Susanna Salcido v. Nancy A. Berryhill, No. 5:2018cv02214 - Document 22 (C.D. Cal. 2019)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. (See document for further details). (mr)
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Susanna Salcido v. Nancy A. Berryhill Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SUSANNA SALCIDO, 11 CASE NO. EDCV 18-2214 SS Plaintiff, 12 MEMORANDUM DECISION AND ORDER v. 13 ANDREW M. SAUL,1 Commissioner of Social Security, 14 15 Defendant. 16 17 18 I. 19 INTRODUCTION 20 21 Susanna Salcido (“Plaintiff”) brings this action seeking to 22 overturn the decision of the Acting Commissioner of Social Security 23 (the 24 disability benefits available to Medicare Qualified Government “Commissioner” or “Agency”) denying her application for 25 26 27 28 1 Andrew M. Saul, Commissioner of Social Security, is substituted for his predecessor Nancy A. Berryhill, whom Plaintiff named in the Complaint. See 42 U.S.C. § 405(g); Fed. R. Civ. P. 25(d). Dockets.Justia.com 1 Employees (MQGE). The parties consented pursuant to 28 U.S.C. 2 § 636(c) to the jurisdiction of the undersigned United States 3 Magistrate Judge. 4 below, the decision of the Commissioner is REVERSED, and this case 5 is REMANDED for further administrative proceedings consistent with 6 this decision. (Dkt. Nos. 11-13). For the reasons stated 7 8 II. 9 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 10 11 To qualify for disability benefits, a claimant must 12 demonstrate a medically determinable physical or mental impairment 13 that prevents the claimant from engaging in substantial gainful 14 activity and that is expected to result in death or to last for a 15 continuous period of at least twelve months. 16 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 17 The impairment must render the claimant incapable of performing 18 work 19 employment that exists in the national economy. 20 180 21 § 423(d)(2)(A)). previously F.3d performed 1094, 1098 or (9th any Cir. other 1999) Reddick v. Chater, substantial gainful Tackett v. Apfel, (citing 42 U.S.C. 22 benefits, an 24 Administrative Law Judge (“ALJ”) conducts a five-step inquiry. 20 25 C.F.R. §§ 404.1520, 416.920. 23 To decide if a claimant is entitled The steps are: 26 27 28 2 to 1 (1) Is the claimant presently engaged in substantial gainful 2 activity? 3 not, proceed to step two. 4 (2) Is the If so, the claimant is found not disabled. claimant’s impairment severe? 5 claimant is found not disabled. 6 three. 7 (3) If not, If the If so, proceed to step Does the claimant’s impairment meet or equal one of the 8 specific impairments described in 20 C.F.R. Part 404, 9 Subpart P, Appendix 1? 10 disabled. 11 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? If 12 so, the claimant is found not disabled. 13 to step five. 14 (5) If not, proceed Is the claimant able to do any other work? 15 claimant is found disabled. 16 not disabled. If not, the If so, the claimant is found 17 18 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 19 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)- 20 (g)(1), 416.920(b)-(g)(1). 21 The claimant has the burden of proof at steps one through four 22 23 and the Commissioner has the burden of 24 Bustamante, 262 F.3d at 953-54. 25 affirmative duty to assist the claimant in developing the record 26 at every step of the inquiry. at step five. 27 claimant meets his or her burden of establishing an inability to 28 perform past work, the Commissioner must show that the claimant Additionally, the ALJ has an Id. at 954. 3 proof If, at step four, the 1 can perform some other work that exists in “significant numbers” 2 in 3 residual functional capacity (“RFC”), age, education, and work 4 experience. 5 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 6 may do so by the testimony of a vocational expert (“VE”) or by 7 reference to the Medical-Vocational Guidelines appearing in 20 8 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as “the 9 grids”). the national economy, taking into account the claimant’s Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at The Commissioner Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 10 When a claimant has both exertional (strength-related) and non- 11 exertional limitations, the Grids are inapplicable and the ALJ must 12 take the testimony of a VE. 13 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 14 1988)). Moore v. Apfel, 216 F.3d 864, 869 (9th 15 16 III. 17 THE ALJ’S DECISION 18 19 The ALJ employed the five-step sequential evaluation process 20 and concluded that Plaintiff was not disabled within the meaning 21 of the Social Security Act (the “Act”). 