The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER REVERSING THE SOCIAL SECURITY AGENCY'S DETERMINATION AND REMANDING FOR PAYMENT OF DISABILITY BENEFITS
Plaintiff Martin Campbell, proceeding in forma pauperis, by his attorney, Law Office of Henry Reynolds, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying in part and approving in part his application for disability insurance benefits under Title II of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act") and supplemental security income ("SSI"), pursuant to Title XVI of the Act. The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge.*fn1 Following a review of the complete record, this Court concludes that the ALJ erred in rejecting Plaintiff's testimony regarding the degree of pain that he experienced, in focusing primarily on the final report of the surgeon who performed Plaintiff's 2006 cervical fusion, and in rejecting the reports of treating and examining physicians in favor of the opinions of the agency's reviewing physicians, who neither treated nor examined Plaintiff. Accordingly, the Court reverses and remands for payment of benefits.
On December 1, 2005, Plaintiff filed protectively for disability insurance benefits and for SSI benefits, alleging disability beginning May 24, 2005. AR 22. His claims were initially denied on December 22, 2005, and upon reconsideration, on April 4, 2007. AR 22. On April 30, 2007, Plaintiff filed a timely request for a hearing. AR 22. Plaintiff appeared and testified at the hearing on March 12, 2008. AR 40-77. On July 22, 2008, Administrative Law Judge James N. Mitchell, Jr., ("ALJ") determined that Plaintiff was disabled from May 24, 2005 through January 13, 2007, but was able to work thereafter. AR 22-35. The Appeals Council denied review on March 23, 2009. AR 1-4. On April 21, 2009, Plaintiff filed a complaint seeking this Court's review (Doc. 1).
Plaintiff's testimony. Plaintiff (born April 28, 1973) dropped out of high school in eleventh grade. AR 43. From 1995 to 2004, his work included driving an 18-wheel truck that carried hay, and loading and unloading it, sometimes with a forklift. AR 44-45. He maintained a federal log book. AR 45. Plaintiff was responsible for cleaning his truck and maintaining grease fittings, but did no other truck maintenance. AR 45. Before 1995, he trained racehorses for his father but was not paid for that work. AR 46. He also worked briefly as a cleaner in a slaughterhouse. AR 47.
Plaintiff's disability began on May 24, 2005, when he was taken to the hospital. AR 49. At the time of the hearing, he experienced pain in his lower back, in between his shoulders, and at the base of his neck. AR 58. Plaintiff had pain in his right arm, and pain and numbness in both legs and feet. AR 61. Using his right hand was difficult since it was numb and prone to cramping. AR 64. (Plaintiff is left-handed. AR 63.) The pain was moderate to severe, sharp and tingling, and numb. AR 61. Plaintiff experienced severe pain (8 or 9 on a ten-point scale) about four times a week. AR 65. At those times, he laid down on the floor to get relief. AR 66.
Nearly every body position, sitting, standing, or lying down, hurt. AR 62. Lying flat on the floor gave Plaintiff some relief. AR 62. At the time of the hearing, his doctors had directed that he not push, pull, lift anything over five pounds, squat, bend over, walk, or climb ladders. AR 56. He testified to difficulty reaching up but not to the front or sides. AR 58-59. Plaintiff had no difficulty picking up or holding onto small objects. AR 59. Because his hands were insensitive to hot and cold, he frequently burned himself. AR 59. Pain and stiffness in his neck limited his ability to turn his head left or right. AR 60. He had difficulty looking down without pain. AR 69. Plaintiff rested for an hour once or twice daily. AR 66.
Plaintiff was unable to put on his own socks and shoes, finding it too difficult to bend down and get back up without help. AR 58. His wife also helped him dress and bathe. AR 63. Although he sometimes accompanied his wife on short shopping trips (as to pick up milk), he had difficulty getting into and out of the car, and could not sit in the car long. AR 66. On the 35- to 40-minute drive to the hearing, Plaintiff's wife had to stop the car once to allow him to get out and stand for ten or fifteen minutes. AR 67.
At the time of the hearing, Plaintiff lived with his father-in-law and, along with his wife and two children, lived on public assistance. AR 48. Because activity increased his pain, he did not cook or do any housework. AR 51, 65. He spent his time sitting and standing, talking with family members. AR 53. He did not drive because turning and looking was difficult. AR 54.
