1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ELEANORADIANNE R.,1 ) Case No. EDCV 20-1080 (JPR) 11 ) Plaintiff, ) 12 ) MEMORANDUM DECISION AND ORDER v. ) REVERSING COMMISSIONER 13 ) ANDREW SAUL, Commissioner ) 14 of Social Security, ) ) 15 Defendant. ) ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner’s final decision 19 denying her applications for Social Security disability insurance 20 benefits (“DIB”) and supplemental security income benefits 21 (“SSI”). The matter is before the Court on the parties’ Joint 22 Stipulation, filed April 2, 2021, which the Court has taken under 23 submission without oral argument. For the reasons discussed 24 below, the Commissioner’s decision is reversed and this matter is 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 remanded for further proceedings. 2 II. BACKGROUND 3 Plaintiff was born in 1969. (Administrative Record (“AR”) 4 222, 226.) She completed high school and worked as a cashier, 5 housekeeper, and merchandiser. (AR 270.) 6 On August 3, 2015, Plaintiff applied for DIB and SSI, 7 alleging that she had been unable to work since June 5, 2015, 8 because she had “problems with [her] feet” and “blockage of [her] 9 legs” and couldn’t stand or walk for long. (AR 269; see also AR 10 222-32.) After her applications were denied initially (AR 146- 11 50) and on reconsideration (AR 153-58), she requested a hearing 12 before an Administrative Law Judge (AR 160, 162). One was held 13 on February 21, 2019, at which Plaintiff, who was not represented 14 by counsel, testified, as did a vocational expert. (See AR 39- 15 68.) In a written decision issued March 21, 2019, the ALJ found 16 Plaintiff not disabled. (AR 20-31.) She sought Appeals Council 17 review (AR 218-19), which was denied on March 31, 2020 (AR 1-6). 18 This action followed. 19 III. STANDARD OF REVIEW 20 Under

(g), a district court may review the 21 Commissioner’s decision to deny benefits. The ALJ’s findings and 22 decision should be upheld if they are free of legal error and 23 supported by substantial evidence based on the record as a whole. 24 See Richardson v. Perales,

(1971); Parra v. 25 Astrue,

(9th Cir. 2007). Substantial evidence 26 means such evidence as a reasonable person might accept as 27 adequate to support a conclusion. Richardson,

; 28 Lingenfelter v. Astrue,

(9th Cir. 2007). It 2 1 is “more than a mere scintilla, but less than a preponderance.” 2 Lingenfelter,

(citing Robbins v. Soc. Sec. 3 Admin.,

(9th Cir. 2006)). “[W]hatever the 4 meaning of ‘substantial’ in other contexts, the threshold for 5 such evidentiary sufficiency is not high.” Biestek v. Berryhill, 6

(2019). To determine whether substantial 7 evidence supports a finding, the reviewing court “must review the 8 administrative record as a whole, weighing both the evidence that 9 supports and the evidence that detracts from the Commissioner’s 10 conclusion.” Reddick v. Chater,

(9th Cir. 11 1998). “If the evidence can reasonably support either affirming 12 or reversing,” the reviewing court “may not substitute its 13 judgment” for the Commissioner’s.

. 14 IV. THE EVALUATION OF DISABILITY 15 People are “disabled” for Social Security purposes if they 16 are unable to engage in any substantial gainful activity owing to 17 a physical or mental impairment that is expected to result in 18 death or has lasted, or is expected to last, for a continuous 19 period of at least 12 months.

(d)(1)(A); Drouin 20 v. Sullivan,

(9th Cir. 1992). 21 A. The Five-Step Evaluation Process 22 An ALJ follows a five-step sequential evaluation process to 23 assess whether someone is disabled.

