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Delacruz v. Berryhill

United States District Court, N.D. California

June 27, 2019

Allison Valdez Delacruz, Plaintiff,
v.
Nancy A. Berryhill, as Acting Commissioner of Social Security, Defendant.

          ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS. 34, 39

          YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE

         Plaintiff Allison Valdez Delacruz (“Delacruz”) filed this action against defendant Nancy Berryhill as Acting Commissioner of the Social Security Administration (“Commissioner”), seeking judicial review of the Commissioner's finding that she was not disabled under section 216(i) and 223 of the Social Security Act (the “Act”).

         Now pending before the Court are the parties' cross-motions for summary judgment. (Dkt. Nos. 34, 39.) Plaintiff argues that the Administrative Law Judge (“ALJ”) erred by finding that plaintiff did not meet Listing 1.04 on Step Three and that plaintiff had sufficient residual functional capacity to preclude a finding of disability. Based thereon, plaintiff seeks reversal with a finding of disability and an award of benefits.

         Having carefully considered the papers submitted and the administrative record in this case, and for reasons set forth below, defendant's cross-motion is Denied and plaintiff's motion for summary judgment is Granted with instruction that the action be Remanded to the ALJ for further administrative proceedings consistent with this Order.

         I. Background

         A. Procedural History

         On October 7, 2013, plaintiff filed an application for Title II, Social Security Disability Insurance benefits, claiming disability since June 25, 2013. (Dkt. No. 33, Administrative Record (“AR”) 136.)[1] On October 6, 2016, the ALJ held a hearing wherein plaintiff and a vocational examiner testified. (AR 15.) On October 26, 2016, the ALJ issued his determination that plaintiff was not disabled under the Act. (AR 25.) The Appeals Council denied plaintiff's request to review the ALJ's decision on December 22, 2017. (AR 1-6.) The ALJ's decision then became the final decision of the Commissioner. On February 1, 2018, plaintiff initiated the instant action seeking judicial review of the ALJ's decision. (Dkt. No. 1.)

         B. Summary of Evidence in the Underlying Proceedings

         Delacruz was born in 1971 and was approximately 45 years old at the time of the administrative decision herein. (AR 66.) From 1996 to 2013, she worked as a surgical technician. (AR 64.) She applied for disability benefits in 2013 due to impairment arising out of a work-related back injury and degenerative disc disease. (AR 66.)

         1.Delacruz's Testimony

         At the administrative hearing, Delacruz testified she became disabled as of June 25, 2013. (AR 37-38.) Although there was no precipitating event that took place on that day, Delacruz determined that day to be the appropriate onset date because it was her last day of work at the hospital where she was employed. (Id.) As a surgical technician at the hospital, her role had been to ensure that all instruments, supplies, and equipment were prepared for surgical cases, and occasionally, to be present in the operating room in the case of a trauma or emergency. (AR 38.)

         Delacruz testified that, at the time of the administrative hearing, she could perform “light duty” and a job involving sitting, “as long as they allow me a 10 to 15-minute [break] every hour . . . where I can actually stand up.” (AR 39.) However, she testified that working more than two or three hours per day would cause her significant pain. (AR 47.)

         At the time of the hearing, Delacruz was not employed. (AR 52.) Delacruz testified that she was taking a college accounting class which involved attending class twice per week, for two hours per class, during which she takes breaks. (AR 53.)

         2. Vocational Expert's Testimony

         One vocational expert, Ronald Morrell, briefly testified at the ALJ hearing. The ALJ asked Mr. Morrell to define plaintiff's past work as a surgical technician under the U.S. Department of Labor Dictionary of Occupational Titles (“DOT”). (AR 37.) Mr. Morrell testified that under the DOT, Delacruz's job as a surgical technician was considered “light exertionally” and “skilled.” (Id.) He further testified, in response to a question from the ALJ, that surgical technicians had no “transferrable skills to sedentary.” (Id.)

         When asked by the ALJ whether “there [were] sedentary jobs where someone could stand for 10 to 15 minutes hourly, ” Mr. Morrell responded in the affirmative. (AR 39.) Further, the ALJ posed the following hypothetical:

[I]f a person was limited to three hours work, as indicated by Doctor so and so, would there be any jobs in the national economy in substantial numbers?

(AR 45.) Mr. Morrell responded that there were not a substantial number of jobs in the national economy “at three hours per day.” (AR 46.)

