Miranda v. Colvin

Filing 17

ORDER, the final decision of the Commissioner is reversed. The case is remanded for further proceedings. The Clerk of the Court is directed to prepare a judgment and close this case. Signed by Magistrate Judge Leslie A Bowman on 2/5/15. (See attached PDF for complete information.) (KAH)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Carolyn W. Colvin, Acting Commissioner)
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of Social Security,
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Defendant.
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Jorge Rafael Miranda,
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No. CIV 14-2327-TUC-LAB
ORDER

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The plaintiff filed this action for review of the final decision of the Commissioner for
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Social Security pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3).
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The Magistrate Judge presides over this case pursuant to 28 U.S.C. § 636(c) having
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received the written consent of both parties. See FED.R.CIV.P. 73; (Doc. 10)
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The court finds the final decision of the Commissioner must be reversed. The ALJ’s
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finding at step two of the disability analysis that Miranda’s shoulder impairment and back
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impairment are not “severe” is not supported by substantial evidence. See Smolen v. Chater,
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80 F.3d 1273, 1279 (9th Cir. 1996). The case will be remanded for further proceedings.

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PROCEDURAL HISTORY
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Miranda filed his application for disability insurance benefits and supplemental security
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income on July 6, 2012. (Tr. 19) He alleged disability beginning on April 30, 2012, due to left
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shoulder injury, ruptured shoulder tendon, arthritis, osteoporosis, high blood pressure,
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cholesterol, acid reflux, and diabetes. (Tr. 19, 166) His claim was denied initially (Tr. 80-87)

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and upon reconsideration (Tr. 88-94). Miranda requested review and appeared with counsel at

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a hearing before Administrative Law Judge (ALJ) Norman R. Buls on February 12, 2014. (Tr.

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32) In his decision, dated March 7, 2014, the ALJ found Miranda is not disabled because he

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has no severe impairments. (Tr. 19-25)

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Miranda appealed and submitted additional exhibits, but the Appeals Council denied

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review making the decision of the ALJ the final decision of the Commissioner. (Tr. 1-4); see

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Bass v. Social Sec. Admin., 872 F.2d 832, 833 (9th Cir. 1989). Miranda subsequently filed this

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action appealing the Commissioner’s final decision. (Doc. 1) He argues the ALJ erred in

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finding his shoulder impairment, right elbow impairment, and low back impairment are not

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“severe.” (Doc. 13)

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Claimant’s Work History and Medical History

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At the time of the hearing, Miranda was 60 years old. (Tr. 32-33) He has a sixth grade

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education. (Tr. 34) He can understand some English, but he is not fluent. (Tr. 34)

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Miranda worked as a laborer in a plastering company and as a cleaner in a cement plant.

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(Tr. 167) In his job as cleaner, he frequently lifted objects weighing 50 pounds or more. (Tr.

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189) Miranda was laid off in June of 2008. (Tr. 166) Since that time, he has had surgery on

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his left shoulder and a laminectomy in his back. (Tr. 37) Miranda maintains that pain in his

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arms, shoulder, and waist prevent him from lifting more that ten pounds at a time. (Tr. 40)

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Physical Impairments

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Miranda first injured his shoulder in 1999 when he fell at work. (Tr. 262, 388) He

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suffered intermittent symptoms until February of 2012 when he aggravated his injury while

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trimming trees. (Tr. 388) R. W. Wood, M.D., noted “[t]he MRI study shows a small full

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thickness supraspinatus rotator cuff tear.” (Tr. 91) He recommended that Miranda ice and rest

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his shoulder. Id. He briefly discussed rotator cuff surgery. Id.