22 the ALJ found that Plaintiff has not engaged in substantial gainful 23 activity since December 20, 2013, the alleged onset date.2 (AR 26-36). At step one, (AR 24 25 26 27 28 2 Plaintiff did not have sufficient quarters of coverage to qualify for DIB. (AR 418). She is, however, eligible for Medicare coverage based on a period of prior government employment if she meets DIB requirements as of her date last insured for Medicare coverage. 42 U.S.C. § 1395c. The ALJ found that Plaintiff meets the insured status requirements with respect to Medicare Qualified 4 1 28). At step two, the ALJ found that Plaintiff’s degenerative disc 2 disease of the lumbar spine; congenital thoracic scoliosis, with 3 an old, subtle vertebral fracture; fibromyalgia; and obesity are 4 severe impairments. 5 that Plaintiff does not have an impairment or combination of 6 impairments that meet or medically equal the severity of any of 7 the listings enumerated in the regulations.3 (AR 28). At step three, the ALJ determined (AR 29). 8 9 The ALJ then assessed Plaintiff’s RFC and concluded that she 10 can perform a limited range of light work as defined in 20 C.F.R. 11 § 404.1567(b) except:4 “[Plaintiff] should no more than frequently 12 climb ramps, stairs, ladders, ropes, and scaffolds; [Plaintiff] 13 should no more than frequently balance, stoop, kneel, crouch and 14 crawl.” 15 the ALJ found that Plaintiff is capable of performing past relevant 16 work as a nursery school attendant as generally performed in the (AR 29-30). At step four, based on the VE’s testimony, 17 18 Government Employees (MQGE) through December 31, 2018. see id. 418). 19 3 20 21 22 23 24 25 26 27 28 (AR 28; Specifically, the ALJ considered whether Plaintiff meets the requirements of listing 1.04 (disorders of the spine) and concluded that she does not. (AR 29). “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b). 4 5 1 national economy. (AR 35). Accordingly, the ALJ found that 2 Plaintiff was not under a disability as defined by the Act from 3 May 1, 2013, through the date of the decision. (AR 35-36). 4 5 IV. 6 STANDARD OF REVIEW 7 8 9 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s decision to deny benefits. “[The] court may set 10 aside the Commissioner’s denial of benefits when the ALJ’s findings 11 are based on legal error or are not supported by substantial 12 evidence in the record as a whole.” 13 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see 14 also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing 15 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). Aukland v. Massanari, 257 F.3d 16 17 “Substantial evidence is more than a scintilla, but less than 18 a preponderance.” Reddick, 157 F.3d at 720 (citing Jamerson v. 19 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 20 evidence which a reasonable person might accept as adequate to 21 support a conclusion.” 22 evidence supports a finding, the court must “‘consider the record 23 as a whole, weighing both evidence that supports and evidence that 24 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d 25 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 26 1993)). 27 or reversing that conclusion, the court may not substitute its 28 judgment for that of the Commissioner. (Id.). It is “relevant To determine whether substantial If the evidence can reasonably support either affirming 6 Reddick, 157 F.3d at 720- 1 21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 2 1457 (9th Cir. 1995)). 3 4 V. 5 DISCUSSION 6 7 A. The ALJ’s Reasons for Discrediting Plaintiff’s Subjective Symptom Testimony Were Not Supported By Substantial Evidence 8 9 On July 27, 2017, Plaintiff testified that she is unable to 10 11 work due to chronic, severe back pain. 12 therapy, acupuncture, and trigger injections have provided only 13 temporary relief. 14 in order to alleviate the pain. 15 walk for 30 minutes before needing to sit down, and can sit for 16 for 20 minutes before 17 278). 18 medications, including blurry vision, nausea, and headaches. 19 279). She (AR 277). (AR 276-77). Physical She must constantly change positions (AR 277). Plaintiff can stand or needing to get up and move around. experiences various side effects from her (AR pain (AR 20 21 When assessing a claimant’s credibility regarding subjective 22 pain or intensity of symptoms, the ALJ must engage in a two-step 23 analysis. 