CHARLES F. EICK, Magistrate Judge.
Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied, and this matter is remanded for further administrative action consistent with this Opinion.
Plaintiff filed a complaint on August 14, 2018, seeking review of the Commissioner's denial of benefits. The parties consented to proceed before a United States Magistrate Judge on September 14, 2018. Plaintiff filed a motion for summary judgment on December 26, 2018. Defendant filed a motion for summary judgment on February 13, 2019. The Court has taken the motions under submission without oral argument.
Plaintiff, a former bindery supervisor and truck driver, applied for disability insurance benefits, asserting disability since December 7, 2012, based on,
An Administrative Law Judge ("ALJ") reviewed the record and heard testimony from Plaintiff and a vocational expert (A.R. 43-94). Plaintiff testified to pain and limitations of allegedly disabling severity (A.R. 68-78). The ALJ found that, through Plaintiff's December 31, 2016 date last insured, Plaintiff had severe degenerative disc disease of the cervical spine, scoliosis and degenerative disc disease of the thoracic spine, and leveoscoliosis and degenerative disc disease of the lumbar spine (A.R. 21). However, the ALJ also found that, as of the date last insured, Plaintiff retained a residual functional capacity for light work, with: (1) standing and walking "for at least 10 minutes out of each hour of work up to 50 minutes out of each hour of work and for a total of about six hours out of an eight-hour workday with regular breaks"; (2) sitting "for at least 10 minutes out of each hour of work up to 50 minutes out of each hour of work and for a total of about six hours out of an eight-hour workday with regular breaks"; (3) use of a hand-held assistive device (cane) in one hand when walking a distance of "about 100 yards or more," with the other hand available to carry up to 10 pounds while walking; (4) occasional "postural activities"; and (5) frequent "neck movements in any direction."
The Appeals Council denied review (A.R. 1-3).
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards.
After consideration of the record as a whole, the Court reverses the Administration's decision in part and remands the matter for further administrative proceedings. As discussed below, the Administration materially erred in evaluating the evidence of record.
While driving for his employer, Plaintiff suffered a work-related fall in Illinois on December 7, 2012 (A.R. 302). Plaintiff drove with his co-driver back to California after the fall (A.R. 313). Testing on December 9, 2012, showed several broken ribs and a puncture to the left lung, for which Plaintiff was given a pain injection and admitted to the hospital (A.R. 302-03, 306-10, 313).
On March 5, 2013, workers' compensation treating physician Dr. Evan Marlowe evaluated Plaintiff and prepared an initial report (A.R. 312-25). Plaintiff complained of blurred vision in his right eye, dizziness, and constant pain in the neck radiating to his head causing frequent sharp headaches, worsened by tilting his neck and by prolonged sitting and standing (A.R. 314). Plaintiff also reported constant to intermittent pain and soreness in the mid back with radiating soreness and pain to the sides of his back, constant pain in the low back radiating down the legs to the feet with numbness and tingling, increased with prolonged sitting, walking, standing, bending, twisting, lifting, pushing and pulling (A.R. 314).
