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Fox v. Commissioner of Social Security

United States District Court, E.D. California

December 10, 2019

LAURA FOX, Plaintiff,




         Laura Fox (“Plaintiff” or “Fox”), proceeding in this action through Brittany L. Keenaas as successor in interest, [1] seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for disability benefits pursuant to the Social Security Act. The matter was referred to a United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

         On November 21, 2016, Plaintiff passed away at the age of fifty-three (53) from a post cerebrovascular accident with cerebral edema. (AR 353.) Prior to her passing, Plaintiff suffered from degenerative disc disease of the lumbar spine and amphetamine abuse. For the reasons set forth below, the Court recommends that Plaintiff's Social Security appeal be granted, and that this action be remanded for further administrative proceedings consistent with this findings and recommendations.



         A. Procedural History

         On April 13, 2015, Plaintiff filed a Title II application for a period of disability and disability insurance benefits. (AR 184-186, 187-193.) Plaintiff alleged disability beginning on March 1, 2015. (AR 187.) Plaintiff's application was initially denied on August 10, 2015, and denied upon reconsideration on September 18, 2015. (AR 81-86, 89-94.) Plaintiff requested and was scheduled to appear for a hearing before Administrative Law Judge Lisa Lunsford (the “ALJ”). (AR 95-96, 97-111.) Plaintiff passed away prior to the scheduled hearing, and Plaintiff's daughter Brittany L. Keena substituted in as a surviving party. (AR 112.) Ms. Keena appeared and testified before the ALJ via videoconference at a hearing conducted on November 27, 2017. (AR 29-59.) On January 10, 2018, the ALJ issued a decision finding Plaintiff was not disabled prior to November 17, 2016, but became disabled on that date with a period of disability continuing until her death on November 21, 2016. (AR 12-28.) On December 4, 2018, the Appeals Council denied Plaintiff's request for review. (AR 1-6.)

         Plaintiff filed the instant action with this Court on February 2, 2019. (ECF No. 1.) On October 2, 2019, Plaintiff filed a motion for summary judgment in support of remand. (ECF No. 27.) Defendant filed a brief in opposition on October 23, 2019. (ECF No. 28.) On November 1, 2019, Plaintiff filed a reply brief. (ECF No. 29.)

         B. Summary of the Medical Evidence and Agency Opinions in the Record

         The earliest medical evidence in the record is from Plaintiff's visit to Adventist Health on March 2, 2015, when she presented complaining of tingling from the waist level downward occurring for one week, stated there was no recent injury, and denied back pain. (AR 330.) Plaintiff complained of weakness in the legs and trouble walking, but reported no neck or back pain, and reported she had never experienced this before. (AR 330.) Plaintiff reported daily use of liquor and tobacco, and had a history of methamphetamine use though she reported stopping for a while, but admitted use the day prior on her birthday. (Id.) Plaintiff reported running out of insurance a few years prior and stated that was when she stopped taking her thyroid medication. (Id.) Current medications included aspirin and tramadol. (AR 331.) The musculoskeletal exam showed antalgic gait, and the neurologic exam showed normal deep tendon reflexes and difficulty with heel and toe walk due to decreased sensation in both lower extremities, though Plaintiff was able to extend the great toes bilaterally. (Id.) Plaintiff was discharged with instructions to go to the hospital for further evaluation and testing. (AR 329.)

         Per the discharge instructions, on the same day, March 2, 2015, Plaintiff went to the St. Agnes Hospital complaining of back pain and numbness, tingling, and weakness in the lower legs lasting one week, and a pain score of four (4) in addition to another pain score of three (3) on another assessment. (AR 270-276.) Plaintiff was out of her hypothyroid medication and had not taken the medication for two years. (AR 277, 282.) The nurse practitioner (“NP”) wrote “[n]o back pain” under history of illness and under musculoskeletal symptoms, but noted numbness in the bilateral extremities, and Plaintiff's reporting of a floating feeling when standing up. (AR 277.) The musculoskeletal exam showed normal range of motion, normal strength, and found Plaintiff was ambulatory. (AR 278.) The neurological exam found normal steady gait. (Id.) An examination of the back showed no midline tenderness, and 5/5 strength on bilateral upper and lower extremities. (Id.) Plaintiff reported alcohol, tobacco, and amphetamine use. (Id.) Plaintiff was diagnosed with amphetamine abuse, a urinary tract infection, and paresthesia. (AR 280.) Plaintiff was prescribed the pain medication gabapentin, levothyroxine for hypothyroidism, a medication for the infection, as wells as recommended to take aspirin. (Id.)

