Leticia Torres v. Nancy A. Berryhill, No. 2:2019cv04629 - Document 22 (C.D. Cal. 2020)
Court Description: MEMORANDUM DECISION AND ORDER REVERSING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. (See document for details.) (es)
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Leticia Torres v. Nancy A. Berryhill Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LETICIA T.,1 Plaintiff, 12 13 v. 14 ANDREW SAUL, Commissioner of Social Security,2 15 Defendant. ) Case No. CV 19-4629-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) REVERSING COMMISSIONER ) ) ) ) ) 16 17 18 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 19 denying her applications for disability insurance benefits 20 (“DIB”) and Social Security supplemental security income benefits 21 (“SSI”). 22 undersigned under 28 U.S.C. § 636(c). 23 Court on the parties’ Joint Stipulation, filed March 10, 2020, The parties consented to the jurisdiction of the The matter is before the 24 1 25 26 Plaintiff’s name is partially redacted in line with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 27 2 28 Andrew Saul is substituted in as the correct Defendant. See Fed. R. Civ. P. 25(d). 1 Dockets.Justia.com 1 which the Court has taken under submission without oral argument. 2 For the reasons discussed below, the Commissioner’s decision is 3 reversed and this matter is remanded for further proceedings. 4 II. BACKGROUND Plaintiff was born in 1968. 5 (Administrative Record (“AR”) 6 285.) She attended school in Mexico through third grade. 7 70.)3 She worked as an assembler for an electronics company, a 8 sewing-machine operator, a hand packager, and most recently a 9 housekeeper. (AR 322, 341.) (AR On March 9, 2015, she applied for 10 benefits, alleging that she had been unable to work since March 11 15, 2009, because of “swelling,” “[n]umbness,” “[p]ain,” 12 “[t]ingling,” and “[w]eakness” of the feet; fatigue; “[p]ain,” 13 “[s]welling,” “tingling,” and “[a]rthritis” of the knees; pain of 14 the “[s]houlders and [c]ollar”; pain and “numbness” of the hips; 15 and “[m]ental[] depress[ion]” from weight gain caused by 16 “[p]hysical [i]nactivity.” 17 applications were denied (AR 148-55, 159-64, 166-71), she 18 requested a hearing before an Administrative Law Judge (AR 173). 19 She appeared before the ALJ on July 20, 2017, but the hearing was 20 continued so that she could obtain counsel. 21 hearing was held on January 2, 2018, at which Plaintiff, 22 represented by counsel, testified, as did a vocational expert. 23 (AR 65-87.) 24 determined that Plaintiff was not disabled. 25 March 22, 2019, the Appeals Council denied her request for (AR 321; see AR 285.) After her (AR 46-64.) A In a written decision issued March 14, 2018, the ALJ (AR 27-38.) On 26 27 28 3 Plaintiff’s Disability Report states that she completed eighth grade (AR 322), but she testified at a hearing that she went through third grade in Mexico (AR 70). 2 1 review. (AR 1-8.) This action followed. 2 III. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 3 4 Commissioner’s decision to deny benefits. The ALJ’s findings and 5 decision should be upheld if they are free of legal error and 6 supported by substantial evidence based on the record as a whole. 7 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 8 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 9 means such evidence as a reasonable person might accept as Substantial evidence 10 adequate to support a conclusion. Richardson, 402 U.S. at 401; 11 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 12 is “more than a mere scintilla, but less than a preponderance.” 13 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 14 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 15 meaning of ‘substantial’ in other contexts, the threshold for 16 such evidentiary sufficiency is not high.” 17 139 S. Ct. 1148, 1154 (2019). 