Marjorie Allende-Scott v. Michael J. Astrue, No. 2:2009cv09404 - Document 22 (C.D. Cal. 2010)
Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is REVERSED. 2. This action is REMANDED to defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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Marjorie Allende-Scott v. Michael J. Astrue Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 MARJORIE ALLENDE-SCOTT, 13 ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. 14 15 MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. 17 No. CV 09-9404 CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned Magistrate Judge. 21 review of the Commissioner’s denial of disability benefits. 22 discussed below, the court finds that the Commissioner’s decision 23 should be reversed and this matter remanded for further proceedings. 24 25 I. Plaintiff seeks As BACKGROUND Plaintiff Marjorie Allende-Scott was born on October 28, 1969, 26 and was thirty-nine years old at the time of her administrative 27 hearing. [Administrative Record (“AR”) 36, 39.] 28 grade education and past relevant work experience as a real estate She has a twelfth 1 Dockets.Justia.com 1 agent, payroll clerk, and accounting clerk. [AR 71, 73.] 2 alleges disability on the basis of interstitial cystitis, 3 hypertension, back pain, headaches, status post gunshot wound, and 4 obesity. [AR 52, 54-56.] 5 6 II. Plaintiff PROCEEDINGS IN THIS COURT Plaintiff’s complaint was lodged on December 23, 2009, and filed 7 on January 4, 2010. 8 Plaintiff’s Administrative Record (“AR”). 9 parties filed their Joint Stipulation (“JS”) identifying matters not 10 in dispute, issues in dispute, the positions of the parties, and the 11 relief sought by each party. 12 submission without oral argument. 13 III. On August 4, 2010, Defendant filed an answer and On November 8, 2010, the This matter has been taken under PRIOR ADMINISTRATIVE PROCEEDINGS 14 Plaintiff applied for a period of disability and disability 15 insurance benefits (“DIB”) on May 22, 2007, alleging disability since 16 December 31, 2004. [AR 9.] Plaintiff was last insured for DIB on 17 December 31, 2006. [AR 29.] 18 initially and on reconsideration, Plaintiff requested an 19 administrative hearing, which was held on May 11, 2009, before an 20 Administrative Law Judge (“ALJ”). [AR 36.] 21 counsel, and testimony was taken from Plaintiff, her husband Michael 22 Scott, and vocational expert Alan E. Cummings. [AR 37.] 23 denied benefits in a decision dated August 6, 2009. 24 the Appeals Council denied review on October 21, 2009, the ALJ’s 25 decision became the Commissioner’s final decision. [AR 1.] 26 27 28 IV. After the application was denied Plaintiff appeared with The ALJ [AR 6-33.] When STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s decision to deny benefits. 2 The Commissioner’s (or 1 ALJ’s) findings and decision should be upheld if they are free of 2 legal error and supported by substantial evidence. 3 court determines that a finding is based on legal error or is not 4 supported by substantial evidence in the record, the court may reject 5 the finding and set aside the decision to deny benefits. 6 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 7 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 8 F.3d 1157, 1162 (9th Cir. 9 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 10 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 11 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 12 However, if the See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, “Substantial evidence is more than a scintilla, but less than a 13 preponderance.” Reddick, 157 F.3d at 720. 14 which a reasonable person might accept as adequate to support a 15 conclusion.” 16 a finding, a court must review the administrative record as a whole, 17 “weighing both the evidence that supports and the evidence that 18 detracts from the Commissioner’s conclusion.” 19 can reasonably support either affirming or reversing,” the reviewing 20 court “may not substitute its judgment” for that of the Commissioner. 21 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. It is “relevant evidence To determine whether substantial evidence supports V. 22 Id. “If the evidence DISCUSSION 23 A. THE FIVE-STEP EVALUATION 24 To be eligible for disability benefits a claimant must 25 demonstrate a medically determinable impairment which prevents the 26 claimant from engaging in substantial gainful activity and which is 27 expected to result in death or to last for a continuous period of at 28 least twelve months. Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 3 1 721; 42 U.S.C. § 423(d)(1)(A). 2 Disability claims are evaluated using a five-step test: 3 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 4 5 6 7 8 9 10 11 12 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 13 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 14 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 15 C.F.R. § 404.1520, § 416.920. If a claimant is found “disabled” or 16 “not disabled” at any step, there is no need to complete further 17 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 18 Claimants have the burden of proof at steps one through four, 19 subject to the presumption that Social Security hearings are non20 adversarial, and to the Commissioner’s affirmative duty to assist 21 claimants in fully developing the record even if they are represented 22 by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 23 1288. If this burden is met, a prima facie case of disability is 24 made, and the burden shifts to the Commissioner (at step five) to 25 26 27 28 4 1 prove that, considering residual functional capacity (“RFC”)1, age, 2 education, and work experience, a claimant can perform other work 3 which is available in significant numbers. 4 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098, 5 B. THE ALJ’S EVALUATION IN PLAINTIFF’S CASE 6 Here, the ALJ found that Plaintiff had not engaged in substantial 7 gainful activity from her alleged disability onset date to her date 8 last insured (step one); that Plaintiff had medically determinable 9 impairments, namely interstitial cystitis, hypertension, back pain, 10 headaches, status post gunshot wound and obesity; but that Plaintiff 11 did not have a “severe” impairment or combination of impairments (step 12 two). 13 defined by the Social Security Act. [AR 32.] [AR 29-30.] Accordingly, Plaintiff was found not “disabled” as 14 C. 15 The parties’ Joint Stipulation identifies a single disputed 16 issue: whether the ALJ properly determined that Plaintiff’s condition 17 was non-severe at Step Two. [JS 3.] ISSUE IN DISPUTE 18 D. 19 The record shows that Dr. Eric B. Robins, a urologist at South INTERSTITIAL CYSTITIS 20 Bay Medical Center, had treated Plaintiff since July 2005 for 21 interstitial cystitis and other conditions. [AR 447.] 22 2005, Dr. Robins prescribed Plaintiff an Oxytrol medical patch, due to In September 23 1 24 25 26 27 28 Residual functional capacity measures what a claimant can still do despite existing “exertional” (strength-related) and “nonexertional” limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 her complaint that she voided every 10 to 60 minutes, and that her 2 previous treatments did not alleviate the condition. [AR 459.] The 3 patch helped Plaintiff limit the frequency of her voidings to every 4 hour, until Plaintiff was admitted to the hospital for exacerbation of 5 abdominal pain in July 2006. [AR 244.] Plaintiff’s frequency of 6 voidings had returned to every 10 minutes, even with the use of the 7 patch. [Id.] In a follow-up visit on May 2007, Dr. Robins noted that 8 Plaintiff’s voiding frequency was again limited to about every hour. 9 [AR 351-352.] 10 The ALJ, in reference to the above record, determined that 11 Plaintiff’s interstitial cystitis “responded well to treatment with 12 the patch,” and that Plaintiff did not “need emergency appointments 13 with the urologist because of a failure of the patch, or because of 14 unremitting symptoms of pain, cramping, etc.” [AR 21.] The ALJ 15 concluded that there is no evidence to show that Plaintiff’s condition 16 “occurred at a frequency, severity or duration so as to preclude the 17 performance of sustained work activities in an ordinary work setting 18 on a regular continuing basis.” [Id.] 19 conclusion was not supported by substantial evidence. 20 Plaintiff argues that the ALJ’s At step two of the five-step disability evaluation, an impairment 21 or combination of impairments may be found “not severe” only if the 22 evidence establishes a “slight abnormality that has no more than a 23 minimal effect on an individual’s ability to work.” 24 433 F.3d 683, 686 (9th Cir. 2005)(quoting Smolen v. Chater, 80 F.3d 25 1273, 1290 (9th Cir. 1996)); see also Yuckert v. Bowen, 841 F.2d 303, 26 306 (9th Cir. 1988). 