         Plaintiff again visited Adventist Health on March 5, 2015, for follow-up after the hospital visit. (AR 325-26.) Plaintiff informed the NP that she had previously been a patient at the clinic several years ago but lost her insurance and didn't have money for healthcare; that she had symptoms for two weeks; denied injury; was willing to have x-rays of the lower back as well as physical therapy; was aware she will have labs in eight to ten weeks to evaluate the effectiveness of thyroid medication; and was also aware if her symptoms worsened she would need to be evaluated again in an emergency room. (AR 326.) Current medications were listed as aspirin, gabapentin, levothyroxine, and nitrofurantoin. (AR 327.) Hypothyroid, liver damage, and numbness/tingling in the legs was confirmed. (Id.) A musculoskeletal exam showed normal active range of motion of the lumbar spine, and “NVI to lower extremities” is written.[2] (AR 327.) The treatment plan directed Plaintiff to obtain an x-ray of the lumbar spine, attend physical therapy for evaluation, recheck the thyroid in eight to ten weeks, and follow-up in one month. (Id.)

         Two months later, on May 6, 2015, Plaintiff visited Adventist Health with a chief complaint of needing a refill of levothyroxine. (AR 321.) The NP noted Plaintiff had visited two months prior to establish care for paresthesia in the lower extremities, that Plaintiff denied acute injury, denied weakness in the legs, and stated her symptoms persisted or are worsening. (AR 321.) Plaintiff stated she had not had x-rays of the lumbar spine yet but would obtain them after the visit, and stated she had not heard about physical therapy but would call the referral specialist for an update. (AR 321.) Plaintiff stated she had been taking the levothyroxine but ran out of the medication about one month prior. (Id.) Exam notes confirmed hypothyroid, liver damage, and numbness/tingling in both legs. (AR 322.) A musculoskeletal exam showed: decrease range of motion of the lumbar spine; mild lumbar paraspinal muscle tenderness to palpation without obvious deformity, swelling or erythema; pedal pulses intact, strong and equal; and slight decreased sensation to touch. (Id.) The proposed plan was for Plaintiff to obtain a refill of levothyroxine, obtain x-rays, obtain lab tests, check on physical therapy, and to follow up in two months or sooner if there were abnormal x-rays. (Id.)

         On the same date, May 6, 2015, Plaintiff received an x-ray of the lumbar spine. (AR 309.) Dr. Athate found the x-ray showed normal lumbar lordosis, no substantial scoliosis, normal alignment of the vertebrae, unremarkable soft tissues, along with spondylytic changes seen in the lumbar vertebrae with reduced disc space at ¶ 5-S1, and mild retrolisthesis seen in the body of L5 vertebra. (Id.)

         On June 10, 2015, Plaintiff visited Adventist Health with a chief complaint of leg numbness and a bruise to the mid-back, and reported pain at a level seven (7) or eight (8). (AR 318.) Plaintiff stated bending, twisting, and lifting made the symptoms worse, while resting, warmth, and medications improved the symptoms. (Id.) Plaintiff exhibited radicular symptoms to the right lower extremity. (Id.) Plaintiff stated she had not heard about physical therapy, and that she took one Norco daily for pain management. (Id.) Exam notes confirmed chronic radicular lower back pain, hypothyroid, liver damage, and numbness and tingling in both legs. (AR 319.) A musculoskeletal exam showed: active range of motion to the upper spine was limited by pain; no obvious deformity, swelling or erythema; confirmed bruising in the mid to lower back; and that the area was tender to palpation. (Id.) Plaintiff was prescribed Norco once a day for pain and was to follow-up in one month for evaluation and thyroid tests. (Id.)

         On July 2, 2015, Plaintiff visited Adventist Health with chief complaints noted as refill of Norco pain medication, and a pregnancy test. (AR 310.) Current medications were noted as Norco, levothyroxine, and non-prescription aspirin. (Id.) Exam notes confirmed chronic radicular lower back pain, hypothyroid, liver damage, missed period, and numbness and tingling in both legs. (AR 311.) The musculoskeletal exam showed the active range of motion of the lumbar spine was essentially normal with pain at the end range, with tenderness to palpation of lumbar paraspinal muscles. (AR 311.) Plaintiff's Norco prescription was filled, with zero future refills authorized. (AR 312.)

