1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 STEVEN M.,1 Case No. 19-cv-06991-RMI

9 Plaintiff,

ORDER ON CROSS-MOTIONS FOR

10 v. SUMMARY JUDGMENT

11 ANDREW M. SAUL, Re: Dkt. Nos. 17, 18 12 Defendant.

13 14 Plaintiff, seeks judicial review of an administrative law judge (“ALJ”) decision denying his 15 application for disability insurance benefits under Title II of the Social Security Act. Plaintiff’s 16 request for review of the ALJ’s unfavorable decision was denied by the Appeals Council, thus, the 17 ALJ’s decision is the “final decision” of the Commissioner of Social Security which this court 18 may review. See 42 U.S.C. §§ 405(g), 1383(c)(3). Both parties have consented to the jurisdiction 19 of a magistrate judge (dkts. 8 & 11), and both parties have moved for summary judgment (dkts. 17 20 & 18). For the reasons stated below, Plaintiff’s motion for summary judgment is granted, and 21 Defendant’s motion is denied. 22 LEGAL STANDARDS 23 The Commissioner’s findings “as to any fact, if supported by substantial evidence, shall be 24 conclusive.” 42 U.S.C. § 405(g). A district court has a limited scope of review and can only set 25 aside a denial of benefits if it is not supported by substantial evidence or if it is based on legal 26 error. Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The phrase 27 1 “substantial evidence” appears throughout administrative law and directs courts in their review of 2 factual findings at the agency level. See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). 3 Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as 4 adequate to support a conclusion.” Id. at 1154 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 5 197, 229 (1938)); see also Sandgathe v. Chater, 108 F.3d 978, 979 (9th Cir. 1997). “In 6 determining whether the Commissioner’s findings are supported by substantial evidence,” a 7 district court must review the administrative record as a whole, considering “both the evidence 8 that supports and the evidence that detracts from the Commissioner’s conclusion.” Reddick v. 9 Chater, 157 F.3d 715, 720 (9th Cir. 1998). The Commissioner’s conclusion is upheld where 10 evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 11 679 (9th Cir. 2005). 12 PROCEDURAL HISTORY 13 On September 29, 2016, Plaintiff filed an application for disability insurance benefits, 14 alleging an onset date of October 7, 2015. See Administrative Record “AR” at 15.2 As set forth in 15 detail below, the ALJ found Plaintiff not disabled and denied the application on October 3, 2018. 16 Id. at 15-27. The Appeals Council denied Plaintiff’s request for review on August 23, 2019. See 17 id. at 1-4. Thereafter, on October 25, 2019, Plaintiff sought review in this court (dkt. 1), 18 contending that the ALJ improperly rejected the opinions of Plaintiff’s treating physicians, as well 19 as improperly rejecting Plaintiff’s testimony and the testimony of his mother – consequently, 20 Plaintiff submits that the ALJ’s finding at Step Five is not supported by substantial evidence. See 21 Pl.’s Mot. (dkt. 17) at 11-17. Defendant contends that Plaintiff has conflated his doctor’s “work 22 status reports” for medical opinions, and that substantial evidence otherwise supports the ALJ’s 23 assessment of Plaintiff’s testimony and that of his mother, as well as the RFC assessment and the 24 subsequent Step Five finding. See Def.’s Mot. (dkt. 18) at 3-9. 25 // 26 // 27 1 SUMMARY OF THE RELEVANT EVIDENCE 2 Plaintiff suffers from what his doctors characterize as “poorly controlled” diabetes, for 3 which he has been hospitalized on numerous occasions since first being diagnosed at age 17; he 4 also suffers from vision problems, and has a history of heart disease. AR at 1081. In line with 5 Plaintiff’s family history of heart attacks, he suffered his first one in 2015 when he was only in his 6 mid-30s, followed quickly by another heart attack the following year. Id. After the second heart 7 attack, Plaintiff underwent surgery for the installation of four stents in his coronary arteries. Id. 8 Since the heart attacks, Plaintiff has experienced persistent dizziness, fatigue, and shortness of 9 breath during even modest exertion (such as when he goes from a seated to a standing position). 10 Id. at 1082. Due to the dizziness and loss of balance, Plaintiff has fallen on a number of occasions; 11 consequently, he has greatly limited the frequency with which he leaves his home. Id. Thus far, no 12 physician has been able to identify the etiology of his dizziness. Id. The dizziness and fatigue 13 combine to preclude Plaintiff from engaging in any of his former hobbies or recreational activities; 14 as a result, he spends most of his time at home where “[h]e lays on the couch and sleeps most of 15 the day.” Id. His most recent employment was in 2015, before his first heart attack, when he 16 worked as a laborer in the construction industry. Id. at 1083. In 2015 and 2016, Plaintiff’s treating 17 physician, Ton Thai Hoang, M.D., directed that Plaintiff be “placed off work” for a period of time 18 spanning from October 4, 2015, to August 21, 2016. See id. at 1205-1213. 