Carey R. Carpenter v. Carolyn W. Colvin, No. 5:2015cv00792 - Document 26 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Rozella A. Oliver. IT IS ORDERED that Judgment shall be entered REVERSING the decisionof the Commissioner denying benefits, and REMANDING the matter for furtherproceedings consistent with this Order.IT IS FURTHER ORDERED that the Clerk of the Court serve copies of thisOrder and the Judgment on counsel for both parties. (SEE ORDER FOR FURTHER DETAILS) 1 (gr)
Download PDF
<![CDATA[
Carey R. Carpenter v. Carolyn W. Colvin Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 Plaintiff, 13 14 15 Case No. CV 15-0792-RAO CAREY R. CARPENTER, 12 MEMORANDUM OPINION AND ORDER v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 16 17 18 19 I. 20 INTRODUCTION 21 Plaintiff Carey R. Carpenter (“Plaintiff”) challenges the Commissioner’s 22 denial of his application for social security disability income (“SSDI”) benefits 23 under Title II of the Social Security Act1, and his application for supplemental 24 security income (“SSI”) benefits under Title XVI, following an administrative law 25 26 27 28 1 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment expected to result in death, or which has lasted or is expected to last for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A). Dockets.Justia.com 1 judge’s (“ALJ”) decision that Plaintiff was not under a disability within the 2 meaning of the Social Security Act. Administrative Record (“AR”) 11, 29. For 3 the reasons stated below, the decision of the Commissioner is REVERSED and the 4 action is REMANDED for further proceedings consistent with this Order. 5 II. 6 PROCEEDINGS BELOW 7 On May 31, 2013, Plaintiff applied for SSDI alleging disability beginning on 8 May 12, 2011 (his alleged onset date (“AOD”)). AR 14. Plaintiff applied for SSI 9 on August 28, 2013, alleging the same AOD of disability. AR 14. Plaintiff’s claim 10 was denied first on October 23, 2013, and upon reconsideration on April 10, 2014. 11 Id. Plaintiff then requested an administrative hearing before an ALJ, which 12 occurred on October 28, 2014. Id. Plaintiff testified at the hearing, and was 13 represented by counsel. Id. A vocational expert (VE) also testified. Id. On 14 November 17, 2014, the ALJ found that Plaintiff was not disabled. AR 29. The 15 ALJ’s decision became the final decision of the Commissioner when the Appeals 16 Council denied Plaintiff’s request for review. AR 1–4. Plaintiff filed the instant 17 action in this Court on April 22, 2015. Dkt. No. 1. 18 The ALJ followed a five-step sequential evaluation process to assess whether 19 Plaintiff was disabled. 20 C.F.R. §§ 404.1520, 416.920; see also Lester v. Chater, 20 81 F.3d 821, 828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had 21 not engaged in substantial gainful activity since the AOD. AR 16. At step two, the 22 ALJ found the medical evidence established that Plaintiff had the following severe 23 impairments: residual degenerative disc disease of the lumbar spine with left sided 24 radiculopathy, status post back surgery in 2013; post-laminectomy syndrome; and 25 chronic pain syndrome. Id. At step three, the ALJ found that Plaintiff did “not 26 have an impairment or combination of impairments that meets or medically equals 27 the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, 28 Appendix 1.” Id. at 18. 2 1 2 Before proceeding to step four, the ALJ found that Plaintiff possessed the residual functional capacity (“RFC”) to: 3 [P]erform light work as defined in 20 CFR 404.1567(b) and 4 416.967(b) except: he can lift, carry, push, and pull up to 10 pounds 5 occasionally and five pounds frequently; he can stand and walk four 6 hours out of an eight-hour workday, but no more than 10 to 15 minutes 7 at a time and he would require an assistive device for longer 8 ambulation; he can sit six hours out of an eight-hour workday, but with 9 brief position changes after 20 to 30 minutes; he can perform postural 10 activities on an occasional basis, except he cannot climb ladders, 11 ropes, or scaffolds; he cannot work at unprotected heights, or around 12 moving machinery or other hazards; he cannot perform fast-paced 13 production or assembly line type work; he can leave occasional non- 14 intense interaction with the general public; he cannot perform 15 repetitive or constant pushing and pulling with the left lower 16 extremity, such as operating foot pedals; and he is precluded from jobs 17 requiring independent decision-making or the responsibility for the 18 safety or direction of others. 