21 22 IV. 23 THE EVALUATION OF DISABILITY 24 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable 25 to engage in any substantial gainful activity owing to a physical or mental impairment that is 26 expected to result in death or which has lasted or is expected to last for a continuous period of at 27 least twelve months. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting 28 42 U.S.C. § 423(d)(1)(A)). 3 1 A. THE FIVE-STEP EVALUATION PROCESS 2 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 3 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v. Barnhart, 468 4 F.3d 1111, 1114 (9th Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)). 5 In the first step, the Commissioner must determine whether the claimant is currently engaged in 6 substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Lounsburry, 7 468 F.3d at 1114. If the claimant is not currently engaged in substantial gainful activity, the 8 second step requires the Commissioner to determine whether the claimant has a “severe” 9 impairment or combination of impairments significantly limiting his ability to do basic work 10 activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has 11 a “severe” impairment or combination of impairments, the third step requires the Commissioner 12 to determine whether the impairment or combination of impairments meets or equals an 13 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart P, 14 appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the 15 claimant’s impairment or combination of impairments does not meet or equal an impairment in the 16 Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient 17 “residual functional capacity” to perform his past work; if so, the claimant is not disabled and the 18 claim is denied. Id. The claimant has the burden of proving that he is unable to perform past 19 relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the claimant meets 20 this burden, a prima facie case of disability is established. Id. The Commissioner then bears 21 the burden of establishing that the claimant is not disabled because there is other work existing 22 in “significant numbers” in the national or regional economy the claimant can do, either (1) by 23 the testimony of a VE, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. part 24 404, subpart P, appendix 2. Lounsburry, 468 F.3d at 1114. The determination of this issue 25 comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; 26 Lester v. Chater, 81 F.3d 721, 828 n.5 (9th Cir. 1995); Drouin, 966 F.2d at 1257. 27 / 28 / 4 1 B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 2 At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since 3 January 1, 2010, the alleged onset date.2 [AR at 490.] At step two, the ALJ concluded that 4 plaintiff has the severe impairments of diabetes mellitus with neuropathy; arthritis; successful 5 cataract surgery of the right eye, but loss of some vision in the left eye; paresthesia and pain in 6 both feet; rotator cuff and tendonitis of the right arm; dizziness and past strokes; degenerative disc 7 disease; and atrial fibrillation. [Id. at 491.] At step three, the ALJ determined that plaintiff does 8 not have an impairment or a combination of impairments that meets or medically equals any of 9 the impairments in the Listing. [Id. at 492.] The ALJ further found that plaintiff retained the 10 residual functional capacity (“RFC”)3 to perform medium work as defined in 20 C.F.R. § 11 404.1567(c),4 as follows: 12 15 [Can] occasionally lift and/or carry 50 pounds; frequently lift and/or carry 25 pounds; stand and/or walk for 6 hours in an 8-hour workday; sit for 6 hours in an 8-hour workday; can climb stairs, but cannot climb ladders[,] ropes or scaffolds; occasional overhead reaching with right upper extremity; no jobs requiring depth perception for safety purposes; no jobs requiring left peripheral vision; no work at unprotected heights or around moving and dangerous machinery; and frequent fine and gross manipulation bilaterally. 16 [Id.] At step four, based on plaintiff’s RFC and the testimony of the VE, the ALJ concluded that 17 plaintiff is unable to perform his past relevant work in the composite job of office machine repairer 18 and bookkeeper. [Id. at 496, 524-25.] At step five, based on plaintiff’s RFC, vocational factors, 19 and the VE’s testimony, the ALJ found that there are jobs existing in significant numbers in the 13 14 20 21 22 23 24 25 26 27 28 2 The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through December 31, 2018. [AR at 490.] 3 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007) (citation omitted). 4 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. A full range of medium work requires that a person be able to stand or walk, off and on, for a total of approximately six hours of an eight-hour workday. SSR 83-10; Candia v. Sullivan, 959 F.2d 239, 239 (9th Cir. 1992). If someone can do medium work, we determine that he or she can also do sedentary and light work.” 20 C.F.R. § 404.1567(c). 