SUZANNE H. SEGAL, Magistrate Judge.
Plaintiff Maribel Alvarado ("Plaintiff") brings this action seeking to reverse the final decision of the Commissioner of the Social Security Administration denying her application for Disability Insurance Benefits and Supplemental Security Income. The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the decision of the Commissioner is REVERSED and the action is REMANDED for an award of benefits consistent with this decision.
Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income on July 28, 2010, and August 10, 2010, respectively. (AR 158-63, 164-68). Plaintiff alleged disability beginning on March 16, 2004. (AR 160, 164). Both applications were denied on initial review. (AR 111-14, AR 115-7). The applications were also denied upon reconsideration. (AR 118-22, 123-27). Plaintiff requested a hearing before an administrative law judge, and a hearing (the "ALJ Hearing") was held on August 6, 2012 in Orange, California, before Administrative Law Judge John Kays ("the ALJ"). (AR 128, 81-102). Plaintiff was represented by counsel. (AR 35, 156). Plaintiff testified at the hearing, along with Dr. Samuel Landau, a Medical Expert, and Alan Boroskin, a Vocational Expert. (AR 81-102). On September 20, 2012, the ALJ issued an unfavorable decision, finding that Plaintiff was not disabled and was capable of performing her past work as an office clerk. (AR 35-49). Plaintiff sought review of the ALJ's decision before the Appeals Council, which the Council denied on July 22, 2015. (AR 1). As a result, the ALJ's decision became the final decision of the Commissioner. (AR 1-6). Plaintiff filed this action on February 25, 2015.
Plaintiff was thirty-two years old at the alleged onset of her disability on March 16, 2004. (AR 160). She last worked in March or April of 2004 as an office clerk for an automobile finance company. (AR 89). She completed the eleventh grade. (AR 186). In her application, Plaintiff alleged that she suffered from bilateral carpal tunnel syndrome, back pain, depression and migraines. (AR 186). She alleges that she developed carpal tunnel syndrome at her last job, where an expert found that her work station was improperly set up with regard to the repeated reaching that was required. (AR 89-90).
Dr. Mark Giglio is Plaintiff's general care physician, and records show that he has been treating Plaintiff on a monthly basis since approximately June 2006. (AR 2150, 2248). In July 2006, Dr. Giglio ordered a CT scan of the pelvis, which showed an enlarged spleen and liver as well as thickness and fluid surrounding the gallbladder. (AR 2336-37). In October 2006, Plaintiff presented with depression and requested a prescription to help with her alcohol addiction. (AR 2244). Plaintiff had increased her alcohol consumption in 2004, after her multiple carpal tunnel surgeries and resulting complications. (
In January 2012, Dr. Giglio completed a Multiple Impairment Questionnaire on the basis of his monthly treatment of Plaintiff. (AR 2150-57). In the Questionnaire, Dr. Giglio noted the following diagnoses: chronic major depression, alcoholic liver disease with cirrhosis, lumbar disc disease, multi-factorial headaches, hypothyroidism, carpal tunnel syndrome and fatigue. (AR 2150). Plaintiff's major symptoms included fatigue, insomnia, nausea, headaches, weight gain, anxiety and depression. (AR 2150-51). He estimated that Plaintiff could sit or stand/walk for no more than one hour each, with the need to get up every thirty minutes, and that she could lift and carry only five pounds frequently and ten pounds occasionally. (AR 2153-54). Plaintiff would have moderate limitations in her ability to perform fine and gross manipulations and reach with either arm due to carpal tunnel syndrome in both hands.
Dr. Rick Pospisil is Plaintiff's treating orthopedic surgeon. Plaintiff first saw Dr. Pospisil on March 7, 2005 for pain in both wrists and in the low back. (AR 936). Dr. Pospisil diagnosed Plaintiff with carpal tunnel syndrome bilaterally, status post attempted release of right wrist on January 18, 2005, post-operative swelling and stiffness suggestive of a causalgia or complex regional pain syndrome and lumbar strain. (AR 944-45). EMG and NCV studies from March 18, 2005 were abnormal, the EMG consistent with ongoing moderate denervation due to right carpal tunnel syndrome and mild to chronic denervation due to left carpal tunnel syndrome, and the NCV consistent with moderate to severe right carpal tunnel syndrome and moderate left carpal tunnel syndrome. (AR 948-51).