24 First, the ALJ must determine if there is medical evidence of an 25 impairment that could reasonably produce the symptoms alleged. 26 Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). 27 analysis, the claimant is not required to show that her impairment 28 could reasonably be expected to cause the severity of the symptom Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). 7 “In this 1 she has alleged; she need only show that it could reasonably have 2 caused some degree of the symptom.” 3 (citation omitted). 4 evidence of the pain or fatigue itself, or the severity thereof.” 5 Id. (citation omitted). Id. (emphasis in original) “Nor must a claimant produce objective medical 6 7 If the claimant satisfies this first step, and there is no 8 evidence of malingering, the ALJ must provide specific, clear and 9 convincing reasons for rejecting the claimant’s testimony about 10 the symptom severity. 11 see also Smolen, 80 F.3d at 1284 (“[T]he ALJ may reject the 12 claimant’s testimony regarding the severity of her symptoms only 13 if he makes specific findings stating clear and convincing reasons 14 for doing so.”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 15 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering 16 based on affirmative evidence thereof, he or she may only find an 17 applicant 18 credibility and stating clear and convincing reasons for each.”). 19 “This is not an easy requirement to meet: The clear and convincing 20 standard is the most demanding required in Social Security cases.” 21 Garrison, 759 F.3d at 1015 (citation omitted). not Trevizo, 871 F.3d at 678 (citation omitted); credible by making specific findings as to 22 23 24 In discrediting the claimant’s subjective symptom testimony, the ALJ may consider the following: 25 26 (1) ordinary techniques of credibility evaluation, such 27 as 28 inconsistent the claimant’s reputation statements concerning 8 for the lying, prior symptoms, and 1 other testimony by the claimant that appears less than 2 candid; 3 failure to seek treatment or to follow a prescribed 4 course 5 activities. (2) of unexplained treatment; or and (3) inadequately the explained claimant’s daily 6 7 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation 8 omitted). 9 conduct, or internal contradictions in the claimant’s testimony, Inconsistencies between a claimant’s testimony and 10 also may be relevant. 11 Cir. 2014); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 12 1997). 13 treating and examining physicians regarding, among other matters, 14 the functional restrictions caused by the claimant’s symptoms. 15 Smolen, 80 F.3d at 1284; accord Burrell, 775 F.3d at 1137. However, 16 it is improper for an ALJ to reject subjective testimony based 17 “solely” on its inconsistencies with the objective medical evidence 18 presented. 19 (9th Cir. 2009) (citation omitted). Burrell v. Colvin, 775 F.3d 1133, 1137 (9th In addition, the ALJ may consider the observations of Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 20 21 Further, the ALJ must make a credibility determination with 22 findings that are “sufficiently specific to permit the court to 23 conclude that the ALJ did not arbitrarily discredit claimant’s 24 testimony.” 25 2008) (citation omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 26 493 (9th Cir. 2015) (“A finding that a claimant’s testimony is not 27 credible must be sufficiently specific to allow a reviewing court 28 to conclude the adjudicator rejected the claimant’s testimony on Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 9 1 permissible grounds and did not arbitrarily discredit a claimant’s 2 testimony regarding pain.”) (citation omitted). 3 interpretation of a claimant’s testimony may not be the only 4 reasonable one, if it is supported by substantial evidence, “it is 5 not [the court’s] role to second-guess it.” 6 261 F.3d 853, 857 (9th Cir. 2001). Although an ALJ’s Rollins v. Massanari, 7 The ALJ found that Plaintiff’s degenerative disc disease, 8 9 congenital thoracic scoliosis, fibromyalgia, and obesity are 10 medically determinable impairments, and he made no finding of 11 malingering. 12 “diagnostic test results and physical examinations by [Plaintiff’s] 13 providers showed no more than mild abnormalities.” (AR 31). 14 ALJ’s supported 15 substantial evidence. (AR 28, 30-31). conclusions are Nevertheless, the ALJ concluded that contrary to law and not The by 16 17 First, the Ninth Circuit has consistently held that an ALJ 18 “may not discredit the claimant’s testimony as to the severity of 19 symptoms merely because they are unsupported by objective medical 20 evidence.” 