5 1 national economy that plaintiff can perform, including work as a “laundry worker” (Dictionary of 2 Occupational Titles (“DOT”) No. 361.684-014), and as a “cleaner, hospital” (DOT No. 323.687- 3 010). [AR at 526-28.] Accordingly, the ALJ determined that plaintiff was not disabled at any time 4 from the alleged onset date of January 1, 2010, through December 6, 2017, the date of the 5 decision. [Id. at 498.] 6 7 V. 8 THE ALJ’S DECISION 9 10 Plaintiff contends that the ALJ erred when she determined plaintiff’s RFC. [JS at 5.] As set forth below, the Court agrees with plaintiff and remands for further proceedings. 11 12 A. LEGAL STANDARD 13 An RFC is “an assessment of an individual’s ability to do sustained work-related physical 14 and mental activities in a work setting on a regular and continuing basis.” Soc. Sec. Ruling 15 (“SSR”)5 96-9p, 1996 WL 374184, at *1 (1996). It reflects the most a claimant can do despite his 16 limitations. See Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996). An RFC must include an 17 individual’s functional limitations or restrictions as a result of all of his impairments -- even those 18 that are not severe (see 20 C.F.R. § 404.1545(a)(1)-(2), (e)) -- and must assess his “work-related 19 abilities on a function-by-function basis.” SSR 96-9p, 1996 WL 374184, at *1; see also Valentine 20 v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (“an RFC that fails to take into 21 account a claimant’s limitations is defective”). An ALJ errs when she provides an incomplete RFC 22 ignoring “significant and probative evidence.” Hill v. Astrue, 698 F.3d 1153, 1161-62 (9th Cir. 23 2012) (further noting that the error is not harmless when an ALJ fails to discuss significant and 24 probative evidence favorable to a claimant’s position because when the RFC is incomplete, the 25 26 27 28 5 “SSRs do not have the force of law. However, because they represent the Commissioner’s interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246 F.3d 1195, 1202 n.1 (9th Cir. 2001) (citations omitted). 6 1 hypothetical question presented to the VE is incomplete and, therefore, the ALJ’s reliance on the 2 VE’s answers is improper). An RFC assessment is ultimately an administrative finding reserved 3 to the Commissioner. 20 C.F.R. § 404.1527(d)(2). However, an RFC determination must be 4 based on all of the relevant evidence, including the diagnoses, treatment, observations, and 5 opinions of medical sources, such as treating and examining physicians. Id. § 404.1545. A district 6 court must uphold an ALJ’s RFC assessment when the ALJ has applied the proper legal standard 7 and substantial evidence in the record as a whole supports the decision. See Bayliss v. Barnhart, 8 427 F.3d 1211, 1217 (9th Cir. 2005); Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 9 10 B. BACKGROUND 11 Plaintiff argues that the ALJ erred in formulating the RFC. He states that three and one-half 12 years after the initial hearing, the ALJ in this action “found that [plaintiff] suffered from the exact 13 same severe impairments as previous[ly] found plus atrial fibrillation and acknowledged additional 14 treatment and x-ray findings.” [JS at 6 (emphasis in original) (citing AR at 22, 491).] He then 15 asserts that the ALJ found that plaintiff “retained the exact same residual functional capacity” 16 “despite the presence of the additional severe impairment and three and half [sic] years of medical 17 treatment.” [Id. (emphasis in original).] Plaintiff also notes that the ALJ -- as she did in her 2014 18 decision -- again gave significant weight to the August 25, 2012, opinions of the consultative 19 examiner, and to the October 25, 2012, and May 16, 2013, opinions of the State agency reviewing 20 consultants. [Id. at 6 (citing AR at 495-96).] Plaintiff deems this to be a “problem” because “since 21 May 2013, the last time a medical professional evaluated [plaintiff’s] claim, there are five years of 22 records from the VA that have not been reviewed by a medical professional.” [Id. (citing AR at 23 745-976).] He specifically notes the following evidence: a November 30, 2012, brain MRI that 24 demonstrated encephalomalacia in the right cerebellum; echocardiograms performed as a result 25 of atrial fibrillation “demonstrating the presence [sic] mildly reduced global LV systolic function 26 (43%) and severely hypokinetic mid inferior and lateral segments”; five additional years of 27 treatment notes from July 2012 through September 2017, not previously considered [id. at 7 (citing 28 AR at 745-976)]; and August 1, 2017, x-rays of the bilateral wrists and hands demonstrating 7 1 moderate radiocarpal and