18 evidence supports a finding, the reviewing court “must review the 19 administrative record as a whole, weighing both the evidence that 20 supports and the evidence that detracts from the Commissioner’s 21 conclusion.” 22 1998). 23 or reversing,” the reviewing court “may not substitute its 24 judgment” for the Commissioner’s. 25 IV. It “[W]hatever the Biestek v. Berryhill, To determine whether substantial Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. “If the evidence can reasonably support either affirming Id. at 720-21. THE EVALUATION OF DISABILITY 26 People are “disabled” for purposes of receiving Social 27 Security benefits if they are unable to engage in any substantial 28 gainful activity owing to a physical or mental impairment that is 3 1 expected to result in death or has lasted, or is expected to 2 last, for a continuous period of at least 12 months. 3 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 4 1992). 42 U.S.C. 5 A. The Five-Step Evaluation Process 6 An ALJ follows a five-step sequential evaluation process to 7 assess whether someone is disabled. 20 C.F.R. §§ 404.1520(a)(4), 8 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 9 1995) (as amended Apr. 9, 1996). In the first step, the 10 Commissioner must determine whether the claimant is currently 11 engaged in substantial gainful activity; if so, the claimant is 12 not disabled and the claim must be denied. 13 416.920(a)(4)(i). §§ 404.1520(a)(4)(i), 14 If the claimant is not engaged in substantial gainful 15 activity, the second step requires the Commissioner to determine 16 whether the claimant has a “severe” impairment or combination of 17 impairments significantly limiting her ability to do basic work 18 activities; if not, a finding of not disabled is made and the 19 claim must be denied. 20 416.920(a)(4)(ii) & (c). 21 §§ 404.1520(a)(4)(ii) & (c), If the claimant has a “severe” impairment or combination of 22 impairments, the third step requires the Commissioner to 23 determine whether the impairment or combination of impairments 24 meets or equals an impairment in the Listing of Impairments 25 (“Listing”) set forth at 20 C.F.R., part 404, subpart P, appendix 26 1; if so, disability is conclusively presumed and benefits are 27 awarded. §§ 404.1520(a)(4)(iii) & (d), 416.920(a)(4)(iii) & (d). 28 4 1 If the claimant’s impairment or combination of impairments 2 does not meet or equal one in the Listing, the fourth step 3 requires the Commissioner to determine whether the claimant has 4 sufficient residual functional capacity (“RFC”)4 to perform her 5 past work; if so, she is not disabled and the claim must be 6 denied. 7 has the burden of proving she is unable to perform past relevant 8 work. 9 burden, a prima facie case of disability is established. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Drouin, 966 F.2d at 1257. The claimant If the claimant meets that Id. If that happens or if the claimant has no past relevant 10 11 work, the Commissioner bears the burden of establishing that the 12 claimant is not disabled because she can perform other 13 substantial gainful work available in the national economy, the 14 fifth and final step of the sequential analysis. 15 §§ 404.1520(a)(4)(v), 404.1560(b), 416.920(a)(4)(v), 416.960(b). 16 B. The ALJ’s Application of the Five-Step Process 17 At step one, the ALJ found that Plaintiff had not engaged in 18 substantial gainful activity since March 15, 2009, the alleged 19 onset date. 20 2015. 21 severe impairments of “osteoarthritis of the joints,” 22 “degenerative disc disease of the lumbar spine,” “degenerative 23 disc disease of the cervical spine,” and “obesity.” (Id.) (AR 30.) Her date last insured was December 31, At step two, she determined that Plaintiff had (Id.) She 24 25 26 27 28 4 RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545(a)(1), 416.945(a)(1); see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 5 1 concluded that Plaintiff’s plantar fasciitis was not severe 2 because it did “not cause a significant limitation in [her] 3 ability to perform basic work activities.” (Id.) At step three, she found that Plaintiff’s impairments did 4 5 not meet or equal any of the impairments in the Listing. (AR 6 32.) 