21 1227; Kelly v. Berryhill, 732 F. App’x 558, 563 (9th Cir. 2018). 22 In any event, the ALJ misapprehends the medical evidence. 23 emphasized that diagnostic tests, including MRIs, x-rays, straight 24 leg raise, gait, strength, reflexes and sensation, were generally 25 normal. 26 1813, 1844). 27 the 28 impairment. ALJ Reddick, 157 F.3d at 722; accord Bray, 554 F.3d at The ALJ (AR 31) (citing id. 1207, 1412, 1474-75, 1630, 1680, 1693, However, Plaintiff suffers from fibromyalgia, which acknowledged (AR28). is a severe, medically determinable Fibromyalgia is “a rheumatic disease that 10 1 causes inflammation of the fibrous connective tissue components of 2 muscles, 3 Barnhart, 379 F.3d 587, 589 (9th Cir. 2004). 4 include “chronic pain throughout the body, multiple tender points, 5 fatigue, stiffness, and a pattern of sleep disturbance that can 6 exacerbate the cycle of pain and fatigue associated with this 7 disease.” 8 normal muscle strength, sensory functions, and reflexes. 9 v. Berryhill, 874 F.3d 648, 656 (9th Cir. 2017). tendons, ligaments, Id. at 590. and other tissue.” Benecke v. Typical symptoms Those suffering from fibromyalgia have Revels Because “there 10 are no laboratory tests to confirm the diagnosis,” fibromyalgia is 11 assessed “entirely on the basis of patients’ reports of pain and 12 other symptoms.” 13 at 657 (a “diagnosis of fibromyalgia does not rely on X-rays or 14 MRIs”). 15 fibromyalgia is well supported by the medical record, including 16 multiple trigger points, widespread tenderness, and fatigue. (AR 17 1811, 1937-41, 1963-65, 1988, 2009, 2159, 2248-51, 2397). 18 Plaintiff consistently complained of disabling pain to her medical 19 providers. 20 1617, 1628-29, 2181, 2248-51). Thus, the decision below improperly 21 discredited Plaintiff’s testimony of disabling pain merely because 22 of certain normal diagnostic tests, when Plaintiff suffers from a 23 disease that is not apparent from such tests. Here, Benecke, 379 F.3d at 590; see Revels, 874 F.3d as the ALJ acknowledged (AR 32), Plaintiff’s Further, (AR 31, 895, 929, 1108, 1190, 1192, 1411, 1474-75, 24 25 Second, the ALJ improperly discredited Plaintiff’s subjective 26 statements because she “reported improvement in her symptoms and 27 limitations with treatment.” 28 symptoms of fibromyalgia “wax and wane,” “after a claimant has (AR 33). 11 However, because the 1 established a diagnosis of fibromyalgia, an analysis of her RFC 2 should 3 Revels, 874 F.3d at 657 (quoting SSR 12-2p, at *6). 4 isolated records in November 2015 and March 2017 (AR 33, 1880, 5 2377) 6 Moreover, as Plaintiff testified (AR 277) and the ALJ acknowledged 7 (AR 31), regular epidural injections provided Plaintiff with only 8 temporary relief. consider is ‘a longitudinal insufficient to record undermine whenever Plaintiff’s possible.’” Thus, citing credibility. 9 Nor can Plaintiff’s treatment be considered “conservative” or 10 11 “routine.” 12 may discredit a claimant’s allegations of disabling symptoms. 13 e.g., Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) 14 (treatment with over-the-counter pain medication is “conservative 15 treatment” sufficient to discredit a claimant’s testimony regarding 16 allegedly disabling pain). 17 epidural 18 prescribed multiple pain medications, including Tramadol, a strong, 19 narcotic-like pain reliever, and management of pain through the 20 use of a TENS unit.5 21 medications, a TENS unit, and epidural and trigger point injections 22 cannot 23 Lapeirre-Gutt v. Astrue, 382 F. App’x 662, 664 (9th Cir. 2010) 24 (treatment consisting of “copious” amounts of narcotics, occipital 25 “Transcutaneous electrical nerve stimulation (TENS or TNS) is the use of electric current produced by a device to stimulate the nerves for therapeutic purposes.” <https://en.wikipedia.org/wiki/ Transcutaneous_electrical_nerve_stimulation> (last visited June 17, 2019). 26 27 28 (See AR 32-33). steroid fairly be and A conservative course of treatment See, Here, in addition to receiving periodic trigger point (AR 462). described as injections, Plaintiff was The consistent use of narcotic “conservative” 5 12 treatment. See 1 nerve blocks, and trigger point injections not conservative); 2 Madrigal v. Berryhill, No. CV 17 0824, 2017 WL 5633028, at *6 (C.D. 3 Cal. 4 prescription pain medications, including the narcotic medication 5 Norco, has received spinal injections, and has been referred for a 6 lap band surgery consultation, treatment that is not necessarily 7 conservative.”); Soltero De Rodriguez v. Colvin, No. CV 14-5765, 8 2015 WL 5545038, at *4 (C.D. Cal. Sept. 18, 2015) (management of 9 pain through medicine, NMS/TENS unit, and spinal injections not 10 Nov. 21, 2017) (“[P]laintiff has been prescribed strong conservative). 