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Baptista v. Commissioner of Social Security

United States District Court, E.D. California

September 23, 2019




         Anna Marie Baptista asserts she is entitled to supplemental security income and disability insurance benefits under Titles II and XVI of the Social Security Act. Plaintiff argues the ALJ erred in evaluating the record and that the matter should be remanded for further proceedings due to new evidence submitted to the Appeals Council. For the reasons set forth below, the Court finds Plaintiff failed to demonstrate good cause for the submission of the additional evidence to the Appeals Council, and the ALJ's decision denying benefits is AFFIRMED.


         On June 12, 2015, Plaintiff filed her applications for benefits, in which she alleged disability beginning December 28, 2014. (See Doc. 7-6 at 12-21) The Social Security Administration denied her applications at the initial level and upon reconsideration. (Doc. 7-5 at 2, 12-16) Plaintiff requested a hearing and testified before an ALJ on July 28, 2017. (Doc. 7-3 at 16, 49) During the hearing, Jeffrey Duarte, Plaintiffs counsel indicated that additional medical records may be submitted, and the ALJ indicated she would hold the record open for ten days. (Doc. 7-3 at 81) Plaintiff submitted additional documents, which the ALJ incorporated into the record. (See Id . at 16, 31) The ALJ determined Plaintiff was not disabled as defined by the Social Security Act and issued an order denying benefits on December 26, 2017. (Doc. 7-3 at 16-27)

         Plaintiff filed a request for review of the decision with the Appeals Council, asserting the ALJ erred in evaluating her credibility and reviewing the medical record. (Doc. 7-5 at 82; Doc. 7-7 at 52-65) At that time, Mr. Duarte indicated there was "no additional evidence or legal argument to submit." (Doc. 7-5 at 82) On March 5, 2018, the Appeals Council issued a notice informing Mr. Duarte:

You may send us a statement about the facts and the law in this case or additional evidence. We consider additional evidence that you show is new, material, and relates to the period on or before the date of the hearing decision. You must also show that there is a reasonable probability that the additional evidence would change the outcome of the decision. You must show good cause for why you missed informing us about or submitting it earlier.

(Doc. 7-3 at 8) The following day, Plaintiff submitted a report by Dr. Joel Renbaum, from an orthopedic evaluation performed on September 19, 2017. (Id. at 32-45)

         The Appeals Council reviewed the new evidence and determined it did "not show a reasonable probability that it would change the outcome of the decision." (Doc. 7-3 at 3) Therefore, the Appeals Council indicated it "did not consider and exhibit this evidence." (Id.) The Appeals Council denied Plaintiffs request for review on April 26, 2018 (id. at 2-5), at which time the ALJ's determination became the final decision of the Commissioner of Social Security.


         District courts have a limited scope of judicial review for disability claims after a decision by the Commissioner to deny benefits under the Social Security Act. 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. See 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 conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole must be considered, because "[t]he court must consider both evidence that supports and evidence that detracts from the ALJ's conclusion." Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).


         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:

his 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). The burden of proof is on a claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). If a claimant establishes a prima facie case of disability, the burden shifts to the Commissioner to prove the claimant is able to engage in other substantial gainful employment. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984).


         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 and objective medical evidence. 20 C.F.R. §§ 404.1527, 416.927.

         A. Medical Evidence and Opinions before the ALJ

         In June 2014, Plaintiff visited Turlock Medical Office, where she was treated by Dr. Mitchell Cohen for low back pain. (Doc. 7-8 at 25) Dr. Cohen noted Plaintiffs medications included Hydrocodone-acetaminophen "up to twice daily as needed for pain, " Loratadine, and Baclofen "as needed for spasms." (Id.)

         Plaintiff returned to Turlock Medical office in September and December 2014, receiving treatment for a sinus infection and headaches. (Doc. 7-8 at 17, 20) She continued to take the medication identified by Dr. Cohen, as well as azithromycin for the sinus infection. (Id. at 18-19, 22)

         In February 2015, Plaintiff again reported having low back pain, after which she underwent an MRI of her lumbar spine on February 20. (Doc. 7-8 at 10, 31-32) Dr. Monica Martinez found "a new disc protrusion/extrusion at L2-L3." (Id. at 32) She determined Plaintiff had "severe facet arthropathy" at L4-L5, L5-6, and L6-S1; spondylolisthesis at L5-L6 and L6-S2; and disc protrusions at L3-L4, L4-L5, and L5-L6. (Id.) Dr. Martinez compared the results of the MRI to one taken in 2010 and concluded each of these conditions was "stable." (Id.)

