Opinion
CV 21-1314-DMG(E)
06-03-2022
ARMANDO G., Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Dolly M. Gee, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 01-13 of the United States District Court for the Central District of California.
PROCEEDINGS
Plaintiff filed a complaint on February 12, 2021, seeking review of the Commissioner's denial of disability benefits. Plaintiff filed /// /// a motion for summary judgment on February 14, 2022. Defendant filed a motion for summary judgment on May 31, 2022. The Court has taken the motions under submission without oral argument. See L.R. 7-15; “Order,” filed February 17, 2021.
Plaintiff's motion violates Paragraph VI of the “Order," filed February 17, 2021. Counsel for Plaintiff shall heed the Court's orders in the future.
BACKGROUND
Plaintiff asserts disability since June 30, 2014, based on depression, impaired concentration and tendonitis (Administrative Record (“A.R.") 501-06, 551). On March 27, 2017, an Administrative Law Judge (“ALJ") found Plaintiff not disabled. See A.R. 203-12; see also A.R. 109-35 (transcript of February 15, 2017 administrative hearing).
On August 15, 2018, the Appeals Council granted review and remanded the matter to a new ALJ (A.R. 220-22). The Appeals Council directed the new ALJ to: (a) consider and explain the weight given to the treating source opinions and, as appropriate, request additional evidence or clarification concerning what Plaintiff can still do despite his impairments; (b) further consider Plaintiff's residual functional capacity and provide an appropriate rationale with specific references to the evidence of record which supports the assessment of work-related limitations; and (c) obtain supplemental evidence from a vocational expert, if warranted by the expanded record, to clarify the assessed limitations' effect on the occupational base (A.R. 220-22).
Following remand, the new ALJ held two administrative hearings (A.R. 65-107). Testifying at the hearings were Plaintiff, two mental health medical experts and a vocational expert (A.R. 65-107). The ALJ found that Plaintiff has a severe depressive disorder and severe “borderline intellectual functioning” (A.R. 38). The ALJ also found that Plaintiff has medically determinable but nonsevere upper extremity impairments. See A.R. 38-41. The ALJ reportedly considered all of Plaintiff's medically determinable impairments, including the nonsevere ones, in assessing Plaintiff's residual functional capacity (A.R. 41).
The ALJ assessed a residual functional capacity “to perform medium work as defined in 20 C.F.R. § 416.967(c),” without any other physical limitations (A.R. 47-55 (ALJ reportedly: (1) giving “weight” to the consultative examiners' opinions to the extent assertedly consistent with their examination findings and with the residual functional capacity defined by the ALJ (a defined capacity which was inconsistent with portions of the consultative examiners' opinions); and (2) giving “little weight” to the state agency physicians' opinions (which found Plaintiff incapable of medium work))). The ALJ determined that a person with the assessed residual functional capacity could perform the medium work jobs of “floor waxer,” “laboratory equipment cleaner” and “window cleaner” (A.R. 56 (adopting vocational expert testimony at A.R. 84-89, 95)). The ALJ therefore denied disability benefits (A.R. 56). The Appeals Council denied review (A.R. 1-3).
The ALJ assessed certain mental limitations, but those limitations are not material to the discussion herein (A.R. 4755).
STANDARD OF REVIEW
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Comm'r, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Comm'r, 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see also Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).
DISCUSSION
Plaintiff contends, inter alia, that the ALJ erred in the physical residual functional capacity assessment by failing to consider adequately the upper extremity limitations found by the medical sources. The Court agrees that the ALJ erred in the ALJ's evaluation of the medical evidence. On the present record, substantial evidence does not support the ALJ's physical residual functional capacity assessment.
I. Summary of the Relevant Medical Record
This Report and Recommendation concerns only the ALJ's consideration of the medical evidence regarding Plaintiff's physical impairments. Therefore, the Report and Recommendation does not summarize the bulk of the evidence regarding Plaintiff's mental impairments.
The medical record consists of a few mental health treatment records from Shoreline Mental Health, reports from Plaintiff's Shoreline Mental Health treating psychologist and reports from a number of consultative examiners (A.R. 711-989). As detailed below, each of the consultative examiners who evaluated Plaintiff's physical condition found Plaintiff capable of only a narrowed range of medium work, and the state agency physicians found Plaintiff capable of only a narrowed range of light work.
