Theresa A. Walker v. Michael J. Astrue, No. 2:2009cv06738 - Document 23 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. Based on the foregoing, this matter will be remanded for a new hearing, in accordance with the dictates of this Opinion. (rp)
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Theresa A. Walker v. Michael J. Astrue Doc. 23 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 THERESA A. WALKER, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 09-06738-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff’s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record (“AR”) before the Commissioner. 25 Joint Stipulation (“JS”), and the Commissioner has filed the certified 26 AR. Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge (“ALJ”) erred in Dockets.Justia.com 1 failing to find that Plaintiff’s headaches were a severe 2 impairment; and 3 2. Whether the ALJ failed to include all of the mental 4 limitations assessed by the consultative examiner in his 5 residual functional capacity. 6 (JS at 5.) 7 8 9 This Memorandum Opinion will constitute the Court’s findings of fact and conclusions of law. 10 concludes that for the 11 After reviewing the matter, the Court reasons set forth, the decision of the Commissioner must be reversed. 12 13 I 14 THE ALJ ERRED AT STEP TWO IN FAILING TO FIND 15 THAT PLAINTIFF’S HEADACHES CONSTITUTE A SEVERE IMPAIRMENT 16 Plaintiff’s case has been working its way through the Social 17 Security Administration (“SSA”) for over six years. 18 initial application for disability insurance benefits (“DIB”) was 19 filed on April 2, 2003. (AR 188-90.) 20 administrative level, she filed a Request for Hearing, and had a 21 hearing before an ALJ on March 15, 2004. (AR 36-72.) She received an 22 unfavorable decision several months later. (AR 120.) Her Request for 23 Review with the Appeals Council was granted on November 19, 2004. (AR 24 160.) 25 Plaintiff’s After being denied at the It took almost two years for Plaintiff to have a second hearing, 26 which occurred on May 8, 2006 before the same ALJ. 27 of 28 development of the record concerning her treating physician, Dr. the Appeals Council remanding 2 the matter, Due to the Order which required 1 Kurtz, the ALJ diligently continued the hearing several times in order 2 to attempt to obtain records from Dr. Kurtz, which was ultimately 3 unsuccessful. The hearing finally proceeded on June 4, 2007, at which 4 time Plaintiff appeared with counsel, and testimony was taken both 5 from Plaintiff and from a vocational expert (“VE”). (AR 89-115.) 6 Again, an adverse decision resulted, issued by the ALJ on June 21, 7 2007. (AR 22-29.) 8 Appeals Council was denied, resulting in the filing of this case. This time, Plaintiff’s Request for Review by the 9 Plaintiff’s first ground for error is that the ALJ erred in 10 failing to find that her headaches constituted a severe impairment. 11 In evaluating this claim, the Court will not discuss in any detail the 12 five-step sequential evaluation process, which is well known. 13 brief, however, a claimant is “disabled” for the purpose of receiving 14 benefits under the Social Security Act if he is unable to engage in 15 any substantial gainful activity due to an impairment which has 16 lasted, or is expected to last, for a continuous period of at least 17 twelve months. 42 U.S.C. §§423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. 18 §§404.1505(a), 416.905(a). 19 establishing a prima facie case of disability.” 20 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); 21 Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). 22 The Commissioner has “The claimant established a bears the burden In of Roberts v. Shalala, five-step sequential 23 evaluation process which the ALJ must follow. 20 C.F.R. §§404.1520, 24 416.920. 25 in which the ALJ must determine whether the claimant has a severe 26 impairment or combination of impairments significantly limiting her 27 from performing basic work activities. 28 disability is made and the claim is denied. What is concerned here is the second step in that process, 3 If not, a finding of non20 C.F.R. §§404.1520(c), 1 416.920(c). 2 A severe impairment or combination of impairments is one which 3 significantly limits the claimant’s physical or mental ability to 4 perform basic work activities. 5 activities relate to the aptitudes necessary to perform most jobs, 6 such as the ability to perform physical functions, the capacity for 7 seeing and hearing, and the ability to use judgment, respond to 8 supervisors, and deal with changes in the work setting. 