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Nielsen v. Colvin

United States District Court, N.D. California, San Francisco Division

September 24, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.


LAUREL BEELER, Magistrate Judge.


Plaintiff Susan Nielsen moves for summary judgement, seeking judicial review of a final decision by the Commissioner of Social Security Administration[1] denying Plaintiff Social Security Income disability benefits for her claimed disability of degenerative disc disease, hydrocephalus with associated epilepsy and imbalance, obesity and alcohol dependence. Motion, ECF No. 22.[2] The Administrative Law Judge ("ALJ") found that Plaintiff had four severe impairments but declared her not disabled and denied Social Security Income ("SSI") disability benefits. Administrative Record ("AR") at 33.

Pursuant to Civil Local Rule 16-5, the matter is deemed submitted for decision by this court without oral argument. All parties consented to the court's jurisdiction. See ECF Nos. 32 & 333. For the reasons stated below, the court GRANTS IN PART AND DENIES IN PART Plaintiff's motion for summary judgment, DENIES the Commissioner's cross-motion for summary judgement, and REMANDS this case to the Social Security Administration for further proceedings regarding the Residual Functional Capacity analysis.


Plaintiff, now 58, applied for disability benefits on February 24, 2009. AR 176. She alleged that she had been disabled since May 22, 2007 as a result of six herniated discs in her neck. AR 179. The Commissioner denied her application both initially and upon reconsideration. AR 105-108, 110-114. On September 28, 2009, Plaintiff timely requested a hearing before an ALJ. AR 118-119. ALJ John Price conducted a hearing on June 1, 2010, in San Rafael, California. AR 25. The ALJ inquired at length as to whether Plaintiff wished to be represented by counsel at the hearing, and Plaintiff opted to participate in the hearing without the benefit of counsel. AR 42-44.

The ALJ issued an order on July 28, 2010, denying benefits. AR 33. The ALJ found that Plaintiff had four severe impairments: degenerative disc disease of the cervical spine status post fusion in 1998; hydrocephalus with associated epilepsy and imbalance; obesity; and alcohol dependence. AR 27. The ALJ then found that Plaintiff had not been under a disability at any time from May 22, 2007, the alleged onset date, through July 28, 2010, the date of the opinion. AR 32-33. The Appeals Council denied Plaintiff's request for review on May 27, 2011, but accepted six evidentiary exhibits, including MRI results dated July 6, 2010, treatment notes from Plaintiff's treating physicians, Drs. Goltz and Mendius, and briefs and letters. The Appeals Council ordered that these exhibits were to be made part of the Administrative Record. AR 5.

On July 8, 2011, Plaintiff timely sought judicial review of the final decision denying her Social Security Income disability benefits. Complaint, ECF No. 1. After Plaintiff declined assignment to a magistrate judge, the case was reassigned to a district judge. 9/28/2011 Order of Reassignment, ECF No. 14. By June 2012, the parties' crossmotions for summary judgment were fully briefed and ripe for decision. Motion, ECF No. 22; Opposition and Cross-Motion, ECF No. 23; Reply, ECF No. 24.

Since that date, Carolyn Colvin replaced Mr. Astrue as the Commissioner of Social Security Administration (and as Defendant to this action), and several attorneys replaced one another as Plaintiff's legal representative. First Notice of Substitution, ECF No. 25; Second Notice of Substitution, ECF No. 26; Third Notice of Substitution, ECF No. 30. Plaintiff also filed a request for judicial notice that asks the court to consider her subsequent award of Social Security benefits in a different proceeding. First Request for Judicial Notice, ECF No. 28; Second Request for Judicial Notice, ECF No. 29.

On June 27, 2014, the district judge directed the parties to inform her whether they consented to a magistrate judge presiding over this action. Order re Consent, ECF No. 31. They did, and on June 2, 2014, the case was reassigned to this court. Order Reassigning Case, ECF No. 35. Given the time that had passed since the pending cross-motions were filed, the lack of continuity among Defendant's counsel, and Plaintiff's subsequent award of benefits in a different proceeding, the court directed the parties to meet and confer about what effect, if any, those awarded benefits had on the pending motions and to provide the court with a joint status update by July 10, 2014. The court then ordered supplemental briefing. See ECF Nos. 41, 43.


A. Standard of Review

Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the Commissioner if the plaintiff initiates the suit within 60 days of the decision. District courts may set aside the Commissioner's denial of benefits only if the ALJ's "findings are based on legal error or are not supported by substantial evidence in the record as a whole." 42 U.S.C. § 405(g); Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (quotation omitted). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). If the evidence in the administrative record supports both the ALJ's decision and a different outcome, the court must defer to the ALJ's decision and may not substitute its own decision. See id.; accord Tackett v. Apfel, 180 F.3d 1094, 1097-98 (9th Cir. 1999).

