Case 5:21-cv-01138-GJS Document 25 Filed 08/24/22 Page 1 of 7 Page ID #:557

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

RAMONA S.,1

11 Case No. 5:21-cv-01138-GJS Plaintiff 12 v. 13 MEMORANDUM OPINION AND KILOLO KIJAKAJI, Acting ORDER 14 Commissioner of Social Security, 15 Defendant.

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17 I. PROCEDURAL HISTORY 18 Plaintiff Ramona S. (“Plaintiff”) filed a complaint seeking review of the 19 decision of the Commissioner of Social Security denying her application for 20 Supplemental Security Income (“SSI”). The parties filed consents to proceed before 21 the undersigned United States Magistrate Judge [Dkts. 12 and 14] and briefs [Dkt. 22 23 (“Pl. Br.”) and Dkt. 24 (“Def. Br.”)] addressing disputed issues in the case. 23 Plaintiff did not file a Reply. The matter is now ready for decision. For the reasons 24 set forth below, the Court finds that this matter should be remanded. 25

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27 1 In the interest of privacy, this Order uses only the first name and the initial of the last name of the non-governmental party in this case. 28 Case 5:21-cv-01138-GJS Document 25 Filed 08/24/22 Page 2 of 7 Page ID #:558

1 II. ADMINISTRATIVE DECISION UNDER REVIEW 2 Plaintiff filed an application for SSI on February 4, 2019, alleging disability 3 beginning March 15, 2015. [Dkt. 20, Administrative Record (“AR”) 15, 192-97.] 4 Plaintiff’s application was denied at the initial level of review and on 5 reconsideration. [AR 15, 121-25, 129-34.] A telephone hearing was held before 6 Administrative Law Judge Alan J. Markiewicz (“the ALJ”) on July 16, 2020. [AR 7 15, 51-75.] 8 On October 28, 2020, the ALJ issued an unfavorable decision applying the 9 five-step sequential evaluation process for assessing disability. [AR 15-23]; see 20 10 C.F.R. § 416.920(b)-(g)(1). At step one, the ALJ determined that Plaintiff had not 11 engaged in substantial gainful activity since February 4, 2019.2 [AR 18.] At step 12 two, the ALJ determined that Plaintiff has the following severe impairments: 13 disease of the cervical spine; lumbar spine strain; degenerative joint disease of the 14 right shoulder; and obesity. [AR 18.] At step three, the ALJ determined that 15 Plaintiff does not have an impairment or combination of impairments that meets or 16 medically equals the severity of one of the impairments listed in Appendix I of the 17 Regulations. [AR 19]; see 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ found that 18 Plaintiff has the residual functional capacity (“RFC”) to perform medium work, as 19 defined in 20 C.F.R. § 416.967(c), including the ability to lift and carry 50 pounds 20 occasionally and 25 pounds frequently, stand and walk six hours in an eight-hour 21 workday, and sit six hours in an eight-hour workday, but Plaintiff should avoid 22

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24 2 Plaintiff filed an earlier application for SSI that was denied by an ALJ in a decision dated October 18, 2018. [AR 15, 33, 91.] Given the prior ALJ decision, 25 the ALJ in the present case applied the presumption of continuing non-disability. 26 [AR 15-16]; see Acquiescence Ruling 97-4(9), 1997 WL 742758 at *3; Chavez v. Bowen, 844 F.2d 691, 692 (9th Cir. 1988). As Plaintiff presented new evidence to 27 rebut the presumption of continuing non-disability, the ALJ considered the relevant period for Plaintiff’s claim as beginning on February 4, 2019, the date of Plaintiff’s 28 current SSI application. [AR 16, 23.] 2 Case 5:21-cv-01138-GJS Document 25 Filed 08/24/22 Page 3 of 7 Page ID #:559

