Mireya Cuevas v. Michael J Astrue, No. 5:2012cv01004 - Document 16 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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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 MIREYA CUEVAS, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ACTING ) COMMISSIONER OF SOCIAL SECURITY,1 ) ) Defendant. ) ___________________________________) NO. ED CV 12-1004-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 20 judgment are denied and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 /// 23 /// 24 /// 25 26 27 28 1 Carolyn W. Colvin, who became Acting Commissioner of Social Security as of February 14, 2013, is hereby substituted as Defendant in this matter. See Fed. R. Civ. P. 25(d)(1); 42 U.S.C. § 405(g). PROCEEDINGS 1 2 Plaintiff filed a complaint on June 19, 2012, seeking review of 3 4 the Commissioner s denial of disability benefits. The parties filed a 5 consent to proceed before a United States Magistrate Judge on July 13, 6 2012. Plaintiff filed a motion for summary judgment on November 26, 7 2012. Defendant filed a cross-motion for summary judgment on 8 February 11, 2013. 9 without oral argument. The Court has taken the motions under submission See L.R. 7-15; Order, filed June 21, 2012. 10 11 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 12 13 In 2007 and 2008, Plaintiff, a former physical therapy aid, 14 applied for disability insurance benefits asserting disability since 15 July 3, 2003, based on an alleged herniated disc, impaired vision, and 16 torn left rotator cuff (Administrative Record ( A.R. ) 59-60, 159-65 17 (applications), 180-81). 18 four eye surgeries and suffered from severe headaches due to her neck 19 problems, had numbness to both hands, and was limited in her ability 20 to lift, walk and sit (A.R. 180). 21 December 31, 2007 (A.R. 19, 174).2 Plaintiff reported that she had undergone Plaintiff s last insured date was 22 23 24 In a September 10, 2010 decision, an Administrative Law Judge ( ALJ ) found Plaintiff not disabled (A.R. 17-29). The ALJ found that 25 26 27 28 2 To be eligible for disability insurance benefits, Plaintiff must have become disabled prior to the expiration of her insured status. See 42 U.S.C. § 416(i)(2)(C), 416(i)(2)(D), 416(i)(3)(A); 20 C.F.R. § 404.131; see Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 2 1 Plaintiff has the following severe impairments: retrolisthesis of C4 2 over C5 and status post cervical fusion and laminectomy; status post 3 removal of cervical plate and screws; status post cervical 4 foraminotomy due to cervical foraminal stenosis; legally blind right 5 eye; facet disease of lumbosacral spine L5-S1; left shoulder 6 tendonitis; headaches; and depression (A.R. 19 (adopting medical 7 expert testimony at A.R. 41)). 8 impairments do not meet or equal a listed impairment (A.R. 19-20 9 (adopting medical expert testimony at A.R. 41)). The ALJ stated that Plaintiff s 10 11 The ALJ found that Plaintiff could perform a range of sedentary 12 work limited to simple repetitive tasks in a non-public environment 13 (A.R. 20, 26 (adopting medical expert testimony at A.R. 41-42 14 concerning Plaintiff s physical capacity, and non-examining state 15 agency physician s opinion at A.R. 1198-1200 concerning Plaintiff s 16 mental capacity)). 17 longer could perform her past relevant work, there exist other jobs 18 Plaintiff can perform, specifically the jobs of assembler and office 19 helper (A.R. 28 (adopting vocational expert testimony at A.R. 79-80)). 20 The Appeals Council denied review (A.R. 8-10). The ALJ believed that, although Plaintiff no 21 22 STANDARD OF REVIEW 23 24 Under 42 U.S.C. section 405(g), this Court reviews the 25 Administration s decision to determine if: 26 findings are supported by substantial evidence; and (2) the 27 Administration used proper legal standards. 28 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 3 (1) the Administration s See Carmickle v. 1 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is such 2 relevant evidence as a reasonable mind might accept as adequate to 3 support a conclusion. 