Opinion
No. EDCV 07-1564-RC.
June 9, 2009
OPINION AND ORDER
Plaintiff Sharon F. Spoon-Arendt filed a complaint on December 14, 2007, seeking review of the decision denying her application for disability benefits. On July 7, 2008, the Commissioner answered the complaint, and the parties filed a joint stipulation on August 15, 2008.
BACKGROUND I
On March 3, 2005, plaintiff applied for disability benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. § 423, claiming an inability to work since September 15, 1999, due to back, leg and foot pain. Certified Administrative Record ("A.R.") 65-67, 68. The plaintiff's application was initially denied on April 22, 2005, and was denied again on July 19, 2005, following reconsideration. A.R. 48-59. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge Joseph D. Schloss ("the ALJ") on August 6, 2007. A.R. 46, 313-25. On August 18, 2007, the ALJ issued a decision finding plaintiff is not disabled. A.R. 7-15. The plaintiff appealed this decision to the Appeals Council, which denied review on October 24, 2007. A.R. 3-6.
II
The plaintiff, who was born on August 29, 1944, is currently 64 years old. A.R. 65. She has previously worked as a salesperson. A.R. 77, 321.
On November 13, 2000, William B. Aun, M.D., examined plaintiff, diagnosed her with lumbar radiculopathy, and gave her a lumbar epidural steroid injection. A.R. 101-03. Dr. Aun noted:
Radiculopathy is "disease of the nerve roots." Dorland's Illustrated Medical Dictionary, 1511 (29th ed. 2000).
[plaintiff] has had low back pain and radiating [right leg] pain all the way down to her [right] foot for about 3 months. MRI shows L4-5 disc herniation to the right. Also shown is annulus bulging [at] L3-4 and L4-5.
A.R. 103. Subsequently, on November 21 and December 6, 2000, Dr. Aun gave plaintiff additional lumbar epidural steroid injections. A.R. 98-100.
On January 24, 2001, N. Johnson, M.D., examined plaintiff and noted she had experienced back and right leg pain since August 2000. A.R. 94-95. Dr. Johnson reviewed a lumbar spine MRI taken September 2000, which showed:
a small bulge of disk material at L4-5 on the right side, consistent with [plaintiff's] pain. The central canal is narrowed. The nerve root has egressed the canal above this and is not involved with it. This bulge is directly at the disk space.
A.R. 94. A lumbar myelogram taken January 24, 2001, showed a ruptured disc on the right side at L4-5, where plaintiff had pain. A.R. 86. Dr. Johnson also noted stenosis at multiple levels, particularly L5-S1. A.R. 87. On February 8, 2001, Dr. Johnson performed an intralaminar dissection discectomy and interbody fusion at L4-5 on plaintiff, finding plaintiff had a large ruptured disc and unstable space at L4-5. A.R. 88-89.
Since at least July 2003, plaintiff has received treatment from Allen Felix, M.D., who has diagnosed plaintiff with lumbago, among other conditions. A.R. 106-83, 209-11, 213-308. Lumbar spine x-rays taken August 12, 2003, revealed degenerative changes at L4-L5 and L5-S1. A.R. 188, 305. Lumbar spine x-rays taken September 15, 2003, revealed mild narrowing at L4-L5 and L5-S1 and moderate narrowing at L3-L4, as well as prominent degenerative changes at L4-L5 and disc space expanders at L4-L5. A.R. 180, 302. Cervical spine x-rays taken June 14, 2004, revealed degenerative arthritis and narrowing at C4-C5 and C5-C6 associated with slight stenotic changes in the corresponding neural foramina bilaterally. A.R. 139, 281. Lumbar spine x-rays taken September 29, 2004, demonstrated postoperative changes at the L4-L5 disc space with scattered chronic changes and no evidence of acute disease. A.R. 126, 270.
Lumbago is "pain in the lumbar region." Dorland's Illustrated Medical Dictionary at 1029.
On October 7, 2003, G. Sunny Uppal, M.D., examined plaintiff and diagnosed her with post-lumbar fusion syndrome. A.R. 170. On January 14, 2004, Dr. Uppal diagnosed plaintiff as having pseudoarthrosis, a bulging disc at L3-L4 and collapse of the L5-S1 disc space. A.R. 193. A lumbar myelogram revealed postoperative changes at L4-L5 and L5-S1. A.R. 156-57, 193. On March 16, 2004, Dr. Uppal reexamined plaintiff, and noted a discogram was positive at L5-S1 and plaintiff had a bulging disc at L3-L4. A.R. 192. Dr. Uppal recommended surgery for plaintiff.Id.
