(SS) Dean v. Commissioner of Social Security

[8] UNITED STATES DISTRICT COURT [9] EASTERN DISTRICT OF CALIFORNIA [10] 11 PAMALA LEADBETTER DEAN, Case No. 1:22-cv-01367-SAB 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DIRECTING 13 v. THE CLERK OF THE COURT TO ENTER JUDGMENT IN FAVOR OF PLAINTIFF 14 COMMISSIONER OF SOCIAL PAMALA LEADBETTER DEAN; SECURITY, REMANDING THIS MATTER TO THE 15 COMMISSIONER OF SOCIAL SECURITY Defendant. FOR FURTHER PROCEEDINGS; AND 16 DIRECTING CLERK OF COURT TO CLOSE THIS MATTER [17] (ECF Nos. 14, 14, 16) [19] I. [20] INTRODUCTION [21] Pamala Leadbetter Dean (“Plaintiff”) seeks judicial review of a final decision of the [22] Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for [23] disability benefits pursuant to the Social Security Act. The matter is currently before the Court on [24] the parties’ briefs, which were submitted, without oral argument, to Magistrate Judge Stanley A. [25] Boone.1 [26] Plaintiff requests the decision of Commissioner be vacated and this case be remanded for further [27] 1 The parties have consented to the jurisdiction of the United States Magistrate Judge and this action has been assigned 1 proceedings arguing the Administrative Law Judge erred by failing to consider whether there should be 2 a closed period of disability and that the residual functional capacity assessment for medium work is not 3 supported by substantial evidence. 4 For the reasons explained herein, Plaintiff’s motion for summary judgment shall be granted. 5 II. 6 BACKGROUND 7 A. Procedural History 8 Plaintiff protectively filed a Title XVI application for supplemental security income on May 9 20, 2019. (AR 62.) Plaintiff’s application was initially denied on July 30, 2019, and denied upon 10 reconsideration on December 19, 2019. (AR 73-77, 83-87.) Plaintiff requested and received a 11 hearing before Administrative Law Judge Henry Koltys (“the ALJ”). Plaintiff appeared with her 12 attorney for a telephonic hearing on March 9, 2021. (AR 28-51.) On June 11, 2021, the ALJ issued 13 a decision finding that Plaintiff was not disabled. (AR 13-23.) On August 24, 2022, the Appeals 14 Council denied Plaintiff’s request for review. (AR 1-3.) 15 B. The ALJ’s Findings of Fact and Conclusions of Law 16 The ALJ made the following findings of fact and conclusions of law as of the date of the 17 decision, June 11, 2021: 18 1. Plaintiff has not engaged in substantial gainful activity since May 20, 2019, the application 19 date. 20 2. Plaintiff has a severe impairment of osteoarthritis. 21 3. Plaintiff does not have an impairment or combination of impairments that meets or 22 medically equals the severity of one of the listed impairments. 23 4. After careful consideration of the entire record, Plaintiff has the residual functional 24 capacity to perform the full range of medium work as defined in 20 CFR § 416.967 (c). 25 5. Plaintiff has no past relevant work. 26 6. Plaintiff was born on January 7, 1966, and was 53 years old, which is defined as an 27 individual closely approaching advanced age, on the date the application was filed. 1 7. Plaintiff has at least a high school education. 2 8. Transferability of job skills is not an issue because Plaintiff does not have past relevant 3 work. 4 9. Considering Plaintiff’s age, education, work experience, and residual functional capacity, 5 there are jobs that exist in significant numbers in the national economy that she can 6 perform. 7 10. Plaintiff has not been under a disability, as defined in the Social Security Act, since May 8 20, 2019, the date the application was filed. 9 (AR 18-22.) 10 III. 11 LEGAL STANDARD 12 A. The Disability Standard 13 To qualify for disability insurance benefits under the Social Security Act, a claimant must 14 show she is unable “to engage in any substantial gainful activity by reason of any medically 15 determinable physical or mental impairment2 which can be expected to result in death or which has 16 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 17 423(d)(1)(A). The Social Security Regulations set out a five-step sequential evaluation process to 18 be used in determining if a claimant is disabled. 20 C.F.R. § 404.1520 ;3 Batson v. Comm’r of Soc. 19 Sec. Admin., 359 F.3d 1190, 1194 (9th Cir. 2004). The five steps in the sequential evaluation in 20 assessing whether the claimant is disabled are: 21 Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. [22] Step two: Is the claimant’s alleged impairment sufficiently severe to limit his or her 23 ability to work? If so, proceed to step three. If not, the claimant is not disabled. [25] 2 A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. § 423 (d)(3). [26] 3 The regulations which apply to disability insurance benefits, 20 C.F.R. §§ 404.1501 et seq., and the regulations which apply to SSI benefits, 20 C.F.R. §§ 416.901 et seq., are generally the same for both types of benefits. 