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Plummer v. Berryhill

United States District Court, E.D. California

February 22, 2018

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



         Mary Plummer asserts she is entitled to benefits under Titles II and XVI of the Social Security Act. Plaintiff argues the administrative law judge erred in evaluating the record and seeks judicial review of the decision to deny her application for benefits. Because the ALJ failed to apply the proper legal standards in evaluating the record, Plaintiff's motion for summary judgment is GRANTED and the decision is REMANDED for further proceedings.


         Plaintiff filed an application for a period of disability and disability insurance benefits on November 5, 2012, and supplemental security income on April 11, 2013. (Doc. 12-6 at 2, 9) In both applications, Plaintiff alleged disability beginning in December 2011. (Id.) The Social Security Administration denied her applications at the initial level and upon reconsideration. (See generally Doc. 12-4 at 2-46; Doc. 12-3 at 13) After requesting a hearing, Plaintiff testified before an ALJ on January 14, 2015. (Doc. 12-3 at 13) The ALJ determined Plaintiff was not disabled and issued an order denying benefits on March 24, 2015. (Id. at 13-21) When the Appeals Council denied Plaintiff's request for review on June 8, 2016 (id. at 2-4), the ALJ's findings became the final decision of the Commissioner of Social Security (“Commissioner”).


         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 he 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. Maounois 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 (“RFC”) 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. Medical Background and Opinions

         Plaintiff “was involved in a significant motor vehicle accident” in the 1970s, when she was 21 years old, after which she “had issues with her cervical spine as well as her lower back.” (Doc. 12-8 at 8) Plaintiff was involved in another motor vehicle accident on December 22, 2010, which caused “increasing pain of her neck.” (Id.)

         On January 29, 2011, Plaintiff underwent an MRI of her cervical spine. (Doc. 12-8 at 9) The MRI showed “degenerative changes of multiple levels… from C2, C3 to C7, T1.” (Id.) Plaintiff also had “mild to moderate disk loss of height [and] mild disk bulge.” (Id.) There was “[n]o cord compression or nerve compression.” (Id.)

         Dr. Jon Park performed “a new patient evaluation” on Plaintiff at a neurosurgery spine clinic on February 21, 2011. (Doc. 12-8 at 8) Dr. Park noted Plaintiff had “suffered multiple injuries, including a left hip replacement as well as a right kneecap replacement” in 1973. (Id. at 8, 9) In addition, Plaintiff had “a left foot drop since that time.” (Id. at 8) Following the second car accident, Plaintiff described having “a left greater than right-sided neck pain, ” as well as “lower back pain that is mild to moderate without any radiating symptoms, ” though her neck pain was improving. (Id.) Dr. Park observed that Plaintiff had a “good” range of motion and was “able to rotate from right to left, up and down without any issues.” (Id. at 9) He found Plaintiff had “severe muscle spasms” and was “tender upon palpation.” (Id.) Dr. Park opined Plaintiff “most likely suffered a whiplash injury in which she would benefit from a muscle relaxant.” (Id. at 10) In addition, he advised Plaintiff to “undergo physical therapy and massage therapy to reduce her severe spasm.” (Id.) Dr. Park concluded surgery was not necessary to treat Plaintiff's neck and back. (Id.)

         In December 2011, Plaintiff visited the office of Loreen Ketels Flaherty, a podiatrist, complaining “of a pain to the entire left ankle, particularly anteriorly and medially, ” which was an 8/10 in intensity. (Doc. 12-9 at 3) Dr. Flaherty observed that Plaintiff's left “foot does clear the ground with ambulation, but sits in a metatarsus adductus attitude.” (Id.) Dr. Flaherty reviewed x-rays of Plaintiff's left ankle and found “joint thinning, spurring, [and] arthritic changes.” (Id.) She opined Plaintiff's epicritic sensation was intact, but her “[v]ibratory sensation [was] decreased due to nerve damage.” (Id.) Plaintiff exhibited pain upon palpation to her ankle. (Id.) Dr. Flaherty diagnosed Plaintiff with osteoarthritis, Achilles tendonitis, tibial tendonitis, and pain in her limb. (Id.) She administered a cortisone injection into Plaintiff's ankle and prescribed ankle support. (Id.)

         Due to Plaintiff's reports of constant pain in her left knee, she was referred to Dr. Paramjeet Gill for a consultative orthopedic examination that occurred on December 20, 2011. (Doc. 12-9 at 42) She described her pain “as aching and shooting” and explained that it was moderate to severe in intensity. (Id.) Dr. Gill also noted Plaintiff reported she “was working doing sales but her company just went out of business [that] week.” (Id.) Dr. Gill observed Plaintiff had a normal gait on the right side, but an antalgic gait on the left. (Id. at 43) Her left knee had “mild varus” alignment, moderate swelling, and abnormal strength. (Id.) In addition, an x-ray taken that day showed “[s]evere osteoarthritic changes [in the] left knee.” (Id.) Dr. Gill opined Plaintiff's treatment options included viscosupplement injections and total knee replacement surgery, and Plaintiff agreed to schedule the surgery. (Id.)

