Michelle L Higginbotham v. Michael J Astrue, No. 5:2010cv01235 - Document 16 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED forfurther proceedings consistent with this Memorandum Opinion and Order. (mz)

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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 MICHELLE L. HIGGINBOTHAM, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 10-1235 MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on August 23, 2010, seeking review of 19 the denial by the Social Security Commissioner ( Commissioner ) of 20 plaintiff s application for a period of disability, disability insurance 21 benefits ( DIB ), and supplemental security income ( SSI ). 22 1, 2010, and January 6, 2011, the parties consented to proceed, pursuant 23 to 28 U.S.C. § 636(c), before the undersigned United States Magistrate 24 Judge. The parties filed a Joint Stipulation on April 7, 2011, in 25 which: plaintiff seeks an order reversing the Commissioner s decision 26 and remanding this case for the payment of benefits; and defendant 27 concedes that reversal is appropriate, but seeks an order remanding this 28 On October 1 case for further administrative proceedings.1 2 parties Joint Stipulation under submission without oral argument. The Court has taken the 3 4 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 5 6 On May 15, 2007, plaintiff filed an application for a period of 7 disability, DIB, and SSI. (Administrative Record ( A.R. ) 12.) 8 Plaintiff, who was born on April 4, 1972,2 claimed to have been disabled 9 since June 1, 2004, due to back problems and back surgeries. (A.R. 12, 10 62, 77, 160, 191.) Plaintiff had past relevant work experience as a 11 phlebotomist, office clerk, cashier, and teacher s assistant. 12 20.) (A.R. 13 14 After the Commissioner denied plaintiff s claim initially and upon 15 reconsideration (A.R. 12, 62-66, 77-82), plaintiff requested a hearing 16 (A.R. 76). 17 Fioretti ) and plaintiff, who was represented by an attorney,3 appeared 18 and testified at a hearing before Administrative Law Judge Joseph D. 19 Schloss (the ALJ ). 20 another hearing during which vocational expert Corinne J. Porter ( VE 21 Porter ) testified. (A.R. 25-35.) On September 2, 2009, the ALJ denied On February 6, 2009, vocational expert Sandra Fioretti ( VE (A.R. 36-57.) On July 14, 2009, the ALJ conducted 22 23 1 On May 4, 2011, plaintiff s counsel filed a Notice of Death of Plaintiff. 24 2 25 At the time of the alleged disability onset date, plaintiff was 32 years old, which is defined as a younger individual. (A.R. 20, citing 20 C.F.R. §§ 404.1563, 416.963.) 26 3 27 28 Although in his decision the ALJ states that plaintiff was represented by a non-attorney representative (A.R. 12), the record indicates that she was represented by attorneys at both of her hearings. (A.R. 25, 27, 36,38.) 2 1 plaintiff s claim (A.R. 12-22), and the Appeals Council subsequently 2 denied plaintiff s request for review of the ALJ s decision (A.R. 1-8). 3 That decision is now at issue in this action. 4 5 SUMMARY OF ADMINISTRATIVE DECISION 6 7 The ALJ found that plaintiff had not engaged in substantial gainful 8 activity since June 1, 2004, the alleged onset date of her disability. 9 (A.R. 14.) The ALJ determined that plaintiff had the severe impairments 10 of degenerative disc disease (post surgery) and depression. 11 ALJ also determined that plaintiff did not have an impairment or 12 combination of impairments that met or medically equaled in severity any 13 impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 14 C.F.R. 15 416.926). §§ 404.1520(d), 404.1525, 404.1526, (Id.) 416.920(d), The 416.925, (A.R. 15.) 16 17 After reviewing the record, the ALJ determined that plaintiff had 18 the residual functional capacity ( RFC ) to perform a limited range of 19 sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a). 20 Specifically, the ALJ determined that: 21 22 [plaintiff could] lift and/or carry 10 pounds occasionally or 23 frequently; stand and/or walk a total of two hours in an 24 eight-hour workday for 30 minutes at a time; and sit about six 25 hours in an eight-hour day for not more than one hour at a 26 time. [Plaintiff] should be provided a sit/stand option. She 27 [wa]s limited to occasional climbing of ramps or stairs, 28 bending, stooping, twisting, crouching or crawling. 3 She is 1 precluded from climbing ladders, ropes or scaffolds, 2 balancing, from work at unprotected heights, and/or around 3 moving machinery or vibrations. 4 [footnote omitted] limitation in her ability to understand, 5 remember and carry out detailed instructions, to maintain 6 attention and concentration for extended periods, and to 7 interact appropriately with the public. [Plaintiff] ha[d] moderate 8 9 (A.R. 16-17.) 