Maribel Alvarado v. Carolyn W. Colvin, No. 8:2014cv01510 - Document 16 (C.D. Cal. 2015)

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 andREMANDING this action for the award of benefits. (See document for further details). (sbou)

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Maribel Alvarado v. Carolyn W. Colvin Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARIBEL ALVARADO, Plaintiff, 12 13 14 15 Case No. SACV 14-1510 (SS) v. MEMORANDUM DECISION AND ORDER CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant. 16 17 18 19 I. 20 INTRODUCTION 21 Plaintiff Maribel Alvarado (“Plaintiff”) brings this action 22 seeking to reverse the final decision of the Commissioner of the 23 Social Security Administration denying her application for 24 Disability Insurance Benefits and Supplemental Security Income. 25 The parties consented, pursuant to 28 U.S.C. § 636(c), to the 26 jurisdiction of the undersigned United States Magistrate Judge. 27 For the reasons stated below, the decision of the Commissioner is 28 Dockets.Justia.com 1 REVERSED and the action is REMANDED for an award of benefits 2 consistent with this decision. 3 4 II. 5 PROCEDURAL HISTORY 6 7 Plaintiff filed applications for Disability Insurance 8 Benefits and Supplemental Security Income on July 28, 2010, and 9 August 10, 2010, respectively. (AR 158-63, 164-68). Plaintiff 10 alleged disability beginning on March 16, 2004. (AR 160, 164). 11 Both applications were denied on initial review. (AR 111-14, AR 12 115—7). 13 (AR 118-22, 123-27). 14 administrative law judge, and a hearing (the “ALJ Hearing”) was 15 held 16 Administrative Law Judge John Kays (“the ALJ”). 17 102). 18 Plaintiff testified at the hearing, along with Dr. Samuel Landau, 19 a Medical Expert, and Alan Boroskin, a Vocational Expert. 20 81-102). 21 decision, finding that Plaintiff was not disabled and was capable 22 of performing her past work as an office clerk. 23 Plaintiff sought review of the ALJ’s decision before the Appeals 24 Council, which the Council denied on July 22, 2015. 25 a result, the ALJ’s decision became the final decision of the 26 Commissioner. 27 25, 2015. 28 \\ The applications were also denied upon reconsideration. on August Plaintiff Plaintiff requested a hearing before an 6, was 2012 in represented Orange, by California, counsel. before (AR 128, 81(AR 35, 156). (AR On September 20, 2012, the ALJ issued an unfavorable (AR 1-6). (AR 35-49). (AR 1). As Plaintiff filed this action on February 2 1 III. 2 FACTUAL BACKGROUND 3 4 Plaintiff was thirty-two years old at the alleged onset of 5 her disability on March 16, 2004. 6 March or April of 2004 as an office clerk for an automobile 7 finance company. 8 (AR 9 suffered 186). In from (AR 89). her (AR 160). She completed the eleventh grade. application, bilateral She last worked in carpal Plaintiff tunnel alleged syndrome, that back she pain, 10 depression 11 developed carpal tunnel syndrome at her last job, where an expert 12 found that her work station was improperly set up with regard to 13 the repeated reaching that was required. and migraines. (AR 186). She alleges that she (AR 89-90). 14 15 A. Plaintiff’s Medical History 16 17 1. Mark Giglio, M.D. 18 19 Dr. Mark Giglio is Plaintiff’s general care physician, and 20 records show that he has been treating Plaintiff on a monthly 21 basis since approximately June 2006. 22 2006, Dr. Giglio ordered a CT scan of the pelvis, which showed an 23 enlarged 24 surrounding the gallbladder. 25 Plaintiff presented with depression and requested a prescription 26 to help with her alcohol addiction. 27 increased her alcohol consumption in 2004, after her multiple 28 carpal tunnel surgeries and resulting complications. spleen and liver as well (AR 2150, 2248). as thickness (AR 2336-37). 3 In July and fluid In October 2006, (AR 2244). Plaintiff had (Id.). Dr. 1 Giglio diagnosed Plaintiff with alcohol dependence with episodic 2 drinking behavior and depression. 3 Plaintiff reported that she completed an alcohol detoxification 4 program and that a psychiatrist, Dr. Michael Wu, was treating her 5 for depression. 6 enlarged liver, though Plaintiff was not drinking again. 7 2232). 8 past two months, for which Dr. Giglio prescribed medication. 9 2218-19). (AR 2242). (AR 2246). In March 2007, Examination in June 2008 showed an (AR In April 2009, Plaintiff reported daily headaches for the (AR Dr. Giglio also referred Plaintiff to a neurologist 10 for 11 ultrasound of the abdomen revealed an enlarged liver and spleen, 12 consistent with underlying cirrhosis. 13 Plaintiff 14 sadness, weight gain, and a lack of motivation. 15 the 16 Plaintiff’s antidepressant medications to relieve her symptoms. 17 (AR 18 depression 19 medications prescribed by her new treating psychiatrist, Dr. Greg 20 Sentenn. migraine treatment. reported ensuing symptoms follow-up 2187-92). (AR In symptoms 2204-09). of were Dr. 2012, April (AR 2334). depression, visits, January In Giglio fatigue, (AR 2193). continued by an In May 2011, including Plaintiff controlled 2011, reported to Over adjust her combination a that of (AR 2179). 21 22 In January 2012, Dr. Giglio completed a Multiple Impairment 23 Questionnaire on the basis of his monthly treatment of Plaintiff. 24 (AR 25 following diagnoses: chronic major depression, alcoholic liver 26 disease 27 headaches, hypothyroidism, carpal tunnel syndrome and fatigue. 28 (AR 2150-57). with 2150). In the cirrhosis, Questionnaire, lumbar Plaintiff’s major 4 disc Dr. Giglio disease, symptoms noted the multi-factorial included fatigue, 1 insomnia, nausea, headaches, weight gain, anxiety and depression. 2 (AR 3 stand/walk for no more than one hour each, with the need to get 4 up every thirty minutes, and that she could lift and carry only 5 five pounds frequently and ten pounds occasionally. 6 54). 7 perform fine and gross manipulations and reach with either arm 8 due to carpal tunnel syndrome in both hands. 9 keep her neck in a constant position. 