(a)(4), 24 416.920(a)(4); Lester v. Chater,

, 828 n.5 (9th Cir. 25 1995) (as amended Apr. 9, 1996). In the first step, the 26 Commissioner must determine whether the claimant is currently 27 engaged in substantial gainful activity; if so, the claimant is 28 not disabled and the claim must be denied. §§ 404.1520(a)(4)(i), 3 1 416.920(a)(4)(i). 2 If the claimant is not engaged in substantial gainful 3 activity, the second step requires the Commissioner to determine 4 whether the claimant has a “severe” impairment or combination of 5 impairments significantly limiting her ability to do basic work 6 activities; if not, a finding of not disabled is made and the 7 claim must be denied. §§ 404.1520(a)(4)(ii) & (c), 8 416.920(a)(4)(ii) & (c). 9 If the claimant has a “severe” impairment or combination of 10 impairments, the third step requires the Commissioner to 11 determine whether the impairment or combination of impairments 12 meets or equals an impairment in the Listing of Impairments 13 (“Listing”) set forth at 20 C.F.R., part 404, subpart P, appendix 14 1; if so, disability is conclusively presumed and benefits are 15 awarded. §§ 404.1520(a)(4)(iii) & (d), 416.920(a)(4)(iii) & (d). 16 If the claimant’s impairment or combination of impairments 17 does not meet or equal one in the Listing, the fourth step 18 requires the Commissioner to determine whether the claimant has 19 sufficient residual functional capacity (“RFC”)2 to perform her 20 past work; if so, she is not disabled and the claim must be 21 denied. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant 22 has the burden of proving she is unable to perform past relevant 23 work. Drouin,

. If the claimant meets that 24 25 2 RFC is what a claimant can do despite existing exertional 26 and nonexertional limitations. §§ 404.1545(a)(1), 416.945(a)(1); see Cooper v. Sullivan,

, 1155 n.5 (9th Cir. 1989). 27 The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill,

