Deborah Prieto v. Michael J Astrue, No. 2:2007cv06467 - Document 18 (C.D. Cal. 2008)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephen J. Hillman the decision of the Commissioner is reversed, and thematter is remanded for further proceedings in accordance with the decision, pursuant toSentence 4 of 42 U.S.C. § 405(g). (sbu)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION 10 11 12 13 14 DEBORAH PRIETO, Plaintiff, v. MICHAEL J. ASTRUE, 15 Commissioner of Social Security, 16 17 18 19 20 21 22 23 24 Defendant. ) ) ) ) ) ) ) ) ) ) ) No. CV 07-6467 (SH) MEMORANDUM OPINION AND ORDER This matter is before the Court for review of the decision by the Commissioner of Social Security denying plaintiff s application for Supplemental Security Income under Title XVI of the Social Security Act. Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C. § 405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The plaintiff and the defendant have 25 filed their pleadings, the defendant has filed the certified transcript of record, and the 26 parties have filed a joint stipulation. After reviewing the matter, the Court concludes that 27 the decision of the Commissioner should be reversed and remanded. 28 On March 25, 2003, plaintiff Deborah Prieto filed an application for Supplemental Security Income alleging an inability to work since January 1, 2001, due to arthritis 1 1 (including arthritis in the shoulders), hepatitis-C, obesity and depression. (Administrative 2 Record [ AR ] 44-58). On July 7, 2005, an Administrative Law Judge ( ALJ ) 3 4 5 6 7 8 determined that plaintiff was not disabled within the meaning of the Social Security Act. (AR 12-18). Following the Appeal Council s denial of plaintiff s request for a review of the hearing decision (AR 4), plaintiff filed a Complaint challenging the ALJ s decision. On September 19, 2006, pursuant to the parties stipulation for a voluntary remand, the Court 9 ordered that the matter be remanded to the ALJ, with directions to address plaintiff s 10 obesity as a factor of disability under Social Security Ruling 02-01p. 11 On August 9, 2007, the ALJ (on remand) determined that plaintiff was not disabled 12 within the meaning of the Social Security Act. (AR 462-69). 13 Plaintiff makes three challenges to the ALJ s determination. Plaintiff alleges that 14 the ALJ erred (1) in failing to adequately consider whether plaintiff s impairments met or 15 equaled a Listing; (2) in failing to provide specific and legitimate reasons to reject the 16 opinion of plaintiff s treating physician; and (3) in failing to provide clear and convincing 17 reasons to reject plaintiff s subjective pain limitations. 18 For the reasons discussed below, the Court finds that plaintiff s first claim of error 19 does have merit. Since the matter is remanded based on plaintiff s first claim of error, the 20 Court will not address plaintiff s second and thirds claims of error. 21 22 23 24 ISSUE NO. 1: Plaintiff asserts that the ALJ failed to adequately consider whether plaintiff s 25 impairments (i.e., left shoulder, left foot, cervical spine, obesity, hepatitis C) met or 26 equaled Listings 1.08, 1.07, or 1.04, or a combination of them. Defendant argues that the 27 ALJ properly assessed that plaintiff s impairments did not meet or equal those Listings, 28 either singly or in combination. 2 1 If a plaintiff suffers a severe impairment, the ALJ is required to decide whether the 2 impairment meets or equals one of the listed impairments. See 20 C.F.R. §§ 404.1520(d), 3 416.920(d); Young v. Sullivan, 911 F.2d 180, 181 (9th Cir. 1990); Marcia v. Sullivan, 4 900 F.2d 172, 174 (9th Cir. 1990). Disability is presumed if a plaintiff's impairment or 5 combination of impairments meets or is medically equivalent to one of the listed 6 impairments. 20 C.F.R. §§ 404.1520(d), 416.920(d); Bowen v. Yuckert, 482 U.S. 137, 7 141-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); Barker v. Secretary of Health & Human 8 9 Servs., 882 F.2d 1474, 1477 (9th Cir. 1989). An impairment meets a listed impairment if 10 a plaintiff has a medically determinable impairment(s) that satisfies all of the criteria of 11 the listing. 20 C.F.R. §§ 404.1525(d), 416.925(d); see also Sullivan v. Zebley, 493 U.S. 12 521, 531, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990). The criteria of a listed impairment 13 cannot be met solely based on a diagnosis. 20 C.F.R. §§ 404.1525(d), 416.925(d); see 14 also Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 1985). An impairment is 15 medically equivalent to a listed impairment . . . if it is at least equal in severity and 16 duration to the criteria of any listed impairment. 