Valentin Castaneda v. Commissioner of Social Security Administration, No. 2:2012cv02212 - Document 20 (C.D. Cal. 2013)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that judgment be entered REVERSING the decision of the Agency and REMANDED for further proceedings. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this order and the Judgment on counsel for both parties. (See document for further details). (mr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 VALENTIN CASTANEDA, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of the ) Social Security Administration, ) ) Defendant. ) ) NO. CV 12-02212 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Valentin Castaneda ( Plaintiff ) brings this action seeking to 22 overturn the decision of the Commissioner of the Social Security 23 Administration (hereinafter the Commissioner or the Agency ) denying 24 his 25 supplemental security income benefits ( SSI ). 26 pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned 27 United States Magistrate Judge. 28 decision of the Agency is REVERSED and REMANDED for further proceedings. application for disability insurance benefits ( DIB ) and The parties consented, For the reasons stated below, the 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed an application for DIB and SSI on December 15, 5 2008. (Administrative Record ( AR ) 130-36). 6 onset date of September 10, 2005. 7 initially denied Plaintiff s claim on April 3, 2009. (AR 58-62). After 8 Plaintiff 9 Plaintiff s claim was denied again on June 29, 2009. requested and He alleged a disability (AR 130-33; 134-36). received reconsideration of The Agency his claim, (AR 68-73). 10 11 On August 4, 2009, Plaintiff filed a written request for hearing. 12 (AR 74-75). On June 1, 2010, with the help of an interpreter, Plaintiff 13 testified at a hearing held before Administrative Law Judge ( ALJ ) 14 Jeffrey A. Hatfield. 15 decision denying benefits. (AR 38-53). On June 14, 2010, the ALJ issued a (AR 23-32). 16 17 On June 14, 2010, Plaintiff requested that the Appeals Council 18 review the ALJ s decision. (AR 1). 19 Plaintiff s request on January 27, 2012. 20 The Appeals Council denied the instant action on March 15, 2012. (Id.). Plaintiff then filed 21 22 III. 23 FACTUAL BACKGROUND 24 25 Plaintiff, who was forty-two at the time of the hearing, is a 26 Spanish-speaking male with limited English ability and a tenth grade 27 education. (AR 42, 132, 152, 157). Plaintiff worked as a night stocker 28 2 1 at a grocery store from 1990 until his alleged disability onset date of 2 September 10, 2005. (AR 152). 3 4 During the hearing before the ALJ, Plaintiff stated that he was 5 injured when he was walking backwards at work, tripped over one of the 6 boxes that he was stocking, and fell on his right side. 7 Plaintiff also stated that he worked an additional three months after 8 the incident. 9 prevents him from returning to work. (AR 45). Plaintiff further stated 10 that the pain is only slightly reduced by medication and physical 11 therapy, that he uses a cane for stability, and that his back pain has 12 caused him to experience both pain in his left leg and mental problems, 13 including difficulty retaining concepts. (AR 44). (AR 44, 150). Plaintiff testified that lower back pain (AR 47). 14 15 A. Plaintiff s Medical History 16 17 A variety of medical professionals have examined Plaintiff between 18 his alleged disability onset date and when he filed for benefits. 19 Court The summarizes Plaintiff s medical history below. 20 21 On November 7, 2005, Plaintiff sought treatment from Israel 22 Rottermann, M.D., Plaintiff s primary treating physician. 23 Dr. Rottermann reported that Plaintiff presented as a thirty-seven year- 24 old male who weighed 270 pounds and was alert, well oriented, and 25 cooperative for the examination. 26 Rottermann, Plaintiff sits comfortably for the physical examination, 27 has no difficulty rising from the sitting position, and is able to stand (AR 358-59). 28 3 (AR 358). According to Dr. 1 without using the arms of the chair. (AR 359). Dr. Rottermann also 2 noted that Plaintiff is able to walk without difficulty, but ambulates 3 slowly, having normal ambulation, with no evidence of a limp and has 4 normal heel-to-toe gait. (AR 359). Regarding Plaintiff s lower back, 5 Dr. Rottermann reported that Plaintiff presented with tenderness to 6 palpation in the lumbar spine and muscle spasm and had limited lumbar 7 range of motion. (AR 359). 