Keith Berman v. Andrew Saul ( 2021 )

1 2 3 4 5 6 `` 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 KEITH B.,1 ) Case No. CV 19-7079-JPR 11 ) Plaintiff, ) 12 ) MEMORANDUM DECISION AND ORDER v. ) REVERSING COMMISSIONER 13 ) ANDREW SAUL, Commissioner ) 14 of Social Security, ) ) 15 Defendant. ) ) 16 ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying his application for Social Security disability insurance 21 benefits (“DIB”). The parties consented to the jurisdiction of 22 the undersigned under 28 U.S.C. § 636(c). The matter is before 23 the Court on the parties’ Joint Stipulation, filed June 25, 2020, 24 which the Court has taken under submission without oral argument. 25 26 1 Plaintiff’s name is partially redacted in line with 27 Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 Management of the Judicial Conference of the United States. 1 1 For the reasons stated below, the Commissioner’s decision is 2 reversed. 3 II. BACKGROUND 4 Plaintiff was born in 1965. (Administrative Record (“AR”) 5 63.) He completed three years of college and worked in real 6 estate and jewelry sales and as an advisor for an internet 7 security company. (AR 200.) 8 On November 9, 2015, Plaintiff applied for DIB, alleging 9 that he had been unable to work since November 4, 2015, because 10 of anxiety, mood, personality, bipolar, major-depressive, and 11 attention-deficit/hyperactivity disorders; spinal stenosis; 12 bulging and herniated discs; and disc tears. (AR 182, 195, 199, 13 208-15.) After his application was denied, he requested a 14 hearing before an Administrative Law Judge. (AR 72, 76, 78-79.) 15 A hearing was held on July 5, 2018, at which Plaintiff, who was 16 represented by counsel, testified, as did a vocational expert. 17 (See AR 38-61.) In a written decision issued July 30, 2018, the 18 ALJ found that based on Plaintiff’s age, education, work 19 experience, and ability to perform light work, he could adjust to 20 other work as a garment bagger, basket filler, or cleaner and 21 polisher. (AR 32-33; see AR 23-33.) Plaintiff requested review 22 from the Appeals Council, including with his appeal an MRI taken 23 three months after the ALJ’s decision; the council denied review 24 on June 20, 2019. (AR 1-7, 240-44.) This action followed. 25 III. STANDARD OF REVIEW 26 Under 42 U.S.C. § 405(g), a district court may review the 27 Commissioner’s decision to deny benefits. The ALJ’s findings and 28 decision should be upheld if they are free of legal error and 2 1 supported by substantial evidence based on the record as a whole. 2 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 3 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 4 means such evidence as a reasonable person might accept as 5 adequate to support a conclusion. Richardson, 402 U.S. at 401; 6 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It 7 is “more than a mere scintilla but less than a preponderance.” 8 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 9 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). “[W]hatever the 10 meaning of ‘substantial’ in other contexts, the threshold for 11 such evidentiary sufficiency is not high.” Biestek v. Berryhill, 12 139 S. Ct. 1148, 1154 (2019). To determine whether substantial 13 evidence supports a finding, the reviewing court “must review the 14 administrative record as a whole, weighing both the evidence that 15 supports and the evidence that detracts from the Commissioner’s 16 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 17 1998). “If the evidence can reasonably support either affirming 18 or reversing,” the reviewing court “may not substitute its 19 judgment” for the Commissioner’s. Id. at 720-21. 