United States District Court, C.D. California
TONI R. SANCHEZ, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
E. SCOTT, UNITED STATES MAGISTRATE JUDGE.
Toni R. Sanchez appeals the final decision of the
Commissioner denying her application for disability and
Supplemental Social Security Income benefits. See
Administrative Record (“AR”) 14-32. For the
reasons stated below, the Commissioner's decision is
reversed and this action is remanded for further
filed applications for Social Security Disability Insurance
Benefits (“DIB”) and Supplemental Security Income
(“SSI”) alleging a disability onset date of
December 5, 2010. AR 178-85. Plaintiff claims she is disabled
due to chronic back pain after failed back surgeries,
fibromyalgia, obesity, and depression. (Dkt. 24 [Joint
Stipulation or “JS”] at 2.)
were held before an Administrative Law Judge
(“ALJ”) on March 4 and June 4, 2014. AR 39-76.
After the hearings, the ALJ propounded interrogatories
(“rogs”) on a medical expert (“ME”)
and a vocational expert (“VE”). AR 14-15; AR
901-21 (ME's responses to rogs); AR 324-30 (VE's
responses to rogs). Plaintiff responded to the ME's new
evidence by submitting additional evidence from one of her
treating physicians. AR 15; AR 303-04 (letter from
Plaintiff's counsel in response to ME's evidence); AR
922-23 (letter from Plaintiff's treating physician for
issued a decision denying benefits on September 24, 2014. AR
32. Plaintiff sought review by the Appeals Council, which
denied review. AR 1-4, 10, 335-36. Plaintiff then filed the
instant action in this Court.
Overview of Plaintiff's Medical
alleges a disability onset date of December 5, 2010. AR
178-85. In or around 2003, Plaintiff had spinal fusion
surgery on her back. See AR 373-74, 480, 436
(treatment notes referring to prior surgery). Plaintiff began
seeing rheumatologist Dr. Darice Yang, who diagnosed
Plaintiff with degenerative joint disease of the back and
fibromyalgia. AR 408, 410-12.
summer of 2011, Plaintiff underwent a second surgery, a
spinal fusion of the L4-L5 vertebrae, performed by Dr.
Christopher Aho. AR 349, 676-78. Plaintiff continued to see
Drs. Yang and Aho and to complain of pain in her lower back
and legs. See, e.g., AR 344-48, 377, 380,
398. Dr. Yang also noted fibromyalgia tenderpoints. AR 399,
December 2011, Dr. Aho referred Plaintiff to a pain
management specialist, Dr. Ostam Khoshar, whom Plaintiff
began seeing about once a month. See AR 436, 712.
Dr. Khoshar prescribed narcotic pain medications and
injections, and recommended physical therapy and psychiatric
care. See AR 428-29, 433-35, 592-608, 710-11
(treatment notes for January 2012 through January 2013); AR
476-77 (hardware bursa injection in February 2012); AR
426-27, 478 (epidural steroid injections in March 2012); AR
576-77 (right stellate ganglion block in November 2012).
Plaintiff also continued to see Dr. Yang approximately every
six weeks. See AR 65 (hearing testimony). Dr. Yang
prescribed arthritis medication, advised Plaintiff to
exercise, and recommended psychiatric care. See AR
541-43, 546, 549-50, 552 (treatment notes from May 2012
through November 2012).
did not seek treatment with a psychiatrist or
psychologist. AR 57. Plaintiff did participate in
physical therapy. AR 417.
January 2013, Plaintiff had a third spinal fusion surgery
performed by Dr. Aho. AR 624-28, 674-75, 687-88. Plaintiff
thereafter continued monthly pain management treatment with
Dr. Khoshar. See AR 698, 704, 708-10, 848-52,
857-63, 871-73, 880-86, 891-900, 924-29 (treatment notes from
January 2013 to August 2014). She also continued to see Dr.
Yang. See AR 776-81, 785-88 (treatment notes from
March 2013 to May 2014).
March 2013, on Dr. Khoshar's recommendation, Plaintiff
had a spinal cord stimulator implanted as a trial. It was
removed after a few days because Plaintiff reported that it
was not helpful. AR 700-04; see also AR 64 (hearing
2013, Plaintiff had an intrathecal morphine pump implanted;
she initially reported improvement in her back pain and she
stopped taking other narcotic pain medication. AR 57-58, 871,
875-79, 885. Dr. Khoshar performed a procedure to reposition
the pump in October 2013. AR 861-63. In December 2013,
Plaintiff continued to report that the pump decreased her
lower back pain. AR 851-52. However, Plaintiff also continued
to report high levels of overall pain, at a level of 8, 9 or
10 out of 10. At the hearing before the AL, Plaintiff
testified that the pump “took some of the edge off,
like the buttock area. But the lower back, it hasn't
taken the pain away at all.” AR 58.
times after her third surgery, Dr. Yang noted Plaintiff's
“narcotic dependence” and advised Plaintiff that
being on narcotic pain medications could amplify her
fibromyalgia pain. See AR 779, 781, 785-86. Dr. Yang
suggested, “One of the newer treatments for
fibromyalgia … could be naloxone; however, she would
have to be off of narcotic for that and especially we need to
formulate a low does that is used for fibromyalgia
pain.” AR 779.
