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Sanchez v. Colvin

United States District Court, C.D. California

September 7, 2017

TONI R. SANCHEZ, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         Plaintiff 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 administrative proceedings.



         A. Procedural History.

         Plaintiff 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.)

         Hearings 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 pain management).

         The ALJ 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.

         B. Overview of Plaintiff's Medical History.

         Plaintiff 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.

         In the 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, 401.

         In 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).

         Plaintiff did not seek treatment with a psychiatrist or psychologist.[1] AR 57. Plaintiff did participate in physical therapy. AR 417.

         In 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).

         In 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 testimony).

         In July 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.

         Several 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.



         Under 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.

         “A 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).

         A. The Evaluation of Disability.

         A 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).

         B. The Five-Step Evaluation Process.

         The ALJ 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), 416.920(a)(4)(i).

         If the 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).

         If the 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).

         If the 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.

         If that 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.

         C. ALJ's Application of the Five-Step Process in this Case.

         The ALJ 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.[2] 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.

         The ALJ 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.

         Based 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. AR 30-31.



         Plaintiff's 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 medical ...

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