20 IV. THE EVALUATION OF DISABILITY 21 People are “disabled” for Social Security purposes if they 22 are unable to engage in any substantial gainful activity owing to 23 a physical or mental impairment that is expected to result in 24 death or has lasted, or is expected to last, for a continuous 25 period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin 26 v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 27 A. The Five-Step Evaluation Process 28 An ALJ follows a five-step sequential evaluation process to 3 1 assess whether someone is disabled. 20 C.F.R. § 404.1520(a)(4); 2 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as 3 amended Apr. 9, 1996). In the first step, the Commissioner must 4 determine whether the claimant is currently engaged in 5 substantial gainful activity; if so, the claimant is not disabled 6 and the claim must be denied. § 404.1520(a)(4)(i). 7 If the claimant is not engaged in substantial gainful 8 activity, the second step requires the Commissioner to determine 9 whether the claimant has a “severe” impairment or combination of 10 impairments significantly limiting his ability to do basic work 11 activities; if not, a finding of not disabled is made and the 12 claim must be denied. § 404.1520(a)(4)(ii) & (c). 13 If the claimant has a “severe” impairment or combination of 14 impairments, the third step requires the Commissioner to 15 determine whether the impairment or combination of impairments 16 meets or equals an impairment in the Listing of Impairments 17 (“Listing”) set forth at 20 C.F.R., part 404, subpart P, appendix 18 1; if so, disability is conclusively presumed and benefits are 19 awarded. § 404.1520(a)(4)(iii) & (d). 20 If the claimant’s impairment or combination of impairments 21 does not meet or equal one in the Listing, the fourth step 22 requires the Commissioner to determine whether the claimant has 23 sufficient residual functional capacity (“RFC”)2 to perform his 24 25 2 RFC is what a claimant can do despite existing exertional 26 and nonexertional limitations. § 404.1545(a)(1); see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The 27 Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) 28 (continued...) 4 1 past work; if so, he is not disabled and the claim must be 2 denied. § 404.1520(a)(4)(iv). The claimant has the burden of 3 proving he is unable to perform past relevant work. Drouin, 966 4 F.2d at 1257. If the claimant meets that burden, a prima facie 5 case of disability is established. Id. 6 If that happens or if the claimant has no past relevant 7 work, the Commissioner bears the burden of establishing that the 8 claimant is not disabled because he can perform other substantial 9 gainful work available in the national economy, the fifth and 10 final step of the sequential analysis. § 404.1520(a)(4)(v). 11 B. The ALJ’s Application of the Five-Step Process 12 To start, the ALJ found that Plaintiff met “the insured 13 status requirements of the Social Security Act through December 14 31, 2019.” (AR 25.) At step one, he found that Plaintiff had 15 not engaged in substantial gainful activity since November 4, 16 2015, the alleged onset date. (Id.) At step two, he concluded 17 that during the relevant period, Plaintiff had the severe 18 impairments of “major depression with anxious features, attention 19 deficit disorder, degenerative disc disease, herniated nucleus 20 pulposus3 and stenosis of the lumbar spine4 and obesity.” (AR 21 22 2 (...continued) (citing § 416.920(a)(4)). 23 3 Herniated nucleus pulposus, also known as a herniated 24 disc, “describes the condition when the intervertebral disc is injured, and its contents are bulging or protruding into the 25 spinal canal.” Herniated Disc, USC Spine Ctr., https:// 26 www.uscspine.com/conditions-treated/neck-disorders/herniated-disc (last visited Feb. 1, 2021). 27 4 Spinal stenosis is a narrowing of the spinal canal. 28 (continued...) 5 1 26.) At step three, he determined that Plaintiff’s impairments 2 did not meet or equal a Listing. (AR 27.) 