(SS) Hernandez v. Commissioner of Social Security ( 2022 )

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 MAYRA MARGARITA HERNANDEZ, Case No. 1:20-cv-00897-JLT-EPG 13 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT THE DECISION OF THE 14 v. COMMISSIONER OF SOCIAL SECURITY BE REVERSED AND THE CASE BE 15 COMMISSIONER OF SOCIAL SECURITY, REMANDED FOR AN AWARD OF 16 Defendant. BENEFITS 17 (ECF Nos. 1, 30). 18 FOURTEEN (14) DAY DEADLINE 19 20 This matter is before the Court on Plaintiff’s complaint for judicial review of an 21 unfavorable decision by the Commissioner of the Social Security Administration regarding her 22 application for disability benefits.1 On May 18, 2022, this action was reassigned to the 23 undersigned. (ECF No. 37). 24 Plaintiff’s disability determination was previously appealed to this Court in 1:17-cv-912- 25 EPG. In that case, the Court reversed and remanded the ALJ’s decision and ordered that a certain 26 medical opinion be credited as true and, “[t]o the extent the Commissioner believes that jobs are 27 1 Plaintiff applied for disability insurance benefits and supplemental security income. This Court uses 28 “disability benefits” to collectively refer to the benefits sought. 2 Expert if she sees fit. If the Commissioner does not so believe, or a Vocational Expert finds that 3 the limitations preclude employment, benefits shall be awarded.” (1:17-cv-912-EPG – ECF No. 4 28, pp. 5-6). On remand, the ALJ solicited additional medical opinions, which concluded that 5 Plaintiff was not disabled. Based on these medical opinions, yet purportedly crediting as true the 6 prior medical opinion, the ALJ concluded Plaintiff was disabled at the time of the first medical 7 opinion, but that disability ended on December 5, 2018—the day before a subsequent medical 8 examination. 9 Plaintiff presents the following issue for decision: “The ALJ violated the law of the case 10 doctrine by scheduling a consultative examination[] and calling a medical expert despite the 11 District Court’s Order.” (ECF No. 30, p. 1). 12 The Court, having reviewed the record, administrative transcript, the briefs of the parties, 13 and the applicable law, recommends as follows: 14 I. BACKGROUND 15 As described briefly above, Plaintiff had an earlier case, 1:17-cv-912-EPG, before the 16 undersigned challenging her denial of disability benefits. At the administrative level, Plaintiff had 17 applied for disability benefits in 2014, alleging disability since June 26, 2013. (A.R. 228-43). 18 After a hearing, ALJ Cynthia Floyd issued a decision in May 2016, concluding that Plaintiff was 19 not disabled. (A.R. 34-35). ALJ Floyd found that Plaintiff suffered from the following severe 20 impairments: obesity, mild lumbosacral disc space narrowing at L3-L4, mild lower lumbar facet 21 arthropathy, and bilateral knee degenerative joint disease. (A.R. 25). ALJ Floyd ultimately found 22 Plaintiff not disabled, in part because she gave little weight to the opinion of Plaintiff’s treating 23 physician, Dr. Claudia Padron. 24 Plaintiff sought review from this Court by filing a complaint on July 11, 2017, challenging 25 the ALJ’s assignment of little weight to the opinion of treating physician Dr. Claudia Padron. 26 (1:17-cv-912-EPG – ECF No. 15). In an order entered September 28, 2018, the Court held that 27 the ALJ failed to provide specific and legitimate reasons supported by substantial evidence in the 28 record to give Dr. Padron’s opinion little weight. (1:17-cv-912-EPG – ECF No. 28). In 2 Given the limitations expressed by Dr. Padron, it appears highly likely that Plaintiff is disabled. Those limitations include an inability to sit less than 2 hours 3 or stand/walk less than 2 hours, an inability to lift and carry more than 10 pounds, an expectation that Plaintiff would be off-task 20% of the time, and would be 4 absent from work 4 or more days per month. However, the Vocational Expert 5 testimony does not appear to have addressed precisely this hypothetical, and this Court is wary to assume a lack of jobs without such testimony. 6 Accordingly, the Court will REVERSE and REMAND to the ALJ with 7 instructions for further administrative proceedings consistent with this opinion. Dr. Padron’s limitations expressed on AR 655 shall be credited as true. To the extent 8 the Commissioner believes that jobs are available notwithstanding these 9 limitations, the ALJ may solicit the testimony of a Vocational Expert if she sees fit. If the Commissioner does not so believe, or a Vocational Expert finds that the 10 limitations preclude employment, benefits shall be awarded. 11 (1:17-cv-912-EPG – ECF No. 28, pp. 5-6). 12 On July 21, 2017, after Plaintiff had filed her complaint in 1:17-cv-912-EPG, but before 13 any decision was issued, Plaintiff filed another application for benefits. (A.R. 1249-56). On 14 November 30, 2018, after this Court’s decision in 1:17-cv-912-EPG, the Appeals Council 15 consolidated Plaintiff’s 2014 and 2017 claims and sent the case to a new ALJ for decision. (A.R. 16 1113) (citing 20 C.F.R. § 416.1452 - permitting consolidation of cases when they involve same 17 issues). 