Juliene Marie McCovey-v-Acting Commissioner of Social Security

Filing 23

ORDER by Judge Nandor J. Vadas granting in part and denying in part 16 Motion for Summary Judgment; denying 21 Motion for Summary Judgment. (njvlc2, COURT STAFF) (Filed on 3/24/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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JULIENE MCCOVEY,

Case No. 15-cv-02663-NJV

Plaintiff,
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v.

ORDER ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT

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CAROLYN W COLVIN,

Re: Dkt. Nos. 16, , 21

United States District Court
Northern District of California

Defendants.
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Plaintiff Juliene McCovey seeks judicial review of an administrative law judge (“ALJ”)

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decision denying her application for disability insurance benefits and supplemental security

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income under Titles II and XVI of the Social Security Act. Plaintiff‟s request for review of the

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Administrative Law Judge‟s (“ALJ‟s”) unfavorable decision was denied by the Appeals Council.

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The ALJ‟s decision is the “final decision” of the Commissioner of Social Security, which this

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court may review. See 42 U.S.C. §§ 405(g), 1383(c)(3). Both parties have consented to the

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jurisdiction of a magistrate judge. (Docs. 6 & 7). For the reasons stated below, the court will

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grant Plaintiff‟s motion for summary judgment, and remand this action for further proceedings.

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LEGAL STANDARDS
The Commissioner‟s findings “as to any fact, if supported by substantial evidence, shall be

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conclusive.” 42 U.S.C. § 405(g). A district court has a limited scope of review and can only set

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aside a denial of benefits if it is not supported by substantial evidence or if it is based on legal

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error. Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Substantial

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evidence is “more than a mere scintilla but less than a preponderance; it is such relevant evidence

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as a reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. Chater, 108

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F.3d 978, 979 (9th Cir. 1997). “In determining whether the Commissioner‟s findings are

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supported by substantial evidence,” a district court must review the administrative record as a

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whole, considering “both the evidence that supports and the evidence that detracts from the

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Commissioner‟s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The

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Commissioner‟s conclusion is upheld where evidence is susceptible to more than one rational

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interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
SUMMARY OF RELEVANT MEDICAL EVIDENCE1

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Plaintiff‟s medically determinable impairments are back pain, right hip pain, right knee

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pain, right foot pain, right arm problems, hepatitis, and headaches. (AR 249, 271-72, 526).

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Plaintiff was injured in motor vehicle accidents in 1981 and 1999. (AR 62). Her back pain

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Northern District of California

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worsened in 2009. (AR 407). On June 1, 2010, her primary treating physician, Carl W. Bourne,

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M.D., stated that Plaintiff was unable to work, noting that she had managed to work despite her

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chronic pain until August of 2009 when her symptoms had worsened, and that her pain had

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recently increased. (AR 407).
Plaintiff was seen for joint pain in multiple sites throughout her body. Treating provider

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Emmett Chase, listed the following complaints on February 6, 2013, noting that they might be

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related to her hepatitis rather than to arthritis: left shoulder pain, right hand numbness, right knee

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and ankle pain, and lumbar pain. On examination, he found swollen and distorted fingers on the

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right hand. (AR 526).

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Since her injuries in the 1999 rollover motor vehicle accident, Plaintiff continued to

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complain of pain in her low back and right leg. (AR 339). A lumbar spine x-ray dated August 11,

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2009, showed degenerative disk disease at multiple levels, with mild to moderate joint space

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narrowing at L5-S1, mild degenerative changes at L4-5 and L5-S1, and slight changes at L3-4.

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(AR 349).
Daniel Farnum, M.D., performed a consultative orthopedic evaluation on September 18,

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These facts are largely taken, and slightly modified, from Plaintiff‟s Motion. See Pl. Mot. (Doc.
16) at 2-5. Defendant did not object to Plaintiff‟s statement of the facts, which this court takes to
mean that they are undisputed under Federal Rule of Civil Procedure 56(e).
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2010, and diagnosed degenerative lumbar disk disease and probable chondromalacia patella on the

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right. He found Plaintiff able to stand, walk, or sit up to six hours. However, Dr. Farnum felt

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Plaintiff could lift fifty pounds occasionally and twenty-five pounds frequently. (AR 363). Dr.

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Farnum did not have access to the 2009 MRI showing moderate foraminal narrowing at L5-S1.

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(AR 347).