3 At step four, the ALJ found that Plaintiff had the RFC to 4 perform a “range of light work.” (AR 29.) Specifically, he 5 could 6 lift and/or carry twenty pounds occasionally, ten pounds 7 frequently, stand and/or walk six hours and sit six hours 8 in an eight-hour workday. The claimant can occasionally 9 climb ramps, stairs, ladders, ropes and scaffolds, 10 balance, stoop, kneel, crouch and crawl. The claimant 11 must avoid concentrated exposure to uneven terrain, 12 wetness, unprotected heights and dangerous moving 13 machinery. The claimant is limited to reasoning level 2 14 jobs — he can apply common sense understanding to carry 15 out detailed but uninvolved written or oral instructions 16 and he can deal with problems involving a few concrete 17 variables. The claimant can have no more than occasional 18 contact with the public. 19 (Id.) 20 In light of Plaintiff’s inability “to provide a clear 21 account of his past work,” among other things, the ALJ did not 22 make a finding on whether Plaintiff was able to perform his past 23 relevant work and instead “expedite[d] the claim to Step 5 of the 24 sequential evaluation.” (AR 32.) Because his “ability to 25 26 4 (...continued) 27 Medical Definition of Spinal Stenosis, MedicineNet, https:// www.medicinenet.com/spinal_stenosis/definition.htm (last visited 28 Feb. 1, 2021). 6 1 perform all or substantially all of the requirements” of light 2 work “ha[d] been impeded by additional limitations,” the ALJ 3 relied on the VE’s testimony to conclude that he could perform at 4 least three light, unskilled occupations available in substantial 5 numbers in the economy. (AR 33.) Accordingly, he found 6 Plaintiff not disabled. (Id.) 7 V. DISCUSSION 8 Plaintiff argues that the ALJ failed to (1) “fully and 9 accurately evaluate the medical evidence” or properly develop the 10 record concerning his physical ailments (J. Stip. at 3; see id. 11 at 4-8); (2) “assess Plaintiff’s ability to perform, on a 12 function by function basis, all of the exertional and 13 nonexertional functions required to perform light exertion” (id. 14 at 14 (emphasis in original); see id. at 3, 12-18); or (3) 15 properly evaluate his subjective symptom testimony (see id. at 3, 16 21-30). As discussed below, remand is warranted based on the 17 ALJ’s failure to fully develop the record. Accordingly, the 18 Court does not reach the other issues. 19 A. The ALJ Did Not Fully and Fairly Develop the Record 20 Plaintiff notes that the ALJ gave “no weight” to the only 21 medical-source opinion evaluating his functional limitations 22 based on his chronic low-back pain — the consulting examiner’s — 23 but then failed to obtain another consulting examination or call 24 a medical expert at his hearing, instead “making and relying on 25 his own medical assessment in determining Plaintiff’s residual 26 functional capacity.” (J. Stip. at 4-5.) As explained below, 27 remand is warranted on this ground. 28 7 1 1. Applicable law 2 An ALJ has a “duty to fully and fairly develop the record” 3 and “assure that [a] claimant’s interests are considered.” 4 Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) 5 (citation omitted); see also Howard ex rel. Wolff v. Barnhart, 6 341 F.3d 1006, 1012 (9th Cir. 2003) (“In making a determination 7 of disability, the ALJ must develop the record and interpret the 8 medical evidence.”). But it nonetheless remains the claimant’s 9 burden to produce evidence in support of his disability claim. 10 See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (as 11 amended). Moreover, the “ALJ’s duty to develop the record 12 further is triggered only when there is ambiguous evidence or 13 when the record is inadequate to allow for proper evaluation of 14 the evidence.” McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 15 2010) (as amended May 19, 2011) (citation omitted); accord 16 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). An 17 ALJ has broad discretion in determining whether to order a 18 consultative examination and should do so when “ambiguity or 19 insufficiency in the evidence . . . must be resolved.” Reed v. 20 Massanari, 270 F.3d 838, 842 (9th Cir. 2001) (citation omitted); 21 see also § 404.1519a(b) (“We may purchase a consultative 22 examination to try to resolve an inconsistency in the evidence, 23 or when the evidence as a whole is insufficient to allow us to 24 make a determination or decision on your claim.”). 