1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 ALLAH KEYES, CASE NO. 19-cv-00345-YGR

7 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION

FOR SUMMARY JUDGMENT AND DENYING

8 vs. DEFENDANT’S CROSS-MOTION FOR

SUMMARY JUDGMENT

9 ANDREW SAUL, COMMISSIONER OF SOCIAL

SECURITY,

10 Re: Dkt. Nos. 23, 36 Defendant. 11

12 Plaintiff Allah Keyes brings this action seeking judicial review of a final decision of the 13 Commissioner of Social Security terminating his previously granted Supplemental Security 14 Income (“SSI”) under Title XVI of the Social Security Act. Currently pending before the Court 15 are the parties’ cross-motions for summary judgment. Having carefully considered the parties’ 16 submissions, and for the reasons stated below, the Court GRANTS the plaintiff’s motion, DENIES 17 the defendant’s motion, and REMANDS for further proceedings. 18 I. BACKGROUND 19 Plaintiff filed an application for SSI on May 8, 2007, alleging that he had been disabled 20 since April 1, 2007. (Administrative Record (“AR”), Dkt. No. 11, at 211–16.) The parties do not 21 dispute that plaintiff was found to be disabled and awarded benefits in a decision dated September 22 24, 2007.1 Plaintiff’s disability was subsequently determined to have continued in a determination 23 dated August 15, 2012. (Id. at 98–100.)2 However, on May 23, 2016, the Social Security 24 Administration (“SSA”) determined that plaintiff was no longer disabled. (Id. at 101–05.) This 25

26 1 Although this fact is not disputed by the parties, the administrative record does not contain this decision. 27 1 determination was upheld upon reconsideration by a state agency disability hearing officer in a 2 decision dated December 19, 2016. (Id. at 118–32.) 3 Plaintiff subsequently requested a hearing before an administrative law judge (“ALJ”), 4 which was held on December 12, 2017, before ALJ Robert Milton Erickson. (Id. at 31–68, 139.) 5 Plaintiff had non-attorney Jolene Gray at the hearing. (Id. at 33.) The ALJ heard testimony from 6 plaintiff, a vocational expert, and a medical expert. (Id. at 32.) On February 12, 2018, the ALJ 7 issued a decision finding that plaintiff was no longer disabled under section 1614(a)(3)(A) of the 8 Act. (Id. at 12–30.) Plaintiff’s request for Appeals Council review was denied on November 15, 9 2018, rendering the ALJ’s decision as the final decision of the Commissioner. (Id. at 1–6.) 10 II. LEGAL FRAMEWORK 11 The Social Security Act authorizes judicial review of final decisions made by the 12 Commissioner. 42 U.S.C. § 405(g) (district courts may enter “a judgment affirming, modifying, 13 or reversing the decision of the Commissioner of Social Security, with or without remanding the 14 cause for a rehearing”). A decision denying disability benefits “should be upheld unless it 15 contains legal error or is not supported by substantial evidence.” Garrison v. Colvin, 759 F.3d 16 995, 1009 (9th Cir. 2014) (citation omitted). Substantial evidence is “more than a scintilla,” but 17 “less than a preponderance.” Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). “Finally, the 18 court will not reverse an ALJ’s decision for harmless error, which exists when it is clear from the 19 record that the ALJ’s error was inconsequential to the ultimate nondisability determination.” 20 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (quotation marks omitted). 21 An individual is disabled for the purpose of receiving benefits under the Act if he 22 demonstrates a medically determinable physical or mental impairment that prevents him from 23 engaging in substantial gainful activity that is expected to result in death or last for a continuing 24 period of at least twelve months. See Reddick v. Chater, 153 F.3d 715, 721 (9th Cir. 1998) (citing 25 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the 26 work he previously performed and incapable of performing any other substantial gainful 27 employment that exists in the national economy. See Tackett v. Apfel, 180 F.3d 1094, 1098 (citing 1 After a person is found to be entitled to disability benefits, the Commissioner is required to 2 periodically review whether continued entitlement to such benefits is warranted. 42 U.S.C. § 3 423(i); 20 C.F.R. §§ 404.1588–1598. The Commissioner may terminate benefits if:

4 (A) there has been any medical improvement in the individual’s impairment or 5 combination of impairments (other than medical improvement which is not related to the individual’s ability to work), and 6 (B) the individual is now able to engage in substantial gainful activity. 7 42 U.S.C. § 423(f)(1). 8 The Act has established a seven-step sequential evaluation procedure for determining 9 continuing disability claims for purposes of Title XVI. See 20 C.F.R. § 416.994(b)(5). At step 10 one, the ALJ considers whether the impairment or combination of impairments meets or equals 11 any of the Listed Impairments under 20 C.F.R. pt. 404, subpt. P, app. 1. Id. At step two, the ALJ 12 assesses whether there has been medical improvement. Id. At step three, the ALJ considers 13 whether the improvement is related to the claimant’s ability to work and whether the claimant’s 14 residual functional capacity (“RFC”) has increased. Id. At step four, if the ALJ found no medical 15 improvement (step two), or that the improvement was not related to the claimant’s ability to work 16 (step three), the ALJ determines whether an exception to medical improvement applies. Id. At 17 step five, the ALJ will determine whether the claimant’s impairments in combination are 18 severe. Id. At step six, the ALJ assesses the claimant’s RFC based on the current impairment(s) 19 and whether the claimant is capable of performing his past relevant work. Id. At step seven, the 20 ALJ examines whether the claimant has the RFC to perform any other work. Id. If the ALJ 21 reaches step seven and finds that the claimant has the RFC to perform other work, the claimant’s 22 disability has ended. Id. If the claimant cannot perform other work, his disability continues. Id. 23 During step two3, which is of particular importance to the instant dispute, the ALJ 24 25

26 3 Determination of whether the claimant medically improved occurs at step three under the eight-step framework for Title II claims. The seven-step process for a Title XVI claim, as the one 27 here, is materially identical except for omitting the first step addressing substantial gainful 1 determines whether the claimant has experienced medical improvement, which is defined as 2 follows:

3 Medical improvement is any decrease in the medical severity of impairment(s) present at 4 the time of the most recent favorable medical decision that you were disabled or continued to be disabled and is determined by a comparison of prior and current medical evidence 5 which must show that there have been changes (improvement) in the symptoms, signs or laboratory findings associated with that impairment(s) . . . . 6 20 C.F.R. § 404.1594(c)(1). Moreover: 7

8 [f]or purposes of determining whether medical improvement has occurred, we will compare the current medical severity of that impairment(s) which was 9 present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled to the medical severity of that impairment(s) 10 at that time.

11 20 C.F.R. 404.1594(b)(7). 12

III. THE ALJ’S DECISION

13 In a decision dated February 12, 2018, the ALJ made the following specific findings: 14 1. The most recent favorable medical decision finding that the claimant 15 continued to be disabled is the determination dated August 15, 2012. This is known as the “comparison point decision” or CPD. 16 2. At the time of the CPD, the claimant had the following medically 17 determinable impairments: broken pelvis and low back pain status post motor 18 vehicle accident, depression, and posttraumatic stress disorder. These impairments were found to result in an adverse mental residual functional 19 capacity with marked limits performing complex tasks, maintain[ing] concentration, persistence and pace, performing activities within a schedule, 20 interacting appropriately with others, completing a normal workweek without interruptions from psychological impairment, and adapting. 21

22 3. The medical evidence establishes that, since May 23, 2016, the claimant has had the following medically determinable impairments: status post fractured 23 pelvis with recurrent infection in right buttocks and chronic pain, degenerative disc disease, status post left foot sprain, post-concussion syndrome, major 24 depressive disorder, and personality disorder. These are the claimant’s current impairments. 25