7 perform medium work except that she could “frequently climb 8 ladders, ropes, and scaffolds, and balance and stoop,” 9 “occasionally climb ramps and stairs, and kneel, crouch, and At step four, she determined that Plaintiff had the RFC to 10 crawl,” and “frequently perform bilateral overhead reaching.” 11 (AR 33-34.) 12 past relevant work as a hand packager and housekeeper. 13 38.) 14 V. 15 The ALJ found Plaintiff capable of performing her Accordingly, she found her not disabled. (AR 37- (AR 38.) DISCUSSION5 Plaintiff alleges that the ALJ erred in determining her 16 severe impairments, evaluating the opinion evidence, and 17 assessing her symptom statements. 18 30-35, 38-39.) 19 respects, the matter must be remanded for further analysis and 20 findings. (See J. Stip. at 3-12, 16-28, Because the ALJ erred in the first and second 21 22 23 24 25 26 27 28 5 In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme Court held that ALJs of the Securities and Exchange Commission are “Officers of the United States” and thus subject to the Appointments Clause. To the extent Lucia applies to Social Security ALJs, Plaintiff has forfeited the issue by failing to raise it during her administrative proceedings. (See AR 10, 4687, 158, 279-80); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended); see also Kabani & Co. v. SEC, 733 F. App’x 918, 919 (9th Cir. 2018) (rejecting Lucia challenge because plaintiff did not raise it during administrative proceedings), cert. denied, 139 S. Ct. 2013 (2019). 6 1 A. The ALJ Erred in Assessing Plaintiff’s Alleged Foot 2 Impairment 3 1. a. 4 5 Dr. Mooney Applicable law “Acceptable medical sources” under the Social Security 6 regulations include only licensed physicians, psychologists, 7 optometrists, podiatrists, and speech pathologists. 8 §§ 404.1513(a), 416.913(a).6 9 sources,” see §§ 404.1513(d)(1), 416.913(d)(1); see also SSR 06- Chiropractors are treated as “other 10 03p, 2006 WL 2329939, at *1 (Aug. 9, 2006), and an ALJ may reject 11 opinions from an “other source” only by giving “reasons germane 12 to each witness for doing so.” 13 906 (9th Cir. 2017) (as amended) (quoting Molina v. Astrue, 674 14 F.3d 1104, 1111 (9th Cir. 2012)). 15 opinion from an “other source” without providing a germane 16 reason, that error is harmless if the Court can “conclude from 17 the record that the ALJ would have reached the same result absent 18 the error.” 19 1170, 1173 (9th Cir. 2015). If an ALJ errs by rejecting an Molina, 674 F.3d at 1115; Marsh v. Colvin, 792 F.3d b. 20 Popa v. Berryhill, 872 F.3d 901, Relevant background 21 Plaintiff apparently suffered cumulative work-related 22 impairment between May 2008 and March 2009, when she worked as a 23 housekeeper at a hotel. 24 chiropractor, evaluated and treated her as part of her worker’s- (AR 341-42, 568.) Dr. Andrew Mooney, a 25 26 27 28 6 For claims filed on or after March 27, 2017, the rules in §§ 404.1502 and 416.902 (not §§ 404.1513 and 416.913) apply. Plaintiff’s claims were filed before March 27, 2017, however, and thus the new regulations do not apply. 7 1 compensation claim. 2 completed a “Primary Treating Physician’s Re-Evaluation Report 3 and Request For Authorization.” 4 Plaintiff’s shoulders, elbows, wrists, thoracic spine, lumbar 5 spine, hips, knees, ankles, and feet. 6 that she walked with a “slow, guarded gate [sic] pattern without 7 a limp” and that she was “unable to heel-toe walk or perform a 8 full squat due to a complaint of lumbar spine and bilateral foot 9 pain.” (AR 776.) (AR 773-831.) On July 7, 2016, Dr. Mooney (AR 773-800.) He examined (AR 774-79.) He noted The “Straight Leg Raise Supine” test,7 10 “Standing Kemp’s Test,”8 and “Patrick-Fabere’s Test”9 were 11 positive on both sides. 12 left hallux valgus10 and palpable tenderness of the bilateral 13 calcaneus and plantar fascia. 