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Roberts v. Berryhill

United States District Court, N.D. California

March 30, 2018

IRENE M. ROBERTS, Plaintiff,
v.
NANCY A. BERRYHILL, Defendant.

          ORDER REGARDING MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS. 23, 26

          JOSEPH C. SPERO Chief Magistrate Judge.

         I. INTRODUCTION

         Plaintiff Irene Roberts brings this action appealing the final decision of Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (the “Commissioner”), denying Roberts's application for disability benefits. The parties have filed cross motions for summary judgment pursuant to Civil Local Rule 16-5. For the reasons discussed below, Roberts's motion is GRANTED, the Commissioner's motion is DENIED, and the matter is REMANDED to the Commissioner for an award of benefits.[1]

         II. BACKGROUND

         Because Roberts's motion and the Court's decision turn primarily on Roberts's limited use of her right hand, the summary of the record and arguments below focuses on that issue, as addressed by the parties and the ALJ, and is not intended as a comprehensive description of the administrative record, the ALJ's decision, or Robert's medical history.

         A. Roberts's Medical Records

         On May 1, 2013, an x-ray was taken of Roberts's right hand based on her complaints of pain in her right thumb and index finger since a wrist injury around Christmas of 2012. Id. at 503-04. Doctors who reviewed the x-ray found no evidence of an acute bony fracture, subluxation or dislocation, or a radiopaque foreign body. Id. at 419, 504.

         In July of 2013, Roberts visited Dr. Constance Lo at the Santa Clara Valley Medical Center for edema, apparently of her feet or legs. Id. at 491. Among other complaints-including that she could not stand for more than five minutes due to back pain-Roberts complained of pain in her right wrist since around Christmas of 2012 due to an injury when she tried to push off from sitting on the floor and her wrist buckled. Id. at 262, 463, 492. A test for tendon injury was equivocal. Id. at 493. Dr. Lo ordered that Roberts visit the “Hand Therapy Clinic, ” communicate with a nurse, and try a “velcro thumb spica splint during night and day if possible.” Id. at 263, 464, 493.

         Also in July of 2013, Roberts visited a clinic for a follow-up visit related to a cyst on her jaw. Id. at 247. Surgery had been attempted in 2012 but aborted due to heart problems. Id. A report from the clinic visit states that the cyst was asymptomatic at that time, and that Roberts's “history of coronary artery disease and asystole, ma[de] operative intervention excessively risky.” Id. A note from 2014 describes those surgery complications in more detail. Id. at 558. After an incision was made and surgeons prepared to cut into her bone, Roberts “went into asystole with a complete drop of blood pressure on the A-line and desaturation down to 40%.” Id. Doctors “were about to commence chest compressions and inject atropine when [her] heart rate returned to 40.” Id. According to another description from the same 2014 record-whether this describes the same incident is not entirely clear-Roberts “received one chest compression and no medications before recovering.” Id.; see also Id. at 256-57, 259. Roberts reported that her heart had also stopped twice in April of 2011. Id. at 558.

         Notes from Dr. Lo dated September 6, 2013 indicate that Roberts had chronic low blood pressure, swelling of her feet, and some back issues, among other issues. Id. at 401. Those notes do not discuss Roberts's hand or wrist. Id.

         On September 19, 2013, Roberts visited Dr. Darrell Corben, MD for an examination. Id. at 447-453. Dr. Corben's report lists Roberts's “chief complaints” as: (1) “Chronic shortness of breath”; (2) “Chronic low back pain”; and (3) “Right wrist carpal tunnel syndrome.” Id. at 449. Roberts reported to Dr. Corben that she had symptoms related to carpal tunnel syndrome for approximately fifteen years, that she occasionally dropped objects and frequently had “a burning pain sensation in her right wrist and forearm, ” and that she had declined to undergo surgery because it “could potentially worsen her condition.” Id. at 449-50. Roberts exhibited symmetric bilateral grip strength at “5/5.” Id. at 452. Dr. Corben determined that Roberts was “capable of reaching, handling, fingering, and feeling for up to three hours per day as long as provision was made for [her] to take periodic rest breaks as needed in order to mitigate any symptoms related to wrist pain.” Id. at 453.

         Dr. Corben also noted that Roberts was “wearing a right wrist spica splint status post a recent thumb tendon injury” twenty-four hours a day at the time of the examination, but that he considered limitations caused by the splint to be “a self limited state as full recovery is anticipated, ” and that he expected that she would not need the splint “beyond the next few months.” Id. at 450, 451. Separate from Roberts's hand issues, and thus of limited relevance to the outcome of the present motions, Dr. Corben also discussed Roberts's back and heart issues. See Id. at 449-53.

