Gronau v. Kijakazi, No. 1:2020cv03207 - Document 26 (E.D. Wash. 2022)

Court Description: ORDER GRANTING 16 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING 24 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. This matter is REVERSED and REMANDED to the Commissioner of Social Security for further proceedings. This file is CLOSED. Signed by Judge Mary K. Dimke. (LTR, Case Administrator)
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Gronau v. Kijakazi Doc. 26 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.854 Page 1 of 27 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 May 10, 2022 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 TASHIA G.,1 8 No. 1:20-cv-03207-MKD Plaintiff, 9 vs. 10 KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL 11 SECURITY,2 12 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 16, 24 Defendant. 13 14 1 To protect the privacy of plaintiffs in social security cases, the undersigned 15 identifies them by only their first names and the initial of their last names. See 16 LCivR 5.2(c). 17 2 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 18 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo 19 Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No further 20 action need be taken to continue this suit. See 42 U.S.C. § 405(g). 2 ORDER - 1 Dockets.Justia.com Case 1:20-cv-03207-MKD 1 ECF No. 26 filed 05/10/22 PageID.855 Page 2 of 27 Before the Court are the parties’ cross-motions for summary judgment. ECF 2 Nos. 16, 24. The Court, having reviewed the administrative record and the parties’ 3 briefing, is fully informed. For the reasons discussed below, the Court grants 4 Plaintiff’s motion, ECF No. 16, and denies Defendant’s motion, ECF No. 24. 5 6 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383(c)(3). 7 8 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 9 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 10 limited; the Commissioner’s decision will be disturbed “only if it is not supported 11 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 12 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 13 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 14 (quotation and citation omitted). Stated differently, substantial evidence equates to 15 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 16 citation omitted). In determining whether the standard has been satisfied, a 17 reviewing court must consider the entire record as a whole rather than searching 18 for supporting evidence in isolation. Id. 19 In reviewing a denial of benefits, a district court may not substitute its 20 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 2 ORDER - 2 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.856 Page 3 of 27 1 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 2 rational interpretation, [the court] must uphold the ALJ’s findings if they are 3 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 4 F.3d 1104, 1111 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. 5 §416.902(a). Further, a district court “may not reverse an ALJ’s decision on 6 account of an error that is harmless.” Id. An error is harmless “where it is 7 inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 8 (quotation and citation omitted). The party appealing the ALJ’s decision generally 9 bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 10 396, 409-10 (2009). 11 12 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 13 the meaning of the Social Security Act. First, the claimant must be “unable to 14 engage in any substantial gainful activity by reason of any medically determinable 15 physical or mental impairment which can be expected to result in death or which 16 has lasted or can be expected to last for a continuous period of not less than twelve 17 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 18 “of such severity that he is not only unable to do his previous work[,] but cannot, 19 considering his age, education, and work experience, engage in any other kind of 20 2 ORDER - 3 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.857 Page 4 of 27 1 substantial gainful work which exists in the national economy.” 42 U.S.C. § 2 1382c(a)(3)(B). 3 The Commissioner has established a five-step sequential analysis to 4 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 5 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 6 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 7 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 8 C.F.R. § 416.920(b). 9 If the claimant is not engaged in substantial gainful activity, the analysis 10 proceeds to step two. At this step, the Commissioner considers the severity of the 11 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 12 “any impairment or combination of impairments which significantly limits [his or 13 her] physical or mental ability to do basic work activities,” the analysis proceeds to 14 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 15 this severity threshold, however, the Commissioner must find that the claimant is 16 not disabled. Id. 17 At step three, the Commissioner compares the claimant’s impairment to 18 severe impairments recognized by the Commissioner to be so severe as to preclude 19 a person from engaging in substantial gainful activity. 