4 (1971) (citation and quotations omitted); Widmark v. Barnhart, 454 5 F.3d 1063, 1067 (9th Cir. 2006). Richardson v. Perales, 402 U.S. 389, 401 6 7 DISCUSSION 8 9 Plaintiff contends, inter alia, that the ALJ failed to evaluate 10 adequately whether Plaintiff met or equaled Listing 1.04(A). As 11 discussed below, the Court agrees with this contention and also 12 discerns an error regarding the vocational evidence. 13 appropriate. Remand is 14 15 16 I. The ALJ Failed to Evaluate Adequately Whether Plaintiff Meets or Equals Listing 1.04(A). 17 18 At step three of the sequential evaluation process, the ALJ must 19 determine whether a claimant has an impairment or combination of 20 impairments that meets or equals a listed impairment. 21 §§ 404.1520(d), 416.920(d). 22 impairment, he or she is conclusively presumed to be disabled and 23 entitled to benefits. 24 (1986); accord Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993); 25 see also 20 C.F.R. §§ 404.1525(a); 416.925(a) (discussing the 26 Listings). 27 all of the specified medical criteria. 28 521, 530 (1990); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. See 20 C.F.R. If a claimant meets or equals a listed Bowen v. City of New York, 476 U.S. 467, 471 An impairment meets a listing if the impairment matches 4 Sullivan v. Zebley, 493 U.S. 1 1999). An impairment or combination of impairments that manifests 2 only some of the criteria, no matter how severely, does not qualify. 3 Sullivan v. Zebley, 493 U.S. at 530; Tackett v. Apfel, 180 F.3d at 4 1099. 5 6 Although a claimant bears the burden of proving that she has an 7 impairment or combination of impairments that meets or equals the 8 criteria of a listed impairment, an ALJ must still adequately evaluate 9 and discuss the evidence before concluding that a claimant s 10 impairments fail to meet or equal a listing. See Marcia v. Sullivan, 11 900 F.2d 172, 176 (9th Cir. 1990) ( [I]n determining whether a 12 claimant equals a listing under step three . . . the ALJ must explain 13 adequately his evaluation of alternative tests and the combined 14 effects of the impairments. ). 15 fails adequately to consider a listing that plausibly applies to the 16 claimant s case. 17 2001) (to trigger ALJ s duty to compare plaintiff s impairments to a 18 particular listing, plaintiff must present plausible theory as to how 19 an impairment or combination of impairments equals a listed 20 impairment). Remand is appropriate where an ALJ See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 21 22 23 Here, Plaintiff presented a plausible theory that she met Listing 1.04(A). Listing 1.04(A) provides: 24 25 Disorders of the spine (e.g., herniated nucleus pulposus, 26 spinal arachnoiditis, spinal stenosis, osteoarthritis, 27 degenerative disc disease, facet arthritis, vertebral 28 fracture), resulting in compromise of a nerve root . . . or 5 1 the spinal cord. With . . . [e]vidence of nerve root 2 compression characterized by neuro-anatomic distribution of 3 pain, limitation of motion of the spine, motor loss (atrophy 4 with associated muscle weakness or muscle weakness) 5 accompanied by sensory or reflex loss and, if there is 6 involvement of the lower back, positive straight-leg raising 7 test (sitting and supine) . . . . 8 9 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04(A). 10 11 At the outset of the administrative hearing, the medical expert 12 opined without explanation that Plaintiff did not meet or equal a 13 listed impairment (A.R. 41). 14 suggested to the medical expert and to the ALJ that Plaintiff met 15 Listing 1.04 (A.R. 53, 85). 