Edward Valdez v. Michael J. Astrue, No. 2:2010cv02840 - Document 17 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, This matter will be remanded for further hearing consistent with this Memorandum Opinion. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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Edward Valdez v. Michael J. Astrue Doc. 17 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 EDWARD VALDEZ, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-02840-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”) properly Dockets.Justia.com 1 evaluated the medical evidence in assessing Plaintiff’s 2 residual functional capacity (“RFC”); and 3 2. Whether the ALJ properly evaluated Plaintiff’s subjective pain complaints. 4 5 (JS at 2-3.) 6 7 This Memorandum Opinion will constitute the Court’s findings of 8 fact and conclusions of law. 9 concludes 10 that for the After reviewing the matter, the Court reasons set forth, the decision of the Commissioner must be reversed. 11 12 I 13 THE ALJ ERRED IN FAILING TO DETERMINE THAT NON-EXERTIONAL 14 LIMITATIONS IN PLAINTIFF’S RIGHT UPPER EXTREMITY 15 DID NOT CONSTITUTE A SEVERE IMPAIRMENT 16 Plaintiff sustained multiple gunshot wounds in April 2007. (AR 17 62, 380, 22.) 18 injuries were sustained, on May 23, 2007, it was reported that 19 Plaintiff complained increasing pain in his right shoulder, and that 20 he was awaiting a call from “LAC/USC.”1 21 In a progress note made a few weeks after these Following the gunshot wounds, Plaintiff was hospitalized for two 22 weeks. According to a progress note dated April 22, 2008 by the 23 occupational therapist (“OT”), Sherry Shaffer, after being discharged, 24 Plaintiff, who did not have medical insurance, was not followed up by 25 physicians. (AR 298.) In that same report, the OT noted that 26 27 28 1 It would appear that this acronym is a reference to Los Angeles County Hospital, administered by the University of Southern California. 2 1 Plaintiff had deficits throughout his right upper extremity secondary 2 to a brachial plexus injury, gunshot wounds, and humerus fracture. It 3 was indicated that Plaintiff would benefit from occupational therapy 4 services “to attempt to [increase] ROM [range of motion] and function 5 of right upper extremity.” (Id.) 6 never been followed up for brachial plexus injury nerve damage.” (Id.) 7 A progress note by the OT of May 5, 2008 indicates the extent of 8 damage from a bullet which entered Plaintiff’s right medial clavicle 9 and exited his right shoulder. The OT noted that Plaintiff “has It was noted that Plaintiff had major 10 brachial plexus injury, and presently experienced pain on a level of 11 6/10 most of the time and also, Plaintiff had decreased sensation 12 throughout his right upper extremity. (AR 297.) 13 On June 19, 2008, the OT noted that Plaintiff had continued 14 limitations with range of motion distally in the right upper 15 extremity, with poor fine motor coordination in that area as well as 16 limitations in his gross motor skills. 17 his right upper extremity, with poor tolerance to heat and increasing 18 complaints of pain. (AR 293.) He had temperature changes in 19 In reports of July 2, 2008 and July 29, 2008, the OT again noted 20 that Plaintiff had poor fine motor coordination in his right upper 21 extremity, and that pain and numbness decreased his ability to 22 complete daily tasks. 23 times to complete tasks secondary to his pain and numbness. Plaintiff 24 had decreased sensation in his right hand, and his right upper 25 extremity was also affected by heat. 26 progress with his occupational therapy overall, he appeared to have 27 decreased strength and coordination “which are not resolving.” (AR 28 285-286, 289.) Plaintiff reported an inability to move at 3 Although Plaintiff made good 1 On September 23, 2008, in a discharge note, the OT indicated that 2 Plaintiff had continued decreased strength and fine motor coordination 3 deficits. 4 requested from a physician, Plaintiff was “encouraged ... to utilize 5 [right upper extremity] as much as tolerated.” (AR 280.) 6 Although Plaintiff no testified limitations that he were saw listed when physicians such while he were was 7 hospitalized after the gunshot wounds at Antelope Valley Hospital. He 8 has had surgeries to his arms. 9 physical therapy, but had stopped because “they couldn’t do anymore He indicated that he had been doing 10 [sic] to help me out.” 11 in March 2008, and stopped in September. 12 physical therapist, but stated “I couldn’t do it.” 13 the ALJ questioned Plaintiff why he did not start treatment until 14 March of 2008. 15 “A He put in paperwork to have physical therapy He was referred to another At the hearing, Plaintiff answered as follows: Yes, due to the fact we didn’t know after I was out of the 16 hospital they, no one really knew how to get help. 17 didn’t know how to get any –- no other doctors were trying 18 to help us. 19 Q 20 21 Okay. They They just let me go and that’s that. So how did it come to pass that you got the care again? A I was in so much pain and my mom started making calls to 22 different places until someone told her where to go to get 23 help.” 24 (AR 383.) 25 26 The ALJ did not find that Plaintiff had a severe impairment of 27 any kind from the gunshot wounds. (AR 21, Finding 3.) 28 determined that Plaintiff has the capacity to perform the full range 4 Thus, the ALJ 1 2 3 of medium work. (Id., Finding 5.) The ALJ fairly well summarized Plaintiff’s testimony at the hearing, in the following portion of his decision: 4 “[Plaintiff] testified that he experiences constant 5 pain and numbness in his right arm on a daily basis. 