United States District Court, E.D. California
ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF
PLAINTIFF AND AGAINST COMMISSIONER OF SOCIAL
S. AUSTIN UNITED STATES MAGISTRATE JUDGE
Brenda Mendez (“Plaintiff”) seeks judicial review
of a final decision of the Commissioner of Social Security
(“Commissioner” or “Defendant”)
denying her application for supplemental security income
pursuant to Title XVI of the Social Security Act. The matter
is currently before the Court on the parties' briefs
which were submitted without oral argument to the Honorable
Gary S. Austin, United States Magistrate Judge. See
Docs. 13, 14 and 15. Having reviewed the record as a whole,
the Court finds that the ALJ's decision is not supported
by substantial evidence and applicable law.
September 23, 2014, Plaintiff filed an application for
supplemental security income alleging disability beginning
February 26, 2014. AR 19. The Commissioner denied the
application initially on May 18, 2015 and on reconsideration
on November 20, 2015. AR 19.
December 14, 2015, Plaintiff filed a request for a hearing
before an Administrative Law Judge. AR 19. Administrative Law
Judge Joyce Frost-Wolf presided over an administrative
hearing on September 13, 2017. AR 19, 33-60. Plaintiff
appeared and was represented by an attorney. AR 33. On
January 3, 2018, the ALJ denied Plaintiff's application.
Appeals Council denied review on November 13, 2018. AR 1-4.
On January 16, 2019, Plaintiff filed a complaint in this
Court. Doc. 1.
(born April 11, 1985) lived with her two children, aged six
and thirteen. AR 39. Plaintiff's mother lived nearby and
came over to help Plaintiff about three times weekly. AR 43.
Plaintiff's mother took care of tasks that were painful
for Plaintiff such as driving the children to school, doing
dishes and mopping. AR 47.
the time Plaintiff was able to prepare her family's
meals, but she needed to rest if the preparation time
exceeded thirty or forty minutes. AR 43. She could still do
her own grocery shopping as long as her children were
available to unload the car when Plaintiff returned home. AR
briefly pursued vocational training at Heald College but was
unable to finish. AR 40. She worked three days as a packer
and about a month and a half as a part-time field worker. AR
40. She never worked full time. AR 41.
observed Plaintiff repeatedly adjusted her position in her
chair and asked whether Plaintiff was uncomfortable. AR 43.
Plaintiff explained that she had not slept well, had a
thirty-minute car ride to the hearing and now was sitting. AR
44. Both sitting and riding a distance in the car were
painful. AR 44. Plaintiff was unable to stand or sit for too
long a period. AR 44. In the course of a typical day,
Plaintiff alternated sitting and standing with lying down. AR
44-45. Plaintiff estimated that she lay down a total of four
to six hours a day. AR 45. Mornings, especially if the
weather was cold or rainy, were the most painful time and
Plaintiff sometimes stayed in bed late on such mornings. AR
45. About three times weekly Plaintiff experienced headaches
which were sometimes accompanied by dizziness, sweating and
shakiness. AR 50.
was taking four medications and receiving epidurals for her
back pain, which ranged from three to eight on a scale of
ten. AR 41. The medications were not sufficient to relieve
Plaintiff's pain for a full day and they made her dizzy
and sleepy. AR 42. She experienced more pain on the days she
exerted herself. AR 43. Taking her children to school or
going to an appointment caused the most severe pain. AR
had used Fentanyl patches for her pain until her doctor said
that he had prescribed the medication improperly and
Plaintiff had become addicted. AR 49. Plaintiff testified
that in any event, the patches had not fully relieved her
pain and had produced more side effects than the pain
medications she was then using. AR 49.
Adult Function Report
exertion report completed in January 2015, Plaintiff reported
that her mother had recently moved into Plaintiff's home.
AR 218. Because Plaintiff's pain had increased, her
mother was driving the children to school and doing the
household chores. AR 218. It hurt to bend and Plaintiff could
carry no more than ten pounds. AR 219. Plaintiff experienced
pain after twenty minutes of activity. AR 220. She took
fentanyl, ibuprofen and Norco; sometimes wore a brace; and,
used a TENS unit daily. AR 220.
November 2014, an agency interviewer observed that Plaintiff
had obvious spinal curvature and pain when walking, standing
or sitting. AR 216.
has severe congenital scoliosis (spinal curvature). When
Plaintiff was seventeen years old (2002), she had scoliosis
surgery that relieved her pain for several years. By 2013,
however, Plaintiff's pain was increasing.
December 2013 through April 2017, Robert G. Fernandez, M.D.,
treated Plaintiff for severe chronic back pain at Adventist
Medical Center-Reedley. AR 278-305, 331-47, 353-76, 416-34,
446-95, 510-61, 563-72, 628-42. Dr. Fernandez characterized
Plaintiff's pain as difficult to control and noted
typical pain of 8/10. He prescribed ibuprofen, Norco and
Fentanyl for pain relief. On March 10, 2015, Dr. Fernandez
observed uneven gait, tenderness along Plaintiff's spine,
severe decreased range of motion and muscle spasms. AR 451.
November 7, 2014, Plaintiff underwent magnetic resonance
imaging of her lumbar and thoracic spine. AR 306-09.