8 test, and x-rays of the lumbar spine show[ed] spurring and the presence 9 of a compression fracture at T11-12. Plaintiff also had a positive straight-leg (AR 360-61). Dr. Rottermann 10 further noted that based on an October 1, 2005 MRI, Plaintiff appeared 11 to have a herniated disc and a compression fracture with degenerative 12 disc disease. 13 [l]umbosacral strain, musculoskeletal, with radicular complaints; (2) 14 [p]ossible superimposed fracture of T11-12; and (3) [h]erniated disc, 15 L4-5 and L5-S1. (AR 361). Dr. Rotternman also reported that Plaintiff 16 was temporarily totally disabled. (AR 361). Dr. Rottermann diagnosed Plaintiff with (1) (AR 362). 17 18 After examinations on January 9, 2006, June 5, 2006, and July 19, 19 2006, Dr. Rottermann diagnosed Plaintiff with the same three conditions 20 and reported that Plaintiff remained temporarily disabled. 21 351, 354). 22 findings consistent with an L5-S1 radoculopathy. 23 various points during Plaintiff s treatment, Dr. Rottermann prescribed 24 pain 25 Hydrocodone, Naproxen Sodium, Orphenadrine, and Ranitidine. 26 343, 357, 362, 367, 370, 374, 376). (AR 346, Additionally, on March 19, 2007, Dr. Rottermann reported medication, including Darvocet, 27 28 4 Soma, (AR 339). Lodine, At Naprosyn, (AR 340, 1 B. Consultative Evaluations 2 1. 3 Orthopedic Examinations 4 5 On February 17, 2006, at the request of Dr. Rottermann, Dr. 6 Lawrence Miller, M.D., saw Plaintiff for an initial pain management 7 consultative examination. (AR 216). Dr. Miller reported that Plaintiff 8 complained of lower back pain with radiation down both legs. 9 Dr. Miller diagnosed Plaintiff with lumbar disc (AR 217). herniation with 10 bilateral lumbar radiculitis and signs of sciatic nerve root tension, 11 and Dr. Miller recommended treating Plaintiff with epidural steroids. 12 (AR 218-20). 13 diminished lumbar range of motion. 14 Miller treated Plaintiff with epidural steroids. 15 on May 1, 2006, Dr. Miller reported that, according to Plaintiff, the 16 steroid injection only helped for two days. 17 Dr. Miller again diagnosed Plaintiff with lumbosacral intervertebral 18 disc disease with radiculopathy and observed that Plaintiff s [l]umbar 19 flexion is limited to 40 degrees with pain and that his [s]traight leg 20 raise is positive bilaterally. Dr. Miller also reported positive straight leg raise and (AR 218). On April 24, 2006, Dr. (AR 228). (AR 224). However, That same day, (Id.). 21 22 On August 25, 2006, Plaintiff saw Dr. Seymour Alban, M.D., for an 23 agreed medical examination. (AR 244). Plaintiff was diagnosed with (1) 24 lower lumbar spine degenerative disease with stenosis at L4-5 and L5-S1, 25 (2) a slight compression fracture at T12, and (3) obesity. 26 Dr. Alban also noted that Plaintiff, who appeared to give full and 27 consistent effort during measurement, had twenty-five degrees of lumbar 28 5 (AR 258). 1 flexion, which is 42% of normal lumbar spinal flexion. 2 Later, on April 5, 2007, Dr. Alban noted that Plaintiff was a candidate 3 for decompression and spine fusion surgery. 4 Alban observed that Plaintiff was a poor candidate due to his weight and 5 tendency to magnify his weakness. 6 Plaintiff had stenosis of L4-5 and L5-S1 and that electrodiagnostic 7 studies corroborated nerve root irritation. (Id.). (AR 239). (AR 255). However, Dr. Dr. Alban also noted that (Id.). 8 9 On September 1, 2009, Dr. Kamran Hakimian, M.D., saw Plaintiff at 10 the request of Dr. Alban. 11 Plaintiff s [r]ange of motion in the lumbar spine was painful. (Id.). 12 Dr. 13 Plaintiff s lower extremities was abnormal and that the results of his 14 examination could indicate lumbar radiculopathy. Hakimian also (AR 469). reported that an Dr. Hakimian reported that electrodiagnostic study of (AR 472). 15 16 2. Psychiatric Evaluations 17 18 On June 17, 2008, Plaintiff saw Dr. Nelson Flores, Ph.D., for a 19 psychological 20 Plaintiff reported that the pain and physical limitations Plaintiff 21 experienced following the September 10, 2005 incident left him unable 22 to carry out his ususal daily activities and that Plaintiff began to 23 feel sad and anxious about his inability to cope with the pain. 24 477). 