Angel Hernandez v. Michael J Astrue, No. 5:2010cv01215 - Document 15 (C.D. Cal. 2011)
Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Paul L. Abrams Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further proceedings consistent with this Memorandum Opinion. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. (sl)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 13 14 15 16 17 ANGEL HERNANDEZ, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) COMMISSIONER OF SOCIAL ) SECURITY ADMINISTRATION, ) ) Defendant. ) ________________________________) No. ED CV 10-1215-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on September 3, 2010, seeking review of the Commissioner s denial 22 of his applications for Disability Insurance Benefits and Supplemental Security Income payments. 23 The parties filed Consents to proceed before the undersigned Magistrate Judge on October 1, 24 2010. The parties filed a Joint Stipulation on May 2, 2011, that addresses their positions 25 concerning the disputed issues in the case. The Court has taken the Joint Stipulation under 26 submission without oral argument. 27 / 28 / 1 II. 2 BACKGROUND 3 Plaintiff was born on May 23, 1977. [Administrative Record ( AR ) at 33, 105.] He has an 4 eleventh grade education and has past relevant work experience as a maintenance worker. [AR 5 at 15, 109-10, 113, 115-17.] 6 On May 6, 2008, plaintiff filed his applications for Disability Insurance Benefits and 7 Supplemental Security Income payments, alleging that he has been unable to work since January 8 14, 2008, due to mental illness, disc herniations, and arthritis. [AR at 9, 33, 35, 87-95, 98-102, 9 105-14.] After plaintiff s applications were denied initially and on reconsideration, he requested 10 a hearing before an Administrative Law Judge ( ALJ ). [AR at 37-42, 45-49, 51.] A hearing was 11 held on November 16, 2009, at which time plaintiff appeared with counsel and testified on his own 12 behalf. Plaintiff s wife also testified. [AR at 16-32.] On December 22, 2009, the ALJ determined 13 that plaintiff was not disabled. [AR at 6-15.] When the Appeals Council denied plaintiff s request 14 for review of the hearing decision on July 17, 2010, the ALJ s decision became the final decision 15 of the Commissioner. [AR at 1-3.] This action followed. 16 17 III. 18 STANDARD OF REVIEW 19 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner s 20 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 21 evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 22 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 23 In this context, the term substantial evidence means more than a mere scintilla but less 24 than a preponderance -- it is such relevant evidence that a reasonable mind might accept as 25 adequate to support the conclusion. Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 26 1257. When determining whether substantial evidence exists to support the Commissioner s 27 decision, the Court examines the administrative record as a whole, considering adverse as well 28 as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th 2 1 Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court 2 must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 3 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258. 4 5 IV. 6 THE EVALUATION OF DISABILITY 7 Persons are disabled for purposes of receiving Social Security benefits if they are unable 8 to engage in any substantial gainful activity owing to a physical or mental impairment that is 9 expected to result in death or which has lasted or is expected to last for a continuous period of at 10 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257. 11 12 A. THE FIVE-STEP EVALUATION PROCESS 13 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 14 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 15 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must 16 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 17 claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in 18 substantial gainful activity, the second step requires the Commissioner to determine whether the 19 claimant has a severe impairment or combination of impairments significantly limiting his ability 20 to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. 21 If the claimant has a severe impairment or combination of impairments, the third step requires 22 the Commissioner to determine whether the impairment or combination of impairments meets or 23 equals an impairment in the Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 404, 24 Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. 