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Angelica R. v. Saul

United States District Court, C.D. California

October 31, 2019

ANGELICA R., Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER OF REMAND

          CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE

         Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied, and this matter is remanded for further administrative action consistent with this Opinion.

         PROCEEDINGS

         Plaintiff filed a complaint on May 14, 2019, seeking review of the Commissioner's denial of benefits. The parties consented to proceed before a United States Magistrate Judge on June 7, 2019. Plaintiff filed a motion for summary judgment on September 19, 2019. Defendant filed a motion for summary judgment on October 28, 2019. The Court has taken the motions under submission without oral argument. See L.R. 7-15; “Order, ” filed May 16, 2019.

         BACKGROUND

         Plaintiff asserts disability since November 29, 2009, based on allegations of, inter alia, fibromyalgia, herniated discs, anxiety, depression, panic attacks, “ADHD” (attention deficit hyperactivity disorder), and chronic pain in her right hand, wrists, ankles, back, hips, right knee, legs and right foot (Administrative Record (“A.R.”) 37, 46-47, 222, 226, 246, 304). Rheumatologist and Qualified Medical Examiner (“QME”) Dr. Allen I. Salick diagnosed fibromyalgia syndrome based on the 2010 American College of Rheumatology criteria for diagnosis (A.R. 483). Dr. Salick opined that Plaintiff cannot sit for more than 10-15 minutes at a time or stand/walk for more than 30 minutes at a time without pain, has difficulty grasping, gripping, lifting, carrying, twisting, bending, stooping and squatting, and cannot be in an air conditioned room (A.R. 487; see also A.R. 474-75). Other workers compensation treating and examining doctors also found Plaintiff incapable of performing light work. See A.R. 356-57 (chiropractor/QME Henry Kan's opinion); 452-53 (treating orthopedic surgeon Dr. Bal Rajagopalan's opinion); 645-46 (orthopedic surgeon/QME Dr. Daniel M. Silver's opinion); see also A.R. 573 (treating spine surgeon Dr. Sam Bakshian's opinion, which included a 25 pound lifting capacity, but with profound restrictions on standing, walking and other activities).

         An Administrative Law Judge (“ALJ”) reviewed the record and heard testimony from Plaintiff and a vocational expert (A.R. 33-81). The ALJ found that Plaintiff has “severe” degenerative disc disease, lumbar spine arthritis, history of lumbar strain/sprain and anxiety disorder (A.R. 20). However, the ALJ found that Plaintiff's alleged fibromyalgia was not a medically determinable impairment (A.R. 20).[1]

         The ALJ deemed Plaintiff capable of performing a range of light work, limited to: (1) frequent climbing of ramps and stairs; (2) occasional climbing of ladders, ropes and scaffolds; (3) occasional balancing, stooping, kneeling, crouching, crawling and overhead reaching with the right upper extremity; and (4) avoidance of environmental irritants and temperature extremes. The ALJ found that Plaintiff is capable of “performing simple and routine tasks and complex tasks, ” interacting and responding appropriately with supervisors, co-workers and the public, and adjusting to routine changes in the workplace. See A.R. 21-26 (adopting consultative examiners' functional capacity determinations at A.R. 600-01 and 608, which are slightly more restrictive than the State agency physician's residual functional capacity determination on initial review at A.R. 91-92). The ALJ identified certain light jobs Plaintiff assertedly could perform, and, on that basis, denied disability benefits (A.R. 26-27 (adopting vocational expert testimony at A.R. 75-77)). The Appeals Council denied review (A.R. 1-4).

         STANDARD OF REVIEW

         Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see also Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

If the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. But the Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence. Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [administrative] conclusion.

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted).

         DISCUSSION

         Plaintiff contends, inter alia: (1) the ALJ erred in the evaluation of opinions from the workers compensation treating and examining physicians; and (2) the ALJ erred in finding that Plaintiff's alleged fibromyalgia is not a “medically determinable impairment” and in failing to consider limitations from fibromyalgia in assessing Plaintiff's residual functional capacity. The Court agrees.

         I. Summary of the Relevant Medical Record

         As detailed below, several workers compensation physicians treated or evaluated Plaintiff for various medical conditions throughout the period of alleged disability. With one arguable exception (QME Dr. Mitchell U.Silverman, discussed infra at footnote 7), all of the treating and examining physicians who opined regarding Plaintiff's capacity appeared to believe that, in one respect or another, Plaintiff has a lesser functional capacity than the ALJ assessed.[2]

         A. Plaintiff's Injury and Initial Treatment

         Plaintiff suffered a work related injury on November 29, 2009. The record does not contain any provider's notes from Plaintiff's initial treatment immediately following this injury. The Court's summary is gleaned from later providers' treatment notes. Plaintiff was injured while working as a grocery stocker when a pallet fell on her right knee, twisting her right ankle and knocking her back into another pallet, which she held up with her right elbow and wrist while calling for help (A.R. 386). Her employer's doctor examined Plaintiff on December 2, 2009, and in January of 2010 prescribed medication, crutches, a knee brace and physical therapy, and ordered her off work for three weeks to be followed by only “light duty” (i.e., lifting, pushing and pulling up to 25 pounds with use of a splint) (A.R. 387, 539). However, Plaintiff reportedly was fired when she returned to work on December 24, 2009 (A.R. 387).

         B. Plaintiff's Workers Compensation Treatment Records

         1. Dr. Tepper's Records

         In February of 2010, Plaintiff consulted workers compensation treating physician and orthopedic surgeon Dr. Gil Tepper, who prescribed medications and physical therapy and ordered Plaintiff off work for four weeks (A.R. 539). In March of 2010, Dr. Tepper continued Plaintiff's disability for four more weeks (A.R. 538).

         A progress report from Dr. Tepper dated April 20, 2010, states that Plaintiff's disability should continue for four additional weeks (A.R. 326-29). Plaintiff reported that physical therapy helped her have less pain, but her low back/right knee pain persisted (i.e., she complained of constant moderate lumbar spine pain radiating to her right buttock with numbness and tingling in the right foot, intermittent moderate right wrist pain radiating to the fingers with numbness and tingling, constant moderate right knee pain and popping worsened by standing and walking, and intermittent headaches and insomnia (A.R. 326-27). On examination, Plaintiff reportedly had a slow, cautious gait, limited lumbar spine range of motion, positive straight leg raising, positive right Braggard's test, “hypertonicity to lumbar para vertebral muscles, ” limited right knee range of motion, positive right knee McMurray test and right knee medial joint line tenderness (A.R. 327). Dr. Tepper diagnosed sprain/strain in the right ankle, right knee, right wrist and lumbar spine, and headaches and insomnia secondary to injuries, for which Dr. Tepper continued Plaintiff's medications and physical therapy (A.R. 327-28). Dr. Tepper also requested approval for lumbar spine and right knee MRIs to rule out disc protrusion and internal derangement (A.R. 327-28).

         2. Dr. ...


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