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Bernal v. Colvin

United States District Court, E.D. California

March 6, 2015

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


BARBARA A. McAULIFFE, Magistrate Judge.


Plaintiff Richard Bernal ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income ("SSI") pursuant to Title XVI of the Social Security Act.[1] The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Barbara A. McAuliffe. The parties consented to the Magistrate Judge's jurisdiction for all purposes. Having carefully considered the parties' briefs as well as the entire record in this case, the Court finds that the Administrative Law Judge ("ALJ") erred at Step Four of the sequential evaluation process. Accordingly, the ALJ's decision is REVERSED and the case REMANDED for further proceedings consistent with this Order.


On August 5, 2010, Plaintiff filed an application for supplemental security income, alleging disability beginning November 22, 2009. AR 65-66. Plaintiff's application was denied initially and on reconsideration. AR 20-63. Subsequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). ALJ Christopher Inama held a hearing on February 15, 2012 and issued an order denying benefits on February 24, 2012. AR 16. On March 14, 2013, the Appeals Council denied review. AR 1. This appeal followed.

Hearing Testimony

The ALJ held a hearing on February 15, 2012, in Stockton, California. AR 20. Plaintiff appeared and testified. AR 28. He was represented by attorneys Christopher O'Connor and Alexander Collins. AR 20. Impartial Vocational Expert ("VE") George Meyers also testified. AR 55.

Plaintiff was 54 years old at the time of the hearing. AR 25. Plaintiff testified that he is currently homeless but he explained that although he is separated from his wife, at times, he stays with his wife or daughter. AR 25. Plaintiff did not finish high school, but he completed his GED. AR 26. Plaintiff received a certification for auto and body fender repair and he previously worked in a body and fender shop in either 2003 or 2004. AR 26. Plaintiff testified that he could no longer perform that work because his lower back prevents him from bending down to pick up tools. AR 27-30. Plaintiff also testified that he previously worked as a framer in construction, but overall his work history was limited because he was previously incarcerated. AR 29.

When asked about his impairments, Plaintiff testified that he generally suffers from lower back pain. Plaintiff needs to alternate sitting and standing generally every 20 to 40 minutes. Plaintiff also lays down approximately two to three times a day from anywhere between 45minutes to three hours. AR 31. Plaintiff has previously taken prescribed pain medication to alleviate his back pain, however those prescriptions have expired and Plaintiff now self-medicates with Methadone. AR 33. Plaintiff also testified that he regularly uses a cane. AR 36. Plaintiff also suffers from Hepatitis C which causes him pain on his right side. AR 36. Based on his impairments, Plaintiff testified that he could stand for 15 to 20 minutes before needing to sit down. AR 50. Plaintiff's pain causes him to be distracted, and he testified that he could concentrate for 30-40 minutes at a time. Plaintiff can also sit for up to 50 minutes at a time. AR 54.

Thereafter, the ALJ elicited testimony of the vocational expert ("VE") George Meyers. AR 48. The VE testified that Plaintiff previously worked as a framer, which the VE classified as medium. AR 55. Plaintiff also worked as a hand packer, performed at the light work category. AR 55.

The ALJ asked the VE several hypothetical questions, contemplating an individual of the same age, education, and work background as Plaintiff. AR 56. First, the vocational expert was asked to assume an individual that could sit, stand, and walk for 6 hours in an 8-hour workday; lift and carry 20 pounds occasionally and 10 pounds frequently; could never climb ladders, ropes, or scaffolds, but could frequently climb ramps and stairs, balance, stoop, kneel, crouch, crawl, and occasionally stoop. AR 56. The vocational expert testified that individual could perform Plaintiff's hand packer position. AR 56.

In a second hypothetical question, the ALJ asked the VE to consider the same individual except that this person could sit or stand for 6 hours in an 8-hour workday, if allowed to stand and stretch for 10 minutes every hour, and this individual could lift 10 pounds occasionally and lift less than 10 pounds frequently; could stand and walk for 2 hours out of an eight hour work day; could occasionally climb ramps, stairs, but never climb ladders, ropes or scaffolds, nor balance, stoop, kneel, crouch, or crawl. The individual is limited to occasional reaching in all directions with his right hand and no limit with his left hand. Finally, this individual must avoid all exposure to vibration and hazards such as heights and machinery. AR 57. The VE testified that a person with such limitations could not perform any jobs as they exist in the national economy. AR 58.