25 2. Relevant background 26 a. Medical records relating to Plaintiff’s back 27 On December 22, 2015, internal-medicine specialist Dr. Iqbal 28 Teli examined Plaintiff and assessed “no physical restrictions.” 8 1 (AR 257; see AR 255.) Dr. Teli noted that Plaintiff’s chief 2 complaint was a history of low-back pain, “continuous” for “many 3 years” at a “6/10 intensity.” (AR 255.) Dr. Teli found “no 4 acute distress” and a “normal” gait and stance, and he noted 5 Plaintiff’s ability to do a “full” squat, rise from a chair, and 6 get on and off the exam table “without difficulty.” (AR 255-56.) 7 He reported full flexion, extension, and rotary movement in the 8 cervical and lumbar spine and full range of movement in the hips, 9 “shoulders, elbows, forearms, and wrists, bilaterally.” (AR 10 256.) “[T]enderness” and “mild spasm of the lower back” were 11 noted, but reflexes were equal in the upper and lower extremities 12 and strength was “5/5” in both. (AR 256-57.) Dr. Teli 13 apparently did not review any imaging, test results, or treatment 14 notes. (See AR 255-57; see also AR 29 (“[T]here is no evidence 15 that Dr. Teli reviewed any medical records and even if he did, he 16 evaluated the claimant in December of 2015 and would have not had 17 the opportunity to review any of the records that were submitted 18 at the hearing level.”).) 19 Treatment notes from palliative-medicine specialist Dr. 20 Perry Stein reflect that he treated Plaintiff for chronic back 21 pain from August 7, 2013, through January 26, 2017. (AR 242, 22 246-49, 259-315.) On August 7, 2013, he had “severe” lower-back 23 pain and was “unable to don[] socks/shoes, underwear.” (AR 246.) 24 Pain was described as “8/10” and was generally worse in the 25 morning. (Id.) Dr. Stein reported positive straight-leg raising 26 on the right at 20 inches; positive left thoracic paraspinal- 27 muscle prominence; partially restricted range of motion of the 28 lumbosacral spine in all planes, particularly in the right 9 1 rotation; and “all movements guarded.” (Id.) The following 2 week, Plaintiff reported having pain relief at times but also 3 “breakthrough pain 10/10” with certain activities, “specifically 4 donning pants” in the morning. (AR 247.) He showed “pain 5 behavior on transfers” and was “guarded.” (Id.) 6 On August 21, 2013, he reported “trying to stand at work” 7 because standing was better than sitting. (AR 248.) Two 8 Percocet5 tablets reduced his pain to “4-5” from “6-8” of 10 for 9 about two hours. (Id.) Dr. Stein found him “restricted in all 10 planes,” “specifically for [right] rotation/flexion,” and he had 11 spasms. (Id.) On August 28, 2013, the doctor noted that 12 “globally pain [was] 6/10,” with the “worst [at] 9/10,” with “no 13 precipitating factors” but worse “first thing in the [morning].” 14 (AR 249.) But overall, Plaintiff “look[ed] less uncomfortable” 15 and “less guarded/stiff.” (Id.) At appointments in September 16 and October 2013, Plaintiff reported that his pain level was up 17 and down, he had been doing physical therapy, and he found 18 temporary relief with stretching. (AR 259-61.) 19 On October 16, 2013, an MRI of Plaintiff’s lumbosacral spine 20 found the following: 21 At the L5-S1 level, there is disc bulge with facet and 22 ligamentum flavum arthropathy.6 There is mild narrowing 23 24 5 Percocet is the brand name for oxycodone acetaminophen, an opioid based pain reliever. Percocet, WebMD, https:// 25 www.webmd.com/drugs/2/drug-7277/percocet-oral/details (last 26 visited Feb. 1, 2021). 27 6 Ligamentum flavum arthropathy is disease of the ligaments that connect the laminae of adjacent vertebrae from the cervical 28 (continued...) 