20 C.F.R. § 20 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 2 ORDER - 4 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.858 Page 5 of 27 1 enumerated impairments, the Commissioner must find the claimant disabled and 2 award benefits. 20 C.F.R. § 416.920(d). 3 If the severity of the claimant’s impairment does not meet or exceed the 4 severity of the enumerated impairments, the Commissioner must pause to assess 5 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 6 defined generally as the claimant’s ability to perform physical and mental work 7 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 8 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 9 At step four, the Commissioner considers whether, in view of the claimant’s 10 RFC, the claimant is capable of performing work that he or she has performed in 11 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 12 capable of performing past relevant work, the Commissioner must find that the 13 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 14 performing such work, the analysis proceeds to step five. 15 At step five, the Commissioner considers whether, in view of the claimant’s 16 RFC, the claimant is capable of performing other work in the national economy. 17 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 18 must also consider vocational factors such as the claimant’s age, education and 19 past work experience. Id. If the claimant is capable of adjusting to other work, the 20 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 2 ORDER - 5 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.859 Page 6 of 27 1 416.920(g)(1). If the claimant is not capable of adjusting to other work, the 2 analysis concludes with a finding that the claimant is disabled and is therefore 3 entitled to benefits. Id. 4 The claimant bears the burden of proof at steps one through four above. 5 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 6 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 7 capable of performing other work; and (2) such work “exists in significant 8 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 9 700 F.3d 386, 389 (9th Cir. 2012). 10 ALJ’S FINDINGS 11 On October 18, 2017, Plaintiff applied for Title XVI supplemental security 12 income benefits alleging a disability onset date of October 1, 2017.3 Tr. 15, 114, 13 14 15 3 Plaintiff previously applied for Title XVI benefits on February 3, 2014; the 16 application was denied and resulted in a September 15, 2016 unfavorable decision. 17 Tr. 92-113. At the 2020 hearing the ALJ found that although the prior unfavorable 18 ALJ decision created a presumption of continuing non-disability under Chavez, the 19 presumption had been rebutted because of a change in Plaintiff’s medical or 20 vocational status since the prior decision. Tr. 15; see Chavez v. Bowen, 844 F.2d 2 ORDER - 6 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.860 Page 7 of 27 1 226-31. The application was denied initially, and on reconsideration. Tr. 146-61. 2 Plaintiff appeared before an administrative law judge (ALJ) on January 16, 2020. 3 Tr. 73-91. On March 11, 2020, the ALJ denied Plaintiff’s claim. Tr. 12-38. 4 At step one of the sequential evaluation process, the ALJ found Plaintiff has 5 not engaged in substantial gainful activity since October 18, 2017. Tr. 17. At step 6 two, the ALJ found that Plaintiff has the following severe impairments: obesity, 7 anemia, hypertension, status-post iliac stent and anterior and posterior tibial artery 8 angioplasty, depression, anxiety, personality disorder, and methamphetamine 9 addiction. Tr. 18. 10 At step three, the ALJ found Plaintiff does not have an impairment or 11 combination of impairments that meets or medically equals the severity of a listed 12 impairment. Tr. 19-21. The ALJ then concluded that Plaintiff has the RFC to 13 perform sedentary work with the following limitations: 14 15 16 Her ability to stand and walk is limited to two hours in an eight-hour workday with normal breaks. She can occasionally climb ladders, ropes, and scaffolds. She must avoid concentrated exposure to extreme heat, humidity, or hazards. She can engage in simple, routine 3-step tasks with no public contact but she would be able to briefly interact with others in a work setting. 17 18 691, 693 (9th Cir. 1998); see also Acquiescence Ruling (AR) 97-4(9), available at 19 1997 WL 742758 at *3. 20 2 ORDER - 7 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.861 Page 8 of 27 1 Tr. 21. 