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Deborah R. Whaley v. Carolyn W. Colvin

April 30, 2013


The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge




Deborah Whaley ("Plaintiff") brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration (hereinafter the "Commissioner" or the "Agency") denying his application for Supplemental Security Income benefits ("SSI").*fn1 The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the decision of the Agency is REVERSED and the matter REMANDED.



Plaintiff filed an application for SSI on January 29, 2007. (Administrative Record ("AR") 22). Plaintiff contended that she was disabled due to cervical stenosis and an inability to raise her dominant, left arm. (AR 123). Plaintiff alleged a disability onset date of May 1, 2006. (Id.). The Agency initially denied Plaintiff's application on May 30, 2007. (AR 73-77). Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"). (AR 78). On December 11, 2008, a hearing was held before ALJ Robert S. Eisman. (AR 32-68). Plaintiff was represented by counsel and testified at the hearing. (AR 34-57). A vocational expert ("VE") also testified. (AR 57-67).

On December 24, 2008, the ALJ issued a decision denying benefits. (AR 22-29). On February 9, 2009, Plaintiff sought review of this decision before the Appeals Council. (AR 5). On January 14, 2010, the Appeals Council denied review. (AR 1). Plaintiff then filed a civil action, which resulted in a Memorandum Decision and Order reversing the ALJ's determination and remanding the action for further proceedings. (AR 505-31). The Court concluded that deviation between the VE's testimony and the Dictionary of Occupational Titles ("DOT") description of work the VE determined Plaintiff could perform created an unresolved inconsistency that required remand for further administrative proceedings. (AR 516). Specifically, the Court found that the ALJ failed to explain deviations from the DOT in the VE's testimony and failed to elicit testimony from the VE regarding the deviation. (AR 517-24).

The Court instructed the ALJ that, on remand, he "must determine whether Plaintiff can actually perform the requirements of the positions identified given the limitations imposed by her left upper extremity, or must elicit further testimony from a VE on this topic, or must otherwise reevaluate his decision." (AR 524).

Pursuant to this Court's remand, the Appeals Council vacated the ALJ's decision on November 13, 2010. (AR 534). On April 27, 2011, a second hearing was held before the ALJ. (AR 420-43). Plaintiff testified at the hearing. (AR 422-36). A vocational expert also testified. (AR 430-41). The ALJ found that Plaintiff was disabled as of July 7, 2009 but that prior to that date, Plaintiff was capable of performing her past relevant work. (AR 376). According to the ALJ, "[b]eginning on July 7, 2009, [Plaintiff's] residual functional capacity has prevented [Plaintiff] from being able to perform past relevant work." (AR 377). The ALJ also found that "[a]s of July 7, 2009, considering [Plaintiff's] age, education, work experience, and residual functional capacity, there are no jobs that exist in significant numbers in the national economy that [Plaintiff] can perform." (AR 378). The ALJ concluded that "[Plaintiff] was not disabled prior to July 7, 2009, . . . but became disabled on that date and has continued to be disabled through the date of [the ALJ's decision]," and the ALJ awarded benefits beginning on that date. (AR 378-79). Plaintiff requested judicial review by filing the instant action on June 19, 2012.



Plaintiff, who was fifty-five at the time of the second ALJ hearing, has an eleventh-grade education and is able to communicate in English. (AR 36-37, 424). Plaintiff does not have a GED. (AR 449). In the past, Plaintiff worked as a counter person at a cheese shop, cutting and wrapping cheese, stocking shelves, washing dishes, and manning the cash register. (AR 37). Plaintiff also worked as a manicurist, telemarketer, and a chef without formal training. (AR 38, 432, 434, 435). During the first hearing, in December of 2008, Plaintiff stated that she had not worked or sought work since May of 2006. (AR 39). During the second hearing, Plaintiff stated that she had not worked since the first hearing. (AR 429).