Finally, Plaintiff's attorney questioned the vocational expert regarding an individual that could sit for 20 minutes before needing to take a break or reposition himself, cannot lift more than 10 pounds, squat, bend, crawl, or kneel. AR 60. This individual cannot concentrate for more than 30 minutes, has difficulty breathing and working in outdoor heat, cannot use his hands effectively, has difficulty accepting instructions from supervisors, and suffers from complications from hypertension and sleep disturbance. AR 61. The vocational expert opined that an individual with these limitations would be unemployable. AR 61.

Relevant Medical Evidence

The entire medical record was reviewed by the Court and the relevant medical evidence is summarized as follows. AR 196-239.

Plaintiff underwent an MRI of his lumbar spine on May 13, 2009, in connection with his complaints of chronic lower back pain. AR 197. This scan detected multilevel facet arthrosis (degenerative arthritic changes), central canal stenosis (narrowing of the spinal canal), and foraminal stenosis (narrowing of the nerve root openings). This scan also found the L5-S1 disk touching, but not displacing, the right S1 nerve root. AR 197. A December 22, 2009, X-ray of Plaintiff's lumbar spine similarly detected multilevel degenerative disk disease. AR 196. This X-ray additionally found "possible mild" compression deformities at multiple levels. AR 196. Plaintiff visited with M. Rashidi, M.D., on April 20, 2010, regarding his complaints of lower back pain. AR 198-99. Dr. Rashidi observed that Plaintiff had normal motor power, sensation, and reflexes in his extremities. AR 199. Dr. Rashidi noted that Plaintiff presented to his evaluation with a cane. AR 198. An X-ray of Plaintiff's lumbar spine performed during this evaluation found multilevel degenerative changes. AR 199.

On January 21, 2011, Leah Holly, D.O., assessed Plaintiff's residual functional capacity (RFC) on behalf of California's Disability Determination Service (the State agency). AR 204-10. Dr. Holly concluded that Plaintiff could lift up to ten pounds occasionally and less than ten pounds frequently during a typical workday. AR 205. Dr. Holly stated that Plaintiff could stand and walk for at least two hours and sit for about six hours total during a normal eight-hour workday; she also stated that Plaintiff must periodically alternate sitting and standing to relieve pain and discomfort. AR 205. Dr. Holly concluded that Plaintiff could climb ramps and stairs occasionally during a normal workday, but that he was otherwise incapable of performing postural activities. AR 207. Dr. Holly found that Plaintiff's ability to reach was limited. AR 207. She also found that Plaintiff should avoid all exposure to hazards and vibration in the workplace. AR 208. Dr. Holly referenced Plaintiff's May 2009 MRI and April 2010 X-ray to support her conclusions about Plaintiff's functional restrictions. AR 205, 207.

Roger Wagner, M.D., performed a consultative physical examination of Plaintiff on May 20, 2011. AR 211-15. Plaintiff alleged at this evaluation that he experienced lower back pain that radiated into his right groin. AR 211-12. Plaintiff stated that he could walk for about three blocks and sit for thirty to forty-five minutes before changing activities. AR 212. Plaintiff alleged pain with bending and lifting. AR 212. Plaintiff reported that he had been diagnosed with hepatitis C for approximately five years. AR 211. Plaintiff stated that he had no history of bruising, bleeding, edema, or jaundice. AR 211. Plaintiff reported that he could perform daily activities such as household cleaning, taking out the trash, attending to his personal care, shopping, and exercising. AR 212.

Dr. Wagner observed that Plaintiff could "easily" get out of his chair and walk to the examination room without assistance. AR 212. Dr. Wagner noted that Plaintiff sat "comfortably" through his clinical interview and got on and off the examination table without difficulty. AR 212. Plaintiff could walk on his heels and toes during this evaluation. AR 213. Plaintiff had normal gait and station. AR 213. Plaintiff also had normal balance and coordination. AR 213. Dr. Wagner noted that while Plaintiff brought a cane to the examination, it did not appear necessary. AR 213. Plaintiff's lumbar range of motion was restricted, but he had "only very slightest of lumbar paravertebral muscle tenderness." AR 213-14. Plaintiff had normal motor strength, ...

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