27 Accordingly, while Plaintiff seeks only Social Security benefits under Title XVI in this case, to the extent cases cited herein may reference one or both sets of regulations, the Court notes these cases and regulations are applicable 1 Step three: Does the claimant’s impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the claimant 2 is disabled. If not, proceed to step four. 3 Step four: Does the claimant possess the residual functional capacity (“RFC”) to perform his or her past relevant work? If so, the claimant is not disabled. If not, 4 proceed to step five. 5 Step five: Does the claimant’s RFC, when considered with the claimant’s age, education, and work experience, allow him or her to adjust to other work that exists in 6 significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled. [7] 8 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). The burden of proof is 9 on the claimant at steps one through four. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020). A 10 claimant establishes a prima facie case of qualifying disability once she has carried the burden of 11 proof from step one through step four. 12 B. Standard of Review 13 Congress has provided that an individual may obtain judicial review of any final decision of 14 the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405 (g). In 15 determining whether to reverse an ALJ’s decision, the Court reviews only those issues raised by the 16 party challenging the decision. See Lewis v. Apfel, 236 F.3d 503 , 517 n.13 (9th Cir. 2001). Further, 17 the Court’s review of the Commissioner’s decision is a limited one; the Court must find the 18 Commissioner’s decision conclusive if it is supported by substantial evidence. 42 U.S.C. § 405 (g); 19 Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). “Substantial evidence is relevant evidence which, 20 considering the record as a whole, a reasonable person might accept as adequate to support a 21 conclusion.” Thomas v. Barnhart (Thomas), 278 F.3d 947, 954 (9th Cir. 2002) (quoting Flaten v. 22 Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)); see also Dickinson v. Zurko, [23] 527 U.S. 150, 153 (1999) (comparing the substantial-evidence standard to the deferential clearly24 erroneous standard). “[T]he threshold for such evidentiary sufficiency is not high.” Biestek, 139 S. 25 Ct. at 1154. Rather, “[s]ubstantial evidence means more than a scintilla, but less than a 26 preponderance; it is an extremely deferential standard.” Thomas v. CalPortland Co. (CalPortland), [27] 993 F.3d 1204, 1208 (9th Cir. 2021) (internal quotations and citations omitted); see also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). Even if the ALJ has erred, the Court may not reverse 1 the ALJ’s decision where the error is harmless. Stout, 454 F.3d at 1055–56. Moreover, the burden 2 of showing that an error is not harmless “normally falls upon the party attacking the agency’s 3 determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 4 Finally, “a reviewing court must consider the entire record as a whole and may not affirm 5 simply by isolating a specific quantum of supporting evidence.” Hill v. Astrue, 698 F.3d 1153 , 1159 6 (9th Cir. 2012) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). Nor may 7 the Court affirm the ALJ on a ground upon which he did not rely; rather, the Court may review only 8 the reasons stated by the ALJ in his decision. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); see 9 also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). Nonetheless, it is not this Court’s 10 function to second guess the ALJ’s conclusions and substitute the Court’s judgment for the ALJ’s; 11 rather, if the evidence “is susceptible to more than one rational interpretation, it is the ALJ’s 12 conclusion that must be upheld.” Ford, 950 F.3d at 1154 (quoting Burch v. Barnhart, 400 F.3d 676 , 13 679 (9th Cir. 2005)). 14 IV. 15 DISCUSSION AND ANALYSIS 16 Plaintiff argues that the ALJ recognized that she had severe osteoarthritis and necrosis of the 17 femoral head leading to a right hip replacement in January 2020. (Motion for Summary Judgment 18 (“Mot.”) 6, ECF No. 14.) Plaintiff asserts the question here is “whether a limitation to a narrow 19 range of sedentary work is consistent with and supported by severe osteoarthritis of the right hip 20 with probable superimposed chronic osteonecrosis of the superior right femoral head.” (Mot. 6.) 21 Plaintiff argues that the ALJ’s reasons for rejecting the opinion of her treating physician do not have 22 substantial support in the record. Plaintiff had a severe hip impairment which required hip 23 replacement surgery, and prolonged therapy until January 2021. (Mot. 6.) Plaintiff also argues that 24 assuming she recovered completely from her hip replacement surgery, the ALJ must treat the earlier 25 period separately. (Mot. 6.) Plaintiff contends that the period from April 2019 until she recovered 26 from the surgery would meet the 12-month durational requirement. (Mot. 6.) Plaintiff argues that 27 this error is material, and the matter should be reversed and remanded for consideration of whether 1 Plaintiff contends there is no basis for the ALJ’s opinion that she can meet the demands of 2 medium work because there is no medical opinion in the record finding that an individual who has 3 undergone hip replacement surgery can do so on a sustained basis. (Mot. 8.) Plaintiff argues that 4 whether an individual with her surgical history “can or medically should engage in that rigorous 5 activity is a medical question, not a question for the ALJ to resolve without medical evidence[,]” 6 citing Social Security Ruling 83-10, Social Security Ruling 83-12. (Mot. 9) Plaintiff seeks remand 7 for further proceedings. (Mot. 10.) 