Ivy Johnson v. Kilolo Kijakazi ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IVY DARLENE JOHNSON, No. 19-17359
Plaintiff-Appellant, D.C. No. 2:17-cv-04793-SMB
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Susan M. Brnovich, District Judge, Presiding
Submitted May 13, 2022**
Pasadena, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and AMON,*** District
Judge.
Ivy Darlene Johnson appeals pro se the district court’s affirmance of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
denial by the Social Security Administration (“agency”) of her application for
disability insurance benefits under Title II of the Social Security Act. 28 U.S.C. §
1291; 42 U.S.C. § 405(g). We review the agency’s decision de novo. Attmore v.
Colvin, 827 F.3d 872, 875 (9th Cir. 2016). That decision must be affirmed if it is
supported by substantial evidence and the agency applied the correct legal
standards. Id. We reverse.
1. The Social Security Appeals Council had remanded this case to the ALJ
in 2016 to reassess Johnson’s residual functional capacity (“RFC”) with full
consideration of her mental impairments and to obtain evidence from a vocational
expert. Without considering any new evidence (except Johnson’s own testimony)
about her mental impairments, the ALJ—who had previously found those mental
impairments to be “severe”—reassessed them as “nonsevere.” In doing so, the
ALJ discounted psychological evaluations from Dr. Marcel Van Eerd and Dr.
Elliot Salk, affording them “little weight”—notwithstanding that the ALJ had
previously afforded those evaluations “some weight”—explaining there was no
evidence in the record that Johnson had ever sought formal mental health
treatment.
Absent “new, highly probative” evidence, “[t]he law of the case doctrine
generally prohibits a court from considering an issue that has already been decided
by that same court or a higher court in the same case.” Stacy v. Colvin, 825 F.3d
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563, 567 (9th Cir. 2016); see id. (holding that the law of the case doctrine applies
in administrative proceedings before the Social Security Administration). Because
the ALJ has pointed to no new evidence that would justify its decision to reassess
the severity of Johnson’s mental symptoms, the ALJ abused his discretion in
downgrading the severity of Johnson’s mental impairments. See id.1
2. Johnson testified about her mental and physical symptoms at hearings
before the ALJ in 2014 and 2016. “To determine whether a claimant’s testimony
regarding subjective pain or symptoms is credible, an ALJ must engage in a two-
step analysis.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007).
“First, the ALJ must determine whether the claimant has presented objective
medical evidence of an underlying impairment ‘which could reasonably be
expected to produce the pain or other symptoms alleged.’” Id. at 1036 (quoting
Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). “Second, if the
claimant meets this first test, and there is no evidence of malingering, ‘the ALJ can
1
What is more, because Johnson’s mental impairments are closely related to
her more salient physical impairments, it is unreasonable to fault her for not
separately seeking formal mental health treatment. See SSR 16-3p, 2017 WL
5180304, at *9 (Oct. 25, 2017) (“We will not find an individual’s symptoms
inconsistent with the evidence in the record [on the basis of not seeking treatment]
without considering possible reasons he or she may not comply with treatment or
seek treatment consistent with the degree of his or her complaints.”). “Indeed, we
have particularly criticized the use of a lack of treatment to reject mental
complaints.” Regennitter v. Comm’r of the Soc. Sec. Admin., 166 F.3d 1294, 1299
(9th Cir. 1999).
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reject the claimant’s testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so.’” Id. (quoting Smolen v.
Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)).
In his 2017 decision, the ALJ found that Johnson had an impairment that
could be expected to cause some of her symptoms, but he did not fully credit her
statements regarding the “intensity, persistence and limiting effects” of her
symptoms. The ALJ offered two reasons for discrediting Johnson’s symptom
testimony: first, her symptoms could not be “objectively verified with any
reasonable degree of certainty,” and second, Johnson generally had “normal to
mild cardiac diagnostic findings following pacemaker implantation.” Neither
reason is a valid basis for discrediting Johnson’s testimony. Although an ALJ may
reject a claimant’s testimony because it is contradicted by the medical evidence,
see Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008),
“lack of medical evidence cannot form the sole basis for discounting pain
testimony,” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Detailed
medical records show that Johnson’s doctors have repeatedly ruled out underlying
coronary disease while continuing to monitor closely a serious ongoing condition
involving cardiac arrhythmias and consistent allegations of chest pain, dizziness,
and shortness of breath. Johnson’s medical records do not contain evidence that
fully explains her symptoms, but they also do not contradict her account of those
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symptoms.2 The ALJ’s decision to discount Johnson’s testimony regarding the
severity of her symptoms is therefore not supported by substantial evidence.
