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Londono v. Commissioner of Social Security

United States District Court, E.D. California

May 3, 2018

DIERDRA LONDONO, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

         This matter is before the Court on Plaintiff's complaint for judicial review of an unfavorable decision of the Commissioner of the Social Security Administration regarding her applications for Supplemental Security Income and Social Security Disability Insurance. The parties have consented to entry of final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c) with any appeal to the Court of Appeals for the Ninth Circuit. (ECF Nos. 10, 12).

         At the hearing on May 2, 2018, the Court heard from the parties and, having reviewed the record, administrative transcript, the briefs of the parties, and the applicable law, finds as follows:

         The Administrative Law Judge (“ALJ”) relied heavily on the residual functional capacity conclusions reached by the physicians employed by the State Disability Determination Services. AR at 23. Specifically, the ALJ cited to Exhibit 1A, which is the September 20, 2013 opinion of consultative examiner Dr. Fast, and Exhibit 5A, the January 13, 2014 opinion of Dr. Ikawa. Dr. Ikawa also noted agreement with consultative examiner Nasrabadi, whose opinion was dated January 14, 2014.

         Notably, each of these three doctors rested their decision in part on the lack of medical evidence supporting claimant's allegations. AR at 66 (“Allegations are partially credible, but severity not supported per the medical evidence in file.”); AR at 88 (“Allegations are partially credible, but severity not supported per the medical evidence in the file.”); AR at 98 (“Allegations are partially credible, but severity not supported per the medical evidence in the file.”).

         Following these examinations, but before the ALJ's decision, the claimant went to the emergency room for complaints of neck pain, numbness, and dizziness. AR at 517 (Claimant “presents to the emergency department for evaluation of ongoing neck pain radiating to the left side with new onset of facial numbness and dizziness today. The pt has two degenerative discs in his C-spine. The pt has chronic pain to all extremities.”). A CT scan of Plaintiff's cervical spine revealed “mild to moderate degenerative disc disease with narrowing, greatest posteriorly at ¶ 3-4, C4-5 and C6-7. There is mild generalized disc bulging with some calcification of the dis at ¶ 5-6. There is accompanying facet degenerative change. There is no significant compromise of spinal canal. . . . Mild to moderate multilevel degenerative disc disease. Mild amount disc bulging at ¶ 5-6.” AR at 519.

         Plaintiff received two MRI's following this emergency room visit, both of which were submitted as part of the record. A May 28, 2014 MRI indicated, among other findings, “At C6-C7, there is a moderate central disc protrusion, probably associated with spurring at the posterior disc margin. This is causing central cord compression. . . . A small lesion is seen within the T2 vertebral body, possibly an atypical benign hemangioma. More significant pathology is not excluded.” AR at 524. The MRI dated June 13, 2014, indicated, among other findings, “Multilevel cervical arthropathy and foraminal stenosis which is moderate to severe bilaterally at ¶ 4-C5, right side worse than left. Less severe stenosis noted at ¶ 3-C4, C5-C6 and C6-C7. There is a broad based disc protrusion at ¶ 6-C7 level measuring 3mm. There is a right paracentral C5-C6 disc osteophyte complex measuring to 3mm. . . . No cord compression, canal stenosis or myelopathy.” AR at 527.

         The ALJ considered these MRIs in the following statement:

May 2014 MRI of the neck showed moderate C6-C7 central disc protrusion, possibly associated with spurring at the posterior disc margin, causing some central compression of the thecal sac, but only mild central cord compression. Ex. 15F. No significant abnormalities were seen in the soft tissues of the neck. June 2014 radiology report showed some cervical arthropathy and foraminal stenosis, as well as some disc protrusion, but no cord compression, canal stenosis, or myelopathy. Exh. 16F.

AR at 23.

         It is undisputed that these MRIs were not available to the consulting examiners. Moreover, no doctor provided guidance to the ALJ regarding their meaning. The Commissioner claims that substantial evidence nevertheless supported the ALJ's findings because the MRIs did not alter the consulting examiners' analyses, as adopted by the ALJ, and in any event it was Plaintiff's burden to put forth an opinion supporting disability based on these MRIs. The Commissioner also notes that the ALJ told Plaintiff she could get a note from her doctor about the MRIs. AR at 58 (“What you could do, if you would want to, is ask the doctor if she's able to prepare a letter for you. You can always send that in to us. It doesn't have to be under oath before a notary, or anything like that. The doctor can always give us her opinion of your ability to do full-time work now, and you can send any type of information to us in this type of hearing.”). Plaintiff argues that the ALJ's opinion is not supported by substantial evidence because the consulting examiner's opinions were based on the lack of medical evidence and are not correct in light of this medical evidence. Moreover, Plaintiff argues that the ALJ had a duty to develop the record, especially in light of the fact that Plaintiff was unrepresented.

         The Ninth Circuit has stated that the ALJ has a duty to develop the record as follows:

The ALJ in a social security case has an independent “‘duty to fully and fairly develop the record and to assure that the claimant's interests are considered.' ” Smolen, 80 F.3d at 1288 (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir.1983)). This duty extends to the represented as well as to the unrepresented claimant. Id. When the claimant is unrepresented, however, the ALJ must be especially diligent in exploring for all the relevant facts. Cox v. Califano, 587 F.2d 988, 991 (9th Cir.1978). In this case, Tonapetyan was represented, but by a lay person rather than an attorney. The ALJ's duty to develop the record fully is also heightened where the claimant may be mentally ill and thus unable to protect her own interests. Higbee v. Sullivan, 975 F.2d 558, 562 (9th Cir.1992). Ambiguous evidence, or the ALJ's own finding that the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ's duty to “conduct an appropriate inquiry.” Smolen, 80 F.3d at 1288; Armstrong v. Commissioner of Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cir.1998). The ALJ may discharge this duty in several ways, including: subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record. Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir.1998); Smolen, 80 F.3d at 1288.

Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. ...


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