8 Defendant responds that the burden at all times is on the claimant to prove disability, and 9 despite being informed that she needed to provide additional evidence to support her claim, Plaintiff 10 did not do so. (Def.’s Responsive Brief (“Opp.”) 5, 7, ECF No. 16.) Defendant contends that, 11 despite the fact that she had hip replacement surgery, as the ALJ noted, the records demonstrate that 12 she was showing improvement by March 2020, and her post op visit in April 2020 reveals minimal 13 pain and that she was doing well. (Opp. 8.) Defendant also asserts that Plaintiff testified at the 14 hearing that her hip surgery was successful. (Opp. 8.) Further, Defendant contends that the ALJ 15 accurately recorded that Dr. Wu only found a slight abductor lurch on the right side in July 2020 and 16 otherwise findings were normal. (Opp. 8-9.) Defendant also asserts that other records during this 17 time period record normal findings and, while Plaintiff claims that she continued to have physical 18 therapy until January 2021, the record only records two physical therapy visits in July 2020 and no 19 further visits until January 2021. (Opp. 9.) Defendant contends that because the record demonstrates 20 that Plaintiff improved shortly after her hip replacement surgery, she is not entitled to a closed period 21 of disability. (Opp. 9.) 22 Defendant also responds that Plaintiff ignores that it is not the court’s “role to speculate 23 whether a person that has undergone a total hip replacement’ could “engage in the prolonged 24 standing and walking of medium (or light) [work] on a sustained basis[.]” (Opp. 10.) Defendant 25 argues that Plaintiff ignores that it was her burden to prove that she could not perform her RFC and 26 the RFC is an administrative not a medical finding. (Opp. 10.) Defendant contends that while 27 Plaintiff argues that there is no medical opinion stating that she could perform medium or light work, 1 Plaintiff has not articulated why she is unable to perform the RFC but is seeking to have this court 2 determine that she cannot perform medium work based solely on the fact that she had hip 3 replacement surgery and did physical therapy. (Opp. 12.) Defendant asserts that the ALJ properly 4 evaluated the totality of the evidence and correctly determined that Plaintiff was capable of 5 performing medium work. (Opp. 13.) Defendant contends that Plaintiff has not identified any 6 objective medical evidence or made any meaningful argument as to why she would be unable to 7 perform medium work. (Opp. 13.) Defendant requests that Plaintiff’s arguments be rejected, and 8 this matter be affirmed. (Opp. 13-14.) 9 Plaintiff replies that Defendant recognizes that Plaintiff started being weaned off medication 10 in May 2020 and concedes that she still had an abductor lurch. (Pl.’s Reply (“Reply”) 3, ECF No. 11 17.) Plaintiff contends that Defendant is arguing that a person taking narcotic medication and having 12 an observable gait abnormality has recovered and no physician rendered such an opinion. (Reply 13 3.) Plaintiff argues that medical evidence is required to support the RFC and medical opinion is 14 required to show that Plaintiff is able to perform medium work. (Reply 4.) Plaintiff argues that she 15 was not medically cleared until January 2021, fully 18 months “after stopping working.”4 (AR 6.) 16 Plaintiff asserts that, because there was no medical basis for the RFC, the ALJ erred, and this action 17 must be remanded. (Reply 7.) 18 A. Whether the ALJ Properly Considered Dr. Hansen’s Medical Source Statement 19 Plaintiff argues the question here is “whether a limitation to a narrow range of sedentary 20 work is consistent with and supported by severe osteoarthritis of the right hip with probable 21 superimposed chronic osteonecrosis of the superior right femoral head.” (Mot. 6.) Plaintiff also 22 asks, “Should a person that has undergone a total hip replacement engage in the prolonged standing 23 and walking of medium (or light) on a sustained basis?” (Mot. 9.) The Court agrees with 24 Defendant’s response that it is not this Court’s role to speculate on whether a person with Plaintiff’s 25 medical findings could perform a specific type of work. The question here, is whether the ALJ [26] 4 The Court notes that, as the ALJ found, evidence in the record supports the finding that Plaintiff had not worked 27 in the 10 years prior to filing her application for benefits. (AR 5, 34.) Further, evidence shows that her failure to work was not related to her hip impairment, but because she was helping her partner with paperwork in his 1 properly evaluated the medical evidence and if his opinion has substantial support in the record. 2 Initially, the Court considers Plaintiff’s argument that the ALJ’s reasons for rejecting Dr. 3 Hansen’s do not have substantial support in the record. (Mot. 6.) 