18 The Appeals Council gave the following instruction: 19 On remand, the Court’s order requires that the Administrative Law Judge credit as true the opinion of Claudia Padron, M.D., from December 4, 2015 (Exhibit 15F). 20 That opinion indicates that the claimant cannot sit even two hours or stand/walk 21 even two hours, which would preclude fulltime work (Social Security Ruling 96- 8p). However, remand is warranted to determine the point in time at which such 22 limitations apply, as the claimant alleges that she became disabled from working as of June 2013, Dr. Padron notes she first began treating the claimant in late 2014, 23 and Dr. Padron’s written opinion does not identify the date at which her opined 24 limitations began (Exhibit l 5F). (A.R. 1113). 25 On December 5, 2018, five days after the Appeals Council’s remand, Plaintiff met with 26 consultative examiner Dr. Mickey Sachdeva for an internal medicine evaluation, which resulted 27 in a report generally opining that Plaintiff had few limitations. (A.R. 1587). 28 2 Duane Young, requested the medical expert testimony of Dr. James Todd. (A.R. 1246). Dr. Todd 3 had not examined or treated the Plaintiff. (A.R. 2096) 4 On January 7, 2020, Plaintiff, through counsel, amended the onset date of her disability 5 from June 26, 2013, to June 4, 2015. (A.R. 1265). 6 On March 30, 2022, ALJ Young issued a decision awarding benefits until December 4, 7 2018, which was the day before the examination with consulting examiner Dr. Sachdeva. (A.R. 8 993). However, ALJ Young found her not disabled after that time. 9 On June 26, 2020, Plaintiff filed her complaint in the instant case, 1:20-cv-897-JLT-EPG. 10 After briefing, the District Judge deemed this case and 1:17-cv-912-EPG related, reassigning the 11 matter to the undersigned. (ECF No. 37). 12 II. ANALYSIS 13 A. Standards 14 Citing the law of the case doctrine, Plaintiff argues that it was error to schedule a 15 consultative exam with Dr. Sachdeva and to solicit Dr. Todd’s testimony. (ECF No. 30, p. 5). 16 Although Plaintiff’s argument is presented under the law of the case doctrine, she also mentions 17 the rule of mandate. (Id.). 18 The Ninth Circuit has held “that both the law of the case doctrine and the rule of mandate 19 apply in the social security context.” Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir. 2016). The 20 principles are similar but not the same. 21 The 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. 22 Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012). The doctrine is concerned primarily with efficiency, and should not be applied when the evidence 23 on remand is substantially different, when the controlling law has changed, or 24 when applying the doctrine would be unjust. See Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir. 1991). 25 . . . . 26 “The rule of mandate is similar to, but broader than, the law of the case doctrine.” 27 United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995). The rule provides that any “district court that has received the mandate of an appellate court cannot vary or 28 examine that mandate for any purpose other than executing it.” Hall, 697 F.3d at mandate.” Id. But the district court commits “jurisdictional error” if it takes actions 2 that contradict the mandate. 3 Id. at 567-68 (internal footnote omitted). 4 Once a case is remanded based on a finding that an ALJ improperly rejected a medical 5 opinion, the ALJ may not revisit the medical opinions and testimony. The Ninth Circuit explained 6 this rule as follows in connection with the “credit-as-true” doctrine: Although the Commissioner argues that further proceedings would serve the 7 “useful purpose” of allowing the ALJ to revisit the medical opinions and testimony 8 that she rejected for legally insufficient reasons, our precedent and the objectives of the credit-as-true rule foreclose the argument that a remand for the purpose of 9 allowing the ALJ to have a mulligan qualifies as a remand for a “useful purpose” 10 under the first part of credit-as-true analysis. See Benecke, 379 F.3d at 595 (“Allowing the Commissioner to decide the issue again would create an unfair 11 ‘heads we win; tails, let’s play again’ system of disability benefits adjudication.”); Moisa, 367 F.3d at 887 (“The Commissioner, having lost this appeal, should not 12 have another opportunity to show that Moisa is not credible any more than Moisa, 13 had he lost, should have an opportunity for remand and further proceedings to establish his credibility.” (citation omitted)). 14 Garrison v. Colvin, 759 F.3d 995, 1021–1022 (9th Cir. 2014). 