United States District Court, E.D. California
ORDER REMANDING THE ACTION PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(G) ORDER DENYING DEFEND ANT'S MOTION FOR SUMMARY JUDGMENT (DOC. 21) AND DIRECTING ENTRY OF JUDGMENT IN FAVOR OF PLAINTIFF LINDA IBRAHIM AND AGAINST DEFENDANT CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY
JENNIFER L. THURSTON, Magistrate Judge.
Linda Ibrahim ("Plaintiff") asserts she is entitled to disability insurance benefits under Title II of the Social Security Act. Plaintiff seeks review of the decision of the administrative law judge ("ALJ") who concluded she was not disabled. For the reasons set forth below, Defendant's motion for summary judgment is DENIED and the action is REMANDED for further proceedings.
Plaintiff filed her application for supplemental security income on April 27, 2010, alleging disability beginning March 16, 2010, which was denied by the Social Security Administration initially and upon reconsideration. (Doc. 11-3 at 23.) After requesting a hearing, Plaintiff testified before an ALJ on October 11, 2011. ( Id. at 23, 32.) The ALJ determined Plaintiff was not disabled under the Social Security Act, and issued an order denying benefits on November 2, 2011. ( Id. at 20-35.) The Appeals Council considered new evidence submitted by Plaintiff, and found no reason to review the decision. ( Id. at 2-4.) Therefore, the Appeals Council denied Plaintiff's request for review of the decision on November 29, 2012, and the ALJ's determination became the final decision of the Commissioner of Social Security ("Commissioner").
STANDARD OF REVIEW
District courts have a limited scope of judicial review for disability claims after a decision by the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact, such as whether a claimant was disabled, the Court must determine whether the Commissioner's 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).
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). If 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 substantial gainful employment. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984).
To achieve uniform decisions, the Commissioner established a sequential five-step process for evaluating a claimant's alleged disability. 20 C.F.R. §§ 404.1520, 416.920 (a)-(f). The process requires the ALJ to determine whether Plaintiff (1) engaged in substantial gainful activity during the period of alleged disability, (2) had medically determinable severe impairments (3) that met or equaled one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether Plaintiff (4) had the 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 testimonial and objective medical evidence. 20 C.F.R. §§ 404.1527, 416.927, 416.929.
A. Relevant Medical Evidence
In November 2002, Dr. Tushar Modi requested an MRI of Plaintiff's right elbow, in which Plaintiff reported having pain since August 2002. (Doc. 11-8 at 23.) Dr. Wesley Kinzie observed Plaintiff was "tender over the lateral epicondyle area, " but was "[o]therwise... neurovascularly intact." ( Id. ) Dr. Kinzie noted Plaintiff had a Cortisone injection, and recommended Plaintiff be given an injection of Lidocaine and Triamcinolone. ( Id. )
Plaintiff changed her insurance and stopped seeing Dr. Tushar Modi until June 2005. (Doc 11-9 at 22.) Dr. Modi noted Plaintiff had "some sharp shooting pain lasting for a few seconds in the left side in the upper quadrant of [her] abdomen, which last[ed] only for few seconds." ( Id. ) Plaintiff continued to report chest pain in August. ( Id. at 18.)
On January 11, 2006, Dr. Modi diagnosed Plaintiff with chronic sinusitis and prescribed Vicodin for pain in Plaintiff's right ear, face, and teeth. (Doc. 11-8 at 14-16.) Plaintiff visited the office again the next week, and appeared in "acute distress." ( Id. at 14.) She reported the symptoms had "improved very slightly" but she was "still in pain." ( Id. ) Plaintiff's pain in her right ear continued through March 2006. ( Id. at 12.)
On September 12, 2006, Plaintiff was treated by Dr. Tushar Modi. (Doc. 11-8 at 2, 5.) She had no complaints, but requested a checkup and bloodwork. ( Id. )
Dr. Youhana Jacobs began treating Plaintiff on October 16, 2006. (Doc. 11-8 at 47, 72-74.) Plaintiff reported that she had "elbow tendonitis in the past" in her right arm, but it had "disappeared." ( Id. at 48.) In addition, Plaintiff stated she had pain in her right wrist and right shoulder. ( Id. ) Plaintiff reported having anxiety, depression and insomnia, and that her anxiety medication was "not helping." ( Id. ) Dr. Jacobs diagnosed Plaintiff with joint pain in her shoulder and forearm; anxiety state, not otherwise specified; depression, not otherwise specified; pure hypercholesterolem; otalgia; and chronic rhinitis. ( Id. at 47.)
In January 2007, Plaintiff continued to report pain in her shoulder and forearms. ( Id. at 39, 43.) Dr. Jacobs noted Plaintiff continued to have hypercholesterolem, depression, pain, and chronic rhinitis. ( Id. at 39.) Plaintiff received a six-month prescription for ibuprofen. ( Id. at 40.)
In August 2007, Plaintiff informed Dr. Jacobs that she had "pain on [the] right side of [her] neck worse with neck movement." (Doc. 11-8 at 31.) Plaintiff reported that she went to the emergency room and was given skeleaxin and ibuprofen, and she was "already on hydrocodone." ( Id. ) Dr. Jacobs requested x-rays of Plaintiff's C spine, and advised her to call her insurance company for a referral to a psychiatrist to help with her depression. ( Id. at 33.)
On May 19, 2008, Dr. Jacobs noted Plaintiff suffered from hypercholesterolem and depression, not otherwise specified. (Doc. 11-8 at 27.) Plaintiff continued to take Effexor, which she said helped because she felt depressed but had no suicidal ideations. ( Id. ) Further, Dr. Jacobs noted Plaintiff continued to have joint pain in her shoulders and forearms. ( Id. at 28.)
On May 10, 2010, Dr. Jacobs noted Plaintiff's continued to report pain in her elbow and depression. (Doc. 11-8 at 97.) Dr. Jacobs noted Plaintiff no longer had insurance and did not want to receive x-rays and injections, but Plaintiff's pain in her elbows was "getting worse." ( Id. ) Upon examination, Dr. Jacobs determined Plaintiff had "[t]enderness lateral epicondyle both elbows, " but "good range of motion." ( Id. at 98.) Plaintiff was given an elbow brace, and prescribed vicodin "as needed" for the pain. ( Id. ) Further, Dr. Jacbos refilled Plaintiff's prescription for Effexor to treat her depression. ( Id. )
Dr. Dale Van Kirk performed a consultative orthopedic examination on July 27, 2010. (Doc. 11-9 at 19-23.) Plaintiff reported she had carpal tunnel syndrome, and complained of bilateral elbow pain that started "about eight years ago." ( Id. at 19.) Plaintiff informed Dr. Van Kirk that she had five injections "which helped only for a short period of time;" chiropractic care that "helped a little bit;" and physical therapy, which "did not help to any great degree." ( Id. ) She reported that the pain increased if she had a heavy grasp, reached up, tried to lift something from ground level, or twisted her wrist "such as turning a doorknob." ( Id. at 20.) Upon examination, Dr. Van Kirk observed Plaintiff had a "full range of motion of the elbow joints as well as the wrists and digits." ( Id. at 21.) In addition, Plaintiff's motor strength was 5/5 in her arms and legs. ( Id. at 22.) Dr. Van Kirk opined Plaintiff was "limited to frequent manipulative activities because of her elbow pain, " and "should use her tennis elbow braces on the elbows on each side if she anticipates needing to use the hands for grasp or for heavy activities that would require the use of the upper extremities." ( Id. ) Dr. Van Kirk ...