Douglas Keith Thompson v. Nancy A. Berryhill, No. 5:2018cv01702 - Document 22 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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Douglas Keith Thompson 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 12 13 14 15 16 DOUGLAS K. T., ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, DEPUTY ) COMMISSIONER FOR OPERATIONS, ) SOCIAL SECURITY, ) ) Defendant. ) ____________________________________) NO. ED CV 18-1702-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 20 judgment are denied, and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on August 14, 2018, seeking review of 26 the Commissioner’s denial of benefits. The parties consented to 27 proceed before a United States Magistrate Judge on September 14, 2018. 28 Plaintiff filed a motion for summary judgment on December 26, 2018. Dockets.Justia.com 1 Defendant filed a motion for summary judgment on February 13, 2019. 2 The Court has taken the motions under submission without oral 3 argument. See L.R. 7-15; “Order,” filed August 23, 2018. 4 BACKGROUND 5 6 7 Plaintiff, a former bindery supervisor and truck driver, applied 8 for disability insurance benefits, asserting disability since 9 December 7, 2012, based on, inter alia, alleged cervical and lumbar 10 spine injuries, headaches, diabetes, high blood pressure, an enlarged 11 heart, kidney stones and limited mobility (Administrative Record 12 (“A.R.”) 52-55, 64-67, 79-80, 192-93, 215, 234, 261, 296). 13 had not worked since he suffered a work-related fall which caused a 14 loss of consciousness, several broken ribs, a punctured lung, and neck 15 and back injuries (A.R. 67-68). Plaintiff 16 17 An Administrative Law Judge (“ALJ”) reviewed the record and heard 18 testimony from Plaintiff and a vocational expert (A.R. 43-94). 19 Plaintiff testified to pain and limitations of allegedly disabling 20 severity (A.R. 68-78). 21 December 31, 2016 date last insured, Plaintiff had severe degenerative 22 disc disease of the cervical spine, scoliosis and degenerative disc 23 disease of the thoracic spine, and leveoscoliosis and degenerative 24 disc disease of the lumbar spine (A.R. 21). 25 found that, as of the date last insured, Plaintiff retained a residual 26 functional capacity for light work, with: (1) standing and walking 27 “for at least 10 minutes out of each hour of work up to 50 minutes out 28 of each hour of work and for a total of about six hours out of an The ALJ found that, through Plaintiff’s 2 However, the ALJ also 1 eight-hour workday with regular breaks”; (2) sitting “for at least 10 2 minutes out of each hour of work up to 50 minutes out of each hour of 3 work and for a total of about six hours out of an eight-hour workday 4 with regular breaks”; (3) use of a hand-held assistive device (cane) 5 in one hand when walking a distance of “about 100 yards or more,” with 6 the other hand available to carry up to 10 pounds while walking; 7 (4) occasional “postural activities”; and (5) frequent “neck movements 8 in any direction.” 9 allegations of disabling symptomatology as supposedly “inconsistent See A.R. 26-37. The ALJ rejected Plaintiff’s 10 with the medical evidence of record” (A.R. 27-29). The ALJ deemed 11 Plaintiff capable of performing his past relevant work as a bindery 12 supervisor (as generally performed) through the date last insured and, 13 on that basis, denied disability benefits (A.R. 37-38 (adopting 14 vocational expert testimony at A.R. 80-84)). 15 16 The Appeals Council denied review (A.R. 1-3). 17 STANDARD OF REVIEW 18 19 20 Under 42 U.S.C. section 405(g), this Court reviews the 21 Administration’s decision to determine if: (1) the Administration’s 22 findings are supported by substantial evidence; and (2) the 23 Administration used correct legal standards. 24 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 25 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 26 682 F.3d 1157, 1161 (9th Cir. 2012). 27 relevant evidence as a reasonable mind might accept as adequate to 28 support a conclusion.” See Carmickle v. Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 3 1 (1971) (citation and quotations omitted); see also Widmark v. 2 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). 3 4 If the evidence can support either outcome, the court may 5 not substitute its judgment for that of the ALJ. 6 Commissioner’s decision cannot be affirmed simply by 7 isolating a specific quantum of supporting evidence. 8 Rather, a court must consider the record as a whole, 9 weighing both evidence that supports and evidence that But the detracts from the [administrative] conclusion. 10 11 12 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 13 quotations omitted). 14 DISCUSSION 15 16 After consideration of the record as a whole, the Court reverses 17 18 the Administration’s decision in part and remands the matter for 19 further administrative proceedings. 20 Administration materially erred in evaluating the evidence of record. As discussed below, the 21 22 I. Summary of the Relevant Medical Record. 23 24 While driving for his employer, Plaintiff suffered a work-related 25 fall in Illinois on December 7, 2012 (A.R. 302). 26 his co-driver back to California after the fall (A.R. 313). 