mild to moderate first carpometacarpal osteoarthritis in the left wrist, 2 mild to moderate osteoarthritis in the left hand, mild radiocarpal and first carpometacarpal 3 osteoarthritis in the right wrist, and mild osteoarthritis in the right hand. [Id. at 7-8 (citing AR at 4 384-85, 778, 949-52).] Plaintiff argues that instead of imposing additional limitations, the ALJ 5 “relied on the opinions of physicians that never reviewed the evidence,” and a “reasonable person 6 would not assume that opinions rendered in 2012 and 2013, would be applicable to the same 7 person many years later with additional impairments.” [Id. at 8 (citing Flores v. Colvin, 2017 WL 8 367408, at *6 (C.D. Cal. Jan 24, 2017) (finding substantial evidence did not support the ALJ’s 9 finding that Flores was limited to light work when the plaintiff provided evidence of new 10 impairments not considered by the State agency or consultative examiners on whose opinions the 11 ALJ relied); Quaco v. Berryhill, 2018 WL 4725651, at *4 (C.D. Cal. Sept. 30, 2018)).] Plaintiff 12 submits, therefore, that the ALJ’s RFC assessment, limiting plaintiff to medium work despite 13 additional impairments and treatment since the 2014 decision, “is . . . based on nothing more than 14 her own analysis of the raw medical data in functional terms,” which, as an ALJ, she is not 15 qualified to do. [Id. at 8 (citing Padilla v. Astrue, 541 F. Supp. 2d 1102, 1106 (C.D. Cal. 2008)).] 16 He suggests that “[i]n light of the evidentiary gap, the ALJ could have undertaken a series of 17 measures such as ordering an updated consultative examination, calling a medical expert to testify 18 at the hearing, or remanding the matter back to the State agency to make a new determination 19 based on the subsequent medical evidence.” [Id. at 9 (citations omitted).] He states that the ALJ 20 “instead, undertook the one path that was not permitted, which was to formulate an RFC based 21 on her analysis of the medical evidence for which she was not qualified,” and the RFC 22 determination, therefore, is not supported by substantial evidence and is the result of legal error. 23 [Id.] 24 Defendant responds that the ALJ properly considered plaintiff’s subjective complaints, the 25 longitudinal medical records, and the medical opinions in the record. [Id. at 10.] He notes that the 26 ALJ reviewed the medical treatment records “in detail”; found that the evidence “did not fully 27 support Plaintiff’s allegations, as he had significant gaps in treatment and relatively infrequent 28 treatment overall”; found that the objective findings showed improvement and stable conditions; 8 1 noted that plaintiff had returned to work after the alleged onset date; and “then afforded significant 2 weight to the opinions that were well supported and consistent with the record, and little weight 3 to the VA clinic opinion from 2014 that was by contrast unsupported and inconsistent with the 4 record.” [Id. at 10-11 (citing AR at 26-28, 493-96).] Defendant observes that the 2014 and 2017 5 RFC determinations are not identical as argued by plaintiff, as the 2017 RFC also included 6 limitations to frequent fine and gross manipulation bilaterally, while the 2014 decision had no 7 manipulative limitations.6 [Id. at 11.] Defendant also contends that despite plaintiff’s submission 8 of updated treatment evidence [id. (citing AR at 746-931, 934-76)], plaintiff only points to his new 9 severe impairment of atrial fibrillation, and did not point to any new functional limitations as a result 10 of that impairment, “much less what evidence supported them.” [Id. at 11-12 (citations omitted).] 11 Defendant states that the brain MRI and echocardiograms were already in the record relied on by 12 the ALJ, and that plaintiff does not explain “how this evidence demonstrated any particular 13 restrictions beyond those in the RFC.” [Id. at 12 (citing AR at 384, 778).] He also notes that the 14 ALJ considered the new imaging of plaintiff’s wrists and hands, and determined that plaintiff was 15 restricted to frequent fine and gross manipulation bilaterally. [Id. (citing AR at 493, 495).] 16 Defendant asserts that despite the passage of time since the consultative examiner and the State 17 agency reviewing physicians had considered the record, plaintiff “did not point to any new 18 evidence that undermined these doctors’ opinions, but only notes that the record included several 19 years of new treatment records on remand.” [Id.] He states that this alone does not constitute 20 error as the ALJ reviewed these records in assessing plaintiff’s RFC, and plaintiff presented no 21 contrary opinions on remand, “even though it was his burden to prove disability with medical 22 evidence and opinions.” [Id. (citations omitted).] Defendant submits that there is nothing in the 23 record that “required that the ALJ take any of the additional, discretionary steps” suggested by 24 plaintiff, and notes that plaintiff “also never requested that the ALJ call a medical expert or argued 25 to the agency that an additional examination was required.” [Id. at 13-14 (citing AR at 529-31, 26 27 6 28 Defendant notes that the Court’s prior remand related to a potential conflict with the DOT and not with the consideration of medical evidence or opinions. [JS at 11 n.6.] 