United States District Court, N.D. California
For Jaime Garcia Cardenas, Plaintiff: Robert Chipley Weems, LEAD ATTORNEY, Weems Law Offices, Fairfax, CA.
For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Alex Gene Tse, U.S. Attorneys Office, San Francisco, CA; Jennifer Ann Kenney, Social Security Administration, San Francisco, CA.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS
DONNA M. RYU, United States Magistrate Judge.
Pursuant to 42 U.S.C. § 405(g), Plaintiff (" Plaintiff") seeks review of his application for disability insurance benefits. Defendant Social Security Commissioner (" Defendant" or " Commissioner") denied his application after determining that Plaintiff was not disabled under Title II of the Social Security Act, 42 U.S.C. § § 401 et seq . Plaintiff now requests judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Both parties filed motions for summary judgment. For the reasons stated below, the court grants Plaintiff's motion for summary judgment and denies Defendant's motion for summary judgment, and remands this action for further proceedings.
I. Procedural History
Plaintiff previously applied for disability benefits in 2004 and 2007. A.R. 35, P.'s Mot. Summ. J. [Docket No. 21] at 2. On November 17, 2009, Plaintiff filed a third application for a period of disability and disability insurance benefits under Title II of the Act, alleging disability beginning September 23, 2003 due to low back and hip injury, depression, anxiety, insomnia, and headaches. A.R. 144-52, 174. The agency denied Plaintiff's claim on February 10, 2010, and subsequently denied it again upon reconsideration on July 19, 2010. A.R. 78-82, 86-90. On June 29, 2011, Administrative Law Judge (ALJ) Maxine Benmour held a hearing at which Plaintiff, his wife, his non-attorney representative, and a Spanish language interpreter were present. A.R. 15. Plaintiff and his wife Maria Cardenas provided testimony, as did Jeff Beeman, a vocational expert (" VE"). A.R. 33.
On August 23, 2011 the ALJ issued a written decision finding Plaintiff not disabled under Title II of the Social Security Act. A.R. 25. The Appeals Council denied Plaintiff's request for review of the ALJ's decision, making the ALJ's decision the Commissioner's final decision. A.R. 1-5. Plaintiff then filed this action, challenging a single aspect of the ALJ's decision. Namely, plaintiff argues that the ALJ failed to credit his testimony that he could only sit for a certain period of time before having to stand and walk around, a requirement that would render Plaintiff unemployable according to the testimony of the VE.
II. Factual Background
The record contains the following information. Plaintiff was born in November 1967 and was 35 years old as of the alleged onset date of his disability. A.R. 131. Plaintiff completed the sixth grade in Mexico and is unable to read and write in English. A.R. 17, 36, 181. Plaintiff came to the United States in 1983, and worked as an orchard laborer from 1983 to 2003 and as a cleaner in a lumber mill in 1997. A.R. 37, 60, 175. Plaintiff's work as a laborer required him to drive a tractor, a backhoe, a trimmer, and occasionally a forklift. A.R. 175.
On December 4, 2002, while working as a laborer and foreman for Ruddick Ranch, Plaintiff fell off a tractor and injured his back and right hip. A.R. 17, 37, 381-82, 158, 415, 469. After this incident, Plaintiff continued working for approximately ten months with restrictions provided by his physician, although Plaintiff states that his employer required that Plaintiff perform the regular duties of his employment. A.R. 381, 469. Plaintiff stopped working on September 23, 2003. A.R. 381, 469. Plaintiff subsequently had two surgeries performed on his right hip (in 2006 and again in 2007) and saw a psychiatrist, all through worker's compensation. A.R. 55-58, 399-400. Plaintiff also received a settlement through worker's compensation of about $6, 000 to be used for medical treatment. A.R. 58. Plaintiff testified that he did not engage in substantial gainful activity during the period from his alleged onset date of September 23, 2003 through his date last insured of December 31, 2008.
