Sharon Cunningham v. Michael J. Astrue, No. 2:2011cv00144 - Document 15 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion. See memorandum for details. (hr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SHARON CUNNINGHAM, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. CV 11-144 JC ) ) ) MEMORANDUM OPINION AND ) ORDER OF REMAND ) ) ) ) ) ) ) ) 18 19 I. On January 13, 2011, plaintiff Sharon Cunningham ( plaintiff ) filed a 20 21 22 23 Complaint seeking review of the Commissioner of Social Security s denial of plaintiff s application for benefits. The parties have consented to proceed before a United States Magistrate Judge. This matter is before the Court on the parties cross motions for summary 24 25 26 27 28 SUMMARY judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; January 18, 2011 Case Management Order ¶ 5. /// 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is REVERSED AND REMANDED for further proceedings 3 consistent with this Memorandum Opinion and Order of Remand because the 4 Administrative Law Judge ( ALJ ) failed adequately to consider a listing that 5 plausibly applied to plaintiff s case. 6 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 7 DECISION 8 On March 29, 2007, plaintiff filed an application for Disability Insurance 9 Benefits. (Administrative Record ( AR ) 103). Plaintiff asserted that she became 10 disabled on April 21, 2006, due to broken hips, legs and pelvis. (AR 120). The 11 ALJ examined the medical record and heard testimony from plaintiff (who was 12 represented by counsel) and a vocational expert on November 26, 2008. (AR 1813 67). 14 On December 11, 2008, the ALJ determined that plaintiff was not disabled 15 through the date of the decision. (AR 11). Specifically, the ALJ found: 16 (1) plaintiff suffered from the following severe impairments: bilateral hip pain, 17 status post bilateral pelvic sacroiliac ( SI ) joint fixation, status post apparent 18 femoral rodding for a right hip fracture, left lower extremity weakness, and left 19 footdrop (AR 13); (2) plaintiff s impairments, considered singly or in 20 combination, did not meet or medically equal one of the listed impairments (AR 21 13-14); (3) plaintiff retained the residual functional capacity essentially to perform 22 sedentary work (20 C.F.R. § 404.1567(a)) with certain restrictions1 (AR 14); 23 24 1 The ALJ determined that plaintiff: (i) could lift ten pounds and occasionally lift or carry 25 articles like docket files, ledgers, and small tools; (ii) could stand and/or walk two hours in an 26 eight-hour workday; (iii) could sit six hours in an eight-hour workday; (iv) could not perform pushing and pulling with the upper extremities at a force greater than ten pounds; (v) could not 27 climb ladders, ropes, and scaffolds; (vi) could perform occasional climbing of ramps or stairs; (vii) could perform occasional balancing; (viii) could not perform stooping, kneeling, crouching, 28 or crawling; (ix) must use a hand-held assistive device for prolonged ambulation, but was unable (continued...) 2 1 (4) plaintiff could not perform her past relevant work (AR 15-16); and (5) there 2 are jobs that exist in significant numbers in the national economy that plaintiff 3 could perform, specifically personnel scheduler and final assembler and stuffer 4 (AR 16-17). Although the ALJ did not expressly state that plaintiff s allegations 5 regarding her limitations were less than totally credible, the analysis in the 6 administrative decision suggests that the ALJ so concluded. (AR 14-15). 7 The Appeals Council denied plaintiff s application for review. (AR 2-5). 8 III. APPLICABLE LEGAL STANDARDS 9 A. 10 Sequential Evaluation Process To qualify for disability benefits, a claimant must show that the claimant is 11 unable to engage in any substantial gainful activity by reason of a medically 12 determinable physical or mental impairment which can be expected to result in 13 death or which has lasted or can be expected to last for a continuous period of at 14 least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 15 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of 16 performing the work claimant previously performed and incapable of performing 17 any other substantial gainful employment that exists in the national economy. 18 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. 19 § 423(d)(2)(A)). 20 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 21 sequential evaluation process: 22 (1) 23 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 24 /// 25 /// 26 27 28 1 (...continued) to walk on uneven ground; and (x) could not work in any hazardous or high risk settings, such as work at unprotected heights or near dangerous machinery. (AR 14). 3 1 (2) Is the claimant s alleged impairment sufficiently severe to limit 2 claimant s ability to work? If not, the claimant is not disabled. 3 If so, proceed to step three. 