20 C.F.R. § 404.1526(a), 416.926(a). 17 If an impairment is not described in the listed impairments, or if the combination of 18 impairments does not meet one of the listed impairments, the determination of medical 19 equivalence is based on a comparison of findings (concerning a plaintiff) with those for 20 closely analogous listed impairments. 20 C.F.R. §§ 404.1526(b), 416.926(b). The 21 decision is based on all evidence in [a plaintiff s] record about [his or her] impairment(s) 22 and its effect on [a plaintiff] that is relevant to this finding and on designated medical or 23 24 psychological consultants. 20 C.F.R. §§ 404.1526(c), 416.926(c). 25 Listing 1.08 requires [s]oft tissue injury (e.g., burns) of an upper or lower 26 extremity, trunk, or face and head, under continuing surgical management, as defined in 27 1.00M, directed toward the salvage or restoration of major function, and such major 28 function was not restored within 12 months of onset. 20 C.F.R. § 404, Subpart P, Appendix 1, Listing of Impairments 1.08. 3 1 Listing 1.07 requires [f]racture of an upper extremity with non-union of a fracture 2 of the shaft of the humerus, radius, or ulna, under continuing surgical management, as 3 defined in 1.00M, directed toward restoration of functional use of the extremity, and such 4 function was not restored or expected to be restored within 12 months of onset. 5 The phrase under continuing surgical management is defined as follows: 6 Under continuing surgical management, as used in 1.07 and 1.08, refers to 7 surgical procedures and any other associated treatments related to the efforts 8 directed toward the salvage or restoration of functional use of the affected part. It 9 10 may include such factors as post-surgical procedures, surgical complications, 11 infections, or other medical complications, related illnesses, or related treatments 12 that delay the individual s attainment of maximum benefit from therapy. 20 13 C.F.R. § 404, Subpart P, Appendix 1, Listing of Impairments 1.00M. 14 15 Listing 1.04 requires [d]isorders of the spine (e.g., herniated nucleus pulposus, 16 spinal arachnoditis, spinal stenosis, oseoarthritis, degenerative disc disease, facet 17 arthristis, verterbral fracture), resulting in compromis of a nervice root (including the 18 cauda equina) or the spinal cord. 20 C.F.R. § 404, Subpart P, Appendix 1, Listing of 19 Impairments 1.04. Listing 1.04 further requires one of the following: Evidence of nerve 20 root compression characterized by neuro-anatomic distribution of pain, limitation of 21 motion of the spine, motor loss (atrophy with associated muscle weakness or muscle 22 weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower 23 24 back, positive straight-leg raising test (sitting and supine) ; Spinal arachnoiditis, 25 confirmed by an operative note or pathology report of tissue biopsy, or by appropriate 26 medically acceptable imaging, manifested by severe burning or painful dysesthesia, 27 resulting in the need for changes in position or posture more than once every 2 hours ; or 28 Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on 4 1 appropriate medically acceptable imaging, manifested by chronic nonradicular pain and 2 weakness, and resulting in inability to ambulate effectively as defined in 1.00B2b. 1 Id. 3 4 5 6 7 8 At the hearing before the ALJ, the plaintiff asserted that she had left shoulder, left foot and cervical spine impairments that individually, and in combination with obesity, met or equaled one of the listed impairments. (See AR 683-84). The ALJ implicitly found that the left shoulder, left foot and cervical spine impairments were not severe. (See AR 468 [the ALJ found that petitioner had the following severe impairments -- 9 hepatitis C, chirrhosis of the liver, obesity and depressive disorder]). However, the medical records establish that plaintiff had left shoulder and back 10 11 impairments for a significant period (see AR 191, 204-05, 23-39 [in November 2002 12 through January 2003, plaintiff complained of back and shoulder pain, and January 23, 13 2003 X-rays showed narrowing of disk spaces, particularly at C5-C6], 240-42 [a January 14 25, 2003 MRI of the cervical spine showed left lateral disc protrusion at C5-6 15 associated with mass effect on the cervical cord with moderate to sever spinal canal 16 stenosis and appears to significantly narrow the left neural foramen and may impinge on 17 the nerve root and mild bulging disc with posterior osteophyte at C4-5 with mild spinal 18 canal stenosis ; a January 25, 2003 of the left shoulder