4 1. Legal Standard 5 Where, as here, a claim is filed after March 27, 2017, the revised Social Security 6 Administration regulations apply to the ALJ’s consideration of the medical evidence. See Revisions 7 to Rules Regarding the Evaluation of Medical Evidence (Revisions), 82 Fed. Reg. 5844 -01, 2017 8 WL 168819 , at *5844 (Jan. 18, 2017); 20 C.F.R. § 404 .1520c. Under the updated regulations, the 9 agency “will not defer or give any specific evidentiary weight, including controlling weight, to any 10 medical opinion(s) or prior administrative medical finding(s), including those from [the claimant’s 11 own] medical sources.” 20 C.F.R. §§ 404 .1520c(a); 416.920c(a). Thus, the new regulations require 12 an ALJ to apply the same factors to all medical sources when considering medical opinions, and no 13 longer mandate particularized procedures that the ALJ must follow in considering opinions from 14 treating sources. See 20 C.F.R. § 404 .1520c(b) (the ALJ “is not required to articulate how [he] 15 considered each medical opinion or prior administrative medical finding from one medical source 16 individually.”); Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). As recently acknowledged 17 by the Ninth Circuit, this means the 2017 revised Social Security regulations abrogate prior 18 precedents requiring an ALJ to provide “clear and convincing reasons” to reject the opinion of a 19 treating physician where uncontradicted by other evidence, or otherwise to provide “specific and 20 legitimate reasons supported by substantial evidence in the record,” where contradictory evidence is 21 present. Woods v. Kijakazi, 32 F.4th 785 , 788–92 (9th Cir. 2022). 22 Instead, “[w]hen a medical source provides one or more medical opinions or prior 23 administrative medical findings, [the ALJ] will consider those medical opinions or prior 24 administrative medical findings from that medical source together using” the following factors: (1) 25 supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; [and] (5) other 26 factors that “tend to support or contradict a medical opinion or prior administrative medical finding.” [27] 20 C.F.R. §§ 404 .1520c(a), (c)(1)–(5). The most important factors to be applied in evaluating the 1 consistency. Woods, 32 F.4th at 791 (citing 20 C.F.R. §§ 404 .1520c(a), (b)(2)). Regarding the 2 supportability factor, the regulation provides that the “more relevant the objective medical evidence 3 and supporting explanations presented by a medical source are to support his or her medical 4 opinion(s), the more persuasive the medical opinions … will be.” 20 C.F.R. § 404 .1520c(c)(1). 5 Regarding the consistency factor, the “more consistent a medical opinion(s) is with the evidence 6 from other medical sources and nonmedical sources in the claim, the more persuasive the medical 7 opinion(s) … will be.” 20 C.F.R. § 404 .1520c(c)(2). 8 Accordingly, the ALJ must explain in his decision how persuasive he finds a medical opinion 9 and/or a prior administrative medical finding based on these two factors. 20 C.F.R. § 10 404.1520c(b)(2). The ALJ “may, but [is] not required to, explain how [she] considered the [other 11 remaining factors],” except when deciding among differing yet equally persuasive opinions or 12 findings on the same issue. 20 C.F.R. §§ 404 .1520c(b)(2)–(3). Further, the ALJ is “not required to 13 articulate how [she] considered evidence from nonmedical sources.” 20 C.F.R. § 404 .1520c(d). 14 Nonetheless, even under the new regulatory framework, the Court still must determine whether the 15 ALJ adequately explained how he considered the supportability and consistency factors relative to 16 medical opinions and whether the reasons were free from legal error and supported by substantial 17 evidence. See Martinez V. v. Saul, No. CV 20-5675-KS, 2021 WL 1947238 , at *3 (C.D. Cal. May 18 14, 2021). 19 2. Discussion 20 The ALJ considered the three medical opinions in the record. First, he addressed the opinions 21 of the agency medical consultants. 22 In July 2019, the state agency medical consultant did not diagnose any severe impairment due to a lack of medical evidence in the record (Exhibit 1A). In December 23 2019, the state agency medical consultant diagnosed right hip osteoarthritis, but did not find any functional limitations due to a lack of medical evidence (Exhibit 3A). The 24 State agency physicians’ opinions are less persuasive because new evidence has been admitted into the record since the State agency physicians rendered their opinions, 25 which obviously diminishes the value of those opinions. Furthermore, they did not have the benefit of considering additional evidence that was available after their 26 assessments, including the hearing testimony from the claimant. [27] (AR 21.) Next, the opinion of Dr. Hansen, Plaintiff’s treating physician, was considered. 1 In September 2019, Dr. Orin Hansen completed a medical source statement form. He diagnosed right hip degenerative joint disease and stated that the claimant needed a 2 right hip replacement. He checked answers indicating that the claimant could perform sedentary work. He stated that the claimant could not perform a job that required 3 standing for prolonged period and she needed an assistive device for standing and walking (Exhibit 2F). His opinion is less persuasive. There is no significant narrative 4 discussion of objective findings on this form that would support the assessed limitations. Furthermore, the claimant went on to have a successful right hip 5 replacement with no complications, as demonstrated by her January 2021 physical examination. [6] 7 (AR 21.) 