11 12 Finally, the ALJ erred in concluding that Plaintiff “engaged 13 in activities that are not consistent with her allegations of 14 severity.” 15 concluding that daily activities are inconsistent with [subjective 16 symptom testimony], because impairments that would unquestionably 17 preclude work and all the pressures of a workplace environment will 18 often be consistent with doing more than merely resting in bed all 19 day.” 20 activity is inconsistent with the claimant’s asserted limitations, 21 it has a bearing on credibility. 22 activities 23 testimony, the mere fact that a plaintiff has carried on certain 24 daily activities does not in any way detract from her credibility 25 as to her overall disability.” 26 and alterations omitted); see Orn v. Astrue, 495 F.3d 625, 639 (9th 27 Cir. 2007) (“This court has repeatedly asserted that the mere fact 28 that a plaintiff has carried on certain daily activities does not (AR 33). “ALJs must Garrison, 759 F.3d at 1016. may provide a Id. be especially cautious in If a claimant’s level of “Though inconsistent daily justification for rejecting symptom Revels, 874 F.3d at 667 (citation 13 1 in any way detract from 2 disability.”) 3 claimant “does not need to be utterly incapacitated in order to be 4 disabled.” 5 the decision below noted that Plaintiff exercised regularly, for 6 up to 20 minutes at a time, two to three days a week. 7 Nevertheless, the decision fails to explain how this level of 8 exercise undermines Plaintiff’s subjective statements that she can 9 stand or walk for only 30 minutes and can sit for only 20 minutes (citation her and credibility alterations as to her omitted). overall Indeed, Benecke, 379 F.3d at 594 (citation omitted). a Here, (AR 33). 10 before needing to change positions. 11 “gentle exercise” is part of Plaintiff’s treatment regimen for 12 fibromyalgia. 13 <www.mayoclinic.org> (last visited June 14, 2019). 14 emphasized that Plaintiff “continued to babysit her grandchildren, 15 which undoubtably takes a significant amount of exertional ability 16 and agility.” (AR 33). However, the record contains no description 17 of how old Plaintiff’s grandchildren are or what activities, if 18 any, Plaintiff engaged in with them. 19 confirmed 20 grandchildren three days a week, but asked no follow-up questions 21 to determine the exertional level the job entails. 22 Nor did the ALJ ask the VE to classify the babysitting job. 23 281). 24 Plaintiff’s part-time job babysitting her grandchildren is somehow 25 equivalent to the demands of a full-time nursery school attendant. (AR that 1963, Plaintiff Further, physical therapy and 1986, has a 1989, 2008, 2010); see The ALJ also At her hearing, the ALJ part-time job watching her (AR 275-76). (AR Thus, there is nothing in the record to demonstrate that 26 27 28 In sum, convincing the decision reasons, below supported failed by 14 to provide substantial clear evidence, and for 1 rejecting Plaintiff’s subjective symptoms. The matter is remanded 2 for further proceedings. 3 Plaintiff’s symptoms in accordance with the current version of the 4 Agency’s regulations and guidelines, taking into account the full 5 range of medical evidence. On remand, the ALJ shall reevaluate 6 7 ALJ’s RFC Assessment Is Not Supported By Substantial Evidence B. 8 9 “A claimant’s residual functional capacity is what he can 10 still do despite his physical, mental, nonexertional, and other 11 limitations.” 12 Cir. 1989) (citing 20 C.F.R. § 404.1545). 13 requires the ALJ to consider a claimant’s impairments and any 14 related symptoms that may “cause physical and mental limitations 15 that affect what [he] can do in a work setting.” 16 §§ 404.1545(a)(1), 416.945(a)(1). In determining a claimant’s RFC, 17 the 18 functional capacity assessments made by consultative examiners, 19 State 20 §§ 404.1545(a)(3), 21 416.913(c). ALJ Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th considers Agency all relevant physicians, and evidence, An RFC assessment including medical experts. see id. 416.945(a)(3); also 20 C.F.R. residual 20 C.F.R. §§ 404.1513(c), 22 23 In his decision, the ALJ found that Plaintiff retains the RFC 24 to perform a limited range of light work. 25 Plaintiff “should no more than frequently climb ramps, stairs, 26 ladders, ropes, and scaffolds; [and] should no more than frequently 27 balance, stoop, kneel, crouch and crawl.” 