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Agsaoay v. Colvin

United States District Court, S.D. California

March 28, 2017

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



         On December 4, 2015, Plaintiff Nida Escobar Agsaoay filed a complaint pursuant to 42 U.S.C. § 405(g) of the Social Security Act (“the Act”), requesting judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner” or “Defendant”) denying Plaintiff disability benefits. (Dkt. No. 1.) On October 17, 2016, Plaintiff filed a motion for summary judgment seeking reversal of Defendant's denial and an award of disability benefits or, alternatively, remand for further administrative proceedings. (Dkt. No. 18.) In it, Plaintiff contends that the Administrative Law Judge (“ALJ”) committed reversible error by failing to articulate specific, clear and convincing reasons for rejecting her testimony due to a lack of credibility. (Id.) On November 15, 2016, Defendant filed a cross-motion for summary judgment and opposition to Plaintiff's motion for summary judgment. (Dkt. Nos. 20, 21.) Plaintiff did not file an opposition to Defendant's cross-motion or reply to Defendant's opposition. On January 1, 2017, United States Magistrate Judge Nita L. Stormes issued a Report and Recommendation (R&R), pursuant to 28 U.S.C. § 636(b)(1), recommending judgment for the Plaintiff. (Dkt. No. 22.) No objections to the Report were filed.

         For the reasons set forth herein, and after a careful consideration of the moving papers, the administrative record and the applicable law, this Court adopts the Magistrate Judge's Report and Recommendation and thereby GRANTS Plaintiff's Motion for Summary Judgment, DENIES Defendant's Motion for Summary Judgment, and REMANDS the case for further administrative proceedings.

         28 U.S.C. § 636 Review

         The district court reviews a Magistrate Judge's Report and Recommendation as set forth in 28 U.S.C. § 636(b)(1). “A judge of the court shall make a de novo determination of those portions of the report . . . to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). In the absence of timely objection, however, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed.R.Civ.P. 72 advisory committee's note. When no objections are filed, therefore, a district court may assume the correctness of the magistrate judge's proposed findings of fact and decide the motion on the applicable law. Campbell v. U.S. Dist. Court for N. Dist. of California, 501 F.2d 196, 206 (9th Cir. 1974); Johnson v. Nelson, 142 F.Supp.2d 1215, 1217 (S.D. Cal. 2001).


         A. The Claimant

         Plaintiff was born September 4, 1960, and is currently 56 years old. (Dkt. No. 10-5, Administrative Record (“AR”) at 174.)[1] She graduated high school and attended three years of college, though she did not receive a degree or specialize in any particular field of study. (Dkt. No. 10-2, AR at 25.) She worked as a cashier and checker at a retail outlet from 1997 until 2008, and worked as a dietary aide and caregiver at a nursing home from 1995 to 1997. (Id. at 25, 40-42.) Currently, she supports herself financially with funds received from her husband's retirement pay and lives with her two adult children and cousin. (Id. at 27.) Plaintiff alleges she is disabled for a variety of reasons, including, for lower back pain, right leg problems, numbness in her hands, cervical myelopathy, central spinal cord dysfunction, right knee meniscal tear, and for the fact that her C-4/C-5 vertebrate are rubbing together. (See Dkt. 10-3, AR at 55.) As a result of these and other conditions, Plaintiff alleges that she has been disabled since February 2008. (See Dkt. No. 10-5, AR at 174.)

         B. Administrative Proceedings

         On April 25, 2012, Plaintiff filed an application for a period of disability and disability insurance benefits under Title II of the Act. (Dkt. No. 10-5, AR at 172-77.) In it, Plaintiff alleged that she was unable to work due to a disabling condition beginning on February 15, 2008. (Id. at 174.) The Commissioner denied the application initially and upon reconsideration. (Dkt. No. 11, AR at 807.) On January 9, 2014, Plaintiff testified at an administrative hearing before ALJ James Carletti. (Id.) The issue before the ALJ concerned whether Plaintiff was disabled within the meaning of Sections 216(i) and 223(d) of the Act on or before March 31, 2011, referred to as the “date of last insured.”[2](Id.)

         1. Claimant's Medical Evidence

         The Administrative Record before the ALJ included the following documents relating to Plaintiff's various health conditions.

         a. Prior to March 31, 2011, date of last insured

         The earliest medical records in the Administrative Record date back to February 12, 2008, when Plaintiff received care at the Naval Medical Center San Diego. (Dkt. No. 10-7, Exhibit 1F, AR at 244.) Medical notes concerning Plaintiff's preoperative gynecological examination for a total abdominal hysterectomy indicated that Plaintiff had a globular and irregular contoured uterus. (Id. at 245.) Other than that condition, however, the medical records indicate that Plaintiff was otherwise well developed, well nourished, and oriented to time, place and person, and that her neck, lungs, cardiovascular system, and abdomen were all within normal ranges. (Id.) Plaintiff's other medical records from this time period relate to pre-operative and post-operative examinations on conditions that are not at issue in the current complaint. (R&R, Dkt. No. 22 at 3; Dkt. No. 10-7, AR at 238-82.)