25 disorder, single episode, mild; (2) generalized anxiety disorder; (3) 26 psychological factors affecting mental condition, diabetes; (4) pain 27 disorder associated with both psychological factors and general medical Dr. consultation. Flores (AR diagnosed 474). Plaintiff 28 6 According with (1) to Dr. major Flores, (AR depressive 1 condition; (5) sleep disorder due to chronic pain, general medical 2 condition; (6) and male hypoactive sexual desire disorder to due chronic 3 pain. 4 disorders were directly related to the pain and physical limitations 5 Plaintiff experienced following the September 10, 2005 incident. (Id.). 6 Dr. Flores also reported that Plaintiff was temporarily totally disabled 7 and recommended cognitive behavioral therapy. (Id.). Dr. Flores reported that Plaintiff s psychological (AR 478). 8 9 On September 22, 2008, Plaintiff saw Dr. Barbara Greenberg, M.D., 10 the agreed psychological examiner. 11 Greenberg, Plaintiff presented as a well developed, well nourished 12 male who was alert and oriented to person, place and time and reason 13 for consultation. 14 (1) Depressive Disorder Not Otherwise Specified; (2) Anxiety Disorder 15 Not Otherwise Specified; (3) Pain Disorder Associated with Both 16 Psychological Factors and General Medical Condition (Low back injury); 17 (4) Sleep Disorder Due to Chronic Pain, Insomnia Type; and (5) Male 18 Hypoactive Sexual Desire Disorder Due to Chronic Pain. 19 However, Dr. Greenberg also noted that [Plaintiff s] response style 20 [during the examination] suggests a moderate tendency towards self- 21 deprecation and a consequent exaggeration of emotional problems. 22 317). (AR 315). (AR 284). According to Dr. Dr. Greenberg diagnosed Plaintiff with (AR 318). (AR 23 24 C. Vocational Expert s Testimony 25 26 A vocational expert testified at Plaintiff s 2010 hearing. (AR 48- 27 52). The expert testified that Plaintiff s only past relevant work has 28 7 1 been as a laborer, stores and that Plaintiff s past work was medium 2 work, SVP: 2 and as performed, the work was medium in exertion. 3 49). 4 Plaintiff s vocational profile and RFC would not be able to perform 5 Plaintiff s past relevant work. 6 past job was clearly at the medium level and this hypothetical person 7 is limited to a range of light work or less ). 8 testified that a person of Plaintiff s vocational profile and RFC is 9 best suited for a full range of sedentary work. (AR The expert also testified that a hypothetical individual of (AR 50) (noting that [Plaintiff s] The vocational expert But since we have no 10 transferable skills, we re talking about jobs that are entry-level 11 meaning no prior training or experience required. 12 explained that such a hypothetical person could perform sedentary work 13 as a nut sorter, an assembler who works from a bench, or a table worker. 14 (Id.). 15 jobs would not be precluded if the ALJ were to further restrict the 16 hypothetical by providing that this individual would be limited to 17 simple routine, repetitive tasks, would be limited to low stress tasks 18 that would permit only occasional changes in work setting and permit 19 frequent 20 superficial, non-confrontational, no arbitration and no negotiation 21 types of activities. (Id.). The expert The vocational expert also testified that performance of those contact with both public and coworkers but limit to (AR 50-51). 22 23 E. Plaintiff s Testimony 24 25 At the 2010 ALJ hearing, Plaintiff testified that he stopped 26 working after a 2005 incident where he was walking backwards and one 27 of the boxes [he] was stocking was at [his] feet and [he] fell on [his 28 8 1 right hand [sic] side. 2 not go to the emergency room and continued working for three months, was 3 placed on lighter duty, and eventually stopped working when his employer 4 told him that he could not continue working. 5 Plaintiff, back pain resulting from the 2005 incident prevents him from 6 working today. (AR 45). Plaintiff also stated that he has been treated 7 with medication, epidural injections, and physical therapy but that the 8 treatment has not provided relief. 