42 U.S.C. § 405(g), a district court may review the
Commissioner's decision to deny benefits. The ALJ's
findings and decision should be upheld if they are free from
legal error and are supported by substantial evidence based
on the record as a whole. 42 U.S.C. § 405(g);
Richardson v. Perales, 402 U.S. 389, 401 (1971);
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
Substantial evidence means such relevant evidence as a
reasonable person might accept as adequate to support a
conclusion. Richardson, 402 U.S. at 401;
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007). It is more than a scintilla, but less than a
preponderance. Lingenfelter, 504 F.3d at 1035
(citing Robbins v. Soc. Sec. Admin., 466 F.3d 880,
882 (9th Cir. 2006)). To determine whether substantial
evidence supports a finding, the reviewing court “must
review the administrative record as a whole, weighing both
the evidence that supports and the evidence that detracts
from the Commissioner's conclusion.” Reddick v.
Chater, 157 F.3d 715, 720 (9th Cir. 1998). “If the
evidence can reasonably support either affirming or
reversing, ” the reviewing court “may not
substitute its judgment” for that of the Commissioner.
Id. at 720-21.
decision of the ALJ will not be reversed for errors that are
harmless.” Burch v. Barnhart, 400
F.3d 676, 679 (9th Cir. 2005). Generally, an error is
harmless if it either “occurred during a procedure or
step the ALJ was not required to perform, ” or if it
“was inconsequential to the ultimate nondisability
determination.” Stout v. Comm'r, Soc. Sec.
Admin., 454 F.3d 1050, 1055 (9th Cir. 2006).
The Evaluation of Disability.
person is “disabled” for purposes of receiving
Social Security benefits if he is unable to engage in any
substantial gainful activity owing to a physical or mental
impairment that is expected to result in death or which has
lasted, or is expected to last, for a continuous period of at
least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v.
Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). A
claimant for disability benefits bears the burden of
producing evidence to demonstrate that he was disabled within
the relevant time period. Johnson v. Shalala, 60
F.3d 1428, 1432 (9th Cir. 1995).
The Five-Step Evaluation Process.
follows a five-step sequential evaluation process in
assessing whether a claimant is disabled. 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4); Lester v.
Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1996). In the
first step, the Commissioner must determine whether the
claimant is currently engaged in substantial gainful
activity; if so, the claimant is not disabled and the claim
must be denied. 20 C.F.R. §§ 404.1520(a)(4)(i),
claimant is not engaged in substantial gainful activity, the
second step requires the Commissioner to determine whether
the claimant has a “severe” impairment or
combination of impairments significantly limiting his ability
to do basic work activities; if not, a finding of not
disabled is made and the claim must be denied. Id.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
claimant has a “severe” impairment or combination
of impairments, the third step requires the Commissioner to
determine whether the impairment or combination of
impairments meets or equals an impairment in the Listing of
Impairments (“Listing”) set forth at 20 C.F.R.,
Part 404, Subpart P, Appendix 1; if so, disability is
conclusively presumed and benefits are awarded. Id.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
claimant's impairment or combination of impairments does
not meet or equal an impairment in the Listing, the fourth
step requires the Commissioner to determine whether the
claimant has sufficient residual functional capacity
(“RFC”) to perform his past work; if so, the
claimant is not disabled and the claim must be denied.
Id. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv). The claimant has the burden of proving he
is unable to perform past relevant work. Drouin, 966
F.2d at 1257. If the claimant meets that burden, a prima
facie case of disability is established. Id.
happens or if the claimant has no past relevant work, the
Commissioner then bears the burden of establishing that the
claimant is not disabled because he can perform other
substantial gainful work available in the national economy.
20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
That determination comprises the fifth and final step in the
sequential analysis. Id. §§ 404.1520,
416.920; Lester, 81 F.3d at 828 n. 5;
Drouin, 966 F.2d at 1257.
ALJ's Application of the Five-Step Process in this
determined that Plaintiff had not engaged in substantial
gainful activity since December 5, 2010 (her alleged onset
date) and was insured through December 31, 2015. AR 18. He
found that Plaintiff had the following medically determinable
impairments: (1) fibromyalgia; (2) lumbar degenerative disc
disease, status post surgeries in 2003, 2011, and 2013; (3)
mild L5 denervation; (4) anemia; (5) obesity; and (6) a
vitamin D deficiency. AR 18. However, the ALJ determined that
Plaintiff did not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the impairments in the Listing. AR 20-21.
determined that Plaintiff had the residual functional
capacity (“RFC”) to perform a limited range of
sedentary work. AR 22. Specifically, he found Plaintiff: (1)
can lift and carry up to 20 pounds occasionally and 10 pounds
frequently; (2) can stand up to 2 hours, walk up to 2 hours,
and sit up to 6 hours cumulatively in an 8-hour workday; (3)
can alternate from sitting to standing and from standing to
sitting up to 5 minutes every 2 hours; (4) can occasionally
climb, balance, bend, kneel, and stoop, but can never crawl;
(5) can frequently reach above shoulder level, handle, and
finger with the left and right upper extremities; (6) must
avoid frequent exposure to dust, fumes, smoke, excessive
heat, possible electrical shock, and aerosolized chemicals;
and (7) cannot work at dangerous heights or around dangerous
moving machinery. AR 22.
on the rog responses from the VE, the ALJ determined that
Plaintiff could perform her past relevant work as a legal
assistant. AR 28-30. Alternatively, the ALJ determined
Plaintiff could perform sedentary, unskilled occupations such
as document preparer, charge-account clerk, and cashier II.
appeal from the Commissioner's unfavorable decision
presents the following three issues:
Issue One: Whether the ALJ failed to give proper
weight to treating physicians and failed to support his
reliance on the opinion of the non-treating, non-examining