19 AR 19. 20 At step four, the ALJ found that Plaintiff was unable to perform past 21 relevant work. AR 27. At step five, the ALJ concluded that Plaintiff could 22 perform the requirements of two representative occupations: file assembler and 23 addresser, and consequently, found Plaintiff not disabled . AR 28-29. 24 III. 25 STANDARD OF REVIEW 26 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s 27 decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are 28 supported by substantial evidence, and if the proper legal standards were applied. 3 1 Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). Substantial evidence is 2 more than a mere scintilla but less than a preponderance. Id. at 459. It is relevant 3 evidence that a reasonable person might accept as adequate to support a conclusion. 4 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). Inferences drawn from the 5 record may serve as substantial evidence, but only when reasonably drawn. See 6 Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). 7 To determine whether substantial evidence supports a finding, the Court must 8 consider the record as a whole, weighing evidence that supports and detracts from 9 the ALJ’s conclusion. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). 10 “‘Where evidence is susceptible to more than one rational interpretation,’ the ALJ's 11 decision should be upheld.” Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th 12 Cir. 2008) (citation omitted). If evidence can reasonably support either affirming or 13 reversing the ALJ's finding, the reviewing court may not substitute its judgment for 14 that of the ALJ. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 15 The Court may review only the reasons stated in the ALJ’s decision, and may 16 not affirm on a ground on which the ALJ did not rely. See Orn v. Astrue, 495 F.3d 17 625, 630 (9th Cir. 2007). The Court will not reverse the Commissioner’s decision 18 based on harmless error, which exists only when it is “clear from the record that an 19 ALJ’s error was ‘inconsequential to the … nondisability determination.’” Robbins, 20 466 F.3d at 885 (quoting Stout v. Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)). 21 IV. 22 DISCUSSION 23 Plaintiff raises three claims of error in his Memorandum of Points and 24 Authorities in Support of Motion for Summary Judgment (“Pl. Memo.”): (1) the 25 ALJ erred in failing to find that the Plaintiff meets or equals the requirements of 26 Listing 1.04A; (2) the ALJ erred by failing to provide specific, legitimate reasons 27 for rejecting Plaintiff’s treating physicians’ opinions; and (3) the ALJ erred in her 28 evaluation of Plaintiff’s credibility and subjective symptoms. Pl. Memo. at 2-8. In 4 1 her motion for summary judgment (“Def. Memo.”), the Commissioner asserts that: 2 (1) the ALJ properly evaluated the medical evidence and that plaintiff did not meet 3 or equal a listed impairment; (2) the ALJ properly considered the opinions of 4 Plaintiff’s workers’ compensation doctors; and (3) the ALJ properly found Plaintiff 5 not fully credible. (Def. Memo. at 3-9.) 6 A. Evidence in the Record 7 1. Medical History 8 Plaintiff sustained a work-related injury in September 2010. AR 42. He 9 underwent back surgery in March 2013. As part of a workers’ compensation claim, 10 Plaintiff saw numerous physicians, including Dr. Frederick W. Close, M.D., Dr. 11 Kamran Aflatoon, D.O., and Dr. Donald D. Kim, M.D., had multiple MRIs taken of 12 his back, underwent back surgery, and continued to seek treatment post-surgery 13 when his back pain persisted. Plaintiff’s medical history was comprehensively 14 summarized by the ALJ and is recited, in pertinent part, as follows: 15 On April 7, 2011, a MRI of Plaintiff’s lumbar spine revealed disc protrusion 16 at L4-5 resulting in mild deviation of the left L5 nerve root, mild central canal 17 stenosis. AR 21. 