In the course of the hearing, the ALJ admonished Plaintiff for standing up without asking permission. AR 49. Plaintiff apologized and explained that he was uncomfortable. AR 49. Later, Plaintiff's attorney stated that some medical records had not yet been submitted, but that Plaintiff was again being considered for surgery. AR 57. The ALJ granted twenty days to produce additional records. AR 76.
Plaintiff's Disability Report.*fn2 Plaintiff was laid off from work on November 1, 2004. AR 137. He became unable to work on May 24, 2005, when compressed nerves in his neck and spine led to numbness in his arms. AR 137. Plaintiff could not grab anything, and his fingers had curled into a fist. AR 137. His medications included Lotrel,*fn3 carisprodol,*fn4 and Vicodin.*fn5 AR 142.
Plaintiff's prior jobs included kill floor worker at a slaughter house, laborer for a moving company, horse trainer, truck driver, and welder. AR 138. Although he left high school after completing the tenth grade, he completed a diesel mechanic training program in 1995. AR 143.
Plaintiff's Second Disability Report. Plaintiff reported having had surgery. AR 180. Beginning about March 25, 2006, Plaintiff noted a loss of movement and inability to turn his head. AR 174. By March 30, 2006, he noticed numbness in both arms and hands, and pain in his left shoulder and arm and in the middle of his back. AR 174.
Plaintiff's Third Disability Report. Beginning on April 9, 2006,
Plaintiff's left arm became numb, and he sometimes could not feel his
fingers. AR 161. He experienced severe pain when he coughed, sneezed,
or picked up things weighing more than ten pounds. AR 164. Bending
over, sitting down, showering, and moving his head also presented
problems. AR 164. His medications included diazepam,*fn6
Lotrel, and Temazepam.*fn9 AR 163.
Medical records. Plaintiff was seen in the Memorial Medical Center emergency room on April 13, 2005. AR 116. The report noted that Plaintiff went to bed and awoke with a stiff neck and numbness in his right arm. AR 116. Upon admission, Plaintiff could not move his head. AR 124. His pain was sharp and severe. AR 116. X-rays of Plaintiff's cervical spine revealed no fracture or misalignment, but mild degenerative changes, including loss of joint space and formation of small osteophytes. AR 125. The doctor treated him with medication. AR118, 122.
Magnetic resonance imaging on April 20, 2005, revealed calcification of Plaintiff's posterior longitudinal ligament, raising the possibility of ankylosing spondylitis,*fn10 and multilevel degenerative changes from C3-4 to C6-7. AR 193-194.
Plaintiff returned to Memorial Medical Center on May 18, 2005, after his car was "t-boned" in an accident. AR 127. Plaintiff reported moderate pain in his neck, between his shoulders and in his lower back, and numbness in both arms. AR 127, 132. On examination, his neck and back were tender. AR 128. X-rays indicated no acute abnormalities and no prevertebral soft tissue swelling, but revealed moderate degenerative changes at C4-5. AR 135.
On May 31, 2005, Dikram Bairamian, M.D., examined Plaintiff at the neurosurgical clinic of Stanislaus County Health Services Agency. AR 205-206. Bairamian reported that Plaintiff's neck pain had progressed since it started two months before. AR 205. Plaintiff also complained of paresthesia in his right upper extremity to the dorsum of his hand and the middle three fingers. AR 205. He had no radicular pain. AR 205. Neck movement was limited and painful. AR 205. The back of Plaintiff's neck was tender. AR 205. Light touch and pinprick indicated reduced sensation. AR 206. Bairamian elected to treat Plaintiff conservatively with analgesics, rest, and physical therapy. AR 206. He noted that if Plaintiff's symptoms worsened and he could not live with them, further evaluation could be performed with a cervical myelogram and a post-myelographic CT scan. AR 206.
On June 28, 2005, Plaintiff returned to Bairamian's office and requested further testing. AR 204. His pain and parathesia continued. AR 204. Bairamian advised Plaintiff that if he had nerve root compression, surgery could relieve the paresthesia but not the pain. AR 204.
Dennis Boyce, M.D., reported findings of a cervical myelogram performed on July 5, 2005. AR 250-251. He noted:
Amputated nerve root sheaths on the right at C4-5 and C5-6. CT will follow to determine the cause of the nerve root sheath amputation. Degenerative spondylotic change of the cervical spine is noted included [sic] a triangular bony density in the soft tissue anterior to C4 and C5 which does not have the appearance of a recent fracture, but probably dystrophic anterior spinal ligamentous calcification.