8 On September 25, 2019, Dr. Hansen completed a medical source statement for Plaintiff. (AR 9 259-64.5) Dr. Hansen first treated Plaintiff on May 6, 2019, and last saw Plaintiff on July 8, 2019. 10 (AR 259.) Plaintiff was diagnosed with right hip degenerative joint disease (severe) and needed a 11 hip replacement. (AR 259.) Her impairment was expected to last at least twelve months. (AR 259.) 12 Plaintiff had severe right hip pain with difficulty walking. (AR 259.) She had musculoskeletal 13 aching pain in the right hip that ranged from 5 to 10 on a scale of 0-10. (AR 259.) She was not 14 able to be completely relieved of pain with medication. (AR 259.) Her level of fatigue ranged from 15 5 to 7. (AR 259.) Dr. Hansen opined that Plaintiff could sit for 6 hours in an 8-hour day and stand 16 or walk for 0 to 2 hours in an 8-hour day. (AR 260.) Plaintiff was not medically precluded from 17 sitting continuously in a work setting. (AR 260.) Plaintiff could occasionally lift and carry less than 18 10 pounds, rarely lift and carry 10 to 20 pounds, and never lift and carry 50 pounds or more. (AR 19 260.) Plaintiff was unable to do a fulltime competitive job that requires that activity on a sustained 20 basis. (AR 261.) Plaintiff could never climb ramps, stairs, or ladders; balance; stoop; kneel; crouch; 21 or crawl. (AR 261.) Plaintiff was not prescribed any medication. (AR 261.) Plaintiff was not a 22 malingerer. (AR 261.) Plaintiff was capable of low stress work. (AR 261.) The basis of these 23 conclusions was severe right hip osteoarthritis, inability to walk without a device or work a job that 24 required standing. (AR 262.) Plaintiff would be absent from work an average of more than three 25 times per month due to her impairments or treatment. (AR 262.) These limitations applied starting 26 April 29, 2019. (AR 262.) Plaintiff required a cane or walker for standing and walking. (AR 264.) 27 She required the use of an assistive device as of April 29, 2019, and likely earlier, but records were 1 limited. (AR 264.) 2 The regulations provide that the most important factors to be applied in evaluating the 3 persuasiveness of medical opinions and prior administrative medical findings are supportability and 4 consistency. Woods, 32 F.4th at 791 (citing 20 C.F.R. §§ 404 .1520c(a), (b)(2)). While the ALJ 5 found that there were “no significant narrative discussion of objective findings on this form that 6 would support the assessed limitations,” he did not address the records of Plaintiff’s medical visits 7 with Dr. Hansen which provide support for the opinion. 20 C.F.R. § 404 .1520c(c)(1). An ALJ errs 8 when he fails to recognize that the check form is supported by the medical provider’s treatment 9 notes. Garrison v. Colvin, 759 F.3d 995, 1013 (9th Cir. 2014) 10 Here, there are some findings in the record that would not support Dr. Hansen’s opinion. 11 Plaintiff was seen on May 8, 2019, expressing an interest in hip replacement surgery, but was able 12 to ambulate with a walker, and on examination, had normal upper extremity peripheral pulse and 13 capillary refill with no edema in the lower extremities. (AR 286, 287.) She returned on May 15, 14 2019, and examination noted she was moving all extremities voluntarily. (AR 307.) A note was 15 provided to the family endorsing Plaintiff’s ability to ambulate independently and perform her 16 activities of daily living. (AR 309.) 17 Dr. Hansen’s treatment notes also support the opinion. Plaintiff returned on July 8, 2019, (AR 18 374), and the record notes her hip seems to be getting worse with conservative therapy. (AR 378.) 19 She is having symptoms of aching pain in the right hip, limited range of motion and difficulty 20 ambulating that are moderately distressful. (AR 378.) She has not seen a specialist, and a recent x21 ray showed severe degenerative disc disease with subluxation. (AR 378.) The record does not that 22 she “seems to be doing okay with respect to this issue.” (AR 378.) Plaintiff is noted to be ambulating 23 slowly, with a limp, and with the assistance of a cane. (AR 382.) Examination of the extremities 24 shows that she is moving all extremities voluntarily. (AR 382.) Plaintiff has severe osteoarthritis 25 of the right hip with partial collapse of the femoral head and superior subluxation of the femur 26 relative to the acetabulum. (AR 383.) Degenerative changes and the partial collapse of the femoral 27 head appear to be mildly progressed compared to the prior exam. (AR 383.) The record also notes 1 384.) She was to be referred to an orthopedic surgeon for evaluation. (AR 384.) 2 Further, there is evidence in the record that is consistent with Dr. Hansen’s opinion. 