Timmy Max Cunningham v. Andrew Saul, No. 5:2020cv01484 - Document 17 (C.D. Cal. 2021)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. IT IS HEREBY ORDERED that the decision of the Commissioner is reversed for the period beginning March 1, 2019 and remanded for further proceedings consistent with this opinion. (see document for further details) (hr)
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Timmy Max Cunningham v. Andrew Saul Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TIMMY MAX C., 12 Plaintiff, 13 14 15 v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) No. EDCV 20-1484 AGR MEMORANDUM OPINION AND ORDER Plaintiff1 filed this action on July 27, 2020. The parties filed a Joint Stipulation 17 18 that addressed the disputed issues. The court has taken the matter under submission 19 without oral argument.2 20 Having reviewed the entire file, the court reverses the decision of the 21 Commissioner for the period beginning March 1, 2019 and remands for further 22 proceedings consistent with this opinion. 23 24 25 26 27 28 1 Plaintiff’s name has been partially redacted in compliance with Fed. R. Civ. P. 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 2 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge. (Dkt. Nos. 9, 10.) Dockets.Justia.com 1 I. 2 PROCEDURAL BACKGROUND 3 Plaintiff filed an application for disability insurance benefits on September 27, 4 2017, and alleged an onset date of February 21, 2015. Administrative Record (“AR”) 5 15. The application was denied initially and on reconsideration. AR 15, 63, 77. Plaintiff 6 requested a hearing before an Administrative Law Judge (“ALJ”). On September 3, 7 2019, the ALJ conducted a hearing at which Plaintiff and a vocational expert testified. 8 AR 32-51. On September 17, 2019, the ALJ issued a decision denying benefits. AR 9 12-27. On June 4, 2020, the Appeals Council denied review. AR 1-5. This action 10 followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this court has authority to review the 14 Commissioner’s decision to deny benefits. The decision will be disturbed only if it is not 15 supported by substantial evidence, or if it is based upon the application of improper 16 legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); 17 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 18 “Substantial evidence” means “more than a mere scintilla but less than a 19 preponderance – it is such relevant evidence that a reasonable mind might accept as 20 adequate to support the conclusion.” Moncada, 60 F.3d at 523. In determining whether 21 substantial evidence exists to support the Commissioner’s decision, the court examines 22 the administrative record as a whole, considering adverse as well as supporting 23 evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than 24 one rational interpretation, the court must defer to the Commissioner’s decision. 25 Moncada, 60 F.3d at 523. 26 27 28 2 1 III. 2 DISCUSSION 3 A. Disability 4 A person qualifies as disabled, and thereby eligible for such benefits, “only if his 5 physical or mental impairment or impairments are of such severity that he is not only 6 unable to do his previous work but cannot, considering his age, education, and work 7 experience, engage in any other kind of substantial gainful work which exists in the 8 national economy.” Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (citation and 9 quotation marks omitted). 10 B. The ALJ’s Findings 11 The ALJ found that Plaintiff met the insured status requirement through 12 December 31, 2020. AR 17. Following the five-step sequential analysis applicable to 13 disability determinations, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006),3 14 the ALJ found that Plaintiff had the severe impairments of degenerative joint disease of 15 the right knee with meniscus tear and right femur fracture. AR 17. The ALJ found that Plaintiff had the residual functional capacity to perform 16 17 medium work except that he can frequently push; pull; climb ramps, stairs, ladders, 18 ropes and scaffolds; balance; stoop (bend at the waist); kneel; crouch (bend at the 19 knees); crawl; walk on uneven terrain; and work at heights. AR 19. The ALJ concluded 20 that Plaintiff was unable to perform his past relevant work. AR 25. There are, however, 21 jobs that exist in significant numbers in the national economy that Plaintiff can perform 22 such as kitchen helper, counter supply worker, equipment washer. AR 26-27. 23 24 25 26 27 28 3 The five-step sequential analysis examines whether the claimant engaged in substantial gainful activity, whether the claimant’s impairment is severe, whether the impairment meets or equals a listed impairment, whether the claimant is able to do his or her past relevant work, and whether the claimant is able to do any other work. Lounsburry, 468 F.3d at 1114. 