16 extensive medical record (summarized below) established that Plaintiff 17 met Listing 1.04(C) (lumbar spine stenosis) (A.R. 53).3 During the hearing, Plaintiff s counsel Plaintiff s counsel argued that the 18 3 19 20 21 22 23 24 25 26 27 28 Counsel s reference to paragraph (C) of Listing 1.04 (A.R. 53) appears to have been in error. Plaintiff s treating physician, Dr. Sobol, completed a Listing §1.04A - Spinal Nerve Root Compression questionnaire dated March 23, 2009, which tracks the requirements for Listing 1.04(A) (A.R. 228-29). See 20 C.F.R. Pt. 404, Subpt. P, App. 1, 1.04(A). Dr. Sobol indicated that Plaintiff had a disorder of the spine identified as cervical lumbar spine injuries[,] history of 3-06 multi-level cervical spine fusion surgery (A.R. 228). Dr. Sobol indicated that Plaintiff has evidence of nerve root compression and neuroanatomic distribution of pain, which he described as bilateral arm and left leg radiculitis (A.R. 228). Dr. Sobol noted that Plaintiff has limited motion of the spine, muscle weakness, and Plaintiff could not walk on her heels or her toes, and could not squat or rise from a squatting position (A.R. 228). Dr. Sobol stated that Plaintiff has sensory loss in her upper extremities and involvement of her lower back and a positive straight leg (continued...) 6 1 The medical expert disagreed. Although Plaintiff s treating 2 physician Dr. Sobol had set forth listings-relevant opinions in a 3 questionnaire, the medical expert appeared dismissive, saying, I 4 don t pay much attention to those things (A.R. 42-43; see also A.R. 5 53 (expert saying he would want to see the exact examination that Dr. 6 Sobol performed to arrive at his conclusions)). 7 that there was nothing in the medical record to support Dr. Sobol s 8 conclusions that Plaintiff could not walk on her heels or toes and was 9 unable to rise from a squatting position (A.R. 50-51). The expert claimed 10 11 As mentioned above, the ALJ found that Plaintiff did not meet or 12 equal any listed impairment (A.R. 19-20 (apparently adopting medical 13 expert s conclusion at A.R. 41)).4 14 detail whether Plaintiff s mental impairment met or equaled listing 15 12.04, the ALJ did not discuss at all whether Plaintiff s physical 16 impairments met or equaled Listing 1.04(A) (id.). While the ALJ did discuss in 17 18 19 20 21 22 23 24 25 26 27 28 3 (...continued) raising test (A.R. 229). Dr. Sobol identified at present as the earliest date the symptoms and limitations he noted applied (A.R. 229). The Court observes that if Dr. Sobol really intended his opinions regarding Plaintiff s symptoms and limitations to apply only from March 23, 2009 on, Plaintiff would not be entitled to benefits because this date is long after her date last insured. Given the fact that Dr. Sobol expressly referenced Plaintiff s status post March 2006 spine surgery, however, Dr. Sobol almost certainly did not intend that his opinions have no application before March 23, 2009. 4 In adopting the medical expert s conclusion over other opinion evidence of record, the ALJ explained that he gave weight to the expert in part because the expert had the opportunity to listen to Plaintiff s testimony (A.R. 27). However, the medical expert was excused from the hearing before Plaintiff testified, so the medical expert did not hear any of Plaintiff s testimony. See A.R. 58-59. 7 1 The record suggests that Plaintiff may have had nerve root 2 compression sufficient to meet Listing 1.04(A) for at least a part of 3 the time period at issue. 4 surgeries beginning in 2002 (A.R. 63-64; see also 5 (available records from surgeries)). 6 on December 16, 2002, to fuse the C5 and C6 vertebrae (A.R. 64). 7 second surgery was performed on March 5, 2004, to remove the hardware 8 used in the first surgery, which had caused permanent nerve damage 9 from improper placement (A.R. 63, 65).5 Plaintiff underwent three cervical spine A.R. 406-15, 422-33 The first surgery was performed The The third surgery was a 10 bilateral C5-6, C6-7 posterior cervical foraminotomy performed on 11 March 27, 2006, to relieve nerve root compression (A.R. 64, 420, 422, 12 424). 