18 On May 12, 2011, Dr. Close performed an initial orthopedic examination and 19 consultation in relation to Plaintiff’s workers’ compensation claim. His 20 examination findings revealed antalgic gait referable to the left lower extremity, 21 bilateral lumbar spasm, decreased range of motion at the lumbar spine, and positive 22 straight-leg raising. AR 21. Dr. Close diagnosed Plaintiff with herniated 23 intervertebral disc at L4-5 and radiculopathy at the left lower extremity. AR 21. 24 Dr. Close opined that Plaintiff was “temporarily totally disabled” for purposes of 25 his workers’ compensation claim. 26 On June 17, 2011, Dr. Aflatoon, a board certified orthopedic surgeon, 27 performed an initial orthopedic consultation of Plaintiff for purposes of his 28 workers’ compensation claim. AR 22. His examination findings revealed a normal 5 1 gait, decreased range of motion of the lumbar spine, paraspinal spasm, sciatic notch 2 tenderness, and positive straight-leg raising. AR 22. Dr. Aflatoon diagnosed 3 Plaintiff with disc herniation at L4-5 and radiculopathy. Dr. Aflatoon opined that 4 Plaintiff’s work status included no lifting of more than five pounds or bending or 5 squatting. AR 22. In June 2011, Plaintiff had a follow-up evaluation with Dr. Close. Dr. Close 6 7 diagnosed Plaintiff with herniated intervertebral disc at L4-5 on the left and 8 radiculopathy at the left lower extremity. AR 22. His examination findings found, 9 inter alia, decreased range of motion at the lumbar spine and positive straight-leg 10 raising. AR 22. On June 30, 2012, Dr. Kim performed an initial orthopedic evaluation of 11 12 Plaintiff in relation to his workers’ compensation claim. AR 22. Dr. Kim’s 13 examination findings included: plaintiff walked with a cane on the right side; 14 decreased range of motion at the thoracolumbar spine; exquisite tenderness in the 15 right and left L4-5 and L5-S1 region; positive straight-leg raising on the left; 16 severely antalgic gait on the left lower extremity; and significantly reduced 17 sensation at the anterior aspect of the left leg. AR 22. Dr. Kim diagnosed Plaintiff 18 with left L4-5 herniated nucleus pulposus with a severe chronic left lower extremity 19 radiculopathy and recommended Plaintiff undergo surgery. AR 22. Medical reports dated in August and November 2012 continued to find 20 21 tenderness at L4-5 and L5-S1 and decreased range of motion at the lumbar spine. 22 AR 23. Additionally, Dr. Close diagnosed Plaintiff with muscle atrophy at the left 23 lower extremity. AR 23. On March 19, 2013, Plaintiff had surgery for his herniated disc. AR 23. An 24 25 MRI performed on Plaintiff’s lumbar spine on July 17, 2013, showed some post- 26 surgery improvement in Plaintiff’s condition, in particular, that the residual bulging 27 disc had decreased in size. AR 23. 28 /// 6 In September 2013, during a medical evaluation, Plaintiff reported 1 2 experiencing continued pain in his lower back and left leg, but stated that the pain 3 level was reduced and was under control with pain medication. AR 23. 4 Examination findings showed Plaintiff still had a slight limp and was using a cane, 5 that he had one-centimeter left calf atrophy, straight leg raising was positive but 6 improved, and decreased range of motion at the lumbar spine. AR 23. Dr. Close 7 diagnosed Plaintiff with disc disease of the lumbar spine and chronic radiculopathy 8 at the left lower extremity. AR 24. While Dr. Close determined that Plaintiff 9 remained temporarily totally disabled, he also found that Plaintiff did not have 10 recurrent disc herniation at L4-5 as his straight-leg raising had improved and he had 11 only minimal atrophy. AR 24. On October 4, 2013, Dr. Kim performed a re-evaluation of Plaintiff. Dr. 12 13 Kim’s examination found that Plaintiff continued to have a mild to moderate limp 14 and required the use of a cane. AR 24. Additionally, Plaintiff had positive straight 15 leg raising at the left in the sitting and supine position, sensation was diminished in 16 the left leg, and that an MRI showed post-surgical scar tissue formation. Dr. Kim 17 diagnosed Plaintiff with left L4-5 herniated nucleus pulposus with a deviation of 18 the left L5 nerve root and recurrent left lower extremity radiculopathy with 19 postoperative scarring, left lateral recess stenosis, and a four-millimeter persistent 20 bulge at L4-5. AR 24. Dr. Kim opined that Plaintiff might be a candidate for 21 repeat surgery. AR 24. Dr. Close performed a follow-up examination of Plaintiff in December 2013. 