Wesley Hale v. Michael J Astrue, No. 8:2008cv01310 - Document 18 (C.D. Cal. 2009)

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 for payment of benefits. (See document for further details.) (pcl)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 12 13 14 15 16 17 WESLEY HALE, ) ) Plaintiff, ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner, Social Security ) Administration, ) ) Defendant. ) ) No. SACV 08-1310 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 payment of benefits. 24 25 I. Plaintiff seeks As BACKGROUND Plaintiff Wesley Hale was born on December 9, 1976, and was 26 thirty years old at the time of his administrative hearing. 27 [Administrative Record ( AR ) 16, 47.] 28 education and past relevant work as a warehouse attendant, bouncer, 1 Plaintiff has a high school 1 and grocery bagger. [AR 39-40.] 2 basis of back problems and diabetes. [AR 50.] II. 3 4 Plaintiff alleges disability on the PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on November 18, 2008, and filed 5 on November 25, 2008. 6 Plaintiff s Administrative Record ( AR ). 7 parties filed their Joint Stipulation ( JS ) identifying matters not 8 in dispute, issues in dispute, the positions of the parties, and the 9 relief sought by each party. 10 On May 14, 2009, Defendant filed an answer and On October 9, 2009, the This matter has been taken under submission without oral argument. 11 III. PRIOR ADMINISTRATIVE PROCEEDINGS 12 Plaintiff applied for a period of disability and disability 13 insurance benefits ( DIB ) under Title II of the Social Security Act 14 on April 25, 2006, alleging disability since April 19, 2005. [AR 9.] 15 After the application was denied initially and on reconsideration, 16 Plaintiff requested an administrative hearing, which was held on 17 November 28, 2007, before Administrative Law Judge ( ALJ ) Charles E. 18 Stevenson. 19 testimony was taken from Plaintiff and vocational expert Joseph 20 Torres. [AR 17.] 21 January 25, 2008. 22 on September 25, 2008, the ALJ s decision became the Commissioner s 23 final decision. [AR 16.] Plaintiff appeared without counsel,1 and The ALJ denied benefits in a decision issued on [AR 9-15.] When the Appeals Council denied review [AR 1-3.] 24 1 25 26 27 28 Plaintiff stated at the beginning of the hearing that he was unrepresented because he did not have funds to pay an attorney. [AR 18.] The ALJ informed Plaintiff that Social Security plaintiffs attorneys typically work on contingency basis, provided the name of a legal services agency, and asked Plaintiff twice whether he would like to proceed with an attorney. [AR 19-22.] Plaintiff elected to remain unrepresented at the hearing, stating that he had already submitted all relevant medical records. [AR 20, 22.] 2 IV. 1 2 STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 3 Commissioner s decision to deny benefits. The Commissioner s (or 4 ALJ s) findings and decision should be upheld if they are free of 5 legal error and supported by substantial evidence. 6 court determines that a finding is based on legal error or is not 7 supported by substantial evidence in the record, the court may reject 8 the finding and set aside the decision to deny benefits. 9 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. However, if the See Aukland 10 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 11 F.3d 1157, 1162 (9th Cir. 12 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 13 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 14 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 15 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a Reddick v. Chater, 157 F.3d at 720. It is relevant 16 preponderance. 17 evidence which a reasonable person might accept as adequate to support 18 a conclusion. 19 supports a finding, a court must review the administrative record as a 20 whole, weighing both the evidence that supports and the evidence that 21 detracts from the Commissioner s conclusion. 22 can reasonably support either affirming or reversing, the reviewing 23 court may not substitute its judgment for that of the Commissioner. 24 Reddick, 157 F.3d at 720-721; see also Osenbrock v. Apfel, 240 F.3d at 25 1162. Id. To determine whether substantial evidence V. 26 Id. If the evidence DISCUSSION 27 A. THE FIVE-STEP EVALUATION 28 To be eligible for disability benefits a claimant must 3 1 demonstrate a medically determinable impairment which prevents the 2 claimant from engaging in substantial gainful activity and which is 3 expected to result in death or to last for a continuous period of at 4 least twelve months. 5 Chater, 157 F.3d at 721; 42 U.S.C. § 423(d)(1)(A). Tackett v. Apfel, 180 F.3d at 1098; Reddick v. 6 Disability claims are evaluated using a five-step test: 7 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. 