2150-51). He estimated that Plaintiff could sit or (AR 2153- Plaintiff would have moderate limitations in her ability to Id. She could not (AR 2154). Dr. Giglio 10 indicated that Plaintiff’s symptoms would “frequently” interfere 11 with her attention and concentration, and she was capable of only 12 a “low stress” work environment. 13 than three work days each month due to her impairments. 14 2155-56). Plaintiff would also miss more (AR 15 16 2. Rick Pospisil, M.D. 18 Dr. Rick 19 surgeon. 20 pain in both wrists and in the low back. 21 diagnosed 22 status post attempted release of right wrist on January 18, 2005, 23 post-operative swelling and stiffness suggestive of a causalgia 24 or complex regional pain syndrome and lumbar strain. 25 45). 26 EMG consistent with ongoing moderate denervation due to right 27 carpal tunnel syndrome and mild to chronic denervation due to 28 left carpal tunnel syndrome, and the NCV consistent with moderate 17 Pospisil is Plaintiff’s treating orthopedic Plaintiff first saw Dr. Pospisil on March 7, 2005 for Plaintiff with carpal tunnel (AR 936). Dr. Pospisil syndrome bilaterally, (AR 944- EMG and NCV studies from March 18, 2005 were abnormal, the 5 1 to severe right carpal tunnel syndrome and moderate left carpal 2 tunnel syndrome. (AR 948-51). 3 4 On May 25, 2005, an MRI of Plaintiff’s right wrist ordered 5 by Dr. Pospisil revealed an ulnar artery aneurysm of the right 6 palm. 7 surgically repaired the aneurysm. 8 operative follow-up visit on November 1, 2005, Dr. Salibian found 9 that (AR 1013-14). Plaintiff On September 20, 2005, Dr. Arthur Salibian could use (AR 1056-57). Plaintiff’s right At the post- hand without any 10 restrictions. 11 noted that her right hand, low back and shoulder continued to 12 improve, but examination still showed complications with the left 13 wrist. 14 that Plaintiff remained symptomatic in the left hand, reporting 15 pain, 16 finger and thumb. (AR 1090). (AR 1085-88). numbness and On November 2, 2005, Dr. Pospisil On November 28, 2005, Dr. Pospisil noted tingling in the left index finger, third (AR 1094). 17 18 On January 20, 2006, Dr. Pospisil performed a carpal tunnel 19 release on Plaintiff’s left wrist. 20 2006, an exam showed minimal swelling and good mobility with 21 negative Phalen’s signs in both wrists and no dysthesias, but 22 Plaintiff 23 wrists with radiation into all fingers. 24 28, 2006, Plaintiff reported that she felt numbness and tingling 25 in her hands, the left worse than the right. 26 January 15, 2007, Plaintiff continued to have dysesthesias in 27 both hands, the left worse than the right, with mid- and upper 28 back pain. was still reporting (AR 1214-15). (AR 1133-34). numbness and On May 1, tingling (AR 1169-70). in both On June (AR 1178). On Plaintiff reported the same symptoms 6 1 at monthly visits between February and July 2007. 2 On October 1, 2007, the examination showed spasm and tenderness 3 in the low back, with slight restriction of lumbar mobility, as 4 well as dysesthesias to light touch. 5 precluded Plaintiff from repetitive fine motion of either hand or 6 lifting more than fifteen pounds with either hand. (AR 1222-52). (AR 1293). Dr. Pospisil (AR 1294). 7 8 In 9 compensation January 2008, Agreed Dr. Pospisil Medical adopted Examiner’s a workers’ restrictions on 10 Plaintiff’s abilities, precluding Plaintiff from repetitive fine 11 motion of the hand and lifting more than fifteen pounds. 12 1329). 13 positions as necessary and avoid all pushing, pulling, carrying, 14 and lifting because of her back symptomatology. 15 February 2008, Plaintiff noted that the back pain had worsened, 16 and Dr. Pospisil precluded her from more than occasional fine 17 motion of the hands, lifting more than fifteen pounds, carrying 18 and/or lifting more than fifteen pounds and pushing or pulling 19 more than twenty pounds. 20 Plaintiff needed the opportunity to change positions as necessary 21 to relieve pain. (AR Dr. Pospisil added the need for Plaintiff to change (AR 1334). (AR 1329). In He again reported that 22 23 On April 30, 2008, Dr. Pospisil diagnosed Plaintiff with 24 lumbar strain with lower extremity radiculopathy, supported by 25 MRI 26 reported continued pain in her low back, radiating into her lower 27 extremities, and pain in both wrists. 28 symptoms and Dr. Pospisil’s clinical findings remained constant findings. (AR 1364). On 7 January 12, 2009, (AR 1498-99). Plaintiff Plaintiff’s 1 throughout regular visits between February and December 2009. 2 (AR 1509-12, 1547-48, 1574-77, 1591-94, 1608-11, 1643-46, 1659- 3 62, 1677-80, 1692-95). 4 5 On September 19, 2011, Dr. Pospisil completed an Upper 6 Extremity Impairment Questionnaire on the basis of his treatment 7 of Plaintiff since 2008. 8 cervicogenical headaches, lumbar disc protrusion, and residual 9 carpal tunnel syndrome status post three release procedures. (AR 2125). He diagnosed Plaintiff with (AR 10 2125). 11 could lift or carry only ten pounds occasionally and five pounds 12 frequently, had moderate limitations in her abilities to perform 13 gross 14 limitations in her abilities to reach with either arm, would need 15 to take ten to fifteen minute breaks four to six times a day, and 16 that she would likely miss three or more workdays each month due 17 to her impairments. 18 restricted her from all pushing, pulling, kneeling, bending and 19 stooping. In the Questionnaire, Dr. Pospisil opined that Plaintiff and fine manipulations with her right hand, moderate He also marked that Plaintiff’s impairments (AR 2130). 20 21 3. Andrew Morovati, M.D. 22 23 Dr. Andrew Morovati, a neurologist, began treating Plaintiff 24 for migraines on March 3, 2011. 25 with Dr. Jack Florin, another treating neurologist. 26 Plaintiff began seeing Dr. Florin in March 2010 and reported 27 suffering headaches on a daily basis for the last two years. 28 838-39). (AR 2104). Dr. Morovati works (AR 2104). (AR Dr. Florin diagnosed chronic migraine without aura and 8 1 cervical dystonia. 