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Layshevich v. Astrue


August 9, 2010


The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge


Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"). For the reasons that follow, plaintiff's Motion for Summary Judgment is granted in part, the Commissioner's Motion for Summary Judgment is denied, and this matter is remanded to the ALJ for further findings as directed in this opinion. The Clerk is directed to enter judgment for plaintiff.


Plaintiff, born June 8, 1948, applied on November 16, 2006 for disability benefits. (Tr. at 26, 51.) Plaintiff alleged he was unable to work due to low back pain, chest pain, knee pain, and left leg pain and numbness. (Id. at 51.) In a decision dated July 23, 2008, ALJ L. Kalei Fong determined that plaintiff was not disabled. (Id. at 13-21.) The ALJ made the following findings:*fn1

1. The claimant has not engaged in substantial gainful activity since November 16, 2006, the application date (20 CFR 416.920(b) and 416.971 et seq.).

2. The claimant has the following medically determinable impairments: low back pain, left knee pain, and depression (20 CFR 416.920(c)). 3. The claimant does not have an impairment or combination of impairments that has significantly limited (or is expected to significantly limit) the ability to perform basic work-related activities for 12 consecutive months; therefore, the claimant does not have a severe impairment or combination of impairments (20 CFR 416.921).

4. The claimant has not been under a disability, as defined in the Social Security Act, since November 16, 2006 (20 CFR 416.920(c)), the date the application was filed. (Tr. at 13-21.)


Plaintiff has raised the following issue: Whether the ALJ's Step Two Finding was Error.


The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).


Plaintiff contends that the ALJ refused to find plaintiff's back and leg pain, and carpal tunnel syndrome to be severe impairments at step two.

At the second step of the disability analysis, an impairment is not severe only if it "would have no more than a minimal effect on an individual's ability to work, even if the individual's age, education, or work experience were specifically considered." SSR 85-28. The purpose of step two is to identify claimants whose medical impairment is so slight that it is unlikely they would be disabled even if age, education, and experience were taken into account. Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287 (1987). "The step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). At this step, the ALJ may decline to find a severe impairment "only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work." Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005) (emphasis in original).

The ALJ only found plaintiff's low back pain, left knee pain and depression to be medically determinable impairments, but did not find them to be severe, and found no severe impairments whatsoever. (Tr. at 15.) Back and leg pain are by themselves only symptoms. Plaintiff can only establish an impairment if the record includes signs -- the results of "medically acceptable clinical diagnostic techniques," such as tests -- as well as symptoms, i.e., plaintiff's representations regarding his impairment. Ukolov v. Barnhart, 420 F.3d 1002, 1004-1005 (9th Cir. 2005). Here, an EMG dated January 26, 2007 indicated left lumbar radiculopathy. (Tr. at 108.) Although this study would tend to indicate a severe impairment, it is the only objective record of radiculopathy. It is impossible to determine if it lasted for at least twelve months, or whether it was only a passing irritant.

An x-ray of the lumbar spine, dated January 26, 2007, showed a mild degree of spondylosis, mild disc thinning at L4-5, and mild right convex thoracolumbar scoliosis. The SI joints and paraspinous soft tissues were normal. The right hip was normal. (Tr. at 112.) Another lumbar x-ray dated approximately a year later, on January 17, 2008, was not negative as to the lumbar spine as defendant asserts, but repeated the earlier findings and added a finding of disc degeneration at L4-5. It also indicated that the SI joints were normal. (Id. at 182.)

Treating records indicate that although plaintiff complained of back pain, exams indicated full range of motion on December 11, 2006. (Id. at 119.) Another undated report indicates a normal back, despite back pain. (Id. at 128.) On November 8, 2006, plaintiff complained of back pain radiating down the left leg and numbness, yet his treating physicians ordered no treatment other than the aforementioned diagnostic studies until January 26, 2007, when physical therapy was planned and a note was made to "consider MRI." (Id. at 129, 113.) It does not appear that plaintiff ever went to physical therapy. On January 20, 2007, low back pain was diagnosed and a neurology consult was ordered. It appears that plaintiff was prescribed Naproxen at this time but the treating notes are difficult to decipher. (Id. at 114.)

The ALJ mainly relied on the consultative report of Dr. Seu, who examined plaintiff on June 29, 2007, without the benefit of any medical records. (Tr. at 167.) The regulations require that a consultative examiner be given any necessary background information about the plaintiff's condition. 20 C.F.R. § 404.1517. Background information is essential because consultative exams are utilized "to try to resolve a conflict or ambiguity if one exists."