4 (3) Does the claimant s impairment, or combination of 5 impairments, meet or equal an impairment listed in 20 C.F.R. 6 Part 404, Subpart P, Appendix 1? If so, the claimant is 7 disabled. If not, proceed to step four. 8 (4) 9 perform claimant s past relevant work? If so, the claimant is 10 11 Does the claimant possess the residual functional capacity to not disabled. If not, proceed to step five. (5) Does the claimant s residual functional capacity, when 12 considered with the claimant s age, education, and work 13 experience, allow claimant to adjust to other work that exists in 14 significant numbers in the national economy? If so, the 15 claimant is not disabled. If not, the claimant is disabled. 16 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 17 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 18 The claimant has the burden of proof at steps one through four, and the 19 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 20 F.3d 949, 954 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 21 (claimant carries initial burden of proving disability). 22 B. 23 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 24 benefits only if it is not supported by substantial evidence or if it is based on legal 25 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 26 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 27 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 28 mind might accept as adequate to support a conclusion. Richardson v. Perales, 4 1 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 2 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 3 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 4 To determine whether substantial evidence supports a finding, a court must 5 consider the record as a whole, weighing both evidence that supports and 6 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 7 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 8 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 9 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 10 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 11 IV. DISCUSSION 12 Plaintiff contends that a reversal or remand is warranted because the ALJ 13 failed adequately to consider Listing 1.03, a listing that plausibly applies to 14 plaintiff s case. (Plaintiff s Motion at 4). As discussed in detail below, the Court 15 agrees. As the Court cannot find that the ALJ s error was harmless, a remand is 16 warranted. 17 18 1. Pertinent Law At step three of the evaluation process, the ALJ must determine whether a 19 claimant has an impairment or combination of impairments that meets or equals a 20 condition outlined in the listing. See 20 C.F.R. § 404.1520(d). An impairment 21 matches a listing if it meets all of the specified medical criteria. Sullivan v. 22 Zebley, 493 U.S. 521, 530 (1990); Tackett, 180 F.3d at 1098. An impairment that 23 manifests only some of the criteria, no matter how severely, does not qualify. 24 Sullivan, 493 U.S. at 530; Tackett, 180 F.3d at 1099. An unlisted impairment or 25 combination of impairments is equivalent to a listed impairment if medical 26 findings equal in severity to all of the criteria for the one most similar listed 27 /// 28 /// 5 1 impairment are present.2 Sullivan, 493 U.S. at 531; see 20 C.F.R. § 404.1526(b); 2 SSR 83-19 (impairment is equivalent to a Listing only if claimant s symptoms, 3 signs, and laboratory findings are at least equivalent in severity to the criteria for 4 the listed impairment most like claimant s impairment). 5 Although a claimant bears the burden of proving that she has an impairment 6 or combination of impairments that meets or equals the criteria of a listed 7 impairment, an ALJ must still adequately discuss and evaluate the evidence before 8 concluding that a claimant s impairments fail to meet or equal a listing. Marcia v. 9 Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) ( [I]n determining whether a claimant 10 equals a listing under step three . . . the ALJ must explain adequately his 11 evaluation of alternative tests and the combined effects of the impairments. ). 12 Remand is appropriate where an ALJ fails adequately to consider a listing that 13 14 2 Under Social Security regulations, medical equivalence can be found in three ways: 15 16 17 18 19 (1) If you have an impairment that is described in [the Listing of Impairments]. . . but [¶] . . . [y]ou do not exhibit one or more of the findings specified in the particular listing, or [¶] . . . [y]ou exhibit all of the findings, but one or more of the findings is not as severe as specified in the particular listing, [¶] . . . [w]e will find that your impairment is medically equivalent to that listing if you have other findings related to your impairment that are at least of equal medical significance to the required criteria. 