19 Since his first heart attack, Plaintiff’s treatment providers (including Dr. Hoang) routinely 20 noted his persistent and chronic dizziness while standing, as well as his persistent fatigue, 21 throughout 2015 and 2016. See id. at 412, 416, 433, 436, 509, 533-35, 539, 542, 544, 548, 582, 22 590, 597, 611, 634, 698. Thereafter, the persistent dizziness was noted throughout 2017 and 2018 23 as well. For example, in March of 2017, having been referred to Lisa Olsen, M.D., for a 24 consultative evaluation, Dr. Olsen noted that because the etiology of Plaintiff’s dizziness is still 25 unknown and unclear, Plaintiff “would benefit from further evaluation from . . . a neurologist or a 26 mental health professional.” Id. at 1081-86. Then, in May of 2017, and again in March of 2018, 27 Smita Gupta, M.D., noted that Plaintiff was still experiencing dizziness in the order of 5 times per 1 2018, another treating physician, Shahid Siddiqui, M.D., noted the persistence of Plaintiff’s bouts 2 of dizziness and problems with balance, while advising him to refrain from bending over. Id. at 3 1215-16. 4 Function Reports 5 In June of 2017, Plaintiff submitted a function report. Id. at 299-307. Therein, he noted that 6 form the time he wakes up, until the time he goes to bed, he is unable to do much of anything due 7 to shortness of breath and dizziness. Id. at 300. Plaintiff added that these symptoms interfere with 8 his abilities in the following domains: lifting, squatting, bending, walking, kneeling, stair- 9 climbing, and vision. Id. at 304. Plaintiff’s mother also completed and submitted a function report, 10 in which she noted that due to dizziness and his shortness of breath, Plaintiff is unable to engage in 11 any activities that require exertion. Id. at 312. She added that the dizziness and shortness of breath 12 interfered with Plaintiff’s ability to: lift things, squat, bend, stand, walk, kneel, climb stairs, see 13 clearly, and complete tasks. Id. at 313. 14 Hearing Testimony 15 On August 1, 2018, the ALJ conducted a hearing on Plaintiff’s claim; in the course of 16 which, the ALJ received testimony from Plaintiff, from a vocational expert (“VE”), and from 17 Gilberto Munoz, M.D., a Chicago-based physician specializing in occupational medicine, formerly 18 the team physician for the Chicago Fire professional soccer team. See id. at 34-90, 1198-99. In 19 pertinent part, Plaintiff’s testimony began with a description of some of his unsuccessful attempts 20 to return to work at a feed store owned by his friend, stocking shelves on two occasions for a few 21 hours and from a seated position; in this regard, he noted: “I did it twice and I just physically 22 couldn’t do it due to, you know, the disability state that I’m in right now.” Id. at 38-42. When the 23 ALJ asked Plaintiff to describe the health problems that undermine his ability to function in the 24 workplace, Plaintiff responded: “I would say my dizzy spells that I get. I get lightheaded, my 25 eyes.” See id. at 53, 75. 26 Thereafter, Dr. Munoz testified and noted that he had reviewed Plaintiff’s medical records. 27 Id. at 65-66. Initially, the ALJ asked Dr. Munoz to opine as to whether or not any of Plaintiff’s 1 interrupted him and the subject of conversation was changed to gauging Plaintiff’s RFC. See id. at 2 65-66. When asked to opine about Plaintiff’s RFC based on his review of the medical records, Dr. 3 Munoz noted that Plaintiff would be restricted to the full range of sedentary work; with the ability 4 to occasionally engage in the range of postural movements, but Plaintiff would be precluded from 5 climbing ladders, ropes, or scaffolds; with no limitations for reaching, handling, or fingering; no 6 limitations as to communicating, hearing, seeing, or speaking; Plaintiff should avoid working at 7 unprotected heights, operating a vehicle for commercial purposes, or working around heavy 8 machinery; and, Plaintiff can occasionally be exposed to dust, odors, fumes, pulmonary irritants, 9 humidity and wetness, extreme cold or heat, and vibrations. Id. at 67-68 10 Next, the ALJ asked the VE if a hypothetical person with Plaintiff’s background and 11 experience, with the limitations described in the above-described RFC (but that would be expected 12 to miss work more than four times a month due to diabetic neuropathy in the ankles), would be 13 able to perform Plaintiff’s past relevant work, or any work at all in the national economy. Id. at 14 84-86. The VE responded in the negative as to both questions. Id. at 86-87. The ALJ then 15 modified the hypothetical to involve less than one absentee day per month; and the VE answered 16 in the negative as to Plaintiff’s prior relevant work because those jobs involved work at the 17 medium and heavy exertional levels. Id. at 87. As to other jobs in the national economy, the VE 18 opined that Plaintiff could do unskilled sedentary such as a document preparer or a bench hand. Id. 19 at 87-88. Finally, upon questioning from Plaintiff’s counsel, the VE conceded that if a person were 20 to be off-task as little as 15 percent of the time, such a person would not be employable. Id. at 89. 21 THE FIVE STEP SEQUENTIAL ANALYSIS FOR DETERMINING DISABILITY 22 A person filing a claim for social security disability benefits (“the claimant”) must show 23 that he has the “inability to do any substantial gainful activity by reason of any medically 24 determinable physical or mental impairment” which has lasted or is expected to last for twelve or 25 more months. See 20 C.F.R. §§ 416.920(a)(4)(ii), 416.909.3 The ALJ must consider all evidence in 26