Plaintiff testified that his right hip bothered him more now than it did in 2003, and rated the pain in his right hip as between 8 and 10 out of 10. A.R. 38. Plaintiff felt pain in his right hip and " almost constant" numbness in his right leg when he was sitting. A.R. 38-39. He could sit 15-20 minutes before his pain was so bad that he had to get up, but testified that after standing up, he could sit down again, and he could alternate between sitting and standing " all day." A.R. 39. Plaintiff could stand for about 10-15 minutes. A.R. 40. He could walk a quarter to half a mile before having to stop due to pain. A.R. 39. Plaintiff also described constant pain in his lower back (which he rated between 8 and 9 out of 10) and neck, which he testified prevented him from sitting up straight. A.R. 40-41. Plaintiff also testified that his left hip had been bothering him for two to three years, and he rated the pain there a 7 out of 10. A.R. 41. Plaintiff took several medications, including a muscle relaxant as well as pills for depression, pain, and nerves. A.R. 42. Plaintiff testified that the medications alleviated " a little bit" of his pain, including by reducing his back pain to a 4 or 5 out of 10. A.R. 43. Plaintiff had trouble sleeping, slept only three hours per night, and took sleeping pills about every two days to help him sleep. A.R. 44-45. Plaintiff stated that the two surgeries he had received on his hip did not help with his pain. A.R. 50. Plaintiff stated that he had fallen twice because his leg had locked up. A.R. 51.
Plaintiff testified that he lived with his wife and four children, who were aged 12 to 22 at the time of the hearing. A.R. 44. He was able to do some housework, including helping his wife with cooking, washing the dishes, washing the car, and folding laundry for 10-15 minutes. A.R. 44-46. Plaintiff did not have trouble taking a shower, except when it required bending over, and did not need assistance to dress, wash his hair, shave, or put on his shoes and socks. A.R. 45. During a typical day, Plaintiff was at home with his children, and could sit, stand, and walk. A.R. 46. Occasionally Plaintiff walked with his wife outside of the house for about half an hour, and every two or three weeks, Plaintiff bought groceries with his wife. A.R. 47. Plaintiff testified that even on good days, he had to take breaks from housework every 20 minutes. A.R. 48.
Plaintiff's wife Maria Cardenas testified that she had been married to Plaintiff for over 23 years. She stated that Plaintiff complained about pain in his back and hips " all the time, " including in his sleep, and that she could hear " a big pop" sound from his hip. A.R. 52-53. She testified that Plaintiff did not do much housework, but tried to help every now and then by doing the dishes or attempting to cook, and occasionally drove the kids to school and picked them up. A.R. 53-54, 56. Plaintiff's wife stated that Plaintiff was taking Wellbutrin, Lexapro, Norco, Lyrica, and occasionally took Advil, Advil PM, and Lunesta for sleeping. A.R. 54. She testified that Plaintiff was " depressed all the time, " that he was shaky, that he did not want to eat or go out, and that she had seen him crying at times. A.R. 55.
B. Hypothetical to VE Beeman
The ALJ asked VE Beeman whether a person with the following limitations would be able to perform Plaintiff's past work: lifting and carrying ten pounds occasionally and less than ten frequently, sitting six hours in an eight-hour day and standing/walking two hours, needing to alternate sitting and standing as needed, no climbing of ladders, ropes, or scaffolds, no repeated bending or stooping, occasional climbing of ramps and stairs, occasional balancing, kneeling, crouching, and crawling, and working only one to two step, simple instruction jobs. A.R. 60. VE Beeman stated that such a person would not be able to perform Plaintiff's past work, but gave examples of two other unskilled jobs (machine operator, assembler) in the regional and national economy. A.R. 61. VE Beeman stated that if the hypothetical person could not read or write English, the numbers of those two jobs would be eroded by at least 50%. A.R. 61.
Plaintiff's non-attorney representative stated that she believed the ALJ's hypothetical did not discuss Plaintiff's limitations on sitting and standing. VE Beeman then stated, " Judge Benmour, how often is the sit/stand option? I mean, for example, if it rises to something that's going to be every ten minutes, then you really would erode any kind of work." A.R. 62. The ALJ then posed a hypothetical individual who had to stand every " couple of minutes whenever the person feels the need to get up." A.R. 62. VE Beeman opined that if that individual was " at his work station and it's a couple of minutes from a sedentary to  standing and he's continuing to work, I don't see that as a serious obstacle there as far as erosion." A.R. 62.
Plaintiff's non-attorney representative then elicited further testimony from Plaintiff, during which Plaintiff testified that when he alternated between sitting and standing, he did not simply need to stand but that he also needed to walk around, so that sitting and standing in one place would not work. A.R. 63. He testified that he could sit for 10-15 minutes at a time, but then would have to leave his work area to walk 5-10 minutes. A.R. 63. Plaintiff's wife agreed with Plaintiff's testimony regarding this limitation. A.R. 63. VE Beeman then opined that somebody who would have to walk around for 5-10 minutes after sitting for 10-15 minutes, assuming that person " wouldn't be continuing to work with continuity when he's walking around, " would not be employable. A.R. 64. VE Beeman testified that a person who required " walking even ten minutes of an hour throughout the day" would not be employable. A.R. 64.