9 testified that medication helps relieve the pain [v]ery little, but not (AR 46). (AR 44). Plaintiff also testified that he did (AR 44-45). (Id.). According to For example, Plaintiff 10 much. 11 in 2006. 12 pain in [his] back, [he] has mental problems. 13 according 14 concentrate. [He] can t communicate very well with people. [He] ha[s] 15 a hard time trying to, to retain concepts . . . . 16 stated 17 incident. 18 his emotional problems would improve if his physical problems were to 19 improve, Plaintiff answered, I doubt that it would. 20 know. (Id.). to that Plaintiff also testified that he began using a cane Finally, Plaintiff stated that [d]ue to . . . the Plaintiff, he began (AR 48). [he] has experiencing a lot these (AR 47). of Specifically, problems (Id.). problems after trying to Plaintiff the 2005 When the ALJ asked Plaintiff if he believes that Maybe, I don t (Id.). 21 22 IV. 23 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 24 25 To qualify for disability benefits, a claimant must demonstrate a 26 medically determinable physical or mental impairment that prevents him 27 28 9 1 from engaging in substantial gainful activity1 and that is expected to 2 result in death or to last for a continuous period of at least twelve 3 months. 4 42 U.S.C. § 423(d)(1)(A)). 5 incapable of performing the work he previously performed and incapable 6 of performing any other substantial gainful employment that exists in 7 the national economy. 8 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 9 10 11 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are: 12 13 (1) Is the claimant presently engaged in substantial gainful 14 activity? 15 If not, proceed to step two. 16 (2) Is the If so, the claimant is found not disabled. claimant s impairment 17 claimant is found not disabled. 18 severe? If not, the three. 19 (3) Does the claimant s If so, proceed to step impairment meet or equal the 20 requirements of any impairment listed at 20 C.F.R. Part 21 404, Subpart P, Appendix 1? 22 found disabled. 23 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing his past work? 24 so, the claimant is found not disabled. 25 If If not, proceed to step five. 26 1 Substantial gainful activity means work that involves doing 27 significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. § 416.910. 28 10 1 (5) Is the claimant able to do any other work? 2 claimant is found disabled. 3 If not, the If so, the claimant is found not disabled. 4 5 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 6 949, 953-54 (9th Cir. 2001); 20 C.F.R. § 416.920(b)-(g)(1). 7 8 9 The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante, 262 10 F.3d at 953-54. If, at step four, the claimant meets her burden of 11 establishing an inability to perform the past work, the Commissioner 12 must show that the claimant can perform some other work that exists in 13 significant numbers in the national economy, taking into account the 14 claimant s RFC, age, education and work experience. 15 at 1100; 20 C.F.R. § 416.920(g)(1). 16 testimony of a vocational expert or by reference to the Medical- 17 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 18 Appendix 2 (commonly known as the Grids ). 19 F.3d 1157, 1162 (9th Cir. 2001). 20 (strength-related) 21 inapplicable and the ALJ must take the testimony of a vocational expert. 22 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). and nonexertional \\ 25 \\ 26 \\ 27 The Commissioner may do so by the Osenbrock v. Apfel, 240 When a claimant has both exertional 23 24 Tackett, 180 F.3d \\ 28 11 limitations, the Grids are 1 V. 2 THE ALJ S DECISION 3 4 The ALJ employed the five-step sequential evaluation process and 5 concluded that Plaintiff was not disabled under the Social Security Act. 6 (AR 23-32). 7 in substantial gainful activity since his alleged disability onset date 8 of September 10, 2005. 9 Plaintiff At step one, the ALJ found that Plaintiff had not engaged had the (AR 25). severe At step two, the ALJ found that impairments of multilevel lumbar 10 herniation with radiculopathy, depression, and anxiety. 11 assessing Plaintiff s impairment, the ALJ g[ave] significant weight to 12 the assessment of Dr. Alban, the agreed upon medical examiner ( AME ), 13 that [Plaintiff] is precluded from heavy lifting and repetitive bending 14 and stooping because it is consistent with the evidence. 