27 3 The regulations for supplemental security income (Title XVI) and disability insurance benefits (Title II) 1 the claimant’s case record to determine disability (see id. § 416.920(a)(3)), and must use a five- 2 step sequential evaluation process to determine whether the claimant is disabled (see id. § 3 416.920). “[T]he ALJ has a special duty to fully and fairly develop the record and to assure that 4 the claimant’s interests are considered.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). 5 Here, the ALJ set forth the applicable law under the required five-step sequential 6 evaluation process. AR at 16-17. At Step One, the claimant bears the burden of showing he has not 7 been engaged in “substantial gainful activity” since the alleged date on which the claimant became 8 disabled. See 20 C.F.R. § 416.920(b). If the claimant has worked and the work is found to be 9 substantial gainful activity, the claimant will be found not disabled. See id. The ALJ found that 10 Plaintiff meets the insured status requirements of the Social Security Act through December 31, 11 2020, and that he had not engaged in substantial gainful activity since October 7, 2015. AR at 17. 12 At Step Two, the claimant bears the burden of showing that he has a medically severe impairment 13 or combination of impairments. See 20 C.F.R. § 416.920(a)(4)(ii), (c). “An impairment is not 14 severe if it is merely ‘a slight abnormality (or combination of slight abnormalities) that has no 15 more than a minimal effect on the ability to do basic work activities.’” Webb v. Barnhart, 433 F.3d 16 683, 686 (9th Cir. 2005) (quoting S.S.R. No. 96–3(p) (1996)). At Step Two, the ALJ found that 17 Plaintiff suffered from the following severe impairments: coronary artery disease with a history of 18 myocardial infarction in 2015 and 2016, status post multiple surgeries for stent placement; 19 diabetes mellitus, type I, with hyperglycemia; chronic renal insufficiency and diabetic neuropathy. 20 Id. at 17. 21 At Step Three, the ALJ compares the claimant’s impairments to the impairments listed in 22 appendix 1 to subpart P of part 404. See 20 C.F.R. § 416.920(a)(4)(iii), (d). The claimant bears the 23 burden of showing his impairments meet or equal an impairment in the listing. Id. If the claimant 24 is successful, a disability is presumed and benefits are awarded. Id. If the claimant is unsuccessful, 25 the ALJ assesses the claimant’s residual functional capacity (“RFC”) and proceeds to Step Four. 26 See id. § 416.920(a)(4)(iv), (e). Here, the ALJ found that Plaintiff did not have an impairment or 27 combination of impairments that met or medically equaled the severity of any of the listed 1 sedentary work with the following exceptions and limitations: he can lift and or carry 10 pounds 2 occasionally, and less than 10 pounds frequently; he can stand and walk for at least two hours in 3 an eight-hour day; he can sit for about six hours in an eight-hour day (with normal breaks); he can 4 occasionally climb ramps or stairs, but he is precluded from climbing ladders, ropes, or scaffolds; 5 he can occasionally balance, stoop, crouch, kneel, or crawl; he has no manipulative, 6 communicative, or visual limitations; he must avoid all exposure to unprotected heights as well as 7 to large, dangerous, or moving machinery; and, he should be expected to be absent from work less 8 than one day per month. Id. at 19-20. At Step Four, the ALJ determined that Plaintiff is unable to 9 perform his past relevant work as a mechanic or an HVAC installer. Id. at 25. Next, at Step Five, 10 based on the RFC as formulated, and the VE’s testimony, the ALJ found that Plaintiff would be 11 able to perform the requirements of a document preparer or a bench hand (as set forth in the 12 Dictionary of Occupational Titles). Id. at 26-27. Thus, the ALJ concluded that Plaintiff had not 13 been under a disability, as defined in the Social Security Act, since October 15, 2015. Id. at 27. 