1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-EASTERN DIVISION 11 12 DOUGLAS LEE BEASON, SR., ) Case No. EDCV 19-00590-AS 13 ) Plaintiff, ) MEMORANDUM OPINION AND 14 ) v. ) ORDER OF REMAND 15 ) ANDREW M. SAUL, Commissioner ) 16 of Social Security,1 ) ) 17 Defendant. ) ) 18 19 For the reasons discussed below, IT IS HEREBY ORDERED that, 20 pursuant to Sentence Four of

(g), this matter is remanded 21 for further administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 On April 3, 2019, Plaintiff filed a Complaint seeking review of the 26 denial of his application for Disability Insurance Income. (Docket 27 28 1 Andrew M. Saul is now the Commissioner of the Social Security Administration and is substituted in for Acting Commissioner Nancy A. Berryhill in this case. See Fed.R.Civ.P. 25(d). 1 Entry No. 1). The parties have consented to proceed before the 2 undersigned United States Magistrate Judge. (Docket Entry Nos. 11-12). 3 On August 28, 2019, Defendant filed an Answer along with the 4 Administrative Record (“AR”). (Docket Entry Nos. 15-16). On November 5 25, 2019, the parties filed a Joint Stipulation (“Joint Stip.”) setting 6 forth their respective positions regarding Plaintiff’s claim. (Docket 7 Entry No. 17). 8 9 The Court has taken this matter under submission without oral 10 argument. See C.D. Cal. L.R. 7-15. 11 12 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 13 14 On July 24, 2017, Plaintiff, formerly employed as a security and 15 law enforcement custody officer and detention officer, a San Bernardino 16 municipal enforcement officer, a Spring Lake public safety/boat patrol 17 officer, and a Riverside College Police Department police 18 officer/traffic officer (see AR 41-42, 207-12), filed an application for 19 Disability Insurance Benefits, alleging an inability to work because of 20 a disabling condition since March 30, 2017. (See AR 19, 170-73). 21 Plaintiff’s application was denied initially on October 23, 2017 and on 22 reconsideration on January 19, 2018. (See AR 65, 98). 23 24 On September 5, 2018, the Administrative Law Judge (“ALJ”), Susanne 25 M. Cichanowicz, heard testimony from Plaintiff (represented by counsel) 26 and vocational expert (“VE”) Ms. Rae. (See AR 36-64). On September 21, 27 2018, the ALJ issued a decision denying Plaintiff’s application. (See 28 AR 19-29). Applying the five-step sequential process, the ALJ found at step one that Plaintiff had not engaged in substantial gainful activity 1 since March 30, 2017. (AR 21-22). At step two, the ALJ determined that 2 Plaintiff had the following severe impairments “diabetes mellitus with 3 peripheral neuropathy, chronic diabetic ulceration of the left lower 4 extremity with osteomyelitis, Charcot foot of the right lower extremity, 5 and obesity”. (AR 22).2 At step three, the ALJ determined that 6 Plaintiff did not have an impairment or combination of impairments that 7 met or equaled the severity of one of the listed impairments. (AR 23). 8 9 The ALJ then assessed Plaintiff’s residual functional capacity 10 (“RFC”)3 and concluded that Plaintiff could perform sedentary work4 with 11 the following limitations: can lift and/or carry 20 pounds occasionally 12 and 10 pounds frequently; can stand and/or walk for 2 hours out of an 8- 13 hour workday with regular breaks; and sit for 6 hours out of an 8-hour 14 workday; can occasionally push and pull with the bilateral lower 15 extremity; can climb ramps and stairs occasionally; can never climb 16 ladders, ropes or scaffolds; can balance, stoop, kneel, crouch, and 17 crawl occasionally; must avoid exposure to uneven terrain and hazards, 18 such as unprotected heights and moving mechanical parts; and requires a 19 20 21 2 The ALJ found that Plaintiff’s complaints of right shoulder pain was not a medically determinable impairment and that his mental 22 impairments –- anxiety, depression and post-traumatic stress disorder –- were non-severe. (AR 22-23). 23 3 A Residual Functional Capacity is what a claimant can still do 24 despite existing exertional and nonexertional limitations. See

(a)(1). 25 4 “Sedentary work involves lifting no more than 10 pounds at a 26 time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one 27 which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if 28 walking and standing are required occasionally and other sedentary criteria are met.”

(a). 1 hand-held cane for ambulation at any distance at the work site. (AR 23- 2 27). 3 4 At step four, the ALJ determined that Plaintiff was unable to 5 perform any past relevant work. (AR 27). At step five, the ALJ 6 determined, based on Plaintiff’s age, education, experience, RFC, and 7 the VE’s testimony, that there are jobs that exist in significant 8 numbers in the national economy that Plaintiff can perform (AR 27-28), 9 and therefore found that Plaintiff was not disabled within the meaning 10 of the Social Security Act. (AR 28). 11 12 The Appeals Council denied Plaintiff’s request for review on 13 February 15, 2019. (See AR 1-5). Plaintiff now seeks judicial review 14 of the ALJ’s decision, which stands as the final decision of the 15 Commissioner. See

(g), 1383©. 16 17 STANDARD OF REVIEW 18 This Court reviews the Commissioner’s decision to determine if it 19 is free of legal error and supported by substantial evidence. See 20 Brewes v. Comm’r,

(9th Cir. 2012). “Substantial 21 evidence” is “more than a mere scintilla, but less than a 22 preponderance[.]” Garrison v. Colvin,

(9th Cir. 23 2014)(citation omitted). To determine whether substantial evidence 24 supports a finding, “a court must consider the record as a whole, 25 weighing both evidence that supports and evidence that detracts from the 26 [Commissioner’s] conclusion[.]”