C. Plaintiff's Relevant Medical History
A. 2003-2005: Treatment by Dr. Peter Pappas
Plaintiff was treated by Dr. Pappas between 2003 and 2005. The record includes treatment notes from 17 visits dated from September 23, 2003 until November 15, 2005. A.R. 234-55. During this time, Plaintiff received six lumbar epidural facet injections from October 2003 until April 2004. A.R. 258-276. In the last treatment record available from Dr. Pappas, dated November 15, 2005, Dr. Pappas stated that Plaintiff had been deemed permanent and stationary and that he was not a candidate for surgery at that time, and recommended treatment through epidural injections instead. A.R. 234.
B. 2005: Treatment by Dr. William Bowen
The record includes treatment notes from Dr. William Bowen, an orthopedic surgeon, from 18 visits between August 4, 2005 and June 19, 2008. A.R. 335-76. On August 4, 2005, Dr. Bowen noted that Plaintiff was seen by Dr. Pappas for two years and has " spent two years undergoing epidural blocks with the thought of possibly having surgery . . . . [but] was finally told that surgery would not help him and he was then made permanent and stationary." A.R. 232. Dr. Bowen noted that Plaintiff was then seen by a qualified medical examiner, Dr. Michael Sommer, " who felt that he was not permanent and stationary, and that he had a problem with his right hip, and that he was advised to see me for evaluation of the hip." A.R. 232. Dr. Bowen recommended an x-ray and an MRI. A.R. 233.
C. 2006: Examination by Dr. Thomas Miles
On January 19, 2006, Dr. Thomas Miles, an orthopedic surgeon, examined Plaintiff in his capacity as an Agreed Medical Evaluator. A.R. 381. Dr. Miles noted that " [t]here is MRI evidence of a labral tear superiorly of the right hip." A.R. 387. Dr. Miles also stated that Dr. Bowen's discretion, Plaintiff may want to consider a referral to a surgeon for possible hip arthroscopy. A.R. 287.
On February 28, 2006, Dr. Miles provided a supplemental report. A.R. 379-380. In the supplemental report, Dr. Miles stated:
I have been asked . . . to provide a disability rating utilizing the AMA Guides . . . . Mr. Cardenas has no evidence of physical examination of loss of motion of his hip, and I could detect no evidence of any motor loss of the hip joint. There was no limb length discrepancy, although he did have an antalgic gait. The plain x-rays revealed no evidence of arthritic change of his hip joint . . . . I would provide him with a 7% whole person impairment using Table 17-5 in that he has a mild antalgic limp, shortened stance phase, and documented changes in his hip, which are not arthritic as requested of this section, but again the Guides fail to address a situation such as a labral tear.
D. 2006-2007: Treatment and Surgeries by Dr. Mark Lawler
On June 12, 2006, Plaintiff was seen by orthopedic surgeon Dr. Mark Lawler on referral by Dr. Bowen for possible right hip surgery. A.R. 488. Dr. Lawler reviewed an MRI of Plaintiff's right hip dated September 20, 2005 (A.R. 501), and noted that it showed tearing of the anterior superior labrum. Dr. Lawler stated that " [s]eeing as the patient has been having pain and [l]imitations for upwards of 4 years and has failed extensive nonoperative treatment, I do feel he is an excellent candidate for hip arthroscopy" and recommended arthroscopic surgical repair of the labrum. A.R. 488.
On July 13, 2006, Plaintiff underwent right hip arthroscopy with debridement of labrum, extensive debridement of synovium, acetabular rim trimming, and osteochondroplasty of the femoral neck. A.R. 507-08. Plaintiff initially did well, but then had a slow recovery and an increase in pain. A.R. 18, 486, 513-14. Dr. Lawler noted that Plaintiff was still having hip pathology, and recommended revision arthroscopic surgery. A.R. 486, 513. An MRI of Plaintiff's right hip dated December 19, 2006 showed increased extent of altered signal in the superior-anterior aspect of the labrum, most consistent with tears, which was an increase when compared to the MRI ...