14 DISCUSSION 15 Plaintiff contends that the ALJ in this case did not discharge his duty to properly develop 16 the record regarding two things: (1) Plaintiff’s persistent dizziness, fatigue, and shortness of 17 breath; and (2) Dr. Hoang’s implementation of a strict work-restriction for Plaintiff from October 18 of 2015 to August of 2016. See Pl.’s Mot. (dkt. 17) at 10, 12, 14, 16. In response, Defendant 19 suggests that only ambiguous evidence triggers the duty to develop the record, and that Dr. 20 Hoang’s statement was clear and unambiguous, and thus the record did not need any further 21 development in this regard. See Def.’s Mot. (dkt. 18) at 4. Beyond that, Defendant submits that the 22 RFC’s focus on sedentary work should more or less account for Plaintiff’s experiences with 23 dizziness in that such work “keeps him in a seated position for most of the day.” Id. at 6. 24 It is well established that “[t]he ALJ in a social security case has an independent ‘duty to 25 fully and fairly develop the record and to assure that the claimant’s interests are considered.’” 26 Tonapetyan v. Halter, 242 F.3d 1144, 1151 (9th Cir. 2001) (quoting Smolen, 80 F.3d 1273, 1288 27 (9th Cir. 1996)). Because administrative proceedings of this sort are inquisitorial in nature, the 1 scrupulously and conscientiously probe into the matter and actively explore for any and all 2 relevant facts. See Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006) (citing Higbee v. 3 Sullivan, 975 F.2d 558, 561 (9th Cir. 1992)). If there is so much as an ambiguity in the evidence, 4 or if the ALJ – or a reviewing court – finds that the record is inadequate for proper evaluation of 5 the evidence, such a finding likewise triggers the ALJ’s duty to conduct an appropriate inquiry. 6 See Tonapetyan, 242 F.3d at 1151 (citing Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)). 7 Because Social Security proceedings are inquisitorial rather than adversarial, “[i]t is the ALJ’s 8 duty to investigate the facts and develop the arguments both for and against granting benefits.” 9 Sims, 530 U.S. at 110-11 (citing Dubin, Torquemada Meets Kafka: The Misapplication of the 10 Issue Exhaustion Doctrine to Inquisitorial Administrative Proceedings, 97 Colum. L. Rev. 1289, 11 1301-1305, 1325-1329 (1997)); see also Richardson v. Perales, 402 U.S. 389, 400-01 (1971) 12 (“This, we think, is as it should be, for this administrative procedure, and these hearings, should be 13 understandable to the layman claimant, should not necessarily be stiff and comfortable only for the 14 trained attorney, and should be liberal and not strict in tone and operation. This is the obvious 15 intent of Congress so long as the procedures are fundamentally fair.”). 16 Accordingly, the ALJ must take reasonable steps to ensure that the issues and questions 17 raised by the medical evidence are carefully and properly addressed, by an appropriate 18 professional with the relevant professional background, so that the disability determination may be 19 fairly made on a sufficient evidentiary record, whether favorable or unfavorable to the claimant. 20 See Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1999); see also Smolen, 80 F.3d at 1288 (“If the 21 ALJ thought he needed to know the basis of [a doctor’s] opinion[ ] in order to evaluate [it], he had 22 a duty to conduct an appropriate inquiry, for example, by subpoenaing the physician[ ] or 23 submitting further questions to [him or her].”). In fact, when it is necessary to enable the ALJ (and 24 by extension, a reviewing court) to resolve a disability issue, the ALJ’s duty to develop the record 25 may require consulting a medical expert or ordering a consultative