14 MRIs of her lumbar spine, cervical spine, and feet as well as a (Id.) The ankle examination revealed a (AR 778.) Dr. Mooney reviewed 15 7 16 17 18 19 20 21 22 23 24 25 26 27 28 A straight-leg-raise test involves mechanical manipulation of the legs, stressing the neurological tissues in the spine; specific symptoms reported at different degrees of flexion can indicate nerve compression. See The Pain Clinic Manual 44-45 (Stephen E. Abram & J. David Haddox eds., 2d ed. 2000). 8 The Kemp test assesses the lumbar-spine facet joints to detect pain. See Kemp test, Physiopedia, https:// www.physio-pedia.com/KEMP_test (last visited Aug. 25, 2020). 9 The Patrick, or Fabere, test measures pain or dysfunction in the hip and sacroiliac joints. Patrick Test, The Free Dictionary, http://medical-dictionary.thefreedictionary.com/ Patrick+test (last visited Aug. 25, 2020). 10 Hallux valgus is a condition in which the big toe is bent toward the midline of the foot so that it overlaps the second toe. See Medical Definition of Hallux Valgus, MedicineNet, https://www.medicinenet.com/script/main/art.asp?articlekey=6406 (last visited Aug. 25, 2020). It may be accompanied by a bunion and is frequently associated with inflammation. Id. It can be related to inflammation of the nearby bursa or degenerative joint disease. Id. 8 1 study of her upper limbs. (AR 779.) He also reviewed records 2 from the agreed medical examiners, a gasteroenterologist, and 3 Plaintiff’s treating podiatrist, Dr. Victoria Foley. 4 90.) 5 diagnostic studies and records, Dr. Mooney found “[c]ervical 6 [s]pine [s]train/[s]prain with [m]yalgia” and “[d]isc 7 [d]isplacement”; “[l]eft [u]lnar [n]europathy”; bilateral carpal 8 tunnel syndrome; “[l]umbar [s]pine [s]train/[s]prain with 9 [m]yalgia,” “[d]isc [d]isplacement,” and “[r]adiculitis”; (AR 780- Based on his physical examination and review of her 10 bilateral plantar fasciitis; “[r]ule [o]ut” “[c]alcaneal [s]pur” 11 on both feet; “[l]eft [h]allux [v]algus”; and “reported” 12 depression and anxiety, sleep disturbance, gastritis, and 13 “[s]exual [d]ysfunction.” 14 temporarily totally disabled (“TTD”) from July 7 through August 15 21, 2016, and had not “reached [m]axim[um m]edical [i]mprovement” 16 (“MMI”). 17 noting the same diagnoses as those in his July report. 18 He opined that she had not reached MMI and that she was TTD from 19 August 11 through September 25, 2016. (AR 792.) 20 21 c. (AR 790.) He opined that she was He examined her again on August 11, 2016, (AR 821.) (AR 823.) Analysis The ALJ summarized some of Plaintiff’s treatment records and 22 the opinion of internist Dr. Seung Ha Lim, the consultative 23 examiner. 24 restricted to (AR 34-35.) Dr. Lim opined that Plaintiff was 25 standing and/or walking about 6 hours in an eight-hour 26 workday with appropriate breaks. [She can] sit for 6 27 hours in an eight-hour day with appropriate breaks. [She 28 can] lift and/or carry 50 pounds occasionally and 25 9 1 pounds frequently. Pushing, pulling, and overhead 2 reaching is unlimited other than as shown for lifting 3 and/or carrying. 4 physical limitations. [She] has no other impairment related 5 (AR 726.) 6 finding that it was “consistent with the record as a whole.” 7 34.) 8 9 The ALJ gave “great weight” to Dr. Lim’s opinion, (AR To reject Dr. Mooney’s opinion, the ALJ had to give only a germane reason; she failed to do so because she failed to address 10 the opinion at all. 11 source. 12 03p, 2006 WL 2329939, at *2. 13 however, to reject his opinion. 14 App’x 800, 802 (9th Cir. 2016) (finding that ALJ failed to 15 provide germane reason for rejecting opinion of claimant’s nurse 16 and counselor because “[t]he only reason that the ALJ offered for 17 rejecting their opinions is that they are not ‘acceptable medical 18 sources’ within the meaning of the federal regulation”). 