Marina Adea v. Michael J. Astrue, No. 5:2010cv00041 - Document 16 (C.D. Cal. 2011)

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 consistent with the above. (SEE ORDER FOR FURTHER DETAILS) (lmh)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 MARINA ADEA, 13 ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. 14 15 MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. 17 No. EDCV 10-041 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 administrative 24 proceedings consistent with this opinion. 25 26 I. Plaintiff seeks As BACKGROUND Plaintiff Marina Adea was born on February 29, 1956, and was 27 fifty-three years old at the time of her latest administrative 28 hearing. [Administrative Record ( AR ) 16, 310.] 1 She has a high 1 school education and past relevant work experience as a certified 2 nursing aide. [AR 63.] 3 back and leg problems arising from an October 2004 workplace injury. 4 [AR 64-5, 141.] 5 6 Plaintiff alleges disability on the basis of II. PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on January 8, 2010, and filed on 7 January 26, 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 14 On July 22, 2010, defendant filed an answer and III. On September 22, 2010, the This matter has been taken under PRIOR ADMINISTRATIVE PROCEEDINGS Plaintiff applied for a period of disability and disability 15 insurance benefits ( DIB ) on October 26, 2005, alleging disability 16 since October 20, 2004. [AR 121.] 17 status requirements of the Social Security Act on December 31, 2010. 18 [AR 10.] 19 reconsideration, plaintiff requested an administrative hearing, which 20 was held on August 31, 2007, before Administrative Law Judge ( ALJ ) 21 Mason D. Harrell, Jr. [AR 59.] 22 testimony was taken from plaintiff and vocational expert ( VE ) Sandra 23 Fioretti. [AR 84.] 24 decision filed on October 26, 2007. [AR 18.] 25 denied review on January 25, 2008, the ALJ s decision became the 26 Commissioner s final decision. [AR 88-90.] Plaintiff last met the insured After the application was denied initially and upon The ALJ Plaintiff appeared with counsel, and denied benefits in an administrative When the Appeals Council 27 Plaintiff filed an action in this court, EDCV 08-262 (CW). 28 matter was remanded for further proceedings pursuant to Sentence Four 2 The 1 of 42 U.S.C. §405(g). 2 A remand hearing was held on July 29, 2009. [AR 310-27.] 3 Plaintiff appeared at the hearing with counsel and again testified. 4 [AR 312-327.] 5 expert ( ME ) Samuel Landau, M.D., and VE David Rinehart. [See id.] 6 On October 8, 2009, the ALJ issued a second unfavorable decision. 7 5-15.] The ALJ also took testimony from impartial medical This action followed. 8 9 [AR IV. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 10 Commissioner s decision to deny benefits. 11 ALJ s) findings and decision should be upheld if they are free of 12 legal error and supported by substantial evidence. 13 court determines that a finding is based on legal error or is not 14 supported by substantial evidence in the record, the court may reject 15 the finding and set aside the decision to deny benefits. 16 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 17 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 18 F.3d 1157, 1162 (9th Cir. 19 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 20 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 21 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 22 The Commissioner s (or However, if the See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a 23 preponderance. Reddick, 157 F.3d at 720. 24 which a reasonable person might accept as adequate to support a 25 conclusion. 26 a finding, a court must review the administrative record as a whole, 27 weighing both the evidence that supports and the evidence that 28 detracts from the Commissioner s conclusion. Id. It is relevant evidence To determine whether substantial evidence supports 3 Id. If the evidence 1 can reasonably support either affirming or reversing, the reviewing 2 court may not substitute its judgment for that of the Commissioner. 3 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. 4 V. DISCUSSION 5 A. THE FIVE-STEP EVALUATION 6 To be eligible for disability benefits a claimant must 7 demonstrate a medically determinable impairment which prevents the 8 claimant from engaging in substantial gainful activity and which is 9 expected to result in death or to last for a continuous period of at Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 10 least twelve months. 11 721; 42 U.S.C. § 423(d)(1)(A). 12 Disability claims are evaluated using a five-step test: 13 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. 14 15 16 17 18 19 20 21 22 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 23 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 24 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 25 C.F.R. § 404.1520, § 416.920. If a claimant is found disabled or 26 not disabled at any step, there is no need to complete further 27 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 28 4 Claimants have the burden of proof at steps one through four, 1 2 subject to the presumption that Social Security hearings are non- 3 adversarial, and to the Commissioner s affirmative duty to assist 4 claimants in fully developing the record even if they are represented 5 by counsel. 6 1288. 