Adam Mathew Leveque v. Carolyn W Colvin, No. 5:2015cv03851 - Document 25 (N.D. Cal. 2016)

Court Description: ORDER GRANTING IN PART AND DENYING IN PART CROSS-MOTIONS FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS. Re: Dkt. Nos. 22 23 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 9/9/2016)
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Adam Mathew Leveque v. Carolyn W Colvin Doc. 25 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 ADAM MATHEW LEVEQUE, United States District Court Northern District of California 11 12 13 14 v. CAROLYN COLVIN, Defendant. 15 16 Case No.15-cv-03851 NC Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART CROSSMOTIONS FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS Re: Dkt. Nos. 22, 23 Plaintiff Adam Leveque seeks judicial review of the Commissioner of Social 17 Security’s denial of his claim for disability benefits. Leveque argues his claim was 18 19 wrongfully denied because the Administrative Law Judge failed to consider relevant medical impairments, improperly discredited his symptom testimony, failed to consider 20 side effects of his medication, and improperly gave little weight to his treating physician’s 21 22 medical source statement. In addition, Leveque alleges that a previous denial for benefits must be reopened. The Court finds the ALJ improperly discredited Leveque’s symptom 23 testimony, and improperly gave little weight to his treating physician’s opinion. The Court 24 25 also finds the ALJ properly considered Leveque’s medical impairments and side effects of his medication, and finds no grounds for reopening Leveque’s previous denial for benefits. 26 Therefore, the Court GRANTS in part and DENIES in part the cross-motions for 27 summary judgment. Because the ALJ’s reasoning for discrediting Leveque’s testimony 28 Case No. 15-cv-03851 NC Dockets.Justia.com 1 and giving little weight to his treating physician’s medical source statement is inadequate, 2 the Court REMANDS this case for further administrative proceedings. 3 I. 4 BACKGROUND On March 31, 2012, Leveque filed for Supplemental Security Income benefits. 5 Administrative Record (“AR”) 89. At the time of his application, Leveque was 32 years 6 old. AR 25. Leveque previously filed for social security benefits on June 20, 2011, 7 alleging an onset date of October 31, 2009. AR 85. He was denied benefits on this initial 8 application on October 31, 2011, but some question exists as to whether he was ever 9 notified of this denial. AR 85. Leveque alleged disability based on diabetes and neuropathy in the 2012 application. AR 112. The SSA initially denied him benefits on 11 United States District Court Northern District of California 10 August 17, 2012, and on reconsideration on March 26, 2013. AR 112, 123. Leveque then 12 requested a hearing before an ALJ, which was held on December 19, 2013, before ALJ 13 Betty Roberts Barbeito. AR 20, 129. The ALJ found Leveque not disabled in a decision 14 dated February 14, 2014, based on a finding he could perform sedentary work. AR 27. 15 In her analysis, the ALJ used a five-step evaluation process. AR 20. If the ALJ 16 found Leveque disabled or not disabled at any of those steps, the evaluation stopped. AR 17 21. At step one, the ALJ found Leveque had not engaged in substantial gainful activity 18 since filing his application. AR 22. At step two, the ALJ found Leveque had the severe 19 impairments of “hypertension, diabetes mellitus, type II, with diabetic ketoacidosis and 20 diabetic neuropathy; and polysubstance abuse with physiological dependence.” AR 22. 21 At step three, the ALJ found Leveque did “not have an impairment or combination 22 of impairments that meets or medically equals the severity of one of the listed impairments 23 [“the listings”] in 20 CFR Part 404, Subpart P, Appendix 1.” AR 22. The ALJ considered 24 listing 3.09 for cor pulmonale secondary to chronic pulmonary vascular hypertension, 25 11.14 for peripheral neuropathies, and 12.09 for substance addiction disorders, but found 26 Leveque’s impairments did not singly or in combination equal a listing. AR 22. The ALJ 27 then noted there was no listing for diabetes mellitus, but she had considered this endocrine 28 disorder under other listings. AR 23. At step four, the ALJ found Leveque could not Case No.15-cv-03851 NC 2 1 perform past relevant work. AR 25. 2 At step five, however, the ALJ found Leveque could perform other work in the 3 national economy. AR 26. Specifically, Leveque could perform sedentary work with 4 some exceptions. AR 23. At the hearing, vocational expert Thomas Linvill testified that 5 Leveque could perform sedentary work, including as an escort vehicle driver. AR 26. 