27 on December 9, 2012, showed several broken ribs and a puncture to the 28 left lung, for which Plaintiff was given a pain injection and admitted 4 Plaintiff drove with Testing 1 to the hospital (A.R. 302-03, 306-10, 313).1 2 was referred to various workers’ compensation physicians who 3 prescribed Vicodin and placed Plaintiff on temporary total disability 4 (A.R. 313, 345-46). Plaintiff subsequently 5 6 On March 5, 2013, workers’ compensation treating physician Dr. 7 Evan Marlowe evaluated Plaintiff and prepared an initial report (A.R. 8 312-25). 9 dizziness, and constant pain in the neck radiating to his head causing Plaintiff complained of blurred vision in his right eye, 10 frequent sharp headaches, worsened by tilting his neck and by 11 prolonged sitting and standing (A.R. 314). 12 constant to intermittent pain and soreness in the mid back with 13 radiating soreness and pain to the sides of his back, constant pain in 14 the low back radiating down the legs to the feet with numbness and 15 tingling, increased with prolonged sitting, walking, standing, 16 bending, twisting, lifting, pushing and pulling (A.R. 314).2 17 Plaintiff reported difficulty with activities of daily living due to 18 pain when sitting, standing and walking for prolonged periods, an 19 inability to lift heavy objects, and problems sleeping due to pain Plaintiff also reported 20 21 22 23 24 25 26 1 Thoracic spine x-rays also showed mild scoliosis and moderate spondylosis, mild anterior wedge compression of the T8 and T9 vertibrae and multiple chronic healed fractured deformities of the right-sided ribs (A.R. 307). Chest x-rays showed a borderline enlarged heart, atherosclerotic aorta, and scarring in each lung base (A.R. 308). Lumbar spine x-rays showed mild anterior wedge compression of the T1 and T12 vertibrae, diffuse spondylosis and disc narrowing within the lumbar spine, mutilevel vacuum phenomena, grade 1/4 degenerative spondylosis at L4-L5, and mild levoscoliosis (A.R. 309). 27 2 28 A June, 2013 EMG study showed mild evidence of left S1 radiculopathy (A.R. 393-99). 5 1 (A.R. 314). 2 (A.R. 314). Plaintiff then was taking Vicodin and ibuprofen for pain 3 On examination, Plaintiff reportedly was 6'2" tall and weighed 4 5 322 pounds (A.R. 315). Plaintiff reportedly had an antalgic gait, 6 stooped while walking, appeared uncomfortable, and had limited range 7 of motion in the cervical, thoracic and lumbar spine (A.R. 315-17, 8 331-41). 9 arthrosis from C4-C6 bilaterally causing minimal to mild Cervical spine x-rays showed mild to moderate uncinate 10 intervertebral foraminal encroachment, moderate discogenic spondylosis 11 from C4-C7, mild loss of normal cervical lordosis and mild right 12 inclination of the cervical spine (A.R. 317-18, 326-28). 13 diagnosed traumatic brain injury, cervical spine strain mild to 14 moderate uncinate arthrosis from C4-C6, moderate discogenic spodylosis 15 from C4-C7, thoracic spine strain/fracture, lumbar spine strain, rib 16 and lung injury, headaches and blurred vision (A.R. 318). 17 requested a thoracic MRI, neurological evaluation, an internal 18 medicine evaluation, and copies of Plaintiff’s prior medical records 19 so he could further assess Plaintiff’s condition and treatment needs 20 (A.R. 319; see also A.R. 345-47 (Dr. Marlowe’s subsequent review of 21 the available medical records)). 22 found Plaintiff temporarily totally disabled for six weeks (A.R. 319, 23 322). 24 Plaintiff’s temporary total disability through June of 2014, which was 25 one and a half years after the accident. 26 407-10, 420-24, 432-39, 479-82, 508-11, 519-26, 529-32 (progress 27 reports). 28 /// Dr. Marlowe Dr. Marlowe Dr. Marlowe prescribed Norco and Dr. Marlowe’s office continued to prescribe Norco and continued 6 See A.R. 348-51, 363-64, 1 Meanwhile, on May 29, 2013, neurologist Dr. Martin Backman 2 evaluated Plaintiff for a head injury (A.R. 376-83). Plaintiff 3 complained of daily recurrent, pounding suboccipital headaches 4 radiating to the retroocular area for which he required 800 milligrams 5 of ibuprofen three times a day (Plaintiff reportedly then was trying 6 to avoid taking Vicodin), positional vertigo, involuntary eye 7 movements, blurry vision, depression, irritability, anxiety, and 8 problems with attention, concentration, short term memory and sleep 9 (A.R. 377). Dr. Backman noted some abnormalities with respect to 10 Plaintiff’s eyes and tenderness in the spine, and diagnosed status 11 post closed head injury with question of loss of consciousness, mild 12 traumatic brain injury, posttraumatic head syndrome with suboccipital 13 headaches, and posttraumatic labyrinthine concussion (A.R. 379-80). 14 Dr. Backman did not address Plaintiff’s musculoskeletal complaints 15 (A.R. 380). 16 skull fracture, an auditory and balance evaluation, and suboccipital 17 nerve blocks for Plaintiff’s headaches (A.R. 380). Dr. Backman recommended a brain MRI to rule out basilar 18 19 On December 10, 2013, Dr. Marlowe again reviewed the medical 20 records and requested a pain management evaluation (A.R. 487-93). 21 December 24, 2013, pain management specialist Dr. Eduardo Anguizola 22 reviewed medical records and examined Plaintiff (A.R. 499-505). 23 Plaintiff reportedly complained of mostly right-sided headaches and 24 neck pain (A.R. 500). 25 for pain (A.R. 500). 