On examination, Plaintiff reportedly was 6'2" tall and weighed 322 pounds (A.R. 315). Plaintiff reportedly had an antalgic gait, stooped while walking, appeared uncomfortable, and had limited range of motion in the cervical, thoracic and lumbar spine (A.R. 315-17, 331-41). Cervical spine x-rays showed mild to moderate uncinate arthrosis from C4-C6 bilaterally causing minimal to mild intervertebral foraminal encroachment, moderate discogenic spondylosis from C4-C7, mild loss of normal cervical lordosis and mild right inclination of the cervical spine (A.R. 317-18, 326-28). Dr. Marlowe diagnosed traumatic brain injury, cervical spine strain mild to moderate uncinate arthrosis from C4-C6, moderate discogenic spodylosis from C4-C7, thoracic spine strain/fracture, lumbar spine strain, rib and lung injury, headaches and blurred vision (A.R. 318). Dr. Marlowe requested a thoracic MRI, neurological evaluation, an internal medicine evaluation, and copies of Plaintiff's prior medical records so he could further assess Plaintiff's condition and treatment needs (A.R. 319;
Meanwhile, on May 29, 2013, neurologist Dr. Martin Backman evaluated Plaintiff for a head injury (A.R. 376-83). Plaintiff complained of daily recurrent, pounding suboccipital headaches radiating to the retroocular area for which he required 800 milligrams of ibuprofen three times a day (Plaintiff reportedly then was trying to avoid taking Vicodin), positional vertigo, involuntary eye movements, blurry vision, depression, irritability, anxiety, and problems with attention, concentration, short term memory and sleep (A.R. 377). Dr. Backman noted some abnormalities with respect to Plaintiff's eyes and tenderness in the spine, and diagnosed status post closed head injury with question of loss of consciousness, mild traumatic brain injury, posttraumatic head syndrome with suboccipital headaches, and posttraumatic labyrinthine concussion (A.R. 379-80). Dr. Backman did not address Plaintiff's musculoskeletal complaints (A.R. 380). Dr. Backman recommended a brain MRI to rule out basilar skull fracture, an auditory and balance evaluation, and suboccipital nerve blocks for Plaintiff's headaches (A.R. 380).
On December 10, 2013, Dr. Marlowe again reviewed the medical records and requested a pain management evaluation (A.R. 487-93). On December 24, 2013, pain management specialist Dr. Eduardo Anguizola reviewed medical records and examined Plaintiff (A.R. 499-505). Plaintiff reportedly complained of mostly right-sided headaches and neck pain (A.R. 500). Plaintiff then was taking Vicodin and ibuprofen for pain (A.R. 500). On examination, Plaintiff reportedly was able to ambulate on heels and toes without assistance, and had tenderness in his cervical spine over the occipital nerve on the right side, over the C2-C4 facets on the right more than the left, and midline tenderness with paravertebral muscular tenderness (A.R. 501-02). Per Dr. Marlowe's September, 2013 report, Plaintiff reportedly had some vertigo affecting his driving and was being referred to pain management for the suboccipital nerve blocks recommended by Dr. Backman (A.R. 502). Plaintiff also reportedly was being treated with acupuncture to the neck and mid and lower back (A.R. 502).
Dr. Anguizola reviewed an April, 2013 cervical spine MRI reportedly showing disc protrusions, annular tearing and cervical facet arthropathy at C2-C3, central disc protrusion and facet arthropathy at C3-C4 and C4-C5, bilateral central disc protrusion and osteophyte complex, facet hypertrophy, neural foraminal stenosis at C5-C6, left paracentral central disc protrusion with annular tearing, hypertrophic facets, bilateral neural foraminal stenosis at C6-C7, and disc protrusion with osteophyte complex and facet hypertrophy at C7-T1 (A.R. 502). Dr. Anguizola diagnosed cephalalgia, occipital neuralgia on the right, cervicogenic headaches, cervical facet arthropathy and cervical discogenic disease (A.R. 503). Plaintiff's treatment to that point reportedly had included physical therapy, acupuncture, and oral and topical "pharmacologics," but Plaintiff still reportedly had a significant amount of axial pain in the neck and right-sided headaches (A.R. 503). Dr. Anguizola agreed that Plaintiff needed an occipital nerve block on the right side and a C2-C3 facet block (A.R. 503).
On March 10, 2014, orthopedic surgeon and Agreed Medical Examiner Dr. Thomas Jackson reviewed the medical record and evaluated Plaintiff (A.R. 621-41). Plaintiff complained of neck pain, arm pain, lower back pain and leg pain (A.R. 621-22). Dr. Jackson stated that Plaintiff had undergone "conservative" treatment since the accident, with "very little actually authorized for treatment by the industrial insurance carrier" (A.R. 633).