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In April of 2012, the medical record indicates that a corticosteroid injection to Miranda’s

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left shoulder was only partially beneficial. (Tr. 384) Wood assessed “rotator cuff tear - small-

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moderate, chronic.” (Tr. 386) He referred Miranda to a course of physical therapy. In June of

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2012, Wood noted that “injection and therapy have not been helpful,” and Miranda was “taking

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Percocet four times a day for pain.” (Tr. 380)

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X-ray studies were performed in June of 2012. (Tr. 378) George R. Bradbury, M.D.,

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assessed “rotator cuff tear - large-massive, chronic.” (Tr. 378) In July of 2012, Bradbury

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performed a “left shoulder open rotator cuff repair and subacromial decompression.” (Tr. 232)

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The medical record documents Miranda’s post operative treatment. (Tr. 364, 368, 371,

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373) Miranda reported improvement, but he still had pain and swelling two months after

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surgery. (Tr. 368)

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In September of 2012, Miranda was examined by Melvyn Weinberg, M.D., for the state

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disability determination service. (Tr. 309) Weinberg diagnosed “rotator cuff derangement of

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the left shoulder with recent surgical repair and continued pain and decreased motion plus

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regular Oxycodone use; recent muscle injury of the left posterior thigh with possible partial tear

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which occurred in the last week; diabetes mellitus; and flexion deformity of the right elbow,

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long-standing.” (Doc. 310)

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Weinberg completed a Medical Source Statement of Ability to do Work-Related

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Activities (Physical). (Tr. 312) He opined Miranda could lift or carry less than 10 pounds

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frequently and up to 10 pounds occasionally. Id. He documented no standing, walking, or

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sitting limitations. (Tr. 312-13) He opined Miranda should only occasionally climb ladders,

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rope, or scaffolds; stoop, kneel; crouch; crawl; reach; handle; finger; or feel.

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noted further restrictions on working around heights and around moving machinery. Id.

(Tr. 313) He

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In December of 2012, Miranda still had left shoulder pain, which was aggravated by

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movement. (Tr. 360) Treatment notes dated February 28, 2013 indicate Miranda still has left

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shoulder pain which is aggravated by lifting and movement. (Tr. 352)

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In March of 2013, Allan Jones, P.T., assessed chronic left shoulder pain. (Tr. 424) He

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noted Miranda could not lift his hand above his head. Id. Miranda’s short term goal for therapy
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was to decrease shoulder pain to a 6 out of 10. Id. His long term goal was to decrease shoulder

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pain to a 3 out of 10. Id.

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In July of 2013, Miranda fell in the shower and hurt his back. (Tr. 532) In October of

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2013, Miranda was still complaining of severe back pain. (Tr. 532) MRI studies of Miranda’s

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back were taken in November of 2013. (Tr. 536) Nicholas Fraley, M.D., noted “moderate to

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severe degenerative spinal stenosis at L4-L5 due to disc bulge . . . .”

(Tr. 536)

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Miranda underwent an L4 and L5 decompressive laminectomy on December 17, 2013.

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(Tr. 539, 543) Kurt A. Schroeder, M.D., reported the “surgery went well, the patient did well,

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anesthesia went well.” (Tr. 539)

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In December of 2013, Miranda reported he was recovering well from his back surgery

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(Tr. 542) His gait was stable, but he was still using a cane. (Tr. 542) Treatment notes from

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January of 2014 indicate Miranda was still suffering from chronic low back pain. (Tr. 563) In

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February of 2014, Miranda still felt pain in the lower back with bending. (Tr. 559)

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In February of 2014, Miranda appeared with counsel before the ALJ. (Tr. 30) He

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testified through an interpreter. Id. Miranda explained he used to work with jack hammers and

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chipping hammers. (Tr. 40) He had to lift objects weighing 60 pounds. (Tr. 40) He explained,

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“And it was hard, and my hands used to end up stiff because of the kind of tools that I used to

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work with.” (Tr. 40) He explained he can no longer return to work “[b]ecause of the problems

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I have in my arms and my shoulder and my waist.” (Tr. 40) “I cannot lift anything overhead;

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I get tired; [a]nd I cannot do much movements for more than one hour.” (Tr. 40)

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In March of 2014, Miranda complained of shoulder and back pain after performing two
hours of landscaping work. (Tr. 549)

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The record contains third party statements from Luc Alba Quijado de Acosta and Robert