15 After stating that he was placing great weight on Dr. Alban s reports, 16 the ALJ note[d] that the AME is the neutral expert to the contested 17 Workers Compensation claim agreed upon to evaluate [Plaintiff s] 18 condition and to give an agreed upon residual functional capacity 19 assessment. 20 opinion 21 examiner, 22 communication, mild to moderate limitation in his ability to work with 23 others, carry out detailed instructions, and maintain attention and 24 concentration. 25 no weight to the temporary disability statements made periodically by 26 Dr. Rottermann and Dr. Flores through the course of their treatment of of (AR 29). Dr. that (Id.). disc In (AR 29). The ALJ also gave significant weight to the Barbara Plaintiff (AR 29). Greenberg, has mild the agreed impairments In contrast, the ALJ 27 28 12 upon psychological in interpersonal considered and g[ave] 1 [Plaintiff]. (AR 30). It is unclear whether the ALJ discounted other 2 opinions rendered by Dr. Rottermann and Dr. Flores. 3 4 At step three, the ALJ found that, through the last-insured date, 5 none of Plaintiff s impairments met or medically equaled a listed 6 impairment. (Id.). The ALJ then found that Plaintiff had the following 7 RFC: 8 9 [Plaintiff] has the residual functional capacity to perform 10 light work as denied in 20 CFR 404.1567(b) and 416.967(b) 11 with 12 occasionally and 10 pounds frequently; stand/walk 2-4 hours 13 in an 8 hour period in 30 minute intervals, with use of a 14 cane 15 alternating sit/stand every 30 minutes; occasionally climb 16 ramps/stairs; balance, 17 ladders/ropes and 18 dangerous 19 simple, routine, repetitive tasks; low stress environment 20 permitting 21 interaction 22 relationships. the for following balance; limitations: sit and occasional hours stoop, crawl; machinery with 6 no in and an kneel, 8 in 20 hour and pounds period, crouch; concentrated unprotected changes public lift/carry heights; never exposure to limited to work setting; coworkers in frequent structured 23 24 (AR 27). 25 26 27 Next, at step four, the ALJ found that Plaintiff could not return to his past work. (AR 31). The ALJ relied on the testimony of a 28 13 1 vocational expert in coming to this conclusion. (Id.). 2 step [Plaintiff s] 3 education, work experience, and residual functional capacity, there are 4 jobs that exist in significant numbers in the national economy that 5 [Plaintiff] can perform. (Id.). In coming to this conclusion, the ALJ 6 relied 7 Plaintiff s RFC would be able to perform sedentary work as a nut sorter, 8 assembler, or table worker. 9 Plaintiff was not disabled within the meaning of the Social Security 10 Act. five, on the the ALJ found vocational that [c]onsidering expert s (AR 32). testimony that a Finally, at person age, with Accordingly, the ALJ found that (AR 32). 11 12 VI. 13 STANDARD OF REVIEW 14 15 Under 42 U.S.C. § 405(g), a district court may review the 16 Commissioner s decision to deny benefits. The court may set aside the 17 Commissioner s decision when the ALJ s findings are based on legal error 18 or are not supported by substantial evidence in the record as a whole. 19 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 20 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 21 more than a scintilla, but less than a preponderance. 22 F.3d at 720. 23 accept as adequate to support a conclusion. 24 substantial evidence supports a finding, the court must consider the 25 record as a whole, weighing both evidence that supports and evidence 26 that detracts from the [Commissioner s] conclusion. Aukland, 257 F.3d 27 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). Substantial evidence is Reddick, 157 It is relevant evidence which a reasonable person might 28 14 Id. To determine whether 1 If the evidence can reasonably support either affirming or reversing 2 that conclusion, the court may not substitute its judgment for that of 3 the Commissioner. Reddick, 157 F.3d at 720-21. 4 5 VII. 6 DISCUSSION 7 8 9 Plaintiff concluded contends that that, Plaintiff s at step impairments three, do the not ALJ meet improperly a Listing. 