20 21 22 23 24 25 26 27 (2) If you have an impairment(s) that is not described in [the Listing of Impairments] . . ., we will compare your findings with those for closely analogous listed impairments. If the findings related to your impairment(s) are at least of equal medical significance to those of a listed impairment, we will find that your impairment(s) is medically equivalent to the analogous listing. (3) If you have a combination of impairments, no one of which meets a listing . . ., we will compare your findings with those for closely analogous listed impairments. If the findings related to your impairments are at least of equal medical significance to those of a listed impairment, we will find that your combination of impairments is medically equivalent to that listing. 28 20 C.F.R. § 404.1526(b). 6 1 plausibly applies to a plaintiff s case. See Lewis v. Apfel, 236 F.3d 503, 514 (9th 2 Cir. 2001) (plaintiff must present plausible theory as to how an impairment or 3 combination of impairments equals a listed impairment). 4 In order to be considered disabled under Listing 1.03, a claimant must show 5 that she has had reconstructive surgery or surgical arthrodesis of a major weight6 bearing joint which results in the claimant s inability to ambulate effectively and 7 claimant s return to effective ambulation did not occur, or is not expected to occur, 8 within 12 months of onset. 20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.03. 9 Listing 1.00(B)(2)(b) defines inability to ambulate effectively as follows: 10 (1) Definition. Inability to ambulate effectively means an 11 extreme limitation of the ability to walk; i.e., an impairment(s) that 12 interferes very seriously with the individual s ability to independently 13 initiate, sustain, or complete activities. Ineffective ambulation is 14 defined generally as having insufficient lower extremity functioning 15 . . . to permit independent ambulation without the use of a hand-held 16 assistive device(s) that limits the functioning of both upper extremities. 17 (Listing 1.05C is an exception to this general definition because the 18 individual has the use of only one upper extremity due to amputation of a 19 hand.) 20 (2) To ambulate effectively, individuals must be capable of 21 sustaining a reasonable walking pace over a sufficient distance to be 22 able to carry out activities of daily living. They must have the ability 23 to travel without companion assistance to and from a place of 24 employment or school. Therefore, examples of ineffective 25 ambulation include, but are not limited to, the inability to walk 26 without the use of a walker, two crutches or two canes, the inability to 27 walk a block at a reasonable pace on rough or uneven surfaces, the 28 inability to use standard public transportation, the inability to carry 7 1 out routine ambulatory activities, such as shopping and banking, and 2 the inability to climb a few steps at a reasonable pace with the use of 3 a single hand rail. The ability to walk independently about one s 4 home without the use of assistive devices does not, in and of itself, 5 constitute effective ambulation. 6 20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.00(B)(2)(b). 7 8 2. Analysis Here, the Court concludes that the ALJ failed adequately to evaluate 9 whether plaintiff s impairments met or medically equaled Listing 1.03, and that a 10 remand on this basis is appropriate. 11 First, the record contains evidence that Listing 1.03 plausibly applies in 12 plaintiff s case. The report of a May 2007 orthopedic examination of plaintiff 13 reflects that in 2006 plaintiff underwent bilateral pelvic SI joint fixation surgery 14 and rodding of the right femur to repair injuries to her pelvis and right proximal 15 femur sustained during an automobile accident. (AR 150). X-rays of plaintiff s 16 left hip taken at the time of the orthopedic examination revealed a bulge in place 17 across the SI joint of [plaintiff s] pelvis, [a] suggestion of widening of bilateral 18 SI joints, left greater than right and an old healed fracture of the left inferior 19 pubic ramus. (AR 153). The examining orthopedic physician diagnosed plaintiff 20 with, inter alia, [s]tatus post bilateral pelvic SI joint fixation. (AR 153). The 21 examining physician also opined that plaintiff had significant problems in her left 22 lower extremity due to a left foot pes valgus and obvious left footdrop and that 23 plaintiff could not stand or walk for more than half an hour without using a cane. 24 (AR 153). In addition, the ALJ s residual functional capacity assessment notes 25 that plaintiff was unable to walk on uneven ground. (AR 14). 26 /// 27 /// 28 /// 8 1 The above evidence plausibly suggests that, as required by Listing 1.03, 2 plaintiff had reconstructive surgery or surgical arthrodesis3 of a major weight 3 bearing joint (i.e. SI joint fixation). See 20 C.F.R. Part 404, Subpart P, Appendix 4 1, § 1.03. The evidence also plausibly suggests that plaintiff was unable to 5 ambulate effectively as defined in Listing 1.00(B)(2)(b) (i.e., unable to walk on 6 uneven ground). See 20 C.F.R. Part 404, Subpart P, Appendix 1, 7 § 1.00(B)(2)(b)(2) ( examples of ineffective ambulation include, but are not 8 limited to . . . the inability to walk a block at a reasonable pace on rough or uneven 9 surfaces. ). 