Opinion
CV-20-00438-TUC-RCC (DTF)
01-03-2022
Jody Lee Rush, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
HONORABLE D. THOMAS FERRARO, UNITED STATES MAGISTRATE JUDGE
Plaintiff Jody Lee Rush (“Rush” or “Plaintiff”) brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final decision by the Commissioner of Social Security (“Commissioner”) that found he was not disabled. (Doc. 1.) The parties have fully briefed this issue. (Docs. 20, 23-24.) This matter was referred to the undersigned United States Magistrate Judge for report and recommendation. (Doc. 9.) As more fully set forth below, based on the pleadings and the submitted administrative record (“AR”), the Court recommends that the district court, after its independent review, vacate the decision of the Commissioner and remand for further proceedings because the ALJ failed to properly evaluate the medical expert and medical consultants' testimony and opinion evidence.
I. BACKGROUND
Rush was born in 1962. (AR 28.) He has completed the tenth grade and has past relevant work experience as a tile setter. (AR 54, 64.)
On April 9, 2018, Rush filed a Title II application for a period of disability and disability insurance benefits (“DIB”) alleging disability beginning January 1, 2007. (AR 13, 226-27.) On July 11, 2018, Rush's claims were initially denied. (AR 13, 95-98.) On September 20, 2018, Rush's claims were denied on reconsideration. (AR 13, 100-03.) Rush filed a request for a hearing. (AR 104-05.) On January 9, 2020, an administrative hearing was held before Administrative Law Judge (“ALJ”) Tin Tin Chen. (AR 13, 60.) A supplemental administrative hearing was held on May 1, 2020. (AR 13, 26.)
Rush alleged disability of chronic pain, cervical degenerative disc disease, status post lumbar fusion, osteoarthritis, chronic headaches, and insomnia. (AR 299.) In his appeal, Rush focuses on the ALJ's determination of the DIB expiration and the necessity of pre-date-last-insured objective, thus, the content of Rush's medical records are not at issue in his appeal and the Court will pretermit discussion of the medical evidence.
At the initial hearing, Rush testified, and a vocational expert (“VE”) was present but did not testify. Rush moved to amend his alleged onset date to March 1, 2012. (AR 63.) After brief argument from Rush's counsel, the ALJ continued the hearing to seek a medical expert opinion. (AR 68.) At the supplemental hearing, Rush, VE Ronald Hatakeyama, and medical expert Susan Lee, M.D. (“Dr. Lee”) testified. Rush testified regarding his background and symptomology. (AR 48-52.) Specifically, Rush testified that the degenerative nature of his disease began causing severe pain in his back as early as 2006. (AR 48.) He further testified that he is unable to work a full-time position and that he attempted to work a part-time job in 2011 but could not continue because even though it was a primarily sedentary position, he would not be able to sit in one position for his part-time shift as required. (AR 49, 51.) Rush stated that during the relevant time he would have to lie on the floor when he woke up in the mornings because he was unable to straighten out or walk due to pain. (AR 49-50.) Rush testified that he also began to experience the onset of neck pain as early as 2011 that continued to get worse. (AR 50.) Rush stated that he did not seek treatment for his pain due to a lack of medical insurance until he got married in 2012 and was placed on his wife's insurance plan. (AR 52.) Finally, Rush testified that in 2012 he was not able to stand or walk for sixty minutes consecutively.
(AR 52.)
Dr. Lee testified that without objective medical records from the relevant time period in 2012, she would be unable to extrapolate Rush's impairments in March of 2012 from his February of 2013 treatment records. (AR 33-34.) However, Dr. Lee stated that she does believe it is possible for a treating physician who began treating Rush in 2013 to infer past limitations up to a year in the past where they have an established relationship, “some sort of medical records, ” there is a pain history, a physical examination, and they followed the patient. (AR 34, 46.) Dr. Lee clarified that with absolutely no objective medical evidence or documentation she does not believe even a treating physician can extrapolate back to determine limitations a year prior to treatment. Upon questioning by Rush's counsel, Dr. Lee admitted that Rush's symptoms did not develop overnight or even over only a few months, and that there was no evidence in the October 2012 MRI or the February 2013 x-ray that indicates any presence of trauma. (AR 36-38.) Dr. Lee stated that degenerative changes, absent some trauma, usually takes places over many months to years. (AR 39.) Dr. Lee testified that based upon the October 2012 MRI findings and the physical exam at that time, her estimates of Rush's physical limitations in March of 2012 would be mild limitations due to pain with no motor skill, manipulative, environmental, postural, or sitting limitations; Rush could walk and stand continuously for 60 minutes with a 5- to 10-minute break; occasional twisting, pushing, and lifting with occasional lifting of up to 50 pounds and frequent lifting up to 10 pounds. (AR 40-44.)