2 migraines 3 injections provided a five to ten percent improvement in the 4 severity of her headaches and that she was only headache-free for 5 five to six hours each day. 6 Florin completed a Treating Physician’s Migraine Headache Form 7 and indicated that Plaintiff’s headaches occur more than once a 8 week, lasted an average of two to three hours each, two to three 9 times a day, caused nausea, photophobia, phonophobia and were with (AR 839). Botox, and Dr. Florin treated Plaintiff’s Plaintiff reported (AR 832). that the Botox On October 12, 2010, Dr. 10 throbbing and pulsating. 11 had a “fair” response to Indocin, Botox, Cymbalta, Tylenol and 12 Topamax and had failed nerve blocks. 13 migraines would interfere with her ability to work and cause her 14 to miss two to three days of work per week. 15 2011, 16 ineffective and the oral medications were not working either. 17 (AR 2347). Plaintiff (AR 841). reported that He indicated that Plaintiff (Id.). the He opined that the (Id.). Botox In September injections were 18 19 Dr. Morovati began to treat Plaintiff for migraines in March 20 2011. 21 months. 22 and 23 modalities.” 24 completed a Headaches Impairment Questionnaire on the basis of 25 his treatment of Plaintiff. 26 Dr. 27 intense, accompanied by nausea and photosensitivity, occur daily 28 for up to eight hours, or sometimes the entire day, without any (AR 2104). Dr. Morovati treated her every two to three (AR 2143). “severe, Morovati daily, He described her migraines as “uncontrolled” and (AR 2104). wrote that unresponsive to multiple treatment On October 25, 2011, Dr. Morovati (AR 2143-48). Plaintiff’s 9 In the Questionnaire, headaches were severely 1 specific triggers. 2 frequently 3 concentration, that she would be incapable of tolerating a “low 4 stress” work environment and that she would likely miss more than 5 three days of work each month because of her headaches. 6 2146-47). severe (AR 2144). enough to He opined that her symptoms are interfere with her attention and (AR 7 8 B. Examining Physician’s Opinion 9 10 On March 25, 2011, state agency examining psychiatrist Fahmy 11 Ibrahim, M.D., performed a psychiatric evaluation of Plaintiff. 12 (AR 1931-35). 13 developed carpal tunnel syndrome and stopped working in 2004. 14 (AR 1932). 15 low 16 migraines. 17 to dress and bathe herself, tried to do house cleaning and cook 18 and had good relationships with her family and friends. 19 1933). 20 affect restricted. back Plaintiff reported feeling depressed since she She also stated that she is unable to work because of pain, limitations (Id.). on her standing and sitting and Dr. Ibrahim reported that Plaintiff was able (AR He reported that Plaintiff’s mood was depressed and her (Id.). 21 22 In his functional assessment, Dr. Ibrahim wrote that 23 Plaintiff’s ability to maintain focus and concentration is mildly 24 limited, 25 detailed instructions is mildly to moderately limited and her 26 ability to cope with workplace stress is mildly to moderately 27 limited. 28 \\ her ability (AR 1934). to understand and carry out complex or Plaintiff’s ability to relate and interact 10 1 with co-workers, colleagues and supervisors is normal, as is her 2 ability to understand and carry out simple instructions. Id. 3 4 C. Medical Expert’s Opinion 5 6 Dr. Samuel Landau testified at the ALJ Hearing that 7 Plaintiff suffered from degenerative disc disease of the neck and 8 low back, bilateral carpal tunnel lesions with pain, persistent 9 pain and headaches. (AR 83-84). Dr. Landau opined that 10 Plaintiff’s impairments would affect her ability to function. 11 (AR 84). 12 eight hours each day, could sit with breaks every two hours, 13 could lift and carry ten pounds frequently and twenty pounds 14 occasionally and could occasionally stoop or bend. 15 could climb stairs but could not climb ladders, work at heights 16 or 17 equipment 18 machinery, or doing work where the safety of others could be 19 compromised. 20 but 21 comfortable position at other times. 22 hold her head in a fixed position for fifteen to thirty minutes 23 at 24 grasping, 25 manipulation as required for keyboarding, opening drawers and 26 carrying files. 27 \\ 28 \\ Plaintiff could only stand and walk for two out of balance. or should a Id. time. or She motorized Id. avoid was restricted vehicles, from working Id. operating around She heavy unprotected She could engage in occasional neck motion, extremes, Id. She twisting, was but and should Id. precluded not Id. 11 from hold her head in a She could occasionally from forceful frequent fine gripping, and gross 1 Dr. Landau opined that Plaintiff could engage in frequent 2 fine 3 syndrome because the carpal tunnel was released and the aneurysm 4 repaired. 5 release may not have “made any difference at all . . . in her 6 symptoms.” and gross manipulation (AR 85-86). despite bilateral carpal tunnel Dr. Landau also acknowledged that the (AR 86). 7 8 D. Vocational Expert 9 10 Vocational Expert (“V.E.”) Alan Boroskin identified 11 Plaintiff’s past work in the Dictionary of Occupational Titles 12 (“DOT”) as “office clerk.” 13 performed 14 classifies it as light. this work at (AR 98). the He noted that Plaintiff sedentary level, though the DOT Id. 15 16 The ALJ then posed two hypotheticals to the V.E. First, the 17 ALJ proposed a hypothetical individual with the same education, 18 training 19 standing and walking for no more than two hours each day and 20 could 21 hours. 22 and 23 occasionally, but was precluded from jobs requiring her to use 24 ladders, 25 balance, operating heavy equipment or motor vehicles, or being 26 responsible for the safety and welfare of others. 