6 stated that three of his fingers get numb and he has pain 7 from his bicep to his elbow. 8 everyday is at a 5 and goes up to about a 10 when his body 9 temperature rises. He indicated that on a hot day, or even 10 when his 11 temperature to rise, his pain increases to an intolerable 12 level and he starts sweating, shaking, and would have to 13 turn on the air conditioner or use an ice pack to lower his 14 body temperature and relieve some of the pain by [sic]. 15 also noted that he has to rest his arm in front of his 16 stomach because it causes the least amount of pain and that 17 his doctor advised against wearing a sling so that he does 18 not get used to it. 19 medications for treatment which make him a little drowsy and 20 does not make the pain go away. 21 he is using He He testified his pain level left arm which causes his body He He testified that he is taking [Plaintiff] testified that he cannot use his right hand 22 or arm at all. 23 with his right hand because of the numbness in three of his 24 fingers. 25 bathing, or tying his shoes and requires assistance from his 26 mother or brother. 27 his 28 temperature left He stated that has difficulty holding a cup He also stated that he has difficulty dressing, arm and rises He acknowledged that he is able to use hand, from but using 5 noted his that left if his body arm, the pain 1 increases in his right arm. 2 hour naps during the day and does not go out of his house 3 unless he is going to his father’s house. He testified that 4 he can drive a car, but not on hot days. 5 his concentration is affected when the pain is bad because 6 he starts shaking and sweating.” 7 He stated that he takes 3 to 5 He also noted that (AR 22.) 8 9 Plaintiff’s mother, Martha Ramos, also testified at the hearing, 10 and the ALJ summarized her testimony in the following portion of his 11 decision: 12 “Plaintiff’s mother, Martha Ramos, testified that 13 [Plaintiff] can no longer work. 14 sweating and shaking and would have to turn on the air 15 conditioner for him. She indicated that [Plaintiff] did not 16 get treatment because they could not afford the doctor, but 17 when his condition worsened, she starting calling different 18 places to get information on where he can get medical 19 treatment. 20 his right hand as much and just used it to hold a cup. 21 stated that his medication makes him drowsy or is in a haze 22 because when she talks to him she has to check if he is 23 listening and also opined that he his [sic] more irritable. 24 She 25 [Plaintiff] get dressed.” 26 She has seen him in pain, Ms. Ramos stated that [Plaintiff] does not use confirmed that she or [Plaintiff’s] brother She helps (AR 23.) 27 28 At Step Two of the sequential evaluation process, an ALJ must 6 1 determine that a severe impairment exists if it (whether alone or in 2 combination with other impairments) significantly limits a claimant’s 3 physical or mental ability to do basic work activities. See 20 C.F.R. 4 §§404.1520(c) 5 articulated that an impairment or combination of impairments may be 6 found to be not severe only if the evidence establishes a slight 7 abnormality that has no more than a minimal effect on an individual’s 8 ability to work. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). 9 Moreover, the Commissioner has stated in Social Security Ruling 10 (“SSR”) 85-28 (1985) that “[I]f an adjudicator is unable to determine 11 clearly the effect of an impairment or combination of impairments on 12 the individual’s ability to do basic work activities, the sequential 13 evaluation should not end with the non-severe evaluation step.” Thus, 14 it is well understood that step two is a “de minimis screening device 15 [used] to dispose of groundless claims,” Smolen, 80 F.3d at 1290. 16 ALJ may only find that a claimant lacks a medically severe impairment 17 or combination of impairments when the conclusion to that effect is 18 “clearly established by medical evidence.” SSR 85-28. 19 a claimant’s statements about pain or other symptoms do not alone 20 establish disability, such evidence, in combination with medical signs 21 and laboratory findings demonstrating a medical impairment, is clearly 22 relevant. See 20 C.F.R. §416.929(a)(2010). Where a claimant provides 23 testimony in the form of subjective reporting of pain or other 24 symptoms, and there is no evidence of malingering, such relevant 25 evidence may only be rejected under a “clear and convincing” standard. 26 See Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005), citing Reddick 27 v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). 28 and 416.920(c). The Ninth Circuit has clearly An Further, while It is apparent that Plaintiff did have serious exertional and 7 1 non-exertional functional limitations in his right upper extremity 2 from the gunshot wound, as evidenced by the progress notes of the OT 3 through September 2008. 4 contrary. 5 ALJ could possibly have determined that Plaintiff does not have a 6 severe impairment in his right upper extremity as a result of the 7 gunshot wounds. 8 which indicated that Plaintiff had made gains overall, that he 9 experienced decreased numbness from his last reported visit, but that Indeed, there is no medical evidence to the The Court thus struggles to understand on what basis the The ALJ does cite a progress note from August 2008 10 he continued to have pain in his right upper extremity. 11 increased strength and better fine motor coordination in that area. 12 (AR 23, 282.) 