1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FREDERIC LEWIS, No. 2:22-CV-0191-DMC 12 Plaintiff, 13 v. MEMORANDUM OPINION AND ORDER 14 COMMISSIONER OF SOCIAL

SECURITY,

15 Defendant. 16 17 18 Plaintiff, who is proceeding with retained counsel, brings this action for judicial 19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 20 Pursuant to the written consent of all parties, ECF Nos. 4 and 8, this case is before the 21 undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 22 U.S.C. § 636(c); see also ECF No. 10 (minute order reassigning matter to Magistrate Judge). 23 Pending before the Court are the parties’ briefs on the merits, ECF Nos. 12 and 17.1 24 / / / 25 / / / 26 / / /

27 1 Defendant responded by way of a motion to remand for further proceedings in opposition to Plaintiff’s request for a remand for payment of benefits. For the reasons discussed 28 below, the Court issues this decision prior to the time provided for Plaintiff to reply. 1 The Court reviews the Commissioner’s final decision to determine whether it is: 2 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 3 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is 4 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 5 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support 6 a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, 7 including both the evidence that supports and detracts from the Commissioner’s conclusion, must 8 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones 9 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s 10 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. 11 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative 12 findings, or if there is conflicting evidence supporting a particular finding, the finding of the 13 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 14 Therefore, where the evidence is susceptible to more than one rational interpretation, one of 15 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v. 16 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal 17 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th 18 Cir. 1988). 19 For the reasons discussed below, the matter will be remanded for further 20 proceedings. 21 22 I. THE DISABILITY EVALUATION PROCESS 23 To achieve uniformity of decisions, the Commissioner employs a five-step 24 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. §§ 25 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:

26 Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed 27 not disabled and the claim is denied;

28 / / / 1 Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe 2 impairment; if not, the claimant is presumed not disabled and the claim is denied; 3 Step 3 If the claimant has one or more severe impairments, 4 determination whether any such severe impairment meets or medically equals an impairment listed in the regulations; 5 if the claimant has such an impairment, the claimant is presumed disabled and the claim is granted; 6 Step 4 If the claimant’s impairment is not listed in the regulations, 7 determination whether the impairment prevents the claimant from performing past work in light of the 8 claimant’s residual functional capacity; if not, the claimant is presumed not disabled and the claim is denied; 9 Step 5 If the impairment prevents the claimant from performing 10 past work, determination whether, in light of the claimant’s residual functional capacity, the claimant can engage in 11 other types of substantial gainful work that exist in the national economy; if so, the claimant is not disabled and 12 the claim is denied. 13 See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). 14 To qualify for benefits, the claimant must establish the inability to engage in 15 substantial gainful activity due to a medically determinable physical or mental impairment which 16 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 17 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental 18 impairment of such severity the claimant is unable to engage in previous work and cannot, 19 considering the claimant’s age, education, and work experience, engage in any other kind of 20 substantial gainful work which exists in the national economy. See Quang Van Han v. Bower, 21 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence 22 of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). 23 The claimant establishes a prima facie case by showing that a physical or mental 24 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 25 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant 26 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant 27 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 28 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock 1 v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989). 2 3 II. THE COMMISSIONER’S FINDINGS 4 Plaintiff applied for social security benefits on December 6, 2019. See CAR 15.2 5 In the application, Plaintiff claims disability began on September 9, 2019. See id. Plaintiff’s 6 claim was initially denied. Following denial of reconsideration, Plaintiff requested an 7 administrative hearing, which was held on April 13, 2021, before Administrative Law Judge 8 (ALJ) Christopher C. Knowdell. In a May 5, 2021, decision, the ALJ concluded Plaintiff is not 9 disabled based on the following relevant findings:

10 1. The claimant has the following severe impairment(s): diabetes mellitus; dissection of the descending thoracic aorta; hypertension; 11 and obesity;

12 2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in 13 the regulations;

14 3. The claimant has the following residual functional capacity: medium work; 15 4. Considering the claimant’s age, education, work experience, 16 residual functional capacity, and vocational expert testimony, the claimant can perform his past relevant work. 17 See id. at 17-23. 18 19 After the Appeals Council declined review on December 1, 2021, this appeal followed. 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 2 Citations are to the Certified Administrative Record (CAR) lodged on May 13, 28 2022, ECF No. 7. 1 III. DISCUSSION 2 In his opening brief, Plaintiff argues the ALJ erred in concluding his impairment 3 fails to satisfy Listing 4.10. 4 The Social Security Regulations “Listing of Impairments” is comprised of 5 impairments to fifteen categories of body systems that are severe enough to preclude a person 6 from performing gainful activity. Young v. Sullivan, 911 F.2d 180, 183-84 (9th Cir. 1990); 20 7 C.F.R. § 404.1520(d). Conditions described in the listings are considered so severe that they 8 are irrebuttably presumed disabling. 20 C.F.R. § 404.1520(d). In meeting or equaling a listing, 9 all the requirements of that listing must be met. Key v. Heckler, 754 F.2d 1545, 1550 (9th Cir. 10 1985). 11 At Step 3, the ALJ concluded that Plaintiff “does not have an impairment or 12 combination of impairments that meets or medically equals the severity of one of the listed 13 impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 14 404.1526).” CAR 18. Specifically, the ALJ found:

15 The claimant’s impairments do not meet or equal the aneurysm of aorta or major branches listing 4.10, as the medical records have not revealed 16 appropriate medically acceptable imaging with dissection not controlled by prescribed treatment. Furthermore, the medical record does not reflect 17 the persistence of chest pain.

