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Brown v. Berryhill

United States District Court, C.D. California

May 1, 2018

HELEN J. BROWN, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER OF REMAND

          CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE.

         Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied, and this matter is remanded for further administrative action consistent with this Opinion.

         PROCEEDINGS

         Plaintiff filed a complaint on September 18, 2017, seeking review of the Commissioner's denial of benefits. The parties consented to proceed before a United States Magistrate Judge on November 24, 2017. Plaintiff filed a motion for summary judgment on February 15, 2018. Defendant filed a motion for summary judgment on March 15, 2018. The Court has taken the motions under submission without oral argument. See L.R. 7-15; “Order, ” filed September 21, 2017.

         BACKGROUND

         Plaintiff asserts disability since January 13, 2013, based on, inter alia, cervical spine correction, fibromyalgia, neuropathy, spinal fusion, degenerative disk disease, arthritis, bursitis, fatigue, chronic pain, sciatica, and irritable bowel syndrome (Administrative Record (“A.R.”) 120, 131, 134-35). In May of 2014, treating physician Dr. Frederick Davis stated that Plaintiff had continued pain “not relieved with current treatment” and opined that Plaintiff could not be gainfully employed while she was being treated with the type of pain medication she then was taking (A.R. 1502).

         An Administrative Law Judge (“ALJ”) reviewed the record and heard testimony from Plaintiff and a vocational expert (A.R. 9-17, 22-42). The ALJ found that Plaintiff has “severe” obesity, congenital kyphosis, status post thoracic and upper lumbar fusion, status post laminectomies, lumbar facet arthropathy, thoracic spine degenerative changes, left carpal tunnel syndrome, and fibromyalgia, but retains the residual functional capacity for a limited range of light work. See A.R. 11-12, 16 (giving “significant weight” to state agency physicians' physical residual functional capacity assessments at A.R. 47-48 and 57-58). The ALJ found Plaintiff was capable of performing her past relevant work as a public transit dispatcher, and, on that basis, denied disability benefits (A.R. 17 (adopting vocational expert testimony at A.R. 37-38)).[1]

         In determining Plaintiff's residual functional capacity, the ALJ rejected Plaintiff's subjective complaints as “less than fully consistent with the evidence” (A.R. 13, 16). Plaintiff had testified that her impairments cause her to suffer pain and limitations of allegedly disabling severity.[2] Plaintiff also testified that she could not take her pain medications (which included Morphine and Percocet) and perform the jobs the vocational expert had described. See A.R. 41; see also A.R. 190-91 (Plaintiff's letter to the Appeals Council stating that she could not work while taking Morphine, Oxycodone, and Cyclobenzaprine (Flexeril), and that if she did not take those medications she would not be able to sit and stand).

         The Appeals Council denied review (A.R. 1-3).

         STANDARD OF REVIEW

         Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see also Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

If the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. But the Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence. Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [administrative] conclusion.

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted).

         DISCUSSION

         Plaintiff contends that the ALJ erred in failing to consider specifically Plaintiff's testimony concerning the alleged side effects from Plaintiff's medications. Plaintiff also contends that the ALJ's general rationale for rejecting Plaintiff's testimony does not apply in her case. See Plaintiff's Motion, pp. 4-10.

         Defendant defends the ALJ's stated reasons for rejecting Plaintiff's testimony, and argues that Plaintiff never specifically identified any of the side effects she experienced or reported any side effects to her doctors or to the Administration. See Defendant's Motion, pp. 2-10; see also, e.g., A.R. 155, 163 (“Disability Report -Appeal” forms wherein Plaintiff listed her medications but noted no side effects).

         I. Summary of the Medical Record

         In August of 2012, Plaintiff presented for a rheumatology consultation for allegedly ongoing issues with back and hand pain (A.R. 204). Plaintiff had been diagnosed with, inter alia, chronic low back pain, joint pain, fibromyalgia, and neuropathy (A.R. 194, 204-05). Plaintiff was taking Flexeril, two to three Norco a day, and Nortriptyline at night for pain (A.R. 194-95, 204-06, 226, 640). Plaintiff had been given epidural corticosteroid injections to relieve sciatica pain (A.R. 205). On examination, Plaintiff reportedly had tenderness but good range of motion in her shoulders, elbows, wrists, hips, knees, and ankles, 14/18 positive fibromyalgia tender points, and likely osteoarthritis (A.R. 206-08).[3] She was assessed with chronic back pain, congenital kyphosis, fibromyalgia, and joint pain (A.R. 208, 224-25).

         In November of 2012, Plaintiff returned to her primary care physician complaining of moderately severe low back pain for two to three days in one location radiating to the buttock (A.R. 268). Her doctor gave her a shot of Toradol and prescribed Relafen and a course of Prednisone (A.R. 269-71). Plaintiff declined a physical therapy referral (A.R. 269). Plaintiff returned in December of 2012 complaining of continued pain in the same location (A.R. 276-78). On examination, Plaintiff reportedly had decreased range of motion, tenderness, pain, spasm, and an abnormal straight leg raise test (A.R. 277-78). She was assessed with low back pain and sciatica and given a Dilaudid injection (A.R. 278). When Plaintiff returned with continued complaints of low back pain in January of 2013, she was referred for physical therapy (A.R. 287-89).

         Dr. Davis began treating Plaintiff for her pain in January of 2013 (A.R. 314-19). Plaintiff initially complained of midline lumbo-sacral pain, numbness and tingling in her feet and bursitis, and reported that she had undergone surgery for excessive kyphosis and had hardware removal in 2000 (A.R. 315). On examination, Plaintiff reportedly had limited range of motion in the lumbar spine causing spasm, an abnormal antalgic gait, and tenderness to palpation (A.R. 316-17). Dr. Davis reviewed imaging of Plaintiff's lumbar and thoracic spine showing thoracic spine fusion and severe degenerative disk disease at L5/S1 (A.R. 317). Dr. Davis diagnosed Scheurmanns kyphosis and surgical correction with hardware removal, neuropathy, and bursitis (A.R. 317). Dr. Davis referred Plaintiff for acupuncture and physical therapy, and increased Plaintiff's Nortriptyline dose (A.R. 317).

         Plaintiff thereafter attended physical therapy. See, e.g., A.R. 322-41 (physical therapy records). Plaintiff returned to Dr. Davis in April of 2013, reporting that she did not have much benefit from physical therapy but did have some improvement with acupuncture (A.R. 345). She also stated that Norco and Flexeril were not helping with her pain (A.R. 345). Her range of motion reportedly was “within functional limits” (A.R. 345). Dr. Davis assessed symptoms consistent with bilateral carpal tunnel syndrome (“CTS (B)”), ordered nerve conduction studies (“NCS”) and more acupuncture, as well as wrist splints to be worn at night (A.R. 345-46).[4]

         Later in April of 2013, Plaintiff presented to another doctor for complaints of right hip, left shoulder, and left elbow pain following a car accident (A.R. 365-69, 373-78). She was assessed with an elbow sprain, hip pain, shoulder strain, and chronic back pain (A.R. 366).[5]In May of 2013, Plaintiff reported low back pain with tingling in her hands, pain shooting down her right leg, and some right side tingling (A.R. 384). On examination, she reportedly had tenderness but normal ...


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