         Due to reports of neck pain, Plaintiff had radiographs taken on her cervical spine on May 5, 2015. (Doc. 7-8 at 30; Doc. 7-9 at 14) Dr. Ajit Nijjar found "multilevel degenerative disc disease and facet joint arthritic changes [were] present in the cervical spine" with "minimal grade I anterolisthesis at [the] C4-5 and C5-6 levels." (Id.) In addition, Dr. Nijjar determined there was "mild encroachment of the left neural foramen at [the] C3-4 level." (Id.)

         In June 2015, Plaintiff underwent an MRI of her cervical spine. (Doc. 7-8 at 72-73) Dr. Jerry Grigoropoulos determined Plaintiff had "[degenerative 1-2 mm anterolisthesis of C4 on C6 and C5 on C6" and advanced facet arthrosis. (Id. at 73) Dr. Grigoropoulos opined Plaintiff had "moderate left paracentral disc spur complex and uncinate spurring C3-C4 with superimposed facet arthropathy and significant left-sided foraminal encroachment." (Id.) He found "[n]o cord compression or cord edema." (Id.)

         Dr. F. Karl Gregorius performed a neurological consultative examination on June 10, 2015. (Doc. 7-9 at 2) Plaintiff told Dr. Gregorius she had pain in her lumbar spine that radiated down to both hamstrings. (Id.) She said her pain was "4 to 6/10" on average in her lumbar spine and 2/10 in her legs. (Id.) However, her back pain could increase to 9/10 at night when she extended her back. (Id.) Plaintiff reported she could walk about 1 mile; stand for an hour; and "sit through a movie, if she changes position." (Id.) Dr. Gregorius noted Plaintiff was "quite active, " noting she also "goes to Disneyland" and "does gardening." (Id.) Dr. Gregorius observed:

The examination shows that this patient is healthy appearing. The patient can flex the lumbar spine to 80° to 90° and extend to °, she reverses her lumbar curve. She has some moderate pain with extension from the flexed position. She has negative straight leg raising bilaterally at 90°. She has 5/5 strength in her legs. The reflexes are 2 at the patellae and absent at the ankle areas.

(Id.) Dr. Gregorius reviewed the MRI of the lumbar spine and noted it showed "degenerative disc disease at virtually every level of her lumbar spine, " without evidence of nerve root impingement. (Id.) According to Dr. Gregorius, Plaintiff was "getting along quite well with her pain syndrome on minimal amounts of medication." (Id. at 3) Dr. Gregorius informed Plaintiff "the only thing [he] could recommend was possibly an epidural steroid injection to try if her pain worsened or possibly water therapy [could] help her if she could learn to do the water exercises during a physical therapy class and then do the water therapy on her own." (Id.)

         In July 2015, Plaintiff returned to Dr. Cohen with complaints of low back and neck pain. (Doc. 7-8 at 62) Dr. Cohen noted Plaintiff also reported right shoulder pain, which was "associated with numbness, tingling and impaired [range of motion]." (Id.) She stated the pain was "better" with the prescribed nonsteroidal anti-inflammatory drugs, and exercise also helped with her shoulder pain. (Id.) Dr. Cohen found Plaintiff had a decreased range of motion in her neck, and she was able to abduct her shoulder "to greater than 90 degrees with some pain." (Id. at 64) Dr. Cohen noted the MRI findings for Plaintiffs neck were "not completely consistent with symptomology, " and Plaintiff denied a referral for physical therapy, stating she would "do it at home." (Id.) He also indicated Plaintiff should have an x-ray due to her reported shoulder pain. (Id.)

         The following month, Plaintiff reported that "her shoulder [had] gotten better, " and she did not have an x-ray taken. (Doc. 7-8 at 57) Dr. Cohen opined that, though Plaintiff reported her neck pain was "a bit worse, " her condition was stable and unchanged. (Id. at 57, 60)

         Dr. J. Linder reviewed available records and completed a physical residual functional capacity assessment on August 25, 2015. (Doc. 7-4 at 6-7, 14-15) Dr. Linder opined Plaintiff could lift and carry 50 pounds occasionally and 25 pounds frequently, sit about six hours in an eight-hour day, and stand and/or walk about six hours in an eight-hour day. (Id. at 6, 14) Dr. Linder concluded Plaintiff could frequently climb ramps and stairs, stoop, kneel, crouch, and crawl; and occasionally climb ladders, ropes, and scaffolds. (Id. at 7, 15) Dr. Linder opined Plaintiff did not have manipulative or environmental limitations. (Id.)