2 At step four, the ALJ found Plaintiff has no past relevant work. Tr. 33. At 3 step five, the ALJ found that, considering Plaintiff’s age, education, work 4 experience, RFC, and testimony from the vocational expert, there were jobs that 5 existed in significant numbers in the national economy that Plaintiff could perform, 6 such as, assembler (button and notion); touch-up screener (printed circuit board 7 assembly); and toy stuffer. Tr. 34. Therefore, the ALJ concluded Plaintiff was not 8 under a disability, as defined in the Social Security Act, from the date of the 9 application through the date of the decision. Id. 10 On September 21, 2020, the Appeals Council denied review of the ALJ’s 11 decision, Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for 12 purposes of judicial review. See 42 U.S.C. § 1383(c)(3). 13 ISSUES 14 Plaintiff seeks judicial review of the Commissioner’s final decision denying 15 her supplemental security income benefits under Title XVI of the Social Security 16 Act. Plaintiff raises the following issues for review: 17 18 19 20 2 ORDER - 8 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.862 Page 9 of 27 1 1. Whether the ALJ conducted a proper step-three analysis4; 2 2. Whether the ALJ properly developed the record; 3 3. Whether the ALJ conducted a proper step-two analysis; 4 4. Whether the ALJ properly evaluated the medical opinion evidence; and 5 5. Whether the ALJ properly evaluated Plaintiff’s symptom claims. 6 ECF No. 16 at 2. 7 DISCUSSION 8 A. Step Three 9 Plaintiff contends the ALJ erred at step three by failing to properly consider 10 Plaintiff’s heart disorder. ECF No. 16 at 12-15. At step three, the ALJ must 11 determine if a claimant’s impairments meet or equal a listed impairment. 20 12 C.F.R. § 416.920(a)(4)(iii). 13 The Listing of Impairments “describes for each of the major body systems 14 impairments [which are considered] severe enough to prevent an individual from 15 doing any gainful activity, regardless of his or her age, education, or work 16 17 4 Plaintiff makes arguments the ALJ erred at step two and three under the heading 18 “The ALJ erred by not properly assessing the heart disorder.” ECF No. 16 at 1219 15. The Court acknowledges the arguments for both steps, noting the issues are 20 somewhat intertwined, but separates them here for ease of discussion. 2 ORDER - 9 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.863 Page 10 of 27 1 experience.” 20 C.F.R. § 416.925. “Listed impairments are purposefully set at a 2 high level of severity because ‘the listings were designed to operate as a 3 presumption of disability that makes further inquiry unnecessary.’” Kennedy v. 4 Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (citing Sullivan v. Zebley, 493 U.S. 5 521, 532 (1990)). “Listed impairments set such strict standards because they 6 automatically end the five-step inquiry, before residual functional capacity is even 7 considered.” Kennedy, 738 F.3d at 1176. If a claimant meets the listed criteria for 8 disability, she will be found to be disabled. 20 C.F.R. § 416.920(a)(4)(iii). 9 “To meet a listed impairment, a claimant must establish that he or she meets 10 each characteristic of a listed impairment relevant to his or her claim.” Tackett, 11 180 F.3d at 1099 (emphasis in original); 20 C.F.R. § 416.925(d). “To equal a 12 listed impairment, a claimant must establish symptoms, signs and laboratory 13 findings ‘at least equal in severity and duration’ to the characteristics of a relevant 14 listed impairment ….” Tackett, 180 F.3d at 1099 (emphasis in original) (quoting 15 20 C.F.R. § 404.126(a)); 20 C.F.R. § 416.926(a). “If a claimant suffers from 16 multiple impairments and none of them individually meets or equals a listed 17 impairment, the collective symptoms, signs and laboratory findings of all of the 18 claimant’s impairments will be evaluated to determine whether they meet or equal 19 the characteristics of any relevant listed impairment.” Id. However, “[m]edical 20 equivalence must be based on medical findings,” and “[a] generalized assertion of 2 ORDER - 10 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.864 Page 11 of 27 1 functional problems is not enough to establish disability at step three.” Id. at 1100 2 (quoting 20 C.F.R. § 404.1526(a)); 20 C.F.R. § 416.926(a). 3 The claimant bears the burden of establishing her impairment (or 4 combination of impairments) meets or equals the criteria of a listed impairment. 5 Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). “An adjudicator’s 6 articulation of the reason(s) why the individual is or is not disabled at a later step in 7 the sequential evaluation process will provide rationale that is sufficient for a 8 subsequent reviewer or court to determine the basis for the finding about medical 9 equivalence at step 3.” SSR 17-2P, 2017 WL 3928306, at *4 (effective March 27, 10 2017). 