27 The 28 forceful gripping or grasping, but she could engage in frequent and sit work without (AR 99). twenty history individual Plaintiff restriction, but who required was limited breaks every to two She could lift and carry ten pounds frequently pounds ropes, as or was occasionally scaffolding, also and work precluded 12 could at from stoop heights jobs or and bend requiring (AR 99-100). that required 1 fine 2 occasionally hold her head in a fixed position for fifteen to 3 thirty minutes at a time, though only in a comfortable position. 4 (AR 100). 5 individual 6 (Id.). 7 occasionally 8 handling, she would not be able to perform Plaintiff’s past work 9 as an office clerk. and gross manipulation such as keyboarding, and could The V.E. testified that that such a hypothetical would be However, use if her able to the perform Plaintiff’s hypothetical hands Id. for past work. individual manipulation fine could and only gross Additionally, if the hypothetical 10 individual experienced extreme pain for up to one third of the 11 day that prevented her from focusing on simple and repetitive 12 tasks, she could not work. 13 hypothetical, the V.E. testified that a hypothetical individual 14 who misses two days of work a month regularly would not be able 15 to do any work. (AR 100-01). In response to a second (AR 101). 16 17 E. 18 Plaintiff’s Testimony Before The ALJ And Statements On Her Benefits Application 19 20 Plaintiff testified that she suffers from carpal tunnel 21 syndrome in both hands. 22 surgeries, 23 bilateral 24 feeling that her hands “fall[ ] asleep.” 25 had problems typing. 26 lift light objects, but her hands would spasm if she lifted heavy 27 objects, and she “can’t get a good grip.” 28 \\ Plaintiff carpal (AR 89-90). continued tunnel to syndrome, (AR 93). After her carpal tunnel experience including symptoms numbness (AR 86, 93). and of the She also She was able to hold onto and 13 (AR 93-94). Plaintiff 1 testified that she cannot lift anything more than five or ten 2 pounds and that “it can’t be like an everyday situation.” 3 100). (AR 4 5 Plaintiff also described her back pain. (AR 94-95). She 6 could sit for only fifteen minutes at a time, alternating with 7 standing fifteen minutes. 8 her back because she was afraid this would interfere with her 9 ability to interact with her young child. (AR 94). She had not had surgery on Id. 10 11 Plaintiff testified that she suffered from migraines, a 12 condition 13 experienced migraines every day, and they sometimes lasted for 14 over 15 migraines, 16 migraine, she would lie down, close her eyes in a dark room, and 17 ice or heat her forehead. 18 saw a psychiatrist to treat her depression and experienced blurry 19 vision. a for week. but which Id. she She “nothing saw a tried neurologist. different works.” Id. Id. (AR 95). treatments When for She her experiencing a Plaintiff also testified that she (AR 96, 97). 20 21 Plaintiff did not have any difficulties with personal care. 22 (AR 206). 23 nineteen, and a pet, prepared meals, performed household chores, 24 read, 25 grandmother to doctors’ appointments, had lunch with a friend 26 occasionally, and shopped on a weekly basis. 27 It took her a long time to complete household chores and she 28 sometimes needed help to complete these tasks, as well as to She cared for her husband and two sons, aged nine and watched television, drove 14 a car, took her mother and (AR 205-09, 90). 1 bathe and change her clothes. 2 being an alcoholic but stated that she had not had any alcohol in 3 the last five years. (AR 207, 98). She admitted to (AR 97). 4 5 IV. 6 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 7 8 9 To qualify demonstrate a for disability medically benefits, determinable a claimant physical or must mental 10 impairment that prevents him from engaging in substantial gainful 11 activity1 and that is expected to result in death or to last for 12 a 13 Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 14 423(d)(1)(A)). 15 of performing the work he previously performed and incapable of 16 performing any other substantial gainful employment that exists 17 in the national economy. 18 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). continuous period of at least twelve months. Reddick v. The impairment must render the claimant incapable Tackett v. Apfel, 180 F.3d 1094, 1098 19 20 To decide if a claimant is entitled to benefits, an ALJ 21 conducts a five-step inquiry. 22 The steps are: 23 \\ 24 \\ 25 \\ 20 C.F.R. §§ 404.1520, 416.920. 26 27 28 1 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 15 1 (1) Is the claimant presently engaged in substantial 2 gainful activity? 3 not disabled. 4 If so, the claimant is found If not, proceed to step two. (2) Is the claimant’s impairment severe? 5 claimant is found not disabled. 6 If not, the to step three. If so, proceed 7 (3) Does the claimant’s impairment meet or equal one 8 on the list of specific impairments described in 9 20 C.F.R. Part 404, Subpart P, Appendix 1? 10 so, the claimant is found disabled. 11 If proceed to step four. 12 If not, (4) Is the claimant capable of performing his past 13 work? 14 If not, proceed to step five. 15 If so, the claimant is found not disabled. (5) Is the claimant able to do any other work? 16 not, the claimant is found disabled. 17 If claimant is found not disabled. If so, the 18 19 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 20 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); 20 C.F.R. 21 §§ 404.1520(b)-404.1520(f)(1) & 416.920(b)-416.920(f)(1). 22 23 The claimant has the burden of proof at steps one through 24 four and the Commissioner has the burden of proof at step five. 25 Bustamante, 262 F.3d at 953-54. 26 affirmative duty to assist the claimant in developing the record 27 at every step of the inquiry. 28 claimant meets his burden of establishing an inability to perform Additionally, the ALJ has an Id. at 954. 16 If, at step four, the 1 past 2 perform some other work that exists in “significant numbers” in 3 the national economy, taking into account the claimant’s residual 4 functional 5 Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 6 C.F.R. §§ 404.1520(f)(1), 416.920(f)(1). 