25 If the claimant s impairment or combination of impairments does not meet or equal an impairment 26 in the Listing, the fourth step requires the Commissioner to determine whether the claimant has 27 sufficient residual functional capacity to perform his past work; if so, the claimant is not disabled 28 and the claim is denied. Id. The claimant has the burden of proving that he is unable to perform 3 1 past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie 2 case of disability is established. The Commissioner then bears the burden of establishing that the 3 claimant is not disabled, because he can perform other substantial gainful work available in the 4 national economy. The determination of this issue comprises the fifth and final step in the 5 sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d 6 at 1257. 7 8 B. THE ALJ S APPLICATION OF THE FIVE-STEP PROCESS 9 In this case, at step one, the ALJ concluded that plaintiff has not engaged in any substantial 10 gainful activity since January 14, 2008, the alleged onset date of disability.1 [AR at 11.] At step 11 two, the ALJ concluded that plaintiff has severe impairments of obesity and disc herniations at L4- 12 L5 and L5-S1. [Id.] At step three, the ALJ concluded that plaintiff s impairments do not meet or 13 equal any of the impairments in the Listing. [AR at 12.] The ALJ further found that plaintiff 14 retained the residual functional capacity ( RFC )2 to perform the full range of medium work[3]. 15 [AR at 13.] At step four, the ALJ concluded that plaintiff is capable of performing his past relevant 16 work as a maintenance worker. Accordingly, the ALJ found plaintiff not disabled. [AR at 15.] 17 18 V. 19 THE ALJ S DECISION 20 Plaintiff contends that the ALJ failed to properly: (1) consider the severity of plaintiff s 21 mental impairment at step two of the sequential evaluation; (2) consider the state agency 22 physician s opinion; (3) determine plaintiff s RFC; (4) consider plaintiff s credibility; (5) evaluate 23 1 24 25 26 27 28 The ALJ also determined that plaintiff is insured for Disability Insurance Benefits purposes through September 30, 2008. [AR at 11.] 2 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 3 Medium work is defined as work involving lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. 20 C.F.R. §§ 404.1567(c), 416.967(c). 4 1 plaintiff s combined impairments and symptoms in determining whether his impairments equal the 2 Listing; and (6) consider the mental demands of plaintiff s past work. [Joint Stipulation ( JS ) at 3 2-3.] As set forth below, the Court agrees with plaintiff, in part, and remands the matter for further 4 proceedings. 5 6 A. STEP TWO DETERMINATION 7 Plaintiff contends that the ALJ erred in concluding at step two of the sequential evaluation 8 that plaintiff s mental impairment is not severe. Specifically, plaintiff contends that the ALJ did not 9 properly consider various medical records pertaining to plaintiff s mental impairment, including the 10 treatment notes of treating physician Dr. Samuel E. Dey; the May 30, 2008, Mental Residual 11 Functional Capacity Assessment ( MRFCA ) of nonexamining physician Dr. Kelly J. Loomis; and 12 the August 27, 2008, psychotherapy evaluation of Erica Herrera, M.F.T. Intern. [See JS at 3-5.] 13 A severe impairment, or combination of impairments, is defined as one that significantly 14 limits physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520, 416.920. In 15 assessing the severity of plaintiff s alleged mental impairment, the ALJ was required to reflect in 16 the decision his consideration of plaintiff s mental functional limitations under four broad criteria 17 (also known as the paragraph B criteria ): 1) activities of daily living; 2) social functioning; 3) 18 concentration, persistence, or pace; and 4) episodes of decompensation. See 20 C.F.R., Pt. 404, 19 Subpt. P, App. 1, §12.00C; see also 20 C.F.R. §§ 404.1520a, 416.920a; (as amended by 76 FR 20 24802-01 (May 3, 2011)). If a claimant is rated as having greater than mild limitations in any of 21 the first three criteria or more than no episodes of decompensation in criteria four, or if the 22 evidence otherwise indicates that there is more than a minimal limitation in [the claimant s] ability 23 24 25 26 27 28 5 1 2 to do basic work activities, then the claimant s mental impairment should be found to be severe. 4 20 C.F.R. §§ 404.1520a, 416.920a; see also 20 C.F.R. §§ 404.1521, 416.921. 3 From March 2008 to at least August 2008, plaintiff received psychiatric medication 4 management treatment from Dr. Dey. [See AR at 175-76, 201, 204.] Although Dr. Dey s 5 treatment notes indicate that plaintiff s symptoms of dysphoria, apathy, social isolation, social 6 withdrawal, and anxiety improved somewhat while he was taking Celexa, Dr. Dey discontinued 7 plaintiff s prescription for Celexa and instead prescribed Paxil because Celexa caused plaintiff to 8 have diarrhea. 