10 1 of the canal. There is a far right lateral disc 2 osteophyte complex7 which touches the exiting right L5 3 root after it exits the neural foramen. 4 At the L4-L5 level, there is a degenerated disc with loss 5 of T2 signal. There is diffuse bulge with facet and 6 ligamentum flavum arthropathy. There is moderate 7 stenosis of the canal. There is foraminal narrowing8 8 right greater than left without mass effect [sic] on the 9 exiting nerve roots. 10 (AR 262-63.) 11 Almost a year later, on September 9, 2014, Dr. Stein 12 reported that since his last visit, Plaintiff had received three 13 spinal injections, with an “excellent response” to the first and 14 “less response” to the second and third. (AR 264.) His lower- 15 back pain had become “severe” for three to four weeks before the 16 appointment, and he also had “severe leg pain.” (Id.) It was 17 noted that another doctor had “stopped” Plaintiff’s prescription 18 19 6 (...continued) 20 to sacral spine. Ligamentum Flavum, Physiopedia, https:// www.physio-pedia.com/Ligamentum_flavum (last visited Feb. 1, 21 2021). 22 7 Disc osteophyte complex denotes disc protrusion or bone 23 spurs that narrow the spinal canal. Spinal Stenosis & Myleopathy, University of Southern California Spine Center, 24 https://www.uscspine.com/conditions-treated/neck-disorders/ spinal-stenosis-myleopathy/ (last visited Feb. 1, 2021). 25 26 8 Foraminal stenosis, or narrowing, is a type of spinal stenosis caused by narrowing or tightening in the small openings 27 between the bones in the spine, called the foramina. What is Foraminal Stenosis?, Healthline, https://www.healthline.com/ 28 health/foraminal-stenosis (last visited Feb. 1, 2021). 11 1 narcotics after a positive “urine drug test [for] THC.” (Id.) 2 At appointments through the end of 2014, Plaintiff reported 3 “some days good others bad,” with a “good” day at a pain level of 4 six of 10. (AR 265-68.) He called the doctor’s office on 5 February 26, 2015, with severe pain, and Dr. Stein gave him a 6 prescription for hydrocodone, which he finished in about seven 7 days and then struggled without medication. (AR 267.) At an 8 appointment on March 24, 2015, he reported “excru[c]iating pain” 9 in his lower back starting on March 21, which medications had 10 been relieving up until that point. (AR 268.) On April 23, 11 2015, he “[d]id not have an adequate response to oxycodone,”9 12 which “didn’t make him pain free,” and he ran out in 10 days. 13 (AR 269.) 14 On May 21, 2015, Dr. Stein’s impression was “chronic pain 15 inadequate pain relief on current regimen.” (AR 270.) He noted 16 “pain behavior” with transfers and “some tenderness to percussion 17 of lumbar spine.” (Id.) He increased fentanyl10 and recommended 18 acupuncture. (Id.) On June 25, 2015, Dr. Stein noted “chronic 19 pain responsive only to opioid analgesics” and reported that he 20 had “tried multiple therapeutic interventions including [physical 21 therapy] . . . [and] mind body approaches.” (AR 271.) Plaintiff 22 23 9 Oxycodone is a potentially habit-forming opioid pain reliever. See Oxycodone, MedlinePlus, https://medlineplus.gov/ 24 druginfo/meds/a682132.html (last visited Feb. 1, 2021). 25 10 Fentanyl is used to treat breakthrough pain (sudden 26 episodes of pain that occur despite round-the-clock pain medication) in adult patients who are taking another opiate pain 27 medication and who are tolerant of narcotic pain medication. Fentanyl, MedlinePlus, https://medlineplus.gov/druginfo/meds/ 28 a605043.html (last visited Feb. 1, 2021). 12 1 believed “fentanyl patches were helpful but only for two days.” 2 (Id.) On July 23, 2015, Dr. Stein noted that Plaintiff had 3 texted because he had run out of oxycodone and fentanyl and the 4 pharmacy would dispense only 10 patches. (AR 272.) Plaintiff 5 displayed withdrawal symptoms, acute anxiety, and chronic pain, 6 and the doctor “offered outpatient detox, Suboxone,11 but [he] 7 declined.” (Id.) Plaintiff chose to resume pain medications, 8 and Dr. Stein counseled that he would not escalate the dosage. 