United States District Court, C.D. California
MEMORANDUM OPINION AND ORDER OF REMAND
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY
ORDERED that Plaintiff's and Defendant's motions for
summary judgment are denied, and this matter is remanded for
further administrative action consistent with this Opinion.
filed a Complaint on November 22, 2016, seeking review of the
Commissioner's denial of benefits. The parties filed a
consent to proceed before a United States Magistrate Judge on
January 9, 2017. Plaintiff filed a motion for summary
judgment on April 28, 2017. Defendant filed a motion for
summary judgment on May 30, 2017. The Court has taken both
motions under submission without oral argument. See
L.R. 7-15; “Order, ” filed November 28, 2016.
25, 2013, Plaintiff applied for disability insurance benefits
and supplemental security income, alleging disability
beginning December 22, 2011, when she was injured at work
(Administrative Record (“A.R.”) 158-72, 190, 256,
444). At the time of her injury, Plaintiff was pregnant (A.R.
Workers' Compensation orthopedist, Dr. Kevin Pelton of
“Advanced Orthopedics, ” treated Plaintiff for
radiating pain from February of 2012 through at least August
of 2014 (A.R. 384-450, 467-71, 473-88). Dr. Pelton diagnosed
a lumbosacral musculoligamentous sprain/strain, and a
4-millimeter disc bulge at ¶ 4-L5 and bilateral lower
extremity radiculitis (A.R. 448, 467). Because Plaintiff was
pregnant, Dr. Pelton initially treated Plaintiff with only
physical therapy and topical pain medication (A.R. 448).
After Plaintiff delivered her baby, Dr. Pelton ordered MRI
studies but prescribed no pain medications because Plaintiff
was breast feeding (A.R. 441). The MRI study of
Plaintiff's lumbar spine from April of 2012 showed a 2-3
millimeter disc bulge at ¶ 4-5 without evidence of
stenosis or neural foraminal narrowing, and “mild
effacement” of the right exiting nerve root secondary
to a 3-4 millimeter disc bulge at ¶ 5-S1 (A.R. 372-73;
see also A.R. 378-79 (March, 2011 lumbar spine MRI
showing bulges); A.R. 374-75 (September, 2010 cervical spine
MRI showing a 1-2 millimeter disc bulge at ¶ 5-6 and
C6-7 without evidence of stenosis or neural foraminal
narrowing)). In July of 2012, Dr. Pelton stated that
Plaintiff was “still unable to work, ” and Dr.
Pelton indicated that, if physical therapy did not relieve
Plaintiff's symptoms adequately, Plaintiff might require
an epidural injection (A.R. 428). In August of 2012,
Plaintiff was still breast feeding and so was restricted to
using only Tylenol for her pain (A.R. 423). During
Plaintiff's next five visits, Dr. Pelton recommended a
trial of acupuncture and a TENS unit for Plaintiff's pain
because Plaintiff's treatment options still were limited
due to the breast feeding (A.R. 404, 408, 411, 414, 417). In
April of 2013, Dr. Pelton prescribed 800 milligrams of Motrin
and Soma for muscle spasms (A.R. 398). In August of 2013, Dr.
Pelton stated that he was awaiting authorization for a
consultation with a pain management specialist (A.R. 385). In
July of 2014, Dr. Pelton stated that Plaintiff had not
responded to conservative treatment so he was “formally
requesting” authorization for a pain management
consultation for consideration of epidural injections (A.R.
476). In August of 2014, authorization for a pain management
consultation and consideration of lumbar epidural steroid
injections reportedly was still pending (A.R. 474). Dr.
Pelton opined that Plaintiff should remain off work, with any
return to modified work occurring as permitted by a Qualified
Medical Examiner's opinion (A.R. 477, 482).
12, 2015, an Administrative Law Judge (“ALJ”)
rejected Dr. Pelton's opinions that Plaintiff was
“temporary totally disabled” and “must
remain off work” (A.R. 26). The ALJ stated:
The undersigned finds these conclusions have no probative
value and rejects them. The term “temporarily totally
disabled” and “permanent and stationary”
are terms of art in workers' compensation law that are
not determinative under the different criteria for a finding
of disability pursuant to the Social Security Act. Therefore,
a conclusion by a physician the claimant is
“temporarily totally disabled” or that she must
remain off work in the context of a workers' compensation
case is not relevant with regard to the claimant's
applications under the Social Security Act. The objective
clinical and diagnostic evidence used by the claimant's
physicians to come to those conclusions have been considered.
This objective evidence is consistent with a determination
that the claimant could do work subject to the residual
functional capacity assessed herein.
adopted a consultative examiner's opinion that Plaintiff
retains the residual functional capacity to perform medium
work (A.R. 24-26; see A.R. 459-64). Non-examining
state agency physicians concurred with the consultative
examiner's opinion (A.R. 55-69). The ALJ found that, with
this capacity, Plaintiff could return to her past relevant
work and also that Plaintiff could perform other jobs
existing in significant numbers (A.R. 27-28 (adopting
vocational expert testimony at A.R. 47-48)).
October 7, 2016, the Appeals Council considered additional
medical evidence but denied review (A.R. 1-5; see
also A.R. 824-923).
42 U.S.C. section 405(g), this Court reviews the
Administration's decision to determine if: (1) the
Administration's findings are supported by substantial
evidence; and (2) the Administration used correct legal
standards. See Carmickle v. Commissioner, 533 F.3d
1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499
F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v.
Commissioner, 682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” R ...