Dr. John Sedgh prepared an “Internal Medicine Consultation” dated December 30, 2013, in connection with Plaintiff's complaints of right forearm and right upper arm burn treated surgically six times, upper and lower back pain, and pain from a left hand and left wrist injury (A.R. 794-98). On examination, Plaintiff generated 60 pounds of grip force with the right hand but only 15 pounds of grip force with the left hand, had limited range of motion in the right elbow, and motor strength of 4/5 in the left upper extremity (A.R. 795-97). Dr. Sedgh diagnosed a history of burn in the upper extremities, upper and lower back strain per history, and injury to the left hand and wrist per history (A.R. 798). Dr. Sedgh opined that Plaintiff could perform medium work limited to no more than frequent kneeling, crouching and stooping, and no more than frequent gross and fine manipulations with the left hand (A.R. 798).
State agency physicians reviewed the record in October of 2014 and January of 2015, and found Plaintiff capable of only light work, limited to no more than occasional use of the left upper extremity for pushing, pulling, handling and fingering (gross and fine manipulations) (A.R. 170-99).
Dr. Warren Yu prepared a “Complete Orthopedic Consultation,” dated November 19, 2016, in connection with Plaintiff's complaints of low back pain (but without mention of any upper extremity complaints) (A.R. 852-56). On examination, Plaintiff had mild lumbosacral tenderness but otherwise had findings within normal limits (A.R. 85355). Dr. Yu diagnosed myofascial mid- and low-back pain, and opined that Plaintiff would be capable of medium work with no more than frequent pushing, pulling, bending, crouching, stooping, crawling, walking on uneven terrain, climbing ladders and working at heights (A.R. 855-56).
Dr. Jerry Chuang prepared a “Complete Orthopedic Consultation” dated April 18, 2019, in connection with reported right elbow and bilateral wrist and hand pain since a burn injury, status post right arm surgery, and a work injury to Plaintiff's left arm (A.R. 971-75). On examination, Plaintiff had painful range of motion in the right elbow, tenderness on palpation of the wrists with painful range of motion, hand tenderness with pain on finger range of motion, motor strength of 4+/5 in the right elbow, bilateral wrists and hands, and grip strength of 80 and 85 pounds in the right and left hands, respectively (A.R. 972-74). Dr. Chuang diagnosed mild degenerative joint disease in the bilateral wrists and hands and a burn injury causing pain to the right upper extremity (A.R. 974). Dr. Chuang opined that Plaintiff would be able to perform medium work, limited to no more than frequent pushing, pulling, fingering, handling, feeling, reaching, climbing ladders, working at heights and crawling (A.R. 97475). Dr. Chuang completed a “Medical Statement of Ability to Do Work-Related Activities (Physical)” form on the same date, finding similar limitations, but adding that Plaintiff could sit, stand, or walk for only one hour at a time, and could climb stairs or ramps, work around moving mechanical parts, and operate a motor vehicle no more than frequently (A.R. 976-81).
II. Substantial Evidence Does Not Support the ALJ's Physical Residual Functional Capacity Assessment.
The ALJ assessed a physical residual functional capacity for medium work with no other physical limitations. In doing so, the ALJ purportedly gave “weight” to the opinions of Drs. Sedgh, Yu, and Chuang (who had found Plaintiff capable of medium work with certain additional physical limitations) (A.R. 39-41, 49-51). The ALJ purportedly gave “little weight” to the opinions of the state agency physicians (who had found Plaintiff capable of only light work with left upper extremity limitations) (A.R. 55).
Thus, the ALJ assessed a greater physical capacity than any medical source found to exist, eliminating from the ALJ's assessment (without significant explanation) all of the postural and manipulative limitations found by the medical sources. Given the absence of any medical opinion finding Plaintiff as physically capable as the ALJ assessed, substantial evidence fails to support the ALJ's decision. In fact, it appears that the ALJ departed from the opinions of the medical sources by erroneously relying on the ALJ's own lay interpretation of the medical evidence. See A.R. 39-41, 49-51.