6 In concluding that Leveque could perform other work, the ALJ first considered whether Leveque had an “underlying medically determinable physical or mental 8 impairment … that could reasonably be expected to produce the claimant’s pain or other 9 symptoms;” and second, the “intensity, persistence, and limiting effects of the claimant’s 10 symptoms to determine the extent to which they limits the claimant’s functioning.” AR 11 United States District Court Northern District of California 7 23. ALJ Barbeito found Leveque partially credible due to inconsistencies in the record. 12 AR 23. According to the ALJ, these inconsistencies suggested that contrary to Leveque’s 13 allegations, he could perform a “wide range” of everyday activities. AR 23-24. As a 14 result, the ALJ found that Leveque’s testimony about the intensity, persistence, and 15 limiting effects of his symptoms was not fully credible. AR 24. 16 In considering medical evidence, ALJ Barbeito summarized medical records from 17 Hazel Hawkins Memorial Hospital, which showed Leveque’s treatment for “uncontrolled 18 diabetes mellitus with associated diabetic ketoacidosis with diabetic neuropathy.” AR 24. 19 The ALJ noted records of a nerve conduction study and performed electromyography, 20 suggesting “sensori-motor polyneuropathy.” AR 24. ALJ Barbeito also discussed treating 21 physician Dr. Jiwi Sun’s medical source statement, which she gave little weight to. AR 22 24. Dr. Sun opined that Leveque could “lift and/or carry 20 pounds rarely and up to 10 23 pounds frequently, stand and/or walk for less than two hours in an eight-hour workday, and 24 sit for less than two hours in an eight-hour work day, with some postural and manipulative 25 limitations.” AR 24. The ALJ found Dr. Sun’s opinion “inconsistent with the relevant 26 medical evidence of record, including longitudinal records from Hazel Hawkins Memorial 27 Hospital at Exhibits 2F, 8F, and 9F.” AR 24. 28 Leveque sought review of the ALJ’s decision, but the SSA Appeals Council denied Case No.15-cv-03851 NC 3 1 his request for review. AR 1. The Appeals Council’s denial made ALJ Barbeito’s 2 decision the final decision of the SSA Commissioner. AR 1. Both parties consented to the 3 jurisdiction of a magistrate judge. Dkt. No. 9, 13. 4 II. LEGAL STANDARD 5 A district court has the “power to enter, upon the pleadings and transcript of the 6 record, a judgment affirming, modifying, or reversing the decision of the Commissioner of 7 Social Security, with or without remanding the case for a rehearing.” 42 U.S.C. § 405(g). 8 The decision of the Commissioner should only be disturbed if it is not supported by substantial evidence or if it is based on legal error. Burch v. Barnhart, 400 F.3d 676, 679 10 (9th Cir. 2005). Substantial evidence is evidence that a reasonable mind would accept as 11 United States District Court Northern District of California 9 adequate to support the conclusion. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 12 2005) (“[It] is more than a mere scintilla but less than a preponderance.”). Where evidence 13 is susceptible to more than one rational interpretation, the ALJ’s decision should be 14 upheld. Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir.1995). An ALJ’s decision 15 will not be reversed for harmless error. Burch, 400 F.3d at 679; Curry v. Sullivan, 925 16 F.2d 1127, 1131 (9th Cir. 1990). 17 III. DISCUSSION 18 Leveque alleges the following legal errors: (1) the ALJ did not properly analyze his 19 primary impairment, diabetes mellitus, type I under the listings; (2) the ALJ found 20 Leveque’s testimony lacked credibility and did not consider records regarding a side effect 21 of his medication; (3) the ALJ dismissed treating physician Dr. Sun’s opinion; and (4) 22 Leveque never received written notice of the 2011 denial for benefits. Dkt. No. 22. 23 A. The ALJ Properly Considered Leveque’s Impairments. 