(9th Cir. 28 2017) (citing § 416.920(a)(4)). 4 1 burden, a prima facie case of disability is established. Id. 2 If that happens or if the claimant has no past relevant 3 work, the Commissioner bears the burden of showing that the 4 claimant is not disabled because she can perform other 5 substantial gainful work available in the national economy, the 6 fifth and final step of the sequential analysis. 7 §§ 404.1520(a)(4)(v), 404.1560(b), 416.920(a)(4)(v), 416.960(b). 8 B. The ALJ’s Application of the Five-Step Process 9 At step one, the ALJ found that Plaintiff had not engaged in 10 substantial gainful activity since June 5, 2015, the alleged 11 onset date; her date last insured was December 31, 2017. (AR 12 23.) At step two, she determined that Plaintiff had severe 13 impairments of cirrhosis, scoliosis, degenerative disc disease of 14 the cervical spine, “lumbar radiculopathy affecting the right L4 15 and L5 nerve roots,” “distal polyneuropathy,”3 “history of left 16 cerebral subarachnoid and extra-axial hemorrhage4 and hematoma,” 17 “cognitive disorder secondary to subarachnoid brain hemorrhage,” 18 and “history of alcohol abuse.” (Id.) 19 At step three, she found that Plaintiff’s impairments did 20 3 Polyneuropathy results from peripheral-nerve damage. What 21 Is Polyneuropathy?, Healthline, https://www.healthline.com/ 22 health/polyneuropathy (last visited June 11, 2021). Distal polyneuropathy causes burning or tingling sensations, especially 23 in the feet and hands. (Id.) 24 4 Extra-axial hemorrhage is bleeding that occurs within the skull but outside of the brain tissue. Intracranial Hemorrhage, 25 Wikipedia, https://en.wikipedia.org/wiki/Intracranial_hemorrhage 26 (last visited June 11, 2021). One type, subarachnoid hemorrhage, is bleeding in the space between the brain and the surrounding 27 membrane. Subarachnoid Hemorrhage, Mayo Clinic, https:// www.mayoclinic.org/diseases-conditions/subarachnoid-hemorrhage/ 28 symptoms-causes/syc-20361009 (last visited June 11, 2021). 5 1 not meet or equal any of the impairments in the Listing. (AR 23- 2 24.) At step four, she determined that Plaintiff had the RFC to 3 perform light work 4 except she can stand and walk four hours, and she needs 5 an assistive device for long distance (more than 100 6 feet) ambulation to avoid falls. She is limited to 7 occasional use of bilateral lower extremities (foot 8 pedals), occasionally climb ramps and stairs, cannot walk 9 on uneven terrain, occasionally crouch, crawl, kneel, and 10 cannot work at unprotected heights and cannot climb 11 ladders, ropes of [sic] scaffolds. She can frequently 12 reach, handle, finger, and feel. She is limited to 13 simple, routine tasks, and occasional interaction with 14 supervisors, coworkers and the public. 15 (AR 24.) The ALJ found that Plaintiff was unable to perform any 16 past relevant work, but she could work at several jobs 17 “exist[ing] in significant numbers in the national economy.” 18 (AR 29.) Accordingly, she found her not disabled. (AR 30-31.) 19 V. DISCUSSION 20 Plaintiff alleges that the ALJ erred in evaluating her 21 subjective symptom statements and assessing the opinions of 22 treating physician Robert Kounang. (See J. Stip. at 4-14, 20- 23 26.) As discussed below, the ALJ erred by failing to assign any 24 specific weight to Dr. Kounang’s opinions or address his findings 25 that Plaintiff was limited to sedentary work and was unable to 26 climb stairs, walk “efficiently/long distance,” or sit “long 27 term.” (AR 731.) The omission was not harmless because some of 28 the doctor’s findings conflicted with the RFC. Accordingly, 6 1 remand is necessary. 2 A. The ALJ Erred in Failing to Assign Any Particular 3 Weight to Dr. Kounang’s Opinions or Explain Why She Did 4 Not Incorporate Them into the RFC 5 1. Relevant background 6 On April 13, 2017, Dr. Kounang, who specialized in “physical 7 medicine and rehabilitation” and had been treating Plaintiff 8 since March 2016, conducted a “Physical Disability Evaluation” of 9 her. (AR 419-20, 730-31.) She complained that she was “unable 10 to stand/climb stairs” or walk “long distance” because of 11 polyneuropathy and a “[c]ompression fracture” of a vertebra. 12 (AR 730.) She reported that she had had a stroke in 2016 and 13 that she was unable to participate in physical therapy. (Id.) 14 During her examination, Plaintiff’s upper-extremity strength 15 was “3/5” on the right and “3+/5” on the left, her lower- 16 extremity strength was “3/5” bilaterally, she had decreased 17 sensation bilaterally, and she walked with a slow gait. (AR 18 730.) Dr. Kounang opined that her condition did “not allow her 19 to walk efficiently/long distance,” she was unable to climb 20 stairs or sit “long term,” and she was “limited to sedentary 21 work.” (AR 731.) The ALJ did not assign any particular weight 22 to — or even mention — Dr. Kounang’s opinions. (AR 27-29.) 23 2. Applicable law 24 Three types of physicians may offer opinions in Social 25 Security cases: those who directly treated the plaintiff, those 26 who examined but did not treat the plaintiff, and those who did 27 neither. See Lester,

. A treating physician’s 28 opinion is generally entitled to more weight than an examining 7 1 physician’s, and an examining physician’s opinion is generally 2 entitled to more weight than a nonexamining physician’s. Id.; 3 see §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2).5 4 The ALJ may discount a physician’s opinion regardless of 5 whether it is contradicted. Magallanes v. Bowen,

, 6 751 (9th Cir. 1989); see also Carmickle v. Comm’r, Soc. Sec. 7 Admin.,

(9th Cir. 2008). When a doctor’s 8 opinion is not contradicted by other medical-opinion evidence, 9 however, it may be rejected only for a “clear and convincing” 10 reason. Magallanes,

(citations omitted); 11 Carmickle,

(citing Lester,

). 12 When it is contradicted, the ALJ need provide only a “specific 13 and legitimate” reason for discounting it. Carmickle,