15 B. Analysis 16 Plaintiff argues that “[t]he plain language and spirit of this Order [did] not permit the 17 Agency to gather new evidence in order to contradict or limit Dr. Padron’s opinion.” (ECF No. 18 30, p. 6). Defendant counters that ALJ Young permissibly obtained new evidence concerning 19 whether Plaintiff’s disability ended and properly considered evidence of medical improvement. 20 (ECF 31, at p. 3). 21 Based on case law cited above, the Court looks to whether the ALJ varied from the 22 mandate, decided an issue foreclosed by that mandate, or took actions that contradicted the 23 mandate. The Court also keeps in mind the Ninth Circuit’s direction that, on remand, an ALJ 24 should not “revisit the medical opinions and testimony that she rejected for legally insufficient 25 reasons.” Garrison, 759 F.3d at 1022. 26 Again, the relevant mandate stated: “Dr. Padron’s limitations expressed on AR 655 shall 27 be credited as true. To the extent the Commissioner believes that jobs are available 28 2 sees fit. If the Commissioner does not so believe, or a Vocational Expert finds that the limitations 3 preclude employment, benefits shall be awarded.” (1:17-cv-912-EPG – ECF No. 28, pp. 5-6). Dr. 4 Padron’s medical opinion was dated December 4, 2015. (A.R. 655). 5 Here, contrary to the mandate and Ninth Circuit precedent, the ALJ revisited the medical 6 opinions and other evidence surrounding the period covered by that medical opinion on remand. 7 The ALJ’s opinion addressed Plaintiff’s entire medical file, including reports from 2009 on, 8 which predated the Padron medical opinion addressed in the Court’s prior decision. (See, e.g., 9 A.R. 1003 (“As for the claimant’s alleged respiratory distress syndrome, in May 2009, a 10 pulmonary function test was normal (Exhibit 4F, p. 8). The claimant was hospitalized in June 11 2013 for dyspnea and asthma. She developed respiratory distress and required BiPAP.”); A.R. 12 1004 (“My review of the evidence reveals relatively mild abnormalities in all imaging.”)). The 13 ALJ also re-reviewed Plaintiff’s function reports and medical opinions that were part of the 14 record at the initial determination and on appeal. It also reviewed Plaintiff’s activities of daily 15 living from this time period. (A.R. 1007 (“The claimant reported in February 2014 that she took 16 care of her personal grooming needs, ironed, cleaned her room, did laundry with help, did not 17 drive due to severe anxiety and lightheadedness, shopped, and visited with others.”)). None of 18 this re-review of the evidence is consistent with a mandate to credit a medical opinion as true and 19 evaluate whether “jobs are available notwithstanding these limitations.” Instead, the ALJ 20 improperly revisited the medical evidence and opinions that had already been weighed and 21 evaluated on appeal. 22 Additionally, contrary to the mandate and Ninth Circuit precedent, the ALJ reevaluated 23 the very opinion that was supposed to be credited as true and expressed detailed criticism of it, 24 stating: 25 I find this opinion suggests limitations that are well beyond the support of the objective evidence. 26 Also, this opinion lacks a level of specificity that would lead a reasonable person 27 toward similar conclusions and, in part, lacks a clear nexus between the limitations and impairments. While it is unconventional to rely on such nebulous terminology 28 vagaries of this report by comparing it to the evidence and consulting a medical 2 expert for additional guidance. 3 In her own medical records of February 8, 2016, Dr. Padron refers to the lumbar spine x-rays as showing only mild arthritic changes (Exhibit 17F, p. 1). 4 Subsequent imaging of the lumbar spine also show only mild abnormalities 5 (Exhibit 16F, p. 194) or were unremarkable but for a very slight levo-curvature that could be positional, and with mild arthritic changes (Exhibit 10F, p. 3). I note 6 that Dr. Padron did not mention a chronic pain syndrome diagnosis as supporting the limitations given. Dr. Padron specifically states that osteoarthritis in the hips 7 and knees supported the limitations on sitting, standing, and walking. However, 8 the available x-rays indicate only mild and minimal degenerative changes in the knees and hips. Dr. Padron notes that the claimant has daily, moderate pain that 9 “sometimes” rises to become severe pain. Dr. Padron does not define what 10 “sometimes” means. Dr. Padron notes that the claimant’s subjective reports of tenderness in her joints, but does not note swelling (in the joints) as 11 clinical findings and objective signs supportive of the limitations assessed. Dr. Padron stated that arthritis of the shoulders and hands supported finding the 12 claimant had "significant" (but undefined) manipulative limitations. The vague and 13 undefined manipulative limitations are of little help in assessing specific functional limitations. There are no imaging studies indicating the claimant has arthritis in the 14 shoulders and hands. No other medical source opined on the existence of any manipulative limitations for the claimant. Therefore, to the extent that this 15 manipulative limitation in Dr. Padron’s medical source statement could be 16 interpreted as indicating disabling limitations existing for more than 12 months, it is inconsistent with the record in evidence. 