An ALJ cannot properly rely on the ALJ's own lay knowledge to make medical interpretations of examination results or to determine the severity of medically determinable impairments. See Tackett v. Apfel, 180 F.3d 1094, 1102-03 (9th Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (an “ALJ cannot arbitrarily substitute his [or her] own judgment for competent medical opinion”) (internal quotation and citation omitted); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs must not succumb to the temptation to play doctor and make their own independent medical findings”); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ is forbidden from making his or her own medical assessment beyond that demonstrated by the record). Absent expert medical assistance, the ALJ could not competently translate the medical evidence in this case into a physical residual functional capacity assessment. See Tackett v. Apfel, 180 F.3d at 1102-03 (ALJ's residual functional capacity assessment cannot stand in the absence of evidentiary support).
The ALJ consulted two medical experts (psychologists) with respect to Plaintiff's alleged mental impairments, but did not consult any medical expert with respect to Plaintiff's alleged physical impairments (A.R. 65-107).
III. Remand for Further Administrative Proceedings is Appropriate.
The Court is unable to conclude that the errors discussed above were harmless. “[A]n ALJ's error is harmless where it is inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citations and quotations omitted); see Treichler v. Comm'r, 775 F.3d 1090, 1105 (9th Cir. 2014) (“Where, as in this case, an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the agency”); cf. McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (error not harmless where “the reviewing court can determine from the ‘circumstances of the case' that further administrative review is needed to determine whether there was prejudice from the error”). The vocational expert testified that, if a person were limited to the residual functional capacity the ALJ found to exist and were further limited to occasional use of the left upper extremity (as the state agency physicians had opined), there would be no work that such a person could perform (A.R. 89-92). The vocational expert was not asked whether there would be jobs performable by a person limited to medium work with the postural and manipulative limitations that the consultative examiners found to exist.
Remand is appropriate because the circumstances of this case suggest that further development of the record and further administrative review could remedy the ALJ's errors. See McLeod v. Astrue, 640 F.3d at 888; see also INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative determination, the proper course is remand for additional agency investigation or explanation, except in rare circumstances); Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017) (reversal with a directive for the immediate calculation of benefits is a “rare and prophylactic exception to the well-established ordinary remand rule”; Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court concludes that further administrative proceedings would serve no useful purpose, it may not remand with a direction to provide benefits”); Treichler v. Comm'r, 775 F.3d at 1101 n.5 (remand for further administrative proceedings is the proper remedy “in all but the rarest cases”); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) (remand for further proceedings rather than for the immediate payment of benefits is appropriate where there are “sufficient unanswered questions in the record”); see also Brown-Hunter v. Colvin, 806 F.3d 487, 495-96 (9th Cir. 2015) (discussing the narrow circumstances in which a court will order a benefits calculation rather than further proceedings). There remain significant unanswered questions in the present record.
RECOMMENDATION
For all of the foregoing reasons, it is recommended that the Court issue an order: (1) accepting and adopting this Report and Recommendation; (2) denying Plaintiff's and Defendant's motions for summary judgment; (3) reversing in part the decision of the Commissioner of the Social Security Administration; and (4) remanding the matter for further administrative action consistent with this Report and Recommendation.
The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
DOLLY M. GEE, UNITED STATES DISTRICT JUDGE
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Complaint, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that: (1) the Report and Recommendation of the Magistrate Judge is accepted and adopted; (2) Plaintiff's and Defendant's motions for summary judgment are denied; (3) the decision of the Commissioner of the Social Security Administration is reversed in part; and (4) the matter is remanded for further administrative action consistent with the Report and Recommendation.
IT IS FURTHER ORDERED that the Clerk serve forthwith a copy of this Order, the Magistrate Judge's Report and Recommendation and the Judgment of this date on Plaintiff, counsel for Plaintiff and counsel for Defendant.
JUDGMENT
IT IS HEREBY ADJUDGED that the decision of the Commissioner of the Social Security Administration is reversed in part and the matter is remanded for further administrative action consistent with the Opinion filed concurrently herewith.