13 14 Records from Dr. Sobol and his colleagues consistently report 15 that, following Plaintiff s surgeries, she has suffered from bilateral 16 /// 17 18 19 20 21 22 23 24 25 26 27 28 5 Following the first surgery, Plaintiff immediately experienced worsening of her pain and left side radiculopathy due to the improper screw placement (A.R. 416; see also A.R. 566-67 (CT scan report noting improper screw placement)). Once the hardware was removed, Plaintiff reported marked improvement in her symptoms but persisting left side radiating pain (A.R. 420). The surgeon who removed the hardware, Dr. Robert Bray, observed in a post-operative appointment that Plaintiff was mildly discoordinated with some sensory loss, and had improvement but weakness in her left arm (id.). A post-surgery MRI showed marked foraminal narrowing at the C5-6 and C6-7 levels and stenosis consistent with radiculopathy (id.). Dr. Bray recommended a posterior cervical foraminotomy at these levels to relieve compression of the nerve roots as they exit below the fusion (id.). 8 1 upper extremity radiculitis ( B UE rad ),6 multilevel degenerative 2 disc disease ( DDD ), lumbar spine musculoligamentous sprain/strain 3 with left lower extremity radiculitis ( L/S, S/S L LE rad ), left 4 upper extremity tendinitis and medial and lateral epicondylitis ( L UE 5 tend ), left shoulder strain and impingement with partial tear and 6 tendinitis per ultrasound ( L shldr str/imp ), with restricted range 7 of motion ( ROM ), impingement, and weakness on examination. 8 504-21, 868-72, 1389-91, 1463-72, 1481-82 (records from April 2006 9 through April 2010); see also A.R. 522-41 (records predating the last See A.R. 10 surgery noting similar diagnoses). Although not entirely clear, the 11 doctors also appear to have referenced bilateral lower back pain 12 associated with straight leg raising in records from before 13 Plaintiff s last surgery ( B SLR [up arrow] LBP (A.R. 522, 525-26, 14 529-30, 533 (positive straight leg raising on the left side with lower 15 back pain on the right side ( + SLR L & LBP R )), 536-40). 16 summarized the medical records and his examination findings and 17 diagnoses in a series of narrative reports. 18 (report and supplement from January and March 2007), A.R. 915-46 19 (final report from February 2008 concerning Plaintiff s spine-related 20 limitations showing on examination limited range of motion in the 21 cervical spine and left upper extremities, positive straight leg 22 raising tests both seated and supine on the left side for radiating 23 pain to the left ankle). Dr. Sobol See, e.g., A.R. 570-89 24 25 26 27 28 6 Plaintiff testified that she suffers from occasional radiating pain on her right side, and constant pain on her left side that radiates all the way down to her left hand which she described as feeling like raw skin burned with hot water (A.R. 65-66). Plaintiff had been taking Norco, Vicodin, and Oxycontin for her pain for the past eight years (A.R. 67). 9 1 An Agreed Medical Examination performed by Dr. Thomas Haider on 2 April 18, 2005, reported evidence from MRI and EMG studies of 3 radiculopathy affecting the left supraspinatus and brachial radialis 4 muscle groups, and permanent changes of the nerve roots affecting the 5 C4-5 level to the left with significant stenosis to the left (A.R. 6 326-27). 7 found, inter alia: Dr. Haider, who examined Plaintiff on February 28, 2005, 8 9 On exam today the patient has a healed surgical scar to the 10 left and right of the anterior neck region. There is 11 tenderness and muscle spasm at her neck. 12 motion is 90 percent of normal. Spurlings test is positive 13 to the left with some guarding. Sensation is decreased in 14 the left upper extremity C5 and C6 nerve distribution. . . . 15 She has slight tenderness in the upper back. 16 tenderness, guarding and some muscle spasm in the lower 17 back. 18 normal. 19 lower extremity [both sitting and supine]. 20 decreased in the left lower extremity L3 to S1 nerve 21 distribution. 