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Montez v. Saul

United States District Court, E.D. California

June 25, 2019

RICHARD MONTEZ, Plaintiff,
v.
ANDREW M. SAUL[1], Commissioner of Social Security, Defendant.

          ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND REMANDING THE ACTION PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(G) ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF PLAINTIFF RICHARD MONTEZ AND AGAINST DEFENDANT ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE

         Richard Montez asserts he is entitled to a period of disability, disability insurance benefits, and supplemental security income under Titles II and XVI of the Social Security Act. Plaintiff argues the administrative law judge erred in reviewing the medical record and finding Plaintiff lacked credibility. (Doc. 20) Defendant contends the ALJ applied the proper legal standards and the decision is supported by substantial evidence. (Doc. 21)

         For the reasons set forth below, the Court finds the ALJ erred in evaluating the credibility of Plaintiff's subjective complaints, and the administrative decision is REMANDED for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). ///

         PROCEDURAL HISTORY

         Plaintiff filed his applications for benefits on July 29, 2014, alleging disability beginning January 29, 2014. (Doc. 8-3 at 18) The claims were denied initially on December 12, 2014, and upon reconsideration on January 23, 2015. (Id.; see also Doc. 8-4 at 1) Plaintiff submitted a request for a hearing and testified before an ALJ on October 21, 2016. (Doc. 8-4 at 18, 35) The ALJ determined Plaintiff was not disabled under the Social Security Act, and issued an order denying benefits on January 13, 2017. (Id. at 18-28) The Appeals Council denied Plaintiff's request for review of the ALJ's decision on January 31, 2018. (Id. at 2-5) Therefore, the ALJ's determination became the final decision of the Commissioner of Social Security.

         STANDARD OF REVIEW

         Courts have a limited scope of judicial review over disability claims after a decision by the Commissioner to deny benefits under the Social Security Act. See Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007); see also Hall v. Sec'y of Health, Ed. & Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979) (“Congress has mandated a very limited scope of judicial review of the … decisions granting or denying Social Security disability benefits”). When reviewing findings of fact, such as whether a claimant was disabled, the Court must determine whether the Commissioner's decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The ALJ's determination that the claimant is not disabled must be upheld by the Court if the proper legal standards were applied and the findings are supported by substantial evidence. Sanchez v. Sec'y of Health & Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).

         Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclu sion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The court “must consider the record as a whole, ” including “both the evidence that supports and the evidence that detracts from the Commissioner's conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citations omitted). Where the evidence may “reasonably support either affirming or reversing a decision, ” the court may not substitute its judgment for that of the ALJ. Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).

         DISABILITY BENEFITS

         To qualify for benefits under the Social Security Act, Plaintiff must establish she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if:

physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B). Once a claimant establishes a prima facie case of disability, the burden shifts to the Commissioner to prove the claimant is able to engage in substantial gainful employment. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984).

         ADMINISTRATIVE DETERMINATION

         To achieve uniform decisions, the Commissioner established a sequential five-step process for evaluating a claimant's alleged disability. 20 C.F.R. §§ 404.1520, 416.920 (a)-(f). The process requires the ALJ to determine whether Plaintiff (1) engaged in substantial gainful activity during the period of alleged disability, (2) had medically determinable severe impairments (3) that met or equaled one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether Plaintiff (4) had the residual functional capacity to perform to past relevant work or (5) the ability to perform other work existing in significant numbers at the state and national level. Id. The ALJ must consider testimonial evidence and objective medical evidence. 20 C.F.R. §§ 404.1527, 416.927, 416.929.

         A. Relevant Medical Evidence

         Plaintiff reported he suffered a back injury in January 2014. (Doc. 8-3 at 42) He visited McHenry Medical Office for treatment and reported he was taking Aleve for his low back pain. (Doc. 8-8 at 21) He exhibited a mild reduction in his range of motion and tenderness to palpation in the lumbar and sacral spines. (Id.) Dr. Sophia Mohammad prescribed Ibuprofen for Plaintiff's back pain. (Id. at 21, 23)

         The following week, Plaintiff reported Ibuprofen did not provide any help for his low back pain.

(Doc. 8-8 at 18) Plaintiff exhibited tenderness to palpation throughout his lumbar spine and paraspinal muscles. (Id.) Dr. Mohammad prescribed Baclofen and Tramadol for Plaintiff, and she ordered x-rays of his lumbar spine, sacrum and coccyx. (Id. at 18, 20) Dr. Joseph Higgins reviewed the imaging and found no “apparent fracture or subluxation” in the lumbar spine and “no evidence of sacroiliitis.” (Id. at 27-28)

         On February 19, 2014, Plaintiff reported that his pain was the same, and he found it “difficult to walk at times.” (Doc. 8-8 at 15) He continued to exhibit tenderness, and Dr. Mohammad increased his prescription for Baclofen. (Id. at 15) Dr. Mohammad recommended that Plaintiff receive physical therapy and consider a back brace if there was no improvement. (Id.) She indicated Plaintiff should engage in “physical activity as tolerated, ” and directed him to return in two weeks. (Id.)