26 ambulate on heels and toes without assistance, and had tenderness in 27 his cervical spine over the occipital nerve on the right side, over 28 the C2-C4 facets on the right more than the left, and midline On Plaintiff then was taking Vicodin and ibuprofen On examination, Plaintiff reportedly was able to 7 1 tenderness with paravertebral muscular tenderness (A.R. 501-02). Per 2 Dr. Marlowe’s September, 2013 report, Plaintiff reportedly had some 3 vertigo affecting his driving and was being referred to pain 4 management for the suboccipital nerve blocks recommended by Dr. 5 Backman (A.R. 502). 6 acupuncture to the neck and mid and lower back (A.R. 502). Plaintiff also reportedly was being treated with 7 8 Dr. Anguizola reviewed an April, 2013 cervical spine MRI 9 reportedly showing disc protrusions, annular tearing and cervical 10 facet arthropathy at C2-C3, central disc protrusion and facet 11 arthropathy at C3-C4 and C4-C5, bilateral central disc protrusion and 12 osteophyte complex, facet hypertrophy, neural foraminal stenosis at 13 C5-C6, left paracentral central disc protrusion with annular tearing, 14 hypertrophic facets, bilateral neural foraminal stenosis at C6-C7, and 15 disc protrusion with osteophyte complex and facet hypertrophy at C7-T1 16 (A.R. 502). 17 on the right, cervicogenic headaches, cervical facet arthropathy and 18 cervical discogenic disease (A.R. 503). 19 point reportedly had included physical therapy, acupuncture, and oral 20 and topical “pharmacologics,” but Plaintiff still reportedly had a 21 significant amount of axial pain in the neck and right-sided headaches 22 (A.R. 503). 23 nerve block on the right side and a C2-C3 facet block (A.R. 503). Dr. Anguizola diagnosed cephalalgia, occipital neuralgia Plaintiff’s treatment to that Dr. Anguizola agreed that Plaintiff needed an occipital 24 25 On March 10, 2014, orthopedic surgeon and Agreed Medical Examiner 26 Dr. Thomas Jackson reviewed the medical record and evaluated Plaintiff 27 (A.R. 621-41). 28 back pain and leg pain (A.R. 621-22). Plaintiff complained of neck pain, arm pain, lower 8 Dr. Jackson stated that 1 Plaintiff had undergone “conservative” treatment since the accident, 2 with “very little actually authorized for treatment by the industrial 3 insurance carrier” (A.R. 633). 4 On examination, Plaintiff reportedly had a slightly right 5 6 antalgic gait, limited range of motion in the cervical and lumbar 7 spine, mild to moderate tenderness in the left paraspinal muscles, 8 minimal tenderness in the trapezius muscles, “mild plus” tenderness 9 over the right side nerve roots with “moderate plus” tenderness over 10 the left side nerve root of the neck, localized neck pain, “trace + 11 symmetrical” deep tendon reflexes at the brachioradialis, mild to 12 moderate tenderness over the lumbar spinous process mainly at the 13 lower levels toward the lumbosacral junction, “moderate plus” 14 tenderness over the sciatic nerves, moderate decreased sensation to 15 the dorsum of the left foot, significant lower back complaints with 16 flexion in the hips, flat feet with over pronation and some collapse 17 on the medial side, and positive straight leg raising tests (A.R. 623- 18 25).3 19 severe spondylosis of the cervical spine at C4-C5, C5-C6 and C6-C7, 20 disc bulges and annular tears plus stenosis at every level associated 21 with bilateral upper extremity radiculitis, left rib fractures of the 22 third, fourth and fifth ribs associated with a small pneumothorax, and Dr. Jackson diagnosed moderate degenerative disc disease and 23 3 24 25 26 27 28 Cervical spine x-rays taken in March of 2014 showed moderate degenerative disc disease and severe spondylosis of the uncovertebral joints at C4-C5, C5-C6 and C6-C7, with some bony foraminal narrowing at each of the levels (A.R. 640). Lumbar spine x-rays showed severe degenerative disc disease at L4-L5 and L5-S1 with moderate to severe degenerative disease at other levels, plus a degenerative grade I spondylolisthesis at L4-L5 and severe spondylosis at every level with loss of lordosis and mild left scoliosis (A.R. 641). 9 1 old healed fractures of the third through ninth right ribs, severe 2 degenerative disc disease at L4-5 and L5-S1 and moderate to severe 3 degenerative disc disease at the other levels, severe spondylosis plus 4 disc bulges and stenosis of the lumbar spine at every level associated 5 with Grade I degenerative spondylolisthesis at L4-L5 plus bilateral 6 lower extremity radiculitis and apparent left L5 sensory 7 radiculopathy, and severe exogenous obesity with hypertension and 8 diabetes (A.R. 632). 9 Dr. Jackson opined that Plaintiff would be precluded from: 10 11 (1) repetitive neck movements in flexion, extension, rotation, and 12 lateral bending; (2) heavy lifting, pushing, and pulling, and all 13 other activities of comparable physical effort; (3) “substantial work” 14 which is “half way between a light work restriction and a heavy work 15 restriction”; and (4) “prolonged sitting and prolonged working in a 16 stationary standing position” (A.R. 635). 