Wilson-Sujo v. Commissioner of Social Security

Filing 19

ORDER signed by Magistrate Judge Edmund F. Brennan on 9/26/2013 ORDERING that Plaintiff's 16 Motion for Summary Judgment is GRANTED. The Commissioner's 17 Cross-Motion for Summary Judgment is DENIED. The Clerk is directed to enter judgment in plaintiff's favor. The matter is REMANDED for further proceedings consistent with this opinion. CASE CLOSED. (Zignago, K.)

Download PDF
1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 MERLENE FAY WILSON-SUJO, Plaintiff, 10 vs. 11 12 No. 2:12-cv-1441-EFB CAROLYN W. COLVIN, Acting Commissioner of Social Security, 13 Defendant. ORDER / 14 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 15 16 (“Commissioner”) denying her application for Supplemental Security Income (“SSI”) under 17 Title XVI of the Social Security Act. The parties’ cross-motions for summary judgment are 18 pending. For the reasons discussed below, the court grants plaintiff’s motion, denies the 19 Commissioner’s motion, and remands the matter for further proceedings. 20 I. 21 BACKGROUND Plaintiff protectively filed an application for SSI benefits on December 29, 2008, alleging 22 that she had been disabled since August 26, 2008. Administrative Record (“AR”) 122, 174-82. 23 Plaintiff’s application was initially denied on March 18, 2009, and upon reconsideration on July 24 22, 2009. Id. at 126-137. On June 29, 2010, a hearing was held before administrative law judge 25 (“ALJ”) Mark Ramsey. Id. at 35-66. Plaintiff was represented by counsel at the hearing, at 26 which she testified. Id. 1 1 On November 23, 2010, the ALJ issued a decision finding that plaintiff was not disabled 2 under section 1614(a)(3)(A) of the act.1 Id. at 13-23. The ALJ made the following specific 3 findings: 4 1. The claimant has not engaged in substantial gainful activity since December 29, 2008, the alleged onset date (20 CFR 416.971 et seq.). 2. The claimant has the following severe impairments: chronic low back pain, status post L3-4 discectomy and fusion surgery, multilevel cervical degenerative disc changes and C6-7 disc protrusion, carpel [sic] tunnel syndrome (CTS), obesity and diabetes mellitus (DM) (20 CFR 416.920(c)). 5 6 7 8 *** 9 10 11 12 13 14 1 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income (“SSI”) is paid to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions, disability is defined, in part, as an “inability to engage in any substantial gainful activity” due to “a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. §§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The following summarizes the sequential evaluation: 15 16 17 18 19 20 21 22 23 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 24 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 25 The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. 26 2 1 3. 2 The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925, and 416.926). 3 *** 4 4. 5 After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform the full range of light work as defined in 20 CFR 416.967(b). 6 *** 7 5. 8 9 The claimant is capable of performing past relevant work as a casino special events worker, give away customer service clerk and flagger construction. This work does not require the performance of work-related activities precluded by the claimant’s residual functional capacity (20 CFR 416.965). 10 *** 11 6. 12 The claimant has not been under a disability, as defined in the Social Security Act, since December 29, 2008, the date the application was filed (20 CFR 416.920(f)). 13 14 Id. at 13-23. Plaintiff requested that the Appeals Council review the ALJ’s decision, id. at 2, and on 15 16 March 23, 2012, the Appeals Council denied review, leaving the ALJ’s decision as the final 17 decision of the Commissioner. Id. at 3-6. 18 II. 19 LEGAL STANDARDS The Commissioner’s decision that a claimant is not disabled will be upheld if the findings 20 of fact are supported by substantial evidence in the record and the proper legal standards were 21 applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); 22 Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 23 180 F.3d 1094, 1097 (9th Cir. 1999). 24 The findings of the Commissioner as to any fact, if supported by substantial evidence, are 25 conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is 26 more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 3 1 (9th Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to 2 support a conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. 3 Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). 