9 §416.921; Bowen v. Yuckert, 482 U.S. 137, 141-42 (1987). 20 C.F.R. §416.920. Basic work 20 C.F.R. 10 Plaintiff is not required to establish total disability at this 11 level of the evaluation. Rather, the severe impairment requirement is 12 a threshold element which plaintiff must prove in order to establish 13 disability within the meaning of the Act. 14 requirement increases the efficiency and reliability of the evaluation 15 process by identifying at an early stage those claimants whose medical 16 impairments are so slight that it is unlikely they would be found to 17 be disabled even if their age, education, and experience were taken 18 into account.” 19 Id. at 146. “The severity Id. at 153. Pursuant to Social Security Ruling 85-28, 20 “An impairment or combination of impairments is found 21 ‘non-severe’ and a finding of ‘not disabled’ is made at this 22 Step 23 abnormality or a combination of slight abnormalities which 24 would have no more than a minimal effect on an individual’s 25 ability to work even if the individual’s age, education, or 26 work experience were specifically considered (i.e., the 27 person’s impairment(s) has no more than a minimal effect on 28 his or her physical or mental ability(ies) to perform basic when medical evidence 4 establishes only a slight 1 work activities).” 2 3 In this case, the ALJ found, as he had in the first decision, 4 that Plaintiff’s headaches (which are diagnosed as occipital 5 neuralgia, see infra), did not constitute a severe impairment. (AR 6 24.) 7 credibility assessment, and his analysis that the objective evidence 8 does not support a finding of severe impairment. 9 credibility, the ALJ cited a level of activities of daily living The ALJ’s decision appears to be based on a mixed negative 10 (“ADL”) 11 descriptions (see, infra). 12 treatment history contraindicated a finding of severe impairment, 13 because of Plaintiff’s testimony that at one point she had been taking 14 the same headache medication for two years without relief, which the 15 ALJ found to be “quite peculiar ... if they were not helping her.” (AR 16 24.) 17 a diary of foods that she eats or to chart the environments where she 18 was most prone to have headaches, concluding, in a medical fashion, 19 that these were “all factors that could elicit information about the 20 trigger for, and best treatment for, the alleged symptoms.” (AR 24.) 21 As the Court will more fully discuss in the body of this Opinion, this 22 can only be interpreted as a medical opinion and conclusion, and one 23 which, 24 substantiated by any medical evidence whatsoever. 25 ALJ also cited on several occasions in his decision the fact that 26 Plaintiff 27 neurologist, Dr. Chow. (See AR at 24, 25, 541-55.) 28 which he believed belied Plaintiff’s With regard to subjective pain Also, the ALJ felt that Plaintiff’s The ALJ also noted that Plaintiff has never been asked to keep despite the walked very out of extensive an record appointment in this with case, is not In any event, the a consultative As the Commissioner argues in support of affirmance of the 5 1 decision, the ALJ rejected Dr. Kurtz’s opinion because he believed it 2 was based in substantial part on Plaintiff’s subjective statements 3 rather than objective evidence. (See AR at 25, JS at 11.) 4 conclusion is simply not supported by the record. 5 was treated on several occasions between January and July by Dr. 6 Singh. (AR 358-76.) 7 Plaintiff suffered from occipital neuralgia, a headache that is 8 characterized by piercing, throbbing, or electric-shock-like chronic 9 pain in the upper neck, back of the head, and behind the ears. (See JS But this In 2005, Plaintiff On each occasion, Dr. Singh assessed that 10 at 6.) 11 her medications several times to address her pain, and discussed the 12 risks of a nerve block with her. 13 opinion based on subjective self-reporting by Plaintiff. 14 During four visits Plaintiff had with Dr. Singh, he changed None of this would appear to be an In the previous year, 2004, Plaintiff had received a nerve block 15 from Dr. Vahedifar. (AR 335-36, 596-97.) The nerve block resulted in 16 an immediate decrease in Plaintiff’s pain, but on the same night, she 17 had an adverse reaction, suffering severe pain which sent her to the 18 ER. (See Plaintiff’s testimony at AR 57.) 