9 (Id.) On August 18, 2015, the doctor still diagnosed “chronic 10 pain” and reported that Plaintiff had been “feeling somewhat 11 better lately,” but “psychosocially patient [wa]s a disaster” — 12 “[l]iving in a hotel,” “[b]roke,” and “borrow[ing] money from 13 kids” but “not using illicit drugs” or drinking. (AR 273.) 14 Chronic lower-back pain continued at appointments in September 15 through November 2015, during which Plaintiff reported “severe 16 pain,” “exacerbated by bending,” and the doctor observed 17 “frequent breath holding and grunting” and counseled him to “lose 18 weight, exercise, avoid a[nxiety], engage in mind/body approach, 19 relaxation.” (AR 274-76.) On December 15, 2015, Plaintiff was 20 “in severe pain,” had run out of oxycodone, and reported that 21 fentanyl patches helped for only three days. (AR 277.) 22 On February 25, 2016, Plaintiff reported “pain 10/10” and 23 demonstrated “pain behavior intermittently especially [with] 24 transfers.” (AR 278.) On March 22, 2016, Plaintiff “look[ed] 25 26 11 Suboxone is the brand name for a combination of 27 buprenorphine and naloxone and is used to treat adults who are dependent on opioids. Patient Information for Suboxone, 28 Suboxone, https://www.suboxone.com/ (last visited Jan. 11, 2021.) 13 1 better” and had his “sense of humor back,” “transfers [and] gait 2 [were] more fluid, less guarded,” “no adverse consequences as a 3 result of opioid regimen,” muscle spasms were still reported, and 4 oxycodone and fentanyl prescriptions were renewed. (AR 279.) On 5 July 14, 2016, Plaintiff reported that his symptoms waxed and 6 waned and he hadn’t taken opioids for two weeks, but he later 7 began texting the doctor for pain medications “multiple times” 8 and characterized his lower-back pain as “12/10” on August 30. 9 (AR 280.) On November 22, 2016, lower-back pain was “worse than 10 ever,” and on December 29 it was “on and off,” with fentanyl 11 helping “a bit.” (AR 281-82.) On January 26, 2017, Plaintiff 12 reported “a bad couple of weeks,” and Dr. Stein noted that he had 13 “resisted mind/body approaches” and acupuncture was “too 14 expensive, not covered.” (AR 283.) Dr. Stein never prepared a 15 functional assessment of Plaintiff’s limitations, if any, 16 stemming from his back pain. 17 The ALJ gave “no weight” to Dr. Teli’s opinion “because it 18 [wa]s inconsistent with the objective medical evidence showing 19 degenerative disc disease, herniated nucleus pulposus, and spinal 20 stenosis.” (AR 29.) It was also “inconsistent with Dr. Stein’s 21 treatment notes showing consistent back pain complaints and 22 clinical findings of decreased or pain range of motion, 23 tenderness to palpation and muscle spasms.” (Id.) Citing his 24 “opportunity to review the entire record” and gain a “more 25 complete picture” of Plaintiff’s “medical history and treatment” 26 than Dr. Teli, the ALJ rejected the doctor’s opinion and “adopted 27 a more restricted residual functional capacity.” (Id.) 28 Plaintiff submitted to the Appeals Council an MRI dated 14 1 October 18, 2018, three months after the ALJ’s decision, finding 2 slightly greater abnormalities than in the 2013 imaging. (J. 3 Stip., Ex. at 1-2.) The Appeals Council found that the new MRI 4 did not “relate to the period at issue” and “[t]herefore did not 5 affect the decision about whether [he was] disabled . . . on or 6 before July 30, 2018.” (AR 2.) 7 b. Plaintiff’s statements related to back pain 8 In a Disability Report dated March 8, 2016, Plaintiff stated 9 that his “spinal stenosis and herniated discs and tears[] ha[d] 10 made it virtually impossible to remain in the same position for 11 more than a few minutes at a time.” (AR 215.) He had tried 12 “every modality” “imaginable” other than surgery, which he had 13 been “warned against” by multiple doctors, with either no or only 14 “[t]emporary [m]inor relief.” (Id.) His doctor had “ramped up 15 [his] medications,” and he described better and worse days, 16 “hover[ing] between a high 4 on the ‘blessing’ days to a 10+ on 17 the worst days.” (Id.) 18 At the July 5, 2018 hearing, Plaintiff testified that he had 19 moved from New York to California in November 2017. (AR 49.) 