28 15 (AR 14). Specifically, (AR 29-30). Plaintiff 1 contends that the ALJ failed account for her “limited ability to 2 flex the lumbar spine.” (Dkt. No. 19 at 7-8). The Court agrees. 3 4 The medical record indicates that Plaintiff has a limited 5 ability to flex her lumbar spine. Prior to the alleged onset date, 6 there are multiple medical records indicating reduced range of 7 motion in Plaintiff’s lumbar spine. 8 1192). These limitations continued subsequent to the alleged onset 9 date. (AR 774, 885, 895, 1108, 1190, (AR 1474-75 (reduced range of motion in October 2014), 1630 10 (reduced range of motion in lumbar spine in November 2014) 1619 11 (consultative examiner finding in December 2014 that Plaintiff was 12 limited to 45 degrees of forward flexion; versus normal flexion of 13 90 degrees), 2181 (finding limited ability to flex the lumbar spine 14 in October 2016, measuring capacity at 60 percent of normal)). 15 While the ALJ acknowledged that Plaintiff’s degenerative disc 16 disease of the lumbar spine is a medically determinable impairment 17 that 18 activities (AR 28), the RFC does not account for Plaintiff’s 19 limited range of motion in her lumbar spine. significantly limits her ability to perform basic work 20 21 Defendant contends that the ALJ accommodated Plaintiff’s 22 limited ability to flex her back by limiting her to only frequent 23 stooping. 24 Plaintiff can stoop but instead whether someone who has significant 25 forward flex limitations can perform the demands of a nursery 26 school attendant. 27 school attendant requires the ability to frequently stoop (defined 28 as 1/3 to 2/3 of the day), the DOT does not discuss whether a (Dkt. No. 20 at 6). However, the issue is not how often While DOT 359.677-018 indicates that a nursery 16 1 person who is limited to 45 degrees of forward flexion, as Plaintiff 2 is, can perform any of the stooping required by the job.6 3 the ALJ should have explicitly inquired of the VE whether someone 4 who has significant forward flexion limitations can perform the 5 fulltime demands of a nursery school attendant. 6 that “Plaintiff herself pointed out that her past work required 7 constant bending unlike the DOT description . . . requiring only 8 frequent stooping.” 9 (citing AR 1216). Thus, Defendant argues (Dkt. No. 20 at 5) (emphasis in original) But the single medical record cited by Defendant 10 is from November 2012, more than a year prior to the alleged onset 11 date. 12 past work accommodated her impairment with a special chair and 13 limited standing and allowed her time off for physical therapy. 14 (AR 774, 786, 791). The record contains no evidence whether other 15 employers national 16 accommodations. In any event, the medical records indicate that Plaintiff’s in the economy would make these same 17 In 18 sum, the ALJ’s RFC assessment is not supported by 19 substantial evidence. 20 relevant evidence in assessing Plaintiff’s RFC and in deciding 21 whether 22 relevant work as a nursery school attendant. 23 to consider any relevant evidence, he must give some indication of Plaintiff truly On remand, the ALJ shall consider all is capable of returning to her past If the ALJ declines 24 25 26 The hearing transcript and the ALJ’s decision inadvertently describe the nursery school attendant position as “359.677-014” (AR 35, 282), which instead describes a “funeral attendant.” 6 27 28 17 1 the evidence he rejects and the reasons for discounting such 2 evidence.7 3 4 VI. 5 CONCLUSION 6 7 Accordingly, IT IS ORDERED that Judgment be entered REVERSING 8 the decision of the Commissioner and REMANDING this matter for 9 further proceedings consistent with this decision. IT IS FURTHER 10 ORDERED that the Clerk of the Court serve copies of this Order and 11 the Judgment on counsel for both parties. 12 13 DATED: June 18, 2019 14 15 16 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 17 18 19 20 THIS DECISION IS NOT INTENDED FOR PUBLICATION LEXIS/NEXIS OR ANY OTHER LEGAL DATABASE. IN WESTLAW, 21 22 23 24 25 26 27 28 7 Plaintiff also argues that the ALJ failed to properly consider her limited ability to stand and walk. (Dkt. No. 19 at 5-7). However, it is unnecessary to reach Plaintiff’s arguments on this ground, as the matter is remanded for the alternative reasons discussed at length in this Order. 18
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