Peggy Woods v. Michael J. Astrue, No. 2:2009cv01547 - Document 18 (C.D. Cal. 2010)
Court Description: MEMORANDUM AND OPINION; ORDER by Magistrate Judge Oswald Parada: IT IS HEREBYORDERED THAT Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings consistent with this Memorandum Opinion (am)
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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 PEGGY WOODS, ) Case No. CV 09-1547-OP ) Plaintiff, ) v. ) MEMORANDUM OPINION; ORDER ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ) The Court1 now rules as follows with respect to the disputed 17 18 19 20 21 22 issues listed in the Joint Stipulation ( JS ).2 /// /// /// /// 23 1 24 25 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See Dkt. Nos. 8, 9.) 2 As stated in the Court s Case Management Order, the decision in this case is being made on the basis of the pleadings, the Administrative Record, and the 27 Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal 28 Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 26 1 1 I. 2 DISPUTED ISSUE 3 As reflected in the Joint Stipulation, the sole disputed issue which Plaintiff 4 raises as the ground for reversal and/or remand is whether the Administrative Law 5 Judge ( ALJ ) properly determined that Plaintiff s alleged impairments did not 6 meet Listing 2.09. (JS at 4.) 7 II. 8 STANDARD OF REVIEW 9 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 10 to determine whether the Commissioner s findings are supported by substantial 11 evidence and whether the proper legal standards were applied. DeLorme v. 12 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 13 than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 14 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec y of 15 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 16 evidence is such relevant evidence as a reasonable mind might accept as adequate 17 to support a conclusion. Richardson, 402 U.S. at 401 (citation omitted). The 18 Court must review the record as a whole and consider adverse as well as 19 supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). 20 Where evidence is susceptible of more than one rational interpretation, the 21 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 22 1452 (9th Cir. 1984). 23 III. 24 DISCUSSION 25 A. The ALJ Committed Legal Error in Finding that Plaintiff s Condition 26 Did Not Meet or Equal Any Listing. 27 Plaintiff claims that the ALJ erred by failing to determine that her 28 impairments equaled a listing. (JS at 12.) The Court agrees with Plaintiff s 2 1 contention. 2 1. 3 At the third step of the sequential analysis, the ALJ must determine whether Applicable Law. 4 a claimant s impairment meets or equals an impairment listed in the Listing of 5 Impairments ( Listings ). See 20 C.F.R. Part 404, Subpt. P, App. 1; see also 6 Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 7 20 C.F.R. §§ 404.1520, 416.920); Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th 8 Cir. 1999). The Listings set forth certain impairments which are presumed to be 9 of sufficient severity to prevent the performance of work. See C.F.R. §§ 10 404.1525(a), 416.925(a). If a claimant has an impairment which meets or equals a 11 listed impairment, disability is presumed and benefits are awarded. See 20 C.F.R. 12 §§ 404.1520(d), 416.920(d); Barker v. Sec y of Health & Human Servs., 882 F.2d 13 1474, 1477 (9th Cir. 1989). An impairment meets a listed impairment if it is in 14 the Listings. See 20 C.F.R. §§ 404.1520(d), 416.920(d) 15 The claimant has the burden of proving disability, including disability based 16 on the Listing. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995); Vick v. 17 Comm r of Soc. Sec. Admin., 57 F. Supp. 2d 1077, 1087 (D. Or. 1999). The mere 18 diagnosis of a listed condition does not establish that a claimant meets the 19 Listings. Young v. Sullivan, 911 F.2d 180, 183-84 (9th Cir. 1990). For a 20 claimant to show that his impairment matches a listing, it must meet all of the 21 specified medical criteria. An impairment that manifests only some of those 22 criteria, no matter how severely, does not qualify. Sullivan v. Zebley, 493 U.S. 23 521, 530, 110 S. Ct. 885, 107 L. Ed. 2d 967 (1990); see also 20 C.F.R. § 24 404.1525(d). Thus, the ALJ must find that the claimant has an impairment which 25 corresponds to a listed impairment in diagnosis, severity, and duration. 26 2. 27 Listing 2.09 provides that a person meets the criteria for this section if the Listing 2.09. 28 medical evidence shows a: Loss of speech due to any cause, with inability to 3 1 produce by any means speech that can be heard, understood, or sustained. 20 2 C.F.R. Subpt. P, App.1, § 2.09. Social Security Ruling ( SSR ) 82-573 provides 3 an explanation regarding how loss of speech should be evaluated by the ALJ. SSR 4 82-57 states: 5 Ordinarily, when an individual s impairment prevents effective 6 speech, the loss of function is sufficiently severe so that an allowance 7 under Listing 2.09 is justified on the basis of medical considerations 8 alone, unless such a finding is rebutted by work activity. To speak 9 effectively, an individual must be able to produce speech that can be 10 heard, understood, and sustained well enough to permit useful 11 communication in social and vocational settings. These criteria are 12 applicable to the production of speech whether by natural function of the 13 voice mechanism or by the use of a prosthetic device. 