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Treatment for Plaintiff‟s chronic back pain included medication and epidural steroids. (AR

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332-344). By June 1, 2010, Plaintiff‟s primary treating physician noted straight leg raising was

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positive on the right, with decreased back flexion. (AR 407). Plaintiff was examined by

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neurologist Tiffany B. Ward, M.D., on April 2, 2012, for chronic migraines and left arm
numbness. Dr. Ward also found bilateral radicular lower extremity pain. Straight leg raise was

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positive on both sides, worse on the right. (AR 482-484).

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Right knee pain with swelling and popping was noted on August 11, 2010. Plaintiff rated

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her pain when sitting at 6-7, and at 9 when walking. (AR 370). She was treated at Mad River

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Hospital on August 6, 2011, for a right knee injury. (AR 422-426). On December 28, 2011, she

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complained of ongoing knee pain, with instability, popping, and swelling. (AR 468). The

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plaintiff reported bilateral shoulder pain to Dr. Khalsa on December 1, 2011. He noted Plaintiff‟s

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history of an old left AC separation, but examination of her shoulders was normal. (AR 475-477).

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THE FIVE STEP SEQUENTIAL ANALYSIS FOR DETERMINING DISABILITY

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A person filing a claim for social security disability benefits (“the claimant”) must show

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that she has the “inability to do any substantial gainful activity by reason of any medically

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determinable physical or mental impairment” which has lasted or is expected to last for twelve or

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more months. 20 C.F.R. §§ 416.920(a)(4)(ii), 416.909. The ALJ must consider all evidence in the

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claimant's case record to determine disability (id. § 416.920(a)(3)), and must use a five-step

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sequential evaluation to determine whether the claimant is disabled (id. § 416.920). “[T]he ALJ

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has a special duty to fully and fairly develop the record and to assure that the claimant's interests

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are considered.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983).

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Here, the ALJ evaluated Plaintiff's application for benefits under the required five-step
sequential evaluation. (AR 18-32).
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At Step One, the claimant bears the burden of showing she has not been engaged in

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“substantial gainful activity” since the alleged date the claimant became disabled. 20 C.F.R.

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§ 416.920(b). If the claimant has worked and the work is found to be substantial gainful activity,

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the claimant will be found not disabled. Id. The ALJ found that Plaintiff had not engaged in

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substantial gainful activity since her alleged onset date. (AR 24).
At Step Two, the claimant bears the burden of showing that she has a medically severe

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impairment or combination of impairments. 20 C.F.R. § 416.920(a)(4)(ii), (c). “An impairment is

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not severe if it is merely „a slight abnormality (or combination of slight abnormalities) that has no

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more than a minimal effect on the ability to do basic work activities.‟” Webb v. Barnhart, 433 F.3d
683, 686 (9th Cir. 2005) (quoting S.S.R. No. 96–3(p) (1996)). The ALJ found that Plaintiff

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suffered the following severe impairments: degenerative disc disease of the lumbar spine, history

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of obesity, ankylosis of the right ring finger, and an affective mood disorder. (AR 24).
At Step Three, the ALJ compares the claimant‟s impairments to the impairments listed in

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appendix 1 to subpart P of part 404. See 20 C.F.R. § 416.920(a)(4)(iii), (d). The claimant bears

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the burden of showing her impairments meet or equal an impairment in the listing. Id. If the

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claimant is successful, a disability is presumed and benefits are awarded. Id. If the claimant is

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unsuccessful, the ALJ assesses the claimant's residual functional capacity (“RFC”) and proceeds to

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Step Four. Id. § 416.920(a)(4)(iv),(e). Here, the ALJ found that Plaintiff did not have an

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impairment or combination of impairments that met or medically equaled one of the listed

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impairments. (AR 24). Next, the ALJ found that Plaintiff had the residual functional capacity to

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perform light work with several limitations. AR 27.
At Step Four, the ALJ found that Plaintiff could perform her past relevant work as a “wild-

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lifer” or caller (bagging and banding spotted owls). (AR 30).
At Step Five, after consulting with a vocational expert, the ALJ found that there were a

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significant number of jobs that Plaintiff could perform in the national economy. (AR. 31).

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Accordingly, the ALJ found that Plaintiff had “not been under a disability, as defined in the Social

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Security Act,” through the relevant time period. Id.

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ISSUES PRESENTED

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Plaintiff raises three challenges to the ALJ's decision, arguing that: (1) “The decision is not

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supported by substantial evidence due to the ALJ committing harmful legal error by omitting

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critical MRI evidence;” (2) “The ALJ committed harmful legal error by failing to give appropriate

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weight to the treating physician‟s opinion;” (3)“The decision is not supported by substantial

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evidence because the ALJ failed to adequately evaluate objective evidence of a disabling

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condition;” (4) “The ALJ committed harmful legal error by finding the claimant could perform

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prior relevant work that existed in very few numbers for short periods and may no longer exist;”

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and (5) “The ALJ failed to properly evaluate all limitations in her RFC finding.” Pl.‟s Mot. (Doc.