22 23 His examination findings showed one-centimeter left calf atrophy and positive 24 straight-leg raising with decreased range of motion at the lumbar spine. AR 24. 25 Dr. Close diagnosed Plaintiff with degenerative disc disease of the lumbar spine, 26 status post lumbar laminectomy and discectomy at L4-5 on the left and chronic 27 radiculopathy at the left lower extremity. AR. 24. 28 /// 7 1 On April 12, 2014, Dr. Kim conducted a re-evaluation of Plaintiff and found 2 that Plaintiff continued to walk with a cane and had decreased range of motion at 3 the thoracolumbar spine, exquisite tenderness in the left L4-5 and L5-S1 region, 4 and positive straight-leg raising. AR 24-25. Dr. Kim diagnosed Plaintiff with left 5 L4-5 herniated nucleus pulposus and recurrent left lower extremity radiculopathy. 6 AR 25. 7 2. Testimony 8 An administrative hearing took place on October 28, 2014, and lasted 23 9 minutes. AR 36, 53. Plaintiff testified that he was unable to work. AR 40. He 10 stated that he was waiting to have a second surgery, a back fusion surgery, because 11 his first surgery failed and the pain was increasing. Id. He described that he could 12 not put on his clothes (boxers, socks, pants) without the assistance of his wife. He 13 listed the pain medication he takes to manage his symptoms, including oxycodone, 14 hydrocodone, and tramadol, among others. AR 41. He indicated that he could 15 drive for only short distances, requires the use of a cane, and has to lay down at 16 home on a daily basis to manage his pain. AR 44. When asked about his lifting 17 and carrying ability, he stated that he could lift and carry “[m]aybe five pounds 18 without it causing great pain. I mean, if I had to max it out to deal with the pain, 19 maybe 10, if that.” AR 43. On a pain scale from zero to 10, with 10 being 20 excruciating pain, Plaintiff rated his daily level of pain as a “seven and a half, 21 eight.” AR 47. 22 3. The ALJ Decision 23 In arriving at Plaintiff’s RFC and her conclusion that Plaintiff was not 24 disabled under the Social Security Act, the ALJ found that the “conclusions and 25 disability statements” of Drs. Aflatoon, Close, and Kim had “no probative value” 26 and rejected them. AR 25. The ALJ provided three reasons for doing so. First, the 27 ALJ noted that the determination of disability is an issue reserved to the 28 Commissioner. Second, the ALJ found that Dr. Aflatoon’s opinion about Plaintiff’s 8 1 functional capacity were inconsistent with other evidence of record, including 2 Plaintiff’s testimony at the administrative hearing that he could lift up to 10 pounds. 3 AR 25. Finally, the ALJ found that the credibility and relevance of these three 4 doctors’ opinions was negatively affected by the fact that they were obtained in 5 relation to Plaintiff’s workers’ compensation claim. AR 25. Earlier in her decision, 6 the ALJ provided her observations about physicians employed by claimants in the 7 workers’ compensation scheme: 8 Some of the medical records were reports prepared in the context of 9 the adversarial workers’ compensation claim system []. Medical 10 reports generated in the context of a workers’ compensation claim are 11 adversarial in nature. The physicians retained by either party in the 12 context of workers’ compensation cases are often biased and do not 13 provide truly objective opinions. The claimant’s treating physician in 14 the context of a workers’ compensation claim often serves as an 15 advocate for the claimant and describes excessive limitations to 16 enhance the claimant’s financial recovery. 17 18 19 AR 25. With respect to whether Plaintiff met or equaled a listing impairment, the ALJ stated: 20 The undersigned considered the claimant’s medically determinable 21 physical impairments, singly and in combination, under Section 1.00 22 of the Listing of Impairments. The claimant’s impairments, 23 considered singly and in combination, do not meet or medically equal 24 the criteria of any medical listing. No treating or examining physician 25 has recorded findings equivalent in severity to the criteria of any listed 26 impairment, nor does the evidence show medical findings that are the 27 same or equivalent to those of any listed impairment. 28 AR 18. 