26 4. Since May 23, 2016, the claimant has not had an impairment or combination of impairments which meets or medically equals the severity of an impairment 27 listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.925 and 416.926). 1 5. Medical improvement occurred on May 23, 2016 (20 CFR 416.994(b)(1)(i)). 2 *** 3 6. Since May 23, 2016, the impairments present at the time of the CPD 4 decreased in medical severity to the point where the claimant has had the residual functional capacity to perform less than the full range of light work. 5

6 ***

7 7. The claimant’s medical improvement is related to the ability to work because it has resulted in an increase in the claimant’s residual functional capacity (20 8 CFR 416.994(b)(2)(iv)(B)).

9 *** 10 8. Since May 23, 2016, the claimant has continued to have a severe impairment 11 or combination of impairments (20 CFR 416.994(b)(5)(v)).

12 ***

13 9. Since May 23, 2016, based on the current impairments, the claimant has had 14 the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except lift and carry 20 pounds occasionally and 10 pounds 15 frequently, stand and walk two hours of an eight hour workday, sit about six hours of an eight hour workday, and push/pull consistent with lift and carry. He can 16 frequently balance o[r] kneel, and occasionally climb, stoop, crouch and craw. He is capable of simple repetitive tasks, no public interaction, no teamwork [ ] with 17 coworkers, and occasional interaction with supervisors. 18 *** 19 10. The claimant has no past relevant work (20 CFR 416.965). 20 11. On May 23, 2016, the claimant was a younger individual age 18–49 (20 CFR 21 416.963). 22 *** 23 12. The claimant has at least a high school education and is able to communicate 24 in English (20 CFR 416.964). 25 13. Transferability of job skills is not an issue because the claimant does not 26 have past relevant work (20 CFR 416.968).

27 14. Since May 23, 2016, considering the claimant’s age, education, work economy (20 CFR 416.960(c) and 416.966). 1

2 ***

3 15. The claimant’s disability ended on May 23, 2016, and the claimant has not become disabled again since that date (20 CFR 416.994(b)(5)(vii)). 4 (Id. at 15–25.) 5

IV. ANALYSIS

6 Plaintiff alleges the following errors in the Commissioner’s final decision: (1) the ALJ 7 improperly weighed the medical evidence; (2) substantial evidence does not support the ALJ’s 8 RFC determination; (3) substantial evidence does not support the ALJ’s finding of medical 9 improvement; and (4) the ALJ did not meet his duty to develop the record in his questioning of the 10 vocational expert. The Court first addresses the ALJ’s finding of medical improvement (at step 11 two) as it precedes the other issues in the seven-step sequential evaluation. 12 Although plaintiff identifies the ALJ’s finding of medical improvement as erroneous, he 13 does not elaborate on the issue, even after the Court invited supplemental briefing. 14 Notwithstanding, plaintiff having raised the issue, the Court cannot overlook the ALJ’s discussion, 15 or lack thereof. Here, the ALJ determined that medical improvement occurred, but offered only a 16 vague, conclusory statement to that effect. In making this finding, the ALJ wrote, in full, that: 17

18 Medical improvement occurred on May 23, 2016 (20 CFR 416.994(b)(1)(i)).

19 The medical evidence supports a finding that, by May 23, 2016, there had been a decrease in medical severity of the impairments present at the time of the CPD. 20 (AR at 18 (bold in original).) This determination is erroneous for two reasons. 21 First, the ALJ failed to conduct any comparative analysis in his decision. The ALJ does 22 not cite to even a “scintilla” of evidence to support this finding. See Smolen, 80 F.3d at 1279. As 23 explained above and as the Ninth Circuit noted, “medical improvement is defined as ‘any decrease 24 in the medical severity’ of a recipient’s impairment . . . and requires a ‘comparison of prior and 25 current medical evidence which must show that there have been changes (improvement) in the 26 symptoms, signs or laboratory findings associated with that impairment(s)[.]” Attmore v. Colvin, 27 1 to point to a single symptom, sign, or laboratory finding at all.” Patricia M. v. Saul, No. 19-CV- 2 5829 (WHA), 2020 WL 4601629, at *5 (N.D. Cal. Aug. 11, 2020) (remanding where ALJ did not 3 support medical improvement finding; “the ALJ’s substantiation at [this step] is wholly 4 conclusory”). “Instead here, the ALJ gestured broadly to ‘the medical evidence.’” Id. 5 The Ninth Circuit recently reversed a district court’s decision upholding the ALJ’s 6 determination in this regard. In Gallant v. Saul, 783 F. App’x 688, 690 (9th Cir. 2019), the Court 7 explained:

8 Here, the ALJ did not properly analyze whether there was medical improvement in 9 Gallant’s preexisting impairments between April 2009 [when she was found disabled] and April 2012 [when she was deemed no longer eligible for benefits]. Nothing in the ALJ’s 10 opinion addresses the medical severity of Gallant’s impairments in April 2009. Instead, the ALJ concluded there was medical improvement because Gallant suffered only 11 ‘minimal limitations’ from her mental health impairments between 2009 and 2012 than before. But, as discussed, the ALJ was first required to compare the medical severity of 12 Gallant’s traumatic brain injury and mood disorder in 2009 and 2012, by considering the 13 symptoms, signs, and laboratory findings associated with those impairments in both those years. . . . 14 Id. (emphasis supplied). 15 Similarly, here, the ALJ did not cite the medical records reflecting plaintiff’s condition at 16 the time of the comparison point decision, much less analyze the medical severity of his 17 impairments in 2012. Indeed, the record does not contain the actual favorable medical decision 18 dated August 15, 2012 with corresponding analysis. Nonetheless, the ALJ somehow made the 19 following finding: 20 At the time of the CPD, the claimant had the following medically determinable 21 impairments: broken pelvis and low back pain status post motor vehicle accident, 22 depression, and posttraumatic stress disorder. These impairments were found to result in an adverse mental residual functional capacity with marked limits 23 performing complex tasks, maintain[ing] concentration, persistence and pace, performing activities within a schedule, interacting appropriately with others, 24 completing a normal workweek without interruptions from psychological impairment, and adapting. 25