Pseudoarthrosis is "a pathological entity characterized by deossification of a weight-bearing long bone, followed by bending and pathological fracture, with inability to form normal callus leading to existence of the `false joint' that gives the condition its name." Dorland's Illustrated Medical Dictionary at 1480-81.
DISCUSSION III
The Court, pursuant to 42 U.S.C. § 405(g), may review a decision denying a claimant disability benefits to determine whether the Commissioner's findings are supported by substantial evidence and whether the Commissioner used the proper legal standards in reaching his decision. Sam v. Astrue, 550 F.3d 808, 809 (9th Cir. 2008) (per curiam); Vasquez v. Astrue, 547 F.3d 1101, 1104 (9th Cir. 2008).The claimant is "disabled" for the purpose of receiving benefits under the Act if she is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). Here, plaintiff's disability insured status expired on September 30, 2000, A.R. 12, and she must prove she was either permanently disabled or subject to a condition which became so severe as to disable her prior to that date. Lingenfelter v. Astrue, 504 F.3d 1028, 1033-34 (9th Cir. 2007); Greger v. Barnhart, 464 F.3d 968, 970 (9th Cir. 2006).
The Commissioner has promulgated regulations establishing a five-step sequential evaluation process for the ALJ to follow in a disability case. 20 C.F.R. § 404.1520. In the First Step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment or combination of impairments significantly limiting her from performing basic work activities. 20 C.F.R. § 404.1520(c). If so, in the Third Step, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals the requirements of the Listing of Impairments ("Listing"), 20 C.F.R. § 404, Subpart P, App. 1. 20 C.F.R. § 404.1520(d). If not, in the Fourth Step, the ALJ must determine whether the claimant has sufficient residual functional capacity despite the impairment or various limitations to perform her past work. 20 C.F.R. § 404.1520(f). If not, in Step Five, the burden shifts to the Commissioner to show the claimant can perform other work that exists in significant numbers in the national economy. 20 C.F.R. § 404.1520(g). Applying the five-step sequential evaluation process, the ALJ found plaintiff did not engage in substantial gainful activity between her alleged onset date of September 15, 1999, and her date last insured of September 30, 2000. (Step One). The ALJ then found plaintiff did not have a "severe" impairment prior to September 30, 2000; therefore, she is not disabled. (Step Two).
IV
The Step Two inquiry is "a de minimis screening device to dispose of groundless claims." Smolen, 80 F.3d at 1290; Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). The Supreme Court has recognized that including a severity requirement at Step Two of the sequential evaluation process "increases the efficiency and reliability of the evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found to be disabled even if their age, education, and experience were taken into account." Bowen v. Yuckert, 482 U.S. 137, 153, 107 S. Ct. 2287, 2297, 96 L. Ed. 2d 119 (1987). However, an overly stringent application of the severity requirement violates the Act by denying benefits to claimants who meet the statutory definition of disabled. Corrao v. Shalala, 20 F.3d 943, 949 (9th Cir. 1994).
A severe impairment or combination of impairments within the meaning of Step Two exists when there is more than a minimal effect on an individual's ability to do basic work activities.Webb, 433 F.3d at 686; Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); see also 20 C.F.R. § 404.1521(a) ("An impairment or combination of impairments is not severe if it does not significantly limit [a person's] physical or mental ability to do basic work activities."). Basic work activities are "the abilities and aptitudes necessary to do most jobs," including physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling, as well as the capacity for seeing, hearing and speaking, understanding, carrying out, and remembering simple instructions, use of judgment, responding appropriately to supervision, co-workers and usual work situations, and dealing with changes in a routine work setting. 20 C.F.R. § 404.1521(b); Webb, 433 F.3d at 686. If the claimant meets her burden of demonstrating she suffers from an impairment affecting her ability to perform basic work activities, "the ALJ must find that the impairment is `severe' and move to the next step in the SSA's five-step process." Edlund v. Massanari, 253 F.3d 1152, 1160 (9th Cir. 2001) (emphasis in original); Webb, 433 F.3d at 686.
Here, the ALJ determined at Step Two that plaintiff did not have a severe impairment or combination of impairments prior to September 30, 2000. However, plaintiff contends the ALJ's decision is not supported by substantial evidence because the ALJ failed to consider the opinion of her treating physician, Dr. Johnson. The plaintiff is correct.