On May 25, 2005, an MRI of Plaintiff's right wrist ordered by Dr. Pospisil revealed an ulnar artery aneurysm of the right palm. (AR 1013-14). On September 20, 2005, Dr. Arthur Salibian surgically repaired the aneurysm. (AR 1056-57). At the post-operative follow-up visit on November 1, 2005, Dr. Salibian found that Plaintiff could use Plaintiff's right hand without any restrictions. (AR 1090). On November 2, 2005, Dr. Pospisil noted that her right hand, low back and shoulder continued to improve, but examination still showed complications with the left wrist. (AR 1085-88). On November 28, 2005, Dr. Pospisil noted that Plaintiff remained symptomatic in the left hand, reporting pain, numbness and tingling in the left index finger, third finger and thumb. (AR 1094).
On January 20, 2006, Dr. Pospisil performed a carpal tunnel release on Plaintiff's left wrist. (AR 1133-34). On May 1, 2006, an exam showed minimal swelling and good mobility with negative Phalen's signs in both wrists and no dysthesias, but Plaintiff was still reporting numbness and tingling in both wrists with radiation into all fingers. (AR 1169-70). On June 28, 2006, Plaintiff reported that she felt numbness and tingling in her hands, the left worse than the right. (AR 1178). On January 15, 2007, Plaintiff continued to have dysesthesias in both hands, the left worse than the right, with mid- and upper back pain. (AR 1214-15). Plaintiff reported the same symptoms at monthly visits between February and July 2007. (AR 1222-52). On October 1, 2007, the examination showed spasm and tenderness in the low back, with slight restriction of lumbar mobility, as well as dysesthesias to light touch. (AR 1293). Dr. Pospisil precluded Plaintiff from repetitive fine motion of either hand or lifting more than fifteen pounds with either hand. (AR 1294).
In January 2008, Dr. Pospisil adopted a workers' compensation Agreed Medical Examiner's restrictions on Plaintiff's abilities, precluding Plaintiff from repetitive fine motion of the hand and lifting more than fifteen pounds. (AR 1329). Dr. Pospisil added the need for Plaintiff to change positions as necessary and avoid all pushing, pulling, carrying, and lifting because of her back symptomatology. (AR 1329). In February 2008, Plaintiff noted that the back pain had worsened, and Dr. Pospisil precluded her from more than occasional fine motion of the hands, lifting more than fifteen pounds, carrying and/or lifting more than fifteen pounds and pushing or pulling more than twenty pounds. (AR 1334). He again reported that Plaintiff needed the opportunity to change positions as necessary to relieve pain.
On April 30, 2008, Dr. Pospisil diagnosed Plaintiff with lumbar strain with lower extremity radiculopathy, supported by MRI findings. (AR 1364). On January 12, 2009, Plaintiff reported continued pain in her low back, radiating into her lower extremities, and pain in both wrists. (AR 1498-99). Plaintiff's symptoms and Dr. Pospisil's clinical findings remained constant throughout regular visits between February and December 2009. (AR 1509-12, 1547-48, 1574-77, 1591-94, 1608-11, 1643-46, 1659-62, 1677-80, 1692-95).
On September 19, 2011, Dr. Pospisil completed an Upper Extremity Impairment Questionnaire on the basis of his treatment of Plaintiff since 2008. (AR 2125). He diagnosed Plaintiff with cervicogenical headaches, lumbar disc protrusion, and residual carpal tunnel syndrome status post three release procedures. (AR 2125). In the Questionnaire, Dr. Pospisil opined that Plaintiff could lift or carry only ten pounds occasionally and five pounds frequently, had moderate limitations in her abilities to perform gross and fine manipulations with her right hand, moderate limitations in her abilities to reach with either arm, would need to take ten to fifteen minute breaks four to six times a day, and that she would likely miss three or more workdays each month due to her impairments. He also marked that Plaintiff's impairments restricted her from all pushing, pulling, kneeling, bending and stooping. (AR 2130).