10 Specifically, Plaintiff states that Listing 1.04A [sic] creates a 11 presumption 12 requirements of Listing 1.04A [sic] requiring evidence of nerve root 13 compression with neuro-anatomic distribution of pain, limitation in 14 range of motion, motor loss (atrophy with associated muscle weakness or 15 muscle weakness) with reflex loss or sensory loss (not both) and 16 positive 17 (Complaint Mem. at 2). 18 referenced by the ALJ establish that Plaintiff s impairments meet 19 Listing 1.04(A). 20 to properly consider whether Plaintiff s impairments equal a Listing. 21 (Id. at 5). of disability straight leg if raising [Plaintiff] if the meets lower back or is equals the involved. According to Plaintiff, certain medical reports (Id.). Plaintiff also contends that the ALJ failed 22 23 24 The ALJ's finding regarding the listings was conclusory and not fully explained: 25 26 The undersigned has considered all of the medical Listings 27 relevant to the claimant's serve physical impairment, but the 28 15 1 undersigned does not find that the claimant's impairment 2 meets or equals any of the medical Listing or combination of 3 medical Listings. 4 5 (AR 26). This finding appears to be in conflict with other findings 6 later in the ALJ's decision. 7 8 As Plaintiff notes, some of the medical reports referenced by the 9 ALJ could suggest that Plaintiff meets Listing 1.04(A), although due to 10 some confusing references in the opinion, the Court is uncertain as to 11 the grounds for the ALJ's conclusions. 12 ALJ's opinion, this Court could not discern whether the ALJ was 13 rendering conclusions about Plaintiff s impairments when he referenced 14 the medical reports or merely noting the existence of the reports. 15 the reasons discussed below, the Court finds that the ALJ s decision 16 should be REVERSED and this action REMANDED for further proceedings. Based upon its review of the For 17 18 19 A. The ALJ's Opinion Does Not Adequately Address Whether Plaintiff Meets A Listing 20 21 A claimant meets a listing if he is diagnosed with a listed 22 impairment and has the symptoms or 23 associate with the impairment. In contrast, a claimant equals a listing 24 if he does not have the listed symptoms but instead has symptoms that 25 are at least equal in severity and duration to the listed findings. 26 Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). 27 28 16 findings that the Listings 1 Here, Plaintiff asserts that he meets Listing 1.04(A). Listing 2 1.04 covers [d]isorders of the spine (e.g., herniated nucleus pulposus, 3 spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc 4 disease, facet arthritis, vertebral fracture), resulting in compromise 5 of a nerve root (including the cauda equina) or the spinal cord. 6 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04. 7 to meet Listing 1.04, a plaintiff must not only have a disorder of the 8 spine but also symptoms that the Listing associates with the impairment. 9 Under Listing 1.04(A), symptoms 20 As discussed above, in order satisfying Listing 1.04 include 10 [e]vidence of nerve root compression characterized by neuro-anatomic 11 distribution of pain, limitation of motion of the spine, motor loss 12 (atrophy with associated muscle weakness or muscle weakness) accompanied 13 by sensory or reflex loss and, if there is involvement of the lower 14 back, positive straight-leg raising test (sitting and supine). 15 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04(A). 20 16 17 Plaintiff contends that, [b]ased on the ALJ s own reporting as 18 supported by the Record [sic], the criteria of Listing 1.04A [sic] for 19 positive straight leg raising, decreased range of motion, and decreased 20 sensation should be found to be satisfied. 21 According to Plaintiff, the ALJ s conclusion that Plaintiff failed to 22 meet a listing conflicts with the ALJ s statement that [p]hysical 23 examinations have noted tenderness and muscle spasms in the lumbar area, 24 positive straight leg raising, decreased range of motion, and decreased 25 sensation. 26 may describe medical evidence without basing his opinion on that 27 evidence. (Complaint Mem. at 2). (Complaint Mem. at 2) (quoting AR 28). However, an ALJ For example, an ALJ may comment on but ultimately discount 28 17 1 medical reports that are inconsistent with the record as a whole. See 2 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). 