The medical opinions of treating physicians are entitled to special weight because the treating physician "is employed to cure and has a greater opportunity to know and observe the patient as an individual." Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). Therefore, the ALJ must provide clear and convincing reasons for rejecting the uncontroverted opinion of a treating physician, Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998), and "[e]ven if [a] treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing `specific and legitimate reasons' supported by substantial evidence in the record." Reddick, 157 F.3d at 725; Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008).
Other than the opinion of the medical expert, Arthur Lorber, M.D., who testified the medical evidence did not show plaintiff had any work-related limitations prior to September 30, 2000, A.R. 318, 320, the ALJ addressed almost none of the medical evidence — especially the medical evidence after September 30, 2000. See A.R. 13-14, 318-20. Yet, "`medical evaluations made after the expiration of a claimant's insured status are relevant to an evaluation of the preexpiration condition.'" Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995) (quoting Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988)); see also Lingenfelter, 504 F.3d at 1033-34 n. 3 ("`[R]eports containing observations made after the period for disability are relevant to assess the claimant's disability.'" (citation omitted)). Here, Dr. Johnson, who performed lumbar spine surgery on plaintiff only a few months after September 30, 2000, reported plaintiff had experienced back and right leg pain since August 2000, and an MRI taken September 2000 revealed a bulging disc at L4-L5 on the right side, consistent with plaintiff's pain. A.R. 94. Because the September 2000 MRI was "not well visualized[,]" on January 24, 2001, Dr. Johnson obtained a lumbar myelogram and CT Scan, which revealed a ruptured disc at L4-L5 on the right side. A.R. 86. Consistent with this, Dr. Aun noted in November 2000 that plaintiff had been experiencing lower back pain and radiating right leg pain down to her foot for approximately three months and an MRI showed L4-L5 disc herniation to the right and annulus bulging at L3-L4 and L4-L5. A.R. 103. Yet, the ALJ did not discuss Dr. Aun's medical records and only briefly mentioned Dr. Johnson, in noting Dr. Lorber "comment[ed] on a treating note from January 24, 2001[,] which made reference to an MRI allegedly performed in September 2000 and which allegedly showed a small bulge of disc material at L4-5 on the right side. . . ." A.R. 14 (emphasis in original). In these circumstances, where plaintiff's back injury obviously predated September 30, 2000, the ALJ's analysis was plainly insufficient, Lingenfelter, 504 F.3d at 1033-34 n. 3, 1038 n. 10;see also SSR 83-20, 1983 WL 31249 at *2-3 ("Medical reports containing descriptions of examinations or treatment of the individual are basic to the determination of the onset of disability. The medical evidence serves as the primary element in the onset determination. Reports from all medical sources (e.g., physicians, hospitals, and government agencies) which bear upon the onset date should be obtained to assist in determining when the impairment(s) became disabling[,]" and a medical advisor who is required to infer onset date must consider these reports in addressing an onset date), and the ALJ's Step Two determination is not supported by substantial evidence. Webb, 433 F.3d at 688;Lesmeister v. Barnhart, 439 F. Supp. 2d 1023, 1029-30 (C.D. Cal. 2006).
The plaintiff's claim that the ALJ did not properly develop the record is without merit. Rather, on December 4, 2006, the ALJ returned 108 pages of illegible medical records to plaintiff's attorney and gave counsel two weeks to provide legible copies. A.R. 311. However, it appears counsel did not do so. A.R. 315-16. Despite this, the ALJ himself subpoenaed 93 pages of these records, id., and at the administrative hearing, plaintiff's attorney was unable to identify any further medical records supporting plaintiff's claim, A.R. 316-17, 320, although neither the 2000 MRI nor Dr. Dewar's records were in evidence.
V
When the Commissioner's decision is not supported by substantial evidence, the Court has authority to affirm, modify, or reverse the Commissioner's decision "with or without remanding the cause for rehearing." 42 U.S.C. § 405(g); McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). "Remand for further administrative proceedings is appropriate if enhancement of the record would be useful." Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Here, remand is appropriate so the ALJ can properly assess the 2000 MRI and other medical evidence to determine whether plaintiff was disabled prior to September 30, 2007.
Having reached this conclusion, it is unnecessary for the Court to address the other claims plaintiff raises, none of which warrant any further relief than granted herein.