         Roberts had a routine follow-up visit to the Santa Clara Valley Medical Center in January of 2014, where she reported that she would become short of breath walking from her car to the grocery store, and thus needed to park closer to the store than she had in the past. Id. at 470. Notes from that visit to not mention Roberts's hand or wrist. See Id. Notes from another visit in May of 2014 focus on Roberts's back pain and also do not mention her hand or wrist. Id. at 546- 49.

         A report from a July 17, 2014 physical therapy session indicates that Roberts experienced increased pain from standing for more than five or ten minutes, walking more than five minutes, or sitting more than thirty minutes, assessed Roberts as able to stand and walk short distances “with much difficulty, ” and recommended that she use a “cane as needed to avoid aggravating symptoms.” Id. at 551, 553-54. The physical therapist set a goal for Roberts to be able to stand for twenty minutes to cook a meal after eight weeks of therapy. Id. at 554-55. The therapy session does not appear to have been focused on Roberts's hand, but notes in her list of symptoms a “[r]ight hand injury secondary to FOOSH [i.e., fall on outstretched hand]: 2012 - difficulty with gripping/grasping techniques.” Id. at 551.

         At another physical therapy session on August 6, 2014, Roberts reported pain after her previous session at a level of eight out of ten that made it difficult for her to leave the house. Id. at 564. A report from mid-August reports “no significant progress.” Id. at 567. On August 27, 2014, near the end of her course of physical therapy, Roberts had not met the goal of being able to stand for twenty minutes and instead could only stand for five minutes. Id. at 570. Physical therapy reports after Roberts's first session do not discuss her hand. Id. at 516-18, 555-57, 564- 70.

         Notes by Dr. Gina Yukiko Fujikami, MD, from an early September 2014 visit where Roberts's symptoms included lower back pain and right wrist pain, indicate that Roberts's back pain was worsening and Tylenol, physical therapy, and Icy Hot had not helped significantly, but “[h]eat helps a little.” Id. at 510-11. Dr. Fujikami's notes nevertheless called for Roberts to continue with Tylenol, physical therapy, hydrotherapy, and warm compresses. Id. at 510. Dr. Fujikami noted that Roberts had experienced worsening pain and weakness in her right hand since her injury in December of 2012, but did not experience numbness or tingling. Id. at 512, 515. Tinel's test and Phalen's test-used to detect carpal tunnel syndrome-were negative. Id. at 514. Dr. Fujikami ordered an MRI of Roberts's right hand. Id. at 510, 515.

         In records of a telephone conversation with Roberts in October of 2014 regarding Roberts's request for an MRI of her back, Dr. Constance Lo noted that “[s]ince [Roberts] has been told that she may not have surgery by her cardiologist, the MRI would not necessarily change management.” Id. at 526. Roberts told Dr. Lo that a relative who is a doctor encouraged her to have an MRI, and that she also believed she needed it for her Social Security application. Id. Dr. Lo noted that Roberts's back pain had “[d]ramatically gotten worse over [the] last year.” Id.

         Notes by Dr. Peter Gregor, MD dated October 22, 2014 indicate that Roberts was limited by lower back pain and that her gait required use of a cane. Id. at 521. Dr. Gregor did not discuss Roberts's hand or wrist, and his notes appear to focus primarily on Roberts's heart issues. See Id. at 521-25.

         Roberts had MRI imaging of her back and hand taken on February 17, 2015. Id. at 584- 86. The images of her back revealed mild to moderate disc protrusion contacting a nerve root, as well as moderate degenerative changes. Id. at 585. Notes related to the MRI of Roberts's hand indicate that she had experienced pain in her thumb and wrist for two years with neuropathy and discomfort. Id. That MRI revealed “joint space narrowing, subchondral cyst formation, and marginal osteophytes at the first MCP and first CMC joints . . . compatible with severe osteoarthritis.” Id. at 586. The MRI also showed “a cystic structure at the proximal pole of the scaphoid, which may be related to prior injury of the scaphoid ligament, ” but the conclusions note that “this exam is not tailored for this evaluation.” Id. Roberts's “[m]edian and ulnar nerves appear[ed] intact.” Id.

         On February 20, 2015, Dr. Lo called Roberts to discuss the results of her MRIs. Id. at 583. Dr. Lo noted that Roberts had been told she could not have surgery, and recommended “conservative treatment and symptom control for both back and hand.” Id. at 583.

         B. Initial Denial of Application

         Roberts applied for benefits on June 27, 2013, AR at 145, and listed the following impairments on her disability report: (1) “Coronary artery disease, high blood pressure”; (2) “Coronary artery disease”; (3) “Previous myocardial infarction”; and (4) “High blood pressure.” Id. at 162. The disability report did not mention Roberts's hand or wrist. See id.