Dr. Andrew Morovati, a neurologist, began treating Plaintiff for migraines on March 3, 2011. (AR 2104). Dr. Morovati works with Dr. Jack Florin, another treating neurologist. (AR 2104). Plaintiff began seeing Dr. Florin in March 2010 and reported suffering headaches on a daily basis for the last two years. (AR 838-39). Dr. Florin diagnosed chronic migraine without aura and cervical dystonia. (AR 839). Dr. Florin treated Plaintiff's migraines with Botox, and Plaintiff reported that the Botox injections provided a five to ten percent improvement in the severity of her headaches and that she was only headache-free for five to six hours each day. (AR 832). On October 12, 2010, Dr. Florin completed a Treating Physician's Migraine Headache Form and indicated that Plaintiff's headaches occur more than once a week, lasted an average of two to three hours each, two to three times a day, caused nausea, photophobia, phonophobia and were throbbing and pulsating. (AR 841). He indicated that Plaintiff had a "fair" response to Indocin, Botox, Cymbalta, Tylenol and Topamax and had failed nerve blocks. (
Dr. Morovati began to treat Plaintiff for migraines in March 2011. (AR 2104). Dr. Morovati treated her every two to three months. (AR 2143). He described her migraines as "uncontrolled" and "severe, daily, and unresponsive to multiple treatment modalities." (AR 2104). On October 25, 2011, Dr. Morovati completed a Headaches Impairment Questionnaire on the basis of his treatment of Plaintiff. (AR 2143-48). In the Questionnaire, Dr. Morovati wrote that Plaintiff's headaches were severely intense, accompanied by nausea and photosensitivity, occur daily for up to eight hours, or sometimes the entire day, without any specific triggers. (AR 2144). He opined that her symptoms are frequently severe enough to interfere with her attention and concentration, that she would be incapable of tolerating a "low stress" work environment and that she would likely miss more than three days of work each month because of her headaches. (AR 2146-47).
On March 25, 2011, state agency examining psychiatrist Fahmy Ibrahim, M.D., performed a psychiatric evaluation of Plaintiff. (AR 1931-35). Plaintiff reported feeling depressed since she developed carpal tunnel syndrome and stopped working in 2004. (AR 1932). She also stated that she is unable to work because of low back pain, limitations on her standing and sitting and migraines. (
In his functional assessment, Dr. Ibrahim wrote that Plaintiff's ability to maintain focus and concentration is mildly limited, her ability to understand and carry out complex or detailed instructions is mildly to moderately limited and her ability to cope with workplace stress is mildly to moderately limited. (AR 1934). Plaintiff's ability to relate and interact with co-workers, colleagues and supervisors is normal, as is her ability to understand and carry out simple instructions.
Dr. Samuel Landau testified at the ALJ Hearing that Plaintiff suffered from degenerative disc disease of the neck and low back, bilateral carpal tunnel lesions with pain, persistent pain and headaches. (AR 83-84). Dr. Landau opined that Plaintiff's impairments would affect her ability to function. (AR 84). Plaintiff could only stand and walk for two out of eight hours each day, could sit with breaks every two hours, could lift and carry ten pounds frequently and twenty pounds occasionally and could occasionally stoop or bend.
Dr. Landau opined that Plaintiff could engage in frequent fine and gross manipulation despite bilateral carpal tunnel syndrome because the carpal tunnel was released and the aneurysm repaired. (AR 85-86). Dr. Landau also acknowledged that the release may not have "made any difference at all . . . in her symptoms." (AR 86).