17 continued treatment with pain medications, a medical weight loss 18 program, a series of cervical and lumbar epidural injections with 19 booster injections, cervical and lumbar medial branch blocks followed 20 by a radiofrequency procedure, and ultimately surgery for an anterior 21 cervical discectomy and fusion at C4-C5, C5-C6 and C6-C7, with 22 consideration of a posterior fusion at the same levels, and posterior 23 decompression and fusion of the lumbar spine at L4-L5 and L5-S1, 24 /// 25 /// 26 /// 27 /// 28 /// 10 Dr. Jackson recommended 1 followed by post-operative physical therapy (A.R. 635-36).4 2 3 On May 25, 2014, Dr. Marlowe reviewed the medical records and 4 prepared a “Supplemental Medical-Legal Report” (A.R. 538-52). Dr. 5 Marlowe stated that Plaintiff had undergone “conservative” treatment 6 with “very little actually authorized for treatment by the industrial 7 insurance carrier” (A.R. 543). 8 reportedly had worsened Plaintiff’s symptoms, and the insurance 9 carrier had denied epidural injections (A.R. 543). Physical therapy and acupuncture Dr. Marlowe 10 indicated that Plaintiff was a candidate for epidural steroid 11 injections and medial branch blocks, followed by a radiofrequency 12 procedure, but Dr. Marlowe was hesitant to recommend surgery 13 “strongly” because of the extensive structural damage in the cervical 14 and lumbar spine and because of Plaintiff’s exogenous obesity (A.R. 15 543).5 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Dr. Jackson reviewed the record and re-evaluated Plaintiff on May 20, 2015, noting complaints and findings on examination similar to those stated in Dr. Jackson’s prior evaluation of Plaintiff (A.R. 600-20). Plaintiff still had not been approved by the insurance carrier for less “conservative” treatment (A.R. 614). Dr. Jackson made the same work preclusions and treatment recommendations as before, explaining that, if Plaintiff could get his weight below 250 pounds, he would be a potential candidate for surgery for the cervical spine and lumbar spine (A.R. 615-17). 5 A thoracic spine x-ray taken in May of 2014 showed dextroconvex scoliosis, degenerative marginal ostoephytes of the anterior and lateral endplates of the thoracic vertebral bodies, and degenerative osteosclerosis along the superior and inferior endplates of most thoracic vertebral bodies (A.R. 589-90). A cervical spine x-ray showed straightening of the cervical lordosis and degenerative marginal osteophytes off the anterior inferior endplate of C6 (A.R. 592-94). A lumbar spine x-ray showed levoconvex lumbar scoliosis, decreased disc height at T12(continued...) 11 1 The progress report of Dr. Marlowe’s Physician’s Assistant, dated 2 March 28, 2014, states that Plaintiff had suffered increased pain with 3 chiropractic treatment, so insurance authorization was requested for 4 the facet block at C2-C3 and occipital nerve block previously 5 suggested by Dr. Anguizola (A.R. 553). 6 return to modified work duties as of May 28, 2014, assertedly per Dr. 7 Jackson’s March 10, 2014 opinion (A.R. 556). 8 in no heavy lifting, pushing or pulling of 50 pounds, and no 9 “prolonged positioning of the cervical spine” (A.R. 556). The PA directed Plaintiff’s Plaintiff was to engage 10 11 On July 2, 2014, Dr. Marlowe noted that injections had been 12 denied and indicated “Release/P&S” (permanent and stationary), with 13 the same modified work restrictions as before (A.R. 557-59). 14 August 1, 2014, however, Dr. Marlowe returned Plaintiff to temporary 15 total disability status for six weeks, stating that Plaintiff’s pain 16 increased with driving and prolonged walking, and Plaintiff was still 17 awaiting insurance authorization for injections (A.R. 561-64). 18 November 20, 2014, Dr. Marlowe returned Plaintiff to the modified work 19 duties as assertedly per Dr. Jackson’s opinion (i.e., no repetitive 20 neck motion, no heavy lifting, pushing, or pulling, no “substantial 21 work” and no prolonged sitting or standing) (A.R. 684-87); see also 22 A.R. 691, 707, 716, 742, 992 (approving same modified work duties in On On 23 24 25 26 27 28 5 (...continued) L1 through L5-S1, degenerative marginal osteophytes off the right lateral and left lateral and superior and inferior endplate and at T12 through L5, degenerative marginal osteophytes off the anterior inferior endplates of T12 through L5 and anterior superior endplates of L1 through S1, and degenerative osteosclerosis involving the apposing endplates of T12-L1 through L5-S1 (A.R. 595-97). 12 1 December of 2014, and February, March, May and June of 2015). 2 3 Meanwhile, on January 13, 2015, pain management specialist Dr. 4 Hooman Rastegar reviewed diagnostic studies and evaluated Plaintiff 5 for occipital nerve blocks for Plaintiff’s headaches (A.R. 692-98). 6 Plaintiff complained of constant pain in his cervical spine radiating 7 to his shoulder and upper extremities with associated headaches (A.R. 8 692-93). 9 tenderness, a limited range of motion in the cervical spine and On examination, Plaintiff had paracervical muscle 10 tenderness over the occipital nerve (A.R. 694). Plaintiff then 11 weighed 312 pounds (id.). 12 neuralgia with a note to rule out cervical headaches and discogenic 13 pain (A.R. 695). 14 note to rule out facet arthropathy versus discogenic pain (A.R. 695). 15 Dr. Rastegar gave Plaintiff bilateral occipital nerve blocks, and 16 planned to repeat the blocks if they proved helpful (A.R. 696). 17 Rastegar indicated that, if the blocks proved unhelpful, he would 18 consider medial branch nerve blocks at C2-C4 (A.R. 696).6 Dr. Rastegar diagnosed bilateral occipital Dr. Rastegar also diagnosed axial neck pain with a Dr. 19 20 Consultative examiner Dr. Bahaa Girgis prepared an Internal 21 Medicine Evaluation dated January 29, 2015 (A.R. 667-72). Dr. Girgis 22 reviewed no medical records (A.R. 669). 