7 so by the testimony of a vocational expert or by reference to the 8 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, 9 Subpart P, Appendix 2 (commonly known as “the Grids”). work, the Commissioner capacity, age, must show that education, and the claimant work can experience. The Commissioner may do Osenbrock 10 v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citing Tackett). 11 When 12 nonexertional limitations, the Grids are inapplicable and the ALJ 13 must take the testimony of a vocational expert. 14 216 F.3d 864, 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 15 F.2d 1335, 1340 (9th Cir. 1988)). a claimant has both exertional (strength-related) and Moore v. Apfel, 16 17 V. 18 THE ALJ’S DECISION 19 20 The ALJ employed the five-step sequential evaluation process 21 and concluded that Plaintiff was not disabled within the meaning 22 of the Social Security Act. 23 that 24 employment since her alleged onset date of March 16, 2004. 25 37). Plaintiff had not (AR 49). been At step one, the ALJ found engaged in substantial gainful (AR 26 27 28 At step two, the ALJ found that Plaintiff had the severe impairments of status-post bilateral 17 carpal tunnel releases, 1 degenerative disc disease of the lumbar spine, cervicalgia and 2 cervical dystonia and headaches. 3 Plaintiff’s other impairments, such as blurry vision, erosive 4 gastritis and depression, were not severe. 5 found that Plaintiff’s depression caused only mild limitations in 6 the 7 concentration, persistence or pace, and no extended episodes of 8 decompensation, and was therefore non-severe. functional areas of daily Id. The ALJ also found that living, (AR 38). social The ALJ functioning and (AR 37-38). 9 10 At step three, the ALJ found that Plaintiff does not have an 11 impairment or combination of impairments that meets or medically 12 equals the severity of from of the listed impairments in 20 13 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404 1520(d), 14 416.1525, 15 The ALJ then found that Plaintiff had the residual functional 16 capacity (“RFC”) to: 414.1526, 416.920(d), 416.925, 416.926). (AR 17 18 lift 19 pounds frequently; sit without restrictions but stand 20 or walk for only two hours in an eight–hour work day; 21 never 22 balance; only occasionally stoop or bend; never perform 23 forceful 24 perform fine and gross manipulation; only occasionally 25 hold her head in a fixed position for fifteen to thirty 26 minutes 27 comfortable position; never operate heavy equipment or 28 motor and carry climb twenty ladders, gripping at pounds a vehicles; or time ropes, or grasping and never must work 18 occasionally and hold at and scaffolds; only her heights; ten never frequently head and in a never 41). 1 perform jobs involving the safety operations or the 2 safety and welfare of others. Id. 3 4 The ALJ also specified that, in reaching this opinion, he had 5 considered all symptoms and the extent to which these symptoms 6 could reasonable be accepted as consistent with the objective 7 medical evidence and the other evidence. 8 considered opinion evidence in his finding as well. Id. He stated that he Id. 9 10 In considering Plaintiff’s symptoms, the ALJ followed a two- 11 step process in which he first determined whether there is an 12 underlying 13 impairment(s) that could reasonably be expected to produce the 14 Plaintiff’s 15 underlying impairment(s) 16 intensity, persistence, 17 symptoms to determine the extent to which they limit Plaintiff’s 18 functioning. 19 Plaintiff’s physicians and questioned their findings, ultimately 20 finding that the opinion of the testifying medical expert, Dr. 21 Landau, found the greatest support in the medical record. 22 48). 23 testimony. medically pain or Id. determinable other symptoms. had and physical been Id. shown, limiting or Next, after the evaluated he effects mental the of Plaintiff’s The ALJ reviewed the specific findings of (AR Accordingly, the ALJ gave “great weight” to Dr. Landau’s (Id.). 24 25 The ALJ questioned Plaintiff’s testimony and stated that 26 Plaintiff’s “allegations 27 limitations are 28 noting that Plaintiff’s activities, such as caring for her two not of generally corroborated 19 by disabling the evidence symptoms of and record,” 1 sons and husband, performing household chores, taking her mother 2 and grandmother to the doctor, having lunch with a friend, and 3 working 4 allegations 5 capable of performing appropriate work activities on an ongoing 6 and daily basis.” 7 determinable impairments could reasonably be expected to cause 8 the 9 intensity, persistence and limiting effects of these symptoms 10 in alleged her of son’s classroom, disability Id. symptoms, were not credible. and are “inconsistent indicate that [Plaintiff] with is The ALJ found that Plaintiff’s medically but Plaintiff’s statements about the Id. 11 12 At step four, the ALJ found that Plaintiff is capable of 13 performing her past work as an office clerk and that such work 14 does 15 precluded by Plaintiff’s RFC. 16 this finding was consistent with the testimony of the Vocational 17 Expert, Mr. Boroskin. 18 Plaintiff was not disabled. not require the performance of work-related (AR 48-49). (AR 49). activities The ALJ opined that As a result, the ALJ found that Id. 19 20 VI. 21 STANDARD OF REVIEW 22 23 Under 42 U.S.C. § 405(g), a district court may review the 24 Commissioner’s decision to deny benefits. The court may set aside 25 the Commissioner’s decision to deny benefits. “The court may set 26 aside the Commissioner’s decision when the ALJ’s findings are 27 based on legal error or are not supported by substantial evidence 28 in the record as a whole.” Auckland v. Massanari, 257 F.3d 1033, 20 1 1035 (9th Cir. 2001) (citing Tackett, 180 F. 3d at 1097); Smolen 2 v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. 3 Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 4 5 “Substantial evidence is more than a scintilla, but less 6 than a preponderance.” 