Mendez v. Saul

          ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF PLAINTIFF AND AGAINST COMMISSIONER OF SOCIAL SECURITY

          GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff 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.^[1] 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.

         II. Procedural Background

         On 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.

         On 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. AR 19-28.

         The Appeals Council denied review on November 13, 2018. AR 1-4. On January 16, 2019, Plaintiff filed a complaint in this Court. Doc. 1.

         III. Factual Background

         A. Plaintiff's Testimony

         1. Agency Hearing

         Plaintiff (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.

         Most of 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 45.

         Plaintiff 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.

         The ALJ 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.

         Plaintiff 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 46-47.

         Plaintiff 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.

         2. Adult Function Report

         In an 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.

         B. Third-Party Evidence

         In November 2014, an agency interviewer observed that Plaintiff had obvious spinal curvature and pain when walking, standing or sitting. AR 216.

         C. Medical Records

         Plaintiff 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.

         From 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.

         On 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.

AR 309.^[2]

         Dr. 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 306, 308.

         Anna 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 rod^[3] surgery; (2) spina bifida occulta at S1 with spina bifida at S2 and S3 segments;^[4] and, (3) moderately severe rotary scoliosis of the lumbar spine. AR 325.

         On 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.

         Physical 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.

         Imaging 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.

         On 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.

         Drs. 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^[5] 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.

         After 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.

         Malcolm 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.^[6] AR 532.

         From 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. Comrie ...