Vocational Expert ("V.E.") Alan Boroskin identified Plaintiff's past work in the Dictionary of Occupational Titles ("DOT") as "office clerk." (AR 98). He noted that Plaintiff performed this work at the sedentary level, though the DOT classifies it as light.
The ALJ then posed two hypotheticals to the V.E. First, the ALJ proposed a hypothetical individual with the same education, training and work history as Plaintiff who was limited to standing and walking for no more than two hours each day and could sit without restriction, but required breaks every two hours. (AR 99). She could lift and carry ten pounds frequently and twenty pounds occasionally and could stoop and bend occasionally, but was precluded from jobs requiring her to use ladders, ropes, or scaffolding, work at heights or requiring balance, operating heavy equipment or motor vehicles, or being responsible for the safety and welfare of others. (AR 99-100). The individual was also precluded from jobs that required forceful gripping or grasping, but she could engage in frequent fine and gross manipulation such as keyboarding, and could occasionally hold her head in a fixed position for fifteen to thirty minutes at a time, though only in a comfortable position. (AR 100). The V.E. testified that that such a hypothetical individual would be able to perform Plaintiff's past work. (
Plaintiff testified that she suffers from carpal tunnel syndrome in both hands. (AR 89-90). After her carpal tunnel surgeries, Plaintiff continued to experience symptoms of bilateral carpal tunnel syndrome, including numbness and the feeling that her hands "fall[ ] asleep." (AR 86, 93). She also had problems typing. (AR 93). She was able to hold onto and lift light objects, but her hands would spasm if she lifted heavy objects, and she "can't get a good grip." (AR 93-94). Plaintiff testified that she cannot lift anything more than five or ten pounds and that "it can't be like an everyday situation." (AR 100).
Plaintiff also described her back pain. (AR 94-95). She could sit for only fifteen minutes at a time, alternating with standing fifteen minutes. (AR 94). She had not had surgery on her back because she was afraid this would interfere with her ability to interact with her young child.
Plaintiff testified that she suffered from migraines, a condition for which she saw a neurologist. (AR 95). She experienced migraines every day, and they sometimes lasted for over a week.
Plaintiff did not have any difficulties with personal care. (AR 206). She cared for her husband and two sons, aged nine and nineteen, and a pet, prepared meals, performed household chores, read, watched television, drove a car, took her mother and grandmother to doctors' appointments, had lunch with a friend occasionally, and shopped on a weekly basis. (AR 205-09, 90). It took her a long time to complete household chores and she sometimes needed help to complete these tasks, as well as to bathe and change her clothes. (AR 207, 98). She admitted to being an alcoholic but stated that she had not had any alcohol in the last five years. (AR 97).
To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment that prevents him from engaging in substantial gainful activity
To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are:
The claimant has the burden of proof at steps one through four and the Commissioner has the burden of proof at step five.
The ALJ employed the five-step sequential evaluation process and concluded that Plaintiff was not disabled within the meaning of the Social Security Act. (AR 49). At step one, the ALJ found that Plaintiff had not been engaged in substantial gainful employment since her alleged onset date of March 16, 2004. (AR 37).
At step two, the ALJ found that Plaintiff had the severe impairments of status-post bilateral carpal tunnel releases, degenerative disc disease of the lumbar spine, cervicalgia and cervical dystonia and headaches.
At step three, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of from of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404 1520(d), 416.1525, 414.1526, 416.920(d), 416.925, 416.926). (AR 41). The ALJ then found that Plaintiff had the residual functional capacity ("RFC") to:
The ALJ also specified that, in reaching this opinion, he had considered all symptoms and the extent to which these symptoms could reasonable be accepted as consistent with the objective medical evidence and the other evidence.
In considering Plaintiff's symptoms, the ALJ followed a two-step process in which he first determined whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce the Plaintiff's pain or other symptoms.
