United States District Court, E.D. California
ORDER REMANDING THE ACTION PURSUANT TO SENTENCE FOUR
OF 42 U.S.C. § 405(G) ORDER DIRECTING ENTRY OF JUDGMENT
IN FAVOR OF PLAINTIFF JUAN CHAVEZ AND AGAINST DEFENDANT NANCY
BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
Miranda Chavez asserts he is entitled to disability insurance
benefits and supplemental security income under Titles II and
XVI of the Social Security Act. Plaintiff argues the
administrative law judge erred in evaluating the record and
seeks judicial review of the decision to deny his application
for benefits. Because the ALJ failed to identify legally
sufficient reasons for rejecting the opinion of Plaintiff s
treating physician and the consultative examiner, the
decision is REMANDED pursuant to sentence four of 42 U.S.C.
§ 405(g) for further proceedings.
filed his applications for benefits on March 20, 2012,
alleging disability beginning on January 11, 2011. (Doc. 9-3
at 19) The Social Security Administration denied Plaintiffs
application at both the initial level and upon
reconsideration. (See generally Doc. 9-4) After
requesting a hearing, Plaintiff testified before an ALJ on
March 3, 2014. (Doc. 7-3 at 14, 49) The ALJ determined
Plaintiff was not disabled and issued an order denying
benefits on April 16, 2014. (Id. at 13-25) When the
Appeals Council denied Plaintiffs request for review on
October 15, 2015 (id. at 4-6), the ALJ's
findings became the final decision of the Commissioner of
Social Security ("Commissioner").
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).
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).
qualify for benefits under the Social Security Act, Plaintiff
must establish he 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:
his 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. Maounois
v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984).
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 ("RFC") 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,
Relevant Medical Evidence
was diagnosed with type II diabetes mellitus and hypertension
prior to 2000. (Doc. 9-9 at 26) In addition, Plaintiff was in
a car "accident in 1989, which resulted in a back
injury" that required "multiple spinal surgeries in
2000, Plaintiff had "a chronic infection of his left
hip, " which was "the result of a prior infection
in his lower lumbar spine... after an [operation] in
Mexico." (Doc. 9-9 at 55) The infection "tracked
down the iliopsoas, creating an iliopsoas abscess, which
subsequently went into the hip." (Id.)
Plaintiff was diagnosed with chronic septic arthritis,
osteomyelitius, and ankylosis in his left hip. (Id.
at 54) He had surgery "for resection of his hip and
insertion of a methyl methacrylate antibiotic spacer" on
May 18, 2000. (Id. at 55) In the fall of 2000,
Plaintiff "had significant pain for 2-3 weeks."
(Id. at 23) Although "settling" of the
articulated spacer was suspected, surgery revealed Plaintiff
had "a periprosthetic fracture." (Id.)
Therefore, Plaintiff was admitted to the hospital "for
reimplantation surgery of his total hip arthroplasty."
April 2011, Plaintiff visited the Joy Kimpo Medical Center
("Kimpo Center") for a follow-up on his diabetes.
(Doc. 9-8 at 17) Marylou Ayon, MA, believed that Plaintiffs
diabetes was "well controlled with diet, exercise and
weight management and oral medication." (Id.)
returned to the Kimpo Center in May 2011, describing
"generalized hip pain, " which he said was a
constant, "mild to moderate" pain and rated
"as a six on a 1 to 10 scale." (Doc. 9-8 at 21) Dr.
Paramjit Panesar determined Plaintiff had "mild
tenderness" in his left hip. (Id.) Dr. Panesar
also found Plaintiff had limited internal rotation, external
rotation, and flexion. (Id.)
October 2011, Plaintiff continued to report hip pain at the
Kimpo Center, stating he could not "bend to do
chores." (Doc. 9-8 at 33) He told Dr. Juan Cabrera that
he had an appointment with an orthopedist at Kern Medical
Center set "next year." (Id.) Dr. Cabrera
did not see any bruising, rash, or eruptions on Plaintiffs
November 2011, Dr. Panesar determined that Plaintiffs
diabetes was "well controlled with diet, exercise and
weight management and oral medication." (Doc. 9-8 at 35)
He did not find any "[o]ther manifestations of his
diabetes, " such as pedal edema or ulcerations.