14 Three attributes of speech pertinent to the evaluation of speech 15 proficiency are: (1) audibility -- the ability to speak at a level sufficient 16 to be heard; (2) intelligibility -- the ability to articulate and to link the 17 phonetic units of speech with sufficient accuracy to be understood; and 18 (3) functional efficiency -- the ability to produce and sustain a 19 serviceably fast rate of speech output over a useful period of time. 20 When at least one of those attributes is missing, overall speech function 21 is not considered effective. 22 When a refined assessment of speech proficiency is necessary, it 23 should be made by a licensed otolaryngologist or a speech therapist 24 whose evaluation should be based both on personally listening to the 25 claimant s speech and on a history of the claimant s performance of the 26 individual s speech capacity. 27 28 3 Social Security Rulings are binding on ALJs. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 4 1 SSR 82-57 (emphasis in original). 2 3. 3 Here, Plaintiff contends that her medically determinable impairment met Analysis. 4 Listing 2.09. (JS at 3-9, 14-19.) In support of her contention, Plaintiff relies upon 5 the opinions of a consultative otolaryngologist and a speech pathologist, coupled 6 with several instances in the record demonstrating her severe voice disorder. (Id.) 7 First, on December 18, 2006, consultative physician, Dr. James Montagano 8 evaluated Plaintiff with respect to her voice. (Administrative Record AR ) at 9 211-12.) Dr. Montagano observed her voice as halting and difficult to 10 understand; it was strikingly reminiscent of the voice seen in spastic dysphonia. 4 11 (Id. at 212.) Dr. Montagano opined: 12 Peggy Woods has dysphonia that she claims arose immediately as a 13 result of having been choked 24 years ago. There is no history or 14 physical evidence of laryngeal fracture or arytenoids displacement. Her 15 voice and exam strongly suggest adductor type spastic dysphonia. I 16 could find no reference on a search of textbooks for an association 17 between trauma and spastic dysphonia, as the condition is idiopathic5 18 and thought to be of central origin. There is no surgical treatment for 19 the condition, [and] some success has been found with Botox injections. 20 I believe that the patient should have a trial of speech therapy. 21 (Id.) 22 23 4 Dysphonia is defined as: any impairment of voice; a difficulty in speaking. Dorland s Illustrated Medical Dictionary ( DIMD ), 576 (30th ed. 25 2003). Spastic dysphonia is defined as: difficulty in speaking due to excessively 26 vigorous adduction, or rarely abduction, of the vocal cords against each other, so that the voice is hoarse, soft, and strained. Id. at 577. 27 5 Idiopathic is defined as: of unknown cause or spontaneous origin. 28 DIDM at 905. 24 5 1 Additionally, on December 21, 2006, Barbara Vasser, M.S., a licensed 2 speech pathologist, completed a speech and language evaluation of Plaintiff. (Id. 3 at 208-10.) Ms. Vasser observed Plaintiff s voice as soft, almost inaudible, and 4 she spoke with pitch breaks and raspy sound production. (Id. at 209.) Ms. 5 Vasser also indicated that Plaintiff s [i]ntelligibility is compromised by limited 6 sound production. (Id. at 210.) Ms. Vasser concluded that Plaintiff presents 7 with a severe voice disorder, and should seek a more thorough evaluation from an 8 otolaryngologist. (Id.) 9 Finally, Plaintiff points to several instances during the hearing where her 10 voice was so low or inaudible that the ALJ had to ask for clarification from 11 Plaintiff s attorney, or ask Plaintiff to repeat her statements. (Id. at 221, 224-29, 12 231-32, 237, 239, 240-41.) Notably, Plaintiff s testimony was inaudible several 13 times during the hearing, despite speaking directly into the microphone.6 (Id.) 14 In his decision, the ALJ found Plaintiff to have, inter alia, the severe 15 impairment of a voice disorder of uncertain etiology. (Id. at 23.) The ALJ then 16 found that Plaintiff s voice impairment did not meet or medically equal a listed 17 impairment, including impairments related to speech. (Id. at 23-24.) The ALJ 18 assessed Plaintiff s residual functional capacity ( RFC ) related to speech as 19 follows: The claimant s speech can be understood only when the person spoken 20 to faces the claimant and listens carefully. (Id. at 24.) Thereafter, the ALJ 21 22 6 23 24 25 26 27 28 Defendant argues that the microphone was only used for recording purposes at the hearing. (JS at 12.) The record is inconclusive as to whether the microphone solely records a claimant s testimony, or whether it both records a claimant s testimony and amplifies it. (AR at 223.) While moving closer to the microphone would not make Plaintiff s voice louder, it is unclear whether speaking into the microphone at the original distance served solely for recording purposes or for both recording and amplification purposes. Regardless, the record clearly indicates portions of Plaintiff s testimony as inaudible. (Id. at 221, 22429, 231-32, 237, 239, 240-41.) 