22 ankles. Her neck range of There is Her lower back range of motion is 80 percent of Straight leg raising test is positive in the left Sensation is Deep tendon reflexes are 0 at both knees and 23 24 (A.R. 340; see also A.R. 337, 1427-28, 1434-42 (reports from Dr. 25 Haider for February 2005, April 2007, and July 2007 noting positive 26 straight leg raising in the lower left extremity)). 27 related to a work-related injury Plaintiff suffered on October 23, 28 2001 (A.R. 340). 10 These findings 1 An orthopedic consultation report by Dr. John Simmonds dated 2 January 17, 2008, states that Plaintiff: (1) was able to move about 3 the office slowly; (2) had a notable left antalgic gait with 4 favoritism to the right side, but an ability to walk on her heels and 5 toes with difficulty along the lower extremity; (3) had a limited 6 range of motion; (4) had negative bilateral straight leg raising tests 7 but lower back pain with elevations over 50 degrees; (5) had 8 radiculopathy in her left lower extremity; and (6) has tendonitis in 9 her left shoulder (A.R. 859-63). Dr. Simmonds did not opine whether 10 Plaintiff s condition met or equaled a listing, but did opine that 11 Plaintiff could perform a limited range of sedentary work (A.R. 863). 12 13 Earlier objective tests provide evidence of Plaintiff s 14 degenerative disc disease and possible nerve root compression. A 15 cervical spine MRI report from February 2006 showed protrusion at the 16 C3-4 and C7-T1 levels with minimal contact of the spinal cord (A.R. 17 549; see also A.R. 551 (November 2003 report reflecting similar 18 findings), A.R. 552-53 (May 2004 report noting disc bulges at various 19 levels)). 20 degeneration of the upper four lumbar discs and mild diffuse 21 straightening of the lumbar lordosis (A.R. 550). A lumbar spine MRI report from May 2004 showed mild 22 23 An MRI of Plaintiff s cervical spine dated July 23, 2002, showed 24 minimal reversed lordosis of the upper mid cervical spine, mild 25 posterior bulging of the annulus of the C3-4 disc, minimal 26 retrolisthesis of C4 over C5 with mild posterior bulging of the 27 annulus of C5-6 and C6-7, but no evidence of central canal stenosis or 28 cervical cord compression (A.R. 309; see also A.R. 312 (radiology 11 1 report dated October 23, 2001, also noting retrolisthesis of C4 over 2 C5)). 3 4 Neurological testing from October 2003 revealed evidence of early 5 peripheral neuropathy in the left upper extremity (A.R. 555-57). 6 Testing from May 2004 showed no evidence of neuropathy affecting the 7 lower extremities (A.R. 560-62; compare A.R. 795-802, 806-23 (testing 8 from December 2003, July 2004, and October 2005 focusing on headache 9 complaints noting normal gait, no evidence of atrophy, limited range 10 of motion in the head and neck, and decreased sensation to the left 11 upper extremity); A.R. 836-51 (testing from August 2006 reporting 12 limited range of motion in the head and neck, slight lower left 13 extremity limp, and give way type weakness of the muscles of the left 14 upper extremity and both lower extremities)). 15 16 On this record, the Court concludes that neither the ALJ nor the 17 medical expert adequately considered and discussed whether Plaintiff 18 met or equaled Listing 1.04(A) during all or any part of the relevant 19 disability period. 20 the medical evidence provides sufficient reasoning to support the 21 ALJ s conclusory step three findings. 22 evidence and did reference the various findings concerning nerve root 23 compression, radiculopathy, straight leg raising tests, and the March 24 2006 surgery to address Plaintiff s nerve root compression (see A.R. 25 21-27). 26 or fail to comport with Listing 1.04(A). 27 consider these issues and explain the specific basis for any finding 28 at step three. Defendant contends that the ALJ s discussion of The ALJ did discuss the medical However, the ALJ did not explain how these findings comport On remand, the ALJ should See Adea v. Astrue, 2011 WL 2261072, at *4 (C.D. Cal. 12 1 June 8, 2011) (remanding where ALJ failed to make full and detailed 2 findings of fact essential to the ultimate finding that the claimant 3 did not meet a listing) (quoting Lewin v. Schweiker, 654 F.2d 631, 4 634-35 (9th Cir. 1981)); Bouchard v. Astrue, 2010 WL 358538, at *4 5 (C.D. Cal. Jan. 25, 2010) (deeming insufficient on similar facts an 6 ALJ s conclusory statement that the claimant does not have an 7 impairment or combination of impairments that meets or medically 8 equals one of the listed impairments ). 