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Huerta v. Astrue


July 22, 2009


The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge


Plaintiff Imelda Huerta filed a complaint on December 21, 2007, seeking review of the decision denying her application for disability benefits. On June 10, 2008, the Commissioner answered the complaint, and the parties filed a joint stipulation on July 14, 2008.



On May 5, 2004 (protective filing date), plaintiff applied for disability benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. § 423, claiming an inability to work since January 10, 2002, due to neck, shoulder and back pain. Certified Administrative Record ("A.R.") 74-77, 88, 91. The plaintiff's application was initially denied on August 16, 2004, and was denied again on January 14, 2005, following reconsideration. A.R. 34-44. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge James S. Carletti ("the ALJ") on August 16, 2007. A.R. 45, 469-95. On September 12, 2007, the ALJ issued a decision finding plaintiff is not disabled. A.R. 9-18. The plaintiff appealed this decision to the Appeals Council, which denied review on November 16, 2007. A.R. 4-8.


The plaintiff, who was born in Mexico on May 1, 1957, is currently 52 years old. A.R. 75, 79-79A. She has a third-grade education, and previously worked as a faucet painter, a machine presser, an assembler and a packager. A.R. 89, 91-92, 95, 472-73, 488-92.

The ALJ summarized plaintiff's medical records, as follows:

The [plaintiff] suffered a neck injury in January 2002 and manifested . . . neck and upper extremity pain. MRI scan in March 2002 showed multiple level 2 mm. disc protrusions. In April 2002, consulting neurologist I. Yusufaly, M.D., diagnosed cumulative trauma injury to the cervical spine. In May 2002, board-certified orthopedic surgeon James Matiko, M.D., diagnosed [plaintiff] with mild cervical sprain/strain in his permanent and stationary report. EMG in 2002 showed left median neuropathy and left ulnar neuropathy. Dr. Yusufaly interpreted this EMG as showing no evidence of cervical radiculopathy. In 2002, [plaintiff] was diagnosed by pain management specialist Eduardo Anguizola, M.D., with cervical disc disease with cervical facet arthropathy. [Qualified Medical Examiner] Gregory Heinen, M.D.[,] diagnosed cervical spine strain with radiation into the bilateral trapezius. In September 2002, [plaintiff] was diagnosed with herniated discs at C4-5 and C5-6 by orthopedic surgeon Allen Fonseca, M.D. He confirmed this diagnosis in May 2003 along with chronic cervical spine strain and sprain. [¶] Progress notes from attending physician Julio Westerbrand, M.D., show continued pain, bilateral trapezial spasm and limited range of motion. [¶] Because conservative therapy was unsuccessful, [plaintiff] underwent fusion surgery of the cervical spine in June 2003. She underwent physical therapy but . . . still had neck pain and stiffness as well as bilateral trapezial spasm with pain and limited range of motion but no neurological deficit. Xray of the cervical spine in April 2007 showed moderate degenerative changes at C5-6 bilaterally.*fn1

A.R. 14-15 (citations omitted; footnote added).



The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner's decision denying plaintiff disability benefits to determine if his findings are supported by substantial evidence and whether the Commissioner used the proper legal standards in reaching his decision. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); Bray v. Astrue, 554 F.3d 1219, 1222 (9th Cir. 2009).

The claimant is "disabled" for the purpose of receiving benefits under the Act if she is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). Here, plaintiff must prove she was either permanently disabled or subject to a condition which became so severe as to disable her prior to December 31, 2006, A.R. 14, the date plaintiff's disability insured status expired. Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998);

id. at 1684, and spondylolysis is the "dissolution of a vertebra; a condition marked by platyspondylia [congenital flattening of the vertebral bodies], aplasia [lack of development of an organ or tissue] of the vertebral arch, and separation of the pars interarticularis [the part of the lamina between the superior and inferior articular processes of a lumbar vertebra]." Id. at 113, 1328, 1401, 1684.

Armstrong v. Comm'r of the Soc. Sec. Admin., 160 F.3d 587, 589 (9th Cir. 1998).

