The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RE: PLAINTIFF'S SOCIAL SECURITY COMPLAINT (Doc. 2)
Plaintiff is proceeding with counsel and is seeking judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying an application for benefits. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b) and Local Rule 72-302(c)(15). The matter is currently before the Court on the parties' briefs, which have been submitted without oral argument.
On June 20, 2005, Plaintiff, born on July 22, 1967, applied for a period of disability and disability insurance benefits (DIB) under Title II of the Act, alleging disability beginning on March 1, 2004, due to his back condition. (A.R. at 60-62, 70.) Plaintiff's claim was denied initially and on reconsideration. (Id. at 41-42.) Plaintiff requested a hearing before an administrative law judge (ALJ) of the Social Security Administration (SSA). On March 23, 2007, Plaintiff appeared with an attorney and testified before Stephen Webster, an administrative law judge (ALJ). (A.R. 11.) On May 16, 2007, the ALJ denied Plaintiff's application for benefits. (Id. at 11-18.) Plaintiff sought review of the ALJ's decision by the Appeals Council. On July 18, 2007, the Appeals Council denied Plaintiff's request for review. (A.R. 4-6.)
On September 19, 2007, Plaintiff filed the complaint in the instant action; the administrative record was lodged by Defendant on January 22, 2008. On July 5, 2008, Plaintiff filed an opening brief. On September 8, 2008, Defendant filed a brief in opposition.
III. Standard and Scope of Review
Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Richardson, 402 U.S. at 401. The Court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion; it may not simply isolate a portion of evidence that supports the decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). It is immaterial that the evidence would support a finding contrary to that reached by the Commissioner; the determination of the Commissioner as to a factual matter will stand if supported by substantial evidence because it is the Commissioner's job, and not the Court's, to resolve conflicts in the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th Cir. 1975).
In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must review the whole record and uphold the Commissioner's determination that the claimant is not disabled if the Commissioner applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If the Court concludes that the ALJ did not use the proper legal standard, the matter will be remanded to permit application of the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th Cir. 1987).
In order to qualify for benefits, a claimant must establish that she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 1382c(a)(3)(A). A claimant must demonstrate a physical or mental impairment of such severity that the claimant is not only unable to do the claimant's previous work, but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden of establishing a disability is initially on the claimant, who must prove that the claimant is unable to return to his or her former type of work; the burden then shifts to the Commissioner to identify other jobs that the claimant is capable of performing considering the claimant's residual functional capacity, as well as her age, education and last fifteen years of work experience. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).
The regulations provide that the ALJ must make specific sequential determinations in the process of evaluating a disability: 1) whether the applicant engaged in substantial gainful activity since the alleged date of the onset of the impairment, 20 C.F.R. § 404.1520 (1997);*fn1 2) whether solely on the basis of the medical evidence the claimed impairment is severe, that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities, 20 C.F.R. § 404.1520(c); 3) whether solely on the basis of medical evidence the impairment equals or exceeds in severity certain impairments described in Appendix I of the regulations, 20 C.F.R. § 404.1520(d); 4) whether the applicant has sufficient residual functional capacity, defined as what an individual can still do despite limitations, to perform the applicant's past work, 20 C.F.R. §§ 404.1520(e), 404.1545(a); and 5) whether on the basis of the applicant's age, education, work experience, and residual functional capacity, the applicant can perform any other gainful and substantial work within the economy, 20 C.F.R. § 404.1520(f).
Here, the ALJ found that Plaintiff had the severe impairment of degenerative disc disease which did not meet or medically equal a listed impairment; however, Plaintiff retained the residual functional capacity (RFC) to lift and/or carry twenty pounds occasionally and ten pounds frequently; stand and/or walk for six hours out of an eight-hour day work day; and sit for six hours out of an eight-hour work day. (A.R. 14.) Thus, Plaintiff was able to perform his past relevant work of a production supervisor and therefore was not disabled. (A.R. 17-18.)
V. Plaintiff's Admissions and Testimony at the Hearing
In a face-to-face interview with Plaintiff on June 20, 2005, a disability field worker observed that Plaintiff had no problem concentrating, understanding, answering, sitting, standing, or walking, and he was able to lift an infant child in a baby carrier with no problem; he was very talkative and upbeat, and no limitations or obvious pain were displayed. (A.R. 84-86.) Plaintiff stated that he felt that he could probably work if he had a "sitdown job," and he wanted to teach because he could do that even if confined to a wheelchair. (A.R. 86.)