20 3 C.F.R. § 404 .1520c(c)(2). On April 29, 2019, an x-ray of the right hip showed severe osteoarthritis 4 of the right hip with superimposed osteonecrosis of the superior femoral head. (AR 273.) The record 5 notes that her x-ray shows severe degenerative changes of the hip, and she is likely to be considered 6 for a hip replacement. (AR 278.) On May 8, 2019, Plaintiff was seen continuing to complain of hip 7 pain, and expressed an interest in referral for hip replacement. (AR 286.) 8 Plaintiff was seen in urgent care on June 27, 2019, complaining of chronic right hip pain for 9 which she uses a cane to ambulate and had not been able to sleep for four days due to the pain. (AR 10 355.) Examination of the extremities notes that she moves all four spontaneously. Right hip with 11 pinpoint “ttp” over the S1 joint. (AR 355.) She had difficulty with active and passive flexion of the 12 hip due to pain and painful passive internal and external rotation of the hip. (AR 355.) Plaintiff 13 had an x-ray of her right hip which showed severe osteoarthritis of the right hip with a partial collapse 14 of the femoral head mildly progressed when compared with prior exam. (AR 508.) The physician 15 recommended referral and evaluation by an orthopedic surgeon and prescribed lidocaine patches. 16 (AR 357.) The record notes that on physical examination she has difficulty with both passive and 17 active range of motion. (AR 502.) Otherwise, she has no systemic symptoms and does not complain 18 of any new weakness. (AR 502.) 19 The case was discussed with Plaintiff’s physician who believed Plaintiff had severe 20 degenerative joint disease with flattening of the femoral head and proximal migration due to 21 symmetric acetabular wear. (AR 357.) It was recommended that Plaintiff receive Toradol and 22 NSAIDS and be referred for evaluation for a hip replacement. (AR 357.) Plaintiff may have some 23 AVN with collapse and an assistive device for gait training and offloading was recommended. (AR 24 357.) 25 On August 5, 2019, Plaintiff received an orthopedic consultation. (AR 385.) The record 26 notes that the June 27 x-ray of the right hip shows severe degenerative disk disease with bone loss 27 from superior femoral head and lateral subluxation such that the center edge angle is about zero. 1 however, to minimize complications, he wanted her to quit smoking and find stable housing. (AR 2 386.) A follow-up was scheduled in two months to allow her to be off cigarettes for a least a month 3 to demonstrate her ability to maintain cessation of smoking. (AR 386.) 4 Plaintiff was seen on August 7, 2019, complaining of worsening hip pain, and requesting a 5 Toradol injection. (AR 401.) She reported the pain was not relieved by Tylenol. (AR 401.) 6 Examination of the extremities notes Right hip “ttp” with flexion/extension. No erythema or 7 swelling. (AR 402.) She was given a Toradol injection and prescription for Naproxen. (AR 403.) 8 On October 4, 2019, Plaintiff had a follow-up with the orthopedist. (AR 408.) It is noted that 9 a hip replacement is reasonable at this point, risks were discussed, and Plaintiff indicated she would 10 like to proceed. (AR 412.) An x-ray of the pelvis and hip showed no significant interval change to 11 the previously noted severe osteoarthritis of the right hip with partial collapse of the femoral head 12 and superior subluxation of the femur relative to the acetabulum. (AR 413.) 13 Plaintiff was seen on November 20, 2019, for pre op clearance. She reported her hip pain was 14 7 on the numeric scale. (AR 551.) Plaintiff was medically cleared for surgery. (AR 553.) 15 On December 24, 2019, Plaintiff appeared for a pre op appointment. (AR 486.) On 16 examination her right hip was found to have minimal passive range of motion. (AR 486.) 17 On January 15, 2020, Plaintiff had an updated pre op visit. (AR 625.) Her hip surgery had 18 been rescheduled due to a urinary tract infection. (AR 625.) Examination of the right hip shows 19 minimal passive range of motion. (AR 625.) 20 On January 28, 2020, Plaintiff had a successful arthroplasty hip total replacement (right). (AR 21 672-779.) 22 The ALJ did not adequately explain how he considered the supportability and consistency 23 factors relative to Dr. Hansen’s medical opinion. Further, this error is not harmless, because as the 24 only medical opinion in the record, it is inconsistent with an RFC of medium work. 25 B. Whether the ALJ Erred in Determining Plaintiff’s RFC 26 Plaintiff argues that the RFC for medium work does not have substantial support in the record 27 as no physician opined that Plaintiff was capable of medium work post-surgery. (Mot. 8-9.) 1 interpretation of the evidence, and there is substantial support in the medical record for the ALJ’s 2 determination that Plaintiff can perform medium work. (Opp. 10-13.) 3 1. Residual functional capacity 4 Before making the step four determination, the ALJ first must determine the claimant’s RFC. [5] 20 C.F.R. § 416.920 (e); Nowden v. Berryhill, No. EDCV 17-00584-JEM, 2018 WL 1155971 , at *2 6 (C.D. Cal. Mar. 2, 2018). The RFC is “the most [one] can still do despite [her] limitations” and 7 represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545 (a)(1); 8 416.945(a)(1). The RFC must consider all of the claimant’s impairments, including those that are 9 not severe. 