23 diabetes, cervical disc disease and migraines (A.R. 667). 24 examination, Plaintiff reportedly walked and moved easily, weighed 293 25 pounds, had a limited range of motion in the neck, was able to get on 26 and off the examination table using a cane, and his gait was normal, Plaintiff complained of On 27 6 28 On February 11, 2015, Plaintiff reported to Dr. Marlowe that the nerve blocks did not help his migraines (A.R. 704-07). 13 1 although he “may require a cane for long-distance due to pain in his 2 neck” (A.R. 669-71). 3 diabetic neuropathy, well-controlled hypertension, cervical disc 4 disease status post slip and fall, and migraine headaches status post 5 trauma (A.R. 671-72). 6 require a cane for walking long distance “for pain control” (A.R. 7 671). 8 range of light work (i.e., Plaintiff could lift and carry 20 pounds 9 occasionally and 10 pounds frequently, stand and walk for six hours in Dr. Girgis diagnosed diabetes with possible Dr. Girgis again stated that Plaintiff may Dr. Girgis opined that Plaintiff would have the capacity for a 10 an eight-hour workday “with frequent stops of 10 minutes per hour,” 11 sit for six hours in an eight-hour workday, with occasional postural 12 activities, and no manipulation limits) (A.R. 672). 13 14 Dr. Girgis also completed a “Need for Assistive Hand-Held Device 15 for Ambulation” form indicating a “temporary” need for a cane for one 16 year due to cervical disc disease and chronic neck pain (A.R. 673). 17 The cane reportedly was needed for pain relief and for stairs, 18 inclines and uneven surfaces (A.R. 673). 19 that a cane was necessary for “prolonged ambulation” (i.e., for 20 distances greater than one block or 100 yards), but that Plaintiff 21 could stand and walk without a cane “at least” two hours in an eight- 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 14 Dr. Girgis also indicated 1 hour day (A.R. 673).7 2 3 Plaintiff’s pain management was transferred to Dr. Atef Rafla, 4 who reviewed the medical records and evaluated Plaintiff on April 2, 5 2015 (A.R. 722-33). 6 range of motion of the neck with severe muscle spasms, frequent 7 moderate to severe headaches with blurred vision, tingling, numbness 8 and weakness in the upper extremities, severe lower back pain, severe 9 muscle spasm and progressively limited range of motion of the lumbar Plaintiff complained of progressively limited 10 spine, with pain radiating to both legs and associated tingling, 11 numbness and weakness, and pain in both buttocks radiating to the 12 posterior and lateral thighs with numbness and tingling (A.R. 723). 13 On examination, Dr. Rafla reported loss of normal cervical lordosis, 14 pain on palpation from C4-C7, increased tone in the left trapezius 15 with point tenderness of severe myofascial pain on deep palpation with 16 severe guarding, positive cervical compression and distraction tests, 17 positive Adson test, limited range of motion in the cervical spine and 18 upper extremities and radiculopathy following dermatomal distribution 19 from C4-C7 (A.R. 725-28). 20 walking on heels and toes, straightening of lumbar lordosis, severe 21 myofascial pain and guarding on palpation of the lumbar spine, Dr. Rafla also reported some difficulty 22 23 24 25 26 27 28 7 Non-examining state agency physicians reviewed the record in April and June of 2015 and found Plaintiff capable of light work with occasional postural limitations, reportedly giving great weight to Dr. Girgis’ opinion (A.R. 95-122; see also A.R. 677 (state agency physician “Case Analysis” form dated April 6, 2015, stating, “No demonstrated need for a cane. Comment also made regarding CE [consultative examiner] statement regarding a cane.”)). State agency physicians reviewed Dr. Jackson’s May 20, 2015 opinion and gave this opinion “less weight” as “not supported by evidence” (A.R. 117-18). 15 1 tingling and numbness to the legs in the L3-S1 dermatomes, sharp 2 shooting pain down the thighs on palpation of the sacroiliac joints, 3 limited range of motion in the lumbar spine, “strongly positive” 4 straight leg raising tests, ambulation with a mild limp, and positive 5 Gaenslen’s sign, sacroiliac joint thrust and Patrick Fabere tests 6 (A.R. 725-28). 7 cervical paraspinal muscle spasms, cervical disc herniation, cervical 8 radiculitis/radiculopathy of both upper extremities, lumbar spine 9 sprain/strain, lumbar paraspinal muscle spasms, lumbar disc 10 herniations, lumbar radiculitis/radiculopathy of both lower 11 extremities, and sacroilitis of both sacroiliac joints (A.R. 730). 12 Dr. Rafla requested authorization for a cervical epidural steroid 13 injection at C7-T1 with catheter to C4-C7, and bilateral lumbar 14 epidural steroid injections at L5-S1 with catheter to L2-S1 (A.R. 730- 15 31). Dr. Rafla diagnosed cervical spine sprain/strain, Dr. Rafla also prescribed Norco (A.R. 731). 16 Plaintiff returned to Dr. Rafla on May 14, 2015, complaining of 17 18 worsening pain (A.R. 977-85). Dr. Rafla again requested authorization 19 for the epidural steroid injections and again prescribed Norco (A.R. 20 983, 986). 