1 concentrated exposure to extreme heat and hazards and is limited to occasional 2 climbing of ladders, ropes and scaffolds, frequent climbing of ramps and stairs, 3 frequent balancing, stooping, kneeling, crouching and crawling, and occasional 4 overhead reaching with the right upper extremity. [AR 19.] At step four, the ALJ 5 determined that Plaintiff is capable of performing her past relevant work as a child 6 monitor. [AR 22-23.] Based on these findings, the ALJ concluded that Plaintiff 7 was not disabled from February 4, 2019, through the date of the decision. [AR 23.] 8 The Appeals Council denied review of the ALJ’s decision on May 24, 2021. 9 [AR 1-6.] This action followed. 10 Plaintiff raises the following issues challenging the ALJ’s findings and 11 determination of non-disability: 12 1. The ALJ failed to properly address the severity of Plaintiff’s 13 diagnosed bilateral knee pain and diabetes. [Pl. Br. at 5-8.] 14 2. The ALJ failed to fully and fairly develop the record. [Pl. Br. at 15 3. The ALJ failed to provide a complete and proper assessment of 16 Plaintiff’s RFC. [Pl. Br. at 10-12.] 17 4. The ALJ failed to properly consider the opinion of Plaintiff’s 18 treating doctor. [Pl. Br. at 12-15.] 19 The Commissioner asserts that the ALJ’s decision should be affirmed. [Def. 20 Br. at 1-17.] 21 22 III. GOVERNING STANDARD 23 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 24 determine if: (1) the Commissioner’s findings are supported by substantial 25 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v. 26 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r 27 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial evidence is 28 more than a mere scintilla but less than a preponderance; it is such relevant evidence 3 Case 5:21-cv-01138-GJS Document 25 Filed 08/24/22 Page 4 of 7 Page ID #:560

1 as a reasonable mind might accept as adequate to support a conclusion.” Gutierrez 2 v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal quotation 3 marks and citation omitted). 4 The Court will uphold the Commissioner’s decision when “the evidence is 5 susceptible to more than one rational interpretation.” Magallanes v. Bowen, 881 6 F.2d 747, 750 (9th Cir. 1989). However, the Court may review only the reasons 7 stated by the ALJ in his decision “and may not affirm the ALJ on a ground upon 8 which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The 9 Court will not reverse the Commissioner’s decision if it is based on harmless error, 10 which exists if the error is “inconsequential to the ultimate nondisability 11 determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) 12 (internal quotation marks and citations omitted). 13

IV. DISCUSSION

14 Plaintiff contends that the ALJ improperly determined that her bilateral knee 15 pain and diabetes were not severe impairments. 16 The evaluation at step two is a de minimis test intended to weed out the most 17 minor of impairments. See Bowen v. Yuckert, 482 U.S. 137, 153-154 (1987); 18 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (stating that the step two 19 inquiry is a “de minimis screening device to dispose of groundless claims”). An 20 impairment is “not severe” if the evidence establishes merely a “slight abnormality 21 that has no more than a minimal effect on an [individual’s] ability to work.” 22 Smolen, 80 F.3d at 1290 (internal quotation marks and citations omitted). 23 Here, the ALJ erred in determining that Plaintiff’s knee impairments were 24 non-severe. Plaintiff’s treatment records reflect that her doctor repeatedly reported 25 tenderness to palpation/tender points in Plaintiff’s bilateral knees and chronic 26 bilateral knee pain. [AR 384-88, 392, 394, 397-98, 414, 417-19, 422.] While the 27 ALJ cited several normal findings from Plaintiff’s records, including “normal gait,” 28 4 Case 5:21-cv-01138-GJS Document 25 Filed 08/24/22 Page 5 of 7 Page ID #:561