19 A chiropractor is not an acceptable medical See §§ 404.1513(d)(1), 416.913(d)(1); see also SSR 06That is not a sufficient reason, See Haagenson v. Colvin, 656 F. And although inconsistency with other objective evidence can 20 be a germane reason to reject other-source evidence, see Molina, 21 674 F.3d at 1111–12, and Dr. Lim’s opinion was generally at odds 22 with Dr. Mooney’s assessment, the ALJ did not cite that 23 inconsistency as a reason for ignoring or rejecting Dr. Mooney’s 24 opinion. 25 inconsistencies between the two doctors’ opinions or between Dr. 26 Mooney’s opinion and any other medical-opinion evidence. 27 Nguyen v. Berryhill, No. 3:16-cv-01665-LB, 2017 WL 1196800, at 28 *15 (N.D. Cal. Mar. 31, 2017) (finding ALJ’s reason for rejecting Indeed, the ALJ did not cite any specific 10 See 1 other-source opinion “insufficient” because ALJ failed to “cite 2 specific inconsistencies” with objective evidence); see also 3 Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (reasons for 4 rejecting other-source testimony must be “germane” and “specific” 5 (citation omitted)). Moreover, the error was not harmless. 6 Dr. Mooney found that 7 Plaintiff had a “slow, guarded gate [sic] pattern” and was 8 “unable to heel-toe walk or perform a full squat.” 9 807.) (AR 776, He concluded that she was TTD for more than two months, 10 until he stopped treating her. (AR 792, 823.) The ALJ 11 specifically found that Plaintiff “consistently showed no 12 restrictions in ambulation” and that “nothing in the record 13 show[ed] that [her] plantar fasciitis . . . ha[d] any effect on 14 her functioning” (AR 30), apparently ignoring Dr. Mooney’s 15 diagnoses (see AR 790, 821). 16 consistent with that of Dr. Foley, discussed more fully below. 17 The two jobs the ALJ found Plaintiff could perform, hand packager 18 and housekeeper, are both medium exertional work,11 which 19 requires “standing or walking, off and on, for a total of 20 approximately 6 hours in an 8-hour workday.” 21 31251, at *6 (Jan. 1, 1983). 22 from the record that the ALJ would have reached the same result 23 absent the error.” Further, Dr. Mooney’s opinion was SSR 83-10, 1983 WL Thus, the Court cannot “conclude Molina, 674 F.3d at 1115. 24 25 26 27 28 11 Housekeeper is light work as generally performed, but the VE testified that it was medium work as Plaintiff performed it. (AR 84.) Even when performed as light work, the DOT description of its duties demonstrates that it involves a good deal of walking or standing. See Cleaner, Housekeeping, DOT 323.687-014, 1991 WL 672783 (Jan. 1, 2016). 11 1 Because the ALJ failed to assign any particular weight to 2 Dr. Mooney’s opinion or provide a germane reason for rejecting 3 it, remand is warranted. 2. 4 Dr. Foley a. 5 Applicable law In evaluating doctors’ opinions, an ALJ must state what 6 See SSR 7 weight she has given each opinion and explain why. 8 96–2p, 1996 WL 374188, at *5 (July 2, 1996); §§ 404.1527(e), 9 416.927(e).12 An ALJ errs when she “does not explicitly reject a 10 medical opinion or set forth specific, legitimate reasons for 11 crediting one medical opinion over another.” 12 759 F.3d 995, 1012 (9th Cir. 2014). b. 13 Garrison v. Colvin, Relevant background Dr. Foley treated Plaintiff as part of her worker’s- 14 15 compensation claim. (AR 540-72.) 16 examined Plaintiff and completed a “Primary Treating Physician’s 17 Initial Report.” 18 “stabbing” “right heel” pain when “walking or standing” and “left 19 foot” pain “in the bunion area.” 20 she “ambulated with [a] limp,” but she was able to “gait[] onto 21 and off of the examination table without difficulty.” 22 Her motor strength was “+5/5” “bilaterally to all muscles.” 23 (Id.) (AR 568-74.) On February 9, 2011, she Plaintiff complained of “+9/10” (AR 568.) Dr. Foley noted that (AR 570.) An ankle examination revealed “absolute tenderness with 24 25 26 27 28 12 For claims filed on or after March 27, 2017, the rules in §§ 404.1520c and 416.920c (not §§ 404.1527 and 416.927) apply. See §§ 404.1520c, 416.920c (evaluating opinion evidence for claims filed on or after Mar. 27, 2017). Plaintiff’s claims were filed before March 27, 2017, however, and thus the new regulations do not apply. 