20 His back pain had developed into sciatica on the left side, 21 limiting his ability to sit to between three and 45 minutes at a 22 time. (AR 54-55.) 23 3. Analysis 24 Plaintiff argues that the ALJ failed to “fully and fairly 25 develop the record” because he gave “no weight” to the only 26 medical-source functional evaluation concerning his back pain, 27 failed to resolve the absence of record evidence by ordering a 28 consultative examination or calling an expert, and concluded 15 1 without explanation or support that Plaintiff could perform a 2 light range of work. (J. Stip. at 4-5 (citing AR 29).) He 3 further contends that the ALJ’s assessment was contradicted by 4 the treatment notes indicating “very severe pain” and use of 5 “heavy-duty medications.” (Id. at 4; see id. at 5-8.) 6 The ALJ gave “no weight” to Dr. Teli’s opinion finding no 7 physical limitations because he examined Plaintiff only in 8 December 2015 and did not review Dr. Stein’s treatment notes, the 9 2013 MRI, or any other tests or records. (See AR 29 (ALJ stating 10 that “there is no evidence that Dr. Teli reviewed any medical 11 records” (citing AR 255-57)), 257 (Dr. Teli noting that no “labs 12 [or] other testing” were “pending” and stating that he had 13 performed a “consultative examination” and “[n]o doctor-patient 14 relationship exist[ed] or [wa]s implied”).) The ALJ found severe 15 impairments, including “degenerative disc disease, herniated 16 nucleus pulposus and stenosis of the lumbar spine” (AR 26), 17 relying on Dr. Stein’s treatment notes and the 2013 MRI (see id. 18 (citing AR 285)). But in fashioning Plaintiff’s RFC for light 19 work, he relied on no other doctor’s findings or opinion 20 considering Plaintiff’s functional limitations because none 21 existed. Indeed, the entirety of his explanation as to how the 22 medical evidence supported his physical-RFC finding was: “I have 23 given the consultative examiner’s assessment little weight, and 24 have adopted a more restricted residual functional capacity.” 25 (AR 29.) Because no doctor besides the one whose opinion the ALJ 26 rejected ever assessed Plaintiff’s physical functional abilities, 27 the record was inadequate and the ALJ had a duty to develop it 28 16 1 further.12 See McLeod, 640 F.3d at 886 (holding that “inadequacy 2 of the record to allow for proper evaluation triggers a duty of 3 inquiry”); de Gutierrez v. Saul, No. 1:19-CV-00463-BAM, 2020 WL 4 5701019, at *5-6 (E.D. Cal. Sept. 24, 2020) (remanding because 5 ALJ rejected only medical opinions defining functional 6 limitations, then assessed RFC based on his own lay 7 interpretation of records); Zazueta v. Colvin, No. CV-14-1905-JC, 8 2014 WL 4854575, at *5 (C.D. Cal. Sept. 29, 2014) (same). 9 When the record is inadequate, as here, an ALJ has 10 discretion to order a consultative examination.13 See Reed, 270 11 F.3d at 842; § 404.1519a. When “additional evidence needed is 12 not contained in the records,” a consultative examination is 13 “normally require[d].” Reed, 270 F.3d at 842 (quoting 14 § 404.1519a(b)(1)). Such an evaluation could have clarified the 15 record in this case, but the ALJ did not order one. Instead, he 16 evaluated the MRI and lower-back-pain evidence himself. (AR 29.) 17 Making these assessments without support from any physician’s 18 functional assessment was improper. See Taylor v. Comm’r of Soc. 19 Sec. Admin., 659 F.3d 1228, 1235 (9th Cir. 2011) (holding that 20 ALJ may not substitute his layperson observations for physician 21 22 12 Defendant undermines his own argument by pointing out 23 that treatment notes such as Dr. Stein’s that “fail to specify a claimant’s functional limits” are “not useful” and “inadequate 24 for determining RFC.” (J. Stip. at 9 (citing Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020)).) 