26 (AR at 16–17 (bold in original)). No explanation or even citation followed. Thus, it is unclear 27 how the ALJ could have recited plaintiff’s medically determinable impairments and residual 1 identified in the list of exhibits attached to his decision. (Id. at 27–30.)4 2 Second, the ALJ’s improper finding of medical improvement is not only evident from the 3 discussion itself but also from a review of the administrative record filed in this case, which is 4 virtually devoid of prior medical evidence. Although the Court cannot know for certain what 5 evidence served as the basis for the comparison point decision without it on hand, the record offers 6 a clue. Upon reconsideration of the 2016 determination that plaintiff was no longer disabled, the 7 disability hearing officer’s decision dated December 19, 2016 identified at least two specific 8 sources of evidence underlying the CPD: medical records between 2011 and 2012 from the San 9 Francisco County Hospital and a March 8, 2012 orthopedic consultative examination by Dr. 10 Calvin Pon. (AR at 118.) The disability hearing officer proceeded to summarize this evidence 11 while also referring to various progress notes from 2011 as well as a November 6, 2011 12 psychological evaluation. (Id. at 122–23.) 13 However, this summary, which appears to be the only reference to the prior medical 14 evidence in the record, is unhelpful for three separate reasons. First, the ALJ makes no mention of 15 it. Second, even if he had, “making reference to the DHO’s [summary of evidence] . . . cannot 16 substitute for the ALJ’s own obligation set forth in 20 C.F.R. §§ 404.1594(b)(1) that the ALJ 17 compare prior to current medical evidence.” Medina v. Colvin, No. 14-CV-1967 (DMR), 2015 18 WL 5448498, at *11 (N.D. Cal. Aug. 21, 2015) (citing Veino v. Barnhart, 312 F.3d 578, 587 (2d 19 Cir. 2002) (“The Commissioner also argues that the record before us in adequate because the 1982 20 medical evidence was summarized in the Hearing Officer’s decision. . . . . The difficulty with the 21 Commissioner’s position is that these decisions are not evidence. . . . [W]ithout any of the 1982 22 medical evidence in the record before us, this Court cannot make a reasoned determination as to 23 whether the DHO’s summary is accurate or adequate.”)). Third, the evidence which the disability 24 hearing officer summarizes does not even appear to be in the administrative record. The Court is 25 26 4 The record does contain a 3-page letter dated August 15, 2012, notifying plaintiff that the 27 Administration determined that he was still disabled. (AR at 98–100.) However, none of the 1 unable to locate in the record Dr. Pon’s 2012 orthopedic examination report, the 2011 2 psychological evaluation by an unnamed provider, or the various progress notes discussed.5 3 Therefore, by failing to conduct the required comparative analysis and by lacking any 4 evidence in support, the ALJ’s finding that medical improvement occurred cannot stand. Contrary 5 to the defendant’s suggestion in supplemental briefing, it is not enough for the ALJ to simply 6 compare the medically determinable impairments and RFC determination assessed at the time of 7 the most recent favorable decision to those at present. See, e.g., Turpin v. Berryhill, No. 16-CV- 8 1695 (RFB), 2018 WL 5410926, at *3 (D. Nev. Oct 29, 2018) (remanding where the ALJ 9 “summarily stated [p]laintiff’s medically determinable impairments and RFC at the time of the 10 [most recent] favorable decision” without conducing a comparative analysis). “Conclusory 11 language that leaves the reader to intuit the ALJ’s reasoning does not clear this low evidentiary 12 hurdle. The ALJ did not ground his finding of medical improvement in substantial evidence and 13 thus failed to conduct a comparative analysis. This legal error merits remand.” Patricia M., 2020 14 WL 4601629, at *5.6 15

16 5 While the record does contain reports of X-rays from 2012 with respect to plaintiff’s pelvis, both hips, left foot, and right wrist (AR at 539, 563), the disability hearing officer’s 17 summary refers to evidence beyond these reports. In any event, as noted above, the ALJ did not 18 cite any medical evidence with respect to his finding of medical improvement.

19 6 See also Turpin, 2018 WL 5410926, at *3 (“Absent either (1) a record outlining a prior disability analysis for Plaintiff’s favorable medical decision or (2) a renewed analysis of Plaintiff’s 20 2007 [residual functional capacity] supported by substantial evidence, the ALJ lacked a viable 21 reference point to properly conduct step three of the analysis. Without a viable and identified reference point for comparison, the Court finds that the ALJ necessarily could not find and thus 22 failed to find medical improvement supported by substantial evidence.”); Price v. Colvin, No. 16- CV-08 (BMM), 2016 WL 8678865, at *2 (D. Mont. Nov. 22, 2016) (“The ALJ failed to compare, 23 however, the current severity of Mr. Price’s renal function impairments with the severity of his impairments when he was deemed disabled on December 22, 2003. The ALJ committed legal 24 error by failing to perform this comparison as required by 20 C.F.R. § 404.1594(b)(7).”); Zutphen 25 v. Colvin, No. 15-CV-2429 (SI), 2016 WL 5358589, at *6 (N.D. Cal. Sept. 26, 2016) (“The Court finds that the ALJ committed legal error at step three in several ways. Most importantly, the 26 ALJ’s decision cited to no medical evidence that pre-dated the October 2006 CPD.”); Newmiller v. Colvin, No. 15-CV-0139 (FFM), 2016 WL 3034670, at *4 (C.D. Cal. May 27, 2016) (“Here, the 27 ALJ failed to adequately compare current evidence of Plaintiff’s impairments with the evidence of 1 This error is not harmless because “an ALJ may not move to the evaluation of a claimant’s 2 RFC without first finding medical improvement, and the Act does not authorize an ALJ to find 3 medical improvement without making the comparison of prior and current medical evidence. A 4 termination decision is not ‘legally proper and supported by substantial evidence when the CPD 5 evidence is absent from the record.’” Medina, 2015 WL 5448498, at *12 (quoting Spratt v. 6 Colvin, No. 13-CV-299 (TDD), 2016 WL 2153933, at *5 (W.D. Okla. May 20, 2014)); see also 7 Newmiller, 2016 WL 3034670, at *5 (“The error is compounded because the ALJ proceeded with 8 the sequential analysis even though a proper finding of medical improvement is required to 9 continue to [the next step].”). “‘In the absence of the early medical records, the administrative 10 record lacks a foundation for a reasoned assessment of whether there is substantial evidence to 11 support the Commissioner’s finding that [a claimant’s current] condition represents an 12 improvement.’” Medina, 2015 WL 5448498, at *12 (quoting Veino, 312 F.3d at 587). 13 Accordingly, this matter is remanded for further development or review by the ALJ 14 consistent with the regulations and findings of medical improvement.7 Because a proper finding 15