3. The ALJ’s decision to discount the opinion of Johnson’s treating
cardiologist, Dr. Kevin Berman, is also not supported by substantial evidence. As
a practical matter, Dr. Berman’s 2011 opinion concerning Johnson’s post-operative
condition, following the implantation of her pacemaker, may have limited
relevance to determining Johnson’s ongoing disability status during the relevant
period. But see Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“A
reviewing court may not make independent findings based on the evidence before
the ALJ to conclude that the ALJ’s error was harmless.”). But, contrary to the
conclusion of the ALJ, Dr. Berman’s opinion was not internally inconsistent or
contradicted by his treatment notes. Absent further explanation, there is no
inherent inconsistency between a doctor noting that a patient has “no limitation”
pursuant to a cardiac functional capacity assessment but that the patient has other
physical limitations on her ability to work. Indeed, those findings are readily
2
The only evidence in the record cited by the ALJ that purportedly
contradicts Johnson’s symptom testimony are medical records from 2011 and
2012. The ALJ noted those records do not show any muscle atrophy and therefore
tend to disprove the notion Johnson is as limited in her daily functions as she
claims. But those medical records are from the very beginning of Johnson’s
purported period of disability and pre-date her 2014 testimony about her limited
activities as well as the first instance in the record when she reported having to stay
in bed for long periods of time.
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explained by Dr. Berman’s notes that Johnson had “no recovery from pain” from
her recent surgery.
4. In light of the ALJ’s errors, his conclusion that Johnson is not disabled
must be reversed. An ALJ must “consider limitations and restrictions imposed by
all of an individual’s impairments, even those that are not ‘severe,’” in determining
the RFC. Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (quoting SSR 96-
8p, 1996 WL 374184, at *5 (July 2, 1996)). Here, the mental impairments
identified by Dr. Van Eerd and Dr. Salk—deficits in Johnson’s concentration and
her ability to follow instructions—were relevant in assessing her RFC and her
ability to work. In determining Johnson’s RFC, the ALJ did not incorporate the
symptoms that Johnson testified about or the limitations Dr. Van Eerd and Dr. Salk
reported. Those symptoms and limitations were, accordingly, omitted from the
hypothetical the ALJ presented to the vocational expert in determining Johnson’s
ability to work. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th
Cir. 2009) (“The hypothetical an ALJ poses to a vocational expert, which derives
from the RFC, ‘must set out all the limitations and restrictions of the particular
claimant.’” (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988))). In
fact, when the vocational expert was posed a hypothetical by Johnson’s counsel
that included more of Johnson’s limitations, that expert agreed that Johnson would
not be able to return to her work as a social worker. As a result, the ALJ’s
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conclusion that Johnson can return to her job as a social worker is “defective,” id.,and is not supported by substantial evidence.
5. We remand to the agency for further proceedings. Even if we were to
credit as true Johnson’s testimony about the severity of her symptoms and the other
evidence about her mental impairments, the current record is not sufficiently
developed to determine, at step five of the disability inquiry, whether Johnson has
been unable to “engage in any other kind of substantial gainful work which exists
in the national economy,” 42 U.S.C. § 423(d)(2)(A), since her alleged onset of
disability in February 2011. See Smolen, 80 F.3d at 1292 (explaining that a
remand for payment of benefits, instead of for further proceedings, is appropriate if
“there are no outstanding issues that must be resolved before a determination of
disability can be made” and “it is clear from the record that the ALJ would be
required to find the claimant disabled”). On remand, the agency is directed to
reevaluate the record—and, specifically, to consider evidence regarding Johnson’s
mental impairments and symptoms—to determine whether Johnson is disabled.
Finally, we note that Johnson’s claim has now been pending for a decade
and thus urge the agency to proceed on Johnson’s claim as rapidly as possible on
remand. Cf. Dietrich v. Boeing Co., 14 F.4th 1089, 1095-96 (9th Cir. 2021).
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REVERSED and REMANDED.3
3
Because Johnson is the prevailing party on this appeal, her motion for
appointment of pro bono counsel (Dkt. No. 19) is DENIED as unnecessary.
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