9 Finally, the ALJ determined that Plaintiff was less than fully credible, finding 1 2 that his allegations of pain were inconsistent with the objective medical evidence 3 and with his daily activities.2 AR 20. B. 4 The ALJ’s Consideration of Plaintiff’s Workers’ Compensation Doctors 5 6 1. Weight of Treating Physicians’ Opinions 7 In determining whether a claimant is disabled, among the evidence the ALJ 8 considers is medical evidence. 20 C.F.R. § 404.1527(b). In evaluating medical 9 opinions, the regulations distinguish among three types of physicians: (1) treating 10 physicians; (2) examining physicians; and (3) non-examining physicians. 20 C.F.R. 11 § 494.1527(c), (e); Lester, 81 F.3d at 830. “Generally, a treating physician’s 12 opinion carries more weight than an examining physician’s, and an examining 13 physician’s opinion carries more weight than a reviewing physician’s.” Holohan v. 14 Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); see generally 20 C.F.R. § 15 404.1527(c)(1)-(2). The opinion of the treating physician is generally given the 16 greatest weight because the treating physician is employed to cure and has a greater 17 opportunity to know and observe a claimant. Smolen v. Chater, 80 F.3d 1273, 1285 18 (9th Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). “[T]he 19 ALJ may only reject a treating or examining physician’s uncontradicted medical 20 opinion based on ‘clear and convincing reasons.’” Carmickle v. Comm’r of Soc. 21 Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 830-31). 22 “Where such an opinion is contradicted, however, it may be rejected for ‘specific 23 and legitimate reasons that are supported by substantial evidence in the record.’” 24 Id. (quoting Lester, 81 F.3d at 830-31). 25 /// 26 27 28 2 The ALJ’s decision also discusses the opinions of a consultative orthopedic doctor as well as the opinions of state agency medical consultants, opinions which the ALJ ultimately gave limited weight. AR 26. 10 1 Conclusory statements unsupported by the record within a medical 2 examiner’s opinion warrant the assignment of little weight. “The ALJ need not 3 accept the opinion of any physician, including a treating physician, if that opinion is 4 brief, conclusory, and inadequately supported by clinical findings.” Chaudhry v. 5 Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (quoting Bray v. Comm’r of Soc. Sec. 6 Admin., 554 F.3d 1219, 1228 (9th Cir. 2009)); Thomas v. Barnhart, 278 F.3d 947, 7 957 (9th Cir. 2002) (citing to Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 8 1992)). 9 10 2. Analysis In reviewing the ALJ’s decision for “specific and legitimate reasons” that are 11 supported by substantial evidence in the record, the Court’s review finds evidence 12 of a bias against Plaintiff’s workers’ compensation doctors. It is well settled that an 13 ALJ may not disregard a physician’s medical opinion simply because it was 14 initially elicited in a state workers’ compensation proceeding, or because it is 15 couched in the terminology used in such proceedings. Booth v. Barnhart, 181 16 F.Supp.2d 1099 (2002); cf. Lester, 81 F.3d at 832 (“the purpose for which medical 17 reports are obtained does not provide a legitimate basis for rejecting them. An 18 examining doctor’s findings are entitled to no less weight when the examination is 19 procured by the claimant than when it is obtained by the Commissioner.”) (citation 20 omitted). Thus, the ALJ cannot ignore the opinions of physicians given in the 21 context of workers’ compensation scheme because those opinions were offered in 22 that context. Here, the ALJ made categorical assumptions based on the treating 23 physicians’ involvement with Plaintiff’s workers’ compensation claim, instead of 24 individualized assessments of each physician’s opinions and clinical findings. This 25 was error. 26 Notwithstanding evidence of the ALJ’s bias against Plaintiff’s workers’ 27 compensation treating physicians, the Court examines the ALJ’s decision for 28 legally sufficient reasons to reject the opinions of Drs. Aflatoon, Close, and Kim. 11 1 An ALJ must evaluate medical opinions phrased in the terminology of state 2 workers’ compensation schemes just as she would evaluate any other medical 3 opinion. Booth, 181 F.Supp.2d at 1105. In analyzing such medical opinions, the 4 ALJ “is entitled to draw inferences ‘logically flowing from the evidence.’” Id. at 5 1106 (quoting Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996)). “The ALJ’s 6 decision, however, should explain the basis for any material inference the ALJ has 7 drawn from those opinions so that meaningful judicial review will be facilitated.” 