11 The ALJ found that Plaintiff’s impairments and combinations of 12 impairments did not meet or equal any listings. Tr. 19. In terms of Plaintiff’s 13 cardiovascular impairment(s), the ALJ found “[Plaintiff’s] cardiovascular 14 condition fails to meet or medically equal listing 4.00 … [t]he medical record fails 15 to establish evidence of any cardiovascular system deficits that rise to listing 16 level.” Id. The ALJ lists a number of the cardiovascular listings, noting 17 “[s]specifically, the record fails to demonstrate evidence of listing level chronic 18 heart failure (4.02) … [through] peripheral arterial disease (4.12). Therefore, I find 19 that the [Plaintiff’s] cardiovascular condition fail[s] to meet or medically equal 20 listing level severity.” Id. The ALJ also briefly discusses the requirements for 2 ORDER - 11 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.865 Page 12 of 27 1 listing 4.02A and B (chronic heart failure) in regard to hypertension, finding 2 “[Plaintiff’s] hypertension does not meet or medically equal section 4.02 or 4.04” 3 because the record “does not demonstrate evidence of systolic or diastolic failure 4 4.02(A); along with persistent symptoms of heart failure limiting the ability to 5 independently initiate, sustain, or complete activities or daily living ….” Tr. 20. 6 The ALJ also lists some of the B and C requirements of listings 4.02 and 4.04, 7 concluding “therefore I find that the [Plaintiff’s] hypertension fails to meet or 8 medically equal listing level severity.” Id. 9 Plaintiff contends the ALJ failed to appropriately consider the complete 10 evidence concerning Plaintiff’s heart impairment(s), including evidence of listing 11 level chronic heart failure under listing 4.02. ECF No. 16 at 13-15. Plaintiff also 12 argues that the ALJ failed to appropriately assess the extent of her cardiovascular 13 disorder, as revealed during hospitalization for a 2019 ischemic event. Id. 14 While the ALJ was correct to discuss hypertension, as under the 15 cardiovascular listings it must be discussed in relation to the body system it affects, 16 See 20 C.F.R. § 404, Subpt. P, App. 1, § 4.00H1, this is the only discussion the 17 ALJ provides of listing 4.02 for chronic heart failure; Plaintiff points out, however, 18 that an echocardiogram during her August 2019 hospitalization showed cardiac 19 findings including moderately to severely dilated left ventricle, with left ventricular 20 end diastolic diameter (LVEDD) of 6.5 cm, which appears, in part, to meet the 2 ORDER - 12 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.866 Page 13 of 27 1 requirements of listing 4.02A,5 for systolic failure, along with findings of grade II 2 diastolic dysfunction. ECF No. 16 at 13; Tr. 647. Plaintiff contends that Listing 3 4.02B1 is met due to limitations in the ability to independently initiate, sustain, or 4 complete activities of daily living, pointing out that Plaintiff alleged her known 5 heart condition left her physically and mentally exhausted to the point of being 6 bedridden and that she often slept too much. ECF No. 16 at 14. Defendant 7 acknowledges Plaintiff’s contention that recent exams satisfy listing 4.02B1 but 8 argues Plaintiff cannot meet her burden of showing prejudicial error at step three 9 because Plaintiff “has made no effort to show that she met any of the other parts of 10 listing 4.02, including listing 4.02(A).” ECF No. 24 at 4-5. However, as discussed 11 supra, Plaintiff points out a 2019 echocardiogram showed LVEDD findings at the 12 level required by 4.02A. This imaging also shows the “symptoms and signs 13 described in 4.00D2,” as required by listing 4.02, with “cardiomegaly or 14 15 5 Listing 4.02A requires chronic heart failure while on a regimen of prescribed 16 treatment, with symptoms and signs described in 4.00D2 … with medically 17 documented presence of the following: 1. systolic failure … with left ventricular 18 end diastolic dimensions greater than 6.0 cm or ejection fraction of 30 percent of 19 less during a period of stability (not during an episode of acute heart failure) ….” 20 See 20 C.F.R. § 404, Subpt. P, App. 1, § 4.02A1. 2 ORDER - 13 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.867 Page 14 of 27 1 ventricular dysfunction … present and demonstrated on appropriate medically 2 acceptable imagining” (echocardiogram) showing “[a]n LVEDD greater than 6.0 3 cm … measured during a period of stability (that is, not during an episode of acute 4 heart failure) [which] may be associated with systolic failure.” See 20 C.F.R. § 5 404, Subpt. P, App. 1, § 4.02D2. While Plaintiff has not shown that she was on a 6 regimen of prescribed treatment as required by listing 4.02, it appears to the Court 7 that more than one cardiovascular listing may be involved in her case, as indicated 8 by her hospitalization and treatment for arterial embolism in her leg/threatened 9 limb ischemia due to occlusive peripheral arterial disease. See, e.g., Tr. 452, 518. 