During the second hearing, Plaintiff also stated that her cervical stenosis and inability to raise her dominant, left arm had not improved. (AR 425). According to Plaintiff, "they definitely have not gotten better, in some regards they're the same, and in some they're worse." (Id.). Plaintiff stated that her arm "shakes more, it locks up more" and that her index and ring fingers sometimes turn white for several hours, "like there's no circulation at all there." (Id.). Plaintiff also stated that she has continued pain management treatment, has not received any kind of occupational therapy, and has continued physical therapy exercises although she is no longer under the care of a physical therapist. (AR 429).

A. Plaintiff's Medical History

1. Physical Examinations

Plaintiff asserts that her health problems began in 2005 with a pain in her back and radiating pain in her left arm. (AR 43). According to Plaintiff, her condition steadily worsened until April 2006, when it became so severe that she had no feeling in her left arm and could not move it. (Id.). In May 2006, Plaintiff was referred to Harbor-UCLA Medical Center ("Harbor"), where she was diagnosed with "disk osteophyte complex [with] severe NF [neural foraminal] stenosis on the left [at] both C4-5 and C5-6" disc spaces. (AR 195). Plaintiff underwent an anterior cervical discectomy and fusion that same month, after which she reported the pain "got better" and saw some improvement in her bicep strength. (AR 158, 192). Nonetheless, in August 2006, Plaintiff still reported continuing pain in her back shoulder. (Id.). Later that same year, Plaintiff began physical therapy. (AR 190). In December 2006, a Harbor physician noted that Plaintiff's left hand strength showed "significant improvement," but still recommended continued disability status due to Plaintiff's "nonfunctional" left upper arm. (AR 185). In April 2007, a Harbor physician noted that although Plaintiff "can move her fingers, her hand is weak and she cannot hold things. Her [left] arm is so weak she cannot lift anything. [Plaintiff] has had [occupational therapy] for exercises but has not had improvement in function. She is very depressed . . . ." (AR 178).

In May 2007, consultative state orthopedist Dr. Dorsey examined Plaintiff, finding her to be a "reliable historian." (AR 158). Dr. Dorsey reported that following surgery, Plaintiff experienced a fifty percent improvement. (AR 158). Plaintiff complained that she had no sensation in her left thumb, a lesser degree of numbness in the other fingers on her left hand, and sharp pain at night that would wake her up, which she would attempt to treat by massaging her hand. (Id.). Dr. Dorsey noted that there was no evidence of paravertebral spasm in Plaintiff's cervical spine and that the range of motion of the cervical spine was grossly normal. (AR 159). Plaintiff's lumbar spine showed no evidence of splinting or spasm, and again, the range of motion was grossly normal. (Id.). Dr. Dorsey reported that Plaintiff's left hand showed decreased sensation to all fingers, but no significant swelling or tenderness, and had the full range of normal motion. (Id.). Additionally, Plaintiff had a grossly normal range of motion in her shoulders, elbows, wrists, hips, knees and ankles, and her gait was normal. (AR 159-60).

In his radiographic examination, Dr. Dorsey noted that Plaintiff's C4-C5 disc space was "markedly decreased" and the C5-C6 disc space was moderately decreased. (AR 160). However, Dr. Dorsey found that all of Plaintiff's vertebral heights were within normal limits, and all of the remaining intervertebral disc spaces were normal, with no evidence of osteophyte formation or soft tissue swelling, fracture, or dislocation. (AR 160). Dr. Dorsey determined that Plaintiff had a "poor clinical result" from her May 2006 operation and suffered from carpal tunnel syndrome in her left hand. (Id.).

Dr. Dorsey concluded, based on his examination and review of the medical records, that Plaintiff could push, pull, lift and carry twenty pounds occasionally and ten pounds frequently, and that she should be able to stand six hours out of an eight-hour day. (AR 161). Dr. Dorsey further determined that Plaintiff could bend and stoop occasionally, finger frequently, and grip and grasp on a frequent, but not continuous, basis. According to Dr. Dorsey, Plaintiff could occasionally engage in feeling activities with her left upper extremity, but could not do any overhead activities with the left upper extremity. (Id.).