17 (A.R. 1009-10). Then, after criticizing Dr. Padron’s opinion as cited above, ALJ Young stated 18 that, “[d]espite these evidentiary anomalies, the Court has ordered this residual functional 19 capacity ‘must be accepted as true.’” (A.R. 1010 (quotations in original)). Notwithstanding ALJ 20 Young’s statement that he would nevertheless credit Dr. Padron’s opinion as true, this evaluation 21 and criticism of Dr. Padron’s opinion was clearly inconsistent the mandate. 22 The Commissioner does not defend such analysis or argue that it was proper to re-weigh 23 all of the evidence on remand. Instead, the Commissioner argues that the ALJ’s decision merely 24 evaluated new evidence from a new time period, i.e., after Dr. Padron’s opinion, and concluded 25 that there had been a medical improvement after this date. Indeed, ALJ Young states his 26 conclusion in such terms. (A.R. 1014 (“In comparing the claimant’s residual functional capacity 27 for the period during which she was disabled with the residual functional capacity beginning 28 2 increased.”)). 3 However, it is clear from the ALJ’s opinion and new medical testimony that ALJ Young 4 did not in fact find evidence of a change in medical condition. Instead, he improperly relied on 5 medical opinions about the same impairments as at issue in Dr. Padron’s opinion. 6 As ALJ Young’s opinion states, Plaintiff’s underlying impairments did not change from 7 the initial determination to ALJ Young’s subsequent opinion. (A.R. 1013 (“Thus, the claimant’s 8 current severe impairments are the same as that present from June 4, 2015 through December 4, 9 2018.”)). Plaintiff also testified at the hearing on remand that her condition had worsened—not 10 improved. (A.R. 2116 (“[Question:] Now would you say that your problems are getting better or 11 worse over time? [Answer] Worse.”)). Similarly, the new report of consulting examiner 12 Sachdeva refers to the same impairments as on the initial determination. (A.R. 1587 (reporting 13 “female who reports she has back pain for last 5 years, knee pain also for the last 5 years with on 14 and off swelling in her knees”)). Nowhere in ALJ Young’s opinion does he cite to any evidence 15 that Plaintiff’s underlying physical conditions changed. 16 Moreover, the new medical expert who reviewed Plaintiff’s records2 and testified at the 17 hearing on remand, Dr. Todd, based his opinion on issues regarding Plaintiff’s credibility and 18 medication compliance—not any actual change in her underlying condition after the time of Dr. 19 Padron’s opinion. Dr. Todd started his testimony by confirming that Plaintiff still had the same 20 underlying conditions as were evaluated by Dr. Padron: “I want to begin by saying she has a 21 chronic pain syndrome exactly as described in 15F [Dr. Padron’s opinion], with fatigue, joint 22 pain, anhedonia, knees, hands, shoulder pain.” (A.R. 2097). However, Dr. Todd then raised 23 several questions regarding Plaintiff’s credibility and treatment compliance, stating: 24 [W]e have to take into account the doctor’s recommendation for treatment, whether it be taking a pill to get better or whether it be going to physical therapy or 25 whether it be going to a chronic pain management group. So I’ve taken that into account, Your Honor, looking at what was recommended by Dr. Padron in Exhibit 26 15F and the treatment was recommended, chronic pain management, and those 27 notes are at 26F and 27F. And they disclose that she has only gone to pain 28 2 Dr. Todd did not examine Plaintiff. management. There are only two visits so I would dispute that she is actively being 2 treated by chronic pain management. There are no clinical notes indicating that she’s taking the proper treatment as would be recommended by Dr. Padron in 3 Exhibit 15F. So she has this problem but she’s not following directions of the pain management doctors. 4 (A.R. 2098). The ALJ then asked, “was there any information indicating whether that was due to 5 a lack of insurance or ability to pay for it, sir, the treatment?” Dr. Todd answered, “I would have 6 no knowledge on that.” (A.R. 2098). Dr. Todd then questioned certain records regarding 7 Plaintiff’s medication, including that she “was intermittently taking other medications,” which led 8 him to believe that she had been taking “somebody else’s narcotic medications, which is against 9 the contracting rule.” (A.R. 2099). Based on these supposedly inconsistent records of 10 medications, Dr. Todd testified, “it’s not clear to me where she’s in pain or not. She certainly 11 needs narcotics but – I mean she certainly needs opiates but does she need them every day or 12 once in a while? It’s very unclear how much pain she needs.” (A.R. 2099). Elsewhere, Dr. Todd 13 questioned, “it’s unclear what the source of her pain is,” and “[i]t’s not clear if she’s going to 14 physical therapy.” (A.R. 2101). 