United States District Court, C.D. California
HELEN J. BROWN, Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Social Security, Defendant.
MEMORANDUM OPINION AND ORDER OF REMAND
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE.
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.
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.
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).
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
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. 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).
Appeals Council denied review (A.R. 1-3).
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.
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
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
1999) (citations and quotations omitted).
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.
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).
Summary of the Medical Record
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). She was assessed with chronic
back pain, congenital kyphosis, fibromyalgia, and joint pain
(A.R. 208, 224-25).
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
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).
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).
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).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 ...