         The Commissioner initially denied her application in October of 2013, concluding that she was capable of performing her past work as a manager. Id. at 52-62. At this stage of her application, Roberts had relied primarily on her heart condition as the reason for disability. Id. at 57. The decision includes a note that Dr. Corben's restrictions on Roberts's use of her hand did not “appear supported, ” and assessed a more moderate limitation of no more than “frequent” handling and fingering due to carpal tunnel syndrome. Id. at 56, 59, 67, 70. The decision also notes that Roberts stopped working “because she didn't need to work because her [then] husband made good money.” Id. at 57. On reconsideration, the Commissioner once again found Roberts to be not disabled in February of 2014, with a consulting doctor again determining that she could engage in frequent handling with her right hand. Id. at 84.

         Roberts's appeal for an administrative hearing, which she completed in April of 2014, states that she could complete “light chores but it takes 3 times as long to complete.” Id. at 218. The appeal does not specifically mention her hand or wrist. See id.

         C. Administrative Hearing

         Administrative Law Judge Brenton Rogozen (the “ALJ”) held a hearing on March 25, 2015. See AR at 34. The ALJ confirmed Roberts's address and birth date, and in response to his questions Roberts testified that she lives with her mother, has a driver's license, and drives, and that she last worked in March of 2002. Id. at 35-36. The ALJ then turned the hearing over to Roberts's attorney at the time, Cynthia Starkey. Id. at 36.

         In response to Starkey's questions, Roberts testified that she completed high school but only attended college for six months and did not complete any courses. Id. From 2000 to 2002, Roberts worked as an assistant manager for AT&T, which required extensive use of her hands for typing for approximately ninety percent of her twelve- to fourteen-hour workdays. Id. at 37-38. Roberts lost her job when AT&T closed her department in 2012, and she was unable to find comparable work. Id. at 38.

         Roberts applied for disability benefits in June of 2013 based primarily on lower back pain but also on impairments related to her hands. Id. She testified that her back pain is constant and rates as an eight or nine on a scale of one to ten. Id. at 39. Roberts cannot stand up for more than five or ten minutes at a time, nor can she sit for long periods. Id. at 38. She is most comfortable when lying down, but even then experiences pain and “can't lay down all the time either, ” and instead needs to sit and stand from time to time. Id. at 39. She lies down for one or two hours in the middle of the day because “it's exhausting being in pain all the time, ” and sometimes she sleeps during the day because her medications cause drowsiness. Id. at 40, 43. The Tylenol that Roberts takes for her pain is not helpful, and she testified that her doctors were not able to operate on her because “when they put [her] under for surgery [her] heart stops, ” for reasons that the doctors have not determined. Id. at 40. At the time of the hearing, Roberts had used a cane for about eight months, even in her home, to relieve some of the pressure on her back. Id. at 41-42.

         Roberts is right-handed and experiences pain from osteoarthritis in her dominant hand from her thumb to her wrist, extending up her arm when she is writing or performing similar activities. Id. at 40-41. Her only treatment is pain medication and a brace prescribed by Dr. Lo, Roberts's primary care doctor. Id. at 41. The brace reduces Roberts's pain by keeping her hand stable and preventing her from accidentally applying pressure to her hand, “which would cause a lot of pain.” Id. At the time of the hearing, Roberts had used the brace for approximately one year. Id. at 42.

         Roberts also experiences chest pain and “a fluttering of [her] heart” where its “beat is off.” Id. She becomes short of breath or is unable to catch her breath sometimes, both with and without exertion. Id. She has difficulty sleeping through the night and has been told that her heart stops during the night. Id. at 43-44.

         Roberts survives on food stamps and general assistance. Id. at 42. She spends her day walking around the house, fixing tea for herself and her mother, and reading.[2] Id. Her sister takes her grocery shopping, and she cooks a “little bit, ” but with difficulty due to her inability to use her right hand without pain. Id. at 43. Cooking and cleaning dishes takes her two to three times as long as it used to, and sometimes her right hand swells up and she needs to ice it. Id. There are some meals that Roberts no longer cooks because they take too long or cause too much pain. Id.

         After Roberts's attorney completed her questions, the ALJ resumed questioning Roberts and asked her to clarify how long she had been living with her mother, to which Roberts responded that she had been living there since January of 2008, rather than 2013 as stated in her application for benefits. Id. at 44-45. Roberts had been married before then and lived in Livermore, California. Id. at 45.

         Roberts testified that MRIs had been taken of her back and hand, and her attorney directed the ALJ to the relevant exhibit in the record. Id. (discussing AR at 586). Roberts's doctors did not explain to her why she had arthritis in her thumb but not in other fingers. Id. The only other test performed on Roberts's hand besides the MRI was an x-ray that Dr. Lo had ordered in May of 2013. Id. at 45-46. When Dr. Lo failed to prescribe medication or take ...


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