United States District Court, N.D. California
IRENE M. ROBERTS, Plaintiff,
NANCY A. BERRYHILL, Defendant.
ORDER REGARDING MOTIONS FOR SUMMARY JUDGMENT RE: DKT.
NOS. 23, 26
C. SPERO Chief Magistrate Judge.
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
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
Roberts's Medical Records
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.
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,
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
Initial Denial of Application
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.
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.
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.
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.
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.
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.
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.
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.
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. 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.
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.
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