On examination, Plaintiff reportedly had a slightly right antalgic gait, limited range of motion in the cervical and lumbar spine, mild to moderate tenderness in the left paraspinal muscles, minimal tenderness in the trapezius muscles, "mild plus" tenderness over the right side nerve roots with "moderate plus" tenderness over the left side nerve root of the neck, localized neck pain, "trace + symmetrical" deep tendon reflexes at the brachioradialis, mild to moderate tenderness over the lumbar spinous process mainly at the lower levels toward the lumbosacral junction, "moderate plus" tenderness over the sciatic nerves, moderate decreased sensation to the dorsum of the left foot, significant lower back complaints with flexion in the hips, flat feet with over pronation and some collapse on the medial side, and positive straight leg raising tests (A.R. 623-25).
Dr. Jackson opined that Plaintiff would be precluded from: (1) repetitive neck movements in flexion, extension, rotation, and lateral bending; (2) heavy lifting, pushing, and pulling, and all other activities of comparable physical effort; (3) "substantial work" which is "half way between a light work restriction and a heavy work restriction"; and (4) "prolonged sitting and prolonged working in a stationary standing position" (A.R. 635). Dr. Jackson recommended continued treatment with pain medications, a medical weight loss program, a series of cervical and lumbar epidural injections with booster injections, cervical and lumbar medial branch blocks followed by a radiofrequency procedure, and ultimately surgery for an anterior cervical discectomy and fusion at C4-C5, C5-C6 and C6-C7, with consideration of a posterior fusion at the same levels, and posterior decompression and fusion of the lumbar spine at L4-L5 and L5-S1, followed by post-operative physical therapy (A.R. 635-36).
On May 25, 2014, Dr. Marlowe reviewed the medical records and prepared a "Supplemental Medical-Legal Report" (A.R. 538-52). Dr. Marlowe stated that Plaintiff had undergone "conservative" treatment with "very little actually authorized for treatment by the industrial insurance carrier" (A.R. 543). Physical therapy and acupuncture reportedly had
The progress report of Dr. Marlowe's Physician's Assistant, dated March 28, 2014, states that Plaintiff had suffered increased pain with chiropractic treatment, so insurance authorization was requested for the facet block at C2-C3 and occipital nerve block previously suggested by Dr. Anguizola (A.R. 553). The PA directed Plaintiff's return to modified work duties as of May 28, 2014, assertedly per Dr. Jackson's March 10, 2014 opinion (A.R. 556). Plaintiff was to engage in no heavy lifting, pushing or pulling of 50 pounds, and no "prolonged positioning of the cervical spine" (A.R. 556).
On July 2, 2014, Dr. Marlowe noted that injections had been denied and indicated "Release/P&S" (permanent and stationary), with the same modified work restrictions as before (A.R. 557-59). On August 1, 2014, however, Dr. Marlowe returned Plaintiff to temporary total disability status for six weeks, stating that Plaintiff's pain increased with driving and prolonged walking, and Plaintiff was still awaiting insurance authorization for injections (A.R. 561-64). On November 20, 2014, Dr. Marlowe returned Plaintiff to the modified work duties as assertedly per Dr. Jackson's opinion (
Meanwhile, on January 13, 2015, pain management specialist Dr. Hooman Rastegar reviewed diagnostic studies and evaluated Plaintiff for occipital nerve blocks for Plaintiff's headaches (A.R. 692-98). Plaintiff complained of constant pain in his cervical spine radiating to his shoulder and upper extremities with associated headaches (A.R. 692-93). On examination, Plaintiff had paracervical muscle tenderness, a limited range of motion in the cervical spine and tenderness over the occipital nerve (A.R. 694). Plaintiff then weighed 312 pounds (
Consultative examiner Dr. Bahaa Girgis prepared an Internal Medicine Evaluation dated January 29, 2015 (A.R. 667-72). Dr. Girgis reviewed no medical records (A.R. 669). Plaintiff complained of diabetes, cervical disc disease and migraines (A.R. 667). On examination, Plaintiff reportedly walked and moved easily, weighed 293 pounds, had a limited range of motion in the neck, was able to get on and off the examination table using a cane, and his gait was normal, although he "may require a cane for long-distance due to pain in his neck" (A.R. 669-71). Dr. Girgis diagnosed diabetes with possible diabetic neuropathy, well-controlled hypertension, cervical disc disease status post slip and fall, and migraine headaches status post trauma (A.R. 671-72). Dr. Girgis again stated that Plaintiff may require a cane for walking long distance "for pain control" (A.R. 671). Dr. Girgis opined that Plaintiff would have the capacity for a range of light work (