VE Hatakeyama testified that Rush could not perform his past relevant work, but there were sedentary, unskilled jobs available based on the ALJ's hypothetical limitations. (AR 54-57.) He provided the following examples: document preparer, lens inserter, bench assembler, or information clerk. (AR 55-57.) The ALJ noted that document preparer and information clerk are performed in an office setting and likely require a high school diploma or a GED, which does not apply in this case. (AR 57.) The VE also noted that more than two absences a month would preclude sustaining employment in these positions, and they would require more than occasional upper extremity use with at least frequent reaching, handling, and fingering. (AR 57-58.)
On June 9, 2020, the ALJ issued his unfavorable decision denying Rush's claim. (AR 10.) At step one, the ALJ determined that Rush had not engaged in substantially gainful activity “during the period from his alleged onset date of March 1, 2012 through his date last insured of March 31, 2012.” (AR 15.) At step two, the ALJ determined Rush had the following “medically determinable impairment:” degenerative disc disease of the lumbar spine. (Id.) At step three, the ALJ found that Rush “did not have an impairment or combinations of impairments that significantly limited the ability to perform basic work-related activities for 12 consecutive months; therefore, the claimant did not have a severe impairment or combination of impairments (20 C.F.R. § 404.1521 et seq.).” (AR 16.) The ALJ did not proceed beyond this step.
On September 23, 2020, the Appeals Council denied Rush's request for review thus making the ALJ's unfavorable decision the Commissioner's final decision for purposes of this Court's review under 42 U.S.C. §§ 405(g) and 1383(c)(3). (AR 1-3.) On October 14, 2020, Rush filed a complaint challenging the ALJ's unfavorable decision. (Doc. 1.) This Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
II. ISSUES ON REVIEW
Rush raises four issues on review:
1. Does substantial evidence support the ALJ's finding that the Disability Insurance Benefits (DIB) insured status of Plaintiff, Jody Lee Rush, was March 31, 2012?
2. Assuming arguendo that Mr. Rush's date last insured was March 31, 2012, did the ALJ erroneously require that Mr. Rush have submitted predate-last-insured objective medical evidence to prove that he had a “severe” impairment on or before the date his insured status expired?
3. Assuming arguendo that Mr. Rush's date last insured was March 31, 2012, did the ALJ erroneously fail to evaluate medical expert Dr. Lee's opinions about Mr. Rush's functional limitations before that date?
4. Assuming arguendo that Mr. Rush's date last insured was March 31, 2012, are the findings of non-examining State-agency medical consultants Dr. Swena and Dr. Roberts substantial evidence for the ALJ's Step-2 decision?
(Doc 20 at 1-2.)
III. STANDARD OF REVIEW
A person is disabled if their “physical or mental impairment or impairments are of such severity” that they are unable to do both their previous work and, considering their “age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists” in their immediate area, or whether a specific job vacancy exists for them, or whether they would be hired if they applied for work. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
“The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is “more than a mere scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney on Behalf of Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).
The court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is because the ALJ “and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney on Behalf of Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400, 91 S.Ct. 1420 (1971)); see Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). Even if the ALJ made an error, courts may affirm if the error was harmless, in other words that it was “inconsequential to the ultimate nondisability determination.” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). Courts cannot “affirm the denial of benefits on a ground not invoked by the Commissioner in denying the benefits originally.” Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (quoting Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001)); see Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015).
IV. DISCUSSION
On September 30, 2021, the Commissioner filed its response brief in which she agreed to remand based upon the third and fourth issues presented by Plaintiff, opposed Plaintiff's position on the first issue, impliedly but not expressly agreed with Plaintiff on the second issue. First, the Commissioner agrees that the ALJ's step two finding is inconsistent with “Dr. Lee's testimony regarding the degenerative nature of Plaintiff's condition and the functional limitations that a patient with the same imaging studies was Plaintiff would likely have standing and walking limitations supported findings that his degenerative spinal condition existed prior to his date last insured (“DLI”) and would have had more than a minimal effect on his ability to do work.” (Doc. 23 at 9-10.) The ALJ found Dr. Lee's testimony persuasive and stated that:
Susan Lee, O.D. is a practicing neurologist. (Ex 21F) Prior to the supplemental hearing, she reviewed agreed upon medical records. She then provided her opinion by telephone at the hearing. According to Dr. Lee it would not be possible to extrapolate a patient's limitations back to the claimant's date last insured based on treatment that began in February 2013. (Ex 4F) She indicated that while a treating physician could extrapolate limitations backwards from an initial meeting with a patient, it would
necessarily require a review of past treatment records and/or objective findings and images from the prior period. Dr. Lee concluded that, in her opinion, it was not possible for the claimant's physician, Eric Cornidez, M.D. (Ex 20F), to extrapolate functional limitations as of March 2012, because there was no medical evidence prior to February 2013.
(AR 19.) The Court agrees with the Parties, the ALJ's findings are inconsistent with Dr. Lee's testimony.
The Commissioner further agrees that ALJ's step two finding that Plaintiff does not have a severe impairment is inconsistent with the opinions of Dr. Swena and Dr. Roberts that Plaintiff had a severe spinal impairment during the relevant period, and “erroneously relied on the state agency medical consultants' opinion that there was insufficient evidence to determine Plaintiff's functional limitations (relevant to RFC).” (Doc. 23 at 10.) (citing AR 19) (“The State agency medical consultants found insufficient evidence to determine or infer previous function or lack of function.”); see also AR 88 (Dr. Roberts finding Plaintiff's degenerative disc disease to be “severe”). The Court agrees with the Parties, the ALJ's findings are inconsistent with Dr. Swena's and Dr. Roberts' opinions.