1 “full range of motion of the extremities,” and “negative” x-rays, the ALJ ignored 2 other abnormal findings. [AR 18, 21-22]; see Ghanim v. Colvin, 763 F.3d 1154, 3 1164 (9th Cir. 2014) (explaining “treatment records must be viewed in light of the 4 overall diagnostic record” and should be “read as a whole”); Social Security Ruling 5 85-28, 1985 WL 56856, at *4 (step two “requires a careful evaluation” of the 6 medical evidence). Significantly, the ALJ failed to even mention MRIs of 7 Plaintiff’s bilateral knees from June 2020, which showed a free edge tear of the 8 medial meniscus posterior horn (right), intrasubstance degeneration of the anterior 9 horn of the lateral meniscus (right), focal high-grade hyaline cartilage loss of the 10 lateral tibiofemoral joint (right), chronic low-grade sprain of the proximal fibers of 11 the medial collateral ligament (right), and small free edge fibrillation of the lateral 12 meniscus (left). [AR 450-53.] While the ALJ need not “discuss every piece of 13 evidence,” Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003), 14 the ALJ was not free to ignore relevant, competent evidence — such as Plaintiff’s 15 bilateral knee MRIs — that would lend support to a claim of disability. See Vincent 16 v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (holding the Commissioner “must 17 explain why ‘significant probative evidence has been rejected’”) (citation omitted); 18 see also Gallant v. Heckler, 753 F.2d 1450, 1455-56 (9th Cir. 1984) (the ALJ must 19 not “reach a conclusion first, and then attempt to justify it by ignoring competent 20 evidence in the record that suggests an opposite result”).3 21 Accordingly, for the reasons stated above, the Court finds that the ALJ’s step 22 two determination is not supported by substantial evidence. 23 24

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26 3 In addition, the ALJ erred in finding that Plaintiff “demonstrated no tenderness to palpation” during her May 2020 examination and her muscle strength 27 was “5/5 strength throughout.” [AR 21-22, 386 (finding tenderness to palpation in the medial patellar bilaterally and muscle strength in the bilateral lower extremities 28 was “4/5” in May 2020).] 5 Case 5:21-cv-01138-GJS Document 25 Filed 08/24/22 Page 6 of 7 Page ID #:562

1 V. REMAND FOR FURTHER PROCEEDINGS 2 The Court has discretion to remand or reverse and award benefits. See 3 Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017). “Remand for further 4 proceedings is appropriate where there are outstanding issues that must be resolved 5 before a determination can be made, and it is not clear from the record that the ALJ 6 would be required to find the claimant disabled if all the evidence were properly 7 evaluated.” Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012); Treichler v. 8 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (remand for 9 award of benefits is inappropriate where “there is conflicting evidence, and not all 10 essential factual issues have been resolved”). But “[w]here ‘(1) the record has been 11 fully developed and further administrative proceedings would serve no useful 12 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 13 evidence, whether claimant testimony or medical opinion; and (3) if the improperly 14 discredited evidence were credited as true, the ALJ would be required to find the 15 claimant disabled on remand,’” it is appropriate to exercise this discretion to direct 16 an immediate award of benefits. Trevizo, 871 F.3d at 682-83 (quoting Garrison, 17 759 F.3d at 1020). 18 Here, there are outstanding issues that must be resolved before a final 19 determination can be made because the ALJ failed to properly evaluate Plaintiff’s 20 knee impairments. Thus, remand is appropriate. 21 Having found that remand is warranted, the Court declines to address 22 Plaintiff’s remaining issues. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 23 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline to 24 reach [plaintiff’s] alternative ground for remand.”) 25 26 VI. CONCLUSION 27 For all of the foregoing reasons, IT IS ORDERED that: 28 (1) the decision of the Commissioner is REVERSED and this matter is 6 Case 5:21-cv-01138-GJS Document 25 Filed 08/24/22 Page 7of7 Page ID #:563

1 REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 2 administrative proceedings consistent with this Memorandum Opinion and 3 Order; and 4 (2) Judgment be entered in favor of Plaintiff. 6 IT IS ORDERED. 8 || DATED: August 24, 2022 9 ; ] 10 iM UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28