8 Booth, 181 F.Supp.2d at 1106. 9 With respect to the opinions of Drs. Aflatoon, Close, and Kim indicating that 10 the Plaintiff was “temporarily totally disabled,” the ALJ rejected these conclusions 11 and statements as having “no probative value.” AR 25. The ALJ further stated 12 that, because these doctors examined Plaintiff “solely in the context of a workers’ 13 compensation claim,” the credibility and relevance of their opinions was negatively 14 affected. AR 25. These are not specific and legitimate reasons for rejecting the 15 opinions of Drs. Aflatoon, Close, and Kim. The ALJ’s decision offered one example of why the opinions of Plaintiff’s 16 17 three treating physicians should be rejected. The ALJ noted that Dr. Aflatoon’s 18 opinion of Plaintiff’s limitation was inconsistent with other evidence of record, in 19 particular, Plaintiff’s own testimony that he could lift up to 10 pounds. AR 25. 20 However, a review of Plaintiff’s testimony in context shows that Plaintiff stated he 21 could lift up to 10 pounds “if [he] had to max it out” and that it would be painful. 22 AR 43. This testimony is not inconsistent with Dr. Aflatoon’s assessment that 23 Plaintiff was not capable of lifting more than five pounds. The ALJ provided no 24 other examples of inconsistencies between Plaintiff’s treating physicians’ opinions 25 and the objective medical record. In sum, the Court finds that the ALJ failed to provide specific and legitimate 26 27 reasons for rejecting the opinions of Drs. Aflatoon, Close, and Kim. 28 /// 12 1 2 C. The ALJ’s Finding that Plaintiff Did Not Meet a Listing Requirement Next, Plaintiff contends that the evidence of record clearly establishes that 3 he met or equaled the criteria for Listing 1.04A. (Pl. Memo. at 2-5.) The 4 Commissioner responds that Plaintiff’s subjective belief, unsupported by evidence 5 in the record, fails to establish that his impairments meet or equal Listing 1.04A. 6 (Def. Memo. at 3-5.) 7 1. Pertinent Law 8 At step three of the evaluation process, the ALJ must determine whether a 9 claimant has an impairment or combination of impairments that meets or equals a 10 condition in the Listing. 20 C.F.R. §§ 404.152(d), 416.920(d). “An ALJ must 11 evaluate the relevant evidence before concluding that a claimant’s impairments do 12 not meet or equal a listed impairment. A boilerplate finding is insufficient to 13 support a conclusion that a claimant’s impairment does not do so.” Lewis v. Apfel, 14 236 F.3d 503, 512 (9h Cir. 2001) (citing Marcia v. Sullivan, 900 F.2d 172, 176 (9th 15 Cir. 1990). 16 regardless of his age, education, or work experience, from performing any gainful 17 activity[.]” Sullivan v. Zebley, 493 U.S. 521, 532, 110 S. Ct. 885, 107 L. Ed. 2d 18 967 (1990) (emphasis in original). If a claimant’s impairment (or combination of 19 impairments) meets or equals a “listed impairment[], the claimant is conclusively 20 presumed to be disabled. 21 disabling, the evaluation proceeds to” step four. Bowen v. Yuckert, 482 U.S. 137, 22 141, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); see also Tackett v. Apfel, 180 F.3d 23 1094, 1098 (9th Cir. 1999). “The listings define impairments that would prevent an adult, If [it] is not one … conclusively presumed to be 24 “To meet a listed impairment, a claimant must establish that he or she meets 25 each characteristic of a listed impairment relevant to his or her claim.” Tackett, 180 26 F.3d at 1099 (emphasis in original); Sullivan v. Zebley, 493 U.S. 521, 530, 110 S. 27 Ct. 885, 207 L.Ed.2d 967 (1990) (to meet a listing, a claimant’s impairments “must 28 meet all of the specified medical criteria”). “To equal a listed impairment, a 13 1 claimant must establish symptoms, signs and laboratory findings ‘at least equal in 2 severity and duration’ to the characteristics of a relevant listed impairment, or, if a 3 claimant's impairment is not listed, then to the listed impairment ‘most like’ the 4 claimant's impairment.” Tackett, 180 F.3d at 1099. (emphasis in original) (citing 20 5 C.F.R. § 404.1526). 