6 1 expanded upon Plaintiff s voice disorder as follows: 2 [T]he record indicates that the claimant suffers from an impairment of 3 the voice that limits her to soft speech. Speech pathology evaluation has 4 revealed the claimant has a raspy voice, but has normal articulation. 5 Board-certified otolaryngologist James Montagano, M.D., examined the 6 claimant in December 2006. Dr. Montagano could not ascertain the 7 etiology of the claimant s voice disorder, but indicated that there was no 8 evidence of a laryngeal fracture. He indicated that the claimant s 9 presentation was consistent with adductor type spastic dysphonia, which 10 [is] a condition of central origin. He indicated that there was no 11 surgical treatment available for such a condition, but indicated that some 12 patients had achieved improvements with laryngeal Botox injections. 13 In any event, although it is clear that the claimant has impairment of her 14 voice, her voice is intelligible upon careful listening as described in the 15 residual functional capacity. 16 (Id. at 26 (citations omitted).) 17 The Court finds that the ALJ committed legal error by improperly 18 determining that Plaintiff failed to meet Listing 2.09. In the decision, the ALJ 19 failed to properly analyze Plaintiff s voice impairment as to audibility, 20 intelligibility, and functional efficiency. The ALJ then inserted boilerplate 21 language that Plaintiff s voice impairment did not meet a listing. (Id. at 23-24); 22 see also id. at 82-57. Moreover, the ALJ appears to have rejected the opinions of 23 the Dr. Montagano and Ms. Wasser based upon the testimony of the vocational 24 expert ( VE ), who is neither an otolaryngologist nor a speech pathologist.7 (AR 25 at 26, 239); see also id. at 82-57. While Plaintiff does not raise this issue, the 26 27 7 At the hearing, the VE testified that Plaintiff could be understood by 28 another person, if that person listened carefully and faced toward Plaintiff. (AR at 239.) 7 1 Court is unconvinced that the ALJ properly rejected or discounted the opinions of 2 Dr. Montagano and Ms. Wasser. The ALJ also failed to reconcile Plaintiff s RFC 3 related to her voice impairments with the evidence of Plaintiff s voice disorder and 4 speech difficulty, as indicated by the several instances at the hearing where the 5 ALJ sought clarification of Plaintiff s inaudible testimony, or the opinions in the 6 record demonstrating Plaintiff s severe voice disorder. Finally, to the extent that 7 the ALJ determined that Listing 2.09 was not met as it required an absolute 8 inability to produce speech, this is also error. Listing 2.09 may be met by 9 individuals who have difficulties with speech communication, including an 10 inability to sustain effective speech. See Hajar v. Astrue, 2009 WL 3170097, at 11 *5 (C.D. Cal. Sept. 30, 2009); see also Meraz v. Barnhart, 300 F.Supp.2d 935, 941 12 (C.D. Cal. 2004); SSR 82-57. 13 Based on the foregoing, remand is warranted on the issue of whether 14 Plaintiff meets Listing 2.09. On remand, the ALJ will have the opportunity to 15 address this issue again and consider these issues in determining the merits of 16 Plaintiff s case.8 17 B. This Case Should Be Remanded for Further Administrative 18 Proceedings. 19 The law is well established that remand for further proceedings is 20 appropriate where additional proceedings could remedy defects in the 21 Commissioner s decision. Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). 22 Remand for payment of benefits is appropriate where no useful purpose would be 23 24 25 26 27 28 8 Defendant relies on Beauvoir v. Chater, 104 F.3d 1432, 1434 (2nd Cir. 1997) for the proposition that the ALJ may consider hearing testimony to determine whether Listing 2.09 is met. (JS at 10.) While the ALJ may certainly consider the hearing testimony, the Court is unconvinced by the many inaudible instances in the hearing transcript that Plaintiff s voice was intelligible upon careful listening. (AR at 26.) On remand, the ALJ should address this issue again, and, if required, develop the record further as to Plaintiff s voice disorder. 8 1 served by further administrative proceedings, Kornock v. Harris, 648 F.2d 525, 2 527 (9th Cir. 1980); where the record has been fully developed, Hoffman v. 3 Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would 4 unnecessarily delay the receipt of benefits. Bilby v. Schweiker, 762 F.2d 716, 719 5 (9th Cir. 1985). Here, the Court concludes that further administrative proceedings 6 would serve a useful purpose and remedy the administrative defects discussed 7 herein. 8 IV. 9 ORDER 10 Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS HEREBY 11 ORDERED THAT Judgment be entered reversing the decision of the 12 Commissioner of Social Security and remanding this matter for further 13 administrative proceedings consistent with this Memorandum Opinion. 14 15 Dated: January 5, 2010 16 ______________________________ HONORABLE OSWALD PARADA United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 9
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