12 1 palpation, range of motion, dorsiflexion, plantar flexion, 2 eversion, and inversion.” 3 Plaintiff exhibited “severe pain with palpation of the calcaneus 4 with lateral compression” and “pain with palpation of the 5 insertion of the plantar fascia plantarly to the plantar medial 6 turbercle of the calcaneus, right greater than left.” 7 Foley noted that Plaintiff had an “abducted gait,” a “short 8 stride and an antalgic gait.” 9 “large plantar calcaneal spur on the right,” a “small calcaneal (Id.) During a heel examination (AR 571.) (Id.) X-rays revealed a 10 spur on the left,” “a bunion deformity on the left first 11 metatarsophalangeal joint,” and “decreased joint space on the 12 lateral aspect of the left first metatarsophalangeal joint.” 13 (Id.) 14 “[p]lantar fasciitis bilaterally,” and “[b]union on the left.” 15 (AR 572.) 16 plantar fasciitis and calcaneal stress fracture. 17 Dr. She assessed “[c]alcaneal stress fracture on the right,” She recommended that Plaintiff get an MRI for the (Id.) On April 4, 2011, Dr. Foley noted that the MRI report showed 18 “moderately advanced” “reactive changes to the plantar fascia,” 19 “[e]dema in the plantar fat pad,” “posterior tibialis 20 peritendinitis, chronic tendinopathy, . . . mild intrasubstance 21 partial tearing distally . . . without rupture,” and “synovitis 22 and arthritis of the first metatarsophalangeal joint on the right 23 side.” 24 side,” “[p]ain,” and “[d]ifficult walking.” 25 dispensed a “Cam walker”13 and “told [Plaintiff] to wear [it] at (AR 566.) She assessed “[p]lantar fasciitis, right (AR 567.) She 26 27 28 13 A CAM walker is a removable, inflatable cast. See Medical Boot, OrthoTape, http://orthotape.com/cam_walkers.asp (continued...) 13 1 all times except when . . . taking a shower.” 2 25, 2011, Dr. Foley recommended that Plaintiff “get a fiberglass 3 cast, so that she [would] be totally immobilized,” and 4 “[d]iscussed possible surgical intervention.” 5 Plaintiff stated during a September 26, 2011, visit that she 6 “previously . . . had taken Vicodin14 and . . . ha[d] been 7 alternating between Vicodin and Motrin two to three times a 8 week.” 9 and “cortisone injections.” (AR 561.) (Id.) On April (AR 564.) Dr. Foley again discussed a “fiberglass cast” (AR 562.) On October 4, 2011, Dr. Foley gave Plaintiff a cortisone 10 11 injection. (AR 560.) Plaintiff reported on November 8, 2011, 12 that she was a “little bit better after the injection.” 13 557.) Dr. Foley gave her “a second cortisone injection.” 14 558.) On December 12, 2011, the “injection [had] helped a little 15 bit.” (AR 555.) 16 daily” and was having “constant pain,” but the “strong stabbing 17 pain [was] less.” (AR (AR Plaintiff was “wearing the Cam walker six hours (Id.) 18 Dr. Foley discussed with Plaintiff during a January 17, 2012 19 visit that she had “had the pain in the right foot for almost two 20 years” and told her “that at this point [s]he would recommend 21 foot surgery.” 22 2012, that “she stands and walks approximately four hours total 23 daily for 30 to 40 minutes at a time.” (AR 554.) Plaintiff told Dr. Foley on March 20, (AR 550.) She rated her 24 13 25 26 27 28 (...continued) (last visited Aug. 25, 2020). 14 Vicodin is an opioid pain reliever used to relieve moderate to severe pain. See Vicodin, WebMD, https:// www.webmd.com/drugs/2/drug-3459/vicodin-oral/details (last visited Aug. 25, 2020). 14 1 pain in the morning as “9/10” and “8/10” “after she warms up.” 2 (Id.) Plaintiff “refused surgery” and “the fiberglass cast.” 3 (Id.) Dr. Foley recommended that she get a pair of orthotics. 4 (AR 551.) 5 more than a year but could “return to work as of March 20, 2012.” 6 (AR 552.) Plaintiff saw Dr. Foley for orthotic casting on April 7 30, 2012. (AR 546.) 