24 Leveque argues the ALJ’s failure to consider his diabetes mellitus, type I, as a 25 listing is reversible error. Dkt. No. 22 at 9-10. Colvin contends Leveque “misrepresented” 26 the ALJ’s finding, and that she did refer to the relevant listing, Listing 9.00, in deciding if 27 Leveque’s diabetes was of listing-level severity. Dkt. No. 23 at 4. The ALJ stated: 28 “[t]here is no listing specifically addressing diabetes mellitus, however, the claimant’s Case No.15-cv-03851 NC 4 1 endocrine disorder was considered under the listings for other body systems.” AR 23. The 2 text of Listing 9.00, which includes diabetes mellitus types I and II as endocrine disorders, 3 states: “We evaluate impairments that result from endocrine disorders under the listings for 4 other body systems.” Listing 9.00(B). By considering Leveque’s diabetes mellitus under 5 the listings for other systems such as 3.09, 11.14, and 12.09, the ALJ properly applied the 6 requirements of that listing. AR 22; see Listing 9.00(B)(5). 7 Furthermore, to the extent the ALJ incorrectly categorized Leveque’s diabetes 8 mellitus as type II rather than type I, Leveque failed to identify how an alternative finding 9 would have affected the outcome of this case. Furthermore, Colvin points out that Dr. Genest, the medical testifying expert, found Leveque did not meet any listing. Dkt. No. 23 11 United States District Court Northern District of California 10 at 4. Therefore, while the Court is concerned by the ALJ’s mistake, it is not reversible 12 error. Burch, 400 F.3d at 679. 13 14 15 B. The ALJ’s Finding That Leveque’s Symptom Testimony Was Less Than Fully Credible Is Not Supported by Substantial Evidence. Leveque next argues the ALJ should have credited his symptom testimony because 16 his daily activities were limited by his symptoms, and “significant medical evidence” 17 supported Leveque’s testimony. Dkt. No. 22 at 10. Colvin argues the ALJ properly found 18 the activities Leveque engaged in undermined his believability. Dkt. No. 23 at 6-7. 19 An ALJ must use a two-step analysis to determine a claimant’s credibility as to 20 subjective pain or symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). An 21 ALJ first decides if the claimant presented “objective medical evidence of an underlying 22 impairment which could reasonably be expected to produce the pain or other symptoms 23 alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (internal quotations 24 omitted). If the claimant meets the first test, and the ALJ finds no malingering, the 25 claimant’s testimony regarding the severity of symptoms may only be rejected for 26 “specific, clear and convincing reasons.” Id. Where a credibility determination is a 27 “critical factor” in the ALJ’s decision, the ALJ must make an “explicit credibility finding” 28 that is “supported by a specific, cogent reason for the disbelief.” Rashad v. Sullivan, 903 Case No.15-cv-03851 NC 5 1 F.2d 1229, 1231 (9th Cir. 1990). “In weighing a claimant’s credibility, the ALJ may 2 consider his reputation for truthfulness, inconsistencies either in his testimony or between 3 his testimony and his conduct, his daily activities, his work record, and testimony from 4 physicians and third parties concerning the nature, severity, and effects of the symptoms of 5 which he complains.” Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). If a 6 reviewing court agrees that the ALJ’s finding is so supported, it must be given great 7 weight. Rashad, 903 F.3d at 1231. 8 9 Here, the ALJ found inconsistencies in the record regarding Leveque’s ability to carry out activities of daily living. AR 23. Specifically, the ALJ found Leveque’s symptom testimony about the effects of high blood pressure, diabetic neuropathy, and 11 United States District Court Northern District of California 10 recurrent diarrhea undermined by his ability to prepare basic meals, launder clothes, and 12 grocery shop “without significant issue.” AR 23-24. These inconsistencies led the ALJ to 13 conclude Leveque’s testimony and statements about the “intensity, persistence and limiting 14 effects” of his symptoms were not fully credible. AR 23-24. In support of this conclusion, 15 the ALJ specifically referred to Leveque’s self-reported Exertion Questionnaire, detailing 16 his symptoms and daily activities. AR 24, 190-92. 17 Leveque argues, however, that the Exertion Questionnaire states numerous ways his 18 symptoms affected his daily life. Dkt. No. 22 at 10; AR 190-92. For example, with 19 respect to laundering clothes, he stated he laundered clothes “about once a week,” and the 20 duration for completing that task depended on how he felt. AR 191. While grocery 21 shopping, Leveque reported his “muscles feel sore & cramped,” and that “[s]ome days I 22 can[’]t walk in the stores because the pain is [too] much.” AR 190. As to lifting and 23 carrying items, he stated he could lift and carry groceries and laundry, but “not often” and 24 “not far.” AR 191; see also AR 77 (Leveque’s hearing testimony regarding lifting 25 groceries). Lastly, Leveque reported that his completion of chores depended on his pain. 26 AR 192. In addition, Leveque refers to the results of the electromyograms and 27 electrocardiograms as evidencing his symptoms. See AR 221-27, 232, 240-42. As for the 28 electromyogram, Dr. Helman noted findings consistent with sensori-motor Case No.15-cv-03851 NC 6 1 polyneuropathy. AR 223. Regarding the electrocardiograms, Leveque cites to no authority 2 or medical record in the administrative record indicating how an electrocardiogram 3 supported his symptom testimony. See Dkt. No. 22 at 10. 