showed partial articular surface 19 tears of the supraspinatus and infraspinatus tendons distally and a 3 mm subacromial 20 spur with mild hypertrophic changes in the acrominclavicular joint ], 232, 301-02, 30521 10 [plaintiff continued to suffer left shoulder and back pain, and was referred to an 22 orthopedic physician on April 18, 2003], 299-300, 303-04 [while waiting for 23 24 authorization to see an orthopedic physician, plaintiff continued to suffer left shoulder 25 and back pain); 316-17, 378 -80 [on April 26, 2004, a treating orthopedic physician 26 diagnosed plaintiff with tendinitis of the left shoulder with partial tear with 27 1 Inability to ambulate effectively is defined as an extreme limitation of the 28 ability to walk; i.e., an impairment(s) that interferes very seriously with the individual s ability to independently initiate, sustain, or complete activities. 20 C.F.R. § 404, Subpart P, Appendix 1, Listing of Impairments 1.00B2b(1). 5 1 impingement and cervical spine C5-C6 stenosis due to disc protrusion, and 2 recommended arthroscopic surgery for subacromial depression. ); 337-38, 377 [in July 3 4 5 6 7 8 and August 2004, the treating orthopedic physician noted that plaintiff had tenderness and decreased range of motion in the left shoulder]; 371 [on August 17, 2004, plaintiff had surgery on her left shoulder], 398-99 [in December 2005, plaintiff still was suffering left shoulder and back pains]. The medical records also establish that plaintiff had a left foot impairment for a significant period (see AR 497, 667 [on December 15, 2005, 9 plaintiff suffered heel pain, which was diagnosed to be caused by plantar fasciitis], 64010 41, 666-67 [on February 22, 2007, plaintiff had left foot plantar fasciitis surgery], 654, 11 665-66 [as of June 2007, plaintiff continued to suffer pain in her left foot]. Therefore, it 12 appears that plaintiff met her burden of showing that her left shoulder, cervical spine and 13 left foot impairments, singly or in combination with her obesity, were severe. See 20 14 C.F.R. § 416.920(c) (An impairment or a combination of impairments is severe if it 15 significantly limits a plaintiff s physical or mental ability to perform basic work 16 activities); 20 C.F.R. § 416.921(b) (stating that basic work activities relate to the abilities 17 and aptitudes necessary to perform most jobs, such as the ability to perform physical 18 functions, the capacity for seeing, hearing and speaking, and the ability to use judgment, 19 respond to supervisors, and deal with changes in the work setting); Bowen v. Yuckert, 20 supra, 482 U.S. at 146 (The severe impairment requirement is a threshold element which 21 plaintiff must prove in order to establish disability under the Act); Smolen v. Chater, 80 22 F.3d 1273, (An impairment or a combination of impairments is considered nonsevere 23 24 only when the medical evidence establishes only a slight abnormality that has no more 25 than a minimal effect on an individual s ability to work. ). 26 27 28 In his decision, the ALJ incorporated by reference medical records discussing plaintiff s left shoulder and cervical spine issues (as reported in the ALJ s July 7, 2005 6 1 decision, AR 13-14), and cited additional medical records discussing plaintiff s left 2 shoulder, left foot, lumbar spine, obesity and hepatitis C issues. (See AR 464-65). The 3 4 5 6 7 8 ALJ concluded that [t]he objective medical evidence shows that [plaintiff] does not have an impairment or combination of impairments that meet the level of severity required by the Listing of Impairments in Appendix 1, Subpart P, Regulations No. 4. (AR 463). Although the ALJ discussed in general terms the combined effects of plaintiff s impairments with obesity (see AR 465), the ALJ did not consider plaintiff s left shoulder, 9 left foot and cervical spine impairments in combination with her obesity. It does not 10 appear that the ALJ considered whether plaintiff s impairments or combination of 11 impairments met or equaled Listings 1.08, 1.07 or 1.04. Indeed, the ALJ did not cite any 12 specific Listings. Therefore, the ALJ erred in failing to determine whether plaintiff s 13 impairments, either singly or in combination, met or equaled those Listings. 14 15 16 17 18 19 20 ORDER For the foregoing reasons, the decision of the Commissioner is reversed, and the matter is remanded for further proceedings in accordance with the decision, pursuant to Sentence 4 of 42 U.S.C. § 405(g). DATED: November 25, 2008 21 22 23 STEPHEN J. HILLMAN UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 7
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