(citations and quotation 27 marks omitted). As a result, “[w]here the evidence can support either 28 affirming or reversing [the ALJ’s] decision, [a court] may not 1 substitute [its] judgment for that of the [ALJ].”

(citation 2 omitted).5 3 4 PLAINTIFF’S CONTENTIONS 5 6 Plaintiff alleges that the ALJ erred in failing to properly reject 7 the opinion of Plaintiff’s treating physician. (See Joint Stip. at 4- 8 12, 24-29). 9 10 DISCUSSION 11 12 After consideration of the record as a whole, the Court finds that 13 the Commissioner’s findings are supported by substantial evidence and 14 are free from legal error. 15 16 17 A. The ALJ Erred in Failing to Properly Assess the Opinion of 18 Plaintiff’s Treating Physician, Esther Lee, M.D. 19 20 Plaintiff asserts that the ALJ failed to properly consider the 21 opinion of Plaintiff’s treating physician, Dr. Lee. (See Joint Stip. at 22 4-12, 24-29). Defendant asserts that Dr. Lee’s recommendation was not 23 a medical opinion and alternatively that the ALJ properly evaluated Dr. 24 Lee’s opinion. (See Joint Stip. at 13-23). 25 26 5 The harmless error rule applies to the review of 27 administrative decisions regarding disability. See McLeod v. Astrue,

(9th Cir. 2011); Burch v. Barnhart,

, 28 679 (9th Cir. 2005)(An ALJ’s decision will not be reversed for errors that are harmless). 1 An ALJ must consider and evaluate the persuasiveness of all medical 2 opinions or prior administrative medical findings from medical sources. 3

.1520c(a).6 The factors for evaluating the persuasiveness 4 of medical opinions and prior administrative medical findings include 5 supportability, consistency, relationship with the claimant (including 6 length of the treatment, frequency of examinations, purpose of the 7 treatment, extent of the treatment, and the existence of an 8 examinations), specialization, and “other factors that tend to support 9 or contradict a medical opinion or prior administrative medical findings 10 (including, but not limited to, “evidence showing a medical source has 11 familiarity with the other evidence in the claim or an understanding of 12 our disability program’s policies and evidentiary requirements).” 20

.1520c(c)(1)-(5). Supportability and consistency are the 14 most important factors, and therefore the ALJ is required to explain how 15 both factors were considered.

.1520c(b)(2). The ALJ 16 may, but is not required to, explain how the other factors were 17 considered.

However, when two or medical opinions or prior 18 administrative findings “about the same issue are both equally well- 19 supported . . . and consistent with the record . . . but are not exactly 20 the same,” the ALJ is required to explain how the other factors were 21 considered.

.1520c(b)(3). 22 23 24 25 6 Since Plaintiff filed his application after March 27, 2017, 20 C.F.R. § 1520c, and not

, applies.

404.1520c changed how the Social Security Administration considers medical opinions and prior administrative medical findings, eliminated 27 the use of the term “treating source,” and eliminated deference to treating source medical opinions. See