The Commissioner has promulgated regulations establishing a five-step sequential evaluation process for the ALJ to follow in a disability case. 20 C.F.R. § 404.1520. In the First Step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment or combination of impairments significantly limiting her from performing basic work activities. 20 C.F.R. § 404.1520(c). If so, in the Third Step, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals the requirements of the Listing of Impairments ("Listing"), 20 C.F.R. § 404, Subpart P, App. 1. 20 C.F.R. § 404.1520(d). If not, in the Fourth Step, the ALJ must determine whether the claimant has sufficient residual functional capacity despite the impairment or various limitations to perform her past work. 20 C.F.R. § 404.1520(f). If not, in Step Five, the burden shifts to the Commissioner to show the claimant can perform other work that exists in significant numbers in the national economy. 20 C.F.R. § 404.1520(g).

Applying the five-step sequential evaluation process, the ALJ found plaintiff did not engage in substantial gainful activity between her alleged onset date of January 10, 2002, and her date last insured of December 31, 2006. (Step One). The ALJ then found plaintiff is status post-neck surgery, which is a severe impairment (Step Two); however, she does not have an impairment or combination of impairments that meets or equals a Listing. (Step Three). The ALJ next determined plaintiff is able to perform her past relevant work as a faucet painter; therefore, she is not disabled. (Step Four).


A claimant's residual functional capacity ("RFC") is what she can still do despite her physical, mental, non-exertional, and other limitations. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). Here, the ALJ found plaintiff has the RFC to: "lift or carry 10 pounds frequently and 20 pounds occasionally; sit for 6 hours out of an 8-hour workday; [and] stand or walk for 6 hours out of an 8-hour workday; [however, she must] avoid very frequent motion of the neck or downward gazing; and [she should be limited to] only occasional shoulder level work." A.R. 15. However, plaintiff contends the ALJ's RFC determination, and ultimate Step Four conclusion, are not supported by substantial evidence because, among other reasons, the ALJ did not properly consider her testimony. The plaintiff is correct.

The plaintiff testified at the administrative hearing that she is unable to work because of constant neck, back and shoulder pain. A.R. 474, 477-78. She also stated she gets daily headaches, and has pain in her hands, knees and feet. A.R. 477-78. The plaintiff averred that the pain sometimes interferes with her ability to sleep, and she sometimes cannot talk because she feels as if her head is going to explode. A.R. 479. She also stated that she can stand for about 10 minutes at a time, sit and/or drive for about half an hour to an hour at a time, and lift less than 10 pounds. A.R. 479-81. She testified further that she tries to walk for about 20 minutes for exercise, but there are times her knees get numb. A.R. 480. She stated she cooks, but then has to lie down because of the pain. A.R. 476. Indeed, plaintiff testified she lies down three or four times during the day for about half an hour each time. A.R. 479. She can read and write in Spanish, but cannot read, write or speak English. A.R. 472.

Once a claimant has presented objective evidence she suffers from an impairment that could cause pain or other non-exertional limitations, the ALJ may not discredit the claimant's testimony "solely because the degree of pain alleged by the claimant is not supported by objective medical evidence." Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir. 1991) (en banc); Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). Thus, if the ALJ finds the claimant's subjective complaints are not credible, he "'must provide specific, cogent reasons for the disbelief.'" Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citations omitted); Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007). Furthermore, if there is medical evidence establishing an objective basis for some degree of pain and related symptoms, and no evidence affirmatively suggesting the claimant is malingering, the ALJ's reasons for rejecting the claimant's testimony must be "clear and convincing." Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008).

The ALJ found plaintiff not entirely credible for several reasons, including that plaintiff's "course of treatment, other than her neck surgery in 2003 . . . has generally reflected a conservative approach." A.R. 16. Although receipt of only conservative treatment can undermine a claimant's complaints of debilitating pain, see, e.g., Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) ("[E]vidence of 'conservative treatment' is sufficient to discount a claimant's testimony regarding severity of an impairment."), cert. denied, 128 S.Ct. 1068 (2008), here, as the ALJ obliquely acknowledges, plaintiff did not receive only conservative treatment. In addition to her neck surgery, plaintiff was referred to an anesthesiologist for pain management, which included a series of epidural steroid injections into her cervical spine.*fn2 A.R. 158-62, 306-12. Therefore, this reason for an adverse credibility finding is not supported by substantial evidence in the record. See Yang v. Barnhart, 2006 WL 3694857, *4 (C.D. Cal.) (ALJ's finding that claimant received conservative treatment was not supported by substantial evidence when claimant was treated with several pain medications and underwent physical therapy and epidural injections); Miller v. Astrue, 2009 WL 800227, *3 (E.D. Cal.) (ALJ's finding that claimant was not credible properly considered "the conservative nature of [claimant's] treatment" since claimant "was not a surgical candidate, did not use a TENS unit, had not undergone epidural steroid injections and only intermittently took pain medications"); Samuels v. Astrue, 2009 WL 1659620, *4 (M.D. Fla.) ("[I]n light of the rendering of treatment including epidural steroid injections," ALJ should reconsider his characterization of claimant's treatment as "routine and/or conservative").