8 “[c]apsulitis,” “[b]ursitis,” and “[a]bnormal gait.” 9 dispensed the orthotics on May 21, 2012. Further, she opined that Plaintiff had been TTD for She assessed “[p]lantar fasciitis,” (AR 544.) (Id.) She Plaintiff 10 reported on June 4, 2012, that her orthotics were “very 11 comfortable but she d[id] not have any diminishing pain.” 12 542.) 13 July 2, 2012, Plaintiff reported that her pain was still “7/10,” 14 and Dr. Foley gave her a cortisone injection “into the right 15 foot.” 16 refused “to have surgery,” “was walk[ing] . . . without any 17 limp,” “ha[d] reached her maximum medical benefit,” and had “no 18 permanent impairment.” 19 20 Dr. Foley again assessed an “[a]bnormal gait.” (AR 540.) c. (AR (Id.) On On July 31, 2012, she noted that Plaintiff had (AR 548-49.) Analysis The ALJ found that Plaintiff had “bilateral plantar 21 fasciitis” that was not severe. (AR 30.) 22 based this finding at least in part on her inaccurate conclusions 23 that Plaintiff “consistently showed no restrictions in 24 ambulation” and “there is nothing in the record to show that the 25 claimant’s plantar fasciitis . . . ha[d] any effect on her 26 27 28 15 But she apparently 1 functioning.”15 2 weight to Dr. Foley’s opinions that Plaintiff had “difficult[y] 3 walking,” had an “abnormal gait,” and was TTD from February 9, 4 2011, to March 20, 2012; indeed, she never discussed or even 5 mentioned them. 6 opinions, the ALJ erred. 7 Marsh, 792 F.3d at 1172-73 (finding error when ALJ gave no reason 8 for not mentioning treating doctor or his notes); Jose Luis V.H. 9 v. Saul, No. EDCV 18-2618-KS, 2020 WL 247315, at *4-5 (C.D. Cal. (AR 30.) She did not assign any particular By failing to even mention a treating doctor’s Garrison, 759 F.3d at 1012; see also 10 Jan. 16, 2020) (finding reversible error when ALJ failed to 11 mention doctor’s opinion or give opinion any weight). Moreover, the error was not harmless because the medium-work 12 13 jobs identified by the ALJ that Plaintiff could perform require 14 standing or walking, off and on, for a total of approximately six 15 hours in an eight-hour workday. 16 *6. 17 Foley’s opinions were all rendered before the period during which 18 Plaintiff would have been eligible to actually receive benefits. 19 (See J. Stip. at 14.) 20 Halperin’s; see below) later similar statements, which the ALJ 21 also ignored, Dr. Foley’s opinions could have led to a reasonable 22 inference that Plaintiff was afflicted with severe plantar See SSR 83-10, 1983 WL 31251, at Defendant argues that the error was harmless because Dr. But in light of Dr. Mooney’s (and Dr. 23 24 25 26 27 28 15 The ALJ also incorrectly stated that Plaintiff “was never prescribed narcotic or other medications ordinarily used for severe pain and discomfort” and that “there is no evidence of [Plaintiff] receiving physical therapy [or] pain relief injections.” (AR 36.) Plaintiff was prescribed narcotics, including Vicodin, Norco, and Tramadol. (See, e.g., AR 561, 641, 679.) Further, she underwent physical therapy and received cortisone injections. (See, e.g., AR 558, 560, 600.) 16 1 fasciitis throughout the relevant period. 2 cannot conclude from the current record that the ALJ would have 3 reached the same result absent the error. 4 3. 6 Dr. Halperin a. 5 Therefore, the Court Relevant background Podiatrist Gabriel Halperin treated Plaintiff as part of her 7 worker’s-compensation claim. (AR 579-600.) 8 he examined her and completed a “Comprehensive Initial Podiatric 9 Consultation” report. (AR 579-91.) On October 28, 2013, He noted that she “walk[ed] 10 without [a] limp” (AR 585), but she exhibited “pain on palpation 11 over the rim of the heel with tingling neuritic pain” and had a 12 “positive Tinel’s sign16 at the common peroneal, deep peroneal, 13 posterior tibial and medial calcaneal nerves” (AR 587-88). 14 diagnosed plantar fasciitis, “[c]alcaneal enthesopathy,”17 15 “[c]hronic pain,” “[p]eripheral nerve impairment,” and 16 “[n]euritis with heel pain of the sural nerve, posterior tibial 17 nerve[,] and the lateral plantar nerve.” 