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Sandoval. She states she has known Miranda for many years. (Tr. 222) Lately, however, she

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has noticed that Miranda has back pain, which limits his movement. Id. When she gave

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Miranda a ride in her car, Miranda took a long time to get out. Id. Sandoval also states he has

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known Miranda for many years. (Tr. 223) He explains Miranda now has difficulty walking,

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which he believes is due to back pain. Id. He states Miranda now walks with a cane. Id.
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CLAIM EVALUATION

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Social Security Administration (SSA) regulations require that disability claims be

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evaluated pursuant to a five-step sequential process. 20 C.F.R. §§ 404.1520, 416.920; Baxter

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v. Sullivan, 923 F.2d 1391, 1395 (9th Cir. 1991). The first step requires a determination of

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whether the claimant is engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4),

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416.920(a)(4). If so, then the claimant is not disabled, and benefits are denied. Id.

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If the claimant is not engaged in substantial gainful activity, the ALJ proceeds to step

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two, which requires a determination of whether the claimant has a “medically severe impairment

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or combination of impairments.” 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). In making a

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determination at step two, the ALJ uses medical evidence to consider whether the claimant’s

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impairment more than minimally limits or restricts his or her “physical or mental ability to do

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basic work activities.” Id. If the ALJ concludes the impairment is not severe, the claim is

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denied. Id.

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Upon a finding of severity, the ALJ proceeds to step three, which requires a

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determination of whether the impairment meets or equals one of several listed impairments that

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the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20

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C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); 20 C.F.R. Pt. 404, Subpt. P, App.1. If the claimant’s

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impairment meets or equals one of the listed impairments, then the claimant is presumed to be

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disabled, and no further inquiry is necessary. Ramirez v Shalala, 8 F.3d 1449, 1452 (9th Cir.

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1993). If the claimant’s impairment does not meet or equal a listed impairment, evaluation

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proceeds to the next step.

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The fourth step requires the ALJ to consider whether the claimant has sufficient residual

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functional capacity (RFC)1 to perform past work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

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If yes, then the claim is denied. Id. If the claimant cannot perform any past work, then the ALJ

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Residual functional capacity is defined as that which an individual can still do despite
his or her limitations. 20 C.F.R. §§ 404.1545, 416.945.
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must move to the fifth step, which requires consideration of the claimant’s RFC to perform

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other substantial gainful work in the national economy in view of claimant’s age, education, and

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work experience. 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4).

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In determining whether the claimant retains the ability to perform other work, the ALJ

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may refer to the Medical Vocational Guidelines (“the grids”) promulgated by the SSA. See 20

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C.F.R. Pt. 404, Subpt. P, App.2; Desrosiers v. Secretary of Health and Human Services, 846

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F.2d 573, 576-577 (9th Cir. 1988). The grids categorize jobs according to their exertional

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requirements such as sedentary work, light work, or medium work. Tackett v. Apfel, 180 F.3d

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1094, 1101 (9th Cir. 1999). The grids calculate whether or not the claimant is disabled based

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on the claimant’s exertional ability, age, education, and work experience. Id. The grids are a

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valid basis for denying claims where they completely and accurately describe the claimant’s

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abilities and limitations. Id. at 1101-02. If the claimant has only exertional limitations, the

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claim may be resolved based only on the grids. Lounsburry v. Barnhart, 468 F.3d 1111, 1115

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(9th Cir. 2006).

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If the claimant has significant non-exertional limitations, the grids do not apply. Penny

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v. Sullivan, 2 F.3d 953, 958-959 (9th Cir.1993). “Non-exertional limitations are limitations that

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do not directly affect a claimant’s strength.” Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir.

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1988). Mental limitations, for example, are non-exertional. Id. at 1340-41. If significant non-

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exertional limitations prevent the claimant from performing the full range of work in any

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exertional category, the ALJ must take the testimony of a vocational expert to deny the claim.

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Id. at 1341.

