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Madrigal v. Berryhill

United States District Court, C.D. California

July 21, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Pursuant 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.


         Plaintiff 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.


         On June 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. 256).

         A 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)).[1] 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).[2]

         On June 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.

(A.R. 26).

         The ALJ 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)).

         On October 7, 2016, the Appeals Council considered additional medical evidence but denied review (A.R. 1-5; see also A.R. 824-923).


         Under 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 ...

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