10 As Plaintiff contends the ALJ failed to appropriately assess the extent of her 11 cardiovascular disorder as revealed during hospitalization for a 2019 ischemic 12 event, including imaging showing listing level findings, the Court finds Plaintiff 13 has met her burden by showing there is evidence she may meet or equal a 14 cardiovascular listing, including listing 4.02. 15 Based on the August 2019 echocardiogram, which the ALJ did not discuss at 16 step three or elsewhere in the decision, the ALJ erred in finding “the record does 17 not demonstrate evidence of systolic or diastolic failure (4.02(A)).” See Tr. 20. 18 Further, as Plaintiff points out, there has been no medical assessment of the 19 medical evidence relating to Plaintiff’s cardiovascular impairments after her 20 August 2019 ischemic event, nor any medical opinion regarding Plaintiff’s 2 ORDER - 14 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.868 Page 15 of 27 1 physical functioning in light of new and/or worsened cardiovascular impairments. 2 See ECF No. 16 at 5-6. 3 While Defendant argues that the ALJ adequately and reasonably assessed 4 and interpreted the medical evidence, ECF No. 24 at 17-18, there is minimal 5 discussion of her cardiovascular impairment(s) at step three or elsewhere in the 6 decision, including findings relevant to the cardiovascular listings during and post 7 Plaintiff’s August 2019 ischemic event. See generally Tr. 15-34. Plaintiff has 8 reported an enlarged heart, history of mild strokes/transient ischemic attacks (TIA), 9 and history of heart failure. See Tr. 116, 445. While the ALJ found her “enlarged 10 heart” nonsevere, and adopted the prior ALJ’s findings regarding her history of 11 TIA, there is no evidence the ALJ (or Plaintiff’s representative) inquired whether 12 she was followed by cardiology, despite records from her August 2019 ischemic 13 event, where she reported she did not have clotting disorder that she knew of, but 14 “she [has] been followed by the cardiologist for some type of CHF or cardiac issue 15 which she cannot clarify very well,” see Tr. 454, and other medical records show 16 diagnosis/active problems including CHF, along with a history of 17 methamphetamine abuse including “meth induced cardiomyopathy,” which the 18 ALJ did not discuss in the decision, all of which require further analysis under 4.02 19 and the cardiovascular listings. See, e.g., Tr. 328, 505, 609, 649. 20 2 ORDER - 15 Case 1:20-cv-03207-MKD 1 ECF No. 26 filed 05/10/22 PageID.869 Page 16 of 27 The ALJ limits his discussion of cardiovascular imaging to an August 6, 2 2019 x-ray of her heart, explaining at step two in the decision that a chest x-ray at 3 that time showed her “heart remains mildly enlarged” but was “negative for acute 4 disease”; the ALJ found her enlarged heart was therefore nonsevere. Tr. 18-19; see 5 Tr. 448-49. This is the only cardiovascular imaging the ALJ discusses in the 6 decision, despite the fact this imaging occurred when she was hospitalized for the 7 ischemic event in her leg, and she also underwent CT angiogram and additional 2D 8 and 3D imaging August 5, 2019, which showed presumed embolus in the proximal 9 aspect of the right external iliac artery and possible nonocclusive small embolism 10 versus heterogeneous plaque in the distal aspect of the left common iliac artery; 11 occlusion of large portions of the anterior tibialis and posterior tibialis arteries; 12 high grade stenosis at the proximal aspect of the right external iliac artery; diffused 13 diseased anterior and posterior tibialis arteries and mildly diffusely diseased 14 peroneal artery; and left leg diffusely diseased posterior tibialis artery. Tr. 44915 450. An ultrasound of her right lower leg arteries on August 5, 2019 also 16 suggested aortic iliac inflow disease, along with potentially significant stenosis 17 between the superficial femoral artery and popliteal artery. Tr. 450. She was 18 transferred to Seattle with diagnoses of “embolism, arterial, leg (obstruction of 19 artery) and threatened limb ischemia due to occlusive [peripheral arterial disease].” 20 2 ORDER - 16 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.870 Page 17 of 27 1 Tr. 452. Additional abnormal findings were noted on EKG, along with the new 2 findings on echocardiogram, discussed supra. Tr. 442, 452; see ECF No 16 at 14. 3 Despite an ischemic event and treatment, there is no discussion by the ALJ 4 as to whether Plaintiff has ongoing arterial or vascular disease, even though at the 5 2020 hearing she testified she has continued pain, difficulty walking and standing, 6 and that she was told by her doctors that she still has blood clots in her legs; ER 7 records also show she continued experiencing foot pain due to ongoing emboli or 8 residuals from her 2019 procedures. Tr. 77, 84-86, 394, 419. While the ALJ found 9 later exams were unremarkable, records from an ER visit in late August 2019, for 10 example, show persistent foot pain due to “continue arterial occlusion from 11 embolus, postprocedural pain,” along with blistering on her toe and a healing 12 laceration, and she was instructed to follow up with a vascular surgeon within 1-2 13 days; there is no record of follow up and she was not asked about this at the 14 hearing although she reported everything was worse and that she continued 15 experiencing foot pain due to continued issues with clots. Tr. 84. At a follow up 16 with her PCP after her August 2019 surgery, her provider noted she had not 17 received hospital records yet, but she also indicated Plaintiff would need to follow 18 up with a vascular specialist. Tr. 516. 