.1520c(a); L.R. v. 28 Saul,

, at *3 n. 5 (C.D. Cal. Jan. 17, 2020); see also

, at 62573-74 (Sept. 9, 2016). 1 From October 14, 2015 to approximately June 15, 2018, Plaintiff 2 was treated at Loma Linda Medical Center for various ailments. (See AR 3 644-784, 786-927, 932-1008). On August 2, 2017, Esther Lee, M.D. 4 evaluated Plaintiff for electric mobility. (See AR 860-61). Dr. Lee 5 noted, inter alia, that Plaintiff ambulated into the room without the 6 use of assistive devices, Plaintiff’s transfers were “modified 7 independent,” and Plaintiff ambulated without an assistive device and 8 with a “slightly antalgic” quality. (AR 862). Dr. Lee diagnosed 9 Plaintiff with the following: diabetes mellitus; right charcot foot; 10 osteomyelitis left foot; and history of shoulder pain since the 11 military. (AR 863). Dr. Lee stated that Plaintiff met the criteria for 12 power mobility based on functional limitations due to bilateral 13 foot/ankle issues and chronic right shoulder pain. (Id.). Dr. Lee 14 recommended that as to household mobility, Plaintiff should continue 15 walking with an assistive device, and as to community mobility, 16 Plaintiff should use power mobility. (Id.). 17 18 On August 18, 2017,7 the Major Medical Equipment Committee, chaired 19 by Dr. Lee, sent Plaintiff a letter approving Plaintiff for power 20 mobility, contingent on Plaintiff passing a Safety Test. (See AR 852).8 21 22 Contrary to Defendant’s assertion (see Joint Stip. at 13-16), Dr. 23 Lee’s recommendation that Plaintiff use power mobility for mobility in 24 the community was a medical opinion. The term “medical opinion” is 25 7 The letter, dated August 3, 2017, was signed by Dr. Lee on 26 August 18, 2017. (AR 852). 27 8 According to the ALJ, Plaintiff was issued a motorized scooter in October 2017. (AR 25; but see AR 45 [the ALJ at the hearing stated 28 that Plaintiff was issued the scooter in July 2014]). Plaintiff testified that he was at the hearing with a scooter. (AR 45). 1 defined in pertinent part as “a statement from a medical source about 2 what you can still do despite your impairment(s) and whether you have 3 one or more impairment-related limitations or restrictions in the 4 following abilities: . . . . (i) Your ability to perform physical 5 demands of work activities, such as sitting, standing, walking, lifting, 6 carrying, pushing, pulling, or other physical functions (including 7 manipulative or postural functions, such as reaching, handling, 8 stooping, or crouching)[.]”

(a)(2)(i).9 Dr. Lee clearly 9 was opining that due to Plaintiff’s physical ailments (bilateral 10 foot/ankle issue and chronic right shoulder pain) Plaintiff had 11 “functional limitations,” such as standing and walking, which required 12 him to use power mobility for mobility in the community, which 13 presumably would include the workplace. Defendant has failed to cite, 14 and the Court has been unable to locate, any authority supporting 15 Defendant’s contention that Dr. Lee’s recommendation that Plaintiff use 16 power mobility for mobility in the community would not qualify as a 17 medical opinion. 18 19 As Plaintiff asserts (see Joint Stip. at 6-7), the ALJ did not 20 address or even mention Dr. Lee’s opinion in the Decision. (See AR 19- 21 29). The ALJ erred by failing to consider or discuss any of the factors 22 listed in

.1520c(c)(1)-(5), including the most important 23 factors of supportability and consistency which the ALJ was required to 24 explain,

.1520c(b)(2). See Joseph M.R. v. Commissioner 25 of Social Security,

, *8 (D. Or. Sept. 10, 2019)(“. . . 26 [T]he ALj did not reference [the examining physician’s] examination and 27 28 9

is applicable to this case since Plaintiff’s application was filed after March 27, 2017. See

(a). 8 1 did not articulate if and how he applied those specific factors to 2 determine how much weight to give [the examining physician’s] opinion. 3 . . . On this record the Court concludes the ALJ erred when he failed 4 to consider [the examining physician’s] opinion and failed to provide 5 legally sufficient reasons supported by substantial evidence in the 6 record for doing so.”). 7 8 Since the ALJ did not consider or discuss any of the factors for 9 evaluating the persuasiveness of Dr. Lee’s opinion, the ALJ’s error 10 cannot be deemed “inconsequential to the ultimate nondisability 11 determination.” See Stout v. Comm’r Soc. Sec. Admin.,

, 12 1055 (9th Cir. 2006); Carmickle v. Comm’r Soc. Sec. Admin.,

1155, 1162 (9th Cir. 2008). 14 15 B. Remand Is Warranted 16 17 The decision whether to remand for further proceedings or order an 18 immediate award of benefits is within the district court’s discretion. 19 Harman v. Apfel,

(9th Cir. 2000). Where no 20 useful purpose would be served by further administrative proceedings, or 21 where the record has been fully developed, it is appropriate to exercise 22 this discretion to direct an immediate award of benefits.

at 1179 23 (“[T]he decision of whether to remand for further proceedings turns upon 24 the likely utility of such proceedings.”). However, where, as here, the 25 circumstances of the case suggest that further administrative review 26 could remedy the Commissioner’s errors, remand is appropriate. McLeod 27 v. Astrue,

(9th Cir. 2011); Harman,

- 28 81. 9 1 Since the ALJ failed to properly consider and evaluate the 2 persuasiveness of Dr. Lee’s opinion, remand is appropriate. Because 3 outstanding issues must be resolved before a determination of disability 4 can be made, and “when the record as a whole creates serious doubt as to 5 whether the [Plaintiff] is, in fact, disabled within the meaning of the 6 Social Security Act,” further administrative proceedings would serve a 7 useful purpose and remedy defects. Burrell v. Colvin,

, 8 1141 (9th Cir. 2014). 9 10 ORDER 11 12 For the foregoing reasons, the decision of the Commissioner is 13 reversed, and the matter is remanded for further proceedings pursuant to 14 Sentence 4 of

(g). 15 16 LET JUDGMENT BE ENTERED ACCORDINGLY. 17 18 DATED: February 7, 2020 19 20 /s/ Sagar 21 UNITEH DO N SO TR AA TB EL SE MA AL GK IA S TS RA AG TA ER JUDGE 22 23 24 25 26 27 28 10