8 9 10 11 12 13 14 15 16 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 17 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 18 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett v. Apfel, 180 F.3d at 19 1098-99; 20 C.F.R. § 404.1520, § 416.920. If a claimant is found 20 disabled or not disabled at any step, there is no need to complete 21 further steps. Tackett v. Apfel, 180 F.3d 1098; 20 C.F.R. § 404.1520. 22 Claimants have the burden of proof at steps one through four, 23 subject to the presumption that Social Security hearings are non24 adversarial, and to the Commissioner s affirmative duty to assist 25 claimants in fully developing the record even if they are represented 26 by counsel. Tackett v. Apfel, 180 F.3d at 1098 and n.3; Smolen v. 27 Chater, 80 F.3d at 1288. If this burden is met, a prima facie case of 28 4 1 disability is made, and the burden shifts to the Commissioner (at step 2 five) to prove that, considering residual functional capacity 3 ( RFC )2, age, education, and work experience, a claimant can perform 4 other work which is available in significant numbers. 5 Apfel, 180 F.3d at 1098, 1100; Reddick v. Chater, 157 F.3d at 721; 20 6 C.F.R. § 404.1520, § 416.920. Tackett v. 7 B. 8 Here, the ALJ found that plaintiff had not engaged in substantial 9 THE ALJ S EVALUATION IN PLAINTIFF S CASE gainful activity since the alleged disability onset date (step one); 10 that plaintiff had severe impairments, namely degenerative disc 11 disease of the lumbar spine and non-insulin-dependent diabetes 12 mellitus (step two); and that plaintiff did not have an impairment or 13 combination of impairments that met or equaled a listing (step 14 three). [AR 11.] 15 light work with limitations to occasional climbing, kneeling, bending 16 and stooping, and restrictions from climbing ladders, working at 17 unprotected heights, and being around hazardous equipment. [AR 12.] 18 The vocational expert testified that a person with Plaintiff s RFC and 19 other vocational factors could perform Plaintiff s past relevant work 20 as a bouncer, as it is generally performed in the national economy 21 (step four). [AR 14-15.] 22 disabled as defined by the Social Security Act. [AR 15.] The ALJ determined that Plaintiff had an RFC for Accordingly, Plaintiff was found not 23 2 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 C. 2 The parties Joint Stipulation identifies four disputed issues: 3 1. 4 5 2. Whether the ALJ properly considered the opinion of Plaintiff s treating neurologist, Dr. Bradley Noblett; 3. 8 9 Whether the ALJ properly considered the opinion of Plaintiff s treating physician, Dr. Anne Ford; 6 7 ISSUES IN DISPUTE Whether the ALJ properly considered the opinion of Plaintiff s treating orthopedist, Dr. Raed Ali; and 4. Whether the ALJ properly considered whether Plaintiff s 10 impairments met or equaled the requirements of a listed 11 impairment. 12 [JS 2-3.] 13 As discussed below, Issue Two is dispositive. 14 D. 15 In his second claim, Plaintiff asserts that the ALJ did not DR. NOBLETT 16 properly account for the opinion of Dr. Bradley Noblett, a 17 neurological surgeon who twice saw Plaintiff, in June and November 18 2007, for complaints of back problems. [JS 9-10; AR 228, 230-32.] 19 20 Background At the hearing, Plaintiff testified that he injured his back in a 21 gardening accident, apparently on or around his alleged disability 22 onset date of April 19, 2005. [AR 27.] 23 Plaintiff had worked for several years at a distribution center for 24 Ford Motor Company as a warehouse attendant, which involved lifting 25 and carrying car parts from a warehouse to a dock. [AR 26.] 26 was no longer able to perform his job at Ford, and he received a 27 buyout from the company. [AR 28.] 28 injury. [AR 11.] At the time of the injury, Plaintiff Plaintiff has not worked since the 6 1 According to the medical record, Plaintiff began receiving 2 ongoing treatment from Dr. Anne Ford to address his lower back pain 3 since the time of the injury. [AR 136-72.] 4 treatment included pain killers and physical therapy. [Id.; AR 178- 5 82.] 6 things, that Plaintiff is limited to lifting less than five pounds or 7 he has significant back pain and spasm. [AR 194.] 8 9 Plaintiff s initial In August 2006, Dr. Ford wrote a letter stating, among other In June 2007, Dr. Ford arranged for Plaintiff to have an MRI of the lumbar spine and referred Plaintiff to an examination by Dr. 10 Noblett. [AR 230-34.] 11 that Plaintiff had mild degenerative disc disease most notable at the 12 L4-5 disc, level with moderate to severe left neural foraminal 13 narrowing, and that the test result was stable in comparison with a 14 similar study taken in May 2006. [AR 233-34.] 