3 1 C. Residual Functional Capacity 2 The residual functional capacity (“RFC”) assessment measures the claimant’s 3 capacity to engage in basic work activities. Bowen v. New York, 476 U.S. 467, 471 4 (1986). The RFC is a determination of “‘the most [the claimant] can still do despite [the 5 claimant’s] limitations.’” Treichler v. Comm’r, 775 F.3d 1090, 1097 (9th Cir. 2014) 6 (citation omitted). The RFC assessment must be supported by substantial evidence. 7 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 8 9 Plaintiff contends that the ALJ improperly considered the treating medical records in favor of the opinions of the examining physician and state agency physicians. When 10 considering a medical source opinion, an ALJ evaluates several factors: (1) 11 supportability; (2) consistency with other evidence; (3) relationship with the claimant; (4) 12 specialization; and (5) other factors. 20 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)- 13 (5). The first two factors are the most important factors. 20 C.F.R. §§ 404.1520c(b)(2), 14 416.920c(b)(2). “‘If a treating or examining doctor’s opinion is contradicted by another 15 doctor’s opinion, an ALJ may only reject it by providing specific and legitimate reasons 16 that are supported by substantial evidence.’” Revels v. Berryhill, 874 F.3d 648, 654 (9th 17 Cir. 2017) (citations omitted). “When there is conflicting medical evidence, the 18 Secretary must determine credibility and resolve the conflict.” Thomas v. Barnhart, 278 19 F.3d 947, 956-57 (9th Cir. 2002) (citation and quotation marks omitted). 20 Plaintiff has not identified any treating records that contain functional 21 assessments that contradict the opinions of the examining physician, who examined 22 Plaintiff twice, during the period prior to March 2019. Medical records indicate that 23 Plaintiff suffered a fracture of the right femur at work on February 20, 2015. He 24 underwent surgery and was discharged on February 26, 2015 with instructions to allow 25 weightbearing as tolerated with the right knee brace in full extension. AR 247-48, 259, 26 264-65. Plaintiff subsequently reported pain with walking and activity. He had a 27 moderate right knee extension lag despite physical therapy. An MRI dated May 21, 28 2015 indicated longitudinal horizontal oblique tear of the posterior horn of the medial 4 1 meniscus, edema in the proximal tibia, signal alteration over the lateral meniscus, 2 severe tendinosis in the patellar tendon, intrasubstance tear of the proximal to mid 3 portion of the patellar tendon, and moderate interstitial tear of the distal quadriceps 4 tendon on a background of moderate tendinosis. On July 17, 2015, Plaintiff underwent 5 right knee arthroscopy, partial medial meniscectomy, and patellar tendon debridement. 6 AR 302, 309-10, 440-42. On July 28, 2015, Plaintiff denied any significant right knee 7 pain and continued his home exercise program. He had minimal extensor lag and 8 quadriceps strength was 4+/5. AR 381. 9 On August 27, 2015, Plaintiff had no extensor lag and quadriceps strength was 10 5/5. There was intermittent aching. AR 383. On September 15, 2015, Plaintiff reported 11 pain and swelling after walking more than three miles, and difficulty with steep inclines 12 and stairs. AR 495. On December 17, 2015, Plaintiff reported right anterior knee pain 13 made worse with squatting or activity such as carrying dogfood. There was some 14 fullness in the patellar tendon and mild tenderness. AR 403-04. Dr. Luna’s 15 recommendation for a work hardening program to allow Plaintiff to return to his previous 16 occupation was not approved. AR 404, 406. In 2016, Plaintiff reported right anterior 17 knee pain with squatting, kneeling and activity such as going up and down stairs, yard 18 work, and prolonged standing/walking. His physical examination remained largely 19 unchanged. AR 406, 408-09, 411-13, 417-18, 420; see also AR 444 (x-ray dated 20 3/14/16). On June 7, 2016, Dr. Luna suspected patellofemoral articular injury. AR 412. 21 Plaintiff continued to have pain along the anterolateral aspect of the right knee, crepitus 22 feeling over the lateral aspect of the right knee with motion of the knee and walking, and 23 crepitus under the right kneecap. He had pain with squatting, kneeling, and prolonged 24 standing/walking. AR 279, 324. An MRI on June 22, 2016 indicated a longitudinal 25 horizontal oblique tear of the posterior horn of the medial meniscus; a similar tear of the 26 posterior horn of the lateral meniscus; evidence of cystic degeneration of the ACL; 27 severe patellar tendinosis; moderate cartilage loss in the medial greater than lateral 28 femoral tibial compartments; and high grade cartilage fissure of the medial facet of the 5 1 patella. AR 