3 opinion is unclear as to whether the ALJ was commenting but discounting 4 the medical evidence. 5 merely acknowledging the reports discussed above or concluding that the 6 reports demonstrated that Plaintiff suffered from the symptoms described 7 above. 8 is a spinal disorder within the meaning of Listing 1.04; and (2) 9 Plaintiff s symptoms otherwise meet or equal Listing 1.04(A). Here, the The Court cannot determine whether the ALJ was Specifically, it is unclear whether (1) Plaintiff s diagnosis 10 11 1. It Is Unclear Whether Plaintiff s Diagnosis Is A Spinal Disorder Within The Meaning Of Listing 1.04 12 13 14 The ALJ did not adequately explain whether he found that Plaintiff 15 does or does not have a spinal disorder within the meaning of Listing 16 1.04. 17 ALJ found that Plaintiff has the severe impairments of multilevel lumbar 18 disc herniation with radiculopathy, depression and anxiety. 19 The National Library of Medicine s controlled vocabulary thesaurus, MeSH 20 (Medical Subject Headings) defines radiculopathy as a [d]isease 21 involving a spinal nerve root . . . which may result from compression 22 related to INTERVERTEBRAL DISK DISPLACEMENT; SPINAL CORD INJURIES; 23 SPINAL DISEASES; and other conditions. Clinical manifestations include 24 radicular pain, weakness, and sensory loss referable to structures 25 innervated by the involved nerve root. 26 Medicine Medical Subject Headings Listing 1.04(A) covers disorders of the spine. 27 28 18 At step two, the (AR 25). (See National Library of database http://www.nlm.nih.gov). 1 Therefore, it appears that, at the step-two level, the ALJ found that 2 Plaintiff suffers from a disorder of the spine. 3 4 The Court finds that while the ALJ concluded that Plaintiff s 5 impairment does not meet a listing, the ALJ failed to clarify whether 6 Plaintiff does or does not have a spinal disorder within the meaning of 7 Listing 1.04. However, even if the ALJ did find that Plaintiff suffered 8 from a disorder of the spine, there are at least two reasons why 9 Plaintiff s impairments may not meet Listing 1.04. First, Plaintiff s 10 spinal disorder may fail to compromise a nerve root or the spinal cord. 11 Second, as discussed below, Plaintiff s spinal disorder may not cause 12 the remaining symptoms necessary to meet Listing 1.04. 13 14 15 2. It Is Unclear Whether Plaintiff s Symptoms Are Those Listed In 1.04(A) 16 17 Plaintiff asserts that the ALJ found that he suffers from symptoms 18 listed in 1.04(A). The Court cannot reach the same conclusion due to 19 ambiguities in the ALJ's opinion. 20 [p]hysical examinations have noted tenderness and muscle spasms in the 21 lumbar area, positive straight leg raising, decreased range of motion, 22 and decreased sensation, (AR 28), it is unclear whether Plaintiff s 23 symptoms are entirely consistent with Listing 1.04(A). Although the ALJ stated that 24 25 The first requirement of Listing 1.04(A) is nerve root compression 26 characterized by neuro-anatomic distribution of pain. 27 404, Subpt. P, App. 1 § 1.04(A). 20 C.F.R. Pt. As discussed above, radiculopathy is 28 19 1 a disease of a spinal nerve root that may result from compression. 2 Neuro-anatomic distribution of pain refers to the radicular type of 3 pain seen with a herniated intervertebral disc. 4 404, Subpt. P, App. 1 § 1.00(K)(3). 5 history, the ALJ concluded that Plaintiff suffers from radiculopathy. 6 (AR 28). The ALJ also cited to a medical report which found that 7 Plaintiff does 8 electrodiagnostic studies. 9 to support the first element of Listing 1.04(A). have nerve See 20 C.F.R. Pt. In describing Plaintiff s medical root irritation (See AR 28, 239). as corroborated by This evidence appears However, the ALJ did 10 not expressly address whether Plaintiff s impairment meets the first 11 element of Listing 1.04(A). 12 13 The second requirement of Listing 1.04(A) is limitation of motion 14 of the spine. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04(A). In 15 describing Plaintiff s medical history, the ALJ observed that physical 16 examinations of Plaintiff noted decreased range of motion. 