4 The Court finds the ALJ’s credibility determination of Leveque was not supported 5 by “specific, cogent reason[s] for … disbelief,” as to the reasons stated. Rashad, 903 F.2d 6 at 1231. Yet there were inconsistencies in Leveque’s testimony. For example, Leveque 7 testified that the last time he ingested methamphetamine was in 2011, but in April 2013 8 methamphetamine was found in his system. AR 73, 361. In addition, Leveque testified at 9 the hearing that he only drove “once in a great while just to, to the store and back,” and that those drives last “[m]aybe like two minutes there and two minutes back.” AR 77. In 11 United States District Court Northern District of California 10 Leveque’s Exertion Questionnaire, however, he reported being able to drive 15 miles to go 12 grocery shopping, and that he went grocery shopping about once a week. AR 191. The 13 ALJ could have cited to such inconsistencies in the record, but she did not. 14 On review, the district court may only rely on the reasons actually given by the ALJ 15 for disbelieving a claimant. See Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001); 16 Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). In the Exertion Questionnaire, 17 Leveque noted a number of ways his symptoms affected his completion of activities. AR 18 190-92. Leveque’s statements undermine the ALJ’s usage of this document to discredit his 19 claims about his symptoms. AR 190-92. Where an ALJ cites to only to one source in 20 finding a claimant not fully credible, and that source repeatedly undermines the ALJ’s 21 conclusion, the Court cannot find the ALJ’s decision supported by substantial evidence. 22 The Court instructs the ALJ on remand to reconsider Leveque’s symptom testimony, and 23 instructs the ALJ to express any inconsistencies found in the record or in hearing 24 testimony. 25 26 27 28 1. The ALJ Properly Did Not Discuss Dizziness As A Side Effect Of Leveque’s Medications. Leveque alleges the ALJ erred in not mentioning the effects of his medication, gabapentin, in her decision. Dkt. No. 22 at 12. Colvin argues the ALJ evaluated the Case No.15-cv-03851 NC 7 1 record as a whole, and her findings about Leveque’s limitations considered his pain and 2 other symptoms, including any side effects. Dkt. No. 23 at 7. 3 In analyzing symptoms related to a medical impairment, the SSA’s regulations 4 direct an ALJ to consider “[t]he type, dosage, effectiveness, and side effects of any 5 medication [the claimant] take[s] or ha[s] taken to alleviate or other symptoms.” 20 C.F.R. 6 § 404.1529(c)(3)(iv); Berry v. Astrue, 622 F.3d 1228, 1235 (9th Cir. 2010). If an ALJ 7 disregards a claimant’s testimony regarding the “subjective limitations of side effects,” the 8 ALJ must support the decision with specific findings justifying that decision. Varney v. 9 Sec’y of Health & Human Servs., 846 F.2d 581, 585 (9th Cir. 1988) (remanding where no 10 such findings were made) (citing Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986)). United States District Court Northern District of California 11 Leveque argues the opinion of Dr. Sun, along with medical records and other 12 documents note dizziness as a side effect of his medication. Dkt. No. 22 at 11. Leveque 13 correctly notes that the record contains references to dizziness, and that Dr. Sun listed 14 dizziness as a symptom resulting from his medication. See id. However, Leveque does not 15 indicate, and the Court did not find evidence in the medical records substantiating this 16 claim other than Dr. Sun’s statement. Leveque also did not cite dizziness as a side effect 17 when asked at the hearing. AR 79. Indeed, Dr. Sun’s statement is the only time dizziness 18 is mentioned as a factor that might limit Leveque’s ability to work. AR 335. 