         In October 2015, Plaintiff reported that she was "hurting everywhere, " and her hands were "locking up." (Doc. 7-8 at 53) Dr. Cohen noted Plaintiff continued to take Loratradine, Hydrocodone-acetaminophen "twice a day as needed for pain, " Baclofen "as needed for spasms, " Acyclovir, and Xopenex "as needed for wheezing." (Id. at 54)

         Dr. Cohen completed a residual functional capacity questionnaire on October 20, 2015. (Doc. 7-11 at 2-5) He noted Plaintiff had been diagnosed with right shoulder pain, neck pain, and low back pain. (Id. at 2) Dr. Cohen opined Plaintiff was stable with her pain medication. (Mat 3) He indicated he was "unable to assess" Plaintiffs ability to sit, stand, walk, or the amount of weight she could lift and carry in a competitive work situation. (Id. at 3-4) He believed Plaintiff should elevate her legs, but indicated it was "unknown" how high she should do so or the percentage of the day elevation was required. (Id. at 4) Dr. Cohen indicated Plaintiff could rarely look down or look up; occasionally turn her head or hold it in a stable position; and rarely twist, stoop, crouch, crawl, and climb. (Id. at 4-5) According to Dr. Cohen, Plaintiff did not have any limitations with reaching, handling, or fingering. (Id. at 5)

         Dr. H. Samplay reviewed the medical record related to Plaintiffs request for reconsideration on January 11, 2016. (Doc. 7-4 at 26) Dr. Samplay noted Plaintiff had "slight restriction of [range of motion] but no evidence of radiculopathy. (Id.) Dr. Samplay also found there were "no additional physical exam findings" in the record "to support any worsening of impairment." (Id.) Therefore, Dr. Samplay affirmed the medium residual functional capacity assessment with postural limitations identified by Dr. Linder at the initial level. (Id.; see also Id . at 25-26)

         Later in January 2016, Plaintiff told Dr. Cohen her "neuropathy [was] acting up." (Doc. 7-8 at 44) Plaintiff also reported that she was exercising regularly, and Dr. Cohen observed she did not appear in "acute distress." (Id. at 45-46) Dr. Cohen opined Plaintiffs neck impairment was "unchanged, " but added a prescription for gabapentin "at night for the pain." (Id. at 47)

         At a follow-up appointment on March 1, 2016, Plaintiff told Dr. Cohen "the gabapentin [was] helping her, " and "[h]er pain control was much better with the addition of gabapentin." (Doc. 7-10 at 41) Dr. Cohen opined Plaintiffs lumbar back pain was improved and stable. (Id. at 43)

         In April 2016, Plaintiff visited Turlock Medical Office for treatment of right hip pain, reporting "she bent over to pick up something about a week [before] and she felt a pop in ... her low back/ right hip." (Doc. 7-10 at 37) Dr. Hardeep Saini observed that Plaintiff walked with a normal gait, sat comfortably, and transferred from a chair to the table without discomfort. (Id. at 39) Dr. Saini found Plaintiff had a full range of motion in her lumbar spine, and her hip range of motion was "good with [a] slight decrease in abduction due to groin pain." (Id.) In addition, Dr. Saini determined Plaintiffs motor strength was 5/5. (Id.)

         In June 2016, Plaintiff told Dr. Cohen that she was exercising regularly, and Dr. Cohen opined the conditions were stable. (Doc. 7-10 at 34, 35) Dr. Cohen also noted he "[a]dvised [Plaintiff] of the THC policy and that she needs to stop." (Id. at 35)

         Plaintiff reported she still had neuropathy down her legs in August 2016, despite taking gabapentin. (Doc. 7-10 at 26) Dr. Cohen directed Plaintiff "to increase the gabapentin to 2 at night." (Id. at 29)

         In October 2016, Plaintiff told Dr. Cohen that "[h]er back and legs still hurt, " though "[h]er legs were better at night... with the increase on the gabapentin." (Doc. 7-10 at 20) Dr. Cohen indicated Plaintiff would continue taking gabapentin for leg pain and refilled the prescriptions for Hydrocodone-acetaminophen and Baclofen to treat Plaintiffs back pain. (Id. at 22-23)

         In January 2017, Plaintiff reported difficulty sleeping and eating after "[h]er sister was diagnosed with lymphoma and a friend [had] melanoma." (Doc. 7-10 at 10) Plaintiff told Dr. Cohen that "[h]er back pain [was] still present." (Id.) Dr. Cohen also noted Plaintiff reported she was not using drugs or alcohol and exercised regularly. (Id. at 11) He prescribed Trazadone for Plaintiff to take "once a day at bedtime for insomnia" and directed Plaintiff to return in two months for a follow-up appointment. (Id. at 13, 14)

         Plaintiff reported that her "neck and back... flared up again and she [was] experiencing paresthesias going into her left arm and both legs" at the follow-up in March 2017. (Doc. 7-10 at 5) She also told Dr. Cohen that gabapentin helped. (Id.) Dr. Cohen determined Plaintiff had a "minimal" positive straight leg raise test, bilaterally. (Id. at 7) Dr. Cohen ordered ...

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