Reviewing the thoracic images, John Dalle, O.D., identified
(1) significant idiopathic dextroscoliosis of the thoracic
spine with compensatory levoscoliosis of the lumbar spine;
(2) postoperative changes related to metallic vertical rod
fixation; (3) no evidence for thoracic spinal cord contusion
or myelomalacia of the visualized thoracic cord; (4) no
segmentation fusion anomaly of the thoracic spine; (5) no
significant disc bulge or herniation; and, (6) cholelithiasis
(a gall stone). AR 307. Seyed Emamian, M.D., reviewed the
lumbar images. AR 308-09. He observed:
Low-lying conus medullaris at L3 associated with mildly
thickened fatty filum terminate consistent with tethering (?
the cause of patient's scoliosis). Consider surgical
consult, if the patient has not had prior surgery for cord
tethering release. Also noted low positioning of the tip of
the thecal sac as described associated with a small cyst;
consider high resolution CI of sacrum/coccyx including
lumbosacral junction to delineate the bony anatomy.
Emamian also observed lower lumbar facet joint degenerative
changes but no significant discogenic disease, canal or
foraminal stenoses in the visualized lumbar spine. AR 309.
Neither doctor could visualize the portions of
Plaintiff's spine masked by the metallic fusion rods. AR
Miller, M.D., reviewed a CT scan of Plaintiff's lumbar
spine performed December 24, 2014. AR 324-35. Dr. Miller
observed (1) mild acquired canal stenosis at L1 probably
related in part to Plaintiff's earlier Harrington
surgery; (2) spina bifida occulta at S1 with spina bifida at
S2 and S3 segments; and, (3) moderately severe rotary
scoliosis of the lumbar spine. AR 325.
March 30, 2015, Christopher P. Ames, M.D., and Tiffany Pong,
PA, examined Plaintiff at the University of California San
Francisco Medical Center (“UCSF”). AR 396.
Plaintiff reported pain described as 9/10 along her entire
spine and radiating into her shoulders. AR 396.
Plaintiff's pain was worse when staying in one position
for prolonged time periods and better when laying down. AR
399. She had shaking of her upper and lower extremities
bilaterally. AR 396. In addition to back, neck and joint
pain, Plaintiff's reported symptoms included chills,
weight loss, diaphoresis, blurred vision, shortness of
breath, heartburn, nausea, vomiting, abdominal pain,
diarrhea, constipation, urinary urgency, dizziness, tingling
tremors, speech change, weakness, allergies, depression,
memory problems, anxiety and insomnia. AR 397.
examination revealed “[o]bvious scoliosis, right
shoulder sits above left shoulder, With flexion, prominent
right rib hump.” AR 398. Thoracic lumbar range of
motion was 25 per cent limited in all planes, with pain on
extension and side-bending. AR 398. Plaintiff was able to
ambulate normally and to heel, toe and tandem walk without
difficulty. AR 398.
studies revealed intact instrumentation and hardware from
T1/2 to T11/12. AR 398. Thoracic dextroscoliosis was 61
degrees; lumbar compensatory scoliosis was 31 degrees. AR
398. Plaintiff had good balance in the sagittal plane. AR
398. She had fatty filum tethered cord. AR 398, 402.
April 6, 2015, Dr. Ames ordered CT scanning, urodynamic
testing for tethered cord, and facet block injections at T
11-L2 and T1-T3. AR 436-40. Dr. Ames also referred Plaintiff
for pain management to wean her narcotic addiction. AR 438.
Cynthia T. Chin, M.D., and David Landry, M.D., performed a
neuro-interpretation of Plaintiff's scoliosis imaging,
using 2006 and 2014 images for comparison. AR 402. They
observed no significant change in the prominent
dextroscoliosis of Plaintiff's thoracic spine, centered
at T6 and no significant sagittal coronal imbalance. AR 403.
Diffuse generalized osteopenia limited the sensitivity of the
examination. AR 403. Plaintiff's prominent scoliosis also
impaired examination of individual vertebrae. AR 403.
Plaintiff's Harrington instrumentation was intact. AR
403. Spina bifida occulta at S1 was unchanged. AR 403.
Flexion and extension views of the cervical, thoracic and
lumbar spines did not show instability. AR 403.
examining Plaintiff on August 21, 2015, Dr. Fernandez noted
that Plaintiff was experiencing “severe incapacitating
pain which is not even controlled with fentanyl, Norco and
ibuprofen.” AR 518. Plaintiff was unable to be weaned
off of her pain medications “due to her severe
pathology.” AR 518. Plaintiff had developed
difficulties in voiding her bladder. AR 518. She continued to
demonstrate abnormal gait and posture, severe spinal
deformity, asymmetry of spinal muscles, diffuse tenderness,
decreased range of motion, muscular spasm and uneven hip
heights. AR 519.
Arthur Whitaker, M.D., evaluated CT imaging of
Plaintiff's lumbar spine performed on August 31, 2015. AR
532-33. He observed (1) the presence of Harrington rods; (2)
no evident osseous abnormality; (3) multilevel osseous
foraminal stenosis without evidence central canal stenosis;
and, (4) bibasilar lung atelectasis. AR 532.
June 2016 through August 2017, Plaintiff received pain
management services at LAGS Spine and Sportscare. AR 573-620,
624-27, 643-48. LAGS providers characterized Plaintiff's
primary impairments to be right lumbar radiculopathy and
lumbar spondylolisthesis. Medical records indicate abnormal
gait and lumbar range of motion. On January 1, 2017,
Frederick Comrie, M.D., reported normal results from a
bilateral needle EMG and nerve conduction study. AR 617.
There was no evidence of large fiber peripheral neuropathy or
lumbar radiculopathy. AR 617. On February 21, 2017, Dr.