The ALJ also found plaintiff not entirely credible because she "is only taking over-the-counter pain medications[,] . . . [which] have been relatively effective in controlling the [plaintiff's] symptoms[,]" and she "has not alleged any side effects from the use of [other] medications." A.R. 17. Although a claimant's failure to take prescription pain medications, and the lack of significant side effects from prescription medications, may be considered in determining that a claimant's pain is not as severe as claimed, Osenbrock v. Apfel, 240 F.3d 1157, 1166 (9th Cir. 2001); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (per curiam), here, the record shows that plaintiff has been prescribed numerous pain medications, including Elavil,*fn3 Ibuprofen 800 mg., Naprosyn,*fn4 Neurontin,*fn5 Robaxin,*fn6 Soma,*fn7 and Vicodin.*fn8 See, e.g., A.R. 159, 197, 199, 221, 224-25, 229, 234, 240, 248, 289, 304, 323, 385-86, 391, 445, 463. Moreover, at the administrative hearing, plaintiff specifically complained that these medications increase her headaches and sometimes irritate her stomach. A.R. 475, 477. Thus, these reasons given by the ALJ for his adverse credibility determination are not supported by substantial evidence in the record.

Finally, the ALJ found plaintiff not entirely credible because "[t]he weight of the objective evidence does not support the claims of the [plaintiff's] disabling limitations to the degree alleged[,]" and plaintiff "does not exhibit any significant disuse muscle atrophy, loss of strength, or difficulty moving that are indicative of severe and disabling pain."*fn9 A.R. 16-17. However, contrary to the ALJ's findings, the medical evidence demonstrates that even post-surgery, plaintiff's ability to move her neck is limited. See, e.g., A.R. 424, 446-47. Moreover, "[t]he fact that a claimant's testimony is not fully corroborated by the objective medical findings, in and of itself, is not a clear and convincing reason for rejecting it." Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir. 2006).

Since "the ALJ provided unsatisfactory reasons for discounting [plaintiff's] credibility, and . . . his findings were unsupported by substantial evidence based on the record as a whole[,]" Reddick v. Chater, 157 F.3d 715, 724 (9th Cir. 1998), the ALJ's RFC determination, as well as the Step Four determination that plaintiff can perform her past relevant work as a faucet painter, are not supported by substantial evidence. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1056-57 (9th Cir. 2006); Moisa, 367 F.3d at 886.


When the Commissioner's decision is not supported by substantial evidence, the Court has authority to affirm, modify, or reverse the Commissioner's decision "with or without remanding the cause for rehearing." 42 U.S.C. § 405(g); McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). "Remand for further administrative proceedings is appropriate if enhancement of the record would be useful." Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.), cert. denied, 531 U.S. 1038 (2000). "Conversely, where the record has been developed fully and further administrative proceedings would serve no useful purpose, the district court should remand for an immediate award of benefits." Benecke, 379 F.3d at 593; McCartey, 298 F.3d at 1076-77.

Here, the record has been fully developed and "remand for further administrative proceedings [would] serve[] no useful purpose and is unwarranted." Benecke, 379 F.3d at 596; Moisa, 367 F.3d at 887.

At the administrative hearing, vocational expert S. Fioretti testified that if plaintiff's testimony were credited as true, it "would eliminate all of the work that she did [Step Four][,] as well as all other work [Step Five]." A.R. 494. Thus, "the vocational expert's testimony establishes that taking [plaintiff's] testimony as true,

[s]he [is] disabled." Lingenfelter v. Astrue, 504 F.3d 1028, 1041 (9th Cir. 2007); Moisa, 367 F.3d at 887. Accordingly, the Commissioner should award Title II disability benefits to plaintiff.*fn10


IT IS ORDERED that: (1) plaintiff's request for relief is granted; and (2) the Commissioner shall award plaintiff benefits under Title II of the Social Security Act, 42 U.S.C. § 423, and Judgment shall be entered accordingly.

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