15 The ALJ then asked Dr. Todd “what would be the limitations you would expect to be 16 supported by the record?” (A.R. 2104). Dr. Todd answered: 17 Well, so Your Honor, there’s two answers to that question. I’m going to begin by 18 saying the two answers. The first answer is based on Exhibit 15F and the 19 patient’s own complaints in the record, she would not be able to do any kind of work at all. She wouldn’t even be able to work for one hour in a 24-hour period. 20 That’s one opinion. Now I have a second opinion. Based on the longitudinal clinical record, including the physical therapy notes at 32F, page 266, the chronic 21 pain management notes at 27F, page 4, 26F, page 13, where her exam is 22 completely normal, she would be able to stand and walk six out of eight hours a day, she would be able to lift and carry 10 pounds frequently and 20 pounds 23 occasionally throughout an eight-hour workday based on the neurologic exams by the doctors and by the physical therapist. 24 (A.R. 2104) (emphasis added). Again, Dr. Todd explained his opinion as a “second opinion” to 25 Dr. Padron’s, based on the medical evidence. He did not say his opinion was based on medical 26 improvement from Plaintiff. 27 At the prompting of ALJ Young, Dr. Todd then gave the opinion that the limitations in 28 2 (A.R. 2106 (“[Question:] Now those limitations in that opinion, is there a reasonable certainty 3 that you can see from the record that those kinds of limitations would be in existence for at least a 4 12-month period someplace in the file? [Answer:] No. She was referred to chronic pain 5 management shortly after this was filled out and went to two visits. She also went to physical 6 therapy for one visit at 32F, page 266. There’s no – these would be a temporary problem that 7 would last for maybe three months.”)). This opinion too contradicted the mandate to credit Dr. 8 Padron’s opinion as true that award benefits if “the limitations preclude employment.” 9 Another indication that ALJ Young reconsidered the medical evidence rather than making 10 a true determination of changed condition is that he gave significant weight to the state agency 11 consultants from the initial proceeding, who contradicted Dr. Padron’s opinion. (A.R. 1006 (“The 12 Administrative Law Judge gives significant weight to the light exertional and postural limitations 13 described by the State agency consulting physicians at both the initial and reconsideration levels 14 as they [are] more consistent with the longitudinal evidence even considering the minimal to mild 15 musculoskeletal degenerative changes.”)). This too is not consistent with the direction to credit 16 Dr. Padron’s opinion as true on remand. 17 Thus, setting aside whether it would be legally permissible to terminate disability 18 payments upon a true finding of medication improvement on remand, that is not what ALJ Young 19 did here. ALJ Young did not truly credit Dr. Padron’s opinion and then assess changes in 20 Plaintiff’s medical circumstances. Rather, ALJ Young re-evaluated all the medical evidence from 21 the prior proceeding, gave weight to opinions that contradicted Dr. Padron’s, extensively 22 criticized the opinion of Dr. Padron, gave substantial weight to a doctor who gave a “second 23 opinion” to Dr. Padron, and then cut-off benefits at the date of the second opinion. 24 Thus, although ALJ Young terminated benefits only after the date of Dr. Padron’s 25 opinion, that decision was not consistent with the mandate to credit Dr. Padron’s opinion as true 26 and award benefits if the limitations expressed in that opinion precluded employment. 27 \\\ 28 \\\ 1 | I. CONCLUSION AND RECOMMENDATIONS 2 Accordingly, based on the foregoing, it is HEREBY RECOMMENDED that: 3 1. The decision of the Commissioner of the Social Security Administration be reversed; 4 2. The matter be remanded for the immediate award of benefits; and 5 3. The Clerk of Court be directed to enter judgment in favor of Plaintiff and to close this 6 case. 7 These findings and recommendations will be submitted to the United States District Judge 8 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 9 | (14) days after being served with these findings and recommendations, any party may file written 10 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 11 | Findings and Recommendations.” 12 The Parties are advised that failure to file objections within the specified time may result 13 | in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 14 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 | IT IS SO ORDERED. 'T | Dated: _ June 6, 2022 [JEP hy — 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 11