19 The Court finds that the ALJ did not properly evaluate Plaintiff’s 20 cardiovascular impairment(s) under the listings. The cardiovascular listings 2 ORDER - 17 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.871 Page 18 of 27 1 explain not only what constitutes a cardiovascular impairment, and how to evaluate 2 issues such as her preexisting cardiomegaly, but also how these must be 3 documented and how the Agency will proceed if a person has not received ongoing 4 medical treatment or does not have sufficient longitudinal evidence, noting that “in 5 rare instances where there is no or insufficient longitudinal evidence, we may 6 purchase a consultative examination(s) to help us establish the severity and 7 duration of your impairment.” See 20 C.F.R. § 404, Subpt. P, App. 1, § 4.00B3. 8 The ALJ failed to provide sufficient rationale for the Court to determine the basis 9 for step three findings, and to adequately evaluate the relevant evidence of 10 cardiovascular impairments at step three or elsewhere in the decision. As 11 discussed supra, the ALJ did not adequately discuss evidence of Plaintiff’s 12 cardiovascular impairments, including multiple abnormal cardiovascular findings 13 and abnormal imaging which could support Plaintiff’s argument of listing level 14 impairment; her cardiovascular impairments must be evaluated under the 15 cardiovascular listings. See 20 C.F.R. § 404, Subpt. P, App. 1, §§ 4.00A-D; 16 4.00G-H3; 4.00I. 17 On remand, the ALJ is instructed to reconsider whether Plaintiff’s 18 impairment(s) meets or equals Listing 4.02, or any of the cardiovascular listings, 19 evaluating the relevant medical evidence with the assistance of medical expert 20 2 ORDER - 18 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.872 Page 19 of 27 1 testimony and further developing the record, if needed, with a consultative 2 examination. 3 4 B. Develop the record Plaintiff contends the ALJ failed to fully and fairly develop the record with a 5 new physical consultative examination. ECF No. 16 at 3-8. The ALJ has an 6 independent duty to fully and fairly develop a record in order to make a fair 7 determination as to disability, even where, as here, the claimant is represented by 8 counsel. Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003); see also 9 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001); Crane v. Shalala, 76 10 F.3d 251, 255 (9th Cir. 1995). “Ambiguous evidence, or the ALJ’s own finding 11 that the record is inadequate to allow for proper evaluation of the evidence, triggers 12 the ALJ's duty to ‘conduct an appropriate inquiry.’” See Tonapetyan, 242 F.3d at 13 1150 (quoting Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); Mayes v. 14 Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (“An ALJ’s duty to develop the 15 record further is triggered only when there is ambiguous evidence or when the 16 record is inadequate to allow for proper evaluation of the evidence.”) (citing 17 Tonapetyan, 242 F.3d at 1150). 18 Plaintiff points out that under the Regulations an ALJ may order a 19 consultative exam either to resolve an inconsistency in the evidence or when the 20 evidence as a whole is insufficient to make a determination or decision on a claim, 2 ORDER - 19 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.873 Page 20 of 27 1 such as when “[t]here is an indication of a change in your condition that is likely 2 to affect your ability to work … but the current severity of your impairment is not 3 established.” 20 C.F.R. § 416.919a(b)(4). Here, there are no medical opinions 4 after her ischemic event and additional/worsened cardiovascular impairment(s) 5 were discovered in 2019; and the ALJ failed to consider all of Plaintiff’s 6 cardiovascular impairments and to properly evaluate her impairments under the 7 cardiovascular listing(s), as explained in the discussion of step three, supra. The 8 ALJ also finds that the medical record “does not support that her physical 9 impairments significantly deteriorated since the prior administrative judge’s 10 decision,” without discussion of relevant new evidence, including objective 11 evidence of worsening cardiovascular impairments and/or new cardiovascular 12 impairments, and despite Plaintiff’s allegations that “everything is worse,” 13 including leg pain. See Tr. 22, 23, 26, 79-80, 83-86. Plaintiff argues, and the 14 Court agrees, that Plaintiff’s ischemic event with treatment for new cardiovascular 15 diagnoses in 2019 constituted a sudden and significant change in her physical 16 functioning that created ambiguity over her functional capacity that should have 17 prompted the ALJ to seek further information in the form of medical expert 18 testimony or a consultative examination. Id. at 6. 