15 examination, initially noted that Plaintiff s symptoms have persisted 16 and remain present on a daily basis and quite aggravating. [AR 230.] 17 Dr. Noblett also noted that Plaintiff had been seen previously by an 18 orthopedic spine surgeon to discuss potential operative 19 interventions. [Id.; see AR 222-23 (examination by Dr. Gerald 20 Alexander on October 27, 2006).] 21 stated that the test showed, most notably, I believe, a left L4-5 22 intra and extraforaminal disc protrusion, in other words a far lateral 23 disc protrusion that is likely compromising the existing L4 nerve 24 root. [AR 231.] 25 Noblett gave the opinion that A record of the MRI indicated an impression Dr. Noblett, in his In reference to the MRI, Dr. Noblett As a recommendation to address the impairment, Dr. 26 Though much time has passed and it is less clear how successful 27 he would be, even with a surgical undertaking, I believe his 28 options are physical therapy which he has tried and failed, 7 1 epidural steroid injections which I would be unlikely to 2 recommend, not simply because of his diabetes but due to 3 suggesting that he will not heal or improve spontaneously and 4 finally the option of surgical resection of the disc through an 5 extraforaminal approach. 6 Notwithstanding the amount of time that has passed, I think the 7 odds are reasonably good that he would glean some benefit from a 8 decompression of that nerve root, though not necessarily be 9 cured. 10 [AR 231.] 11 Dr. Noblett further noted that Plaintiff is unable to perform 12 any form of manual or physical labor such as he performed at Ford, 13 and that Plaintiff was not currently considering surgical 14 intervention, but that I would be happy to discuss further with him 15 the option of a surgical discectomy. [AR 232.] 16 Based on the findings of Dr. Noblett s examination, Dr. Ford 17 wrote another letter in October 2007, stating, among other things, 18 that in her opinion, I do not believe Wesley is capable of working in 19 any field with any physical work of which he has been trained to do. 20 [AR 227.] 21 One month later, in November 2007, Dr. Noblett saw Plaintiff 22 again. [AR 228.] 23 doing quite a bit worse than our last visit in June 2007 and that 24 Plaintiff initially chose to be treated conservatively, but returns 25 today, doing quite a bit worse. [Id.] 26 Plaintiff ambulates only with difficulty and whether standing or 27 sitting, is leaning dramatically over toward the right side, I suspect 28 thereby decompression the impinged nerve root at the foraminal level. Dr. Noblett initially observed that Plaintiff was 8 Dr. Noblett also observed that 1 [Id.] 2 stated that, My suspicions are that a surgical decompression or 3 discectomy, whether from an intra or an extraforaminal approach would 4 lead to significant clinical benefits, but that will be up to the 5 patient to decide. [Id.] 6 he is able to return to any form of work, as prolonged sitting, 7 standing or movement tend to aggravate his symptoms. 8 hearing, held approximately three weeks later, Plaintiff testified 9 that he was still in discussions with Dr. Noblett about the 10 Dr. Noblett recommended that Plaintiff have another MRI and Dr. Noblett also stated that I do not feel [Id.] At the possibility of surgery. [AR 30.] The Administrative Finding 11 12 In the administrative decision issued on January 25, 2008, the 13 ALJ stated that the medical evidence indicated, with respect to 14 Plaintiff s treatment recommendations, that, Surgical intervention 15 has been discussed, but there is no indication that any physician was 16 proceeding in that direction. 17 modalities have been encouraged. [AR 13.] 18 Noblett s opinion in particular, the ALJ stated that both Dr. Ford and 19 Dr. Noblett s conclusion that Plaintiff was disabled was offered 20 within the context of workers compensation that the claimant cannot 21 return to his highly exertional job as a warehouse attendant. [AR 22 14.] 23 care, which is contraindicative of the severe, debilitating 24 conditions alleged by the claimant, or with the restrictions against 25 even sedentary work. [Id.] 26 apparently given no weight. 27 28 Instead, exhaustion of non-operative With respect to Dr. The ALJ also noted that Plaintiff has received conservative Accordingly, Dr. Noblett s opinion was Discussion Ninth Circuit cases distinguish among the opinions of three types 9 1 of physicians: those who treat the claimant (treating physicians), 2 those who examine but do not treat the claimant (examining or 3 consultative physicians), and those who neither examine nor treat the 4 claimant (non-examining physicians). 5 830. 6 he is employed to cure and has a greater opportunity to know and 7 observe the patient as an individual. 8 1226, 1230 (9th Cir. 1987). 