19 diagnosis that Plaintiff suffered from occipital neuralgia (see AR at 20 600) was clearly based on his own objective opinion based upon 21 examination, not simply a regurgitation of Plaintiff’s complaints. In 22 2004, Plaintiff told Dr. Vahedifar that “she is having so much nausea 23 and vomiting with her medication and she cannot tolerate any of the 24 medications.” (AR 583.) 25 that a person, not suffering from severe headache pain, would subject Moreover, Dr. Vahedifar’s What actually strains credibility would be 26 27 28 6 1 herself to a wide variety of powerful medications1 and submit to a 2 risky nerve block. 3 Thus, it is well established that Plaintiff suffers from 4 occipital neuralgia. The question, then, is whether this is a severe 5 impairment as defined by the regulations and cases the Court has 6 cited. 7 only 8 abnormalities which would have no more than a minimal effect on an 9 individual’s ability to work ...” (See SSR 85-28.) Again, it must be kept in mind that the medical evidence must establish “a slight abnormality or combination of slight 10 Certainly, Plaintiff has consistently reported severe headache- 11 related pain to a wide variety of treating and examining physicians, 12 starting in 2001. At her first hearing, where she was not represented 13 by counsel, she testified that in the summer of 2000, she stopped 14 doing her work activities because of headache pains. (AR 55.) 15 described 16 prescribed for her, noting that they did not work very well. 17 described that most of the day she spends laying down and when she is 18 not in pain she tries to do what is feasible for her. (AR 61.) 19 does not do much cooking or grocery shopping and only a little 20 housecleaning. (AR 62-63.) 21 East Coast for her mother’s funeral, once to Texas and for a few days 22 to Northern California. (AR 63.) 23 headaches begin without any warning and require her to lay down. (AR 24 64.) the various medications that her treating She physician She She She has taken trips, once to go to the But she described that her pain It happens sometimes when she is driving a car, which is why she 25 1 26 27 28 As Plaintiff’s counsel notes, over the years, she has attempted to manage her pain with Imetrex, Neurontin, Zoloft, Butalbital, Fioricet, Fentanyl patches, Demoral, Norco, MS Cotin, OxyCotin, Soma, antidepressants, anti-inflamatories, Dilaudid, and an anesthetic steroid injection directly into her occipital nerve. (AR 408, 583, 585, 593, 602, 609.) 7 1 now only drives in the immediate vicinity of her home on back roads. 2 (Id.) 3 At Plaintiff’s second hearing in 2007, before the same ALJ, she 4 reiterated examples and descriptions of her pain testimony. 5 was not terribly interested in hearing about this (AR 98-99), but 6 Plaintiff was able to describe, again, the unpredictable and severe 7 pain which comes on from her headaches. (AR 99.) 8 she sees orthopedic and pain management specialists, and that one of 9 her physicians, Dr. Singh, is now trying novocaine shots in the back 10 The ALJ She described how of her neck. (AR 100.) 11 The ALJ depreciated, or more likely discarded, Plaintiff’s pain 12 complaints, because, as noted, he did not even find that it was a 13 severe impairment. 14 negative credibility assessment of Plaintiff’s pain reports. 15 Court finds that the factual bases cited by the ALJ in the decision 16 are largely not supported by the record itself. 17 commented that Plaintiff had been taking the same headache medications 18 for two years without relief, and found that to be peculiar if she was 19 in fact in such great pain. 20 ignores the bulk of the evidence, which shows that Plaintiff has gone 21 to 22 neurologic functioning, in an attempt to alleviate her pain. 23 submitted to a wide variety of powerful medications and invasive 24 procedures, such as nerve blocks. 25 has never kept a diary of foods she eats, or charted the environment 26 where she was most prone to have headaches. (See AR at 24.) 27 comments are mystifying, since there is absolutely nothing in the 28 record which, on a medical basis, would establish that Plaintiff’s numerous To accomplish this, he relied in part upon a specialists in But the For example, the ALJ This conclusion, however, literally orthopedics, pain management, and She has The ALJ also noted that Plaintiff 8 These 1 occipital neuralgia is related to the foods she eats, or her physical 2 environment. 3 area of medical expertise which he does not have. 4 credibility analysis, this assessment falls short, for the reasons 5 stated. 