Plaintiff admitted to Dr. Tran in September 2005 that he could sit and stand each up to two hours at a time; his pain, which was sharp and grabbing and 5-6/10 in intensity, permitted cooking, house chores, and washing dishes, and his only medication was twenty-five milligrams of Elavil. (A.R. 159.) Dr. Tran noted Plaintiff was a well developed, muscular male who walked without assistance and could tolerate sitting. (A.R. 160.)
At the hearing held in March 2007, Plaintiff testified that he suffered a back problem and sleep apnea; his primary care physician through Medi-CAL was Dr. Jesus Rodriguez, and he had begun seeing Dr. Senitha Nalavenkata at the Veteran's Administration (VA); his doctors prescribed medication for pain in the mid to lower back which sometimes shot down one leg or the other, and the medication, taken thrice daily, often relieved his pain, but it made him sleepy or groggy with a dry mouth, and so he slept a lot and read. (A.R. 275-76.)
The pain was almost constant and never really went away; Plaintiff described it as being like a throb that never stopped and involved a lot of pressure across his back from the middle of the back down that felt like a toothache with cold air sucked into it, or a tooth nerve pain. (A.R. 283.) About four days a week his back and everything were so tightened up that he needed help from his wife to get up and shower; then Plaintiff would take medication. Plaintiff took daily 1600 milligrams of Neurontin, over 2,000 milligrams of Tylenol with additional Tylenol in Vicodin, Elavil for sleep, and Hydrochlorothiazide because of elevated blood pressure. (A.R. 284.) The medication made Plaintiff very moody in addition to groggy and sleepy, and he believed it contributed to his depression and kept school from working. (A.R. 285.) He estimated he could concentrate perhaps six to eight or twelve hours a week. (A.R. 286.)
The severe pain occurred two to three times a month, with the episodes becoming closer together and hitting harder and the pain going down one leg or the other but usually not both. (A.R. 282-83, 286s.) He saw Dr. Rodriguez about two to three times a month and was treated with mostly medication, including a non-narcotic injection of Toradol for bad flares of pain that were blinding and prohibited movement or function. (A.R. 281-82.) After an hour after the shot, Plaintiff could move, and other medications, such as Soma or Vicodin, would induce sleep for usually two to three days, but sometimes nearly a week would pass without Plaintiff's being able to do anything. (A.R. 282.) Plaintiff would have the injection every five to six weeks for pain that would render him unable to do anything, including getting up from the floor. (A.R. 281-82.)
Plaintiff testified that he lived with his wife and his four young sons; he took care of his personal needs most of the time and helped with the laundry, cooking, mopping, sweeping, and vacuuming, although he did not feel like he could do enough; he helped some with childcare but could no longer pick up his youngest child, who was two years old. He took the bus and even drove sometimes but limited driving when the pain was too great to drive or medication rendered driving unsafe. (A.R. 269-70.)
Plaintiff could watch television four to six hours a day, read for four to six hours a day, and he spent a couple of hours a day on the computer. (A.R. 270.) He lay down about three to four times a day for more or less an hour or two at a time. (A.R. 285.) He was unable to continue being a customer service representative and carrier for a newspaper, which he had done between May 2004 through December 2005, due to physical inability to enter and exit the car and throw newspapers. (A.R. 272.) He was unable to finish a college curriculum designed to permit him to teach because he could not sit through the classes due to inability to sit more than maybe an hour or so at a time; he could stand about an hour and one-half at a time before being worn out, and he could walk no more than a block; he was unable to walk his children to their school, which was two and one-half blocks away. (A.R. 276, 283-84.) He could lift no more than twenty pounds. (A.R. 276.)
For Plaintiff's sleep apnea, Plaintiff testified that he used a C-flex machine that pulled on him and sometimes did not help with a good night's sleep. (A.R. 286.)
In an underexposed radiological study done in August 2004 of the lumbosacral spine, degenerative change and disc space narrowing at L4-5 was observed, and the radiologist suspected slight spondylolisthesis at L5-S1; he recommended more studies to permit evaluation of a possibility of a defect in the pars interarticularis. (A.R. 116.)