21 for the injections (A.R. 976). In June of 2015, Dr. Rafla again requested authorization 22 Prior to his surgery, Plaintiff regularly was prescribed Norco 23 24 for his pain. See, e.g., A.R. 911-12, 1037, 1044, 1053, 1061, 1088, 25 1106, 1115, 1129, 1144, 1153, 1159, 1168. 26 given left shoulder steroid injections on July 11 and November 28, 27 2016, which reportedly helped with the pain (A.R. 1070, 1075, 1136- 28 37). Plaintiff eventually was Plaintiff was given lumbar epidural steroid injections on 16 1 July 25 and August 29, 2016, which he reported gave him some relief 2 (A.R. 1104, 1113-14, 1126-27). 3 epidural steroid injection on September 27, 2016, which he reported 4 gave him no relief (A.R. 1086, 1096-97). 5 spine surgery on March 21, 2017 (A.R. 948-50, 956-69; see also A.R. 6 800-02, 847-48, 860, 888-89, 897-98, 940-47, 951-54 (pre-operative 7 evaluations and testing)). Plaintiff was given a cervical Plaintiff underwent cervical 8 9 II. Summary of Plaintiff’s Testimony and Statements. 10 The hearing occurred two months after the cervical spine surgery, 11 12 and Plaintiff then was wearing a temporary neck brace (A.R. 70, 75- 13 76). 14 he was receiving injections in his lower back and shoulders as well as 15 pain medication (A.R. 75-78). 16 depression and anxiety related to his asserted inability to work (A.R. 17 76-77).8 Plaintiff reported that he was still in a lot of pain for which Plaintiff was also being treated for 18 Plaintiff said he had been using a cane since 2013 because his 19 20 lower back would “give way” and almost cause him to fall (A.R. 69-70). 21 Plaintiff said that he walks up and down his block using a cane, takes 22 his two dogs for “little” walks using his cane, takes his medications, 23 sits on the couch watching television, and then, by 1 p.m., he has to 24 go back to bed for two to three hours to get off his feet (A.R. 71, 25 73). 26 walk, sit and stand because of compression on his spine (A.R. 71, 73- Plaintiff said his back and neck pain limit how long he can 27 8 28 The Court has not summarized the records regarding Plaintiff’s mental health treatment. 17 1 74). 2 Plaintiff estimated that he could lift up to ten pounds (A.R. 3 4 74). Plaintiff said he could walk for approximately one block at a 5 time (A.R. 74). 6 up to half an hour at a time, for a total of up to two hours a day 7 before his back would give out (A.R. 75). 8 could walk around his house without a cane, but said he had fallen at 9 home, and said that he used his cane whenever he walked any kind of Plaintiff estimated that he could be on his feet for Plaintiff admitted that he 10 distance (A.R. 71). Plaintiff had reported to his doctor shoulder 11 problems which assertedly limited Plaintiff’s reaching (A.R. 72). 12 According to Plaintiff, his doctor suggested a shoulder replacement, 13 but said that Plaintiff’s neck would need to be fixed before such a 14 shoulder replacement (A.R. 72). 15 16 In a Function Report - Adult form dated July 14, 2015 (pre- 17 surgery and before the date last insured), Plaintiff reported that his 18 back injuries prevented prolonged standing or sitting, his neck 19 prevented him from driving because he could not turn his neck quickly, 20 his migraines from his spine injury were debilitating, his orthopedic 21 pain was overwhelming, and without strong pain medication he would 22 have been in the hospital (A.R. 254). 23 flat was the best way to help with his pain (A.R. 254). 24 reported he could do his own laundry and could water plants for 10 25 minutes at a time (A.R. 256). 26 yards before needing to rest for five minutes (A.R. 259). 27 stated that he used a cane for walking (A.R. 260). 28 that Dr. Jackson recommended that someone do surgery on Plaintiff’s Plaintiff reported that lying Plaintiff Plaintiff reported he could walk 30 18 Plaintiff Plaintiff stated 1 back (A.R. 261).9 2 3 III. The ALJ Erred in Discounting Plaintiff’s Testimony and Statements 4 Regarding the Severity of Plaintiff’s Symptoms Without Stating 5 Legally Sufficient Reasons for Doing So. 6 7 Where, as here, an ALJ finds that a claimant’s medically 8 determinable impairments reasonably could be expected to cause some 9 degree of the alleged symptoms of which the claimant subjectively 10 complains, any discounting of the claimant’s complaints must be 11 supported by “specific, cogent” findings. 12 F.3d 1228, 1234 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 13 (9th Cir. 1995); but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th 14 Cir. 1996) (indicating that ALJ must state “specific, clear and 15 convincing” reasons to reject a claimant’s testimony where there is no See Berry v. Astrue, 622 16 17 18 19 20 21 22 23 24 25 26 27 28 9 In a Function Report - Adult - Third Party form also dated July 14, 2015, Plaintiff’s wife reported that Plaintiff’s pain limited everything he did, and that Plaintiff could not drive and had limited walking (A.R. 245). She stated that Plaintiff could walk to the mailbox once a day, but otherwise sat in his recliner and watched television or listened to music, or lay in bed and slept three to four hours (A.R. 246, 250). She stated that Plaintiff sometimes did laundry and washed dishes for approximately five minutes at a time, but he reportedly could not stand in one place for long (A.R. 248). Plaintiff’s wife also reported that Plaintiff’s doctor had told Plaintiff not to drive because turning his head made Plaintiff’s pain worse (A.R. 249). She also indicated that Plaintiff’s conditions affected his lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, stair climbing, memory and concentration (from the pain medications) (A.R. 251). She estimated that Plaintiff could walk 30 to 35 yards before needing to rest (A.R. 251). She reported that Plaintiff had been using a cane when he went out for appointments where he would have to walk “a lot” (A.R. 252). 