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The ALJ’s Findings

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At step one of the disability analysis, the ALJ found Miranda “has not engaged in

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substantial gainful activity since April 30, 2012, the alleged onset date . . . .” (Tr. 21). At step

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two, he found Miranda “has the following medically determinable impairments: left shoulder

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impairment, back impairment, and right arm/elbow impairment . . . .” (Tr. 21) He found,

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however, that these impairments are not severe because they do not “significantly limit[] his
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ability to perform basic work activities. . . . (Tr. 22) Accordingly, he found Miranda was not

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disabled “from April 30, 2012 through the date of this decision. . . .” (Tr. 24)

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STANDARD OF REVIEW

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An individual is entitled to disability benefits if he or she demonstrates, through

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medically acceptable clinical or laboratory standards, an inability to engage in substantial

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gainful activity due to a physical or mental impairment that can be expected to last for a

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continuous period of at least twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). “[A]

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claimant will be found disabled only if the impairment is so severe that, considering age,

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education, and work experience, that person cannot engage in any other kind of substantial

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gainful work which exists in the national economy.” Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir.

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1993).

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The findings of the Commissioner are meant to be conclusive. 42 U.S.C. §§ 405(g),

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1383(c)(3). The decision to deny benefits “should be upheld unless it contains legal error or is

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not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

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Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept

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as adequate to support a conclusion.” Id. It is “more than a mere scintilla but less than a

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preponderance.” Id.

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“Where evidence is susceptible to more than one rational interpretation, the ALJ’s

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decision should be upheld.” Orn, 495 F.3d at 630. “However, a reviewing court must consider

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the entire record as a whole and may not affirm simply by isolating a specific quantum of

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supporting evidence.” Id.

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In evaluating evidence to determine whether a claimant is disabled, the opinion of a

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treating physician is entitled to great weight. Ramirez v. Shalala, 8 F.3d 1449, 1453-54 (9th Cir.

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1993). The ALJ may reject a treating physician’s uncontradicted opinion only if she sets forth

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clear and convincing reasons for doing so. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).

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If the treating physician’s opinion is contradicted by another doctor, the ALJ may reject that

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opinion only if she provides specific and legitimate reasons supported by substantial evidence
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in the record. Lester, 81 F.3d at 830. No distinction is drawn “between a medical opinion as

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to a physical condition and a medical opinion on the ultimate issue of disability.” Rodriguez

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v. Bowen, 876 F.2d 759, 761 n.7 (9th Cir. 1989).

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“The opinion of an examining physician is, in turn, entitled to greater weight than the

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opinion of a non[-]examining physician.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996).

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“[T]he Commissioner must provide ‘clear and convincing’ reasons for rejecting the

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uncontradicted opinion of an examining physician.” Id. “[T]he opinion of an examining doctor,

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even if contradicted by another doctor, can only be rejected for specific and legitimate reasons

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that are supported by substantial evidence in the record.” Id. at 830-31.

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“Where medical reports are inconclusive, questions of credibility and resolution of

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conflicts in the testimony are functions solely of the [Commissioner].” Magallanes, 881 F.2d

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747, 751 (9th Cir. 1989) (punctuation omitted). The Commissioner’s finding that a claimant is

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less than credible, however, must have some support in the record. See Light v. Social Security

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Administration, 119 F.3d 789 (9th Cir. 1997).

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The ALJ need not accept the claimant’s subjective testimony of disability, but if he

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decides to reject it, “[]he must provide specific, cogent reasons for the disbelief.” Lester, 81

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F.3d at 834. “Unless there is affirmative evidence showing that the claimant is malingering, the

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Commissioner’s reasons for rejecting the claimant’s testimony must be clear and convincing.”

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Id. “General findings are insufficient; rather, the ALJ must identify what testimony is not

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credible and what evidence undermines the claimant’s complaints.” Id.

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DISCUSSION

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In this case, the ALJ rejected Miranda’s application at step two of the disability analysis.