9 10 II. 11 Substantial Evidence Does Not Support the Administration s Decision that Plaintiff Can Work. 12 13 Although not raised specifically by the parties, the Court 14 observes that even if the ALJ had adequately considered and explained 15 whether Plaintiff met the Listings at step three, substantial evidence 16 would not support the ALJ s adverse disability determination at step 17 five of the evaluation process. 18 19 As previously stated, the ALJ relied on the testimony of a 20 vocational expert to determine that there exist jobs that Plaintiff 21 can perform. 22 work as an assembler and an office helper jobs the ALJ described as 23 sedentary. 24 testimony at A.R. 80). 25 office helper job is light. 26 explaining); see also Dictionary of Occupational Titles § 734.687-108 27 (assembler) and § 239.567-010 (office helper). 28 /// Specifically, the ALJ found that Plaintiff could perform See A.R. 28 (purportedly adopting vocational expert While the assembler job is sedentary, the See A.R. 80 (vocational expert so 13 This distinction may make a difference in Plaintiff s case. 1 The 2 residual functional capacity presented to the vocational expert was 3 not identical to the residual functional capacity the ALJ found to 4 exist. 5 expert omitted a limitation to no more than occasional bending, and 6 also assumed that Plaintiff could lift less than 10 pounds 7 occasionally and less than 20 pounds frequently, rather than the 10 8 pound lifting limit the ALJ found to exist. 9 (Plaintiff s capacity) with A.R. 79 (hypothetical). The hypothetical question the ALJ posed to the vocational Compare A.R. 20 A limitation to 10 lifting less than 10 pounds would preclude all light work, including 11 the office helper job. 12 31251, at *5-*6 (defining light work as involving lifting no more than 13 20 pounds at a time).7 See Social Security Ruling 83-10, 1983 WL 14 15 Whether a person limited to occasional bending could perform the 16 job of an assembler is unclear on the present record. Because of the 17 incompleteness of the hypothetical question, the vocational expert did 18 not consider Plaintiff s bending limitation. 19 question fails to set out all of the claimant s impairments, the 20 vocational expert s answers to the question cannot constitute 21 substantial evidence to support the ALJ s decision. 22 DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991); Gamer v. 23 Secretary, 815 F.2d 1275, 1280 (9th Cir. 1987); Gallant v. Heckler, 24 753 F.2d 1450, 1456 (9th Cir. 1984). 25 /// 26 /// Where a hypothetical See, e.g., 27 7 28 Social Security rulings are binding on ALJs. v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 14 Terry 1 III. Remand is Appropriate. 2 3 Because the circumstances of this case suggest that further 4 administrative review could remedy the ALJ s errors, remand is 5 appropriate. 6 see generally INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of 7 an administrative determination, the proper course is remand for 8 additional agency investigation or explanation, except in rare 9 circumstances). See McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); 10 11 CONCLUSION 12 13 For all of the foregoing reasons,8 Plaintiff s and Defendant s 14 motions for summary judgment are denied and this matter is remanded 15 for further administrative action consistent with this Opinion. 16 17 LET JUDGMENT BE ENTERED ACCORDINGLY. 18 19 DATED: March 18, 2013. 20 21 ______________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 8 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the payment of benefits would not be appropriate at this time. 15
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