25 26 13 An ALJ can also discharge his duty to develop the record fully and fairly by “subpoenaing the claimant’s physicians, 27 submitting questions to the claimant’s physicians, continuing the hearing, or keeping the record open after the hearing to allow 28 supplementation of the record.” Tonapetyan, 242 F.3d at 1150. 17 1 opinions); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) 2 (recognizing that ALJ is “not qualified as a medical expert”).14 3 Thus, the ALJ did not fully and fairly develop the record, 4 and remand is warranted on this ground. 5 B. Remand for Further Proceedings Is Appropriate 6 When an ALJ errs, as here, the Court “ordinarily must remand 7 . . . for further proceedings.” Leon v. Berryhill, 880 F.3d 8 1041, 1045 (9th Cir. 2017) (as amended Jan. 25, 2018); see also 9 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) (as 10 amended). The Court has discretion to do so or to award benefits 11 under the “credit as true” rule. Leon, 880 F.3d at 1045 12 (citation omitted). “[A] direct award of benefits was intended 13 as a rare and prophylactic exception to the ordinary remand 14 rule[.]” Id. The “decision of whether to remand for further 15 proceedings turns upon the likely utility of such proceedings,” 16 Harman, 211 F.3d at 1179, and when an “ALJ makes a legal error, 17 but the record is uncertain and ambiguous, the proper approach is 18 to remand the case to the agency,” Leon, 880 F.3d at 1045 19 (citation omitted). 20 Here, further administrative proceedings would serve the 21 22 14 Contrary to Defendant’s assertion that Plaintiff has 23 forfeited this argument (see J. Stip. at 10), the ALJ had an independent duty to develop the record regardless of Plaintiff’s 24 arguments. See Vasquez v. Comm’r of Soc. Sec., No. 18-cv-1042- EPG, 2019 WL 3714565, at *3 (E.D. Cal. Aug. 6, 2019) (finding no 25 waiver of argument that ALJ fashioned RFC without relying on any 26 medical opinion because ALJ had independent duty to develop record). In any event, Plaintiff did argue to the agency that 27 “this case was never reviewed by any State agency medical consultant (regarding the physical condition)” and therefore 28 should be remanded. (AR 242.) 18 1 useful purpose of allowing the ALJ to fully develop the record. 2 See Tonapetyan, 242 F.3d at 1151. Because there are no pain- 3 management records from January 2017 to the date of the ALJ’s 4 decision and Plaintiff had health insurance for most of that time 5 (see AR 50), the Court has serious questions about whether his 6 low-back pain was disabling during any or all of the relevant 7 period. Moreover, Plaintiff’s failure to explore surgery despite 8 his allegedly disabling back pain and Dr. Stein’s implicit 9 suggestions that he might have an opioid dependence (see, e.g., 10 AR 272, 283) also counsel caution. For these reasons, too, 11 remand is appropriate. See Garrison v. Colvin, 759 F.3d 995, 12 1021 (9th Cir. 2014) (recognizing flexibility to remand for 13 further proceedings when “record as a whole creates serious doubt 14 as to whether the [plaintiff] is, in fact, disabled”).15 15 VI. CONCLUSION 16 Consistent with the foregoing and under sentence four of 42 17 U.S.C. § 405(g),16 IT IS ORDERED that judgment be entered 18 REVERSING the Commissioner’s decision, GRANTING Plaintiff’s 19 20 21 22 23 24 15 On remand, the ALJ can reassess Plaintiff’s subjective 25 symptom statements and the RFC after obtaining a functional 26 assessment of his physical limitations, if any. 27 16 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, 28 a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 1 || request for remand, and REMANDING this action for further 2 || proceedings consistent with this memorandum decision. ° hrenhlattr 4\|patrrp: February 2, 2021 f- JEAN ROSENBLUTH 5 U.S. MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20