20 C.F.R. § 404.1519a(a)(2).

Here, Dr. Seu diagnosed low back pain and left knee pain. (Tr. at 170.) He thought plaintiff could work without any limitations. (Id.) The ALJ relied heavily on this assessment, and erred in doing so based on Dr. Seu's lack of access to any records. Where there are EMG studies and x-rays available, it is important for a consultant to have access to them. In fact, even the state agency doctor had better access to plaintiff's medical records than did this examining internist. Additionally, both the SSA examiners and the ALJ did not have access to the MRI submitted to the Appeals Council; see infra. (Tr. at 172-75.) For these reasons, this consultant report should not have been given significant weight.

When considered with the ALJ's credibility analysis, it is clear that this case must be remanded. The ALJ's credibility analysis is somewhat confusing. She states:

After considering the evidence of record, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to produce the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with finding that the claimant has no severe impairment or combination of impairments for the reasons explained below. (Tr. at 16.)

These statements are inconsistent in finding that plaintiff's impairments could produce the symptoms that plaintiff claims, yet on the other hand finding that plaintiff is not credible because he has no severe impairment. If the impairment is reasonably expected to produce the alleged symptoms, then by definition it must be a severe impairment. Because there are now x-rays, MRIs, and EMGs which support a finding of severe impairment as to plaintiff's back and leg pain, the level of severity of these problems and to what extent they are disabling is dependent in large part on plaintiff's credibility. The ALJ's credibility analysis, as described above, is flawed.

Also attached to plaintiff's motion as "new evidence" is an MRI submitted to the Appeals Council after the hearing.*fn2 (Pl.'s Mot., Ex. at 2.) Its findings include mild disc bulging at L1-2, L3-4 and disc bulging at L4-5 and L5-S1. Spondylosis was present but there was no high grade lumbar canal stenosis. The report additionally found "asymmetric narrowing of the left neural foramen at L5-S1, there is also mild narrowing of the right inferior neural foramina at L4-5 and L5-S1." (Id.) ALJs have regularly found disc bulging and spondylosis to be severe impairments. Preston v. Secretary of Health and Human Services, 854 F.2d 815, 817 (6th Cir. 1988) (bulging disc); Larry v. Astrue, 2010 WL 1038554, *1 (M.D. Ala. March 19, 2010) (slight disc bulge, spondylosis); Woody v. Astrue, 357 Fed. Appx. 765, 2009 WL 4884541 (9th Cir. 2009) (spondylosis).

This objective study is further evidence indicating that plaintiff's back problem was a severe impairment. The ALJ had not seen the MRI even though it is technically part of the record, and on remand she will be able to consider this evidence in conjunction with further development of the record by obtaining a consultation with a specialist who has access to all of plaintiff's medical records.

In making this determination, the undersigned is by no means instructing that an outcome of disability result from the remand. In fact, it is quite apparent that since immigrating to the United States in 2006, plaintiff has developed very little in the way of a medical record. He has no records from Belarus despite his claims that his medical impairments began there, where he was allegedly hospitalized three times a year when he was unable to walk due to back problems. Furthermore, as discussed throughout this opinion, the nature of plaintiff's alleged disability appears somewhat suspicious.

Here, the ALJ found plaintiff to be not entirely credible for many reasons, and plaintiff does not contest those findings.*fn3 For example, the ALJ specifically pointed out that the plaintiff reported to Dr. Seu that he had endured low back pain for fifteen years prior to the 2007 exam with this doctor, and had had left knee pain for the previous ten years. (Tr. at 18, 167.) The ALJ pointed out, however, that plaintiff last worked as a taxi driver in Belarus in 2005. Furthermore, in May, 2007, plaintiff told Dr. Cheema that he could not work since he came to the United States due to pain, but in Belarus he had always been employed. (Id. at 18, 152.) In any event, plaintiff apparently did his past work for years with this alleged pain.

Also submitted at the hearing was another report by plaintiff's treating physician, Dr. Rafanov at Manzanita Medical Clinic, dated April 11, 2008. It diagnoses lumbar radiculopathy on the left and carpal tunnel syndrome. (Id. at 184.) This report concludes that plaintiff can do less than sedentary work. (Tr. at 184-85.) "A statement by any physician that the claimant is disabled or unable to work is a conclusion on the ultimate issue to be decided . . . and is not binding on the [ALJ] in reaching his determination as to whether the claimant is disabled within the meaning of the [Act]." Murray v. Heckler, 722 F.2d 499 (9th Cir. 1983), (citing Burkhart v. Bowen, 856 F.2d 1335 (9th Cir. 1988), 20 C.F.R. §§ 404.1527 and 404.927); accord, Magallanes v. Bowen, 881 F.2d 747, 750-51 (9th Cir. 1989). The ALJ discounted this opinion because it conflicted with the remainder of the record, and the objective evidence did not support the level of severity assigned by this physician. (Id. at 19.) It should be noted that plaintiff does not dispute the ALJ's decision to give this report less weight.