(citing Lester,

). The weight given a 15 doctor’s opinion, moreover, depends on whether it is consistent 16 with the record and accompanied by adequate explanation, among 17 other things. See §§ 404.1527(c), 416.927(c); see also Orn v. 18 Astrue,

(9th Cir. 2007) (factors in assessing 19 physician’s opinion include length, nature, and extent of 20 treatment relationship and frequency of examination). 21 In evaluating doctors’ opinions, an ALJ must state what 22 weight she has given each opinion and explain why. See §§ 23 404.1527(c)(2), 416.927(c)(2) (requiring ALJ to “give good 24 25 5 For claims filed on or after March 27, 2017, the rules in 26 §§ 404.1520c and 416.920c (not §§ 404.1527 and 416.927) apply. See §§ 404.1520c, 416.920c (evaluating opinion evidence for 27 claims filed on or after Mar. 27, 2017). Plaintiff’s claims were filed before March 27, 2017, however, and the Court therefore 28 analyzes them under former §§ 404.1527 and 416.927. 8 1 reasons” for rejecting treating doctor’s opinion); SSR 96–2p, 2

, at *5 (July 2, 1996) (noting that ALJ must “give 3 good reasons . . . for the weight given” to treating doctors’ 4 opinions); Edlund v. Massanari,

(9th Cir. 5 2001) (as amended) (“Under 96-2p, reasons must be ‘sufficiently 6 specific to make clear . . . the weight the adjudicator gave to 7 the treating source’s medical opinion and the reasons for that 8 weight.’”). An ALJ errs when she “does not explicitly reject a 9 medical opinion or set forth specific, legitimate reasons for 10 crediting one medical opinion over another.” Garrison v. Colvin, 11

(9th Cir. 2014). 12 3. Analysis 13 In light of the ALJ’s failure to specifically assign any 14 particular weight to Dr. Kounang’s opinions — much less “give 15 good reasons” for apparently rejecting (or not considering) 16 portions of them — the ALJ erred.6 Id.; see also Marsh v. 17 Colvin,

(9th Cir. 2015) (finding 18 reversible error when ALJ didn’t “even mention” treating doctor 19 or his notes); Jose Luis V.H. v. Saul, No. EDCV 18-2618-KS, 2020

, at *4-5 (C.D. Cal. Jan. 16, 2020) (finding reversible 21 22 6 Defendant acknowledges that the ALJ never addressed Dr. 23 Kounang’s opinions but argues that she “implicitly rejected” them by noting that treating doctor Julia Black had found Plaintiff 24 not disabled and that Plaintiff then went to another doctor — “apparently, Dr. Kounang — who would fill out disability papers 25 for her.” (J. Stip. at 25.) But although the ALJ’s decision 26 notes that Dr. Black advised Plaintiff to get a second opinion and that Plaintiff “left mad and angry” and stated that she was 27 “not coming back” (AR 28 (citing AR 441); see also AR 27), it does not even suggest that the ALJ rejected Dr. Kounang’s 28 opinions because they resulted from forum shopping. 9 1 error when ALJ failed to specifically mention doctor’s opinion or 2 give it any weight). 3 The error was not harmless. Dr. Kounang’s statements that 4 Plaintiff was unable to climb stairs or sit “long term” and was 5 limited to sedentary work (AR 731) conflicted with the RFC, which 6 contained no sitting limitation and allowed occasional stair 7 climbing and a range of light work (AR 24). And it is unclear 8 whether Dr. Kounang’s opinion that Plaintiff could not walk 9 “efficiently/long distance” (AR 731) conflicted with the RFC’s 10 “stand and walk four hours” limitation (AR 24). The VE was not 11 asked at the hearing whether any available work with those 12 additional limitations existed. Although the VE testified that 13 certain sedentary jobs were available with Plaintiff’s RFC (AR 14 64), he was not asked whether sedentary work with Dr. Kounang’s 15 additional opined limitations would eliminate all work. Thus, 16 the Court cannot conclude that the ALJ would have reached the 17 same result had she considered and credited Dr. Kounang’s 18 opinions. Marsh,