The ALJ questioned Plaintiff's testimony and stated that Plaintiff's "allegations of generally disabling symptoms and limitations are not corroborated by the evidence of record," noting that Plaintiff's activities, such as caring for her two sons and husband, performing household chores, taking her mother and grandmother to the doctor, having lunch with a friend, and working in her son's classroom, are "inconsistent with allegations of disability and indicate that [Plaintiff] is capable of performing appropriate work activities on an ongoing and daily basis."
At step four, the ALJ found that Plaintiff is capable of performing her past work as an office clerk and that such work does not require the performance of work-related activities precluded by Plaintiff's RFC. (AR 48-49). The ALJ opined that this finding was consistent with the testimony of the Vocational Expert, Mr. Boroskin. (AR 49). As a result, the ALJ found that Plaintiff was not disabled.
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The court may set aside the Commissioner's decision to deny benefits. "The court may set aside the Commissioner's decision when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole."
"Substantial evidence is more than a scintilla, but less than a preponderance."
Plaintiff contends that the ALJ improperly assessed and rejected the opinions of Plaintiff's treating physicians. (Compl. 18, 21, 23). Plaintiff also contends that had the treating physicians' opinions been given proper weight, she would have been found disabled. (Compl. 25). This Court agrees.
Plaintiff claims that the ALJ's finding that Plaintiff can perform frequent fine and gross manipulations like keyboarding, the lifting and carrying requirements of light work and the non-exertional requirements of full-time work is based on an erroneous rejection of the opinions of treating physicians Pospisil, Giglio and Morovati. (Compl. 21, 23). The Court agrees.
The Ninth Circuit recognizes three types of physicians: (1) treating physicians, who examine and treat, (2) examining physicians, who examine but do not treat, and (3) non-examining physicians who neither examine nor treat.
Here, the opinions of treating physicians Pospisil and Giglio are contradicted by the opinion of Dr. Landau. Because Plaintiff's treating physicians are presumed to be in the best position to assess Plaintiff's functional limitations, the ALJ must provide specific and legitimate reasons, supported by substantial evidence in the record, for rejecting their opinions.
Dr. Pospisil, Plaintiff's treating orthopedic surgeon, treated Plaintiff on a monthly basis, beginning in 2005, for both her upper extremity and spinal impairments. Dr. Pospisil also performed one of her carpal tunnel release procedures. Despite undergoing three procedures to treat her bilateral carpal tunnel syndrome, Plaintiff continued to report numbness and tingling in both hands, and examinations showed that Plaintiff had dysesthesias in both hands along with back pain. (AR 1169-70, 1178, 1214-15, 1222-52, 1293). In October 2007, Dr. Pospisil precluded Plaintiff from repetitive fine motion of either hand or lifting more than fifteen pounds with either hand. (AR 1294). In January 2008, Dr. Pospisil again precluded Plaintiff from repetitive fine motion of either hand or lifting more than fifteen pounds with either hand. (AR 1329). In January 2008, Dr. Pospisil also precluded Plaintiff from all pushing, pulling, carrying and lifting "because of her back symptomatology."
The ALJ rejected Dr. Pospisil's more restrictive assessments of Plaintiff's abilities because of alleged internal inconsistencies in his assessments. (AR 42-43). Specifically, the ALJ opined that Dr. Pospisil's February 2008 assessment, allowing for Plaintiff to push and pull up to twenty pounds, was inconsistent with his opinion in the 2011 Questionnaire, which precluded all regular pushing and pulling and applies to Plaintiff's symptoms and limitations as early as 2007-08.
Dr. Giglio, Plaintiff's primary care provider, was the only other treating physician to have assessed Plaintiff's functional limitations due to residual carpal tunnel symptoms. In January 2012, Dr. Giglio completed a Multiple Impairment Questionnaire, finding that Plaintiff could lift or carry only ten pounds occasionally and five pounds frequently and that she would have moderate limitations in her ability to perform fine and gross manipulations and reach with either arm. (AR 2152-54). The ALJ rejected Dr. Giglio's opinion, finding that it was contradicted by the opinion of other doctors, including Dr. Pospisil. (AR 45-46). However, Dr. Giglio's assessment in the January 2012 Questionnaire was almost identical to Dr. Pospisil's September 2011 assessment, save for Dr. Pospisil's conclusion that Plaintiff was moderately limited in her ability to perform fine and gross manipulations with only the right hand. (AR 2129, 2152-54). Accordingly, there was no basis for the ALJ to conclude that Dr. Giglio's opinion was contradicted by the findings of Plaintiff's other physicians.