10 11 The ALJ concluded that plaintiff was unable to perform her past 12 relevant work but had acquired the following transferable work skills: 13 the ability to handle receipts; count money; record transactions; keep 14 records; interact with the public; and provide information. 15 Having considered plaintiff s age, education, work experience, and RFC, 16 as well as the testimony of VE Porter, the ALJ found that plaintiff 17 could perform jobs in the national economy, including check casher, 18 charge account clerk, receptionist/information clerk, and surveillance 19 systems monitor. 20 plaintiff was not disabled within the meaning of the Social Security Act 21 from June 1, 2004, the alleged onset date, through the date of his 22 decision. (A.R. 20-22.) (A.R. 20.) Accordingly, the ALJ concluded that (A.R. 22.) 23 24 STANDARD OF REVIEW 25 26 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 27 decision to determine whether it is free from legal error and supported 28 by substantial evidence in the record as a whole. 4 Orn v. Astrue, 495 1 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is such relevant 2 evidence as a reasonable mind might accept as adequate to support a 3 conclusion. 4 a mere scintilla but not necessarily a preponderance. 5 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 6 record can constitute substantial evidence, only those reasonably drawn 7 from the record will suffice. 8 1066 (9th Cir. 2006)(citation omitted). Id. (citation omitted). The evidence must be more than Connett v. Widmark v. Barnhart, 454 F.3d 1063, 9 10 Although this Court cannot substitute its discretion for that of 11 the Commissioner, the Court nonetheless must review the record as a 12 whole, weighing both the evidence that supports and the evidence that 13 detracts from the [Commissioner s] conclusion. 14 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 15 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 16 responsible for determining credibility, resolving conflicts in medical 17 testimony, and for resolving ambiguities. 18 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 19 20 The Court will uphold the Commissioner s decision when the evidence 21 is susceptible to more than one rational interpretation. 22 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 23 review only the reasons stated by the ALJ in his decision and may not 24 affirm the ALJ on a ground upon which he did not rely. 25 at 630; see also Connett, 340 F.3d at 874. 26 the Commissioner s decision if it is based on harmless error, which 27 exists only when it is clear from the record that an ALJ s error was 28 inconsequential to the ultimate nondisability determination. Robbins 5 Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse 1 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 2 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 3 at 679. 4 5 DISCUSSION 6 7 Plaintiff makes the following claims: (1) the ALJ erred in finding 8 that she did not meet the Listing of Impairments (the Listings ), 9 section 1.04A; (2) the ALJ failed to determine her RFC properly; and (3) 10 the ALJ failed to determine properly whether she could perform other 11 work. (Joint Stipulation at 4.) 12 13 The Commissioner concedes that the ALJ erred and reversal is 14 warranted on all claims. (Joint Stipulation at 7-9, 19, 23.) 15 here Plaintiff 16 Commissioner s decision and remanding this case for the payment of 17 benefits; the Commissioner seeks an order remanding this case for 18 further administrative proceedings. is the remedy. requests an order The issue reversing the 19 20 21 I. The ALJ Erred in Finding That Plaintiff Did Not Meet Listing § 1.04A During the Period from June 1, 2004, to June 18, 2006. 22 23 As noted above, the ALJ found that plaintiff s impairments did not 24 meet the Listings. He stated that this finding was supported by the 25 opinions of the medical expert, Arthur Lorber, M.D., and state agency 26 physicians. 27 a limited range of sedentary work. 28 substantial weight to the opinions of consulting examining physician (A.R. 15.) He also found plaintiff had the RFC to perform To reach this finding, the ALJ gave 6 1 Herbert E. Johnson, M.D.,4 but greater weight to the opinions of Dr. 2 Lorber. (A.R. 19.) 3 4 Dr. Johnson examined plaintiff on June 27, 2007. (A.R. 437-41.) 5 Other than a letter from plaintiff s treating physician, John Demakas, 6 M.D., Dr. Johnson did not review any of plaintiff s voluminous medical 7 records.5 8 but did not take or review any radiographic images. 9 found that plaintiff had degenerative disc disease status post multiple 10 surgical procedures, including fusion, with residual tenderness, spasm, 11 and decreased range of motion with possible mild radiculopathy of the 12 right lower extremity. 