         3. Salinas Urgent Care Reports (Sept. 7, 2011 - June 28, 2013)

         Delacruz saw Dr. Steven Schumann and nurse practitioner Deborah Nelson, among others, at Salinas Urgent Care from at least September 7, 2011 through June 28, 2013. A report titled “Doctor's First Report of Occupational Injury or Illness, ” dated September 7, 2011 and completed by N.P. Nelson, reports that Delacruz exhibited a “stiff” gait but “normal tone and muscle strength.” (AR 418-419.) It further describes Delacruz's range of motion as “decreased” with “back flexion, extension, and lateral flexion.” (AR 419.) The report indicates that Delacruz was experiencing lower back pain. (Id.)

         On September 12, 2011, at the request of Dr. Schumann, Delacruz had x-rays taken of her lumbar spine, which showed degenerative disc disease and “moderate 50% degenerative narrowing at the L5-S1 disc space, ” but no evidence of “fracture or spondylolysis.” (AR 360.) Dr. Schumann then began seeing Delacruz for ongoing treatment related to her back. (AR 404- 415.) His records indicate that following an MRI of Delacruz's lumbar spine on October 3, 2011, Dr. Schumann diagnosed Delacruz with lumbar radiculopathy. (AR 411-412.) He subsequently prescribed medications for pain management. (See AR 408.)

         Dr. Schumann's records from 2012 and 2013, when he treated Delacruz on a regular basis, continue to report treatment for lumbar radiculopathy, degeneration of the lumbar disc, and low back pain. For example, a June 26, 2012 report indicate pain aggravated by “bending, squatting, [and] waist bending, ” but only moderate tenderness. (AR 666.) Delacruz was encouraged to get an epidural steroid injection. (AR 667.) Further, Dr. Schumann's records from August 27, 2012 report “5/5 graded muscle strength of the iliopsoas, quadriceps, hip adductors, gluteus maximus and medius, ” but “limited active [range of motion]” and a “[negative] bilateral straight leg raise.” (AR 582.) On December 12, 2012, Dr. Schumann saw Delacruz again. His records report “mild tenderness of the bilateral lumbar paravertebral area” and “[f]orward flexion” of fifteen degrees. (AR 622.) Delacruz was later referred to a psychiatrist for pain management. (AR 690.)

         Dr. Schumann saw Delacruz again from early to mid-2013. Consistent with his earlier reports, Dr. Schmann's records continued to report “degeneration of lumbar disc” and “lumbar radiculopathy” during this period. (See, e.g., AR 458-462, 537.) On June 28, 2013, she was discharged from care. (AR 537.)

         4.Dr. Howard's Report (June 11, 2012)

         On June 11, 2012, Delacruz saw Dr. Mark Howard for a comprehensive orthopedic spine surgical evaluation, based on the recommendation of Delacruz's neurosurgeon, Dr. Gus Halamandaris. Dr. Howard's report indicates limited range of motion and reflexes that are “hyporeflexic but symmetric.” (AR 423.) Dr. Howard also found “L5 hypesthesia.” (Id.) Further, Dr. Howard evaluated Delacruz's x-rays and MRI from 2011. He concluded that her September 2011 x-ray showed “significant disc space narrowing at ¶ 5-S1, ” while her October 2011 MRI showed no “significant neuro compression or stenosis.” (AR 424.) Dr. Howard reported that Delacruz wanted to undergo surgery only as a “last resort, ” and accordingly, he recommended at least one epidural before considering a surgical procedure. (Id.)

         5.Dr. Abeliuk's Report (June 4, 2013 - July 3, 2013)

         On June 4, 2013, Dr. Oscar Abeliuk, an orthopedic surgeon, completed a Panel Qualified Medical Evaluation in the context of Delacruz's workers compensation claim. He provided a supplemental report on July 3, 2013.

         Dr. Abeliuk's June 2013 report indicates that he performed numerous range of motion tests on Delacruz. (AR 440-443.) His report describes “[s]traight leg-raising in the seated and supine positions [was] positive on the right at 60 degrees and negative on the left at 90 degrees.” (AR 444.) An examination of Delacruz's lower extremities showed “right-side radiculopathy.” (Id.) The circumferences of Delacruz's calves and thighs measured slightly smaller on her left than her right. (Id.) Dr. Abeliuk concluded that Delacruz required “work preclusions, ” ...


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