280, 414, 445-47. Examination on January 16, 2017 indicated full range of 2 motion, severe patellofemoral crepitus with active motion of the right knee, and crepitus 3 over the lateral right knee iliotibial directly over the IT band. AR 279, 324. Conservative 4 treatment had been unsuccessful. AR 280. Plaintiff was diagnosed with symptomatic 5 painful hardware, lateral distal femur with iliotibial band friction syndrome; right 6 patellofemoral arthritis; and right medial meniscus tear. On January 16, 2017, Plaintiff 7 underwent removal of two distal interlocking screws subfascial of the right distal femur, 8 right knee arthroscopy with patellofemoral joint debridement, arthroscopic right knee 9 partial medial meniscectomy, and intraoperative fluoroscopy. AR 293. He was 10 discharged with weightbearing as tolerated in the right leg and gentle range of motion. 11 AR 295. 12 On January 31, 2017, Plaintiff reported improvement in overall right knee pain. 13 His gait was mildly antalgic on the right. His right knee had full range of motion. AR 14 327. He was prescribed physical therapy for six weeks for strengthening and range of 15 motion. AR 328. On March 22, 2017, Plaintiff had not gone to physical therapy. His 16 gait was nonantalgic. His right knee had full range of motion with no extension lag, no 17 crepitus, and quadriceps strength of 5/5. He was prescribed physical therapy for right 18 knee strengthening and range of motion. AR 329-30. During physical therapy, Plaintiff 19 reported pain of 3/10 at worst at 0/10 at best. He had excellent static and dynamic right 20 knee stability. Range of motion had minimal flexion limitation. Quadriceps strength was 21 4+/5. AR 369-70. On May 4, 2017, Plaintiff had completed physical therapy and 22 reported significant improvement and more activity. His gait was nonantalgic. His right 23 knee had full range of motion, was stable to varus and valgus stress, and had mild 24 patellofemoral crepitus. Plaintiff was able to perform a full squat and a partial single leg 25 squat on the right. AR 331. Plaintiff was doing well with improvement in right knee 26 strength and pain, and was approaching maximum medical improvement. AR 332. 27 On June 2, 2017, Plaintiff had undergone a qualified medical examination for 28 workers compensation purposes. On June 21, 2017, Plaintiff reported some 6 1 intermittent popping in the anterior aspect of the right knee. His gait was nonantalgic. 2 His right knee had full range of motion with moderate patellofemoral crepitus, and was 3 stable to varus and valgus stress. He was told to continue his home exercise program. 4 AR 333-34. On July 28, 2017, an x-ray of the right knee indicated minimal 5 chondrocalcinosis and no new findings. AR 346. 6 On October 4, 2017, Dr. Halbridge provided a supplemental orthopedic qualified 7 medical evaluation report. AR 574-77. Dr. Halbridge noted Plaintiff’s subjective 8 allegations of slight to moderate right knee pain, increased with descending stairs, and 9 dependence on others for shopping. Dr. Halbridge concluded that Plaintiff had a 7% 10 whole person impairment. AR 575-76. On November 22, 2017, Plaintiff reported that, 11 after doing some work around the house, he had pain in the right knee as well as pain 12 in the right hip down to the right knee. On examination, Plaintiff’s gait was antalgic on 13 the right. He had supple range of motion of the right hip and knee, and his right knee 14 was stable to varus and valgus stress. He had mild tenderness along the iliotibial (IT) 15 band and moderate patellofemoral crepitus. AR 335. On January 13, 2018, Plaintiff 16 had normal posture and gait. AR 542, 544. 17 On January 26, 2018, Dr. Karamlou performed an internal medicine evaluation. 18 AR 548-52. Plaintiff reported that it was painful to walk and he was using over-the- 19 counter pain medication. AR 548. Plaintiff had normal gait and balance. He was able 20 to generate 80 pounds of force with his right hand and 75 pounds of force with his left 21 hand. AR 549. Examination of his back and legs revealed normal findings. AR 550. 22 Plaintiff had normal muscle bulk and tone without atrophy. Motor strength was 5/5 in all 23 extremities. AR 551. Dr. Karamlou concluded that Plaintiff was capable of lifting/ 24 carrying 50 pounds occasionally and 25 pounds frequently. He could sit/stand/walk six 25 hours in an eight-hour workday. He could frequently push, pull, perform postural 26 activities, walk on uneven terrain, climb ladders and work at heights. AR 552-53. 27 On March 20, 2018, Plaintiff reported pain in the distal medial right thigh. His gait 28 was mildly antalgic on the right. His right hip and knee had supple range of motion, and 7 1 his knee was stable to varus and valgus stress. He had mild tenderness at the IT band 2 and moderate patellofemoral crepitus. AR 337. Dr. Luna advised Plaintiff to continue 3 his home exercise program and take over-the-counter NSAIDs for pain. AR 338. 