19 1 evidence of malingering).10 2 suffice. 3 (the ALJ’s credibility findings “must be sufficiently specific to 4 allow a reviewing court to conclude the ALJ rejected the claimant’s 5 testimony on permissible grounds and did not arbitrarily discredit the 6 claimant’s testimony”) (internal citations and quotations omitted); 7 Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ 8 must “specifically identify the testimony [the ALJ] finds not to be 9 credible and must explain what evidence undermines the testimony”); 10 Smolen v. Chater, 80 F.3d at 1284 (“The ALJ must state specifically 11 which symptom testimony is not credible and what facts in the record 12 lead to that conclusion.”); see also Social Security Ruling (“SSR”) 13 96-7p (explaining how to assess a claimant’s credibility), superseded, 14 SSR 16-3p (eff. March 28, 2016).11 15 /// Generalized, conclusory findings do not See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) 16 17 18 19 20 21 22 23 24 10 In the absence of an ALJ’s reliance on evidence of “malingering,” most recent Ninth Circuit cases have applied the “clear and convincing” standard. See, e.g., Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2017); Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 101415 & n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ’s findings are insufficient under either standard, so the distinction between the two standards (if any) is academic. 11 25 26 27 28 The appropriate analysis under the superseding SSR is substantially the same as the analysis under the superseded SSR. See R.P. v. Colvin, 2016 WL 7042259, at *9 n.7 (E.D. Cal. Dec. 5, 2016) (stating that SSR 16–3p “implemented a change in diction rather than substance.”) (citations omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (suggesting that SSR 16–3p “makes clear what our precedent already required”). 20 1 In the present case, the ALJ discounted Plaintiff’s testimony and 2 statements as “inconsistent with the medical evidence of record” (A.R. 3 28). 4 positive, objective physical, clinical, and diagnostic findings 5 demonstrating degenerative changes at the cervical, thoracic and 6 lumbar spine” (A.R. 28). 7 underwent spine surgery in March of 2017 (less than three months after 8 the date last insured) (A.R. 28). 9 allegedly “routine and conservative” treatment “consisting primarily The ALJ acknowledged that the medical evidence “reveals The ALJ also acknowledged that Plaintiff However, the ALJ cited Plaintiff’s 10 of prescribed pain medication during the relevant period prior to the 11 date last insured” (A.R. 28). 12 inconsistency between Plaintiff’s asserted limitations and Dr. 13 Marlowe’s opinion that Plaintiff could return to work with modified 14 duties during a portion of the relevant time period (A.R. 28). The ALJ also cited an alleged 15 16 A limited course of treatment sometimes can justify the rejection 17 of a claimant’s testimony, at least where the testimony concerns 18 physical problems. 19 (9th Cir. 2005) (lack of consistent treatment, such as where there was 20 a three to four month gap in treatment, properly considered in 21 discrediting claimant’s back pain testimony); Meanel v. Apfel, 172 22 F.3d 1111, 1114 (9th Cir. 1999) (in assessing the credibility of a 23 claimant’s pain testimony, the Administration properly may consider 24 the claimant’s failure to request treatment and failure to follow 25 treatment advice) (citing Bunnell v. Sullivan, 947 F.2d 341, 346 (9th 26 Cir. 1991) (en banc)); Matthews v. Shalala, 10 F.3d 678, 679-80 (9th 27 Cir. 1993) (permissible credibility factors in assessing pain 28 testimony include limited treatment and minimal use of medications); See, e.g., Burch v. Barnhart, 400 F.3d 676, 681 21 1 see also Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) 2 (absence of treatment for back pain during half of the alleged 3 disability period, and evidence of only “conservative treatment” when 4 the claimant finally sought treatment, sufficient to discount 5 claimant’s testimony). 6 In the present case, however, it is highly doubtful Plaintiff’s 7 8 treatment accurately may be characterized as “conservative” within the 9 meaning of Ninth Circuit jurisprudence (even though Plaintiff’s 10 doctors sometimes used the term “conservative” to reference 11 Plaintiff’s treatment prior to his epidural injections and surgery, 12 see A.R. 543, 614, 633). 13 Plaintiff regularly sought treatment from several providers throughout 14 the alleged disability period, followed up as ordered and complied 15 with all treatment suggestions, including physical therapy, 16 acupuncture, and narcotic pain medication before ultimately being 17 approved for receiving multiple epidural injections and surgery. 