         In August of 2015, state agency physician Deborah Wafer, reviewed Plaintiff's medical records specifically noting the records were limited, appearing to only have the March 2, 2015 treatment records by way of objective medical records. (AR 63-64.) Dr. wafer noted the March 2, 2015 exam record reflected normal exam findings with a discharge diagnosis of acute lower back pain, amphetamine abuse, paresthesia, and urinary tract infection. (AR 63.) Dr. Wafer noted that Plaintiff had not taken hypothyroid medication in two years, and stated “hypothyroidism can cause paresthesias especially when one has not taken medication.” (AR 64.) Dr. Wafer opined that Plaintiff “would resolve her impairments if she took medications, ” and found her allegations partially credible but not supported by the medical record evidence, and the agency denied Plaintiff's application. (AR 64-67, 81-86.)

         Plaintiff's request for reconsideration was denied on September 18, 2015. (AR 89-94.) In reviewing Plaintiff's application for reconsideration, the agency considered the following alleged changes in Plaintiff's condition: (1) Plaintiff's indication that her condition changed around June of 2015 when she began experiencing greater difficulty walking and began taking pain medication; and (2) Plaintiff's claim of a new condition beginning in July of 2015 when she was diagnosed with lumbar radiculopathy and had x-rays showing signs of mild retrolisthesis. (AR 69.) State agency physician J. Frankel reviewed the following medical records: (1) the March 2, 2015 visit to the emergency room; (2) the May 6, 2015 office visit and x-ray results; (3) the June 10, 2015 office visit; and (4) the July 2, 2015 office visit. (AR 72.) Given the new records, including the x-ray results, Dr. Frankel found Plaintiff's claims partially credible and found a medium residual functional capacity determination was appropriate. (AR 73.) Dr. Frankel opined that Plaintiff could stand and walk six hours per day, sit six hours per day, lift and carry up to 50 pounds occasionally and 25 pounds frequently, and limited Plaintiff to stooping frequently. (AR 74-75.) The agency denied Plaintiff's application for reconsideration finding Plaintiff not disabled. (AR 76-78, 89-94.)

         On November 20, 2015, Plaintiff presented to Clinica Sierra Vista for back care treatment following a change in residence. (AR 482.) On February 1, 2016, Plaintiff followed up for treatment and Plaintiff's doctor increased her Meloxicam dosage and added Gabapentin. (AR 465.) Plaintiff's straight-leg raising test was negative. (Id.) On February 15, 2016, Plaintiff again had a negative straight-leg raising test, and a CT scan was requested. (AR 466-68.) On February 22, 2016, Plaintiff had a follow-up to review lab results and presented with antalgic gait and was diagnosed with vitamin D deficiency, hypothyroid, lower back pain, and lumbar radiculopathy/paresthesia. (AR 471.)

         On March 8, 2016, Plaintiff received a CT scan of the lumbar spine. (AR 439.) The scan showed: (1) mild leftward scoliosis associated with disc desiccation and advanced disc degenerations at ¶ 11-12, T12-L1, L1-L2, L2-L3, and L5-S1; (2) mild disc bulges at ¶ 3-L4 and L4-L5; (3) no fractures or lytic or blastic metastatic lesions, with anterior osteophytes visible; and (4) unremarkable paravertebral soft tissues. (AR 440.) On March 21, 2016, Plaintiff was referred to an orthopedist for further evaluation and treatment of her lower back pain. (AR 474.)

         On June 15, 2016, Plaintiff visited orthopedist Dr. Wahba. (AR 475.) Plaintiff stated she had been experiencing back pain for many years that was slowly getting worse, and that a year and a half prior she had developed numbness and tingling in the bilateral legs. (AR 475-478.) Plaintiff complained that the pain was generally across the entire lower back area, was at a level seven (7), and was constant regardless of position or activity level with nothing making it feel better. (AR 475.) The physical exam showed Plaintiff had steady gait, had normal posture, was able to perform both a heel walk and a tandem walk, had tenderness in the midline spine, had normal range of motion in the hips, had normal 5/5 strength in all areas of the lower extremity motor exam, had normal sensation in her legs apart from decreased sensation that did not correspond to dermatomal patterns, and had pain with deep flexion in the lumbar spine. (AR 477-478.) Plaintiff received x-rays of the lumbar spine which showed a 14-degree scoliosis from L2-L4 apex south 3-4, severe degenerative disc disease at ¶ 5-S1, as well as moderate degenerative disc disease at ¶ 12-L3. (AR 478.) Dr. Wahba reviewed the March 8, 2016 CT scan which showed multilevel moderate to severe spondylosis with moderate degenerative disc disease at ¶ 12-L1, L1-2, and L2-3, as well as severe degenerative disc disease at ¶ 5-S1 with foraminal stenosis bilaterally greater on the right than on the left. (AR 478.) Based on the symptoms exhibited with the lower extremities, Dr. Wahba recommended an MRI to determine if there is any focal stenosis, noting “[h]owever, given the diffuse pattern of her complaints I believe it's unlikely that this will end up being a clear spinal ideology [and] [i]f her MRI does not clearly correlate with this atypical pattern it may be valuable to get a formal neurology consultation as well to evaluate for non-spine related neuropathies or other conditions.” (AR 478.)