9 however, is not necessarily conclusive as to either physical condition Lester v. Chater, 81 F.3d at The opinion of a treating physician is given deference because Sprague v. Bowen, 812 F.2d The opinion of the treating physician, 10 or the ultimate issue of disability. 11 747, 751 (9th Cir. 1989), Rodriguez v. Bowen, 876 F. 2d 759, 761-62 & 12 n.7 (9th Cir. 1989). 13 the uncontroverted opinions of the claimant s physicians on the 14 ultimate issue of disability, but he cannot reject them without 15 presenting clear and convincing reasons for doing so. 16 Chater, 157 F.3d at 725. (quoting Matthews v. Shalala, 10 F.3d 678, 17 780 (9th Cir. 1993)(quoting Montijo v. Secretary of Health & Human 18 Servs., 729 F.2d 599, 601 (9th Cir. 1984). 19 physician s opinion on disability is controverted, it can be rejected 20 only with specific and legitimate reasons supported by substantial 21 evidence in the record. 22 Benecke v. Barnhart, 379 F.3d 587, 591 & n.1 (9th Cir. 2004). 23 Magallanes v. Bowen, 881 F.2d The administrative law judge is not bound by Reddick v. Even if a treating Lester v. Chater, 81 F.3d at 830; see also In this case, the rejection of Dr. Noblett s opinion did not meet 24 this standard. The conclusions reached in the ALJ s decision that 25 there was no indication that any physician was proceeding in the 26 direction of surgical intervention and that Plaintiff s physicians had 27 chosen to give him only conservative treatment are clearly refuted by 28 the record. Dr. Noblett s opinion, the most recent medical opinion 10 1 evidence in the record, established that prior conservative treatment 2 options had been exhausted and unsuccessful, that it was Plaintiff s 3 choice to proceed conservatively, that Dr. Noblett believed such 4 treatment options were of doubtful future benefit, and that surgical 5 intervention would probably lead to a significant clinical benefit if 6 Plaintiff decided to pursue that option upon review of a new MRI. [AR 7 228, 230-32.] 8 Plaintiff was limited to conservative treatment because of a 9 perception that his impairment was not serious or that more aggressive The record does not support the interpretation that 10 treatment options such as surgery were not seriously considered. 11 Accordingly, specific and legitimate reasons based on substantial 12 evidence in the record were not provided to discount Dr. Noblett s 13 opinion, and reversal on the basis of this issue is required. 14 v. Chater, 81 F.3d at 830. Lester 15 E. REMAND FOR PAYMENT OF BENEFITS 16 The decision whether to remand for further proceedings is within 17 the discretion of the district court. 18 1175-1178 (9th Cir. 2000). 19 must be resolved before a determination can be made, and it is not 20 clear from the record that the ALJ would be required to find the 21 claimant disabled if all the evidence were properly evaluated, remand 22 is appropriate. 23 purpose would be served by further proceedings, or where the record 24 has been fully developed, it is appropriate to exercise this 25 discretion to direct an immediate award of benefits. 26 whether to remand for further proceedings turns upon their likely 27 utility). 28 Harman v. Apfel, 211 F.3d 1172, Where there are outstanding issues that Id., 211 F.3d at 1179. However, where no useful Id. (decision Here, as set out above, specific and legitimate reasons supported 11 1 by substantial evidence in the record were not provided to reject Dr. 2 Noblett s opinion; accordingly, it is credited as true. 3 Apfel, 211 F.3d at 1178; Lester v. Chater, 81 F.3d at 834. 4 Specifically, Dr. Noblett stated that from a functional standpoint, 5 Plaintiff is precluded from prolonged sitting, standing or movement. 6 [AR 228.] 7 vocational expert testified that a limitation to very short periods of 8 sitting, standing and walking would preclude Plaintiff from performing 9 his past relevant work or other work in the national economy. [AR 41- Harman v. During the administrative hearing of November 28, 2007, the 10 42.] Accordingly, the existing record mandates a finding of 11 disability. 12 award of benefits was directed when there was vocational expert 13 testimony that the limitations established by improperly discredited 14 medical evidence would render claimant unable to work). 15 circumstances, remand for payment of benefits is appropriate. 16 VI. See Harman v. Apfel, 211 F.3d at 1180 (citing cases where Under these ORDERS 17 Accordingly, IT IS ORDERED that: 18 1. The decision of the Commissioner is REVERSED. 19 2. This action is REMANDED to defendant for payment of 20 21 22 benefits. 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 23 24 25 26 DATED: November 17, 2009 ___________/S/___________________ CARLA M. WOEHRLE United States Magistrate Judge 27 28 12

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