7 made, and the burden shifts to the Commissioner (at step five) to 8 prove that, considering residual functional capacity ( RFC )1, age, 9 education, and work experience, a claimant can perform other work Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at If this burden is met, a prima facie case of disability is 10 which is available in significant numbers. Tackett, 180 F.3d at 1098, 11 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. 12 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 13 Here, the ALJ found plaintiff had not engaged in substantial 14 gainful activity from her alleged disability onset date to the date 15 last insured (step one); that plaintiff had a severe impairment, 16 namely degenerative disc disease of the lumbar spine, treated 17 surgically, with residual pain (step two); and that plaintiff did not 18 have an impairment or combination of impairments that met or equaled a 19 listing (step three). [AR 10-11.] 20 the RFC (step four) to: The ALJ found that plaintiff had 21 [P]erform less than a full range of light exertion. [She] can 22 lift and carry 20 pounds occasionally and 10 pounds frequently. 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 She can stand and walk for 2 hours out of an 8-hour work day, and 2 she can sit for 8 hours out of an 8-hour work day with normal 3 breaks such as every 2 hours and a provision to stand and stretch 4 as needed for 1-3 minutes every hour. [She] can occasionally 5 stoop and bend. 6 ladders, work at heights or balance. She can climb stairs, but she cannot climb 7 [AR 11.] 8 relevant work. [AR 14.] 9 He also found that this RFC would preclude plaintiff s past The VE testified that a person of plaintiff s RFC, age, education 10 and work experience could perform the requirements of significant 11 numbers of jobs, including such representative occupations as 12 information clerk and sewing machine operator (step five). 13 Accordingly, the ALJ found plaintiff not disabled as defined by the 14 Act. [AR 15.] 15 C. 16 The Joint Stipulation identifies three disputed issues, whether 17 18 the ALJ properly: 1. 19 20 2. 25 26 Analyzed whether Plaintiff s impairment met or equaled Listing 1.04; and 3. 23 24 Considered the treating physician s opinion regarding the presence of nerve root compression; 21 22 ISSUES IN DISPUTE Considered Plaintiff s subjective symptoms and made proper credibility findings. [JS 33.] D. ISSUES ONE AND TWO: TREATING PHYSICIAN S OPINION REGARDING NERVE ROOT COMPRESSION 27 The first two issues center on step three of the sequential 28 evaluation, and whether the ALJ adequately weighed the evidence that 6 1 2 suggests plaintiff may have had a listing-level impairment during a 3 closed period from October 2004 to approximately December 2005. 4 Specifically, plaintiff contends the ALJ materially erred in failing 5 to address a probative statement made by her treating orthopedic 6 surgeon, G. Sunny Uppal, M.D., that suggests she met Listing 1.04 and 7 in failing to adequately discuss the evidence of plaintiff s combined 8 symptoms with respect to that listing.2 9 Dr. Uppal treated plaintiff in relation to an October 2004 back 10 injury she suffered on-the-job as a certified nurses aide, and in 11 connection with her associated claim for state workers compensation. 12 He performed surgery on plaintiff in September 2005, and by February 13 2, 2006, opined that plaintiff s only work restrictions were that she 14 was precluded from doing heavy lifting and should do no repetitive 15 bending and stooping. 16 the September 5, 2005, laminectomy and discectomy procedures performed 17 on plaintiff s lumbar spine, Dr. Uppal noted that surgery revealed 18 [t]he nerve root on the right side was matted down severely. [AR 19 262-63.] 20 [AR 221, 262-63.] In his report discussing Plaintiff argues that the ALJ erred by failing to address this 21 notation, which arguably provides support for a finding of severe 22 spine impairment during the closed period under Listing 1.04. 23 1.04A, for example, requires evidence of a herniated nucleus pulposus, 24 spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative Listing 25 26 27 28 2 To the extent plaintiff intends to suggest the suggests a listing-level impairment beyond this closed argument is unpersuasive, particularly in light of Dr. notation that the September 5, 2005, surgery freed the 231.] 7 evidence period, this Uppal s nerve root. [AR 1 2 disc disease, facet arthritis, or vertebral fracture, which results in 3 compromise of a nerve root (including the cauda equina) or the spinal 4 cord. 5 characterized by neuro-anatomic distribution of pain, limitation of 6 motion of the spine, motor loss (atrophy with associated muscle 7 weakness or muscle weakness) accompanied by sensory or reflex loss 8 and, if there is involvement of the lower back, positive straight-leg 9 raising test (sitting and supine). There must also be evidence of nerve root compression See 20 C.F.R., Pt. 404, Appx. A., 10 Subpart P, Sec. 1.04. 11 disorder of the spine with lumbar spinal stenosis resulting in 12 pseudoclaudication, established by findings on appropriate medically 13 acceptable imaging, manifested by chronic nonradicular pain and 14 weakness, and resulting in inability to ambulate effectively, as 15 defined in 1.00B2B. 16 Similarly, listing 1.04C is met when there is a Id. While the ALJ is not required to discuss every piece of evidence 17 in the record, he must explain why any "significant probative evidence 18 has been rejected." 19 Cir. 1984) (emphasis in original). 20 medical source that a plaintiff s impairment met one or more of the 21 hurdles of a listing-level impairment during a closed period is 22 significant and probative evidence. 