7 v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). It is “relevant 8 evidence which a reasonable person might accept as adequate to 9 support a conclusion.” Reddick, 157 F.3d at 720 (citing Jamerson Id. (citing Jamerson, 112 F.3d at 1066; 10 Smolen, 11 evidence 12 record 13 evidence that detracts from the [Commissioner’s] conclusion.’” 14 Auckland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 15 953, 16 support either affirming or reversing that conclusion, the court 17 may not substitute its judgment for that of the Commissioner. 18 Reddick, 157 F.3d at 720-21 (citing Flaten v. Sec’y of Health & 19 Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). 80 F.3d at 1279). a finding, the whole, weighing both supports as 956 a (9th Cir. 1993)). To determine If court whether must evidence the substantial “ ‘consider the that supports and evidence can reasonably 20 21 VII. 22 DISCUSSION 23 24 Plaintiff contends that opinions of the ALJ improperly assessed and 25 rejected 26 (Compl. 27 treating physicians’ opinions been given proper weight, she would 28 have been found disabled. the 18, 21, 23). Plaintiff’s Plaintiff also (Compl. 25). 21 treating contends physicians. that had This Court agrees. the 1 A. 2 The ALJ Improperly Rejected The Treating Physicians’ Opinions 3 4 Plaintiff claims that the ALJ’s finding that Plaintiff can 5 perform frequent fine and gross manipulations like keyboarding, 6 the lifting and carrying requirements of light work and the non- 7 exertional 8 erroneous 9 Pospisil, Giglio and Morovati. 10 requirements rejection of of full-time the work opinions of is based treating (Compl. 21, 23). on an physicians The Court agrees. 11 12 The Ninth Circuit recognizes three types of physicians: (1) 13 treating 14 physicians, who examine but do not treat, and (3) non-examining 15 physicians who neither examine nor treat. 16 Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009). Treating 17 physicians 18 “employed to cure and [have] a greater opportunity to know and 19 observe the patient as an individual.” 20 F.3d 747, 751 (9th Cir. 1989); Thomas v. Barnhart, 278 F. 3d 947, 21 956-57 (9th Cir. 2002); Connett v. Barnhart, 340 F.3d 871, 874 22 (9th Cir. 2003). 23 opinion is refuted by another doctor, the ALJ may not reject this 24 opinion without providing specific, legitimate reasons, supported 25 by substantial evidence in the record. 26 821, 830-31 (9th Cir. 1995); see also Orn v. Astrue, 495 F.3d 27 625, 632 (9th Cir. 2007); Ryan v. Comm’r of Soc. Sec., 528 F.3d 28 1194, physicians, 1198 are (9th given who the examine and greatest treat, (2) examining Valentine v. Comm’r, weight because they are Magallanes v. Bowen, 881 Accordingly, where the treating physicians’ Cir. 2008). Where 22 Lester v. Chater, 81 F.3d the treating physician’s 1 opinion is not refuted by another doctor, the ALJ must provide 2 clear 3 physician’s 4 Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). The opinion of a 5 non-examining, not 6 substantial evidence to justify rejecting the opinion of either 7 an examining or a treating physician unless it is consistent with 8 and supported by other evidence in record. 9 831; Morgan v. Comm’r of Soc. Sec., 169 F.3d 595, 600-01 (9th 10 Cir. 1998). However, treating physicians’ opinions are not given 11 more weight if they are conclusory or not supported by medical 12 evidence. 13 (9th Cir. 2004). and convincing reasons for opinions. Lester, 81 non-treating rejecting F.3d physician at does the 830; treating Holohan v. constitute Lester, 81 F.3d at Batson v. Comm’r of Soc. Sec., 359 F.3d 1190, 1195 14 15 Here, the opinions of treating physicians Pospisil and 16 Giglio are contradicted by the opinion of Dr. Landau. 17 Plaintiff’s treating physicians are presumed to be in the best 18 position to assess Plaintiff’s functional limitations, the ALJ 19 must 20 substantial evidence in the record, for rejecting their opinions. 21 See Lester, 81 F.3d at 830; see also Magallanes, 881 F.2d at 751. 22 The ALJ found that Dr. Pospisil’s assessments were inconsistent 23 and lacked support in the record, and that Dr. Giglio’s opinions 24 also 25 legitimate because substantial evidence in the record does, in 26 fact, support the treating doctors’ opinions. 27 \\ 28 \\ provide lacked specific support in and the legitimate record. 23 reasons, These Because supported reasons are by not 1 Dr. Pospisil, Plaintiff’s treating orthopedic surgeon, 2 treated Plaintiff on a monthly basis, beginning in 2005, for both 3 her upper extremity and spinal impairments. 4 performed one of her carpal tunnel release procedures. 5 undergoing three procedures to treat her bilateral carpal tunnel 6 syndrome, Plaintiff continued to report numbness and tingling in 7 both 8 dysesthesias in both hands along with back pain. 9 1178, 1214-15, 1222-52, 1293). hands, and examinations showed Dr. Pospisil also that Despite Plaintiff had (AR 1169-70, In October 2007, Dr. Pospisil 10 precluded Plaintiff from repetitive fine motion of either hand or 11 lifting more than fifteen pounds with either hand. 12 In 13 repetitive 14 fifteen pounds with either hand. 15 Dr. Pospisil also precluded Plaintiff from all pushing, pulling, 16 carrying and lifting “because of her back symptomatology.” 17 In 18 motions of the hands “more than occasionally,” lifting more than 19 fifteen pounds, carrying and/or lifting more than fifteen pounds 20 and pushing or pulling more than twenty pounds. 21 September 22 Impairment Questionnaire in which he opined that Plaintiff could 23 lift 24 frequently, had moderate limitations in her abilities to perform 25 gross 26 limitations 27 restricted 28 stooping, would need to take short breaks four to six times a January 2008, fine February or carry fine in from Pospisil motion 2008, 2011, and Dr. Dr. Dr. only of either Pospisil ten all pushing, hand or completed to her reach pulling, 24 an more from than In January 2008, Plaintiff occasionally with Plaintiff lifting (AR 1329). pounds abilities precluded precluded Pospisil manipulations her again (AR 1294). from Id. fine (AR 1334). Upper and hand, with either kneeling, Extremity five right In pounds moderate arm, bending is and 1 day, and that she was likely to miss three or more workdays a 2 month because of her impairments. 