B. Applicable Law: Five Steps To Determine Disability

An SSI claimant is considered disabled if (1) he suffers from a "medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months, " and (2) the "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." 42 U.S.C. § 1382c(a)(3)(A) & (B).

The Social Security regulations set out a five-step sequential process for determining whether a claimant is disabled within the meaning of the Social Security Act. See 20 C.F.R. § 404.1520. The five steps are as follows:

Step One. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is "not disabled" and is not entitled to benefits. If the claimant is not working in a sUBSTANTIALLY GAINFUL ACTIVITY, THEN THE CLAIMANT'S CASE CANNOT BE RESOLVED AT STEP ONE, AND THE evaluation proceeds to step two. See 20 C.F.R.§ 404.1520(a)(4)(I).
Step Two. Is the claimant's impairment (or combination of impairments) severe? If not, the claimant is not disabled. If so, the evaluation proceeds to step three. See 20 C.F.R. § 404.1520(a)(4)(ii).
Step Three. Does the impairment "meet or equal" one of a list of specified impairments described in the regulations? If so, the claimant is disabled and is entitled to benefits. If the claimant's impairment does not meet or equal one of the impairments listed in the regulations, then the case cannot be resolved at step three, and the evaluation proceeds to step four. See 20 C.F.R. §§ 404.1520(a)(4)(iii).
Step Four. Considering the claimant's residual functional capacity, is the claimant able to do any work that he or she has done in the past? If so, then the claimant is not disabled and is not entitled to benefits. If the claimant cannot do any work he or she did in the past, then the case cannot be resolved at step four, and the case proceeds to the fifth and final step. See 20 C.F.R. § 404.1520(a)(4)(iv).
Step Five. Considering the claimant's residual functional capacity, age, education, and work experience, is the claimant able to "make an adjustment to other work?" If not, then the claimant is disabled and entitled to benefits. See 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is able to do other work, the Commissioner must establish that there are a significant number of jobs in the national economy that the claimant can do. There are two ways for the Commissioner to show other jobs in significant numbers in the national economy: (1) by the testimony of a vocational expert or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R., part 404, subpart P, app. 2. If the Commissioner meets this burden, the claimant is not disabled.

For steps one through four, the burden of proof is on the claimant. At step five, the burden shifts to the Commissioner. See Tackett, 180 F.3d at 1098.


This section summarizes (A) the medical evidence in the administrative record, (B) Plaintiff's testimony, and (C) the ALJ's findings.

A. Medical Evidence

Plaintiff, now 58, originally alleged that she was disabled as a result of six herniated discs in her neck. AR 179. At the time of her ALJ hearing, she also presented the ALJ with medical evidence that included information about conditions of hydrocephalus with associated epilepsy and imbalance, obesity, alcohol dependence, and degenerative disc disease of the cervical spine. AR 27.

1. Dr. Sponzilli: Treating Physician

Plaintiff saw Dr. Eugene Sponzilli, a neurologist at Mt. Tam Orthopedics, from June 2007 to November 2007. AR 183. He prescribed her pain killers, an epidural, and physical therapy. Id.

On August 3, 2007, Dr. Sponzilli wrote a letter to the insurance company[3] appealing the denial of nerve root block treatment. AR 281. In this letter he notes Plaintiff's "motor and sensory abnormalities" and her need for the nerve block in order to "tolerate significant activity." Id.

On September 5, 2007, Nurse Lisa Elvin and Dr. Sponzilli wrote a follow-up evaluation letter from Mt. Tam Orthopedics to the insurance company. AR 279. The letter notes that Plaintiff received the epidural on August 22, 2007. The letter also notes that, as a result, Plaintiff "returns to the practice reporting that she is approximately 95% improved from her usual symptomatology of neck pain and arm pain, " although she still has problems bending over and weakness in her right arm. Id. Through the letter, the doctor requests physical therapy for Plaintiff and finds her still "temporarily totally disabled until October 15, 2007." AR 279.

On November 28, 2007 the physical therapist reported to Dr. Sponzilli that Plaintiff had 11 sessions of physical therapy. AR 283. The notes indicate that her neck symptoms "have improved significantly" and that she has full range of motion in her cervical spine. Id. The physical therapist stated that Plaintiff's main problem at that time was with balance, but that this issue had improved over the last few weeks. The treatment notes also state that Plaintiff was walking 6 out of 7 days per week. Id.

On November 29, 2007, Dr. Sponzilli wrote a letter to the insurance company in which he notes Plaintiff's "postfusion syndrome" and confirmed that her July 2007 MRI showed spondylolisthesis and spondylosis above and below the fusion. AR 277. He also noted that she was treated with an epidural in August 2007, which was "helpful" to her. Id. Without specifying the details, the letter also stated that Plaintiff was counseled regarding activity modification, medication management and home exercise." Id.

