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Velez v. Berryhill

United States District Court, C.D. California

June 20, 2017

JESSE VELEZ, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          JOHN D. EARLY, United States Magistrate Judge.



         Plaintiff Jesse Velez filed a Complaint on June 20, 2016, seeking review of the Commissioner's denial of his application for Title II Disability Insurance Benefits (“DIB”) and Title XVI Supplemental Security Income (“SSI”) benefits. (See Dkt. No. 1.) On December 19, 2016, Defendant filed an Answer. (Dkt. No. 15.) All parties have consented to proceed, pursuant to 28 U.S.C. § 636(c), before the undersigned Magistrate Judge for all further proceedings, including entry of Judgment. (See Dkt. Nos. 19, 23, 24.) On April 13, 2017, the parties filed a “Joint Stipulation” (sometimes hereinafter “J. Stip.”) setting forth the disputed issues. (Dkt. No. 25.) The matter is now under submission and ready for decision.



         On January 31, 2013, Plaintiff filed applications for Title II DIB and Title XVI SSI benefits, alleging an onset of disability date of January 9, 2013. (See Administrative Record [“AR”] 304-14, 315-21.) Plaintiff claimed that he cannot work due to, among other things, a pulmonary embolism, “right heart failure, ” “diabetes type II, ” deep vein thrombosis, and “chronic bronchitis.” (See AR 339.)

         Plaintiff was born on November 9, 1981, and at the time he allegedly became disabled he was 31 years old. (See AR 40, 83, 304, 315.) Plaintiff is 5' 6” tall, and has weighed from 250 to 270 pounds, which the Administrative Law Judge (“ALJ”) found qualified as obese. (See, e.g., AR 30, 339, 628.) Plaintiff has a General Equivalency Degree (“GED”), and he can read, write, and communicate in English. (AR 40, 338.) Plaintiff used to work as a “tile setter” or “tile finisher.” (AR 39, 83-84, 341.) He was laid off in 2011, and he collected unemployment benefits for about a year-and-a-half. (See AR 29, 84-87.) He lives in an apartment with his fiancé and their six children, who range in age from two to nine years old. (AR 81.) Plaintiff's fiancé works outside of their home, and they also receive approximately $800 a month in food stamps, and $900 a month in aid for the children, and Plaintiff himself is eligible for MediCal. (AR 82-83.) Plaintiff was a cigarette smoker, but he finally managed to quit smoking sometime around October 2013. (See AR 91-92.)

         In June 2012, a car backing slowly out of a driveway struck Plaintiff, and he went to the emergency room complaining of back pain. (See AR 388-93.)

         Around January 9, 2013, Plaintiff suffered a “pulmonary embolism” for which he was hospitalized for about a week. (AR 85-87, 492.) Tests at the hospital showed a “saddle pulmonary embolus” in the main pulmonary artery, and large “bilateral pulmonary emboli” in both lungs. (See AR 29, 410, 492.) Plaintiff also had acute deep vein thrombosis (“DVT”) in his left popliteal vein, one of the major blood vessels carrying blood from the lower leg to the heart. (See AR 29, 410-52.) Plaintiff was discharged from the hospital on January 16, 2013, and he was given prescriptions for Coumadin and Lovenox, anticoagulant blood thinners, and advised to do light work and light exercise. (See AR 29, 410-52, 525.) Plaintiff has not worked since January 2013. (AR 85.) Plaintiff claims that he continues to experience chronic chest pain which severely limits his activity. (See AR 89-95.)

         Two hearings were held before the same ALJ, the first on January 24, 2014, and a supplemental hearing on May 8, 2014. (See AR 25, 47, 76.) Plaintiff appeared and testified at both hearings, and he was represented by a non-attorney representative at both hearings. (See AR 25.) A vocational expert (“VE”) appeared and testified at the first hearing, and a medical expert (“ME”) testified by phone at the second hearing. (See AR 25.)