On May 24, 2007, Dr. P.V. Matsuura, a non-examining physician, completed a Physical Residual Functional Capacity Assessment. (AR 163-69). Dr. Matsuura referred to Dr. Dorsey's report and reached the same conclusions regarding Plaintiff's physical abilities and limitations. (AR 163-65, 169).

On June 17, 2008, Dr. Mariam Kazemzadeh, who had treated Plaintiff on several occasions at Harbor (see, e.g., AR 227-28, 235, 238), completed a Physical Residual Functional Capacity Questionnaire concerning Plaintiff. (AR 353-56). Dr. Kazemzadeh diagnosed Plaintiff with C5-C6 paralysis and, referring to a colleague's evaluation, determined that Plaintiff was "permanently, totally disabled." (AR 353). According to Dr. Kazemzadeh, Plaintiff's MRI revealed that "[r]esolution of the prior disc protrusion at C4-C5 multilevel disc osteophyte complex [was] causing mild left neural foraminal stenosis [at] several levels." (AR 353). Dr. Kazemzadeh determined that Plaintiff could not lift or carry weight with her left arm, and that she had limitations in reaching, handling and fingering with the same arm. (AR 355). While Dr. Kazemzadeh stated that Plaintiff could climb ladders only rarely, she also reported that Plaintiff could twist, stoop, bend, crouch and climb stairs frequently. (AR 355). Dr. Kazemzadeh concluded that Plaintiff would likely miss four or more workdays per month due to her condition. (AR 356).

In October 2008, Plaintiff began therapy with Rio Hondo Mental Health ("Rio Hondo") to address her depression. (AR 331-37). As reflected in her Rio Hondo initial assessment report, Plaintiff reported that she felt hopeless and depressed; experienced crying spells, mood swings, and racing thoughts; and had difficulty sleeping and suicidal thoughts. (AR 331). Plaintiff was prescribed the antipsychotic Seroquel (AR 50, 327, 329) and the antidepressant Remeron. (AR 328). At the December 11, 2008 hearing, Plaintiff reported that she went to therapy at Rio Hondo every "couple of weeks."*fn2 (AR 48).

On June 22, 2009, Dr. Rocely Ella Tamayo, M.D., conducted an internal medicine consultative examination at the request of the Agency. (AR 763). Dr. Tamayo reported that Plaintiff was restricted in pushing, pulling, lifting, and carrying to about twenty pounds occasionally and about ten pounds frequently with the right hand. (AR 767). Dr. Tamayo also reported that Plaintiff's ability to sit was unrestricted, while standing and walking should be limited to six hours in an eight-hour workday with normal breaks. (Id.). Finally, Dr. Tamayo concluded that Plaintiff was unable to perform heavy lifting or repetitive work with her left hand and could not raise her left upper extremity. (AR 768).

2. Psychological Examinations

On June 23, 2009, Plaintiff was evaluated by Barbara Gayle, Ph.D., at the Agency's request. (AR 763). Dr. Gayle concluded that although Plaintiff would have mild cognitive limitations in her ability to work because her overall intellectual capabilities fell in the borderline to low average range, Plaintiff would be able to interact appropriately with others and implement simple three-part tasks without supervision. (See AR 374; see also AR 763-73). However, Dr. Gayle also reported that "[Plaintiff] cannot raise her left arm. She cannot pick up things . . . . She has to raise her left arm with her right hand to be able to shampoo her hair." (AR 764).

On July 7, 2009, Dr. R. Tashjian, M.D., evaluated Plaintiff's medical record at the request of the Agency. (AR 774). Dr. Tashjian found that Plaintiff was moderately limited in her ability to understand and remember detailed instructions, carry out detailed instructions, and interact appropriately with the general public. (AR 774-75). Dr. Tashjian also found that Plaintiff was not significantly limited in her ability to remember locations and work-like procedures, understand and remember very short and simple instructions, carry out very short and simple instructions, maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, sustain an ordinary routine without special supervision, work in coordination with or proximity to others without being distracted by them, make simple work-related decisions, complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, ask simple questions or request assistance, accept instructions and respond appropriately to criticism from supervisors, get along with co-workers or peers without distracting them or exhibiting behavioral extremes, maintain ...

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