6 Listing 1.04 requires a finding of disability for an individual who (a) has a 7 “[d]isorder [] of the spine,” (b) that results in compromise of a nerve root or the 8 spinal cord, and (c) which is accompanied by the additional requirements set forth 9 under section 1.04A, 1.04B, or 1.04C. 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04. 10 Section 1.04A requires “[e]vidence of nerve root compression characterized by 11 neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss 12 (atrophy with associated muscle weakness or muscle weakness) accompanied by 13 sensory or reflex loss and, if there is involvement of the lower back, positive 14 straight-leg raising test (sitting and supine).” Id. § 1.04A. 15 2. Analysis 16 As recounted and summarized in the ALJ’s decision, numerous medical 17 records from different treating physicians document Plaintiff’s impairments relating 18 to his lumbar spine and left leg impairment, and provide objective support for 19 Plaintiff’s reports of pain and other subjective complaints. Thus, the 20 Commissioner’s argument that Plaintiff offers only his subjective belief, without 21 record evidence, in support of his claim of meeting or equaling a listing impairment 22 is not borne out by the record. Further, the Court finds that the Commissioner’s 23 assertion that because Dr. Close and Dr. Kim found improvement in Plaintiff’s 24 condition, Plaintiff’s claim is without merit. As Plaintiff points out in his Reply, 25 the record is more nuanced. While Dr. Close found some improvement in straight- 26 leg raising, Dr. Close also noted that his examination found “a 1-cm left calf 27 atrophy. Straight leg raising is positive, but now at 90 degrees rather than the 28 previously 45 degrees.” (AR 528.) While Plaintiff’s “clinical findings have 14 1 improved somewhat … [t]he patient has been advised that he may always have 2 numbness in the left leg.” (AR 528.) Unfortunately, the ALJ’s conclusory, boilerplate finding that Plaintiff did not 3 4 meet or equal a listing impairment does not facilitate an adequate review by this 5 Court. While the ALJ’s decision summarizes the medical evidence in the record, 6 the decision does not address the criteria of the listing impairments. And, as recited 7 above, numerous medical evaluations showing, for example, positive straight-leg 8 raising, muscle atrophy, numbness, reduced range of motion, among other findings, 9 suggest that Plaintiff may have met at least one or more of the criteria of Listing 10 1.04A. Accordingly, the Court finds remand is appropriate to allow the ALJ to address 11 12 in a non-conclusory manner whether Plaintiff meets or equals the Listing 13 Impairment 1.04A. 3 D. 14 Remand Is Appropriate 15 The Court has discretion to decide whether to remand for further proceedings 16 or order an immediate award of benefits. Harman v. Apfel, 211 F.3d 1172, 1175-78 17 (9th Cir. 2000). Under the credit-as-true rule, the court should remand for an award 18 of benefits if three conditions are met: (1) the record is fully developed and further 19 administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 20 provide legally sufficient reasons for rejecting evidence, be it claimant testimony or 21 medical opinion; and (3) if such evidence were credited as true the ALJ would have 22 to find the claimant disabled. Garrison, 759 F.3d at 1020. Here, the second 23 condition is not met, as the ALJ has failed to provide legally sufficient reasons for 24 rejecting the medical opinions of Plaintiff’s treating physicians and has failed to 25 26 27 28 3 Because the Court concludes remand is appropriate, it does not reach Plaintiff’s third claim – that the ALJ erred in her evaluation of Plaintiff’s credibility and subjective symptoms. 15 1 adequately address whether Plaintiff meets or equals a listing impairment. 2 Accordingly, remand is appropriate. 3 V. 4 CONCLUSION 5 IT IS ORDERED that Judgment shall be entered REVERSING the decision 6 of the Commissioner denying benefits, and REMANDING the matter for further 7 proceedings consistent with this Order. 8 9 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. 10 11 12 DATED: February 29, 2016 ROZELLA A. OLIVER UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 NOTICE THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE. 19 20 21 22 23 24 25 26 27 28 16
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