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16) at 2.
DISCUSSION

United States District Court
Northern District of California

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A.

The 2009 MRI
Plaintiff‟s first two claims are interrelated, in that Plaintiff claims that the ALJ erred by

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failing to properly consider a 2009 MRI and that the ALJ erred by failing to give the appropriate

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weight to Plaintiff‟s treating physician because the ALJ ignored the physician‟s reliance on the

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2009 MRI in rendering his opinion. Thus, the court will address these claims (One and Two) in

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combination.

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At the core of these arguments is the MRI of August 29, 2009 (AR 347-48). Plaintiff
asserts that the ALJ failed to properly evaluate the MRI. Plaintiff argues as follows:
The decision quoted the MRI report as finding only “spondylosis of the lumbar
spine, primarily at L3-4, L4-5, and L5-S1 (Exhibit 1F at 51-52 [AR 347-48]).” But
the decision only quoted one of five findings. The full text of the impression in the
report shows
Impression:
1. SPONDYLOSIS OF THE LUMBAR SPINE PRIMARILY AT
L3-4, L4-5 AND LS-S1, WORSE AT L5-S1.
2. POSTERIOR FACET ARTHROPATHY AT L3-4, L4-5 AND
L5-S1.
3. NO EVIDENCE OF CENTRAL CANAL STENOSIS.
4. MILD LEFT NEURAL FORAMINAL NARROWING AT L4-5
SECONDARY TO ANNULAR DISC BULGE AND FACET
ARTHROPATHY.
5. MODERATE BILATERAL NEURAL FORAMINAL
NARROWING AT L5-S1 SECONDARY TO BROAD BASE
ASYMMETRIC DISC BULGE, MORE PROMINENT ONTHE
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LEFT AND POSTERIOR FACET ARTHROPATHY.
(AR 347-48)

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While the decision only recognized the first impression of spondylosis (which is
itself a painful condition by definition), the MRI actually showed three levels of
spondylosis, moderate foraminal narrowing at L5-S1 due to a bulging disc, mild
foraminal narrowing at L4-5 due to a bulging disc, and arthropathy at three levels.
This demonstrates a far more serious condition than the decision gave credit.

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Pl.‟s Mot. (Doc. 16) at 6. Plaintiff asserts that by omitting the entirety of the results of the MRI,

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the ALJ failed to properly set forth clear and specific reasons for rejecting Plaintiff‟s testimony

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about the severity of her condition. Defendant does not meet this argument head-on, preferring

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instead to argue that the ALJ‟s determination overall was supported by substantial evidence.

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The snag for the Commissioner comes when weaving the fabric of substantial evidence.
The Commissioner points directly to the opinion of Dr. Bourne, Plaintiff‟s treating physician,

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Northern District of California

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citing to his “impression of chronic low back pain with sciatica with poor pain control (AR 28,

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408),” his notion that “Plaintiff had a history of drug abuse and was sober in the last three years

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(AR 28, 403, 408),” and his June 2010, examination where he found that Plaintiff “had normal

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motor strength, positive straight leg raising test on the right, and decreased back flexion (AR

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407).” Def.‟s Mot. (Doc. 21) at 8. The Commissioner then turns to the ALJ‟s rejection of Dr.

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Bourne‟s opinion that Plaintiff could not work due to her chronic back pain with sciatica, arguing

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that the “[t]he ALJ permissibly gave this opinion little weight because it was not consistent with or

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supported by the overall record, including objective clinical findings in the record and other

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doctors‟ findings and opinions.” Id. at 9. The Commission makes the same error Plaintiff claims

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the ALJ made with respect to the MRI. That is, the Commissioner only gives half the story.

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The ALJ stated that little weight was given to Dr. Bourne‟s opinion because it “was not

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consistent with or supported by the record. Instead, his opinion is entirely based on the claimant‟s

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self-reported limitations or subjective pain.” (AR 28). That the ALJ appeared to believe that Dr.

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Bourne‟s opinion was devoid of a medical record basis is evident from the ALJ‟s reference to Dr.

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Bourne‟s notation in September 2010 that he was awaiting Plaintiff‟s medical records from

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Alaska. This brings us full circle to the August 2009 MRI, because in rendering his opinion that

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Plaintiff was unable to work, Dr. Bourne specifically pointed to the results of the MRI. (AR 407).