27 effect of an impairment or combination of impairments on the 28 individual’s ability to do basic work activities, the sequential Webb v. Barnhart, If an ALJ is “unable to determine clearly the 6 1 evaluation should not end with the not severe evaluation step.” 2 433 F.3d at 687 (quoting SSR 85-28, 1985 WL 56856 at *4). 3 then, involves a “de minimis screening device used to dispose of 4 groundless claims, and an ALJ may find that a claimant lacks a 5 medically severe impairment or combination of impairments only when 6 his conclusion is clearly established by the medical evidence.” 7 433 F.3d at 687 (citations omitted); see also Yuckert, 841 F.2d at 306 8 (“Despite the deference usually accorded to the Secretary’s 9 application of regulations, numerous appellate courts have imposed a 10 11 Webb, Step two, Webb, narrow construction upon the severity regulation applied here.”). Under this narrow standard for step two evaluations, the finding 12 that Plaintiff did not have a severe impairment or combination of 13 impairments is not clearly established by the medical evidence. 14 Although the Oxytrol medical patch may have helped Plaintiff in 15 improving her condition, the hospitalization and regression in July 16 2006 show that the patch did not control her interstitial cystitis 17 enough to completely ensure her functional ability. 18 failed to consider properly Plaintiff’s hospitalization in July 2006 19 that was related to interstitial cystitis. 20 the regression of Plaintiff’s voiding frequency around the same time 21 call into question the stability of her treatment with the patch 22 beyond the initial period. [AR 308-309.] 23 Here, the ALJ This hospitalization and In addition, the record shows that Plaintiff received continuous 24 medical health treatment, takes medication for her condition such as 25 Hydrocodone-Acetaminophen 5, Fluoxetine, Oxepam, Alprozolam and 26 Atenolol [AR 185, 246, 277, 353-355], and has individual sessions with 27 a urologist. 28 Plaintiff’s claim of interstitial cystitis and other impairments “is Based on the existing record, the evidence of 7 1 sufficient to pass the de minimis threshold of step two.” 2 F.3d at 687. 3 will succeed in proving that [s]he is disabled,” the ALJ “should have 4 continued the sequential analysis beyond step two because there was 5 not substantial evidence to show that [plaintiff’s] claim was 6 groundless.” 7 that the plaintiff did not suffer from a severe impairment should be 8 reversed, and the matter should be remanded for further proceedings. 9 E. Webb, 433 Although the court “do[es] not intimate that [plaintiff] Webb, 433 F.3d at 688. Accordingly, the ALJ’s finding REMAND FOR FURTHER PROCEEDINGS The decision whether to remand for further proceedings is within 10 11 the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 12 1175-1178 (9th Cir. 2000). 13 further proceedings, or where the record has been fully developed, it 14 is appropriate to exercise this discretion to direct an immediate 15 award of benefits. 16 remand for further proceedings turns upon their likely utility). 17 However, where there are outstanding issues that must be resolved 18 before a determination can be made, and it is not clear from the 19 record that the ALJ would be required to find the claimant disabled if 20 all the evidence were properly evaluated, remand is appropriate. Id. 21 Here, as set out above, outstanding issues remain before a finding of 22 disability can be made. Accordingly, remand is appropriate. 23 // 24 // 25 // 26 // 27 // 28 // Where no useful purpose would be served by Harman, 211 F.3d at 1179 (decision whether to 8 1 VI. ORDERS 2 Accordingly, IT IS ORDERED that: 3 1. The decision of the Commissioner is REVERSED. 4 2. This action is REMANDED to defendant, pursuant to Sentence 5 Four of 42 U.S.C. § 405(g), for further proceedings as discussed 6 above. 7 8 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 9 10 11 DATED: November 27, 2010 ___________________________ CARLA M. WOEHRLE United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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