4 “The ALJ is responsible for determining credibility, resolving conflicts in medical 5 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 6 2001) (citations omitted). “Where the evidence is susceptible to more than one rational 7 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” 8 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 9 III. ANALYSIS Plaintiff argues that the erred ALJ in (1) applying administrative res judicata in her case, 10 11 (2) failing to provide clear and convincing reasons for rejecting her testimony, and (3) finding 12 that her mental impairments were not severe. The ALJ found plaintiff’s claim precluded by res judicata because in a prior 13 14 determination a previous ALJ found that plaintiff had the ability to perform a full range of light 15 work, which includes her past relevant work. Plaintiff argues that this was error because she has 16 shown an increase in severity of an impairment and raised a new issue in relation to her most 17 recent claim for disability. ECF No. 16 at 3-7. 18 “The principles of res judicata apply to administrative decisions, although the doctrine is 19 applied less rigidly to administrative proceedings than judicial proceedings.” Chavez v. Bowen, 20 844 F.2d 691, 693 (9th Cir. 1988). A prior finding that a claimant is not disabled creates a 21 presumption of nondisability. Lester, 81 F.3d at 827. A claimant can overcome this 22 presumption by showing that there has been a “change in circumstances,” such as an increase in 23 the severity of an impairment or a change in the claimant’s age category. Id. The doctrine of res 24 judicata is limited to claims that involve the same facts and same issues as a prior decision. 20 25 C.F.R. § 416.1457(c)(1); see Lester, 81 F.3d at 827 (holding that an ALJ is precluded from 26 ///// 4 1 applying “res judicata where the claimant raises a new issue, such as the existence of an 2 impairment not considered in the previous adjudication.”). 3 Plaintiff previously filed applications for disability insurance benefits (“DIB”) and for 4 SSI on April 27, 2006. AR 109. An ALJ reviewed plaintiff’s claims and found that plaintiff 5 retained the residual functional capacity to perform the fully range of light work, which 6 permitted her to perform her past relevant work. Id. at 109-121. Therefore, on August 26, 2008, 7 the prior ALJ issued a decision finding that plaintiff was not disabled. Id. at 121. 8 In this case, the ALJ specifically found that plaintiff failed to rebut “the presumption of 9 continuing nondisability arising from the first administrative law judge’s findings.” Id. at 20. 10 Plaintiff contends that the ALJ erred in making this finding because she has demonstrated an 11 increase in severity of her carpal tunnel syndrome in her left upper extremity. Pl.’s Mot. for 12 Summ. J., ECF No. 16 at 4-6. Plaintiff further contends that the application of res judicata was 13 inappropriate because plaintiff submitted evidence of a new impairment that was not adequately 14 considered in her previous claim. Id. at 6. 15 16 17 18 19 20 21 22 23 24 25 26 The ALJ provided the following discussion concerning plaintiff’s impairments to her left and right extremities due to carpal tunnel syndrome: The medical record shows that the claimant had some additional limitations due to difficulties with her right trigger thumb and carpel [sic] tunnel syndrome, but those limitations would not be expected to persist for a continuous period of 12 months. Records dated May 12, 2008, reveal the claimant had bilateral carpel [sic] tunnel syndrom as evidenced by an EMG (Exhibit 20F/12). L. Richard Morgan, M.D., stated the EMF indicated it was severe on the right and moderately sever on the left (Exhibit 20F/12). On March 23, 2008, the claimant underwent surgery to release her right median ulnar nerve including a medical block (Exhibit 20F/10). Treatment records dated December 5, 2008, show that while bending her right thumb, it would snap and cause her pain (Exhibit 9F3). X-rays of the claimant’s right thumb dated December 17, 2008, revealed her thumb was within normal limits (Exhibit 9F/44). On January 26, 2009, Dr. Morgan determined the claimant needed surgery to release the claimant’s right trigger thumb (Exhibit 20F/8). In [sic] February 6, 2009, the claimant also underwent surgery to repair her hand-lock trigger thumb on the right [hand] (Exhibit 20F/7). Follow-up treatment notes dated June 17, 2009, reveal that after the surgeries the claimant was doing well (Exhibit 20F/6). On March 25, 2010, the claimant underwent surgery to repair her compression neuropathy and ulnar nerve on the left wrist and first dorsal compartment (Exhibit 20F/1). The 5 1 2 claimant did undergo surgery for her impairments, which certainly suggests that the symptoms were genuine. While that fact would normally weighs [sic] in the claimant’s favor, it is offset by the fact that the record reflects that the surgery was generally successful in relieving the symptoms. 