(SS) Sam-Chanhkhiao v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PETRA SAM-CHANKHIAO, No. 2:20-cv-0186 DB 12 Plaintiff, 13 v. ORDER 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security,1 15 16 Defendant. 17 18 This social security action was submitted to the court without oral argument for ruling on 19 plaintiff’s motion for summary judgment and defendant’s cross-motion for summary judgment.2 20 Plaintiff’s motion argues that the Administrative Law Judge erred with respect to the treatment of 21 medical opinion evidence. 22 //// 23 //// 24 1 After the filing of this action Kilolo Kijakazi was appointed Acting Commissioner of Social 25 Security and has, therefore, been substituted as the defendant. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the 26 Commissioner shall, in his official capacity, be the proper defendant”). 27 2 Both parties have previously consented to Magistrate Judge jurisdiction over this action 28 pursuant to 28 U.S.C. § 636(c). (See ECF No. 15.) 1 For the reasons explained below, plaintiff’s motion is granted, the decision of the 2 Commissioner of Social Security (“Commissioner”) is reversed, and the matter is remanded for 3 further proceedings. 4 PROCEDURAL BACKGROUND 5 On September 26, 2017, plaintiff filed an application for Disability Insurance Benefits 6 (“DIB”) under Title II of the Social Security Act (“the Act”), alleging disability beginning on 7 May 21, 2017. (Transcript (“Tr.”) at 19, 160-66.) Plaintiff’s alleged impairments included 8 diabetes, hypertension, spinal stenosis, depression, anxiety, hepatis B, and cirrhosis. (Id. at 59- 9 60.) Plaintiff’s application was denied initially, (id. at 86-89), and upon reconsideration. (Id. at 10 92-96.) 11 Plaintiff requested an administrative hearing, which was held before an Administrative 12 Law Judge (“ALJ”) on September 19, 2018. (Id. at 35-58.) Plaintiff was represented by an 13 attorney and testified at the administrative hearing. (Id. at 35-38.) In a decision issued on 14 February 12, 2019, the ALJ found that plaintiff was not disabled. (Id. at 29.) The ALJ entered 15 the following findings: 16 1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2022. 17 2. The claimant has not engaged in substantial gainful activity 18 since May 21, 2017, the alleged onset date (20 CFR 404.1571 et seq.). 19 3. The claimant has the following severe impairments: cervical and 20 lumbar degenerative disc disease, left shoulder soft tissue injury, and diabetes mellitus. (20 CFR 404.1520(c)). 21 4. The claimant does not have an impairment or combination of 22 impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 23 (20 CFR 404.1520(d), 404.1525, and 404.1526). 24 5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform 25 light work as defined in 20 CFR 404.1567(b) eroded by the following: occasional left upper extremity pushing and pulling; 26 bilateral occasional over the head reaching; bilateral frequent handling, fingering, and feeling; occasionally climbing ramps and 27 stairs, ladders and scaffolds, balancing, stooping, kneeling, crouching and crawling. 28 1 6. The claimant is capable of performing past relevant work as a Real Estate Agent. This work does not require the performance of 2 work-related activities precluded by the claimant’s residual functional capacity (20 CFR 404.1565). 3 7. The claimant has not been under a disability, as defined in the 4 Social Security Act, from May 21, 2017, through the date of this decision (20 CFR 404.1520(f)). 5 6 (Id. at 21-29.) 7 On November 25, 2019, the Appeals Council denied plaintiff’s request for review of the 8 ALJ’s February 12, 2019 decision. (Id. at 1-5.) Plaintiff sought judicial review pursuant to 42 9 U.S.C. § 405(g) by filing the complaint in this action on January 24, 2020. (ECF. No. 1.) 10 LEGAL STANDARD 11 “The district court reviews the Commissioner’s final decision for substantial evidence, 12 and the Commissioner’s decision will be disturbed only if it is not supported by substantial 13 evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012). 14 Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to 15 support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Sandgathe v. 16 Chater, 108 F.3d 978, 980 (9th Cir. 1997). 17 “[A] reviewing court must consider the entire record as a whole and may not affirm 18 simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec. Admin., 19 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 20 1989)). If, however, “the record considered as a whole can reasonably support either affirming or 21 reversing the Commissioner’s decision, we must affirm.” McCartey v. Massanari, 298 F.3d 1072, 22 1075 (9th Cir. 2002). 23 A five-step evaluation process is used to determine whether a claimant is disabled. 