         On January 31, 2012, Dr. William Holvik examined Plaintiff prior to a scheduled knee surgery. (Doc. 12-8 at 34) Plaintiff had a full range of motion “without pain” in her neck. (Id.) Dr. Holvik opined Plaintiff had an “adequate” range of motion in her back, stable gait, and normal strength. (Id.) He found “no joint tenderness or effusion.” (Id.) He recommended Plaintiff “[s]tart [an] exercise program once [her] knee recovered.” (Id. at 35)

         Dr. Gill performed a “left total knee arthroplasty” on February 6, 2012. (Doc. 12-8 at 55, 63) He noted Plaintiff was expected to remain in the hospital for “1 to 2 days.” (Id. at 67) Following the surgery, Plaintiff “used a walker for 1 week, ” which was followed by using a cane for one week. (Id. at 45) In addition, Plaintiff took pain medication for three weeks and reported that her pain was “controlled by [the] narcotics when taken daily.” (Id. at 46)

         On March 6, 2012, Plaintiff visited Dr. Flaherty and continued to complain of pain in her left ankle, which she described as an 8/10 in intensity. (Doc. 12-9 at 5) Dr. Flaherty observed that Plaintiff was “breaking through” her ankle support and “order[ed] a donjoy brace to replace it.” (Id.) She noted Plaintiff was recovering from her knee replacement surgery and “wishe[d] to wait a year for ankle surgery.” (Id.) Dr. Flaherty believed a donjoy brace would “stabilize her and stop pain until then.” (Id.) Plaintiff received the custom-molded brace ten days later. (Id. at 7)

         Dr. Gill performed a post-operative examination on March 27, 2012, and found the wound was “well healed” without signs of infection. (Doc. 12-8 at 45) Plaintiff told Dr. Gill that the recovery on her knee was “much quicker” than she experienced with her right knee replacement, and she was “pleased with the current postoperative status.” (Id.) Dr. Gill directed Plaintiff to “continue physical therapy protocol, active and passive [range of motion], strengthening and stretching.” (Id.)

         On April 5, 2012, Plaintiff returned to Dr. Flaherty, reporting “the donjoy brace cannot be tolerated.” (Doc. 12-9 at 8) However, Plaintiff said the cortisone injection helped with her pain. (Id.) Dr. Flaherty noted Plaintiff wanted “to continue minimal [weight] bearing, look for a job, and [return] for a []2nd cortisone injection.” (Id.) On April 25, Dr. Flaherty noted Plaintiff did not identify any “significant improvement since the last visit.” (Id. at 9) In May, Plaintiff continued to report pain that was 8/10 in intensity. (Id. at 10) Dr. Flaherty administered a second cortisone injection on May 30, 2012. (Id. at 10, 12)

         In August 2012, Dr. Flaherty noted that Plaintiff had “chronic ankle ensethopathy on the left that she wears a couple of braces for.” (Doc. 12-9 at 12, 28) She observed Plaintiff also had “arthritis in [her ankle], continuous degeneration, and pain.” (Id.) Dr. Flaherty administered a third cortisone shot on August 29. (Id.)

         Dr. Flaherty examined Plaintiff on December 14, 2012, noting Plaintiff “again [had] chronic ankle enthesopathy in the left [foot].” (Doc. 12-9 at 30) In addition, she opined Plaintiff had “severe arthritis with degeneration and pain in the ankle joint and sinus tarsi.” (Id.) Plaintiff continued to have “erythema, edema, and pain to palpation with movement of the ankle.” (Id.) Dr. Flaherty found the cortisone shots “help significantly especially when they are put in the sinus tarsi, ” and administered another injection. (Id.) She noted Plaintiff could “come in every 4-5 months” for an injection. (Id.)

         Dr. Dale Van Kirk performed a comprehensive orthopedic evaluation on December 30, 2012. (Doc. 12-9 at 33) Plaintiff reported that she worked “for 35 years, ” and identified “[t]he main physical reason why she [was] not gainfully employed… [was] chronic back pain with radiation down the left leg, as well as left ankle pain.” (Id. at 33-34) She said she “use[d] an ankle brace for stability, ” and estimated she could “stand, walk and sit for about one-half hour.” (Id. at 34) Dr. Van Kirk observed that Plaintiff had a dropfoot on the left, and noted “getting up on [her] heels is impossible on the left side.” (Id. at 35) When asked to squat, Plaintiff went “about one-third of the way down but could not continue because of back pain.” (Id.) Dr. Van Kirk found Plaintiff's motor strength was “normal, 5/5, in the upper extremities and lower extremities bilaterally, except dorsiflexion of the left ankle [was] minimal, estimated at 1.” (Id.) Plaintiff could “barely move” her toes and ankle on the left. (Id.) Dr. Van Kirk concluded Plaintiff “should use her ankle brace for stability on the left side mainly when she is out and about for even and uneven terrain” and “should be able to stand and/or walk cumulatively for six hours out of an eight-hour day.” (Id. at 37) In addition, he believed Plaintiff “should be able to lift and carry frequently 10 pounds and occasionally 20 pounds, limited because of chronic pain in the back as well as chronic pain in the left ankle.” (Id.) Further, Dr. Van Kirk opined Plaintiff was “limited to only occasional postural activities including bending, stooping, crouching, climbing, kneeling, balancing, crawling, pushing and pulling.” (Id.) Because Plaintiff reported her symptoms increased with cold weather, Dr. Van Kirk concluded that “she should not be required to work in an extremely cold and/or damp environment.” (Id.)

         Plaintiff had images taken of her lumbar and cervical spine in January 2013. (Doc. 12-9 at 40, 42-44) Dr. Lee Schratter determined Plaintiff had degenerative changes at several levels in the cervical spine, including “[m]ild to moderate” disc desiccation, loss of disc height, disc bulges, and neural foraminal narrowing. (Id. at 42) Reviewing images of the lumbar spine, Dr. Richard Clutson opined Plaintiff had “[m]ild disc space narrowing … at ¶ 3-L4 with mild anterior bony osteophytosis consistent with early change of degenerative disc disease, ” as well as “[m]inimal anterior ...

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