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Thus, the ALJ‟s statement the Dr. Bourne‟s opinion was based entirely on Plaintiff‟s self-reported
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limitations is not correct. So too, then, is the ALJ‟s basis for his rejection of Dr. Bourne‟s opinion.

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Indeed, Dr. Bourne‟s records from the same day indicate that he performed a physical

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examination.
It is clear that Dr. Bourne rendered his opinion based, at least in part, on objective clinical

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findings and a review of the medical records, including the MRI. Thus the court finds that the

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ALJ‟s rejection of Dr. Bourne‟s opinion lacked “specific, legitimate reasons,” supported by

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“substantial evidence.” Orn v. Astrue, 495 F.3d 625, 634 (9th Cir. 2007). On remand, the ALJ

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shall reevaluate Dr. Bourne‟s opinion in light of its reliance on the MRI and his own observations

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and, if necessary, discuss how the entirety of the MRI fits into a newly formed RFC.

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B.

Here Plaintiff argues that the ALJ‟s decision is flawed because on the one hand the ALJ

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Northern District of California

Substantial Evidence of Record

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finds that “[o]bjective diagnostic studies do not support a finding of disability,” (AR 28), but on

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the other hand the decision goes on to list objective diagnostic studies that would support a finding

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of disability. Pl.‟s Mot. (Doc. 8) of 10. Plaintiff complains that the decision provides “no

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explanation why significant spondylosis, disc space narrowing, and bilateral foraminal narrowing

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that could produce radiculopathies in three places do not support Plaintiff‟s allegations of

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disabling pain.” Id.
The court finds that this issue is now moot because the ALJ will be required to reevaluate

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her findings in determining the RFC following a reevaluation of Dr. Bourne‟s opinion.

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C.

The Tagging and Bagging of Spotted Owls
Plaintiff argues that the ALJ erred in making the determination that Plaintiff could return

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to her work as a “wild-lifer,” bagging and banding spotted owls. Because the ALJ will have to

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reevaluate Dr. Bourne‟s opinion in formulating Plaintiff‟s RFC, the ALJ will be required to redo

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Step Four, which renders this claim moot.

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D.

Migraines

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Plaintiff‟s argument in its entirety in this claim is as follows:

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Although the decision notes treatment by a neurologist for “intractable and frequent
migraine headaches” (AR 29,8F/7), the decision not only fails to include them in
her RFC at page eight, but finds them nonsevere at page four. The ALJ is required

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to consider all limitations in the RFC. Andrews v. Shalala,53 F.3d 1035, 1044 (9th
Cir. 1995).

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Pl.‟s Mot. (Doc. 16) at 10.
It is not clear whether Plaintiff is attacking the ALJ‟s Step Two determination with regard

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to the migraine headaches, or the RFC determination, or both. In any case, Plaintiff fails to

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sufficiently set forth the ALJ‟s alleged error. At Step Two an ALJ will evaluate medically

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determinable impairments and find them “severe” if they more than minimally affect the

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claimant‟s ability to perform basic work functions. See SSR 96-3p. Here the ALJ considered the

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headaches and found that they did not “more than minimally affect” Plaintiff‟s ability to perform

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basic work. (AR 24). Plaintiff does not provide a basis to overturn that decision.
Although the ALJ found the headaches to be non-severe, “[i]n assessing RFC, the

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Northern District of California

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adjudicator must consider only limitations and restrictions imposed by all of an individual's

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impairments, even those that are not „severe.‟” Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir.

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2005) (quoting Social Security Ruling 96–8p (1996)). Here, the ALJ stated that “[a]ll

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impairments regardless of severity, as well as symptoms, have been considered in the claimant‟s

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residual functional capacity” (AR 24), and acknowledged Dr. Ward‟s report about Plaintiff‟s

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headaches (AR 29). The ALJ‟s statement that she considered all impairments regardless of

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severity was made immediately after listing the headaches as non-severe. The acknowledgment of

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Dr. Ward‟s report occurs where the ALJ is formulating the RFC. Thus, it is clear the ALJ did

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consider the headaches when making the RFC determination. Accordingly, the court finds no

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error.

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CONCLUSION

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In her prayer for relief, Plaintiff requests that this court remand this action for further

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proceedings. For the above stated reasons, the court GRANTS Plaintiff‟s Motion for Summary

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Judgment in part and DENIES it in part and DENIES Defendant‟s Motion for Summary Judgment

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and REMANDS this case back to the ALJ for further proceedings consistent with this opinion.

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IT IS SO ORDERED.
Dated: March 24, 2017
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NANDOR J. VADAS
United States Magistrate Judge

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United States District Court
Northern District of California

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