13 overall, with the longitudinal progress reports summarized by the 14 Court. Further, in a progress report of September 23, 2008, which the 15 Court 16 continued decreased strength and fine motor coordination deficits. (AR 17 280.) The ALJ also cited signs of reinnervation from an EMG/NCS study 18 on June 19, 2008. (AR 24.) 19 to a lack of functional deficits. 20 ALJ selectively cited isolated snippets from the progress notes which 21 effectively misstated the competent evidence in the record in order to 22 justify a conclusion that Plaintiff did not have a severe impairment. 23 This was error. 24 1984); see also Fiorello v. Heckler, 725 F.2d 174, 176 (2nd Cir. 1983) 25 (the ALJ cannot selectively choose evidence in the record that 26 supports his conclusions); Whitney v. Schweiker, 695 F.2d 784, 788 (9th 27 Cir. 1982)(“[A]n ALJ must weigh all the evidence and may not ignore 28 evidence that suggests an opposite conclusion.”)(citation omitted). has He did have This progress note, however, is not consistent, already summarized, the OT noted that Plaintiff had But nerve regeneration is not equivalent It appears to the Court that the See Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 8 1 The ALJ also erred in discounting Plaintiff’s credibility. 2 Although Plaintiff’s testimony at the hearing, which was summarized in 3 the ALJ’s decision, and quoted in this decision, and the testimony of 4 his 5 nevertheless the ALJ found that Plaintiff’s subjective complaints and 6 alleged limitations “are out of proportion to the objective clinical 7 findings as noted above and are not consistent with the treatment he 8 received.” (AR 25.) mother were consistent with the progress notes of the OT, 9 The ALJ focused in great detail on the fact that Plaintiff had 10 not obtained treatment for his gunshot wounds, for almost a year 11 following his discharge from the hospital in 2007 until approximately 12 April 13 experiencing the level of pain and functional limitations to which he 14 testified, he would have sought and obtained treatment. 15 discussion which the Court views as almost entirely speculative, the 16 ALJ asserts that Plaintiff could have “gone to any County clinic for 17 that matter, for information on where he can go for medical treatment 18 ... It would not have taken 1 year after his injury to find medical 19 treatment, even it he initially did not know where he can obtain 20 medical services.” (AR 26.) 2008. As viewed by the ALJ, if Plaintiff were indeed In a lengthy 21 These negative conclusions were drawn despite the fact that 22 Plaintiff gave an explanation during his testimony at the hearing that 23 he did not know how to get help and that no other doctors were trying 24 to help him. 25 “Okay. So how did it come to pass that you got the care again?” (AR 26 383.) Plaintiff then responded that he was in so much pain that his 27 mother started making calls to different places until someone told her 28 where to go to get help. (Id.) Indeed, the ALJ responded to that testimony by stating, No inquiry was made by the ALJ as to 9 1 whether services were in fact available, or, indeed, if Plaintiff or 2 his mother had the level of sophistication necessary to know how to 3 obtain such services. An equally reasonable conclusion to explain the 4 failure to obtain services might be that the indigent care system 5 simply did not follow through with Plaintiff, and he may not have been 6 assertive enough to know how to work the system to try to get help. 7 This is not just a conclusion that this Court draws, but is consistent 8 with a whole range of case decisions from both this Circuit and other 9 Circuits which hold that if, because of financial limitations, a 10 claimant does not obtain medical services, that cannot be held against 11 the claimant in the disability evaluation process. 12 Circuit, it has been held that “[d]isability benefits may not be 13 denied because of the claimant’s failure to obtain treatment [he] 14 cannot obtain for lack of funds.” 15 (9th Cir. 1995). 16 Cir. 1988)(while remediable conditions are not generally disabling, 17 that condition is disabling if claimant cannot afford prescribed 18 treatment); Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987)(“The 19 medicine or treatment an indigent person cannot afford is no more a 20 cure for [his] condition than if it had never been discovered”); 21 Teeter v. Heckler, 775 F.2d 1104, 1107 (10th Cir. 1985) (inability to 22 afford surgery justifies failure to undergo); Gordon v. Schweiker, 725 23 F.2d 231, 237 (4th Cir. 1984)(“It flies in the face of the patent 24 purposes of the Social Security Act to deny benefits to someone 25 because [he] is too poor to obtain medical treatment that may help 26 [him].”). 27 28 In the Ninth Gamble v. Chater, 68 F.3d 319, 321 See also Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Thus, this matter must be remanded as to both issues raised by Plaintiff. It is unquestionable that Plaintiff does have a severe 10 1 impairment for the requisite necessary period of time as to exertional 2 and non-exertional limitations in his right upper extremity. 3 also apparent to the Court that the record must be further developed. 4 Plaintiff should be provided with a consultative examination by a 5 qualified medical professional to determine the extent of functional 6 limitations, both exertional and non-exertional, in his right upper 7 extremity. 8 9 10 For the foregoing reasons, this matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 11 12 13 It is DATED: February 14, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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