         On June 24, 2016, Plaintiff received an MRI of the lumbar spine. (AR 441.) The MRI showed: (1) degenerative changes most marked at ¶ 5-S1, with a mild canal, and severe right and moderate to severe left-sided foraminal stenosis; (2) mild to moderate canal and bilateral foraminal stenosis at ¶ 3-L4; (3) mild canal stenosis and mild to moderate bilateral foraminal stenosis at ¶ 12-L1, L1-2, L2-3, and L4-5; (4) mild canal stenosis with no compression upon the underlying thoracic spinal cord at ¶ 10-11 and T11-12; and (5) an otherwise negative MRI scan of the lumbar spine. (AR 442.)

         On November 18, 2016, Plaintiff was admitted to a hospital “complaining of left-sided weakness with a history of substance abuse with positive drug screen for amphetamine and opiates, ” and was diagnosed with an altered mental status and a cerebrovascular accident. (AR 343, 353.) On November 21, 2016, Plaintiff passed away and was diagnosed on discharge with “[s]tatus post cerebrovascular accident with cerebral edema, status post craniotomy with herniation and hemorrhage, ” hypothyroidism, and leukocytosis. (Id.)

         C. The Relevant Hearing Testimony

         The daughter of Plaintiff and successor in interest, Ms. Keena, [3] testified at an administrative hearing via video on November 27, 2017. (AR 31.) Counsel Sidney Mickell was present on behalf of Plaintiff. (Id.)

         Counsel confirmed there were no outstanding records that he was aware of and confirmed an alleged disability onset date of March 1, 2015. (AR 33.) Counsel then emphasized that while the Plaintiff passed away from a catastrophic cerebrovascular incident, Plaintiff was disabled prior to this incident due to other physical ailments aside from the stroke that caused her to be disabled. (AR 35.) Counsel also argued that Plaintiff's vocational profile would fall within grid rule 201.14, as disabled with a residual functional capacity for sedentary work. (AR 35.) Ms. Keena testified that she recalled Plaintiff mainly working as a cook, at the Trading Post, and then South Gate Brewing Company. (AR 36.)

         The ALJ then asked the VE what information he may require to clarify any part of the record. (AR 36-37.) The VE stated the descriptions of the jobs showed a lot more preparation, stocking, dishwashing, and other work aside from cooking. (AR 37.) The VE found the definition for “kitchen helper” seemed more inclusive of these types of duties. (Id.) The VE stated he would like to know if Plaintiff was essentially only a cook, or if the other duties were more frequent than the cooking duties. (Id.)

         Counsel then emphasized the job description included moving 25 to 50 pounds of wood for the pizza oven and heavy cooking pots, and the VE responded such work was more consistent with a kitchen helper position. (AR 37.) The ALJ noted other jobs including manager with tasks including stocking, ordering products, customer service, book work, and cleaning the store, along with substantial gainful activity level earnings at a food mart from that time period, and thus the ALJ found three jobs performed as substantial gainful activity. (AR 38.) The VE stated he considered the manager position to be a retail manager because Plaintiff supervised other people and the definition permits the manager to perform the actual work in addition to supervising such work. (AR 38-39.)

         Counsel then examined Ms. Keena. Ms. Keena was not living with Plaintiff in March of 2015, as at that time Plaintiff was living with Ms. Keena's brother's father in Ahwahnee, California. (AR 39.) During that time, Ms. Keena had occasional contact with Plaintiff through phone calls, or maybe a visit for a birthday or Christmas. (Id.) As of March 1, 2015, the alleged onset date, Ms. Keena recalls Plaintiff frequently complaining about health problems such as back pain, numbness or weakness in the legs, cramping or numbness in the hands, and occasional headaches. (AR 39-40.) Ms. Keena recalled that when she was five to ten years old, about fifteen or twenty years prior to the testimony, Plaintiff would have problems with her hands when she would help Ms. Keena with her hair or makeup. (AR 40.) At that time, Ms. Keena also recalled Plaintiff had some lower back pain and when Plaintiff would return home from work she would have to sit because of back pain. (Id.) Plaintiff was not active other than going to work and would always be tired or in back pain. (AR 41.) Ms. Keena also recalled some complaints about headaches at that time, though the complaints were significantly greater in the last three years prior to the hearing. (Id.) Ms. Keena was not aware of the reason why the complaints increased in the past three years. (Id.) During this more recent period of time, Plaintiff would complain about not wanting to walk the dogs because her legs or head hurt, and wouldn't feel like staying up to watch a movie because of a headache. (Id.)