Dr. Girgis also completed a "Need for Assistive Hand-Held Device for Ambulation" form indicating a "temporary" need for a cane for one year due to cervical disc disease and chronic neck pain (A.R. 673). The cane reportedly was needed for pain relief and for stairs, inclines and uneven surfaces (A.R. 673). Dr. Girgis also indicated that a cane was necessary for "prolonged ambulation" (
Plaintiff's pain management was transferred to Dr. Atef Rafla, who reviewed the medical records and evaluated Plaintiff on April 2, 2015 (A.R. 722-33). Plaintiff complained of progressively limited range of motion of the neck with severe muscle spasms, frequent moderate to severe headaches with blurred vision, tingling, numbness and weakness in the upper extremities, severe lower back pain, severe muscle spasm and progressively limited range of motion of the lumbar spine, with pain radiating to both legs and associated tingling, numbness and weakness, and pain in both buttocks radiating to the posterior and lateral thighs with numbness and tingling (A.R. 723). On examination, Dr. Rafla reported loss of normal cervical lordosis, pain on palpation from C4-C7, increased tone in the left trapezius with point tenderness of severe myofascial pain on deep palpation with severe guarding, positive cervical compression and distraction tests, positive Adson test, limited range of motion in the cervical spine and upper extremities and radiculopathy following dermatomal distribution from C4-C7 (A.R. 725-28). Dr. Rafla also reported some difficulty walking on heels and toes, straightening of lumbar lordosis, severe myofascial pain and guarding on palpation of the lumbar spine, tingling and numbness to the legs in the L3-S1 dermatomes, sharp shooting pain down the thighs on palpation of the sacroiliac joints, limited range of motion in the lumbar spine, "strongly positive" straight leg raising tests, ambulation with a mild limp, and positive Gaenslen's sign, sacroiliac joint thrust and Patrick Fabere tests (A.R. 725-28). Dr. Rafla diagnosed cervical spine sprain/strain, cervical paraspinal muscle spasms, cervical disc herniation, cervical radiculitis/radiculopathy of both upper extremities, lumbar spine sprain/strain, lumbar paraspinal muscle spasms, lumbar disc herniations, lumbar radiculitis/radiculopathy of both lower extremities, and sacroilitis of both sacroiliac joints (A.R. 730). Dr. Rafla requested authorization for a cervical epidural steroid injection at C7-T1 with catheter to C4-C7, and bilateral lumbar epidural steroid injections at L5-S1 with catheter to L2-S1 (A.R. 730-31). Dr. Rafla also prescribed Norco (A.R. 731).
Plaintiff returned to Dr. Rafla on May 14, 2015, complaining of worsening pain (A.R. 977-85). Dr. Rafla again requested authorization for the epidural steroid injections and again prescribed Norco (A.R. 983, 986). In June of 2015, Dr. Rafla again requested authorization for the injections (A.R. 976).
Prior to his surgery, Plaintiff regularly was prescribed Norco for his pain.
The hearing occurred two months after the cervical spine surgery, and Plaintiff then was wearing a temporary neck brace (A.R. 70, 75-76). Plaintiff reported that he was still in a lot of pain for which he was receiving injections in his lower back and shoulders as well as pain medication (A.R. 75-78). Plaintiff was also being treated for depression and anxiety related to his asserted inability to work (A.R. 76-77).
Plaintiff said he had been using a cane since 2013 because his lower back would "give way" and almost cause him to fall (A.R. 69-70). Plaintiff said that he walks up and down his block using a cane, takes his two dogs for "little" walks using his cane, takes his medications, sits on the couch watching television, and then, by 1 p.m., he has to go back to bed for two to three hours to get off his feet (A.R. 71, 73). Plaintiff said his back and neck pain limit how long he can walk, sit and stand because of compression on his spine (A.R. 71, 73-74).