Plaintiff notes that the Commissioner did not directly address his second issue regarding whether the Commissioner erroneously required submission of pre-date-last-insured objective medical evidence to prove that he had a “severe” impairment on or before the date his insured status expired. (Doc. 24 at 2.) While Plaintiff is correct that the issue was not directly addressed, based upon the Commissioners concessions discussed above, it is clear to the Court that this issue is also not in dispute.
Finally, the Commissioner argues that Plaintiff's challenge to whether the ALJ properly calculated Plaintiff's March 31, 2012, DLI is a red herring. (Doc. 23 at 10.) The Commissioner notes that the certified earnings record establishes that Plaintiff's DLI was March 2012, and that at the administrative hearing Plaintiff acknowledged that his DLI was March 31, 2012. (Id.) In his reply brief, Plaintiff stated that he withdraws this issue. (Doc. 24 at 2.) Therefore, the Court will pretermit further discussion on Plaintiff's DLI.
Accordingly, the undersigned Magistrate Judge recommends a finding that the ALJ's decision was not supported by substantial evidence and that the Commissioner's final decision be vacated.
V. REMEDY
A federal court may affirm, modify, reverse, or remand a social security case. 42 U.S.C. § 405(g). The proper course is generally to remand to the agency for additional investigation or explanation. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014).
Initially, Plaintiff requested an award of benefits. (Doc. 20 at 20.) The Commissioner argues that, while it concedes that there is reversible error, the appropriate course is to remand “to the agency on an open record for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).” (Doc. 23 at 14.) Subsequently, Plaintiff withdrew his request to be found disabled on the existing administrative record and his request for an award of benefits. (Doc. 24 at 2.) Plaintiff concedes that the issue should be remanded for further administrative proceedings; however, he questions the lack of an “established, technical meaning” of the term “open record, ” and seeks assurances that a remand “on an open record” shall provide him with an opportunity to a new hearing or to submit additional evidence. (Doc. 24 at 3-4.)
Sentence four of § 405(g) provides that “[t]he court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The Court finds that this cause is due to be remanded for a rehearing.
This Court may also remand the case to the Commissioner to consider new evidence not previously presented to the ALJ as authorized by 42 U.S.C. § 405(g). Sentence six of § 405(g) provides that on remand the Court may “at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g).
Here, although Plaintiff has requested the Court to order the ALJ to allow him to submit additional evidence, Plaintiff does not identify what new and material evidence he wishes to submit, nor does he provide good cause for his failure to submit such evidence into the record in the prior proceeding. Consequently, the Court is unable to order any new evidence to be submitted before the ALJ under sentence six of § 405(g).
However, to the extent that the case is remanded on an “open record, ” the ALJ is certainly able to solicit any supplemental evidence required to satisfy her duty to develop the record fully. While the Court agrees that there does not appear to be an “established, technical meaning” of an “open record” within this circuit or by the SSA, case law makes it fairly evident that the purpose of an ALJ maintaining an open record is to allow the Plaintiff to supplement the record with additional evidence to satisfy the ALJ's duty to develop the record fully. See e.g. Petrosyan v. Massanari, 13 Fed.Appx. 643, 644 (9th Cir. 2001) (holding that the ALJ “satisfied his duty to develop the record fully by holding the record open so that the claimant could supplement the medical evidence”); Williams v. Comm'r of Soc. Sec., No. 17-CV-07164-JD, 2019 WL 5102574, at *4 (N.D. Cal. Oct. 11, 2019) (the ALJ's opinion indicated that ALJ had “left the record open to allow the claimant additional time to obtain evidence in support of his claims”); Rickman v. Colvin, No. 6:12-CV-01201-SI, 2013 WL 4773627, at *1 (D. Or. Sept. 4, 2013) (discussing that the ALJ left the record open to allow the claimant to submit additional evidence to support her claim); (Little v. Comm'r of Soc. Sec., 780 F.Supp.2d 1143, 1152 (D. Or. 2011) (discussing that the ALJ may supplement the record by “subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow the record to be supplemented.”) (citing Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)).
Accordingly, the undersigned Magistrate Judge recommends that the instant matter be remanded for a rehearing under Sentence Four of § 405(g).
VI. RECOMMENDATION
Based on the foregoing, the Magistrate Judge RECOMMENDS that the district court, after its independent review, enter an order vacating the Commissioner's final decision and remanding this matter on an open record for proceedings consistent with its opinion.
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Fed. R. App. P., should not be filed until entry of the district court's judgment.
However, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a, d), 72(b). Thereafter, the parties have fourteen (14) days within which to file a response to the objections. No reply briefs shall be filed unless the district court grants leave to do so. The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV-20-00438-TUC-RCC. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).