23 physician, whose opinions normally should be adopted by the 24 Commissioner, see Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007), 25 and the decision does not indicate that the ALJ found legally 26 sufficient reasons to reject Dr. Uppal s opinions [see AR 23-24]. 27 Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th In this case, the conclusion of a Dr. Uppal is a treating Moreover, plaintiff has cited to other significant and probative 28 8 1 2 evidence in support of her contention that she meets or medically 3 equals the requirements of Listing 1.04, and the Commissioner does not 4 persuasively argue that the ALJ made legally sufficient findings with 5 respect to that evidence.3 [See JS 7-11.] 6 to make full and detailed findings of the facts essential to the 7 ALJ s ultimate finding that plaintiff s impairments did not meet or 8 equal a listing for any twelve month period, as he is required to do 9 so that this court might determine whether substantial evidence The written decision fails 10 supports that finding. 11 (9th Cir. 1981). 12 relevant to the closed time period, but makes no effort to weigh or 13 balance it. [AR 13-14.] 14 with confidence that plaintiff did not suffer from a listing-level 15 impairment during the closed period. 16 See Lewin v. Schweiker, 654 F.2d 631, 634-35 It simply marshals some of the medical evidence Thus, the court remains unable to conclude Notwithstanding the Commissioner s arguments here, that the ME s 17 testimony provides substantial evidence for the finding of not 18 disabled, the ME was not asked specifically to address whether the 19 medical evidence suggests plaintiff s symptoms met or equaled Listing 20 1.04 during a closed period and he did not do so unilaterally. 21 AR 316-19.] Nor was the VE asked to address whether a hypothetical 22 individual with limitations plaintiff was under between October 2004 23 and December 2005 would be able to work. [AR 323.] 24 neither the ME or VE testimony provides substantial evidence in 25 support of a finding of non-disability during the period between [See Accordingly, 26 27 28 3 Indeed, the Commissioner agrees that plaintiff required approximately five months of convalescence following her back surgery. [JS 11; see also AR 12.] 9 1 2 October 2004 to December 2005. 3 Reversal is thus required on issues one and two. 4 E. 5 Plaintiff next contends the ALJ erred in assessing her ISSUE THREE: CREDIBILITY FINDING 6 credibility. 7 working as of 2006, this contention is unpersuasive. 8 9 To the extent plaintiff contends she was precluded from If the Commissioner has set forth specific and cogent reasons for disbelieving plaintiff s testimony, Lewin v. Schweiker, 654 F.2d 631, 10 635 (9th Cir. 1981), his assessment should typically be given great 11 weight, Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 12 Here, the ALJ set forth multiple, legally sufficient reasons for 13 declining to credit plaintiff s contention that she remains impaired 14 beyond the extent accounted for in the RFC finding, including that she 15 had not sought treatment for allegedly disabling pain in more than a 16 year, that her treating physicians all ultimately opined she is able 17 to perform some degree of work, and that both the objective medical 18 findings and her self-reporting to her physicians did not entirely 19 comport with her complaints, [see AR 12]. 20 F.3d 676, 681 (9th Cir. 2005)(lack of consistent treatment, lack of 21 medical support for the degree of disability alleged are proper 22 factors in credibility evaluation); Moncada v. Chater, 60 F.3d 521, 23 524 (9th Cir. 1995) (an ALJ may consider physician opinions that 24 plaintiff could work, which contradict plaintiff s assertion to the 25 contrary, in determining credibility). 26 27 See Burch v. Barnhart, 400 The credibility assessment is affirmed. //// 28 10 1 2 F. 3 The decision whether to remand for further proceedings is within REMAND FOR FURTHER PROCEEDINGS 4 the discretion of the district court. 5 1175-1178 (9th Cir. 2000). 6 further proceedings, or where the record has been fully developed, it 7 is appropriate to exercise this discretion to direct an immediate 8 award of benefits. 9 remand for further proceedings turns upon their likely utility). 10 However, where there are outstanding issues that must be resolved 11 before a determination can be made, and it is not clear from the 12 record that the ALJ would be required to find the claimant disabled if 13 all the evidence were properly evaluated, remand is appropriate. 14 Harman v. Apfel, 211 F.3d 1172, Where no useful purpose would be served by Harman, 211 F.3d at 1179 (decision whether to Id. Here, the ALJ did not specifically address significant and 15 probative evidence, or adequately articulate the weight he gave to the 16 various medical sources who treated plaintiff during the period from 17 October 2004 to December 2005. 18 before a finding of disability can be made. 19 administrative proceedings is appropriate. 20 Accordingly, outstanding issues remain VI. Remand for further ORDERS 21 Accordingly, IT IS ORDERED that: 22 1. The decision of the Commissioner is REVERSED. 23 2. This action is REMANDED to defendant, pursuant to Sentence 24 Four of 42 U.S.C. § 405(g), for further proceedings consistent with 25 the above. 26 //// 27 //// 28 11 1 2 3 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 4 5 6 7 DATED: June 8, 2011 ______________________________ CARLA M. WOEHRLE United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.