18 recommended orthotics, “four steroid injections,” a “[h]eel lift 19 to reduce traction to the calcaneus,” a “[n]ight splint,” and 20 pain medication. (AR 588.) He He (AR 589.) 21 22 23 16 Tinel’s sign is positive when tapping the affected nerve produces tingling. See Tinel’s Sign, Healthline, https://www.healthline.com/health/tinels-sign#test (last visited Aug. 25, 2020). 24 17 25 26 27 28 Enthesopathy is inflammation of the site of attachment or insertion of ligaments, tendons, fascia, or articular capsule into bone and may be caused by chronic traction of the Achilles tendon on the calcaneus. See Achilles and plantar fascia enthesopathy, Radiopaedia, https://radiopaedia.org/cases/ achilles-and-plantar-fascia-enthesopathy?lang=us (last visited Aug. 25, 2020). 17 1 Dr. Halperin stated in a March 3, 2014 progress report that 2 Plaintiff’s “[p]ain ha[d] increased,” “[l]eft foot . . . greater 3 than right,” and that she was “complaining of knee pain.” 4 593.) 5 improved significantly.” 6 “steroid injections until May.” 7 Plaintiff reported “improved pain with trigger injection[s] 8 initially.” 9 palpation” of Plaintiff’s feet on May 28, July 9, and August 13, She reported to him on April 14, 2014, that she had “not (AR 596.) (AR 597-99.) (AR 595.) He noted that he would delay (Id.) On May 14, 2014, Dr. Halperin again noted “[p]ain on 10 2014. 11 Plaintiff] noted decreased pain.” 12 b. 13 (AR After “[two] sessions [of physical therapy, (AR 600.) Analysis Dr. Halperin diagnosed Plaintiff with plantar fasciitis and 14 several other conditions. Other than noting Plaintiff’s own 15 subjective statements of symptoms, however, he did not document 16 or provide any opinion regarding any functional limitations. 17 given that some of the ALJ’s statements concerning the record 18 clearly failed to take into account any of the treatment notes or 19 opinions from the doctors who treated Plaintiff’s feet (see supra 20 sec. V.A.1.c & .2.c), her error in failing to discuss Dr. 21 Halperin was not harmless. 22 failure to discuss treating doctor’s opinion was not harmless 23 when ALJ did not mention doctor’s statement that condition 24 rendered plaintiff “pretty much nonfunctional”). But See Marsh, 792 F.3d at 1173 (ALJ’s 25 B. Clinica de Salud Familiar 26 Plaintiff also argues that the ALJ “failed to provide proper 27 discussion and consideration” of her treatment with Clinica de 28 Salud Familiar. (J. Stip. at 23; see id. at 22.) 18 The ALJ 1 discussed these records. 2 (See AR 35.) As the ALJ noted, although the records documented 3 Plaintiff’s subjective complaints and treatment for shoulder and 4 knee pain (AR 733-71, 841-57), they did not show any diagnostic 5 test results or opinions suggesting that she had limitations 6 greater than those in the RFC. 7 can reconsider them on remand in light of the complete record. (AR 35.) In any event, the ALJ 8 C. Remaining Issues 9 Plaintiff asserts that the ALJ erred in evaluating her 10 testimony and statements regarding her symptoms. 11 32-35, 38-39.) 12 testimony and statements once she has properly considered the 13 treating doctors’ opinions, so the Court does not address those 14 arguments. 15 WL 2208088, at *2 (C.D. Cal. July 21, 2009) (finding it 16 unnecessary to address further disputed issues when court found 17 that ALJ failed to properly consider treating doctor’s opinion 18 and lay-witness testimony). 19 VI. 20 (J. Stip. at The ALJ should reevaluate Plaintiff’s symptom See Negrette v. Astrue, No. EDCV 08-0737 RNB., 2009 CONCLUSION Consistent with the foregoing and under sentence four of 42 21 U.S.C. § 405(g), IT IS ORDERED that judgment be entered REVERSING 22 the Commissioner’s decision, GRANTING Plaintiff’s request for 23 remand, and REMANDING this action for further proceedings 24 consistent with this Memorandum Decision. 25 26 27 August 26, 2020 DATED: __________________ ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 28 19
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