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Nayor Saesee v. Michael J. Astrue

September 11, 2012

NAYOR SAESEE,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER REMANDING THE MATTER PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(g) ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF PLAINTIFF NAYOR SAESEE AND AGAINST DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY

Nayor Saesee ("Plaintiff") asserts she is entitled to Supplemental Security Income ("SSI") benefits under Title XVI of the Social Security Act. Plaintiff argues the administrative law judge ("ALJ") improperly rejected her subjective complaints and erred in evaluating the medical evidence. Therefore, Plaintiff seeks judicial review of the administrative decision denying her claim for benefits. For the reasons set forth below, the matter is REMANDED for further proceedings.

PROCEDURAL HISTORY

Plaintiff filed an application for SSI benefits on August 1, 2007, alleging disability beginning March 5, 2004. (Doc. 12-6 at 2). The Social Security Administration denied her claim initially on December 24, 2007, and upon reconsideration on April 29, 2008. (Doc. 12-4 at 2-18). Plaintiff testified at a hearing before an ALJ on September 10, 2009. (Doc. 12-3 at 26-55). The ALJ determined Plaintiff was not disabled under the Social Security Act, and issued an order denying benefits on November 13, 2009. Id. at 13-24. Plaintiff requested a review by the Appeals Council of 2 Social Security, which found no reason to change the ALJ's decision on June 24, 2011. Id. at 2-5. 3

Therefore, the ALJ's determination became the decision of the Commissioner of Social Security ("Commissioner"). 5

STANDARD OF REVIEW

District courts have a limited scope of judicial review for disability claims after a decision by 7 the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact, 8 such as whether a claimant was disabled, the Court must determine whether the Commissioner's 9 decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The ALJ's determination that the claimant is not disabled must be upheld by the Court if the proper legal standards were applied and the findings are supported by substantial evidence. See Sanchez v. Sec'y of Health & Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).

Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole must be considered, because "[t]he court must consider both evidence that supports and evidence that detracts from the ALJ's conclusion." Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

DISABILITY BENEFITS

To qualify for benefits under the Social Security Act, Plaintiff must establish she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if: physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). When a claimant establishes a prima facie case of disability, the burden shifts to the Commissioner to prove the claimant is able to engage in other 2 substantial gainful employment. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984). 3

DETERMINATION OF DISABILITY

To achieve uniform decisions, the Commissioner established a sequential five-step process for 5 evaluating a claimant's alleged disability. 20 C.F.R. §§ 416.920 (a)-(f). The process requires the ALJ 6 to determine whether Plaintiff (1) engaged in substantial gainful activity during the period of alleged 7 disability, (2) had medically determinable severe impairments (3) that met or equaled one of the listed 8 impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether Plaintiff (4) had the 9 residual functional capacity to perform to past relevant work or (5) the ability to perform other work existing in significant numbers at the state and national level. Id. The ALJ must consider objective medical evidence and opinion (hearing) testimony. 20 C.F.R. §§ 416.927, 416.929.

A. Relevant Medical Evidence

According to Dr. Martin Rindahl, Plaintiff had "a long history of back pain and severe scoliosis." (Doc. 12-8 at 3) On April 25, 2007, Plaintiff reported her pain was chronic, but over the past two weeks it had become "increasingly severe," and radiated "to her low back and thighs and even to her hips." Id. Plaintiff informed Dr. Rindahl that she had been taking hydrocone and cyclobenzaprine, but "the effectiveness of this medication . . . markedly decreased over the last several months." Id. Plaintiff stated she had a difficulty with ambulation, and missed work due to her back pain. Id.

Dr. Rindahl ordered an MRI, which demonstrated scoliotic curvature of Plaintiff's spine, as well as "[s]pinal dysraphic changes of the lumbosacral spine, with a right sided hemivertebra noted at the L3-4 vertebral body level, and partial fusion of the L1 and L2 vertebrae." (Doc. 12-8 at 6-7). The MRI revealed "multilevel degenerative change of the thoracolumbar spine with disc space narrowing [and] disc desiccation," but "[n]o significant spinal canal narrowing." Id. at 7.

Plaintiff participated in two physical therapy sessions for her back pain, between April and May 2007, at the Kaweah Delta Health Care District. (Doc. 12-8 at 41). Because Plaintiff had "cancelled and no showed on a number of occasions . . . and did not attempt to reschedule her appointments," she was discharged from physical therapy on May 22, 2007. Id.

On June 22, 2007, Plaintiff began mental health treatment with Tulare County Health & Human Services Agency. (Doc. 12-8 at 8). Blake Kerr, a social worker at the agency, completed an 3 "Initial Strengths / Needs Assessment" form on July 6, 2007. Id. at 8-12. At the initial consultation, 4 Plaintiff reported she needed assistance "with her chronic back pain and depression." Id. at 8. In 5 addition, Mr. Kerr noted: 6 She reports that her back is in constant pain. She has had to miss work and was layed [sic] off. She states that she isolates herself and doesn't like going out anymore. She 7 has had a loss of appetite. She often is sad nearly everyday for the past 4 months. She was seeing a psychologist at FHCN and was put on medication for depression and 8 anxiety. She states that she gets scared being in a car or in a small room. She reports an accelerated heart rate when she is scared. She reports that she often stays in her room for most of the day. She reports difficulty in getting to sleep and staying asleep. Her ex bf who used to abuse her visits his children and this causes her stress. She often feels worthless because she has let her parents down by having children out of wedlock. She feels she has 'shamed' the family.

Id. Further, Plaintiff asserted she was unable "to go to school or work due to the depression." Id. at 9. Based upon Plaintiff's reports, Mr. Kerr diagnosed Plaintiff with a major depressive disorder and depression due to a medical condition. Id. at 11. Mr. Kerr gave Plaintiff a GAF score of 50.*fn1 Id.

Plaintiff participated in some therapy sessions with Mr. Kerr at Tulare County Health, but missed several appointments between September and November 2007. (Doc. 12-8 at 18-25). Therefore, on November 8, 2007, Mr. Kerr opined Plaintiff was "unresponsive[] to participating in services." Id. at 21.

Dr. Rosalinda Serrano performed a consultative comprehensive orthopedic evaluation on October 14, 2007. (Doc. 12-8 at 30-35). Plaintiff reported the intensity of her back pain was a "9-10/10 in the pain scale." Id. In addition, Plaintiff informed Dr. Serrano that she did not feel any change in her symptoms after receiving epidural injections. Id. at 31. According to Plaintiff, she was able to do the dishes, but was "unable to perform activities of daily living because of her back pain."

Id. Dr. Serrano Plaintiff's range of motion was "[r]estricted due to back pain." Id. at 33. Plaintiff 2 demonstrated "diffuse tenderness of the cervical, thoracic, and lumbar spine," as well as "pain and 3 tenderness at T2-T12 and L2-S1." Id. Plaintiff's strength in her right leg was 4/5, 5/5 in her left leg, 4 and 5/5 in both arms. Id. at 33. Dr. Serrano offered the following functional assessment: 5

Because of involvement of the cervical, thoracic, and lumbar spine, as well as scoliosis, the number of hours the claimant could be expected ...


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