3 4 5 AR at 20. The ALJ also observed that Dr. Dann, a non-examining consulting physician, found that 6 claimant’s right thumb, trigger and right carpal tunnel syndrome were not severe because they 7 lacked the 12-month duration requirement. Id.; see 20 C.F.R. § 416.909 (“Unless your 8 impairment is expected to result in death, it must have lasted or must be expected to last for a 9 continuous period of at least 12 months. We call this the duration requirement.”). The ALJ also 10 relied on the opinions from two other state agency physicians, Dr. Loomis and Dr. Pong. Both 11 physicians concluded that there was no significant change and recommended adoption of the 12 prior ALJ’s decision finding that plaintiff was not disabled. Id. at 20, 360, 399. The ALJ noted, 13 however, that “the State Agency doctors did not have the benefit of reviewing the claimant’s 14 most current medical records, which show significantly [sic] improvement to her carpel [sic] 15 tunnel syndrome and right trigger thumb.” Id. 16 A June 11, 2009 progress note indicates that plaintiff was recommended to have carpal 17 tunnel surgery performed on her left hand. Id. at 461. A June 17, 2009 treatment note shows 18 that plaintiff recovered well from the two surgical procedures performed on her right extremity. 19 Id. at 412. It also indicates that plaintiff needed to have surgery on her left extremity. Id. The 20 record further reveals that plaintiff had surgery on her left extremity on March 25, 2010. Id. at 21 407. The Operative Report from that date provides that plaintiff was having numbness and 22 tingling in all fingers, retrograde pain up into her arm, and a decreased grip strength. Id. 23 Dr. Dann rendered his opinion regarding plaintiff’s carpal tunnel syndrome on March 4, 24 2009. Id. at 345. Dr. Loomis’ opinion was rendered on March 11, 2009, id. at 360, and Dr. 25 Pong’s opinion was provided on July 16, 2009, id. at 399. Accordingly, all state agency 26 physicians rendered their opinion prior to plaintiff having surgery on her left hand. 6 1 The ALJ acknowledged that the state agency physicians did not have an opportunity to 2 review the more recent medical records. Id. at 21. However, the ALJ found that more recent 3 medical records showed significant improvement “to her carpel [sic] tunnel syndrome and right 4 trigger thumb.” Id. The record supports the ALJ’s finding concerning plaintiff’s right extremity. 5 As just discussed, treatment notes show that plaintiff had significant improvement to her right 6 extremity due to the two surgical procedures. Plaintiff does not dispute the ALJ’s findings in 7 regards to her right hand. 8 Plaintiff contends, however, that the record does not support the same finding concerning 9 her left upper extremity. The medical records discussed by the ALJ only indicate that plaintiff 10 was recovering well from the surgical procedures performed on her right extremity. Id. at 412. 11 The medical records, however, do not contain treatment notes indicating that surgery on her left 12 upper extremity was as successful as the surgeries performed on her right extremity. Rather, the 13 record simply shows that plaintiff underwent surgery on her left upper extremity because she 14 was experiencing numbness and tingling in all her fingers, retrograde pain up into her arm, and a 15 decreased grip strength. There is no indication that surgery relieved these impairments. 16 The ALJ’s finding that the fact that plaintiff underwent surgery certainly suggests that 17 plaintiff’s symptoms are genuine, and that this fact weighs in plaintiff’s favor, is certainly 18 supported by the record. See id. at 20. However, the ALJ’s finding that this is “offset by the fact 19 that the record reflects that surgery was generally successful in relieving the symptoms” in 20 plaintiff’s left extremity is not supported by substantial evidence in the record. The record 21 shows that plaintiff had an increase in severity of her carpal tunnel syndrome in her left hand, 22 which eventually led to plaintiff undergoing surgery. Although the record indicates that plaintiff 23 had surgery on her left hand, there is simply no evidence in the record to establish that the 24 surgery improved her condition. On the current state of the record, plaintiff has established an 25 increase in the severity of an impairment and there was the need to surgically intervene. The 26 surgery may or may not have resulted in improvement but there is no evidence to establish that 7 1 the impairment subsequently improved. Where, as here, there is inadequate information to make 2 the a determination material to the outcome of the claim, the ALJ has a duty to develop the 3 record. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). As noted, the necessary 4 evidence as to improvement simply was not obtained here. Therefore, the ALJ erred in finding 5 that plaintiff had not rebutted the presumption of nondisability. 6 The record also demonstrates that the application of res judicata was inappropriate in this 7 case because plaintiff raised a new issue–an impairment to her foot–that was not considered in 8 the prior adjudication. Lester, 81 F.3d at 827 (An ALJ is precluded from applying “res judicata 9 where the claimant raises a new issue, such as the existence of an impairment not considered in 10 the previous adjudication.”). X-rays from June 24, 2008, show that plaintiff has bilateral heel 11 spurs. Plaintiff also had X-rays taken on July 30, 2009, which confirmed that plaintiff had small 12 plantar and posterior spurs of the calcaneus. Id. at 456. Furthermore, at her June 29, 2010 13 hearing, plaintiff testified her heel spurs caused swelling in her right foot, which impairs her 14 ability to walk and stand. Id. at 56-87. 15 While the June 2008 X-rays were performed before the prior decision, which was 16 decided on August 26, 2008, the ALJ’s detailed review of the medical evidence made no 17 mention of plaintiff’s bilateral heel spurs. See AR 109-120. It therefore appears that this issue 18 was not considered in reaching the 2008 decision. 19 Defendant appears to argue that the X-ray evidence does not preclude the application of 20 res judicata because the June 2008 X-rays were performed prior to the last ALJ’s decision. ECF 21 No. 17 at 10. Social Security Ruling 68-12a, instructs that a previous decision denying benefits 22 does not preclude a subsequent finding that the claimant is disabled during the previously- 23 adjudicated period where the claimant has presented new and material evidence that is applicable 24 to that period. Here, plaintiff has presented evidence relevant to the previously-adjudicated 25 period that was not considered in reaching the prior decision. This new and material evidence 26 raises an issue that was not previously considered, the application of res judicata was 8 1 inappropriate. 20 C.F.R. § 416.1457(c)(1) (res judicata applies when the Commissioner has 2 made a previous decision on the same facts and the same issue or issues). 3 Defendant also contends that the ALJ properly applied res judicata because state agency 4 physician Dr. Loomis2 had an opportunity to review plaintiff’s 2008 X-rays and found that there 5 was no significant change in circumstances from the previous ALJ’s assessment. This argument 6 misses the point. Regardless of whether Dr. Loomis opined that there was no change in 7 plaintiff’s RFC since the prior decision, plaintiff submitted new evidence raising a new issue in 8 support of her most recent claim for disability. An ALJ is precluded from applying “res judicata 9 where the claimant raises a new issue, such as the existence of an impairment not considered in 10 the previous adjudication.” Lester, 81 F.3d at 827. As plaintiff did not raise her impaired ability 11 to walk and stand due to heel spurs in her prior claims for disability benefits, the ALJ was 12 precluded from applying res judicata in this case. 13 For the reasons stated above, the ALJ failed to apply the correct legal standard in 14 assessing plaintiff’s disability claim. The matter must therefore be remanded to allow the 15 Commissioner to assess plaintiff’s claim under the appropriate legal standard.3 16 IV. CONCLUSION 17 Based on the foregoing, IT IS ORDERED that:. 18 1. Plaintiff’s motion for summary judgment is granted; 19 2. The Commissioner’s cross-motion for summary judgment is denied; 20 3. The Clerk is directed to enter judgment in plaintiff’s favor; and 21 ///// 22 ///// 23 2 24 Defendant, citing to the opinion of Dr. Loomis, mistaking contends that it was Dr. Dann who reviewed the X-rays and found no significant changes. See ECF No. 17 at 10; AR 357-360. 25 3 26 As the matter must be remanded to allow the ALJ to consider plaintiff’s claim under the appropriate legal standard, the court declines to address plaintiff’s additional arguments. 9 1 2 4. The matter is remanded for further proceedings consistent with this opinion. DATED: September 26, 2013. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 10

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?