9 symptoms, and he stopped taking the medication at the direction of his doctor because it caused 10 him stomach upset. [AR at 204.] Plaintiff reported feeling worse after he stopped taking Paxil, and 11 Dr. Dey discussed other possible approaches to rectifying plaintiff s psychiatric problem, 12 including prescribing Zoloft. [Id.] [Id.] Plaintiff found Paxil to be not very effective at relieving [his] target 13 In a Psychiatric Review Technique form dated May 30, 2008, Dr. Loomis noted that plaintiff 14 has the medically determinable impairment of Mood/Bipolar Disorder and analyzed plaintiff s 15 mental functional limitations under the paragraph B criteria discussed above. Specifically, Dr. 16 17 18 19 20 21 22 23 24 25 26 27 28 4 The Supreme Court has recognized that including a severity inquiry at the second stage of the evaluation process permits the [Commissioner] to identify efficiently those claimants whose impairments are so slight that they are unlikely to be found disabled even if the individual s age, education, and experience are considered. Corrao v. Shalala, 20 F.3d 943, 949 (9th Cir. 1994) (citing Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987)). However, an overly stringent application of the severity requirement would violate the statute by denying benefits to claimants who meet the statutory definition of disabled. Corrao, 20 F.3d at 949 (citing Bowen v. Yuckert, 482 U.S. at 156-58 (O Connor, J., concurring)). Despite use of the term severe, most circuits, including the Ninth Circuit, have held that the step-two inquiry is a de minimis screening device to dispose of groundless claims. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. at 153-54); see Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997) ( A claimant s showing at level two that he or she has a severe impairment has been described as de minimis ) (citation omitted); see also Hudson v. Bowen, 870 F.2d 1392, 1396 (8th Cir. 1989) (evaluation can stop at step two only when there is no more than minimal effect on ability to work). An impairment or combination of impairments should be found to be not severe only when the evidence establishes merely a slight abnormality that has no more than a minimal effect on an individual s physical or mental ability to do basic work activities. See Corrao, 20 F.3d at 949 (citing Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988)); see also SSR 85-28 ( an impairment is not severe if it has no more than a minimal effect on an individual s physical or mental ability(ies) to do basic work activities ). 6 1 Loomis concluded that plaintiff has a mild functional limitation with regard to restrictions of daily 2 living; has moderate functional limitations with regard to maintaining social functioning and 3 concentration, persistence, or pace; and has had no repeated episodes of decompensation. [AR 4 at 180, 183, 188.] Dr. Loomis further opined in a May 30, 2008, MRFCA that plaintiff had the 5 mental RFC to understand, remember, and carry out one- and two-step instructions; maintain 6 sufficient concentration, persistence and pace to complete simple tasks during a normal workday 7 and workweek; and interact adequately with coworkers and supervisors, but that plaintiff may 8 have difficulty dealing with the demands of general public contact. [AR at 179.] Dr. Loomis 9 indicated that his May 30, 2008, opinions were based on the mental status examinations and 10 reported information in plaintiff s treatment record. [See AR at 192.] Another nonexamining 11 psychiatrist, Dr. B.A. Smith, also concluded that plaintiff is limited to performing unskilled non 12 detailed tasks in a non public setting (i.e., nonpublic, simple, repetitive, tasks). [See AR at 207.] 13 On August 27, 2008, plaintiff underwent a Psychotherapy Initial Evaluation conducted by 14 Ms. Herrera, during which time plaintiff presented, among other symptoms, anger, depression, 15 problems sleeping, irritability, mood swings, problems concentrating, distractability, low motivation, 16 social withdrawal, feelings of worthlessness, racing thoughts, avoidance of people, anxiety, 17 fatigue, and low frustration tolerance. 18 demonstrated appropriate speech with regular rate and rhythm; spontaneous stream of thought; 19 intact associations and memory; no abnormal or psychotic thoughts; fair judgment, insight, 20 attention span, and concentration; orientation to person, place, and time; and an ability to establish 21 eye contact. Ms. Herrera further noted that plaintiff had an anxious mood and affect, dominated 22 the conversation and talked excessively, and had scattered thoughts. Ms. Herrera diagnosed 23 plaintiff as having Bipolar Disorder, Most Recent Episode Mixed, Moderate and assigned plaintiff 24 a Global Assessment of Functioning ( GAF ) score of 50.5 [AR at 203.] [See AR at 202.] Ms. Herrera noted that plaintiff 25 26 27 28 5 A GAF score is the clinician s judgment of the individual s overall level of functioning. It is rated with respect only to psychological, social, and occupational functioning, without regard to impairments in functioning due to physical or environmental limitations. Diagnostic and Statistical Manual of Mental Disorders ( DSM-IV ), at 32 (4th Ed. 2000). A GAF score in the range of 41-50 (continued...) 