19 Defendant argues Plaintiff did not make a request for a consultative exam at 20 the hearing or once the record was updated, and “this is not a case in which a 2 ORDER - 20 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.874 Page 21 of 27 1 medical expert described the record as ‘confusing’ or testified that the record may 2 not be complete enough for the ALJ to reach a conclusion.” ECF No. 24 at 15 3 (citing Tonapetyan, 242 F.3d at 1150). This case is different, however, as the ALJ 4 did not have all the evidence until after the hearing and also did not have the 5 benefit of any medical opinion evidence or testimony to support his conclusions. 6 Further, the ALJ did not discuss relevant evidence, which requires analysis under 7 the listings, as discussed supra. 8 The Court finds the medical evidence in this case is ambiguous as to the 9 severity of her condition after her hospitalization and treatment for new/worsened 10 cardiovascular impairments in 2019, and the ALJ failed to considerer relevant 11 evidence as to her cardiovascular impairments. Accordingly, the record was 12 inadequate as to the extent of Plaintiff’s cardiovascular problems. The ALJ 13 therefore had a duty to develop the record to determine the severity of her 14 condition(s) and functional capacity. 15 Upon remand the ALJ is instructed to reevaluate the medical evidence of 16 record with the assistance of medical expert testimony, and to further develop the 17 record with a consultative examination, if necessary. 18 19 C. Step Two Plaintiff contends the ALJ erred by failing to identify Plaintiff’s other 20 cardiac impairments as severe. ECF No. 19 at 16-17. At step two of the sequential 2 ORDER - 21 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.875 Page 22 of 27 1 process, the ALJ must determine whether the claimant suffers from a “severe” 2 impairment, i.e., one that significantly limits her physical or mental ability to do 3 basic work activities. 20 C.F.R. § 416.920(c). 4 To establish a severe impairment, the claimant must first demonstrate that 5 the impairment results from anatomical, physiological, or psychological 6 abnormalities that can be shown by medically acceptable clinical or laboratory 7 diagnostic techniques. 20 C.F.R. § 416.921. In other words, the claimant must 8 establish the existence of the physical or mental impairment through objective 9 medical evidence (i.e., signs, laboratory findings, or both) from an acceptable 10 medical source; the medical impairment cannot be established by the claimant’s 11 statement of symptoms, a diagnosis, or a medical opinion. Id. 12 An impairment may be found to be not severe when “medical evidence 13 establishes only a slight abnormality or a combination of slight abnormalities 14 which would have no more than a minimal effect on an individual’s ability to 15 work ….” Social Security Ruling (SSR) 85-28 at *3. Similarly, an impairment is 16 not severe if it does not significantly limit a claimant’s physical or mental ability to 17 do basic work activities; which include walking, standing, sitting, lifting, pushing, 18 pulling, reaching, carrying, or handling; seeing, hearing, and speaking; 19 understanding, carrying out and remembering simple instructions; responding 20 appropriately to supervision, coworkers, and usual work situations; and dealing 2 ORDER - 22 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.876 Page 23 of 27 1 with changes in a routine work setting. 20 C.F.R. § 416.922(a); SSR 85-28.6 2 Step two is “a de minimus screening device [used] to dispose of groundless 3 claims.” Smolen, 80 F.3d at 1290. “Thus, applying our normal standard of review 4 to the requirements of step two, [the Court] must determine whether the ALJ had 5 substantial evidence to find that the medical evidence clearly established that 6 [Plaintiff] did not have a medically severe impairment or combination of 7 impairments.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). 8 As the case is being remanded for the ALJ to reconsider the medical 9 evidence at step three and to develop the record, the ALJ is also instructed to 10 reconsider the step-two analysis with the assistance of medical expert testimony. 11 D. Medical Opinion Evidence 12 Plaintiff contends the ALJ erred in his consideration of the opinion of Troy 13 Bruner, Ed.D. ECF No. 16 at 8-12. As this case is being remanded for the ALJ to 14 15 16 17 18 6 19 The Supreme Court upheld the validity of the Commissioner’s severity regulation, as clarified in SSR 85-28, in Bowen v. Yuckert, 482 U.S. 137, 153-54 20 2 (1987). ORDER - 23 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.877 Page 24 of 27 1 reconsider the medical evidence, the ALJ is also instructed to reconsider the 2 medical opinion evidence during the period at issue. 