3 assessments 4 which 5 (AR 84). were placed not fewer consistent (AR 2125-30). with restrictions on Dr. Dr. Pospisil’s Landau’s Plaintiff’s testimony, abilities. 6 7 The ALJ rejected Dr. Pospisil’s more restrictive assessments 8 of 9 inconsistencies in his assessments. Plaintiff’s abilities because of alleged (AR 42-43). internal Specifically, 10 the 11 allowing for Plaintiff to push and pull up to twenty pounds, was 12 inconsistent with his opinion in the 2011 Questionnaire, which 13 precluded 14 Plaintiff’s symptoms and limitations as early as 2007-08. 15 The ALJ also opined that the 2011 Questionnaire was inconsistent 16 with Dr. Pospisil’s October 2007 limitations report because the 17 former imposed only minimal limitations on fine manipulations 18 with the left hand, and the latter precluded all continuous, 19 repetitive fine motion with either the left or right hand. 20 Although these assessments did identify different limitations, it 21 is likely that Plaintiff’s condition was worse when Dr. Pospisil 22 completed the 2011 Questionnaire due to the passage of time. 23 Instead of addressing this likelihood, however, the ALJ rejected 24 the findings of the physician who had been treating Plaintiff for 25 nearly a decade. ALJ opined all that Dr. regular Pospisil’s pushing and February pulling 2008 and assessment, applies to Id. Id. 26 27 Dr. Giglio, Plaintiff’s primary care provider, was the only 28 other treating physician to have assessed Plaintiff’s functional 25 1 limitations due to residual carpal tunnel symptoms. 2 2012, Dr. Giglio completed a Multiple Impairment Questionnaire, 3 finding 4 occasionally and five pounds frequently and that she would have 5 moderate limitations in her ability to perform fine and gross 6 manipulations and reach with either arm. 7 rejected Dr. Giglio’s opinion, finding that it was contradicted 8 by the opinion of other doctors, including Dr. Pospisil. 9 46). that Plaintiff However, Dr. could lift Giglio’s or carry In January only ten (AR 2152-54). assessment in the pounds The ALJ (AR 45- January 2012 10 Questionnaire was almost identical to Dr. Pospisil’s September 11 2011 12 Plaintiff was moderately limited in her ability to perform fine 13 and gross manipulations with only the right hand. 14 2152-54). 15 conclude 16 findings of Plaintiff’s other physicians. assessment, save for Accordingly, that Dr. Dr. there Giglio’s Pospisil’s was no opinion basis was conclusion for that (AR 2129, the contradicted ALJ by to the 17 18 The ALJ found that Dr. Giglio’s “conclusions...lack 19 support,” but the medical evidence undermines this conclusion. 20 (AR 21 legitimate in the 22 record, for rejecting Drs. Pospisil and Giglio’s opinions. In 23 rejecting the treating physicians’ opinions, the ALJ adopted the 24 opinion of Dr. Landau, the medical expert. 25 Landau testified at the ALJ Hearing that Plaintiff was precluded 26 from forceful gripping, gasping or twisting, but not precluded 27 from 28 keyboarding, 46). Moreover, reasons, frequent fine opening the ALJ supported and gross drawers failed by to provide substantial 26 evidence (AR 41, 48, 84). manipulation, and specific carrying as required files. (AR and Dr. for 84). 1 According to Dr. Landau, Plaintiff could also lift and carry ten 2 pounds frequently and twenty pounds occasionally. 3 Landau’s opinion is not supported by substantial evidence in the 4 record. 5 reasons for disregarding the opinions of treating physicians who 6 cared 7 opinions supported by extensive treatment records. 8 §§ 404.1527(d)(2), (3); see also Holohan, 246 F.3d at 1207. The for the ALJ failed Plaintiff to for provide specific several year (Id.). and years Dr. legitimate and provided See 20 C.F.R. 9 10 The ALJ also failed to provide clear and convincing reasons 11 for rejecting the uncontradicted findings of treating neurologist 12 Andrew 13 Holohan, 246 F.3d at 1202. 14 opinions 15 support his assessments of Plaintiff, and because Plaintiff’s 16 treatment history reflects recent improvement in the frequency of 17 her migraines. 18 convincing because they lack substantial support in the record. Morovati, because as the required. See 81 F.3d at 830; The ALJ rejected Dr. Morovati’s “objective (AR 47). Lester, medical evidence” failed to These two reasons are not clear and 19 20 Plaintiff received treatment for migraines from Drs. Florin 21 and Morovati beginning in March 2010. 22 Plaintiff’s headaches occur more than once a week, last two to 23 three hours each, two to three times a day, cause nausea, and are 24 throbbing and pulsating. 25 would interfere with Plaintiff’s ability to work and that she 26 would miss two to three workdays each week. 27 Morovati found that Plaintiff’s headaches are severely intense, 28 accompanied by nausea and photosensitivity, occur daily for up to (AR 841). 27 Dr. Florin found that He opined that migraines Id. Similarly, Dr. 1 eight 2 specific 3 symptoms would frequently be severe enough to interfere with her 4 attention 5 tolerating even a “low stress” work environment and that she 6 would likely miss more than three workdays each month because of 7 her headaches. hours, sometimes triggers. and lasting (AR the 2144). concentration, that entire He day, opined she would and that be have no Plaintiff’s incapable of (AR 2146-47). 8 9 The treating neurologists’ notes show that Botox injections 10 were somewhat effective in relieving Plaintiff’s symptoms in late 11 2010. However, by September 2011, Plaintiff reported that the 12 injections were no longer consistently effective and none of the 13 oral medications worked. 14 became responsive to Botox injections again in November 2011 and 15 January 2012, but as of April 2013 they were “uncontrolled off 16 Botox.” 