7 1 In the decision, the ALJ analyzed plaintiff s mental impairment under the four paragraph B 2 criteria discussed above and concluded that plaintiff had no episodes of decompensation and only 3 mild limitations in the functional areas of activities of daily living; social functioning; and 4 concentration, persistence, or pace. Accordingly, the ALJ determined at step two of the sequential 5 evaluation that plaintiff s mental impairment is not severe. [AR at 11-12.] In reaching this 6 determination, the ALJ noted that plaintiff had some brief mental health treatment of a minimal 7 nature in 2008, but concluded that the 2008 treatment records reflected that plaintiff s mental 8 health had improved even with the minimal treatment and that the August 27, 2008, Evaluation 9 does not reflect severe mental limitations. [AR at 14.] The ALJ further concluded that the GAF 10 score of 50 assessed by Ms. Herrera was grossly excessive in its asserted limits and is 11 unsupported by [plaintiff s] complaints or the mental status examination. [Id.] The ALJ also 12 stated in the decision that he disagree[d] with the state agency physician s opinion that plaintiff 13 should be limited to non-public, simple, repetitive tasks, as the ALJ concluded that the mental 14 health records reveal [plaintiff] only has mild mental limitations. 6 [Id.] The ALJ did not specifically 15 address Dr. Loomis opinion that plaintiff has moderate limitations under two of the four 16 paragraph B criteria. 17 The ALJ s step-two determination that plaintiff s mental impairment is not severe is not 18 supported by substantial evidence. First, the ALJ s conclusion that plaintiff s treatment notes 19 reveal that his mental health improved with treatment in 2008 reflects a misreading or an improper 20 selective consideration of the evidence. See Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 21 2001) (error for ALJ to selectively focus[] on ... [evidence] which tend[s] to suggest non- 22 disability ); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (error for ALJ to ignore or 23 misstate competent evidence in order to justify his conclusion). Rather, Dr. Rey s treatment notes 24 25 26 5 (...continued) indicates serious symptoms or any serious impairment in social, occupational, or school functioning (e.g., unable to keep a job). Id. at 34. 27 6 28 It is not clear from the ALJ s decision if he intended to reject Dr. Loomis , Dr. Smith s, or both of the doctors opinions. 8 1 reflect that plaintiff s psychiatric symptoms fluctuated during the time that Dr. Rey treated him, and, 2 as was last noted by Dr. Rey in August 2008, had apparently worsened. [See AR at 175-76, 201, 3 204.] Dr. Rey s notes also show that plaintiff was directed to discontinue two different psychiatric 4 medications due to negative side effects. [Id.] Thus, Dr. Rey s treatment notes do not constitute 5 substantial evidence supporting the ALJ s step-two conclusion that plaintiff s mental impairment 6 is not severe. 7 Next, the ALJ improperly rejected the state agency physicians opinions on the basis that 8 the ALJ disagree[d] that plaintiff s mental limitations were more than minimal because an ALJ 9 may not substitute his own layman s opinion for the findings and opinion of a physician. Gonzalez 10 Perez v. Sec y of Health & Human Servs., 812 F.2d 747, 749 (1st Cir. 1987); see also Morales v. 11 Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (an ALJ may not reject a physician s opinion based on 12 speculation or lay opinion ). The ALJ s assertion that plaintiff has no more than mild mental 13 limitations, by itself, is an insufficient reason for rejecting Dr. Loomis contrary expert opinion or 14 Dr. Loomis and Dr. Smith s expert opinions that plaintiff is limited to simple, repetitive, nonpublic 15 tasks. See Social Security Ruling ( SSR )7 96-6p ( Findings ... made by State agency medical and 16 psychological consultants ... regarding the nature and severity of an individual s impairment(s) 17 must be treated as expert opinion evidence of nonexamining sources ). Rather, to properly reject 18 Dr. Loomis and Dr. Smiths expert opinions, the ALJ was required to review the various factors 19 set forth in the regulations for considering opinion evidence, including, among other things, the 20 supportability and consistency of their opinions with the overall record. See 20 C.F.R. §§ 21 404.1527, 416.927 (as amended by 76 FR 24802-01 (May 3, 2011)); see also SSR 96-6p. As the 22 Court finds that the ALJ misconstrued the medical treatment evidence concerning plaintiff s mental 23 impairment, the ALJ s interpretation of that evidence (i.e., that plaintiff s mental health records 24 25 26 27 28 7 SSRs do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 9 1 reveal only mild mental limitations) does not support his rejection of the nonexamining physicians 2 opinions. 