19 Here, the Court finds the ALJ made no error by not discussing the potential side 20 effect of dizziness because dizziness was never explicitly listed in the record as a factor 21 affecting Leveque’s ability to work. Maguire v. Astrue, No. EDCV07-1047 AGR, 2008 22 WL 4793668, at *2 (C.D. Cal. Oct. 31, 2008) (finding no error where ALJ did not address 23 side effects of medication in her decision, where no testimony or other evidence existed 24 that side effects interfered with claimant’s ability to work). Leveque did not testify that 25 dizziness was a side effect limiting his ability to work, and Dr. Sun’s one word reference to 26 dizziness as a side effect of Leveque’s medications that “may” have implications for 27 Leveque’s employment is insufficient. AR 335. 28 Case No.15-cv-03851 NC 8 1 2 C. The ALJ Improperly Gave Little Weight To Dr. Sun’s Medical Source Statement. Leveque next argues the ALJ erred in rejecting Dr. Sun’s medical source statement 3 because no medical records contradicted the doctor’s statement, and no medical records 4 supported the ALJ’s residual functional capacity determination. Dkt. No. 22 at 11. Colvin 5 argues the ALJ “properly evaluated conflicting medical evidence by summarizing it in 6 detail and interpreting it.” Dkt. No. 23 at 5. 7 In social security disability cases, “[t]he ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Generally, more 9 weight is given to the opinion of a treating physician than to the opinion of a non-treating 10 physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996). 11 United States District Court Northern District of California 8 The Commissioner must provide “clear and convincing” reasons for rejecting the un- 12 contradicted opinion of a treating physician. Id. Furthermore, an ALJ may reject a 13 treating physician’s opinion, even if it is not contradicted, if it provides clear and 14 convincing reasons for doing so. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 15 “The ALJ can meet this burden by setting out a detailed and thorough summary of the facts 16 and conflicting medical evidence, stating [her] interpretation thereof, and making 17 findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). The ALJ need not 18 accept a treating physician’s opinion if it is “brief, conclusory, and inadequately supported 19 by clinical findings.” Id. 20 The ALJ gave little weight to the medical source statement of Dr. Jiwu Sun, one of 21 Leveque’s treating physicians. AR 24. As previously mentioned, Dr. Sun opined that 22 Leveque could “lift and/or carry 20 pounds rarely and up to 10 pounds frequently, stand 23 and/or walk for less than two hours in an eight-hour workday, and sit for less than two 24 hours in an eight-hour work day, with some postural and manipulative limitations.” AR 25 24. In other words, Dr. Sun found Leveque’s impairments severe enough to find him 26 disabled. AR 335-39. The ALJ found Dr. Sun’s opinion “inconsistent with the relevant 27 medical evidence of record, including longitudinal records from Hazel Hawkins Memorial 28 Hospital at Exhibits 2F, 8F, and 9F.” AR 24. Instead, the ALJ found Leveque could Case No.15-cv-03851 NC 9 1 perform sedentary work, with limitations. AR 24. 2 The Commissioner must provide “clear and convincing” reasons for rejecting the un-contradicted opinion of a treating physician. Lester, 81 F.3d at 830. In explaining her 4 decision to reject Dr. Sun’s statement, the ALJ found that “the various medical records 5 referenced herein corroborate one another and are not inconsistent with” Leveque being 6 able to perform sedentary work. AR 24. The ALJ continued: “To the extent ‘acceptable 7 medical sources,’ other than Dr. Sun, offer opinions, they are afforded significant weight 8 given the treating relationship between those sources and the claimant.” AR 24. The ALJ 9 did not identify who the other acceptable treating medical sources were, or which records 10 undermined Dr. Sun’s statement other than by listing the 97-page Exhibit 2F, the 27-page 11 United States District Court Northern District of California 3 Exhibit 8F, and 38-page Exhibit 9F as contradictory evidence. AR at 24, 228-324, 345- 12 409. A blanket statement discrediting Dr. Sun’s opinion as inconsistent with the record 13 must be more “detailed and thorough” than a cursory reference, without context or detail, 14 to 162 pages worth of medical records. See Thomas, 278 F.3d at 957. Nowhere does the 15 ALJ discuss specific medical evidence contradicting Dr. Sun’s statement. Such reasoning 16 is neither clear nor convincing. Lester, 81 F.3d at 830. Accordingly, the Court finds the 17 ALJ erred in its reasoning for giving little weight to Dr. Sun’s medical source statement. 