3 4 E. Plaintiff’s Symptom Claims Plaintiff contends the ALJ failed to give specific, clear, and convincing 5 reasons to not fully credit Plaintiff’s testimony. ECF No. 16 at 15-21. An ALJ 6 engages in a two-step analysis to determine whether to discount a claimant’s 7 testimony regarding subjective symptoms. SSR 16-3p, 2016 WL 1119029, at *2. 8 “First, the ALJ must determine whether there is objective medical evidence of an 9 underlying impairment which could reasonably be expected to produce the pain or 10 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 11 “The claimant is not required to show that [the claimant’s] impairment could 12 reasonably be expected to cause the severity of the symptom [the claimant] has 13 alleged; [the claimant] need only show that it could reasonably have caused some 14 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 15 Second, “[i]f the claimant meets the first test and there is no evidence of 16 malingering, the ALJ can only reject the claimant’s testimony about the severity of 17 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 18 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 19 omitted). General findings are insufficient; rather, the ALJ must identify what 20 symptom claims are being discounted and what evidence undermines these claims. 2 ORDER - 24 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.878 Page 25 of 27 1 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Thomas v. 2 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 3 explain why it discounted claimant’s symptom claims)). “The clear and 4 convincing [evidence] standard is the most demanding required in Social Security 5 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 6 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 7 Factors to be considered in evaluating the intensity, persistence, and limiting 8 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 9 duration, frequency, and intensity of pain or other symptoms; 3) factors that 10 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 11 side effects of any medication an individual takes or has taken to alleviate pain or 12 other symptoms; 5) treatment, other than medication, an individual receives or has 13 received for relief of pain or other symptoms; 6) any measures other than treatment 14 an individual uses or has used to relieve pain or other symptoms; and 7) any other 15 factors concerning an individual’s functional limitations and restrictions due to 16 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 17 416.929(3). The ALJ is instructed to “consider all of the evidence in an 18 individual’s record,” “to determine how symptoms limit ability to perform work19 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 20 2 ORDER - 25 Case 1:20-cv-03207-MKD 1 ECF No. 26 filed 05/10/22 PageID.879 Page 26 of 27 The ALJ found that Plaintiff’s medically determinable impairments could 2 reasonably be expected to cause the alleged symptoms but that Plaintiff’s 3 statements concerning the intensity, persistence, and limiting effects of his 4 symptoms were not entirely consistent with the medical evidence and other 5 evidence in the record. Tr. 22-23. 6 Having determined a remand is necessary to readdress the medical evidence 7 at step three, the ALJ is also instructed to carefully reevaluate Plaintiff’s symptom 8 claims in the context of the entire record. 9 10 F. Remedy The Court finds further proceedings are necessary to resolve conflicts in the 11 record, as well as to further develop the record. On remand, the ALJ is to fully 12 develop the record with the assistance of medical expert testimony, including 13 ordering a consultative examination if necessary. As such, the case is remanded 14 for further proceedings consistent with this Order. 15 16 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 17 ALJ’s decision is not supported by substantial evidence and not free of harmful 18 legal error. Accordingly, IT IS HEREBY ORDERED: 19 1. The District Court Executive is directed to substitute Kilolo Kijakazi as 20 Defendant and update the docket sheet. 2 ORDER - 26 Case 1:20-cv-03207-MKD ECF No. 26 filed 05/10/22 PageID.880 Page 27 of 27 1 2. Plaintiff’s Motion for Summary Judgment, ECF No. 16, is GRANTED. 2 3. Defendant’s Motion for Summary Judgment, ECF No. 24, is DENIED. 3 4. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 4 REVERSING and REMANDING the matter to the Commissioner of Social 5 Security for further proceedings consistent with this recommendation pursuant to 6 sentence four of 42 U.S.C. § 405(g). 7 The District Court Executive is directed to file this Order, provide copies to 8 counsel, and CLOSE THE FILE. 9 DATED May 10, 2022. 10 s/Mary K. Dimke MARY K. DIMKE UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 2 ORDER - 27