Boyce also prepared a report of a computed tomography cervical spine (post myelogram) plus 2-D sagittal and coronal reformatted images performed on July 5, 2005. AR 248-249. He reported his impression:
There is a significant compromise of the right neural foramen and right lateral recess at C4-5 due to an uncovertebral joint osteophyte in combination with a broad-based disc protrusion.
At C5-6, there is an amputation of the right C5-6 nerve root sheath, compromise of the right lateral recess and slight impression upon the cervical spinal cord due to broad-based disc protrusion in association with an uncovertebral joint osteophyte.
Very small posterolateral protrusion at C6-7.
No abnormalities noted at C7-T1.
On July 26, 2005, Bairamian saw Plaintiff after his cervical myelogram and post myelographic CT scan. AR 202-203. Plaintiff's pain and parathesia continued. AR 202. The cervical myelogram showed decreased filling of the right C6 nerve root. AR 202. The post myelographic CT showed narrowing of the right C5-6 foramen. AR 202. Bairamian repeated his counsel that surgery would relieve the paresthesia but not the pain. AR 202.
On September 20, 2005, Bairamian again saw Plaintiff for a follow-up examination. AR 200-201. Plaintiff's right-side paresthesia had worsened, and he was experiencing left-side paresthesia to a lesser degree. AR 200. Bairamian commented:
I told the patient that the findings in the imaging studies are rather subtle. They did show decreased filling of the right C6 nerve root at the right C5-6 foramen. I told him that I do not have any explanations for the left sided symptoms. I told him that if he decides to undergo surgery, I am unable to give him any numbers regarding the odds of success, however, I told him that surgery will not help the neck pain at all. I told the patient and his wife that if they want to have a second opinion, I will refer them to San Francisco. I will extend his work release by another month.
At the follow-up appointment on October 25, 2005, Plaintiff told Bairamian that his neck pain was his main problem. AR 198. Bairamian reminded Plaintiff that surgery would not help the neck pain at all and that seeing a pain management specialist might be a better option. AR 198-199. The clinic record noted that EMG and nerve conduction studies were within normal limits. AR 198.
On December 9, 2005, Matthew Lynn, M.D., reported on Plaintiff's magnetic resonance imaging:
1. There is multilevel degenerative disk disease with multiple anterior extradural defects present as described above. The only anterior extradural defect which is felt to be clinically significant at this point is on the C5-6 level. This is eccentric to the right. This causes anterior effacement of the thecal sac and may be causing some mild impingement of the cord. On this study, it appears to be due to posterior spurring. On the prior CT myelogram of 07/05/2005, it was felt to be due [to] posterior spur with associated broad-base disk protrusion. This lesion causes no definite cord compression or cord edema.
2. There is question of bilateral neural foraminal stenosis as described above.
Whether the narrowing of the neural foramina is due to osteophytic impingement is clinically significant or not is uncertain.
In a report dated December 13, 2005, David S. Kerwin, M.D., of the University of California at San Francisco medical center ("UCSF") diagnosed lower back pain, neck pain from two compressed nerves in spine, and high blood pressure. AR 188. The doctor observed radiculopathy, paresthesia in both arms, and tenderness of the neck and back. AR 188. A pelvic x-ray revealed nothing remarkable. AR 337.
Plaintiff's condition remained substantially the same at his December 27, 2005, follow-up appointment with Bairamian. AR 196. Plaintiff had recently had magnetic resonance of his cervical spine since that was required before his consultation with the UCSF. AR 196. Magnetic resonance revealed mild central stenosis and right C3-4, C4-5, and C5-6 foraminal stenosis. AR 196.
After summarizing Plaintiff's condition and medical history in a report to Bairamian dated February 7, 2006, Kerwin opined:
He has failed to improve over these 10 months with conservative management, and he has a clear cut structural abnormality that I think largely is related to his symptoms, particularly the numbness in his right thumb and index finger. I think an anterior cervical discectomy and fusion with or without plating as needed is the most appropriate treatment.
On March 24, 2006, surgeon Lawrence Pitts, M.D., performed a C5-6 anterior cervical discectomy and fusion ...