20 24 C.F.R. § 404.1520; see also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The five-step 25 process has been summarized as follows: 26 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. 27 28 //// 1 Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is 2 appropriate. 3 Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, 4 Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. 5 Step four: Is the claimant capable of performing his past work? If 6 so, the claimant is not disabled. If not, proceed to step five. 7 Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, 8 the claimant is disabled. 9 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 10 The claimant bears the burden of proof in the first four steps of the sequential evaluation 11 process. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). The Commissioner bears the burden 12 if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094, 13 1098 (9th Cir. 1999). 14 APPLICATION 15 Plaintiff’s pending motion asserts that the ALJ’s treatment of the medical opinion offered 16 by Dr. Maria Francisco was erroneous. (Pl.s’ MSJ (ECF No. 18) at 5-14.3) For claims filed prior 17 to March of 2017, Ninth Circuit’s precedent established a hierarchy for medical opinions based 18 on the physician’s relationship to the plaintiff. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 19 1995) (“Cases in this circuit distinguish among the opinions of three types of physicians: (1) those 20 who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant 21 (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining 22 physicians).”). In 1991, the Commissioner promulgated regulations consistent with the Ninth 23 Circuit’s hierarchy. See 56 Fed. Reg. 36932-01, 1991 WL 142361 (Aug. 1, 1991). 24 On March 27, 2017, however, revised Social Security Administration regulations went 25 into effect regarding the evaluation of medical opinions. Pursuant to those regulations, “the 26 Commissioner ‘will no longer give any specific evidentiary weight to medical opinions; this 27 3 Page number citations such as this one are to the page number reflected on the court’s CM/ECF 28 system and not to page numbers assigned by the parties. 1 includes giving controlling weight to any medical opinion.’” V.W. v. Comm’r of Soc. Sec., No. 2 18-cv-07297-JCS, 2020 WL 1505716, at *13 (N.D. Cal. Mar. 30, 2020) (quoting 20 C.F.R. § 3 416.920c(a)); see also 20 C.F.R. § 404.1520c(a). In place of specific evidentiary weight, the 4 Commissioner will “evaluate the persuasiveness of medical opinions” based on (1) supportability; 5 (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors, such 6 as “evidence showing a medical source has familiarity with the other evidence in the claim or an 7 understanding of our disability program’s policies and evidentiary requirements.” 20 C.F.R. § 8 404.1520c(a), (c)(1)-(5), § 416.920c(a), (c)(1)-(5). 9 While the ALJ will consider all of the above factors, “the ALJ must explain how he 10 considered the two ‘most important factors’—supportability and consistency.” Crystal R. E. v. 11 Kijakazi, Case No. 20-cv-0319 SH, 2022 WL 446023, at *6 (N.D. Okla. Feb. 14, 2022) (quoting 12 20 C.F.R. § 404.1520c(b)(2)). Supportability concerns how “relevant the objective medical 13 evidence and supporting explanations presented by a medical source are[.]” 20 C.F.R. § 14 404.1520c(c)(1). The more relevant evidence and support presented “the more persuasive the 15 medical opinion[] . . . will be.” (Id.) With respect to consistency, “[t]he more consistent a 16 medical opinion[] . . . is with the evidence from other medical sources and nonmedical sources . . 17 . the more persuasive the medical opinion . . . will be.” 18 In this regard, the new regulations “still require that the ALJ provide a coherent 19 explanation of [her] reasoning,” and establish “a minimum level of articulation to be provided in 20 determinations and decisions, in order to provide sufficient rationale for a reviewing adjudicator 21 or court.” Hardy v. Commissioner of Social Security, 554 F.Supp.3d 900, 906 (E.D. Mich. 22 2021). Thus, 23 [e]ven under the new regulations, an ALJ cannot reject an examining or treating doctor’s opinion as unsupported or inconsistent without 24 providing an explanation supported by substantial evidence. The agency must “articulate . . . how persuasive” it finds “all of the 25 medical opinions” from each doctor or other source, 20 C.F.R. § 404.1520c(b), and “explain how [it] considered the supportability 26 and consistency factors” in reaching these findings, id § 404.1520c(b)(2). 