17 This evidence appears to support the second element of the Listing. 18 However, it is unclear whether the ALJ was rendering conclusions about 19 Plaintiff s impairments when he referenced the medical reports or merely 20 noting the existence of such reports. (AR 28). 21 22 The third requirement of Listing 1.04(A) is motor loss accompanied 23 by sensory or reflex loss. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 24 1.04(A). 25 Plaintiff 26 examinations noted decreased sensation. In describing Plaintiff s medical history, the ALJ noted that favors his right side 27 28 20 when walking and (AR 28). that physical However, it is 1 again unclear whether the ALJ was rendering conclusions 2 about Plaintiff s impairments when he referenced the medical reports. 3 4 Finally, the fourth requirement of Listing 1.04(A) is positive 5 straight-leg raising. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04(A). 6 In describing Plaintiff s medical history, the ALJ observed that some 7 physical examinations indicated positive straight leg raising. (AR 28). 8 9 In sum, the ALJ s findings are difficult to reconcile with his 10 conclusion that Plaintiff does not meet or equal Listing 1.04(A). The 11 weight that the ALJ gave those examinations is unclear. 12 remand for consideration and further explanation of whether Plaintiff 13 meets a listing is proper. Accordingly, 14 15 16 B. The ALJ's Opinion Does Not Adequately Address Whether Plaintiff Equals A Listing 17 18 Plaintiff also contends that [i]f [Plaintiff] is not found to meet 19 [Listing 1.04(A)], remand for proper consideration of whether he equals 20 that Listing should be made. 21 that the ALJ failed to properly address whether Plaintiff s impairments 22 equal a Listing. (Complaint Mem. at 4). The Court agrees 23 24 The Ninth Circuit has explained that in determining whether a 25 claimant equals a listing under step three of the Secretary s disability 26 evaluation process, the ALJ must explain adequately his evaluation of 27 alternative tests and the combined effects of the impairments. Marcia, 28 900 F.2d at 176. It is not enough for an ALJ to simply state that 21 1 [t]he claimant has failed to provide evidence of medically determinable 2 impairments that meet or equal the Listings . . . . 3 ALJ must evaluate the relevant evidence before concluding that a 4 claimant s impairments do not meet or equal a listed impairment. 5 boilerplate finding is insufficient to support a conclusion that a 6 claimant s impairment does not do so. 7 512 (9th Cir. 2001). 8 effects of Plaintiff s physical impairments are not at least equal in 9 severity and duration to those of a listed impairment. Id. Instead, the A Lewis v. Apfel, 236 F.3d 503, Here, the ALJ failed to explain why the combined Therefore, the 10 Court must remand for the ALJ to expressly consider whether Plaintiff s 11 physical impairments equal a listing. 12 13 D. Remand Is Required 14 15 Remand for further proceedings is appropriate where additional 16 proceedings could remedy defects in the Commissioner s decision. See 17 Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000); Kail v. Heckler, 18 722 F.2d 1496, 1497 (9th Cir. 1984). Because the ALJ failed to properly 19 determine whether Plaintiff s impairments meet or equal a listing, 20 remand is proper. 21 the entire record in order to determine whether Plaintiff meets or 22 equals a Listing. 23 explain his evaluation of the relevant evidence and if he again finds 24 that Plaintiff does not meet or equal a Listing, the ALJ must adequately 25 explain such findings. Upon remand, the ALJ must conduct an evaluation of In any written decision, the ALJ must adequately 26 27 28 22 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, IT IS ORDERED that judgment be 5 entered REVERSING the decision of the Agency and REMANDED for further 6 proceedings. 7 copies of this order and the Judgment on counsel for both parties. IT IS FURTHER ORDERED that the Clerk of the Court serve 8 9 DATED: March 22, 2013. 10 /S/ ______________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS IT INTENDED TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR LEXIS. 16 17 18 19 20 21 22 23 24 25 26 27 28 23

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