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Pendergast v. Berryhill

United States District Court, E.D. California

July 17, 2017

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.



         Bryan Russell Pendergast asserts he is entitled to a period of disability and disability insurance benefits under Title II of the Social Security Act. Plaintiff seeks judicial review of the decision denying his application for benefits, asserting the administrative law judge erred in evaluating the medical record. Because the ALJ failed to apply the proper legal standards, the matter is REMANDED for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).


         Plaintiff filed applications for benefits on July 3, 2012, in which he alleged disability beginning November 6, 2009. (Doc. 11-3 at 18) The Social Security Administration denied the applications at the initial level and upon reconsideration. (Id.; Doc. 11-5 at 2-11) Plaintiff requested a hearing, and testified before an ALJ on July 31, 2014. (Doc. 11-3 at 18, 33) The ALJ determined Plaintiff was not disabled under the Social Security Act, and issued an order denying benefits on September 17, 2014. (Id. at 18-26) Plaintiff filed a request for review of the decision with the Appeals Council, which denied the request on February 22, 2016. (Id. at 2-4) Therefore, the ALJ's determination became the final decision of the Commissioner of Social Security.


         District 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).

         Substantial 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).


         To qualify for benefits under the Social Security Act, Plaintiff must establish she 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. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984).


         To 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 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, 416.927.

         A. Relevant Medical Evidence

         In 2007, Plaintiff worked as a UPS driver and developed right hip pain, though he did “not recall a particular injury.” (Doc. 11-9 at 39) Dr. Thomas W. Thomas opined Plaintiff was “severely disabled” at the time due to “joint space narrowing, sclerosis, and periarticular ostephytes.” (Id.) Plaintiff had “a right total hip arthroplasty, ” followed by “aggressive physical therapy.” (Id. at 36) At a follow-up appointment in January 2008, Plaintiff reported he was “doing well” and had “no pain” or functional limitations. (Id. at 32) Dr. Thomas opined Plaintiff's range of motion was good, and Plaintiff was “[r]eleased to return to work” on January 26, 2008. (Id. at 32)

         In February 2011, Plaintiff returned to Dr. Thomas, reporting he had pain in both hips and “some pain down his low back the right side.” (Doc. 11-9 at 25) Plaintiff told Dr. Thomas he had “been out of work” for the past year after losing his job with UPS. (Id.) Dr. Thomas ordered x-rays and found Plaintiff had “some slowly advancing [osteoarthritic] changes to the left hip.” (Id. at 26) The following month, Dr. Thomas also ordered images of Plaintiff's lumbar spine, and found the L5-S1 level was “almost completely bone-on-bone with some large bone spurs.” (Id. at 23-24)

         In May 2011, Plaintiff had an MRI on his lumbar spine. (Doc. 11-8 at 81) Dr. Phillip Tran found “evidence of moderate degenerative disc disease with broad-based disc protrusion or bulge and mild central canal stenosis as well as mild to moderate bilateral foraminal narrowing” at the L5-S1 level. (Id.) Dr. Tran also opined Plaintiff had “mild central canal stenosis” at the L4-L5 level. (Id.)

         In June 2011, Dr. Gregory Dunford began treating Plaintiff for low back pain and “numbness in both legs.” (Doc. 11-8 at 31) Dr. Dunford noted Plaintiff had “a shot in the left hip” and was taking physical therapy. (Id.) He observed that Plaintiff arose from his chair slowly, and demonstrated “[m]ild tenderness and spasm of [the] lumbar paraspinal muscles.” (Id.) Dr. Dunford determined Plaintiff did not have “percussion tenderness, ” and walked normally on his toes and heels. (Id.)

         Plaintiff reported the shot in his mid-back provided “moderate relief” in July 2011. (Doc. 11-8 at 30) Dr. Dunford found Plaintiff had “[f]airly exquisite tenderness and spasm of lumbar paraspinal muscles bilaterally, ” and his “[f]lexion [was] still limited due to pain.” (Id.) He recommended that Plaintiff follow-up with another physician regarding an injection in his low back where the pain was the worst. (Id.) In addition, Dr. Dunford told Plaintiff to apply heat and perform range of motion exercises. (Id.)

         Despite receiving additional injections, Plaintiff reported “persisting pains in [his] low back” in August and September of 2011. (Doc. 11-8 at 28-29) Dr. Dunford found Plaintiff's flexion was “limited to knees with no reversal of lumbar lordosis.” (Id.) Plaintiff continued to have tenderness and spasm in the lumbar paraspinal muscles. (Id.)

         In October 2011, Plaintiff told Dr. Dunford that he was “[s]till quite inactive due to the low back pain.” (Doc. 11-8 at 27) Plaintiff said he had “[p]ain the right shoulder after throwing a Frisbee” the prior week. (Id.) Dr. Dunford found Plaintiff had a full range of motion in his back, though there was tenderness in the lumbar spine. (Id.) Dr. Dunford advised Plaintiff regarding hypertension, and noted his blood pressure had improved with a salt limitation. (Id.)