13 a limited range of light work. (Id.) 14 was retrospective. (A.R. 437.) He conducted a physical examination of plaintiff (Id.) (A.R. 440.) He He opined that she had the RFC to perform He did not state that his opinion 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 In the decision, the ALJ states he has given substantial weight to Dr. Robbins opinion ; however, he discusses and cites Dr. Johnson s opinion. (A.R. 19 (citing A.R. 437-41).) Dr. Robbins is Robert S. Robbins, M.D., a doctor plaintiff saw after June 7, 2007. (A.R. 467-68, 471-527.) Dr. Robbins did not provide any opinions about plaintiff s ability to perform work-related activities. (Id.) The reference to Dr. Robbins opinion appears to be a clerical error. It appears that the ALJ intended to state that he gave substantial weight to Dr. Johnson s opinion. 5 Because Dr. Johnson was not provided with all of plaintiff s medical records, he based his assessment on an incomplete picture of plaintiff s condition. See 20 C.F.R. §§ 404.1517, 416.917 ( If we arrange for [a consultative] examination or test, . . . [w]e will also give the examiner any necessary background information about your condition; Nalley v. Apfel, 100 F. Supp. 2d 947, 953 (S.D. Iowa 2000)(noting that when a claimant is sent to a doctor for a consultative examination, all the available medical records should be reviewed by the examiner ). As a result, it is unclear whether Dr. Johnson s opinion constitutes substantial evidence. See 20 C.F.R. §§ 404.1645(a), 416.945(a)(noting that a claimant s RFC is an assessment based upon all of the relevant evidence); Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)(medical expert opinions constitute substantial evidence only when they are supported by the record and consistent with it). 7 1 On March 8, 2009, Dr. Lorber provided expert medical opinions 2 regarding plaintiff s impairments and limitations. (A.R. 684-88.) 3 Lorber conducted a detailed summary of plaintiff s medical records, 4 which included descriptions of plaintiff s six back surgeries between 5 March 2, 2005, and January 18, 2006. 6 with: (A.R. 685-86.) Dr. He diagnosed her 7 8 Chronic low back, and chronic leg pain, with history of large 9 disc herniation, left side, at the L5-S1 level, treated with 10 microdiskectomy, 11 recurrent [or residual] disc herniations, at that same level, 12 treated with multiple repeated microdiskectomies, and despite 13 that, evidence of yet another recurrent disc herniation, at 14 that 15 procedure, 16 complication of displacement of that prosthesis, requiring 17 almost immediate replacement, by a different type of interbody 18 fusion device, and that procedure resulting in the additional 19 complication of placement of one of the interbody fusion 20 cages, into the spinal canal, causing neural impingement, 21 which 22 grinding down that portion of the surgical implant, which 23 projected into the spinal canal. level, was but initially using then subsequently treated [a] treated with prosthesis, by an developing an multiple interbody with unorthodox the fusion subsequent procedure, of 24 25 (A.R. 687-88.) 26 27 Dr. Lorber opined that plaintiff met Listing 1.04A (disorders of 28 the spine with evidence of nerve root compression) from June 1, 2004, 8 1 her alleged onset date, to June 18, 2006. 2 after that date, she could lift occasionally 10 pounds and frequently 3 less than 10 pounds, stand for a total of two hours in an eight-hour 4 workday for 30 minutes at a time; and sit for a total of six hours in an 5 eight-hour day for not more than one hour at a time. 6 was: 7 stooping, twisting, or crouching; and precluded from kneeling, crawling, 8 climbing 9 unprotected heights, and/or around moving machinery or vibrations. 10 (Id.) (A.R. 688.) He opined that, (A.R. 688.) She limited to occasional climbing of ramps or stairs, bending, ladders, ropes or scaffolds, balancing, He also recommended a sit/stand option. from work at (Id.) 11 12 Although the ALJ stated that he gave greater weight to the 13 opinions of Dr. Lorber, he rejected Dr. Lorber s opinion that 14 plaintiff s impairments met Listing 1.04A from June 1, 2004, to June 18, 15 2006. (A.R. 19.) The ALJ provided no explanation for this discrepancy. 16 He did not explicitly discuss or provide any reason for rejecting Dr. 17 Lorber s opinion that plaintiff s impairments met Listing 1.04A. 18 19 Dr. Lorber s opinion that plaintiff s impairments met Listing 1.04A 20 for the closed period from June 1, 2004, to June 18, 2006, is the only 21 medical opinion in the record that discusses plaintiff s impairments 22 during that time. 23 opinions all concern plaintiff s impairments and limitations for times 24 after June 18, 2006. 