O'Connor v. Kijakazi

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION [7] 8 GILLIAN K. O'CONNOR, Case No. 22-cv-07019-RMI 9 Plaintiff, ORDER RE: DEFENDANT'S MOTION 10 v. TO ALTER OR AMEND JUDGMENT 11 KILOLO KIJAKAZI, Re: Dkt. No. 21 12 Defendant. [13] 14 Now pending before the court is Defendant’s Motion to Alter or Amend Judgment (dkt. 15 21). In this Title II disability case, in which Plaintiff has proceeded pro se, the relevant disability 16 period ranged from June of 2017 (the alleged onset date) and March of 2019 (the date last 17 insured). See Order for Remand (dkt. 19) at 7. The court found that the evidentiary record 18 established sufficient indicia that Plaintiff was – during this period – afflicted with migraine 19 headaches, fibromyalgia, and other cognitive manifestations of her dyscognitive seizure disorder. 20 See id. at 2-5. The court found that the ALJ erred at Step Two by finding that Plaintiff’s migraines 21 were non-severe, and by overlooking Plaintiff’s memory deficits and other cognitive problems 22 despite the existence of record evidence in support of both (those findings of the ALJ were not 23 based on substantial evidence); the court also found that the ALJ improperly dismissed Plaintiff’s 24 fibromyalgia diagnosis because it was not unambiguously supported with record evidence of the 25 requisite number of trigger points or a clear rheumatologist diagnosis (this finding was flawed 26 because incomplete or “[a]mbiguous evidence, or the ALJ’s own finding that the record is 27 inadequate to allow for proper evaluation of the evidence, triggers the ALJ’s duty to conduct an 1 Remand (dkt. 19) at 6-8. Accordingly, the court remanded the case with instructions to the 2 following effect: 3 Regarding the state of the record, the court finds that the record is insufficiently developed as to the limitations occasioned by 4 Plaintiff’s migraines, the particulars of her fibromyalgia diagnosis, the details underlying her memory deficits and other cognitive issues 5 related to her dyscognitive seizure disorder, and the physical limitations opined by Paul Lynn. As to Plaintiff’s memory deficits 6 and potential cognitive limitations associated with her dyscognitive seizure disorder, on remand, the ALJ is ORDERED to procure a 7 consultative psychological examination that would include the administration of the following diagnostic instruments: the Wechsler 8 Adult Intelligence Scale-IV (“WAIS-IV”), the Wechsler Memory Scale (“WMS-IV”), and the Trail Making Test (“TMT”) Parts A and 9 B. As to Plaintiff’s fibromyalgia, the ALJ and the testifying medical expert concluded that the record was undeveloped because – despite 10 ample evidence of a sustained fibromyalgia diagnosis – the record lacked specific documentation about trigger points; also, the ALJ 11 specifically found that the evidence does not support a fibromyalgia diagnosis because Plaintiff “has not been evaluated by a 12 rheumatologist.” [] Accordingly, on remand, the ALJ is ORDERED to procure a consultative examination by a rheumatologist such as to 13 property develop the record in this regard. Lastly, the ALJ rejected Plaintiff’s physical limitations, as opined in May of 2021 by Dr. Paul 14 Lynn, because (1) the ALJ was unsure whether or not those limitations also applied during the disability period (i.e., between June 15 of 2017 and March of 2019); and (2) the ALJ was unsure about the basis on which Dr. Lynn had opined those limitations. [] On remand, 16 the ALJ is ORDERED to either subpoena Dr. Lynn to appear at a hearing, or to otherwise communicate or correspond with Dr. Lynn, 17 in order to develop a clear record with regard to the medical basis for Dr. Lynn’s opinions and their applicability to the disability period. [18] Id. at 7-8 (emphasis added). [19] 20 The court also suggested that the ALJ may further develop the record in a number of other 21 additional ways as well – including, but not limited to conducting another hearing (at which the 22 ALJ could, for example, simply ask Plaintiff and her treating Physician about the limitations 23 occasioned by these conditions during the relevant disability period). See id. at 8. 24 Defendant now asks the court to alter or amend the judgment because of the notion that the 25 court erred in requiring the ALJ to develop the record rather than giving effect to the principle that 26 a claimant must furnish medical and other evidence that can be used to reach a conclusion about 27 medical impairments. See Def.’s Mot. (dkt. 21) at 3 (citing 20 C.F.R. § 416.912 (a)). However, as 1 existence of the impairments mentioned above, which triggered the ALJ’s duty to develop the 2 record as to the limitations occasioned by those impairments before glossing over Step Three and 3 formulating the RFC in this case. As mentioned, the ALJ improperly found Plaintiff’s migraines 4 non-severe at Step Two; the ALJ simply ignored the evidence of Plaintiff’s memory deficits and 5 other possible cognitive manifestations of her dyscognitive seizure disorder; and, the ALJ 6 improperly failed to develop the record as to Plaintiff’s fibromyalgia. Thus, contrary to 7 Defendant’s suggestion, Plaintiff did not fail in meeting her burden “to establish the existence of 8 one or more medically determinable impairments . . . that has lasted or was expected to last for a 9 continuous period of not less than twelve months, prior to her date last insured . . .” See id. at 3 . As 10 to the question of whether or not these impairments rendered Plaintiff unable to engage in any 11 substantial gainful activity, the authorities in this Circuit overwhelmingly state that an ALJ’s duty 12 to develop the record in this regard is further “heightened where the claimant may be mentally ill 13 and thus unable to protect her own interests.” See Tonapetyan, 242 F.3d at 1150. Here, the ALJ 14 not only did not work to develop the record fully such as to protect Plaintiff’s interests 15 (particularly in light of the fact that she was unrepresented and potentially suffering from one or 16 more mental impairments), instead, the ALJ relied on the fact that the record was undeveloped to 17 issue an adverse decision. Indeed, this is manifest because the ALJ did not even engage in the 18 basic task of asking Plaintiff any questions about these impairments or their consequential 19 limitations during the relevant disability period. 