18 Id. 19 Plaintiff argues that his case meets Listing 4.10 relating to aneurysm of the 20 aorta. See ECF No. 12, pgs. 5-7. According to Plaintiff: 21 . . . [T]he ALJ ignored that a confirmed aneurysm of the aorta, 22 with dissection, that has increased in size meets the explicit requirements of Listing 4.10. Id.; see also, Carr v. Saul, no. 7:18-cv-204-BO, 2020 WL 23 241567 at *2 (E.D. N.C. Jan. 14, 2020) [remanding for an award of benefits where claimant’s aortic aneurysm with dissection increased in 24 size]; Kemnitz v. Astrue, no. 12-cv-00285-SRN-LIB, 2013 WL 791840 at *4-5 (D. Minn. March 4, 2013) [same]. 25 Listing 4.10 states, in full: “Aneurysm of aorta or major branches, due to any cause (e.g., atherosclerosis, cystic medial necrosis, Marfan 26 syndrome, trauma), demonstrated by appropriate medically acceptable imaging, with dissection not controlled by prescribed treatment (see 27 4.00H6).” 20 C.F.R. Part 404, Subpart P, App. 1, § 4.10.

28 / / / 1 Section 4.00H6 of the Listings states, in full:

2 When does an aneurysm have ‘dissection not controlled by prescribed treatment,’ as required under 4.10? An 3 aneurysm (or bulge in the aorta or one of its major branches) is dissecting when the inner lining of the 4 artery begins to separate from the arterial wall. We consider the dissection not controlled when you have 5 persistence of chest pain due to progression of the dissection, an increase in the size of the aneurysm, or 6 compression of one or more branches of the aorta supplying the heart, kidneys, brain, or other organs. An 7 aneurysm with dissection can cause heart failure, renal (kidney) failure, or neurological complications. If you 8 have an aneurysm that does not meet the requirements of 4.10 and you have one or more of these associated 9 conditions, we will evaluate the condition(s) using the appropriate listing. 10 Id., § 4.00H6 [emphasis added]. Plaintiff’s evidence establishes that he has 11 an aortic aneurysm with dissection, which through April 2020, grew in size from 4.6 centimeters to 5.3 centimeters since diagnosis, according to 12 repeat CT scans interpreted by treating specialists. AR 326-328, 356, 315- 319, 464-465. 13 The ALJ, however, inexplicably stated “the medical records have not revealed appropriate medically acceptable imaging with dissection” 14 without any mention of the records showing exactly that. AR 18. There is no basis that CT scans, summarized by two different specialists, are not 15 “medically acceptable imaging,” and the ALJ made no effort to explain this bare, unsupported conclusion. See, Orn v. Astrue, 495 F.3d 625, 630 16 (9th Cir. 2007) [citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) [“We are constrained to review the reasons the ALJ asserts.”]. 17 Moreover, those CT scans, according to specialists who the ALJ is not qualified to disbelieve, plainly show Plaintiff suffers from a dissected 18 aortic aneurysm that has grown bigger over a period approaching two years. See, Banks v. Barnhart, 434 F.Supp.2d 800, 805 (C.D. Cal. 2006) 19 [“ALJ cannot arbitrarily substitute his own judgment for competent medical opinion [], and he must not succumb to the temptation to play 20 doctor and make his own independent medical findings.”] [internal quotation marks omitted]. Even the ALJ himself, elsewhere in the 21 decision, acknowledged the aneurysm’s increased size. See, AR 20 [“He was noted to have aneurysm [sic] grow by 5mm in the past year.”]. The 22 issue is therefore effectively undisputed, and the ALJ’s inconsistent reasoning, contradicting the step three denial, is improper. 23 Lastly, to deny Plaintiff is disabled under the Listings, the ALJ attempted to misconstrue the Commissioner’s regulation and arbitrarily 24 impose a strict requirement that the evidence “reflect the persistence of chest pain.” AR 18. But again, to demonstrate that his aneurysm is “not 25 controlled by prescribed treatment,” Section 4.00H6 states this requirement is also be met upon radiology examinations showing the 26

27 / / /

28 / / / ] aneurysm has increased in size. The ALJ’s outcome-driven refusal to consider the alternative grounds to satisfy Section 4.00H6 is an obvious 2 legal error. 3 ECF No. 12, pgs. 5-7. 4 Defendant responds to Plaintiffs argument by way of a motion for remand for 5 | further proceedings. In so doing, Defendant concedes that the ALJ erred in evaluation of 6 | Plaintiff's claim. The issue in dispute is whether the matter should be remanded for an award of 7 | benefits, as Plaintiff requests, or for further proceedings, as Defendant requests. Based on g || Plaintiff's argument on the merits, the Court finds that remand for further proceedings is 9 || appropriate. According to Plaintiff, the ALJ erred by not providing explanation for the 10 || conclusion that the Listings were not satisfied. Thus, the error can best be cured by allowing the 11 || Commissioner to explain why, in light of the evidence Plaintiff cites, Plaintiff should not be 12 | found disabled by way of application of the Listings. 13 14 IV. CONCLUSION 15 For the foregoing reasons, this matter will be remanded under sentence four of 42 16 || U.S.C. § 405(g) for further development of the record and/or further findings addressing the 17 || deficiencies noted above. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. Plaintiff's motion for summary judgment, ECF No. 12, is granted; 20 2. Defendant’s motion for remand for further proceedings, ECF No. 17, is 21 || granted; 22 3. The Commissioner’s final decision 1s reversed and this matter is remanded 33 || for further proceedings consistent with this order; and 24 4. The Clerk of the Court is directed to enter judgment and close this file. 25 26 || Dated: December 27, 2022 = IS Co 27 DENNIS M. COTA 28 UNITED STATES MAGISTRATE JUDGE