16 of the CPD should have been included in the administrative record in this case. Since such evidence was not included in the administrative record, the Commissioner has failed to 17 demonstrate that medical improvement occurred and the matter must therefore be remanded for 18 further consideration.”); Medina, 2015 WL 5448498, at *11 (“[T]he plain language of 20 C.F.R. §§ 404.1594(b)(1) and (c)(1) requires the ALJ to actually compare prior and subsequent medical 19 records in order to determine the existence of medical improvement. ALJ Laverdure’s opinion does not address prior medical evidence. In fact, ALJ Laverdure appears not to have considered 20 prior medical evidence at all, since those prior records do not appear in the administrative record 21 submitted by the Commission to this court.”).

22 7 The Court notes that the agency previously lost plaintiff’s records underlying his initial disability determination. (AR at 122.) Therefore, medical improvement was not formally 23 considered for the period between September 14, 2007 (the initial disability determination) and August 15, 2012 (the most recent disability determination). (Id.) In light of the disability hearing 24 officer’s discussion of the evidence underlying the August 15, 2012 decision, the Court assumes 25 that this more recent set of records was not also lost.

26 However, “[t]o the extent such records are not available, the ALJ should have conducted the initial disability analysis anew based on medical evidence of [p]laintiff’s condition as of 27 [2012] to properly compare [p]laintiff’s past RFC to his current RFC.” Turpin, 2018 WL of medical improvement is required to continue with the sequential evaluation, the Court does not 2 || reach the additional arguments raised by plaintiff. See, e.g., Hryzhuk, 2016 WL 1162697, at *4 3 n.2; Medina, 2015 WK 5448498, at *12 n.6; Tucker, 2015 WL 1240001, at *5 n.3; Lee, 2012 WL 4 |) 928741, at *7. 5 || V. CONCLUSION 6 For the foregoing reasons, the ALJ’s finding that plaintiff experienced medical 7 || improvement is both legally erroneous for lacking a comparative analysis and unsupported by 8 substantial evidence. Accordingly, the Court GRANTS plaintiff's motion for summary judgment, 9 || DENIES the Commissioner’s cross-motion for summary judgment, and REMANDS this case 10 || pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Order. 11 The Clerk of Court is directed to enter judgment in favor of plaintiff. L This Order terminates the Docket Numbers 23 and 36.

13 IT Is SO ORDERED.

14 |) Dated: July 14, 2021 arene Mag tffleg 15 YVONNE GONZALEZ ROGERS

UNITED STATES DISTRICT COURT JUDGE

16

17

Z 18

19 20 21 22 23 24 25 26 27 || that claimants who are found to be disabled are not entitled to a presumption of a continuing 28 disability, see Lambert v. Saul, 980 F.3d 1266, 1268 (9th Cir. 2020), also does not relieve the ALJ of his obligation.