         Plaintiff had a neuroablation treatment with a neurosurgeon in November 2011. (Doc. 11-8 at 26, 65) He told Dr. Dunford that his pain was “actually a little worse after [the] procedure.” (Id. at 24) Dr. Dunford found Plaintiff had “general tenderness over the lumbar paraspinals with poor [range of motion] on forward and lateral flexion due to pain.” (Id.)

         From December 2011 to February 2012, Plaintiff had several physical therapy sessions with Peter Erickson. (Doc. 11-8 at -17) On December 14, 2011, Mr. Erickson observed Plaintiff could not “lift, bend, twist, or sustain prolonged postures in any plane.” (Id. at 17, 24) Plaintiff told Mr. Erickson that he was limited to about one hour of activity due to low back pain, and was “[d]iscouraged by [his] limited endurance and activity level.” (Id. at 17) Mr. Erickson observed that Plaintiff moved “in a guarded fashion, ” with “diminished bilateral stride length” and a “very strong pelvic tilt.” (Id.) He found Plaintiff's sensation was “intact” in his legs, and despite the “[d]iminished hip mobility, ” the “muscular mobility [was] fairly good.” (Id.) Mr. Erickson noted that he provided Plaintiff with “[t]raining regarding protection of [his] lumbar spine.” (Id.)

         Plaintiff told Dr. Dunford that his physical therapy sessions were “helping his hip pains quiet well” in January 2012. (Doc. 11-8 at 23) However, Dr. Dunford found Plaintiff continued to exhibit “general tenderness over the lumbar paraspinals with poor [range of motion] on forward and lateral flexion due to pain.” (Id.) In addition, Plaintiff “had 4 weakness in his quadriceps and hamstrings bilaterally.” (Id. at 37) Plaintiff's “[s]ensation was intact to light touch and negative for straight leg raising signs.” (Id.) An MRI of Plaintiff's lumbar spine showed “disc protrusion centrally at ¶ 4-L5, severe disc collapse at ¶ 5-S1, Modic II endplate changes and large anterior spurs, and mild stenosis.” (Id.) Plaintiff was then referred to Dr. Henry Aryan for a surgical consultation. (Id.)

         On February 1, 2012, Plaintiff told Mr. Erickson that he was “[f]eeling much better while completing [physical therapy].” (Doc. 11-8 at 13) However, Plaintiff said that he “tried to rake [his] yard and [his] back started hurting a lot.” (Id.) Mr. Erickson noted that Plaintiff was improving his stabilization. (Id.) Although Plaintiff had “pain with awkward positions, ” he was “[a]ble to recognize protected positions.” (Id.) Mr. Erickson noted that he again provided Plaintiff with “[t]raining regarding protection of [his] lumbar spine.” (Id.)

         In mid-February 2012, Plaintiff sought emergency care for “pain in the right shoulder, ” and received a prescription for Vicodin. (Doc. 11-8 at 22) On February 23, Dr. Dunford found Plaintiff had tenderness in the right shoulder, but his deltoid strength was “100% with mild pain on stress.” (Id.) In addition, Dr. Dunford found Plaintiff had a full range of motion in the shoulder. (Id.)

         Dr. Aryan performed a consultative examination regarding Plaintiff's “[l]ow back pain, bilateral lower extremity radiculopathy, and progressive paraparesis” on March 15, 2012. (Doc. 11-8 at 39) Dr. Aryan noted Plaintiff had received physical therapy, injections, and radiofrequency ablation, but “failed essentially all… conservative measures.” (Id.) Dr. Aryan found Plaintiff had “4/5 weakness for bilateral dorsiflexion and plantar flexion, ” but found no muscle atrophy. (Id. at 40) Plaintiff also demonstrated “numbness in an L5 and S1 distribution bilaterally.” (Id.) Dr. Aryan concluded Plaintiff had “two level disease, moderate to severe at ¶ 5-S1, and mild to moderate at ¶ 4-5, with associated neurologic deficits, progressive in nature.” (Id. at 41) Dr. Aryan recommended Plaintiff have “an L4 to S1 instrumented fusion and decompression.” (Id.)

         In April 2012, Plaintiff told Dr. Dunford that he continued to have “significant low back pains with radiation into the legs.” (Doc. 11-8 at 21) In addition, Plaintiff said his pain in the shoulder was “about 75% improved.” (Id.)

         Plaintiff had a two-level lumbar fusion from L4 to S1 performed by Dr. Aryan on July 16, 2012. (Doc. 11-8 at 51) The same month, Plaintiff developed “soreness and swelling” in his right wrist. (Id. at 19) Dr. Josephine Perez found Plaintiff exhibited pain with “any movement” and his wrist was “warm to touch.” (Id.) Plaintiff was “[a]ble to make a nearly closed fist, but [had] a weak grip due to pain ...

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