Moderate to severe obstructive sleep apnea was diagnosed in May 2005, and Plaintiff was treated with nasal CPAP nightly with a recommendation to lose weight; alternative treatments included mandibular repositioning or surgery for the obstruction of the upper airway. (A.R. 109.) Plaintiff was treated for back pain with anti-inflammatory medications and a reference to physical therapy in June 2005. (A.R. 174.) The VA denied his request for physical therapy despite symptoms in September 2005 of severe pain with ambulation, positive straight leg raise in left leg, and ambulation favoring the right leg. (A.R. 172.)
A radiological study of the lumbar spine taken July 29, 2005, revealed satisfactory alignment with vertebral body height maintained; there was minimal narrowing of the L5-S1 intervertebral disc space seen posteriorly; no spondylolisthesis was seen, but spondylolysis of the L5 vertebra could not be excluded. (A.R. 157.) Plaintiff had complained of pain of 6/10 in the lower back, and he desired pain medication; his pain had been regular for the past six months, but there was no shooting to the legs, tingling, numbness, or weakness in the lower extremities. (A.R. 129-30.)
Dr. Juliane Tran, M.D., who was board certified in physical medicine and rehabilitation, performed a comprehensive orthopedic evaluation of Plaintiff on September 23, 2005, after reviewing handwritten progress notes indicating back pain for fifteen years and a history of spondylolisthesis but without reviewing any scans or x-ray studies. (A.R. 159-62.) Plaintiff reported pain worsening within the past year and aggravated with activities of bending, sitting, standing, but improving with supine position.
Dr. Tran observed that Plaintiff ambulated well and walked without assistance. There was mild tenderness to palpation over the left sciatic notch and the right and left L5 S1 lumbar level, with negative straight-away gait, straight leg raising, Fabian and Romberg tests, and tandem gait; toe-heel walking, proprioception, and sensory examination in the lower extremities were normal. Motor strength was 5/5 with no evidence of muscle atrophy.
Dr. Tran's impression was back pain that was probably mechanical in origin with lumbar spondylosis with end discogenic back pain, and more pain with lumbar extension than flexion. Plaintiff would be restricted with activities involving lifting more than 100 pounds occasionally and fifty pounds frequently; there was no climbing, balancing, or working with heights; and Plaintiff was "restricted with activities involving frequent bending, stooping, kneeling, or crouching," (A.R. 161), but there was no restriction with sitting, standing, fingering, grasping, or overhead reaching. (A.R. 161-62.)
A week later Plaintiff visited the hospital for back pain at a level of 7/10 that radiated to the buttocks and was precipitated by leaning forward; he exhibited non-tender extremities with full range of motion, negative straight leg raising, and no apparent motor or sensory deficits. The impression was acute lumbar myofascial strain and acute low back pain. Medicines administered were Toradol and Vicodin (A.R. 194, 196, 199.)
An MRI study taken on October 13, 2005, only three weeks after Dr. Tran's exam, reflected multilevel degenerative disc disease causing neural foraminal and central canal stenosis.
(A.R. 193.) Specifically, at L2-3 there was disc dessication and mild circumferential disc bulging without significant central canal or neural foraminal stenosis. At L3-4 there was circumferential disc bulging with focal right lateral disc protrusion extending into the neural foramen contacting the undersurface of the exiting right L3 nerve root; there was also moderate right and mild left neural foraminal stenosis but no significant central canal stenosis. At L4-5 there was disc dessication and circumferential disc bulging with mild facet hypertrophy resulting in mild central canal stenosis and mild bilateral neural foraminal stenosis with minimal loss of disc space. At L5-S1 there was disc dessication with mild central disc protrusion without significant central canal or neural foraminal stenosis. (A.R. 168-69.) The vertebral alignment was normal without loss of height. Plaintiff reported at that time that Naprosyn controlled the pain with the exception of some episodes. (A.R. 166.)
In December 2005, Plaintiff had exacerbated, shooting pain of 8/10 with tenderness and muscle spasm but no radiation; he could ambulate with a steady gate. He was treated with Vicodin, Flexeril, and Naproxen as well as daily exercise. (A.R. 164, 178, 181.) He was to rest and sleep with pillows behind his knees. (A.R. 186.)