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The step two inquiry, however, is only “a de minimis screening device to dispose of groundless

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claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “An impairment or

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combination of impairments can be found ‘not severe’ only if the evidence establishes a slight

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abnormality that has no more than a minimal effect on an individual’s ability to work. Id.

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(punctuation modified).

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Here, the ALJ acknowledged that Miranda suffered from shoulder and back impairment

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serious enough to warrant surgery. He concluded, however, that these impairments were no

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longer “severe” subsequent to his surgeries. Substantial evidence, however, does not support

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his optimistic assessment of Miranda’s post-surgical condition.

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The ALJ’s explanation of his reasoning is relatively brief. His analysis of Miranda’s
shoulder impairment reads as follows:
The claimant was doing well after surgery. An x-ray taken in September 2012
after the claimant’s surgery showed no evidence of acute intraosseus injury. This
indicates that the claimant’s left shoulder impairment is non-severe.
(Doc. 23)

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The reasons advanced by the ALJ do not constitute substantial evidence. The fact that

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Miranda was doing well after surgery indicates that his condition would likely be improved by

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the surgery. Without more, however, there is no way of knowing just how much improvement

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Miranda would ultimately see. There is simply no evidence in the record that after surgery,

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Miranda’s shoulder impairment was no longer severe and he could return to his previous work

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where he had to lift objects weighing 50 to 60 pounds. (Tr. 40, 189) In fact, the medical record

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indicates to the contrary that Miranda continues to experience shoulder pain that is exacerbated

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by lifting and movement. See (Tr. 352, 360, 424)

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The fact that an x-ray revealed “no evidence of acute intraosseus injury” also is not

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substantial evidence supporting the ALJ’s decision. There is nothing in the record to support

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the ALJ’s assertion that a lack of “acute intraosseus injury” is evidence that Miranda no longer

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suffered from a severe shoulder impairment. The ALJ is not qualified as a medical expert and

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may not substitute his own lay judgment in place of an informed medical opinion. See Day v.

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Weinberger, 522, F. 2d 1154, 1156 (9th Cir. 1975); see, e.g., Cox v. Colvin, 2014 WL 6882390,

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5 (C.D.Cal. 2014) (“Absent expert medical assistance, the ALJ could not competently translate

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the medical evidence into a residual functional capacity assessment.”).

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The ALJ’s analysis of Miranda’s back impairment is similarly brief. He states simply

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that “because there is little evidence following his surgery and because the surgery went well,

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the claimant’s back impairment is durationally nonsevere.” (Tr. 23) The fact that the surgery

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“went well,” however, is not substantial evidence that Miranda’s back impairment has been

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reduced to “a slight abnormality” having “no more than a minimal effect” on his ability to work.

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See Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996).

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The ALJ further notes that there is little evidence of Miranda’s condition post surgery.

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But if he believed the medical record was incomplete, the ALJ should have supplemented the

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record, not simply deny the claimant’s application at step two. See Webb v. Barnhart, 433 F.3d

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683, 687 (9th Cir. 2005) (“[T]he ALJ had an affirmative duty to supplement Webb’s medical

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record, to the extent it was incomplete, before rejecting Webb’s petition at so early a stage in

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the analysis.”).

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The ALJ further argues that Miranda’s record of daily activities supports his decision

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denying benefits. He notes that Miranda is “able to clean around the house, go for walks, and

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use public transportation.” (Tr. 24) The ability to engage in these activities, however, is not

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evidence that Miranda is completely recovered and can lift objects weighing 50 to 60 pounds

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again.

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In her brief, the Commissioner cites other aspects of the record that support the decision

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of the ALJ. This court, however, may not affirm the decision of the ALJ by referring to

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evidence that he did not discuss. Burrell v. Colvin, __ F.3d__, __, 2014 WL 7398892, 4 (9th

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Cir. 2014); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).

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The court does not reach the claimant’s alternate arguments for remand.

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IT IS ORDERED that the final decision of the Commissioner is reversed. The case is
remanded for further proceedings.
The Clerk of the Court is directed to prepare a judgment and close this case.

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DATED this 5th day of February, 2015.
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