9 1 685).] 2 In reply, plaintiff contends that “[m]edical opinions rendered in 2012 and 2013, are not 3 substantial evidence.” [Id. at 14 (citing Samoy v. Saul, 2019 WL 4688638, at *4 (E.D. Cal. Sept. 4 26, 2019) (holding that the ALJ’s RFC determination was not supported by substantial evidence 5 because recent MRI results were not reviewed by the two physicians who provided opinions 6 regarding the plaintiff’s functional limitations, yet the ALJ concluded that the MRI results were 7 consistent with limitations on reaching and, because the ALJ was not qualified to interpret raw 8 medical data in functional terms, he was required to retain a medical expert to evaluate this 9 evidence)).] 10 11 C. ANALYSIS 12 After reviewing the arguments of the parties and the evidentiary record, the Court finds the 13 following: (1) plaintiff’s statements to the contrary, the 2014 and 2017 RFC determinations are 14 not “the exact same,” as the 2017 RFC determination imposed frequent fine and gross 15 manipulation limitations bilaterally based, at least in part, on plaintiff’s August 2017 wrist and hand 16 x-ray findings showing mild to moderate osteoarthritis; (2) in 2017, the ALJ found the additional 17 severe impairment of atrial fibrillation, but plaintiff did not point to any new limitations resulting from 18 that impairment in his portions of the JS, and the ALJ did not discuss any such limitations; (3) the 19 November 30, 2012, brain MRI and echocardiograms were in the record relied on by the ALJ in 20 2014 and 2017, and plaintiff provided no evidence of any functional limitations beyond those in 21 the RFC with respect to those clinical records; and (4) in his portions of the JS, plaintiff pointed 22 primarily to the fact of his newly diagnosed atrial fibrillation and the 2017 clinical findings regarding 23 mild to moderate osteoarthritis in his bilateral wrists and hands as evidence undermining the 2012 24 opinion of the consultative examiner and the 2012 and 2013 opinions of the State agency 25 reviewing physicians regarding plaintiff’s functional limitations. 26 Notwithstanding the foregoing, although the ALJ in 2017 determined on remand that plaintiff 27 has the new severe impairment of atrial fibrillation, i.e., an impairment that has “more than a 28 minimal effect on an individual’s ability to do basic work activities,” she apparently determined that 10 1 plaintiff’s severe impairment of atrial fibrillation did not result in any additional RFC limitations than 2 those found in her 2014 decision, as none were included. In contrast, with respect to plaintiff’s 3 severe impairment of arthritis, the ALJ specifically determined -- based at least in part on the 4 August 2017 x-rays reflecting mild to moderate osteoarthritis in plaintiff’s wrists and hands -- that 5 plaintiff should be limited to frequent fine and gross manipulation bilaterally. 6 These determinations lack the support of substantial evidence. As a lay person, an ALJ 7 is “simply not qualified to interpret raw medical data in functional terms.” Nguyen v. Chater, 172 8 F.3d 31, 35 (1st Cir. 1999) (per curiam). Neither is an ALJ permitted to “succumb to the 9 temptation to play doctor and make [her] own independent medical findings.” Banks v. Barnhard, 10 434 F. Supp. 2d 800, 805 (C.D. Cal. 2006); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 11 1975) (an ALJ is forbidden from making his or her own medical assessment beyond that 12 demonstrated by the record). This is exactly what the ALJ did here when she determined -- 13 without the support of medical opinion evidence -- that plaintiff’s new severe impairment of atrial 14 fibrillation did not warrant any additional functional limitations, and that the new clinical evidence 15 reflecting mild to moderate osteoarthritis in plaintiff’s bilateral wrists and hands warranted a 16 limitation to only frequent fine and gross manipulation bilaterally. 