Plaintiff estimated that he could lift up to ten pounds (A.R. 74). Plaintiff said he could walk for approximately one block at a time (A.R. 74). Plaintiff estimated that he could be on his feet for up to half an hour at a time, for a total of up to two hours a day before his back would give out (A.R. 75). Plaintiff admitted that he could walk around his house without a cane, but said he had fallen at home, and said that he used his cane whenever he walked any kind of distance (A.R. 71). Plaintiff had reported to his doctor shoulder problems which assertedly limited Plaintiff's reaching (A.R. 72). According to Plaintiff, his doctor suggested a shoulder replacement, but said that Plaintiff's neck would need to be fixed before such a shoulder replacement (A.R. 72).
In a Function Report — Adult form dated July 14, 2015 (pre-surgery and before the date last insured), Plaintiff reported that his back injuries prevented prolonged standing or sitting, his neck prevented him from driving because he could not turn his neck quickly, his migraines from his spine injury were debilitating, his orthopedic pain was overwhelming, and without strong pain medication he would have been in the hospital (A.R. 254). Plaintiff reported that lying flat was the best way to help with his pain (A.R. 254). Plaintiff reported he could do his own laundry and could water plants for 10 minutes at a time (A.R. 256). Plaintiff reported he could walk 30 yards before needing to rest for five minutes (A.R. 259). Plaintiff stated that he used a cane for walking (A.R. 260). Plaintiff stated that Dr. Jackson recommended that someone do surgery on Plaintiff's back (A.R. 261).
Where, as here, an ALJ finds that a claimant's medically determinable impairments reasonably could be expected to cause some degree of the alleged symptoms of which the claimant subjectively complains, any discounting of the claimant's complaints must be supported by "specific, cogent" findings.
In the present case, the ALJ discounted Plaintiff's testimony and statements as "inconsistent with the medical evidence of record" (A.R. 28). The ALJ acknowledged that the medical evidence "reveals positive, objective physical, clinical, and diagnostic findings demonstrating degenerative changes at the cervical, thoracic and lumbar spine" (A.R. 28). The ALJ also acknowledged that Plaintiff underwent spine surgery in March of 2017 (less than three months after the date last insured) (A.R. 28). However, the ALJ cited Plaintiff's allegedly "routine and conservative" treatment "consisting primarily of prescribed pain medication during the relevant period prior to the date last insured" (A.R. 28). The ALJ also cited an alleged inconsistency between Plaintiff's asserted limitations and Dr. Marlowe's opinion that Plaintiff could return to work with modified duties during a portion of the relevant time period (A.R. 28).
A limited course of treatment sometimes can justify the rejection of a claimant's testimony, at least where the testimony concerns physical problems.
In the present case, however, it is highly doubtful Plaintiff's treatment accurately may be characterized as "conservative" within the meaning of Ninth Circuit jurisprudence (even though Plaintiff's doctors sometimes used the term "conservative" to reference Plaintiff's treatment prior to his epidural injections and surgery,
Moreover, even Plaintiff's pre-surgery treatment with Norco and epidural steroid injections do not appear to have been "routine" or "conservative," as those terms are used in case law.
With regard to the alleged inconsistency between Plaintiff's subjective complaints and Dr. Marlowe's opinion, the ALJ could not reject Plaintiff's subjective statements and testimony on the sole ground that the statements and testimony were not fully corroborated by the medical evidence.
In sum, the ALJ failed to state legally sufficient reasons to discount Plaintiff's subjective complaints. The Court is unable to conclude that this error was harmless. "[A]n ALJ's error is harmless where it is inconsequential to the ultimate non-disability determination."
Remand is appropriate because the circumstances of this case suggest that further development of the record and further administrative review could remedy the ALJ's errors.
For all of the foregoing reasons,
LET JUDGMENT BE ENTERED ACCORDINGLY.