(ALJ’s failure to discuss 19 treating doctor’s opinion was not harmless because ALJ did not 20 consider doctor’s statement that condition rendered plaintiff 21 “pretty much nonfunctional”). 22 B. Remand for Further Proceedings Is Appropriate 23 When an ALJ errs, the Court “ordinarily must remand for 24 further proceedings.” Leon v. Berryhill,

, 1045 25 (9th Cir. 2017) (as amended Jan. 25, 2018); see also Harman v. 26 Apfel,

(9th Cir. 2000) (as amended). The 27 Court has discretion to do so or to award benefits under the 28 “credit as true” rule. Leon,

(citation 10 1 omitted). “[A] direct award of benefits was intended as a rare 2 and prophylactic exception to the ordinary remand rule[.]”

3 at 1045. The “decision of whether to remand for further 4 proceedings turns upon the likely utility of such proceedings,” 5 Harman,

, and when an “ALJ makes a legal error, 6 but the record is uncertain and ambiguous, the proper approach is 7 to remand the case to the agency,” Leon,

8 (citation omitted). 9 Here, further administrative proceedings would serve the 10 useful purpose of allowing the ALJ to give proper consideration 11 to Dr. Kounang’s opinions. In addition, when a court has 12 “serious doubt” about whether a plaintiff is disabled, remand for 13 further proceedings is appropriate. See Garrison,

1021. Dr. Kounang’s evaluation contained little explanation for 15 the opined limitations, which were contradicted by the other 16 opinion evidence summarized by the ALJ (AR 27-29), suggesting 17 that Plaintiff could perform a range of light work. Moreover, as 18 Defendant points out (J. Stip. at 28 n.8), Plaintiff’s drug and 19 alcohol abuse may have contributed to her impairments.7 Thus, 20 7 Under

(d)(2)(C), a claimant “shall not be 21 considered to be disabled . . . if alcoholism or drug addiction 22 would . . . be a contributing factor material to the Commissioner’s determination that the individual is disabled.” 23 Should the ALJ preliminarily find Plaintiff disabled on remand, she should consider whether § 423(d)(2)(C) applies based on her 24 finding that Plaintiff suffered from a “history of alcohol abuse.” (AR 23.) See §§ 404.1535, 416.935; Bustamante v. 25 Massanari,

(9th Cir. 2001) (discussing alcohol 26 abuse in context of § 423(d)(2)(C)). Although the ALJ also noted Plaintiff’s tobacco abuse (AR 25), it is less clear that tobacco 27 counts as a drug for purposes of § 423(d)(2)(C). Cf. Bean v. Astrue, No. 08-0978-CV-W-ODS.,

, at *3 (W.D. Mo. 28 (continued...) 11 1} remand is appropriate. If the ALJ chooses to discount Dr. 2 || Kounang’s opinions on remand, she can then provide an adequate 3} discussion of the reasons why. 4 Plaintiff also challenges the ALJ’s evaluation of her 5 || subjective symptom statements. (J. Stip. at 22-25 & 26.) The 6} ALJ should reevaluate those once she has properly considered Dr. 7 | Kounang’s opinions, so the Court does not address that argument. 8 || See Negrette v. Astrue, No. EDCV 08-0737 RNB.,

, *2 (C.D. Cal. July 21, 2009) (finding it unnecessary to 10 | address further disputed issues when court found that ALJ failed 11 | to properly consider treating doctor’s opinion and lay-witness 12 || testimony). 13 | VI. CONCLUSION 14 Consistent with the foregoing and under sentence four of 42

(g), IT IS ORDERED that judgment be entered in 16} Plaintiff’s favor and that this action be remanded for further 17 | proceedings consistent with this Memorandum Decision. 18 19 || pareD: June 14, 2021 fi: hronhluatl~ JEAN ROSENBLUTH 20 U.S. Magistrate Judge 21 22 23 24 25 26 27 7 (...continued) 38 Nov. 24, 2009) (discussing tobacco in context of $ □□□ □□□ (2) (C)).

12