20 C.F.R. §§ 416.920 (e); 416.945(a)(2); Social Security Ruling (“SSR”) 96-8p, available 10 at 1996 WL 374184 (Jul. 2, 1996).6 The RFC is “based on all the relevant evidence in [the] case 11 record.” 20 C.F.R. § 416.945 (a)(1). “The ALJ must consider a claimant’s physical and mental 12 abilities, § 416.920(b) and (c), as well as the total limiting effects caused by medically determinable 13 impairments and the claimant’s subjective experiences of pain, § 416.920(e).” Garrison, 759 F.3d 14 at 1011 . A determination of RFC is not a medical opinion, but a legal decision that is expressly 15 reserved for the Commissioner. See 20 C.F.R. §§ 404.1527 (d)(2) (RFC is not a medical opinion); 16 404.1546(c) (identifying the ALJ as responsible for determining RFC). “[I]t is the responsibility of 17 the ALJ, not the claimant’s physician, to determine residual functional capacity.” Vertigan v. Halter, [18] 260 F.3d 1044, 1049 (9th Cir. 2001). 19 At step four the RFC is used to determine if a claimant can do past relevant work and at 20 step five to determine if a claimant can adjust to other work. Garrison, 759 F.3d at 1011 . “In order 21 for the testimony of a VE to be considered reliable, the hypothetical posed must include ‘all of the 22 claimant’s functional limitations, both physical and mental’ supported by the record.” Thomas, 278 23 F.3d at 956. 24 When applying for disability benefits, the claimant has the duty to prove that she is disabled. [25] 42 U.S.C. § 423 (c)(5)(A). The ALJ has an independent “duty to fully and fairly develop the record [26] 6 SSRs are “final opinions and orders and statements of policy and interpretations” issued by the Commissioner. 20 27 C.F.R. § 402.35 (b)(1). While SSRs do not have the force of law, the Court gives the rulings deference “unless they are plainly erroneous or inconsistent with the Act or regulations.” Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1 and to assure that the claimant’s interests are considered.” Widmark v. Barnhart, 454 F.3d 1063 , 2 1068 (9th Cir. 2006) (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). The ALJ has 3 a duty to further develop the record where the evidence is ambiguous or the ALJ finds that the record 4 is inadequate to allow for proper evaluation of the evidence. Mayes v. Massanari, 276 F.3d 453 , 5 459-60 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). A specific 6 finding of ambiguity or inadequacy in the record is not required to trigger the necessity to further 7 develop the record where the record itself establishes the ambiguity or inadequacy. McLeod v. 8 Astrue, 640 F.3d 881, 885 (9th Cir. 2011). 9 2. Discussion 10 Defendant argues that it is Plaintiff’s burden to prove disability and she has failed to do so, 11 requesting the Court to affirm the opinion. However, this is not a case where there is no evidence 12 of a severe impairment or where the ALJ has weighed conflicting opinions. Here, there is evidence 13 that Plaintiff had severe degenerative joint disease requiring a hip replacement surgery. In finding 14 Plaintiff was capable of medium work, the ALJ considered the following. 15 The records from Ventura County Medical Center include an April 2019 CT scan of the abdomen and pelvis that did not reveal any acute gastrointestinal abnormalities. 16 There was a small umbilical hernia and a lesion on the pancreas and further evaluation of the lesion was advised. There was severe degeneration in the right hip [AR 272-73]. 17 The April 2019 x-rays of the chest showed only mild cardiomegaly [AR 275]. The April 2019 physical examination was within normal limits [AR 277]. In May, June, 18 July, and August 2019, the physical and mental examination was within normal limits other than the claimant appeared somewhat frail and she alleged that she had anemia 19 [AR 287, 307, 310, 359-60, 368, 379, 382, 385, 405, 412]. The June 2019 right hip xrays revealed severe osteoarthritis [AR 318]. She reported increasing pain in the right 20 hip and a physical examination showed difficulty with range of motion [AR 502]. The claimant underwent a right hip replacement in January 2020 without complication [AR 21 1-979, 1305]. Following surgery, the claimant underwent physical therapy. March 2020 x-rays of the right hip showed the implants in good position and a stable hip 22 arthroplasty [AR 809, 812]. She had right leg swelling, but no pain with range of motion [AR 922]. A duplex ultrasound was negative for deep vein thrombosis. In 23 April 2020, she reported her hip was improving and doing well [AR 542]. A July 2020 examination showed only a slight abductor lurch on the right and was otherwise normal 24 [AR 971]. She was still smoking cigarettes. In January 2021, the claimant followed up with Dr. Thomas Wu regarding her right hip [AR 1335-39]. She reported that her 25 right hip was doing much better, but she was still smoking one cigarette per day. A physical examination was normal and showed she had no limp walking. Xrays of the 26 right hip showed the implants in good position with no evidence of loosening, or [osteolysis], or polyethylene height loss [AR 1335]. [27] 1 work. (AR 21.) 