10 Second, although the ALJ discussed at step three whether plaintiff s 11 physical impairments met or medically equaled listings 1.02(A) or 1.06, he did not 12 conduct a similar analysis with respect to Listing 1.03. (AR 13-14). The ALJ s 13 conclusory statement that plaintiff does not have an impairment or combination 14 of impairments that meets or medically equals one of the listed impairments . . . 15 (AR 13), without more, is insufficient to support the ALJ s implicit finding at step 16 three that plaintiff s impairments did not meet or medically equal Listing 1.03. 17 See Lewis, 236 F.3d at 512 ( An ALJ must evaluate the relevant evidence before 18 concluding that a claimant s impairments do not meet or equal a listed impairment. 19 A boilerplate finding is insufficient to support a conclusion that a claimant s 20 impairment does not do so. ) (citing Marcia, 900 F.2d at 176). 21 Finally, the Court concludes that it cannot find the ALJ s error to be 22 harmless. Defendant contends that any error was harmless because, in the ALJ s 23 evaluation of listings 1.02(A) or 1.06, the ALJ determined that plaintiff had failed 24 to establish an inability to ambulate effectively an essential showing under 25 26 27 28 3 Arthrodesis is a surgical procedure also known as joint fusion, which removes the damaged portion of the joint and is followed by implantation of screws, wires or plates to hold the bones together until they heal, letting the bones grow together or fuse. Reid v. Astrue, 2009 WL 368656, at *10 n.31 (S.D. Fla. Jan. 8, 2009) (citations omitted). 9 1 Listing 1.03. (Defendant s Motion at 2). To the extent the ALJ made such a 2 finding, however, it is not supported by substantial evidence. Although the ALJ 3 states in a conclusory manner that the examining physician [did] not indicate 4 impairment in [plaintiff s] ability to ambulate consistent with the requirements of 5 [Listing 1.06], the ALJ also acknowledged the examining physician s opinion 6 that plaintiff has significant problems in her left lower extremity because of the 7 footdrop. (AR 14, 153). Moreover, the ALJ s conclusory finding that plaintiff 8 failed to show that any impairment under Listing 1.02 result[ed] in an inability to 9 ambulate effectively appears to conflict with the ALJ s own residual functional 10 capacity assessment that plaintiff was unable to walk on uneven ground 11 which, as the ALJ expressly notes, is one of the Social Security Administration s 12 own examples of ineffective ambulation. (AR 14) (citing 20 C.F.R. Part 404, 13 Subpart P, Appendix 1, § 1.00(B)(2)(b)(2)). 14 Defendant also contends that the ALJ s error was harmless because none of 15 the state agency physicians upon which the ALJ relied opined that plaintiff met or 16 equaled a listing level of impairment and, even if plaintiff was unable to walk on 17 uneven ground, she did not suffer from any extreme limitations on her ability to 18 ambulate contemplated by Listing 1.03. (Defendant s Motion at 3-5). This 19 argument is unavailing as well. Although the ALJ could have determined based 20 on the opinions of the state agency physicians that plaintiff s impairments are not 21 of equal medical significance as those in Listing 1.03, or that plaintiff failed 22 adequately to demonstrate the inability to ambulate effectively contemplated by 23 the listings, the ALJ did not state as much in the decision, and the Court cannot so 24 conclude on this record. The ALJ did not discuss, or even cite Listing 1.03 in his 25 step three analysis. This Court is constrained to review the reasons cited by the 26 ALJ. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). 27 /// 28 /// 10 1 For the foregoing reasons, the ALJ s adverse step three finding constitutes 2 error which the Court cannot deem harmless. Accordingly, this case must be 3 remanded for further consideration and clarification on the ALJ s step three 4 finding. 5 V. CONCLUSION4 6 For the foregoing reasons, the decision of the Commissioner of Social 7 Security is reversed in part, and this matter is remanded for further administrative 8 action consistent with this Opinion.5 9 LET JUDGMENT BE ENTERED ACCORDINGLY. 10 DATED: October 27, 2011 11 _______________/s/__________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 The Court need not, and has not adjudicated plaintiff s other challenges to the ALJ s decision, except insofar as to determine that a reversal and remand for immediate payment of benefits would not be appropriate. On remand, however, the ALJ may wish to clarify his evaluation of plaintiff s credibility. 5 When a court reverses an administrative determination, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). 11

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