         The ALJ issued a “partially favorable” opinion on May 23, 2014 (see AR 21-41), finding at step three of the five-step sequential evaluation that Plaintiff met a listed impairment, Listing 3.09, primarily due to a pulmonary embolism and deep vein thrombosis, and was disabled from January 9, 2013, through March 27, 2014, and that he was therefore eligible for both DIB and SSI benefits for that period. (AR 26-33.) However, the ALJ also employed a seven-step SSI sequential evaluation and an eight-step DIB sequential evaluation, and determined that “medical improvement” had occurred, and that Plaintiff's disability ended March 28, 2014, and Plaintiff was no longer disabled after that date. (See AR 33-41.)

         In particular, the ALJ found that Plaintiff had not engaged in substantial gainful activity since January 9, 2013, the alleged onset of disability date. (AR 29.) The ALJ found that Plaintiff had three severe impairments: (1) a “massive pulmonary embolism”; (2) deep vein thrombosis (“DVT”); and (3) obesity. (AR 29.) The ALJ found that Plaintiff's pulmonary embolism and obesity, in combination, equaled Listing 3.09, which concerns respiratory disorders and “chronic pulmonary hypertension, ” as set forth in the Listing of Impairments at 20 C.F.R. Part 404, Subpart P, Appendix 1. (See AR 29, 31.)

         However, while the ALJ found that Plaintiff's conditions equaled Listing 3.09, the ALJ found that the record showed that “[m]edical improvement occurred as of March 28, 2014, ” making it “the date the claimant's disability ended.” (AR 33.) The ALJ found that after March 28, 2014, Plaintiff's condition had improved and Plaintiff had the residual functional capacity (“RFC”) to perform “a reduced range of sedentary work as defined in 20 C.F.R. [§§] 404.1567(a) and 416.967(a).” (AR 34.) The ALJ primarily based his opinion on a report dated March 27, 2014, from one of Plaintiff's treating physicians, Dr. Weber Chen, a hematologist, who opined that Plaintiff's “[b]ilateral pulmonary emboli and left leg DVT” had “resolved after 11 months of Coumadin.”[1] (See AR 33-34, 617-18.)

         The ALJ's opinion noted that the ME, Dr. Wallach, stated at the second hearing that Plaintiff's lung damage would have met a listing for “at least one year” after the January 2013 pulmonary embolism incident. (See AR 32.) The ME opined that the records showed that Plaintiff was improving, but in the ME's opinion Plaintiff was “still limited.” (See AR 32.) The ALJ stated that “I will grant the claimant the benefit of the doubt and I will credit Dr. Wallach's testimony with respect to an approximate one-year period.” (AR 32.) The ALJ also noted that Dr. Stephen Chen, whom he described as “a specialist in pulmonary and critical care, ” offered an opinion that “was materially consistent with that of the medical expert” (i.e., Dr. Wallach); but the ALJ faulted Dr. Stephen Chen's comparison of Plaintiff's dyspnea (i.e., difficult or labored breathing) on exertion or ambulation to a “New York Heart Association Class III” categorization, saying that Dr. Stephen Chen's comparison was “vague and does not address specific abilities and limitations.” (AR 38, citing 20 C.F.R. §§ 404.1513(e) and 416.913(e).)

         The ALJ also set forth a three-paragraph discussion of his concerns about the handwriting in reports and records at Exhibits 3E, 3F, 5F, 6F, 10F, 11F, and 12F. (See AR 39.) Those reports and records generally concerned impairment questionnaires about Plaintiff's functionality that were signed by treating physicians Dr. Stephen Chen and Dr. Tarek Nassif. (See id.) The impairment questionnaires generally opined that Plaintiff would likely be absent from work more than three days a month. (See AR 506-07, 585-86, 593-94, 634-39.) The ALJ opined that much of the handwriting in these questionnaires appeared similar to Plaintiff's, calling the opinions in those reports into question. (See AR 39.)[2]

         The ALJ also noted Plaintiff's contention that, while medical records might indicate improvement, Plaintiff could still not perform full time work. (See AR 34.) However, the ALJ found that Plaintiff's complaints of further limitations were “not entirely credible, ” and while the ALJ acknowledged that Plaintiff “was symptomatic for a period, ” and that Plaintiff “remains somewhat symptomatic, ” the ALJ nevertheless found Plaintiff would now only be “limited to a range of sedentary work.” (See AR 36-37.)

