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Dias v. Berryhill

United States District Court, N.D. California, Eureka Division

September 25, 2019

DEENA L. DIAS, Plaintiff,


          ROBERT M. ILLMAN, United States Magistrate Judge

         Plaintiff, Deena Dias seeks judicial review of an administrative law judge (“ALJ”) decision denying her application for disability insurance benefits under Title II of the Social Security Act. Plaintiff’s request for review of the ALJ’s unfavorable decision was denied by the Appeals Council, thus, the ALJ’s decision is the “final decision” of the Commissioner of Social Security which this court may review. See 42 U.S.C. §§ 405(g), 1383(c)(3). Both parties have consented to the jurisdiction of a magistrate judge (dkts. 7, 11), and both parties have moved for summary judgment (dkts. 19, 20). For the reasons stated below, the court will grant Plaintiff’s motion for summary judgment, and will deny Defendant’s motion for summary judgment.


         The Commissioner’s findings “as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). A district court has a limited scope of review and can only set aside a denial of benefits if it is not supported by substantial evidence or if it is based on legal error. Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Substantial evidence is “more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. Chater, 108 F.3d 978, 979 (9th Cir. 1997). “In determining whether the Commissioner’s findings are supported by substantial evidence, ” a district court must review the administrative record as a whole, considering “both the evidence that supports and the evidence that detracts from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The Commissioner’s conclusion is upheld where evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).


         On October 10, 2013, Plaintiff filed an application for disability insurance benefits under Title II, alleging disability beginning on June 21, 2009. See Administrative Record “AR” at 15.[1]The claim was denied initially on March 14, 2014, it was denied again upon reconsideration on October 10, 2014, and following a hearing, the ALJ denied the application on March 15, 2017. Id. at 15, 20. The Appeals Council denied Plaintiff’s request for review on March 27, 2018. Id. at 1-3.


         Plaintiff’s application for Title II benefits alleged disability due to spondylolisthesis of the spine, spinal fusion surgery, osteoarthritis in both knees, shattered T12 vertebrae, and chronic pain syndrome. Id. at 18; see also Pl.’s Mot. (dkt. 19) at 9. The ALJ found the following conditions were severe: spondylolisthesis status-post fusion and osteoarthritis affecting both knees. AR at 17. In this court, Plaintiff argues: that the ALJ erred by rejecting Plaintiff’s pain and limiting effects testimony; that the ALJ erred by rejecting lay witness testimony along the same lines; and, that the above-mentioned errors caused the ALJ to err again at Step-5 by asking the Vocational Expert (“VE”) to consider an incomplete and inaccurate hypothetical question pertaining to Plaintiff’s capacity to function in the workplace. See Pl.’s Mot. (dkt. 19) at 7, 13-19. Accordingly, the following is a summary of the portions of the record that are relevant to the resolution of these claims.

         Medical Evidence:

         On June 22, 2009, Plaintiff was transported by air to Santa Rosa Memorial Hospital as a “trauma alert” from the Mendocino Coast Hospital where she was taken following an accident during which, as a passenger, she was thrown from the back of a motorcycle, suffering a series of back and spine injuries. AR at 302. Specifically, the operator of the motorcycle had executed a jump, and when the motorcycle landed Plaintiff was thrown into the air, hitting the ground in a vertical sitting position. Id. at 536. The physical shock of Plaintiff’s impact with the ground was so severe that, among other damage, compression forces caused a “burst fracture” of her T12 vertebra. Id. at 291.[2] Initially, a CT scan of her pelvis, chest, and abdomen showed a compression fracture of the L1 vertebra with 50 percent retropulsion (displacement of the vertebral body into the spinal canal) and narrowing of the canal. Id. at 302. A subsequent MRI scan, however, indicated that the damaged area was slightly further up her spine, at the T12, rather than the L1, vertebra; accordingly, Plaintiff was transferred from trauma services, to the intensive care unit for neurologic checks, cardiac monitoring, pain control, and consultation. Id. at 303. When after a week it became clear that Plaintiff “was not able to progress with her therapies due to pain[, ] Eldan B. Eichbaum, MD, re-examined her, ordered repeat scans of her back, and felt that surgical intervention would be warranted.” Id. Thereafter, on June 29, 2009, Plaintiff underwent the first attempt at remedial surgery in the nature of vertebrectomy (the removal of some or all of the shattered vertebral body of her T12 vertebra such as to decompress the spinal cord and nerves) and a spinal fusion (using an “expandable titanium cage and ventrolateral screw-rod fixation for a burst fracture” to fuse together her T11 and L1 vertebrae such that they would heal into a single, solid bone). Id. at 303, 449, 450. Plaintiff was then returned to the intensive care unit for recovery, and was not discharged for more than three weeks as her physicians found that she “was very slow to mobilize with physical therapy and occupational therapy due to pain.” Id.