17 The ALJ also failed to offer an explanation as why the 2012 and 2013 opinions of the 18 consultative examiner and the State agency reviewing physicians still warranted “significant 19 weight,” notwithstanding the severe impairment of atrial fibrillation being diagnosed after that time, 20 and, as determined by the ALJ, a limitation to frequent fine and gross manipulation bilaterally 21 being warranted as a result of the mild to moderate osteoarthritis reflected in the 2017 x-rays of 22 plaintiff’s wrists and hands. All of this evidence arose after the time that the consultative examiner 23 and the reviewing physicians provided their opinions. When the record is inadequate to allow for 24 proper evaluation of the evidence, the ALJ “has a duty to develop the record further.” Ford v. 25 Saul, 950 F.3d 1141, 1156 (9th Cir. 2020) (citation omitted). In this case, the ALJ failed to develop 26 the record by seeking a medical opinion as to the functional limitations -- if any -- resulting from 27 plaintiff’s newly diagnosed impairment of atrial fibrillation, and from his mild to moderate 28 osteoarthritis in his wrists and hands as reflected in the 2017 x-rays. Instead, she improperly 11 1 “played doctor” when she determined that plaintiff’s atrial fibrillation warranted no limitations, and 2 interpreted raw medical data in the form of plaintiff’s hand and wrist x-rays, in functional terms. 3 Remand is warranted on this issue. 4 5 VI. 6 REMAND FOR FURTHER PROCEEDINGS 7 The Court has discretion to remand or reverse and award benefits. Trevizo v. Berryhill, 871 8 F.3d 664, 682 (9th Cir. 2017) (citation omitted). Where no useful purpose would be served by 9 further proceedings, or where the record has been fully developed, it is appropriate to exercise this 10 discretion to direct an immediate award of benefits. Id. (citing Garrison, 759 F.3d at 1019). Where 11 there are outstanding issues that must be resolved before a determination can be made, and it 12 is not clear from the record that the ALJ would be required to find plaintiff disabled if all the 13 evidence were properly evaluated, remand is appropriate. See Garrison, 759 F.3d at 1021. 14 In this case, there are outstanding issues that must be resolved before a final determination 15 can be made. 16 misunderstanding as to what the Court intends, the Court will set forth the scope of the remand 17 proceedings. First, with respect to limitations -- if any -- arising from plaintiff’s atrial fibrillation and 18 mild to moderate bilateral hand and wrist osteoarthritis, the ALJ on remand shall order a 19 consultative examination or examinations, with the appropriate specialist(s) being provided with 20 all of plaintiff’s medical records, and/or seek the testimony of a medical expert regarding the 21 limitations -- if any-- arising from these impairments.7 Second, the ALJ shall reassess the entire 22 medical record, including, if applicable, the new consultative examination(s), the testimony of a 23 medical expert, and all other medical evidence of record relevant to plaintiff’s claim for DIB. As 24 appropriate, the ALJ may request the treating and nontreating sources to provide additional In an effort to expedite these proceedings and to avoid any confusion or 25 26 27 28 7 Nothing in this decision is intended to disrupt the ALJ’s finding that plaintiff has at least the severe impairments of diabetes mellitus with neuropathy; arthritis; successful cataract surgery of the right eye, but loss of some vision in the left eye; paresthesia and pain in both feet; rotator cuff and tendonitis of the right arm; dizziness and past strokes; degenerative disc disease; and atrial fibrillation. 12 1 evidence about what plaintiff can still do despite his impairments. The ALJ must explain the 2 weight afforded to each opinion and provide legally adequate reasons for any portion of an opinion 3 that the ALJ discounts or rejects, including a legally sufficient explanation for crediting one doctor’s 4 opinion over any of the others. Third, the ALJ shall reassess plaintiff’s credibility and provide 5 specific, clear and convincing reasons for discrediting his testimony, if warranted. Fourth, based 6 on his or her reevaluation of the entire medical record, and credibility assessment, the ALJ shall 7 determine plaintiff’s RFC. Finally, the ALJ shall determine, at step five, with the assistance of a 8 VE if necessary, whether there are jobs existing in significant numbers in the national economy 9 that plaintiff can still perform.8 See Shaibi v. Berryhill, 883 F.3d 1102, 1110 (9th Cir. 2017). 10 11 VII. 12 CONCLUSION 13 IT IS HEREBY ORDERED that: (1) plaintiff’s request for remand is granted; (2) the 14 decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further 15 proceedings consistent with this Memorandum Opinion. 16 17 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 18 19 This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 20 21 DATED: September 30, 2020 22 ______________________________________ PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 8 28 Nothing herein is intended to disrupt the ALJ’s step four finding that plaintiff is unable to perform his past relevant work in the composite job of office machine repairer and bookkeeper. 13
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