27 28 Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) 1 Here, on August 2, 2018, Dr. Francisco completed a questionnaire, opining as to 2 plaintiff’s functional capacity. In this regard, it was Dr. Francisco’s opinion that plaintiff could 3 lift “15 pounds or less,” could stand and/or walk for 1 hour in an 8-hour period, and needed to “lie 4 down for 2-3 per 8 hours due to severe back pain.” (Tr. at 558.) The ALJ elected to “not credit” 5 Dr. Francisco’s opinion. (Id. at 26.) In support of this decision the ALJ stated simply, “he cited 6 imaging studies revealing only mild to moderate abnormalities, did not support his speculative 7 assessment with any treatment evidence or objective clinical findings and he is a PCP and not a 8 specialist.” (Id.) 9 However, Dr. Francisco’s opinion was supported by objective clinical findings, 10 specifically citation to an MRI.4 That MRI revealed “[m]ild bilateral neuroforamen stenosis at 11 the L4-L5 level,” and “[m]oderate bilateral neuroforamen stenosis at the L5-S1 level[.]” (Id. at 12 389.) The ALJ does not elaborate as to why these findings undermine Dr. Francisco’s opinion. 13 Most importantly, the ALJ’s vague and conclusory discussion of Dr. Francisco’s opinion fails to 14 discuss the necessary factors of supportability and consistency. 15 The regulations are clear and imperative in defining the mode of analysis. All medical sources are to be considered, and a rationale 16 articulating how the ALJ applied the factors specified in the regulations must be stated for each source. . . . The administrative 17 adjudicator has the obligation in the first instance to show his or her work, i.e., to explain in detail how the factors actually were applied 18 in each case, to each medical source. 19 Hardy, 554 F.Supp.3d at 909; see also Loucks v. Kijakazi, 21-1749, 2022 WL 2189293, at *2 20 (2nd Cir. 2022) (“the ALJ committed procedural error by failing to explain how it considered the 21 supportability and consistency of medical opinions in the record”); Dogan v. Kijakazi, Civil 22 Action No. 6:21-3291 RMG, 2022 WL 4092461, at *4 (D. S.C. Sept. 7, 2022) (“where . . . there 23 is significant record evidence supporting Plaintiff’s claim of disability and the regulation requires 24 the ALJ to consider all of the factors under 404.1520c(c), the Court cannot confirm that this was 25 actually done without the ALJ confirming he considered all five factors set forth in § 404.1520c 26 and explaining how he weighed those factors”); Lucas v. Commissioner of Social Security, Case 27 28 4 Dr. Francisco not only cited to, but apparently “enclosed” the MRI relied upon. (Tr. at 558.) 1 No: 6:21-cv-1836 DAB, 2022 WL 2901219, at *4 (M.D. Fla. July 22, 2022) (“The Court finds 2 that the ALJ’s lack of analysis of the supportability of ARNP Rodríguez’s opinion frustrates 3 meaningful review”). Accordingly, plaintiff is entitled to summary judgment on this claim. 4 CONCLUSION 5 After having found error, “‘[t]he decision whether to remand a case for additional 6 evidence, or simply to award benefits[,] is within the discretion of the court.’” Trevizo v. 7 Berryhill, 871 F.3d 664, 682 (9th Cir. 2017) (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 8 (9th Cir. 1987)). A case may be remanded under the “credit-as-true” rule for an award of benefits 9 where: 10 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 11 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 12 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. 13 14 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). 15 Even where all the conditions for the “credit-as-true” rule are met, the court retains 16 “flexibility to remand for further proceedings when the record as a whole creates serious doubt as 17 to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” Id. at 18 1021; see also Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court 19 concludes that further administrative proceedings would serve no useful purpose, it may not 20 remand with a direction to provide benefits.”); Treichler v. Commissioner of Social Sec. Admin., 21 775 F.3d 1090, 1105 (9th Cir. 2014) (“Where . . . an ALJ makes a legal error, but the record is 22 uncertain and ambiguous, the proper approach is to remand the case to the agency.”). 23 Here, based on the record and the nature of the ALJ’s error, the Court cannot find that 24 further proceedings would serve no useful purpose. This matter, therefore, will be remanded for 25 further proceedings consistent with this order. 26 //// 27 //// 28 //// 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff's motion for summary judgment (ECF No. 18) is granted; 3 2. Defendant’s cross-motion for summary judgment (ECF No. 22) is denied; 4 3. The Commissioner’s decision is reversed; 5 4. This matter is remanded for further proceedings consistent with the order; and 6 5. The Clerk of the Court shall enter judgment for plaintiff and close this case. 7 8 Dated: September 12, 2022 10 BORAH BARNES 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 DLB:6 22 | DB\orders\orders.soc sec\chankhiao0186.ord 23 24 25 26 27 28