         The Administrative Record also contains a number of outpatient hospital records from the Naval Medical Center San Diego that span from January 2010 to the date last insured of March 31, 2011.[3] (Dkt. No. 10-8 and 10-9, Exhibit 5F, AR at 509-631.) These records show that Plaintiff made numerous visits to the Naval Medical Center for issues relating to her back, neck, and knee pain as well as for heaviness and pain in her hands. (Id.) The medical records include various physical examination findings and medical impressions relating to the Plaintiff's alleged symptoms. (Id.)

         b. After date last insured

         The remainder of the medical records included in the Administrative Record were issued after the date last insured. (Dkt. No. 10, Exhibit 2F, AR at 301-24 [records from Paradise Valley Hospital dated 1/24/2012 - 2/14/2012]; Exhibit 3F, AR at 325-425 [workers' compensation evaluation by Dr. Steiner, dated 5/10/2011 - 4/24/2012]; Exhibit 5F, AR at 353-509 [records from Naval Medical Center San Diego, dated 5/31/2011 - 10/24/2012]; Exhibit 7F, AR at 640-84 [records from Balboa Naval Medical Center, dated 6/3/2013 - 6/10/2013]; Exhibit 8F, AR at 685-799 [records from Coronado Naval Medical Center, dated 5/19/2012 -11/25/2013]; Exhibit 9F, AR at 800-803 [a physical Residual Functional Capacity assessment by Dr. Diane Wong, dated 11/25/2013].)

         2. Claimant's administrative testimony

         At the hearing before the ALJ, Plaintiff testified about her physical conditions and resulting pain, her daily activities, and her current ability to sit and stand. (Dkt. No. 10-2, AR at 23-35.) In 2008, she was diagnosed with severe anemia due to an imbalance of hormones. (Id. at 25) As a result of the anemia and the medication prescribed to her, she stopped working. Plaintiff testified that she did not go back to work after recovering from her anemia because of her knee. (Id.) Sometime in 2010, Plaintiff testified, she accidentally tore the meniscus in her knee while trying to enter her SUV. (Id.) Plaintiff testified that, despite receiving physical therapy and knee injections, she has not fully recovered from that injury as she still feels pain in that knee. (Id. at 25-26, 35.) She testified that she was prescribed a cane in 2010 and that she always uses it in order to take weight off of her knee and to help her with balance and to prevent falling, which had happened once before. (Id. at 31-32, 34.) She also stated she wears a metal knee brace both in public and at home to help her walk. (Id. at 31-32.)

         Plaintiff testified that the pain she feels in her knee, lower back and hands are her biggest problems. (Id. at 31.) She said her lower back pain started in 2011.[4] (Id. at 31.) She also testified that she has numbness from her neck down to her shoulders and into both of her hands that is “never gone.” (Id. at 33-34.) She stated that this numbness prevents her from being able to dress herself because she “cannot . . . grab.” (Id. at 33.) Medication prescribed by her primary physician, moreover, does not fully eliminate this pain. (Id. at 28-29, 34.) Plaintiff further testified that one of the medications, in fact, makes her drowsy and adversely affects her vision and concentration. (Id. at 29-31.)

         In terms of daily activities, Plaintiff testified that she is able to drive, cook, clean, and go grocery shopping. (Id. at 28.) However, she can only perform these tasks “a little bit” and her children help her “a lot.” (Id. at 28.) She further testified that she can sit down for thirty minutes before having to stand up, can stand for ten to fifteen minutes at a time, can only lift objects up to five pounds, and can walk about a block. (Id. at 32-33.) However, Plaintiff testified that she cannot dress herself due to the numbness in her hands, and that she lays down most of the time because her neck and shoulders make her tired. (Id. at 33-34.)

         3. Opinion testimony: Thomas Scott, M.D.

         At the hearing before the ALJ, Dr. Thomas Scott testified that he had reviewed Exhibits 1-9 in the record and determined that the medical evidence indicated that Plaintiff has degenerative disc disease in the cervical spine and lumbar spine, carpel tunnel syndrome, a possible tear in the medial clavicle ligament in her left knee, and is post-operative for spine fusion. (Dkt. No. 10-2, AR at 36-37.) He stated, “[h]owever . . . I find nothing that suggests she equals or meets the listings [of a SSA disability impairment].” (Id. at 36.) He opined that during an eight-hour work day, Plaintiff could stand for a total of two hours, walk a total of two hours, and sit for a total of six hours with interruptions. (Id. at 37.) He also stated that she appears capable of occasionally lifting and carrying up to ten pounds. (Id.) He further determined that there was no limitation in the use of her extremities, except for the fine manipulation of her hands and fingers, which would be limited to occasional use. (Id.)

         C. The ALJ's decision and application of the five-step process

         In order to grant disability insurance benefits under the Social Security Act, an ALJ must conduct a five-step sequential disability analysis. 20 C.F.R. § 404.1520(a). Those five ...

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