(Id. at 35-36)
January 25, 2012, Plaintiff went to Kern Medical Center, and
described "stiffness and discomfort and pain that
extend[ed] from his left hip to his left thigh." (Doc.
9-8 at 6) Plaintiff said he did not have night pain, fevers,
chills, or recent trauma. (Id.) Dr. Arturo Gomez
observed that Plaintiff walked with a "[s]tiff limping
gait." (Id. at 7) Upon examination, Plaintiff
had "full range of motion" with his right leg, but
the motion with his left hip was "significantly
limited." (Id.) Dr. Gomez opined Plaintiff did
"not appear to have any range of motion at the hip
joint." (Id.) After reviewing x-ray findings,
Dr. Gomez informed Plaintiff they did not have anyone at Kern
Medical Center with "the skill set to manage this kind
of condition, " and he recommended that Plaintiff
"see... somebody who is fellowship trained in total
joints to help." (Id.)
April 2012, Plaintiff "continue[d] to have low back pain
and [was] unable to bend and lift things." (Doc. 9-8 at
86, emphasis omitted) In addition, Dr. Cabrera observed that
Plaintiff continued to walk with a limp. (Id.) Dr.
Cabrera completed a supplementary certificate for the
Employment Development Department, in which he indicated
Plaintiff had been diagnosed with "pelvic joint
pain" and was "unable to lift things [secondary] to
pain." (Id. at 88, 98) In addition, Dr. Cabrera
indicated Plaintiff was expected to remain disabled until May
31, 2012. (Id. at 86, 88, 98)
Juliane Tran performed a comprehensive orthopedic evaluation
on June 22, 2012. (Doc. 9-8 at 48) Plaintiff reported his hip
surgery provided "75% of pain relief, " but the
pain returned and "got worse by 2010."
(Id.) He said it was "a shooting, throbbing
pain" that was a "5" to 8" out of 10.
(Id.) In addition, Plaintiff described
"occasional symptoms of paraesthesia in the left foot
and left ankle." (Id.) Dr. Tran observed that
Plaintiff was able to "ambulate to the exam room
without an assistive device, " though he walked with a
slow pace and "mild moderately antalgic" gait.
(Id. at 49) Dr. Tran found Plaintiffs left hip
flexion and internal rotation were limited. (Id.)
Plaintiff had a "very positive" FABER test result
in the left hip, and "mildly positive" test in the
right hip. (Id. at 50) Dr. Tran found Plaintiffs
grasping strength was "5/5" and motor strength was
"5/5... throughout the deltoids, biceps, triceps, wrist
extensors, first dorsal interosseous muscles, abductor
pollicis brevis, and abductor digiti minimi."
(Id.) She also determined Plaintiff had "some
abnormal sensation in the distal feet, " and opined
Plaintiff had "[p]ossible peripheral neuropathy."
(Id. at 51) Dr. Tran concluded Plaintiff would
"need to have an assistive device to ambulate in the
community, " and "even with an assistive device he
probably should not ambulate more than four hours a
day." (Id.) Further, she believed Plaintiff had
"restriction with all climbing, balancing and working
with heights;" was limited to "frequent negotiating
of steps, stairs and uneven terrain;" and should do no
more than "frequent bending, stooping, kneeling, and
crouching." (Id.) Dr. Tran opined Plaintiff did
not have restrictions with fingering or grasping, but should
be limited to lifting "no more than 10 pounds."
Frankel reviewed the record and completed a physical residual
functional capacity assessment on July 6, 2012. (Doc. 9-4 at
7-12) Dr. Frankel observed that Plaintiff had a total hip
arthroplasty, diabetes, and hypertension. (Id. at 8)
According to Dr. Frankel, Plaintiff was limited to lifting
and carrying 10 pounds frequently and 20 pounds occasionally;
and was limited with pushing and pulling with his left leg.
(Id. at 8-9) Dr. Frankel believed Plaintiff could
occasionally climb ramps and stairs, kneel, stoop, crouch,
and crawl; but never climb ladders, ropes and scaffolds.
(Id.) Further, Dr. Frankel opined Plaintiff could
stand or walk for "2 hours" in an 8-hour day and
sit "about 6 hours in an 8-hour day."
(Id.) Dr. Frankel believed Plaintiff needed to