3 Finally, to the extent the ALJ found plaintiff s alleged mental impairment to be not severe 4 because the ALJ concluded that plaintiff sought only minimal or infrequent treatment, this reason 5 is also suspect. The Ninth Circuit has particularly criticized the use of a lack of treatment to reject 6 mental complaints both because mental illness is notoriously underreported and because it is a 7 questionable practice to chastise one with a mental impairment for the exercise of poor judgment 8 in seeking rehabilitation. Regennitter v. Comm r of Soc. Sec. Admin., 166 F.3d 1294, 1299-1300 9 (9th Cir. 1999) (internal quotations omitted). Accordingly, remand is warranted for the ALJ to 10 reconsider the severity of plaintiff s mental impairment.8 11 12 B. RFC DETERMINATION 13 Plaintiff contends that the ALJ erred in reaching the RFC determination because the ALJ 14 failed to incorporate Dr. Loomis opinion that plaintiff is limited to nonpublic, simple, repetitive tasks 15 and did not provide adequate reasons for rejecting Dr. Loomis opinion. [See JS at 7-11.] 16 In determining plaintiff s disability status, the ALJ had the responsibility to determine 17 plaintiff s RFC after considering all of the relevant medical and other evidence in the record, 18 including all medical opinion evidence. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3); see SSR 96- 19 8p, 1996 WL 374184, at *5, *7. Since the Court finds that the ALJ failed to properly consider the 20 evidence concerning plaintiff s mental impairment -- including Dr. Loomis opinions regarding 21 plaintiff s mental limitations -- remand is necessary for the ALJ to reevaluate plaintiff s RFC once 22 the ALJ has reconsidered the medical evidence as directed herein. 23 / 24 / 25 / 26 27 28 8 As the Court finds reconsideration of the medical evidence pertaining to plaintiff s mental impairment warranted for the reasons expressed above, the Court will not determine whether the ALJ improperly rejected the GAF score of 50 assessed by Ms. Herrera. 10 1 C. PLAINTIFF S CREDIBILITY AND LISTING § 1.04A 2 Plaintiff argues that the ALJ improperly rejected plaintiff s credibility and subjective 3 symptoms and failed to properly determine whether plaintiff s impairments equal § 1.04A of the 4 Listing. [See JS at 12-15, 18-21.] 5 1. Plaintiff s Credibility 6 At the hearing, plaintiff testified that he was unable to work due to severe pain and stiffness 7 in his lower back that significantly limits his mobility and ability to sit, stand, walk, and lift things. 8 [AR at 19-20, 23-24.] Plaintiff further testified that his back problems result in numbness, 9 weakness, and cramps in his legs, which have caused him to fall. [AR at 19.] Plaintiff also 10 explained that he suffers from difficulty concentrating, mood swings, frustration, problems 11 socializing, and depression as a result of his pain and the limiting effects of his back problems. 12 [AR at 20-22.] 13 In the decision, the ALJ stated that while he found that plaintiff s medically determinable 14 impairments could reasonably be expected to cause the alleged symptoms ... [plaintiff s] 15 statements concerning the intensity, persistence and limiting effects of these symptoms are not 16 credible to the extent they are inconsistent with the above [RFC] assessment. [AR at 14.] As the 17 Court concludes that reconsideration of the RFC determination is warranted, and the ALJ rejected 18 plaintiff s credibility based, in part, on the ALJ s analysis of the medical evidence, which the Court 19 finds erroneous for the reasons discussed herein, the ALJ is directed to reassess plaintiff s 20 credibility after the medical evidence has been reconsidered. 21 2. Listing § 1.04A 22 To make a proper step-three finding, [a]n ALJ must evaluate the relevant evidence before 23 concluding that a claimant s impairments do not meet or equal a listed impairment. A boilerplate 24 finding is insufficient to support a conclusion that a claimant s impairment does not do so. Lewis 25 v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001) (citing Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 26 1990)). The regulations ... require the Secretary to review the symptoms, and make specific 27 findings essential to the conclusion. ... [The ALJ s] findings should be as comprehensive and 28 analytical as feasible and, where appropriate, should include a statement of subordinate factual 11 1 foundations on which the ultimate factual conclusions are based, so that a reviewing court may 2 know the basis for the decision. Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990) 3 (quotations and citations omitted); see 20 C.F.R. §§ 404.1526(c), 416.926(c) ( When we 4 determine if your impairment medically equals a listing, we consider all evidence in your case 5 record about your impairment(s) and its effects on you that is relevant to this finding. ). If a 6 claimant has an impairment or combination of impairments that meet(s) or equal(s) a condition 7 outlined in the Listing, then the claimant is presumed disabled at step three of the evaluation 8 process, and the ALJ need not make any specific findings as to his ability to perform his past 9 relevant work or any other jobs. See 20 C.F.R. §§ 404.1520(d), 416.920(d); Lester, 81 F.3d at 10 828. 11 To meet § 1.04A of the Listing, plaintiff must establish that he 1) suffers from a spinal 12 disorder (such as herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, 13 degenerative disc disease, facet arthritis, vertebral fracture) that results in compromise of a nerve 14 root or the spinal cord; 2) has nerve root compression characterized by neuro-anatomic 15 distribution of pain ; 3) has limitation of motion of the spine ; 4) has motor loss (atrophy with 16 associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss ; and 17 5) has a positive straight-leg raising test, as he is claiming injury to his lower back. 20 C.F.R. Pt. 18 404, Subpt. P, App. 1, § 1.04A. 19 The medical evidence indicates that plaintiff has herniated lumbar discs at L4-L5 and L5- 20 S1, displacement of the right S1 nerve root, mild bilateral foraminal stenosis, and mild spinal canal 21 stenosis of the lumbar spine. [See AR at 218-19, 221-22, 225-27.] It appears that these 22 impairments, in addition to plaintiff s complaints of back and leg pain (which are likewise 23 documented in plaintiff s medical records) [see id.], may satisfy the first and second requirements 24 of §1.04A. With regard to the third, fourth, and fifth requirements of § 1.04A, some of plaintiff s 25 treatment notes reflect that he had limited range of motion in his lumbar spine [AR at 210]; 26 experienced, among other symptoms, swelling, tingling, weakness, and numbness in his lower 27 back, left buttock, and leg [AR at 228]; and had a positive straight-leg test for back and buttock 28 pain. [AR at 219.] 12 1 In the decision, the ALJ asserted that plaintiff did not meet or equal § 1.04 of the Listing for 2 disorders of the spine. Although the ALJ acknowledged the diagnostic evidence concerning 3 plaintiff s lumbar spine herniations, the ALJ focused on medical evidence indicating that plaintiff 4 retained adequate range of motion and had no neurological deficits. [AR at 13-14; citing AR at 5 198, 218-19, 225-27.] In doing so, the ALJ completely ignored the medical evidence indicating 6 that plaintiff had limited motion, weakness, and numbness, as well as a positive straight-leg test. 7 [See AR at 14.] The ALJ s selective consideration of the evidence in this regard constitutes error. 8 Gallant, 753 F.2d at 1456. Since the ALJ did not expressly discuss all of the relevant evidence 9 concerning plaintiff s back impairment and treatment, or how the combination of his impairments 10 and functional limitations compare to the specific requirements of § 1.04A -- and it appears that 11 plaintiff might meet at least some of these requirements -- the Court finds remand necessary for 12 the ALJ to properly consider whether plaintiff should be found disabled at step three of the 13 sequential analysis. See Dobson v. Astrue, 267 Fed.Appx. 610, 612 (9th Cir. 2008) (remanding 14 ALJ s finding that the plaintiff s impairment did not meet or equal the Listing, where the ALJ failed 15 to analyze the plaintiff s specific impairment and limitations according to the factors set forth in the 16 Listing) (citable for its persuasive value pursuant to Ninth Circuit Rule 36-3).9 17 18 VI. 19 REMAND FOR FURTHER PROCEEDINGS 20 As a general rule, remand is warranted where additional administrative proceedings could 21 remedy defects in the Commissioner s decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th 22 Cir.), cert. denied, 531 U.S. 1038 (2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). 23 In this case, remand is appropriate in order for the ALJ to reconsider the severity of plaintiff s 24 mental impairment, the opinions of Dr. Loomis and Dr. Smith, plaintiff s RFC, plaintiff s credibility, 25 26 27 9 28 As remand is warranted for the reasons discussed herein, the Court exercises its discretion not to address plaintiff s remaining contention of error. 13 1 and whether plaintiff s impairments equal § 1.04A of the Listing. The ALJ is instructed to take 2 whatever further action is deemed appropriate and consistent with this decision. 3 Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff s request for remand is granted; 4 (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant 5 for further proceedings consistent with this Memorandum Opinion. 6 7 This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 8 9 DATED: May 12, 2011 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
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