examination. See Tonapetyan, 26 242 F.3d at 1150 (the ALJ may develop the record in several ways, including by subpoenaing the 27 claimant’s physicians, submitting questions to the claimant’s physicians, continuing the hearing, 1 The record in this case is poorly developed. So much so that it is impossible for this court 2 to determine whether or not the RFC or the determination at Step Five are supported by substantial 3 evidence. First, it is unclear why Dr. Hoang opined that Plaintiff was unable to work at all between 4 2015 and 2016. Second, it is equally unclear whether or not, in Dr. Hoang’s opinion, Plaintiff’s 5 inability to work continued beyond August of 2016. Third, is also unclear to what degree 6 Plaintiff’s persistent dizziness, fatigue, and shortness of breath interfere with (or preclude) his 7 ability to function in the workplace – even with sedentary employment – because the ALJ did not 8 explore these subjects to any substantial degree with Plaintiff or with the testifying medical expert. 9 While the medical evidence is teeming with references to Plaintiff’s pervasive dizziness and 10 fatigue, there record is silent as to the effect of that dizziness on Plaintiff’s ability to perform the 11 requirements of the type of sedentary work as set forth by the ALJ’s RFC. Thus, the deficiencies 12 in the development of the record have hampered this court’s ability to review the ALJ’s findings. 13 On remand, the ALJ is ORDERED to conduct a second hearing: (1) in order to contact Dr. 14 Hoang, by subpoena or otherwise, as part of an effort to resolve the above-mentioned ambiguities 15 attending Dr. Hoang’s instruction that Plaintiff refrain from working in 2015 and 2016; (2) in 16 order to solicit an opinion from Dr. Hoang (or any of Plaintiff’s treating physicians) regarding the 17 nature and extent of the functional limitations attending Plaintiff’s persistent dizziness, fatigue, 18 and shortness of breath; and, (3) in order to take more substantial testimony from Plaintiff 19 regarding the nature and extent of any functional limitations attending his fatigue, shortness of 20 breath, and dizziness. 21 The court declines to address Plaintiff’s remaining issues not only because they can be 22 adequately addressed on remand, but also because the calculus underlying those issues will likely 23 change on remand given the holdings expressed herein. See Hiler v. Astrue, 687 F.3d 1208, 1212 24 (9th Cir. 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline to 25 reach [plaintiff’s] alternative ground for remand.”); see also Gutierrez v. Comm’r of Soc. Sec., No. 26 18-cv-02348-RMI, 2019 U.S. Dist. LEXIS 165711, at *30-31 (N.D. Cal. Sep. 25, 2019); Abdul-Ali 27 v. Berryhill, No. 18-cv-03615-RMI, 2019 U.S. Dist. LEXIS 138512, 2019 WL 3841995, at *7 1 (C.D. Cal. 2008) (“[The] Court need not address the other claims plaintiff raises, none of which 2 || would provide plaintiff with any further relief than granted, and all of which can be addressed on 3 remand.”’). On remand, the Commissioner is instructed to consider the other issues raised in 4 || Plaintiff's briefing and modify the ensuing ALJ opinion as appropriate. See Cortes v. Colvin, No. 5 || 2:15-cv-02277-GJS, 2016 U.S. Dist. LEXIS 40580, 2016 WL 1192638, at *4 (C.D. Cal. Mar. 28, 6 2016); Cochran v. Berryhill, No. 3:17-cv-00334-SB, 2017 U.S. Dist. LEXIS 212380, at *21 (D. 7 Or. Dec. 28, 2017). 8 CONCLUSION 9 Thus, for the reasons stated above, Plaintiff's Motion for Summary Judgment (dkt. 17) is 10 GRANTED, and Defendant’s Cross-Motion (dkt. 18) is DENIED. The case is REMANDED for 11 further proceedings pursuant to the instructions provided herein. 12 IT IS SO ORDERED. 5 13 Dated: March 19, 2021 g 14 Ml Z □ 15

R@BERT M. ILLMAN

16 United States Magistrate Judge

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