18 D. The Court Need Not Reopen the 2011 Denial for Benefits. 19 Finally, Leveque argues he has a right to have a previous denial of benefits reopened 20 because he was never given written notice of the denial. Dkt. No. 22 at 12. According to 21 Leveque, this failure to notify him of his right to have the claim reopened “was an error of 22 law requiring reversal.” Id. Colvin argues this claim was waived by Leveque’s failure to 23 raise it at his hearing, or in the alternative, that the Court lacks subject matter jurisdiction 24 to hear it because Leveque does not state a colorable constitutional claim. Dkt. No. 23 at 25 7-8. 26 Normally, federal courts only exercise judicial review over social security cases 27 where there is a “final decision of the Commissioner of Social Security made after a 28 hearing.” 42 U.S.C. § 405(g). Where the requirements of § 405(g) do not exist, a federal Case No.15-cv-03851 NC 10 court has subject matter jurisdiction only if a claimant asserts a “colorable constitutional 2 claim.” Califano v. Sanders, 430 U.S. 99, 109 (1977). An applicant for social security 3 benefits has a protected property interest in those benefits, and so courts consider what 4 process is due. Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990). Such process 5 must be “reasonably calculated to afford parties their right to present objections.” Id. 6 (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). The 7 Ninth Circuit previously found a colorable claim where denial of disability benefits notices 8 did not specify how a claimant could appeal a decision, and were “misleading.” Id. Later, 9 the Ninth Circuit found a colorable constitutional claim meriting the reopening of a case 10 because, at the time of the denial, a claimant suffered from a mental impairment and was 11 United States District Court Northern District of California 1 not represented by counsel. Udd v. Massanari, 245 F.3d 1096, 1099 (9th Cir. 2001). 12 Here, Leveque applied for disability benefits on June 20, 2011, alleging an onset 13 date of October 31, 2009. AR 85. The SSA initially denied Leveque benefits on October 14 31, 2011. AR 85. Leveque notes there is no indication he was notified of his right to 15 reopen his case and appeal the denial. Dkt. No. 22 at 12. In reviewing the record, the 16 Court has not found any mailing notifying Leveque of the 2011 denial, in contrast with the 17 evidence of the denial notice of Leveque’s 2012 application, which is the basis of this 18 appeal. AR 112-16. However, no complaint about this lack of notice was made at the 19 2013 hearing, nor in Attorney Weathered’s appeal brief to the SSA Appeals Council. AR 20 210-11. The Court notes that Attorney Weathered represents Leveque in this motion, and 21 that this is the first time this issue has been raised. See Dkt. No. 22. 22 The Court rejects Leveque’s reopening argument, and notes that claimants must raise 23 issues at their administrative hearings to preserve them for appeal in federal court. Meanel 24 v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999), as amended (June 22, 1999). The Court also 25 rejects Leveque’s unsupported contention that the alleged failure to notify him of the 2011 26 denial somehow merits “reversal” of the ALJ’s decision in this case. Dkt. No. 22 at 12. 27 Though the Court recognizes that Leveque may not have been notified of the 2011 denial 28 of benefits, there are no allegations that he was mentally ill, Udd, 245 F.3d at 1099, and he Case No.15-cv-03851 NC 11 1 has been afforded multiple opportunities to present this issue prior to this motion. 2 Leveque, a represented claimant, had the opportunity to argue this issue at an 3 administrative hearing and before the Appeals Council. It is not now unfair to refuse to 4 hear this claim raised for the first time on appeal. 5 IV. CONCLUSION 6 The Court finds that as to the ALJ’s credibility determination of Leveque and the 7 weight given to a Dr. Sun’s opinion, the ALJ’s opinion was not supported by substantial 8 evidence in the record. Thus, the Court GRANTS in part Leveque’s motion for summary 9 judgment and DENIES in part the Commissioner’s motion for summary judgment and 10 REMANDS this case for further administrative proceedings consistent with this order. United States District Court Northern District of California 11 IT IS SO ORDERED. 12 13 Dated: September 9, 2016 14 _____________________________________ NATHANAEL M. COUSINS United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No.15-cv-03851 NC 12