On November 17, 2005, non-examining state agency medical consultant Dr. Brian Ginsburg completed an evaluation of Plaintiff and opined that due to back pain, Plaintiff could lift and carry 100 pounds occasionally and fifty pounds frequently, and otherwise engage in unlimited pushing or pulling; stand and/or walk for about six hours in an eight-hour day; sit for about six hours in an eight-hour day; and perform only occasional climbing ramps and stairs (but with no climbing of ladders, ropes, and scaffolds), with only occasional balancing, stooping, kneeling, crouching, and crawling. (A.R. 205-14.) There is no indication that Dr. Ginsburg had access to the results of the MRI performed in October 2005. (A.R. 205.)
Another state agency medical consultant whose name is illegible affirmed Dr. Ginsburg's evaluation as written in January 2006. (A.R. 214.) It appears that this evaluator did have access to the results of the MRI performed in October 2005. (A.R. 203-04.)
Undated progress notes reflect that Plaintiff complained of worsening back pain that caused him to miss school; he had quit his newspaper job. (A.R. 243.) In February 2006 he complained of pain that was 6/10 and had continued for nine months; he used Vicodin and Soma two to three times a week. Pain with bending and picking up things caused him not to be able to work, although he continued with school. His range of motion upon exam was limited secondary to pain. The impression was lower back pain secondary to disc bulging; medications were refilled. (A.R. 242.)
On February 28, 2006, Dr. Rodriguez stated in a medical report for verification of incapacity for general assistance eligibility (CalWorks) that Plaintiff could perform no work, had partial capacity to lift, push, and pull from zero to ten pounds, partial capacity for continuous sitting and standing, and full capacity for minimal use of hands, but he had no capacity for lifting, pushing, or pulling more than ten pounds. Dr. Rodriguez stated that the disability was not permanent and would extend through September 1, 2006. (A.R. 232.)
In March 2006, Plaintiff reported to Dr. Rodriguez that he had missed many days of school secondary to back pain and needed a note; he had no leg weakness or radiation of pain to the legs; he had gone to the emergency room for pain on March 3 and had been given Toradol, which resulted in good improvement of the pain. Dr. Rogriguez examined Plaintiff on March 6, 2006, and found lumbosacral pain with movement. The impression was lower back pain secondary to neural foraminal stenosis, which was treated with medication. (A.R. 238.)
Dr. Rodriguez completed a medical assessment of Plaintiff's ability to do physical work-related activities on March 6, 2006. (A.R. 239-41.) The assessment was on a printed form with boxes to be checked and blanks to be filled in with information. Dr. Rodriguez opined that Plaintiff could not lift any weight frequently or occasionally due to multilevel degenerative disc disease causing neural foraminal stenosis, and circumferential disc bulging with focal right lateral protrusion at L3-4, resulting in moderate right and mild left neural foraminal stenosis. Based on the same findings, Plaintiff could stand a total of two to four hours, and for twenty to forty minutes without interruption. (A.R. 239.) He could sit for two to four hours total, and for twenty to thirty minutes without interruption. He could never climb, kneel, crouch, stoop, balance, or crawl; reaching, pushing, and pulling could worsen the underlying problem. (A.R. 240.) Further, he was at risk of falling, and vibration could worsen his back; thus, there were restrictions involving heights, moving machinery, and vibrations. (A.R. 241.)
On April 20, 2006, Plaintiff reported that he had an appointment with a surgeon in two weeks. (A.R. 236.)
On May 19, 2006, a CT scan of the lumbar spine without contrast revealed that many of the disc spaces and vertebral bodies appeared unremarkable (the T12-L1, L1 vertebral space, L1-2 disc space, L2 vertebral body, L2-3 level, L3 vertebral body, and L4 vertebral body were unremarkable). However, the L3-4 level showed a laminotomy*fn3 defect on the left and mild to moderate facet hypertrophy; at the L4-5 disc space level, there was moderate to severe hypertrophy; and at the L5 level, there was a pars defect bilaterally, and the L5-S1 disc appeared to have some vacuum disc phenomenon. (A.R. 234.)
Further, x-ray studies taken the same day of the lumbar spine in lateral upright and flexion and extension views, and views of the patient bending to the left and right, revealed no evidence of spondylolisthesis, and vertebral heights were maintained. There was limited range of motion with flexion, better range of motion with extension, and ...