         On March 4, 2014, Dr. Mohammad again found Plaintiff had tenderness in his lumbar spine. (Doc. 8-8 at 12) She referred Plaintiff to physical and occupational therapy. (Id.) In addition, she ordered MRIs, which were taken on April 18, 2014. (Id. at 12, 25-26) The MRI of the lumbar spine showed “a relatively large annual tear at the L4-5 level, ” “endplate degenerative changes at ¶ 5-S1, ” and “[m]ild multilevel lumbar spondylosis.” (Id. at 25) The MRI of Plaintiff's sacrum and coccyx showed “[e]ndplate edema and subchondral cystic change within the superior aspect of [the] ¶ 1 [level].” (Id. at 26)

         In May 2014, Plaintiff continued to report “acute back pain.” (Doc. 8-8 at 7) Dr. Mohammad recommended Plaintiff be seen by a neurosurgeon. (Id.) Plaintiff continued to have prescriptions for Tramadol, Baclofen, and Ibuprofen. (Id. at 8)

         Plaintiff returned to Dr. Mohammad in July 2014, at which time he continued to exhibit tenderness in his low back. (Doc. 8-8 at 3) Plaintiff informed Dr. Mohammad he had a consultation scheduled with a neurosurgeon and his medication remained unchanged. (Id. at 3-4)

         Dr. F. Karl Gregorius performed a neurosurgical consultation on September 16, 2014. (Doc. 8-8 at 39) Plaintiff told Dr. Gregorius that his pain was a 5/10, and it remained unchanged with medication. (Id.) Dr. Gregorius determined Plaintiff's range of motion in the lumbar spine was limited to 40 degrees flexion and 20 degrees extension. (Id.) Plaintiff had a negative straight leg raise test. (Id.) Dr. Gregorius concluded Plaintiff was “not [a] surgical candidate” and recommended Plaintiff receive physical therapy for six weeks. (Id.) If Plaintiff did not benefit from the physical therapy, Dr. Gregorius recommended Plaintiff receive a transforaminal epidural injection at the L5-S1 level. (Id.; see also Doc. 8-9 at 36)

         Plaintiff had a follow-up appointment with Dr. Mohammad the following week, at which time she discussed with Plaintiff seeking a second opinion regarding surgery. (Doc. 8-9 at 36) She referred Plaintiff to physical therapy, indicating the referral was “urgent.” (Id.)

         Dr. Ritu Malik performed a consultative examination on November 19, 2014. (Doc. 9-8 at 62) Dr. Malik noted she reviewed Plaintiff's records including the MRIs from April 2014 - showing an annular tear, mild multi-level lumbar spondylosis, and degenerative changes-and notes from the neurosurgery consultation. (Id.) Plaintiff told Dr. Malik that he had constant back pain, for which he took “tramadol three times a week and ibuprofen three times a week.” (Id.) He reported he also had a prescription for baclofen, but he did not take it “because he [did] not like the side effects.” (Id.) Plaintiff described his pain as “about 5/10 without the medication and 2/10 with the medication.” (Id.) Dr. Malik observed that Plaintiff could “sit down, stand up, and change positions without difficulty or hesitation” and “squat and rise without difficulty.” (Id. at 63) She determined Plaintiff exhibited “mild tenderness to palpation in the lower lumbar spine, ” without “muscle spas, crepitus, effusion or deformity.” (Id.) Dr. Malik found Plaintiff had a “full range” of motion in the thoracolumbar spine with flexion, extension, and later flexion, though Plaintiff “report[ed] back pain with extension.” (Id.) Dr. Malik concluded Plaintiff “should be able to sit for at least six hours in an eight hour period” and “stand and/or walk for at least six hours in an eight hour period.” (Id.at 63-64) She opined Plaintiff “may be limited to lifting and carrying 10 pounds frequently and 25 pounds occasionally secondary to pack pain.” (Id. at 64) Further, Dr. Malik determined Plaintiff “may benefit from an even terrain, ” and “[f]requent bending, stooping and crouching may exacerbate his back pain, ” though he could perform these activities “on an occasional basis.” (Id.)

         In November 2014, Plaintiff reported he had not yet started physical therapy, but he was “on [a] waiting list.” (Doc. 8-9 at 33) Dr. Mohammad indicated they would hold off on an epidural injection “for now.” (Id.) At the next appointment, Dr. ...


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