6 the fact that Plaintiff walked out of a meeting with a neurologist, 7 Dr. Chow. The ALJ took this as reflective of Plaintiff’s resistance to 8 trying different treatments. 9 exactly what Plaintiff has done: tried various powerful medications 10 and invasive treatments in an attempt to alleviate her pain. While it 11 was surprising to Dr. Chow, and perhaps not prudent for Plaintiff, to 12 walk out of this meeting, the Court notes that it was not an 13 examination which was funded by the Commissioner, or by any state 14 agency. 15 physician. 16 walked out of the meeting with Dr. Chow, but there are indications in 17 the record that Plaintiff has a great deal of anxiety related to her 18 condition. 19 Plaintiff on this basis without giving her a chance to explain seems 20 to the Court to be unfair. In making such statements, the ALJ was drifting into an In any event, as a Finally, the ALJ did focus several times in his decision on But, as the Court has noted, this is Plaintiff was sent to Dr. Chow by Dr. Kurtz, her regular She was never really asked during either hearing why she To make a negative credibility assessment against 21 Thus, the Court rejects the ALJ’s credibility assessment as a 22 basis for finding that she does not suffer severe pain from her 23 headache condition, and therefore, the only conclusion to be reached 24 is that the ALJ erred in rejecting Plaintiff’s occipital neuralgia at 25 Step Two as being a severe impairment. 26 in which Plaintiff has failed to establish the minimal screening 27 requirements necessary for a Step Two finding. Furthermore, the ALJ’s 28 rejection of this preliminary finding, and the basis upon which he 9 This is certainly not a case 1 arrived at it, both in his first and second decision, lead the Court 2 to question the ALJ’s impartiality in this particular case. 3 second hearing, the ALJ seemed somewhat impatient with Plaintiff when 4 she would attempt to explain something. 5 clear directive to the ALJ to reconsider the evidence that Plaintiff 6 suffered from a severe physical impairment, but in the second go- 7 round, the ALJ’s interpretation of the evidence was unaffected. 8 this reason, and because of the fact that this matter has gone on for 9 over six years, Plaintiff’s case will be assigned to a new ALJ on 10 remand. 11 remand, 12 At the The Appeals Council gave a For The physical impairment of occipital neuralgia will, on complaints will be found to be credible. be found to be a severe impairment. Plaintiff’s pain 13 The Court will briefly address Plaintiff’s second issue, which 14 asserts that the ALJ failed to include all of Plaintiff’s mental 15 limitations as assessed by the consultative examiner (“CE”). 16 On January 26, 2007, at the request of the Department of Social 17 Services, Plaintiff received a psychological evaluation from Dr. 18 Brawer. (AR 564-73.) 19 In the ALJ’s decision, it would appear that the he generally 20 accepted and adopted Dr. Brawer’s analyses and conclusions with regard 21 to 22 believes that the ALJ failed to accept Dr. Brawer’s conclusion that 23 Plaintiff has moderate limitations in the ability to respond to work 24 pressures in a usual work setting and to respond appropriately to 25 changes in the workplace. (JS at 17, citing AR 572.) 26 from the decision (see AR at 27) that the ALJ specifically rejected 27 these conclusions, other than his statement that he generally adopted 28 Dr. Brawer’s analyses. certain mental functional limitations. Plaintiff’s counsel It is not clear For clarity, on remand, these limitations 10 1 should be adopted and factored into the ALJ’s decision. The Court is, 2 however, more concerned with the ALJ’s specific rejection of Dr. 3 Brawer’s conclusion that Plaintiff may have problems with sustaining 4 motivation and stamina due to her physical condition. The ALJ in fact 5 rejected 6 conclusion that Plaintiff does not suffer from a severe physical 7 impairment. 8 established on remand. 9 rejection of this portion of Dr. Brawer’s opinion was based upon his 10 rejection of the existence of Plaintiff’s physical impairment, it 11 cannot be sustained. 12 13 14 this portion of Dr. Brawer’s opinion because 17 his The Court has overruled that finding, and it will be Consequently, to the extent that the ALJ’s Based on the foregoing, this matter will be remanded for a new hearing, in accordance with the dictates of this Opinion. IT IS SO ORDERED. 15 16 of DATED: October 5, 2010 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 11
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