The ALJ found that Dr. Giglio's "conclusions . . . lack support," but the medical evidence undermines this conclusion. (AR 46). Moreover, the ALJ failed to provide specific and legitimate reasons, supported by substantial evidence in the record, for rejecting Drs. Pospisil and Giglio's opinions. In rejecting the treating physicians' opinions, the ALJ adopted the opinion of Dr. Landau, the medical expert. (AR 41, 48, 84). Dr. Landau testified at the ALJ Hearing that Plaintiff was precluded from forceful gripping, gasping or twisting, but not precluded from frequent fine and gross manipulation, as required for keyboarding, opening drawers and carrying files. (AR 84). According to Dr. Landau, Plaintiff could also lift and carry ten pounds frequently and twenty pounds occasionally. (
The ALJ also failed to provide clear and convincing reasons for rejecting the uncontradicted findings of treating neurologist Andrew Morovati, as required.
Plaintiff received treatment for migraines from Drs. Florin and Morovati beginning in March 2010. Dr. Florin found that Plaintiff's headaches occur more than once a week, last two to three hours each, two to three times a day, cause nausea, and are throbbing and pulsating. (AR 841). He opined that migraines would interfere with Plaintiff's ability to work and that she would miss two to three workdays each week.
The treating neurologists' notes show that Botox injections were somewhat effective in relieving Plaintiff's symptoms in late 2010. However, by September 2011, Plaintiff reported that the injections were no longer consistently effective and none of the oral medications worked. (AR 2084-920, 2347). Her headaches became responsive to Botox injections again in November 2011 and January 2012, but as of April 2013 they were "uncontrolled off Botox." (AR 2490). Plaintiff had not had Botox treatments in the preceding ten months, as her insurer would not approve such frequent injections. (AR 2494-95). These medical records are consistent with Plaintiff's testimony at the hearing before the ALJ, where she testified that she gets migraines every day and that she has tried different treatments for her migraines but "nothing works." (AR 95).
The ALJ rejected the opinions of the treating neurologists for two reasons. First, the ALJ opined that "[t]he objective medical evidence, including the normal brain MRI and an absence of significant neurological abnormalities," failed to support the neurologists' restrictions on Plaintiff. However, neurological examinations did show that her headaches are caused by neurological abnormalities, specifically cervical dystonia. (AR 839, 836-37). Examinations showed moderate bilateral suboccipitalis and temporalis tenderness, cervical dystonia with 30 degrees anterocolis and 30 degrees right lateral shift, and slightly reduced cervical extension and rotation.
Plaintiff also claims that the ALJ's finding at step two that Plaintiff's depression imposes no mental restrictions on her overall functional capacity is based on error. (Compl. at 18-20). The Court agrees with this contention. By its own terms, the evaluation at step two is a
The Court must ordinarily remand for an award of benefits where "(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand."
Here, if the opinions of Plaintiff's treating physicians had been properly weighted, the ALJ would have found Plaintiff unable to perform fine and gross manipulations, the lifting and carrying requirements of light work, or the non-exertional requirements of full-time work. The V.E. testified that Plaintiff would not be able to perform the work of an office clerk if she could only occasionally use her hands for fine manipulation and gross-handling. (AR 100). The V.E. also testified that "there would be no work," if Plaintiff were to regularly miss two days of work a month because of medical impairments. (
Consistent with the foregoing, it is ORDERED that Judgment be entered REVERSING the decision of the Commissioner and REMANDING this action for the award of benefits. The Clerk of the Court shall serve copies of this order and the Judgment on counsel for both parties.