2 Without a medical opinion to support the conclusion that Plaintiff was able to perform 3 medium work, the ALJ’s RFC lacks the support of substantial evidence. de Gutierrez v. Saul, No. 4 1:19-CV-00463-BAM, 2020 WL 5701019 , at *6 (E.D. Cal. Sept. 24, 2020); see also Miller v. 5 Astrue, 695 F. Supp. 2d 1042, 1048 (C.D. Cal. 2010) (it is improper for an ALJ to act as his own 6 medical expert and substitute his medical opinion for the opinion of medical providers); Padilla v. 7 Astrue, 541 F. Supp. 2d 1102, 1106 (C.D. Cal. 2008) (”as a lay person, an ALJ is ‘simply not 8 qualified to interpret raw medical data in functional terms.’ ”) (quoting Nguyen v. Chater, 172 F.3d 9 31, 35 (1st Cir.1999)); Shipp v. Colvin, 2014 WL 4829035 , at *7 (C.D. Cal. Sept. 26, 2014) (“Since. 10 . .the record contains no assessment by a treating or examining doctor regarding the effect of 11 plaintiff’s physical impairments on her ability to function, it appears that the ALJ’s physical residual 12 functional capacity assessment was erroneously based solely on the ALJ’s own, lay interpretation of 13 plaintiff’s testimony and other raw medical evidence in the record”). 14 Here, the ALJ determined that Plaintiff had recovered from her hip surgery and had the 15 capacity to do medium work by reviewing the subsequent medical record. However, the record itself 16 shows that, while Plaintiff’s x-rays revealed the implant was stable and properly aligned with no 17 pain with range of motion (AR 809, 812, 922), Plaintiff continued to report pain (AR 955, 958, 974), 18 and was taking narcotic medication (AR 958). She was noted to have a positive abductor lurch and 19 was prescribed outpatient physical therapy. (AR 955.) She attended physical therapy on July 23, 20 2020, and reported difficulty lifting things up when squatting and rotating to her left side, and 21 although she can climb stairs (AR 974), walking was limited by weakness and pain. (AR 974.) The 22 record notes that Plaintiff presented with right lower extremity weakness, impaired range of motion, 23 soft tissue restrictions, and impaired balance. (AR 975.) These deficits were leading to a 24 Trendelenburg gait pattern and decreased functional mobility. (AR 975.) Plaintiff’s inconsistent 25 home exercise program compliance and frequently shortened visits were leading to slower 26 progression than anticipated. (AR 975.) Her ongoing strength, balance and stability/motor control 27 impairments were leading to difficulty walking, riding her bike, and squatting down without hip 1 Accordingly, the Court finds the ALJ erred in evaluating Plaintiff’s RFC. This error is not 2 harmless, and remand for further determination of Plaintiff’s residual functional capacity following 3 her hip replacement surgery is required. 4 C. Failure to Find Plaintiff’s Disability Lasted 12 months 5 Plaintiff argues that the ALJ erred by failing to treat the period from April 2019 to January 6 2021 as a closed period in which she was disabled. (Mot. 6-7.) Defendant responds that Plaintiff 7 showed improvement as early as March 2020 and is not entitled to a closed period of disability. 8 (Opp. 9.) 9 The Social Security regulations define disability as the “inability to engage in any substantial 10 gainful activity by reason of any medically determinable physical or mental impairment which can 11 be expected to result in death or which has lasted or can be expected to last for a continuous period 12 of not less than 12 months.” 42 U.S.C. § 423 (d)(1)(a). The agency has interpreted this to mean the 13 “inability” to engage in substantial gainful activity has a “12 month” durational requirement which 14 means the “inability” must last or be expected to last at least 12 months. Barnhart v. Walton 15 (“Walton”), 535 U.S. 212, 214 (2002). In a case where the “inability” did not last 12 months it is 16 automatically assumed that the claimant failed to meet the duration requirement and they “will not 17 look back to decide hypothetically whether, despite the claimant’s actual return to work before 12 18 months expired, the ‘inability’ nonetheless might have been expected to last that long. Walton, 535 19 U.S. at 214-15. “At all times, the burden is on the claimant to establish her entitlement to disability 20 insurance benefits.” Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998), as amended (Jan. 26, 21 1999); see also Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005) (initial burden of proving 22 disability is on claimant). 23 Upon remand, the ALJ shall consider whether Plaintiff’s alleged disability, including the 24 recovery from hip surgery, continued for a period of 12 months. 25 V. 26 CONCLUSION AND ORDER 27 In conclusion, the Court finds that the ALJ’s determination that Plaintiff had the residual ] | the record. Accordingly, IT IS HEREBY ORDERED that Plaintiffs appeal from the decision of the 2 |Commissioner of Social Security is GRANTED and this matter is remanded back to the 3 Commissioner of Social Security for further proceedings consistent with this order. It is FURTHER 4 |ORDERED that judgment be entered in favor of Plaintiff Pamala Leadbetter Dean and against 5 Defendant Commissioner of Social Security. The Clerk of the Court is directed to CLOSE this 6 | matter. [7] 8 T IS SO ORDERED. DAA (e_ g Pated: _February 28, 2024_ ee 0 UNITED STATES MAGISTRATE JUDGE