         The ALJ went on to find that Plaintiff could not perform his past relevant work as a tile setter. (AR 39.) However, the ALJ found that, based on the testimony from the VE at the first hearing, Plaintiff was able perform three other unskilled jobs that the VE had identified: (1) “addresser, ” listed in the Dictionary of Occupational Titles (“DOT”) as no. 209.587-010; (2) “order clerk, ” DOT no. 209.567-014; and (3) “call out operator, ” DOT no. 237.367-014. (AR 40.)

         Accordingly, the ALJ found that, while Plaintiff was disabled and eligible for DIB and SSI benefits for the “closed period” from January 9, 2013, the alleged onset date, through March 27, 2014, Plaintiff's disability ended on March 28, 2014, the day after Dr. Weber Chen's March 27, 2014 report. (See AR 40-41.)



         In June 2014, Plaintiff filed a request for the Appeals Council to review the decision of the ALJ. (See AR 1, 20.) Subsequently, four new exhibits were submitted to the Appeals Council that were not before the ALJ, that is, Exhibits 10E [AR 379-82], 18F [AR 627-31], 19F [AR 632], and 20F [AR 633-39]. (See, e.g., AR 5, 6, 630-39.) Exhibit 10E is a “representative's brief” dated March 10, 2016 from Plaintiff's counsel which noted, inter alia, the submission of this “new and material evidence” to the Appeals Council. (See AR 379-82.) Plaintiff “ask[ed] that this case be remanded back to the ALJ for the period of March 28, 2014 onward so that he can seek clarification from Dr. Stephen Chen and/or obtain additional ME evidence to evaluate the updated record.” (AR 382, citing, inter alia, 20 C.F.R. §§ 404.1520b, 404.1527, 416.920b, 416.927, and Social Security Ruling 96-2p.) The Appeals Council stated that it was making the newly-submitted Exhibits 10E, 18F, 19F, and 20F “part of the record.” (AR 6.)

         Exhibit 18F is a one-page record documenting a “venous duplex sonogram” by Dr. Roy Kwak that revealed no DVT in either of Plaintiff's legs. (See AR 630.) It appears that Exhibit 19F (AR 632), treatment notes from Dr. Stephen Chen from February 2014, is identical to treatment notes at Exhibit 17F at 1 (AR 625). Exhibit 20F is the “Pulmonary Impairment Questionnaire” signed by Dr. Stephen Chen on October 6, 2015. (See AR 634-39.) As discussed below, that questionnaire was virtually identical to the two prior questionnaires from Dr. Stephen Chen, signed on August 31, 2013 (AR 501-07) and October 10, 2013 (AR 588-94), and that new questionnaire still stated that Plaintiff would likely be absent from work more than three times a month as a result of his impairments. (AR 639.)

         On April 19, 2016, the Appeals Council found that the new evidence did not provide a basis for changing the ALJ's decision, and the Appeal Council denied Plaintiff's request for review. (AR 1-4.)[3]



         The primary issue in Social Security disability cases is whether the claimant is “disabled” under section 1614(a)(3)(A) of the Social Security Act. Disability is defined as the inability to engage in any substantial gainful activity by reason of any medically determinable impairment or mental impairment or combination of impairments that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months. See 42 U.S.C. § 423(d)(1)(A); Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012).