         Three months later, Dr. Eichbaum observed that “[s]he has low back pain, but mainly in the lumbosacral junction which radiates up into the mid to upper lumbar region.” Id. at 450. The following month, in November of 2009, Dr. Eichbaum again observed that Plaintiff “has significant pain in the lumbosacral junction.” Id. at 449. In March of the following year, Dr. Eichbaum noted that “[s]he continues to have low back pain, ” and opined two possible causes: (1) “that the majority of her low back pain is probably due to her L5-S1 spondylolisthesis (a slipping of the vertebra), which was probably present prior to her injury and only became symptomatic after her injury”; or, (2) that “[i]t is also possible that the fusion and fixation at the thoracolumbar junction may be putting some stress at the L5-S1 level, exacerbating her symptoms as well.” Id. at 447. In an effort to address Plaintiff’s persistent pain, Dr. Eichbaum referred her for facet block injections into one or more of the small joints located along the sides of the L5-S1 vertebrae. Id.

         One year after her surgery, in June of 2010, Dr. Eichbaum observed that while Plaintiff still had “persistent pain in her low back and lumbosacral junction, ” that she now also had mild pain in the midthoracic spine and leg pain. Id. at 446. At this point, Dr. Eichbaum opined that Plaintiff’s “severe back pain and intermittent leg pain” would eventually necessitate further surgery in the nature of an “L5-S1 anterior posterior fusion due to her grade I-II L5-S1 spondylolisthesis.” Id. Fifteen months after her surgery, in September of 2010, Dr. Eichbaum noted that Plaintiff “continues to have significant back pain in the lumbosacral junction with leg pain posterior and laterally.” Id. at 444. Approximately, two years after her surgery, Dr. Eichbaum noted in May of 2011 that Plaintiff still had persistent low back pain compounded by the L5-S1 spondylolisthesis, and that while working on resubmitting the surgery request to Medi-Cal for approval, Plaintiff would undergo an EMG and a nerve conduction study at UC Davis. Id. at 443.

         In October of 2011, Dr. Eichbaum confirmed that because Plaintiff continued to suffer from “progressive back and leg pain, ” and having “failed nonoperative modalities, ” Plaintiff should indeed undergo a second surgery. Id. at 289-96. Having lived with chronic and progressively worsening pain for more than two years, and even when faced with the most dire of warnings about the risks[3] associated with such an operation, Plaintiff nevertheless chose to proceed. Id. at 291-92. Accordingly, Plaintiff underwent the second operation on October 31, 2011, where Dr. Eichbaum first performed a laminectomy (enlarging the spinal canal) on Plaintiff’s L5 and S1 vertebrae, as well as a facetectomy (involving a decompression of a spinal nerve root) on the L5 vertebra; Dr. Eichbaum then fused Plaintiff’s L5 and S1 vertebrae together on the post-lateral side by “using spinous process laminar autograft bone, allograft bone chips, and calcium triphosphate putty, ” and finally, Plaintiff’s L5 and S1 vertebrae were fixed together on the posterior side by using a 45mm rod, a number of screws, and an assortment of other hardware. Id. at 294. Two weeks later, after having her surgical staples removed, Diane L. Harris, M.D., treated Plaintiff for persisting back pain and increased dosages of her previously prescribed pain medications in the form of Methadone and Norco. Id. at 388.

         In June of 2012, Plaintiff was treated for continuing pain by her primary care providers at the North Coast Family Health Center; and, as reflected in the records kept by Sharon Hunter, F.N.P., Plaintiff was assessed with chronic pain syndrome and muscle spasms, for which FNP Hunter decided to “put her back on her methadone at 10 mg three per day, ” as well as Norco and muscle relaxants, noting that “[s]he may need to take more until the methadone is therapeutic.” Id. at 387. The following month, FNP Hunter observed that Plaintiff still had persistent pain, which was addressed by increasing her methadone dose from 30mg to 40mg per day, while decreasing her Norco dosage from 40mg to 20mg per day. Id. at 386. In September of 2012, FNP Hunter noted that Plaintiff’s chronic pain had not diminished, necessitating continuing her at the same levels of pain medications, while adding other medications for her pain-induced insomnia, as well as a prescription for a high dose of Motrin for joint discomfort and stiffness. Id. at 385. Thereafter, under the supervision of Benjamin Graham, M.D., FNP Hunter treated Plaintiff again in October of 2012, noting persisting back pain and leg cramps; once again, Plaintiff was continued on her pain medications with refills for the following three months until her next appointment in February of 2013. Id. at 384. During the February 2013 examination, FNP Hunter observed that the chronic pain persisted, while the leg cramps had improved, and Plaintiff was continued on the same regimen of pain medicine for another two months. Id. at 384. Shortly thereafter, in October of 2013, Plaintiff filed her application for disability insurance benefits. Id. at 15. In December of 2013, Plaintiff once again found herself at the Mendocino Coast District Hospital, this time, after being the victim of an assault. Id. at 558. Hospital records reflect that, during a domestic altercation, Plaintiff’s “boyfriend shoved her into a doorjamb and she struck her left back.” Id. Plaintiff suffered bruising to her left arm and right leg, in addition to her back, as a result of the assault; consequently, she was continued on her 40 mg per day Methadone dose, while her dose of Norco was increased to 40 mg per day, as well as being administered a number of other medications for inflammation and insomnia. Id. at 555-56.