In 2008, Dr. Sponzilli referred Plaintiff for two MRI procedures: one of her spine and one of her brain. The MRI of her spine was conducted on April 23, 2008, and showed broad-based disc protrusion and neural foraminal narrowing, but noted that these conditions were "not significantly changed compared to prior study dated 07/17/07." AR 285. The MRI of Plaintiff's brain was conducted on April 24, 2008 and showed "moderate atrophy" and ventricular enlargement, which raised the possibility of "normal pressure hydrocephalus." AR 286.

2. Dr. Lipshitz: Treating Physician

Dr. Darren Lipshitz appears to have been Plaintiff's treating physician since 2003. AR 322. Plaintiff saw Dr. Lipshitz on June 4, 2007. AR 307. The treatment notes state that Plaintiff was having "pain and spasm" down her left arm. Id. Plaintiff's pain levels vary over time. In the notes from the June 28, 2007 visit, Plaintiff's pain is noted to be "8-9/10." AR 310. The October and November 2007 treatment notes make reference to pain medications, but the November 16, 2007 notes indicate Plaintiff's reporting that "pain is fine." AR 308-9.

On June 28, 2007, Dr. Lipshitz completed a California State Employment Development Department (EDD) questionnaire stating that Plaintiff was unable to perform her regular or customary work beginning on June 4, 2007, but that he anticipated releasing her to return to her regular/customary work by August 4, 2007. AR 351.

The treatment notes reference Plaintiff's relationship with alcohol. The January 2006 notes reference Plaintiff's time in an alcohol rehabilitation facility and her success in abstaining from alcohol for six weeks. AR 312. The July 31, 2007 notes state that Plaintiff "quit drinking 2 wks ago - got sick'." AR 310. The June 23, 2008 notes from Dr. Lipshitz indicate that Plaintiff was "having falls on her left side" and that she was "drinking again." AR 306. The July 15, 2008 treatment notes state that Plaintiff was "drinking much less." AR 305.

The medical records provided from Dr. Lipshitz also include records from Marin General Hospital documenting Plaintiff's falls. On May 25, 2008, the treatment notes from the hospital indicate that Plaintiff fell "while intoxicated." AR 323. The records also state that "patient has a history of multiple falls and significant alcohol intake in [sic] with multiple ER visits for this in the past." AR 323-25.

On April 11, 2008, Plaintiff was again seen in the ER for a fall. The ER physician noted that the testing indicated an elevated level of alcohol in her blood, but Plaintiff denied a problem with alcohol. AR 327.

3. Dr. Mendius: Treating Physician

Dr. Mendius wrote a "To Whom it May Concern" letter in January 2010 stating that Plaintiff's "seizures and hydrocephalus arise from a congenital birth defect, and are permanently disabling." AR 441. Subsequently, in June 2010, Dr. Mendius provided an evaluation which found that Plaintiff was able to lift and carry up to 20 pounds occasionally, could sit for 4 hours at one time and stand and walk for 2 hours at one time, could occasionally reach, handle, finger and feel with her right hand, but never push and pull, and could frequently operate foot controls. AR 453-55. Dr. Mendius found that Plaintiff could occasionally climb ramps and stairs and balance, but could never climb ladders or scaffolds, stoop, kneel, crouch or crawl, and he also assessed visual and environmental limitations. AR 456. Dr. Mendius found that Plaintiff could shop, travel without assistance, ambulate, walk a block at a reasonable pace, use public transportation, climb a few steps, care for her personal hygiene, and sort, handle, and use paper/files. AR 458.

Plaintiff testified that she drank some wine each day at the direction of Dr. Mendius (AR 69), but no such indication is found in the medical records.

4. Eva Dahl: Treatment Provider

Ms. Dahl provided Plaintiff with chiropractic treatment for her work-related injury over the period May to June 2007. AR 182. The relevant treatment notes include references to pain in Plaintiff's left arm and left hand, a stiff neck, and pain down her right arm.[4] AR 266, 268, 271, 274. Plaintiff said in a form that she provided as part of her disability benefits application that after "two weeks of no success" by Ms. Dahl in treating this injury, Plaintiff was referred back to her primary care physician, Dr. Lipshitz. AR 183.

5. Dr. Lavorgna: Worker's Compensation Consultative Physician

Dr. Lavorgna examined Plaintiff on August 16, 2007, February 11, 2008, and December 17, 2008, all in connection with her Worker's Compensation claim. On February 23, 2009, Dr. Lavorgna issued a ...

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