         About a year and a half prior to the hearing, Plaintiff moved closer to Ms. Keena when she moved in with her mother, son, and his family. (AR 41-42.) During this time period, Ms. Keena would usually see Plaintiff at least once a week. (AR 42.) They would not go out but would either sit around the house and watch a movie, or try to play with Plaintiff's grandchild by sitting down and tossing a ball, coloring, or playing computer games. (Id.) During this time, Ms. Keena observed that Plaintiff was always physically limited with everything. (Id.) For example, Plaintiff would need frequent sitting breaks when assisting with cooking. (Id.) Plaintiff would do some quick activities for about twenty minutes and then need to take a break for about twenty or thirty minutes. (AR 43.) This level of limitation was in contrast to how Plaintiff acted when Ms. Keena was a teenager and Plaintiff would do things such as going to Magic Mountain theme park, but stopped doing that five years ago because she could not walk that much and was afraid to go on the rides. (Id.) After moving back in the area Plaintiff did not leave the house much but would occasionally go to a friend's house, however, those visits would involve a lot of sitting and just hanging out, and Plaintiff would get to the friend's house by getting a ride from somebody else. (Id.)

         Plaintiff told Ms. Keena that she stopped working because she couldn't stand as long as she needed to at work anymore. (AR 43-44.) At this time, Plaintiff said she would have to lay down and take a nap because her head hurt or couldn't feel her legs, so she couldn't go on walks or be more active with Ms. Keena. (AR 44.) Ms. Keena said Plaintiff would comment on her legs often, and after sitting for a time, if she tried to get up she would have to sit right back down because she couldn't feel her legs. (AR 44.) Plaintiff was wobbly when standing up, would take her time, and brace herself on nearby objects. (Id.) Ms. Keena did not observe Plaintiff using a cane or device to assist in ambulation. (AR 45.) Ms. Keena was not aware of any other issues affecting Plaintiff other than the pain in the legs, back, hands, and the headaches. (AR 46-47.)

         Ms. Keena stated that Plaintiff would sometimes lay in bed napping almost all day, or other parts of the day she would do things like helping Ms. Keena's grandmother in cleaning the bathroom or parts of the house after taking sit breaks, and then she would go take a nap for a couple hours. (AR 45.) Plaintiff would nap all day about twice a week. (Id.) The farthest that Ms. Keena saw Plaintiff walk in the last year of her life was to the mailbox and back, about three houses down. (Id.) Ms. Keena saw Plaintiff occasionally drive during the last year to the store or to a friend's house, only about once a week, as Ms. Keena's grandmother would not give Plaintiff the car too often. (AR 45-46.)

         To Ms. Keena's most recent knowledge, Plaintiff was not taking her medication because she could not afford to do so, but prior to then Plaintiff was always regular with taking medication. (AR 46.) Plaintiff could not afford the medication because she didn't have a job after working at South Gate and only had limited money paid by Ms. Keena's grandmother if she helped around the house, which wasn't enough money for medication from what Ms. Keena observed. (Id.)

         Ms. Keena believes Plaintiff received her GED and was attempting to go back to college. (AR 47.) Plaintiff wanted to be an alcohol and drug counselor, but that did not work out. (Id.)

         The ALJ then began examination of the vocational expert Lawrence Hughes (the “VE”). (AR 47-48.) The VE classified Plaintiff's first two jobs listed as cook, but clarified they really appeared to be a kitchen helper position as discussed previously during the hearing, which is medium work. (AR 48-49.) The other position of retail manager was classified as light work, but heavy as performed according to the records. (AR 49.)

         The ALJ first presented a hypothetical person of the same age, education, and work experience as Plaintiff, who was limited to light work but also limited to frequent stooping. (AR 49.) The VE testified that the person would be able to perform the retail manager job as the job is typically classified. (Id.) For a second hypothetical the ALJ reduced the exertional level to sedentary, again with a limitation of frequent stooping, and the VE testified the person would not be able to do Plaintiff's past work. (Id.) As for transferable skills to the sedentary level, the VE testified that the retail manager position has financial transaction skills and trains other people on the forms of payment. (AR 49-50.) The VE noted a sedentary position as check cashier in the check cashing industry was a position that would fit within Plaintiff's skill set. (AR 50.) The VE stated this was ...

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