17 the preceding ten months, as her insurer would not approve such 18 frequent injections. 19 consistent with Plaintiff’s testimony at the hearing before the 20 ALJ, where she testified that she gets migraines every day and 21 that she has tried different treatments for her migraines but 22 “nothing works.” (AR 2490). (AR 2084-920, 2347). Her headaches Plaintiff had not had Botox treatments in (AR 2494-95). These medical records are (AR 95). 23 24 The ALJ rejected the opinions of the treating neurologists 25 for two reasons. 26 medical evidence, including the normal brain MRI and an absence 27 of significant neurological abnormalities,” failed to support the 28 neurologists’ restrictions on Plaintiff. First, the ALJ opined that “[t]he objective 28 However, neurological 1 examinations 2 neurological abnormalities, specifically cervical dystonia. 3 839, 4 suboccipitalis and temporalis tenderness, cervical dystonia with 5 30 degrees anterocolis and 30 degrees right lateral shift, and 6 slightly reduced cervical extension and rotation. 7 noted that Plaintiff’s brain MRI was “normal,” but did not rely 8 on any opinion from a medical professional in arriving at his 9 conclusion did show 836-37). that her Examinations that a normal headaches showed brain MRI are caused moderate (AR bilateral Id. undermines by The ALJ Morovati and 10 Florin’s restrictions on Plaintiff. 11 the neurologists failed to account for “recent improvement” in 12 the frequency of Plaintiff’s migraines. 13 record shows substantial evidence supporting the neurologists’ 14 assessments 15 constant. Thus, 16 convincing reasons 17 rejecting 18 required. that the Second, the ALJ opined that Plaintiffs’ migraines because the ALJ supported by treating did (AR 47). However, the remained not and clear and provide substantial neurologists’ severe evidence opinions, remand for is 19 20 Plaintiff also claims that the ALJ’s finding at step two 21 that Plaintiff’s depression imposes no mental restrictions on her 22 overall functional capacity is based on error. 23 20). 24 the evaluation at step two is a de minimis test intended to weed 25 out the most minor of impairments. 26 F.3d 27 threshold”); Smolen, 80 F.3d at 1290 (internal quotations and 28 citations The Court agrees with this contention. 683, 687 (9th omitted). Cir. Where 2005) there 29 (Compl. at 18- By its own terms, See Webb v. Barnhart, 433 (step is two is evidence “de of minimis a mental 1 impairment that prevents a claimant from working, however, the 2 Agency supplements the five-step sequential evaluation process 3 with additional inquiries. 4 (9th Cir. 5 Here, the 6 depression, 7 testimony, confirms that Plaintiff’s mental impairment qualified 8 as a “severe” impairment at step two. 9 Remand is required on this ground, as well. 1998) Maier v. Comm’r, 154 F.3d 913, 914-15 (per curiam) of treatment received with medical degree combined (citing the 20 C.F.R. by § 416.920a). Plaintiff evidence and for her her own (AR 2179, 2190-96, 2242). 10 11 B. If The Treating Physicians’ Opinions Were Given Proper 12 Weight, Plaintiff Would Be Found Disabled 13 14 The Court must ordinarily remand for an award of benefits 15 where 16 administrative proceedings would serve no useful purpose; (2) the 17 ALJ 18 rejecting 19 opinion; 20 credited as true, the ALJ would be required to find the claimant 21 disabled on remand.” 22 Cir. 2014) (citing, inter alia, Lingenfelter v. Astrue, 504 F.3d 23 1028, 1041 (9th Cir. 2007); Orn, 495 F.3d at 640; Smolen, 80 F.3d 24 at 25 flexibility to remand for further proceedings, rather than an 26 award, only where the record as a whole “creates serious doubt” 27 that a claimant is disabled. 28 \\ “(1) has the record failed has been fully to provide legally evidence, whether claimant and 1292). developed (3) The if the improperly sufficient testimony discredited and further reasons or for medical evidence were Garrison v. Colvin, 759 F.3d 995, 1020 (9th “credit-as-true” rule Id. at 1021. 30 allows courts the 1 Here, if the opinions of Plaintiff’s treating physicians had 2 been properly weighted, the ALJ would have found Plaintiff unable 3 to perform fine and gross manipulations, the lifting and carrying 4 requirements of light work, or the non-exertional requirements of 5 full-time work. 6 able to perform the work of an office clerk if she could only 7 occasionally 8 handling. 9 be no work,” if Plaintiff were to regularly miss two days of work The V.E. testified that Plaintiff would not be use her (AR 100). hands for fine manipulation and gross- The V.E. also testified that “there would 10 a 11 credited, 12 Plaintiff’s 13 would 14 Finally, a person who experiences extreme pain for up to one 15 third of the day, during which he or she cannot focus even on 16 simple and repetitive tasks, like Plaintiff, “could not work.” 17 (AR 101). 18 developed, that further administrative proceedings would serve no 19 useful purpose, and that if the discounted evidence were credited 20 as true, Plaintiff would be entitled to benefits. 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ month because the of medical treating migraines regularly miss impairments. physicians’ would two support days or (Id.). medical a If evidence regarding finding more of that work fully Plaintiff each month. The Court is satisfied that the record has been fully 28 31 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, it is ORDERED that Judgment 5 be 6 REMANDING this action for the award of benefits. 7 the Court shall serve copies of this order and the Judgment on 8 counsel for both parties. entered REVERSING the decision of the Commissioner and The Clerk of 9 10 DATED: June 29, 2015 11 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 12 13 14 15 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS, WESTLAW OR ANY OTHER LEGAL DATABASE. 16 17 18 19 20 21 22 23 24 25 26 27 28 32

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