4 On September 14, 2018, Plaintiff underwent another internal medicine evaluation 5 by Dr. Karamlou. AR 554-58. Plaintiff reported inflammation of the right knee, which 6 was painful with walking, and used over-the-counter pain medication. AR 554. Plaintiff 7 had normal gait and balance. He generated 98 pounds of force with his right hand and 8 72 pounds of force with his left hand. AR 555. Plaintiff’s right knee had inflammation 9 and reduced flexion of 110/130 degrees. AR 556. He had normal muscle bulk and tone, 10 and motor strength of 5/5. AR 557. Dr. Karamlou’s assessment of Plaintiff’s functional 11 capacity remained unchanged. AR 557-58. A state agency physician reviewed the 12 record and agreed with Dr. Karamlou’s conclusions. AR 72-74. 13 On January 22, 2019, Plaintiff reported intermittent numbness and aching pain in 14 the medial and plantar aspects of the right foot. His had very mild antalgic gait on the 15 right side. He had difficulty performing a partial squat. His right knee had full range of 16 motion, was stable to varus and valgus stress, and had moderate to severe 17 patellofemoral crepitus. There was some tenderness along the anterior and medial 18 distal thigh, and some numbness along the medial arch and plantar aspect of the right 19 foot. His right ankle and foot had normal range of motion. AR 560. Dr. Luna requested 20 x-rays and a nerve conduction study of the right lower extremity. AR 561. As the ALJ 21 noted, an x-ray of the right knee on March 11, 2019 indicated no significant change in 22 the extent of mild narrowing of the medial knee joint compartment or chondrocalcinosis. 23 AR 564. An x-ray of the right femur indicated no significant change in the mild 24 degenerative arthritic changes or extent of chondrocalcinosis in the knee joint. AR 565. 25 In March 2019, however, the medical record indicates that Plaintiff’s symptoms 26 materially worsened. On March 28, 2019, Dr. Schweller, as a qualified medical 27 examiner, performed a neurological examination. AR 567-70. Plaintiff complained of 28 right knee pain and instability with pain shooting to his right thigh after standing and 8 1 moving for 35 minutes. AR 568. Plaintiff had grip strength of 82 pounds with the right 2 hand and 80 pounds with the left hand. Motor strength was 5/5 in all extremities. 3 Plaintiff had some crepitus along the right lateral and medial knee, and some left knee 4 tenderness. AR 568-69. Dr. Schweller’s impression was internal derangement of the 5 right knee and right plantar fasciitis. He intended to prepare a supplemental report after 6 doing an EMG and nerve conduction study.4 AR 569. At the September 2019 hearing, 7 Plaintiff testified that he could lift about 20 pounds and described activities consistent 8 with that weight estimate. AR 41.5 Plaintiff testified that, for about the past eight 9 months, he had tried to lift more but his leg buckled. AR 44. The ALJ discounted this 10 testimony due to the lack of corroborating evidence. AR 22. However, Plaintiff’s 11 testimony was consistent with his complaint to Dr. Schweller six months earlier in March 12 2019. The decision whether to remand for further proceedings is within the discretion of 13 14 the district court. Treichler, 775 F.3d at 1099. When there are outstanding issues that 15 must be resolved before a determination can be made, and it is not clear from the 16 record that the ALJ would be required to find the claimant disabled if all the evidence 17 were properly evaluated, remand is appropriate. Id. at 1101. However, where no useful 18 purpose would be served by further proceedings, or where the record has been fully 19 developed, it is appropriate to exercise this discretion to direct an immediate award of 20 benefits. Id. It appears that Plaintiff would be entitled to benefits as of March 1, 2019, 21 when he is limited to light work, under 20 C.F.R. § 404.1568(d)(4). Nevertheless, the 22 court will remand the matter for the Commissioner to determine whether it must further 23 develop the record by obtaining Dr. Schweller’s supplemental report, if any, prior to 24 awarding benefits as of March 1, 2019. 25 26 27 28 4 The record does not contain a supplemental report. 5 Plaintiff testified at the hearing that he then had trouble doing yard work such as weed whacking for more than 1½ hours. AR 39, 45. 9 1 IV. 2 ORDER 3 IT IS HEREBY ORDERED that the decision of the Commissioner is reversed for 4 the period beginning March 1, 2019 and remanded for further proceedings consistent 5 with this opinion. 6 7 DATED: July 14, 2021 ALICIA G. ROSENBERG United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10