20 As to the consultative examinations ordered by the court upon remand, Defendant also 21 complains that “consultative examiners do not review the longitudinal record and, thus have no 22 basis for determining a claimant’s historical functional abilities.” Def.’s Mot. (dkt. 21) at 4. In 23 essence, Defendant contends that “[a]n assessment of Plaintiff’s functional ability five years after 24 her date last insured cannot reasonably relate back to her status on or before March 31, 2019.” Id. 25 However, this statement is not categorically correct. See e.g., Pavel R. v. Kijakazi, 2021 U.S. Dist. 26 LEXIS 218253 , *16 (C.D. Cal. Nov. 10, 2021) (“Medical evaluations rendered after the date last 27 insured are both retrospective and relevant when they relate back to conditions and treatment that 1 U.S. Dist. LEXIS 99528 , 2017 WL 2785331 , at *3 (C.D. Cal. June 27, 2017) (finding medical 2 records and opinion from after period of disability relevant because they related to treatment for 3 conditions that existed during period of disability). 4 Additionally, the court is also unpersuaded by Defendant’s incorrect claim that 5 “consultative examiners do not review the longitudinal record.” See e.g., Nalley v. Apfel, 100 F. 6 Supp. 2d 947, 953 (S.D. Iowa 2000) (“[W]hen a claimant is sent to a doctor for a consultative 7 examination, all the available medical records should be reviewed by the examiner.”); see also 8 Shelley S. v. O’Malley, 2024 U.S. Dist. LEXIS 20854 , *50 (S.D. Cal. Feb. 6, 2024) (“Just as the 9 consultative examiner in Kendall, who considered plaintiff’s medical records, tests, diagnoses, and 10 physical examinations, in addition to plaintiff’s self-reports, in this case, Dr. Sial’s opinion was 11 based on his extensive review of Plaintiff’s medical records, and Dr. Sial’s physical, cervical 12 spine, ‘thoracolumbar spine,’ and neurological examinations of Plaintiff, as well as Plaintiff's self13 reports.”) (citing Kendall v. Comm'r of Soc. Sec. Admin., No. CV-21-00825-PHX-JJT, 2023 U.S. 14 Dist. LEXIS 58328, 2023 WL 2754003 , at *4-5 (D. Ariz. Mar. 1, 2023)); Hilda V.A. v. Kijakazi, [15] 2023 U.S. Dist. LEXIS 15634 , *4 (C.D. Cal. Jan. 30, 2023) (“After reviewing Plaintiff’s medical 16 records, orthopedic consultative examiner [] Rajeswari Kumar, M.D., described the right-shoulder 17 surgery as an ‘open excision ... with synovial debridement and removal of loose bodies; roughly 18 70 removed.’”); Rickey F. v. Comm'r of Soc. Sec., 2023 U.S. Dist. LEXIS 184691 , *8 (W.D. 19 Wash. Oct. 13, 2023) (“In March 2016, following an examination of Plaintiff and a review of 20 Plaintiff's medical records, Dr. Gaffield diagnosed Plaintiff with diabetes in ‘poor control,’ back 21 pain, and right knee pain.”). 22 As to the court’s order for the ALJ to solicit additional information from Plaintiff’s treating 23 physician, Dr. Lynn, regarding any limitations experienced by Plaintiff during the relevant 24 disability period – Defendant’s argument boils down to nothing more than splitting hairs. 25 Defendant suggests that the ALJ’s claim that Dr. Lynn did not state when the limitations first 26 applied means that there was no evidence of limitations, not that the ALJ found that the evidence 27 was ambiguous or incomplete. See Def.’s Mot. (dkt. 21) at 5. This is unpersuasive because the 1 Plaintiff herself about limitations during the relevant disability period such as to develop a 2 || complete record, rather than (as stated above) relying on the incompleteness of the record (as to 3 the limitations caused by the well-documented conditions) to issue an adverse decision in 4 || derogation of Tonapetyan, 242 F.3d at 115, and its progeny. As stated above, and in the Order for 5 || Remand, the ALJ’s rejection of Dr. Lynn’s opinion, and indeed the entirety of the ALJ’s 6 || evaluations from Step Two forward, were unsupported by substantial evidence because of the 7 || ALJ’s obvious errors in failing to develop the record in this case. 8 For these reasons, Defendant’s request to alter or amend the judgment is DENIED. As for 9 || Defendant’s request for clarification, that request is GRANTED to the extent that on remand the 10 || ALJ is ORDERED to furnish complete copies of Plaintiff's medical records for the review of 11 each examiner that the ALJ has been ordered to procure for Plaintiff. The ALJ is also ORDERED 12 || to direct each of those examiners to examine Plaintiff in the manner described in the Order for 5 13 || Remand, while also reviewing the entirety of Plaintiff's relevant medical records and rendering 14 || written opinions as to the retroactivity of their findings as to Plaintiff's limitations and the 3 15 applicability of those findings to the relevant disability period. The ALJ is FURTHER 16 || ORDERED to solicit from Plaintiff a self-report as to the limitations she may have experienced 3 17 during the relevant disability period regarding the medical impairments described in the Order for 18 || Remand. Once these tasks are completed, the ALJ would then — and only then — have a fully and 19 fairly developed record upon which to render a fair opinion as to the question of Plaintiff's 20 || disability during the period in question. 21 IT IS SO ORDERED. 22 || Dated: April 4, 2024 23 Mt Z [24] 25 ROBERT M. ILLMAN United States Magistrate Judge