18 Doctors recommended epidural injections and surgery for Plaintiff’s 19 spine as early as March of 2014, but delay in such treatment 20 apparently resulted from difficulty in securing authorization from 21 Plaintiff’s insurance provider. 22 inference regarding the accuracy of Plaintiff’s subjective complaints 23 properly may be drawn from insurance delays in authorizing recommended 24 treatment. 25 Cal. Aug. 16, 2016); Napier v. Colvin, 2015 WL 6159464, at *4 (C.D. 26 Cal. Oct. 20, 2015). 27 /// 28 /// As detailed above, the record shows that See A.R. 543, 614, 633. No negative See, e.g., Escobar v. Colvin, 2016 WL 4411484, at *3 (C.D. 22 1 Moreover, even Plaintiff’s pre-surgery treatment with Norco and 2 epidural steroid injections do not appear to have been “routine” or 3 “conservative,” as those terms are used in case law. 4 Childress v. Colvin, 2014 WL 4629593, at *12 (N.D. Cal. Sept. 16, 5 2014) (“[i]t is not obvious whether the consistent use of [Norco] (for 6 several years) is ‘conservative’ or in conflict with Plaintiff’s pain 7 testimony”); Aguilar v. Colvin, 2014 WL 3557308, at *8 (C.D. Cal. 8 July 18, 2014) (“It would be difficult to fault Plaintiff for overly 9 conservative treatment when he has been prescribed strong narcotic See, e.g., 10 pain medications”); Christie v. Astrue, 2011 WL 4368189, at *4 (C.D. 11 Cal. Sept. 16, 2011) (refusing to characterize as “conservative” 12 treatment including use of narcotic pain medication and epidural 13 injections). 14 15 With regard to the alleged inconsistency between Plaintiff’s 16 subjective complaints and Dr. Marlowe’s opinion, the ALJ could not 17 reject Plaintiff’s subjective statements and testimony on the sole 18 ground that the statements and testimony were not fully corroborated 19 by the medical evidence. 20 (9th Cir. 1998) (“lack of medical evidence” can be “a factor” in 21 rejecting a claimant’s credibility, but cannot “form the sole basis”); 22 see also Burch v. Barnhart, 400 F.3d at 681 (asserted inconsistencies 23 between a claimant’s subjective complaints and the objective medical 24 evidence can be a factor in discounting a claimant’s subjective 25 complaints, but cannot “form the sole basis”). See Reddick v. Chater, 157 F.3d 715, 722 26 27 28 In sum, the ALJ failed to state legally sufficient reasons to discount Plaintiff’s subjective complaints. 23 The Court is unable to 1 conclude that this error was harmless. “[A]n ALJ’s error is harmless 2 where it is inconsequential to the ultimate non-disability 3 determination.” 4 (citations and quotations omitted). 5 testified that, if someone were limited to lifting and carrying only 6 10 pounds, or if someone required the use of a cane for standing and 7 walking for more than two hours out of an eight-hour work day, it 8 would preclude Plaintiff’s past relevant work and there would be no 9 transferrable skills, which would direct a finding of disabled under Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) Here, the vocational expert 10 the Grids (A.R. 85, 90, 93). The vocational expert did not testify 11 there are jobs performable by a person as limited as Plaintiff claims 12 to be (A.R. 79-93). 13 14 IV. Remand for Further Administrative Proceedings is Appropriate. 15 16 Remand is appropriate because the circumstances of this case 17 suggest that further development of the record and further 18 administrative review could remedy the ALJ’s errors. 19 Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see also INS v. Ventura, 20 537 U.S. 12, 16 (2002) (upon reversal of an administrative 21 determination, the proper course is remand for additional agency 22 investigation or explanation, except in rare circumstances); Leon v. 23 Berryhill, 880 F.3d at 1044 (reversal with a directive for the 24 immediate calculation of benefits is a “rare and prophylactic 25 exception to the well-established ordinary remand rule”); Dominguez v. 26 Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court 27 concludes that further administrative proceedings would serve no 28 useful purpose, it may not remand with a direction to provide 24 See McLeod v. 1 benefits”); Ghanim v. Colvin, 763 F.3d at 1166 (remanding for further 2 proceedings where the ALJ failed to state sufficient reasons for 3 deeming a claimant’s testimony not credible); Treichler v. 4 Commissioner, 775 F.3d at 1101 n.5 (remand for further administrative 5 proceedings is the proper remedy “in all but the rarest cases”); 6 Vasquez v. Astrue, 572 F.3d 586, 600-01 (9th Cir. 2009) (a court need 7 not “credit as true” improperly rejected claimant testimony where 8 there are outstanding issues that must be resolved before a proper 9 disability determination can be made). There remain significant 10 unanswered questions on the present record. For example, it is not 11 clear whether the ALJ would be required to find Plaintiff disabled for 12 the entire claimed period of disability even if Plaintiff’s testimony 13 were fully credited. 14 Cir. 2010). 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// See Luna v. Astrue, 623 F.3d 1032, 1035 (9th 25 CONCLUSION 1 2 3 For all of the foregoing reasons,12 Plaintiff’s and Defendant’s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 DATED: April 17, 2019. 9 10 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 12 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 26
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