         A. Five-Step Sequential Evaluation

         When the claimant's case has proceeded to consideration by an ALJ, the ALJ conducts a five-step sequential evaluation to determine at each step if the claimant is or is not disabled. See Molina, 674 F.3d at 1110 (citing, inter alia, 20 C.F.R. §§ 404.1520(a), 416.920(a)). First, the ALJ considers whether the claimant is currently working in substantial gainful activity. Id. If not, the ALJ proceeds to a second step to determine whether the claimant has a “severe” medically determinable physical or mental impairment or combination of impairments that has lasted for more than 12 months. Id. If so, the ALJ proceeds to a third step to determine whether the claimant's impairments render the claimant disabled because they “meet or equal” any of the “listed impairments” set forth in the Social Security regulations at 20 C.F.R. Part 404, Subpart P, Appendix 1. See Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1001 (9th Cir. 2015).

         If the claimant's impairments do not meet or equal a “listed impairment, ” before proceeding to the fourth step, the ALJ assesses the claimant's “residual functional capacity” (“RFC”), that is, what the claimant can do on a sustained basis despite the limitations from his or her impairments. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Social Security Ruling (“SSR”) 96-8p. After determining the claimant's RFC, the ALJ determines at the fourth step whether the claimant has the RFC to perform her past relevant work, either as she “actually” performed it in the past, or as that same job is “generally” performed in the national economy. See Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (citing, inter alia, SSR 82-61); see also 20 C.F.R. §§ 404.1560(b), 416.960(b).

         If the claimant cannot perform her past relevant work, the ALJ proceeds to a fifth and final step to determine whether there is any other work, in light of the claimant's RFC, age, education, and work experience, that the claimant can perform and that exists in “significant numbers” in either the national or regional economies. See 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999). If the claimant can do other work, she is not disabled; but if the claimant cannot do other work and meets the duration requirement, the claimant is disabled. See Tackett, 180 F.3d at 1099 (citing 20 C.F.R. § 404.1560(b)(3)); see also 20 C.F.R. § 416.960(b)(3).

         The claimant generally bears the burden at steps one through four to show that she is disabled, or that she meets the requirements to proceed to the next step; and the claimant bears the ultimate burden to show that she is disabled. See, e.g., Molina, 674 F.3d at 1110; Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). However, at step five, the ALJ has a “limited” burden of production to identify representative jobs that the claimant can perform and that exist in “significant” numbers in the economy. See 20 C.F.R. §§ 404.1560(c)(1)-(2), 416.960(c)(1)-(2); Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Tackett, 180 F.3d at 1100.

         B. Seven-or Eight-Step Sequential Evaluation Re: Medical Improvement

         Where a claimant has been found disabled during a certain qualifying “closed period, ” but there is an issue about whether the claimant's disability continues through the date of the ALJ's decision, the ALJ conducts a further multi-step sequential evaluation. See 20 C.F.R. §§ 404.1594 and 416.994; see also Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016). For a Title II DIB claim, the evaluation essentially consists of eight steps; and for an SSI benefits claim, the evaluation essentially consists of seven steps. Cf. 28 C.F.R. §§ 404.1594(f)(1)-(8), 416.994(f)(1)-(7); see also Attmore, 827 F.3d at 875; AR 27-28. The distinguishing step between the eight-step DIB evaluation and the seven-step SSI evaluation is at step one of a DIB claim's evaluation, which requires a determination about whether the claimant is presently engaging in substantial gainful activity, a step which is generally not a relevant factor used to determine if the claimant's disability continues for purposes of an SSI claim. Cf. 28 C.F.R. §§ 404.1594(f)(1), 416.994(f)(1); see also AR 28.

         In analyzing whether a claimant's disability is continuing, the Social Security Administration has stated as follows:

We must determine if there has been any medical improvement in your impairment(s) and, if so, whether this medical improvement is related to your ability to work. If your impairment(s) has not medically improved we must consider whether one or more of the exceptions to medical improvement applies. If medical improvement related to your ability to work has not occurred and no exception applies, your benefits will continue. Even where medical improvement related to your ability to work has occurred or an exception applies, in most cases . . . we ...

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