Contrary to the ALJ's assertion that this report does not contain a reference to objective testing to support these diagnoses, and defendant's parroting of the ALJ's finding, the report specifically states that it relies on an abnormal x-ray and EMG, as outlined above. (Id. at 184.) Those diagnostic studies do not address plaintiff's alleged carpal tunnel syndrome, but plaintiff has provided new evidence in the form of an EMG study with his motion, dated April 11, 2008, which does indicate an abnormal study of mild median neuropathy at the wrist and ulnar sensory neuropathy. (Pl.'s Mot., Ex. at 3-4.)

This EMG was not included in the record and therefore it must be determined whether it should be considered new evidence. New evidence is "material," if the court finds a reasonable possibility that considering the evidence would have changed the disability determination.*fn4 See Booz v. Secretary of Health and Human Services, 734 F.2d 1378, 1380-1381 (9th Cir. 1984). Unless it is probative of plaintiff's condition at or before the disability hearing, new evidence is not material. See 42 U.S.C. § 416(i)(2)(G); Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 511-12 (9th Cir. 1987) (holding that new evidence was not material because it related to a medical condition not significantly at issue at time of hearing).*fn5

"Good cause" requires more than "simply . . . obtaining a more favorable report from an expert witness once [a] claim is denied. The claimant must establish good cause for not seeking the expert's opinion prior to the denial. . . ." Clem v. Sullivan, 894 F.2d 328, 332 (9th Cir. 1990) (citing Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir.1985)). For example, good cause exists if new evidence earlier was unavailable, in the sense that it could not have been obtained earlier. Embrey v. Bowen, 849 F.2d 418, 423-24 (9th Cir.1988).

The EMG is probative of plaintiff's condition on April 11, 2008, three months prior to the ALJ's decision and about a month before the administrative hearing. Plaintiff has not submitted a reason why this report was not submitted earlier, other than to state that it "did not make it into the record." (Pl.'s Mot. at 4 n. 2.) Plaintiff has not provided an acceptable reason why this report was not previously submitted to the ALJ.

Pursuant to 20 C.F.R. § 404.1512(d), the ALJ will make "every reasonable effort" to obtain evidence from medical sources. The record will be kept open after the hearing for submission of post-hearing evidence known to be in existence. 1 Soc. Sec. Disab. Claims Prac. & Proc. § 16:57 (2nd Ed.) "Even if the ALJ does not hold a record open for submission of new evidence, evidence can be submitted up to the date a hearing decision is issued." Id.

In this case, the hearing occurred on May 21, 2008, over a month after the EMG study was completed. At that time, the ALJ told plaintiff that he could always re-open or re-file more records. (Id. at 202.) Plaintiff did not submit the EMG report to the ALJ or the Appeals Council, despite its prior existence. The ALJ's decision, issued July 23, 2008, fails to refer to this EMG, and in fact states that there is no objective evidence to support the treating physician's diagnosis of carpal tunnel syndrome. (Id. at 19.)

As the EMG was in existence at the time of the hearing, it is probative of plaintiff's condition at the very end of the pertinent time period. Nevertheless, plaintiff's casual statement that the report did not make it into the record does not show good cause, especially in light of the two month delay after the hearing before the ALJ issued her decision.

More importantly, the remainder of the record does not evidence a carpal tunnel problem. In fact, when plaintiff saw consulting physician Seu, he did not complain of this problem at all. (Tr. at 167.) The SSA examiners had no record of complaint of this problem either. (Id. at 172-75.) Furthermore, carpal tunnel syndrome was not raised as an impairment by plaintiff until the administrative hearing when he submitted the April 11, 2008 report by Manzanita Medical Clinic. (Id. at 26, 92, 184-87.) From November, 2006, when plaintiff filed his application, until April, 2008, plaintiff did not complain of this problem, receive a diagnosis of CTS, or seek treatment for this problem. Plaintiff has failed to show good cause why this report should be considered. The best recourse is for plaintiff to file a new application for benefits in this regard, but only if the problem is severe enough under guiding standards.

In sum, despite a real lack of treatment*fn6 in comparison to the alleged degree of pain, the ALJ erred in relying on Dr. Seu's opinion because this consultant had no access to plaintiff's medical records. On remand, the ALJ shall consider plaintiff's back and knee problems to be severe impairments. The ALJ shall further develop the record in regard to these impairments, including obtaining a consultative exam which has the benefit of all the medical records, including the MRI before the Appeals Council. The ALJ shall then complete the sequential analysis. Plaintiff's carpal tunnel syndrome is not considered a severe impairment, and shall not be considered on remand, but plaintiff has the prerogative to file a new claim for benefits on this impairment as he sees fit.


For the reasons stated herein, IT IS ORDERED that: plaintiff's Motion for Summary Judgment is GRANTED in part pursuant to Sentence Four of 42 U.S.C. § 405(g), the Commissioner's Cross Motion for Summary Judgment is DENIED, and this matter is remanded for further findings in accordance with this order. The Clerk is directed to enter Judgment for plaintiff.

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