25 Accordingly, the ALJ erred when he rejected Dr. Lorber s opinion that 26 Plaintiff s impairments met Listing 1.04A during the closed period and 27 failed to award plaintiff benefits for that closed period of disability. The state agency physician s and Dr. Johnson s (See A.R. 437-41, 442-44, 459-63, 469-70.) 28 9 1 The ALJ erred when he found plaintiff s impairments did not meet Listing 2 1.04A during the closed period. 3 4 With respect to the period after June 18, 2006, the record is not 5 so clear. While Dr. Lorber s opinions appear to indicate that plaintiff 6 could perform a limited range of sedentary work, this Court cannot 7 affirm the ALJ s finding in view of his grave error in failing to find 8 that plaintiff s impairments met Listing 1.04A before that date and the 9 absence of any determination about medical improvement. See 20 C.F.R. 10 §§ 404.1594, 416.994; Waters v. Barnhart, 276 F.3d 716, 718-19 (5th Cir. 11 2002)(in closed period cases, medical improvement standard applies); 12 Shepherd v. Apfel, 184 F.3d 1196, 1200-01 (10th Cir.1999); Jones v. 13 Shalala, 10 F.3d 522, 524 (7th Cir. 1993). 14 15 16 II. The ALJ Failed To Determine Properly Plaintiff s RFC And Whether She Could Perform Other Work. 17 18 Plaintiff contends that the ALJ failed to determine properly 19 plaintiff s RFC and whether she could 20 Commissioner concedes that the ALJ erred. perform other work. The (Joint Stip. 19, 23.) 21 22 The Commissioner concedes that the ALJ s RFC determination was 23 improper, because the ALJ failed to consider properly plaintiff s 24 testimony about the side effects of her medications and the testimony of 25 third party witnesses.6 26 that the ALJ s finding that plaintiff could perform other work was (A.R. 19.) The Commissioner further concedes 27 6 28 The ALJ also failed to consider properly the opinions of John J. Demakas, M.D., plaintiff s treating physician. (A.R. 335.) 10 1 improper, because it was based on his improper RFC determination. (A.R. 2 23.) 3 4 III. Remand Is Required. 5 6 The decision whether to remand for further proceedings or order an 7 immediate award of benefits is within the district court s discretion. 8 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 9 useful purpose would be served by further administrative proceedings, or 10 where the record has been fully developed, it is appropriate to exercise 11 this discretion to direct an immediate award of benefits. 12 ( [T]he decision of whether to remand for further proceedings turns upon 13 the likely utility of such proceedings. ). 14 outstanding issues that must be resolved before a determination of 15 disability can be made, and it is not clear from the record that the ALJ 16 would be required to find the claimant disabled if all the evidence were 17 properly evaluated, remand is appropriate. Where no Id. at 1179 However, where there are Id. at 1179-81. 18 19 As to the closed period from June 1, 2004, to June 18, 2006, there 20 are no outstanding issues that must be resolved. 21 of record supports Dr. Lorber s opinion that plaintiff s impairments met 22 Listing 23 contradicted by any medical opinion in the record. 24 finds that plaintiff was disabled throughout the closed period and that 25 reversal and remand for an award of benefits for the closed period from 26 June 1, 2004, to June 18, 2006, is warranted. 1.04A during this closed 27 28 11 period. The medical evidence This opinion is not Thus, the Court 1 As to the time after June 18, 2006, remand for further proceedings 2 is required, because there are outstanding issues that must be resolved 3 before disability can be determined, including, but not limited to: 4 whether there was medical improvement in plaintiff s impairments such 5 that 6 plaintiff and third party witness is credible; plaintiff s RFC; and 7 whether plaintiff could perform work. 8 379 F.3d 587, 593 (9th Cir. 2004)(remand for further proceedings is 9 appropriate if enhancement of the record would be useful; McAllister v. 10 Sullivan, 888 F.2d 599, 603 (9th Cir. 1989)(remand appropriate to remedy 11 defects in the record). they no longer met the Listings; whether the testimony of See, e.g., Benecke v. Barnhart, 12 13 CONCLUSION 14 15 Accordingly, for the reasons stated above IT IS ORDERED that the 16 decision of the Commissioner is REVERSED, and this case is REMANDED for 17 further proceedings consistent with this Memorandum Opinion and Order. 18 19 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 20 copies of this Memorandum Opinion and Order and the Judgment on counsel 21 for plaintiff and for defendant. 22 23 LET JUDGMENT BE ENTERED ACCORDINGLY. 24 25 26 27 DATED: November 21, 2011 ______________________________ MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 28 12

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