         The following month, in January of 2014, Plaintiff underwent a one-time consultative examination by Sanford Brown, M.D., at the request of the state agency. Id. at 536. Dr. Brown’s impression was that Plaintiff suffered from “[c]hronic back and leg pain secondary to a T12 burst fracture, despite two operative interventions.” Id. at 537. Dr. Brown also noted that Plaintiff’s range of motion in the dorsolumbar area was abnormal in that it “demonstrates only 30 degrees of flexion.” Id. While concluding that Plaintiff’s chronic leg and back pain “will impose limitations for 12 or more continuous months, ” Dr. Brown opined that in a typical workday, Plaintiff could: stand or walk for up to 4 hours; sit for up to 4 hours; lift less than 10 pounds occasionally and 10 pounds frequently[4], but without stooping to pick up weight; that Plaintiff should not engage in climbing, balancing, stooping, kneeling, crouching, and crawling; and, that there are no limitations on Plaintiff’s ability to reach, handle, finger, or feel things. Id. at 537-38. A few weeks later, in February of 2014, FNP Hunter again assessed Plaintiff as suffering from continuing chronic back pain that was prone to exacerbations coupled with tenderness over the “expansion device” that was placed where her T14 vertebra used to be; specifically, FNP Hunter noted that Plaintiff continued to experience chronic pain in her lumbosacral spine as well as in her thoracic spine. Id. at 550, 552. In May of 2014, FNP Hunter described Plaintiff as still suffering from chronic pain and an inability to be active or to do most household chores. Id. at 546.

         Thereafter, between June of 2014, and the hearing before the ALJ in August of 2016, Plaintiff was seen by her primary care providers at the North Coast Family Health Center and treated with high dosages of opiates for her chronic pain at least twenty times, essentially, every other month; during this period Plaintiff was consistently assessed as suffering from chronic pain syndrome, chronic back pain, pain in both knees, insomnia, decreased activity due to the pain, and it was consistently noted that her pain was aggravated by daily activities and that it was abated by lying down and taking pain medication. See id. at 572, 568, 584, 587, 663, 592, 597, 602, 606-09, 611, 616, 619, 621, 624, 626, 628, 631, 634, 638, 641, 644, 649, 653, 657-58, 659. During this period, FNP Hunter described Plaintiff’s “burning, deep and diffuse” back pain as occurring persistently in the middle and lower back, and such that would be exacerbated by bending forward, bending over, or during a twisting movement, and that Plaintiff’s “[s]ymptoms are aggravated by ascending stairs, bending, coughing, lifting and pushing.” Id. at 597. Additionally, diagnostic imaging performed on Plaintiff’s knees in January of 2015 showed moderate osteoarthritis in Plaintiff’s left knee at the patellofemoral joint (id. at 663), and a MRI image of her lumbar spine taken in 2016 showed the following abnormalities: grade-1 spondylolysthesis at the L5-S1 vertebrae; broad-based disc protrusion into the L3-L4 disc space causing a “moderate narrowing of the left L3 neural foramen”; and, moderate degenerative arthritis in the facet joint at the L4-L5 vertebrae. Id. at 657-87.

         Lastly, in 2015 Plaintiff’s primary care treatment providers formed the opinion that one or both of Plaintiff’s surgical operations of the prior six years had been unsuccessful. On September 4, 2015, Michael Yang, M.D., examined Plaintiff and observed that her “[s]ymptoms are aggravated by changing positions, daily activities, cold weather and sudden movement . . . and that the [s]ymptoms are relieved by lying down and [taking] pain meds/drugs.” Id. at 606, 610. Noting Plaintiff’s 6-year history of grappling with chronic pain since her accident, Dr. Yang assessed Plaintiff as also suffering from lumbar radiculopathy (an irritation or compression of the spinal nerve roots), back pain, and from “lumbar failed back surgery syndrome.” Id. at 609. Observing that Plaintiff experiences “[l]ower back pain on flexion to 30 degrees, ” Dr. Yang added that a review of Plaintiff’s CT scan from 2013 showed a number of “post-operative changes at ¶ 5/S1 from laminectomy, discectomy, and A/P fusion.” Id. Consequently, he scheduled Plaintiff for further pain treatment in the form of a “bilateral L5/S1 transforaminal epidural steroid injection, ” and further pain management with medication. Id. The following month, Dr. Yang’s colleague at the North Coast Family Health Center, Jason Pope, M.D., concurred in the opinion that Plaintiff’s ...

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