Weick v. Social Security Administration Commissioner

Filing 20

MEMORANDUM DECISION AND ORDER. NOW THEREFORE IT IS HEREBY ORDERED: Plaintiff's Petition for Review (Dkt. 1) is GRANTED. This action shall be REMANDED to the Commissioner for further proceedings consistent with this opinion. This Remand shall be considered a "sentence four remand," consistent with 42 U.S.C. § 405(g) and Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

PAMELA R. WEICK,
Petitioner,

Case No. 2:14-cv-00264-CWD

v.

MEMORANDUM DECISION
AND ORDER

CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Administration,
Respondent.

INTRODUCTION
Currently pending before the Court is Pamela Weick’s Petition for Review of the
Respondent’s denial of social security benefits, filed July 1, 2014. (Dkt. 1.) The Court has
reviewed the Petition for Review and the Answer, the parties’ memoranda, and the
administrative record (AR). For the reasons that follow, the Court will remand the
decision of the Commissioner with instructions.
PROCEDURAL AND FACTUAL HISTORY
Petitioner filed an application for Disability Insurance Benefits and Supplemental
Security Income on August 30, 2013, claiming disability due to carpal tunnel syndrome,
MEMORANDUM DECISION AND ORDER - 1

cervical, and low back pain. This application was denied initially and on reconsideration,
and a hearing was held on April 18, 2014, before Administrative Law Judge (ALJ) James
Sherry. After hearing testimony from Petitioner and vocational expert Jinnie Lawson,
ALJ Sherry issued a decision on May 2, 2014, finding Petitioner not disabled. Petitioner
timely requested review by the Appeals Council, which denied her request for review on
May 15, 2014. Petitioner appealed this final decision to the Court. The Court has
jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
At the time of the hearing, Petitioner was 49 years of age. Petitioner completed
high school, and her prior work experience includes work as a cashier, electronics
assembler, hand packager/sorter, and industrial cleaner.
SEQUENTIAL PROCESS
The Commissioner follows a five-step sequential evaluation for determining
whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, it must
be determined whether the claimant is engaged in substantial gainful activity. The ALJ
found Petitioner had not engaged in substantial gainful activity since her alleged onset
date of May 11, 2013. At step two, it must be determined whether the claimant suffers
from a severe impairment. The ALJ found Petitioner’s cervical spondylosis with evidence
of cord compression at C5-C6 and facet sclerosis, lumbar degenerative disc disease, and
bilateral shoulder pain with decreased range of motion severe within the meaning of the
Regulations.
Step three asks whether a claimant’s impairments meet or equal a listed
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impairment. The ALJ found that Petitioner’s impairments did not meet or equal the
criteria for the listed impairments, specifically considering Listing 1.04 (spinal
impairments) and 1.02 (joint dysfunction) in his determination. At step three, the ALJ
provided no basis for his conclusion, other than stating he had considered Listing 1.04,
and later in the determination, noting that state medical examiners (both consultative and
reviewing) had concluded Petitioner retained the capacity for light work. If a claimant’s
impairments do not meet or equal a listing, the Commissioner must assess the claimant’s
residual functional capacity (RFC) and determine, at step four, whether the claimant has
demonstrated an inability to perform past relevant work.
The ALJ found at step four Petitioner was able to perform her past relevant work
as a cashier and electronics assembler, which he characterized as light work. Further, the
ALJ determined Petitioner was able to perform other jobs even if limited to sedentary
work. Accordingly, the ALJ did not proceed to step five, and he determined Petitioner
was not disabled.
STANDARD OF REVIEW
Petitioner bears the burden of showing that disability benefits are proper because
of the inability “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which . . . has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see
also 42 U.S.C. § 1382c(a)(3)(A); Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971).
An individual will be determined to be disabled only if her physical or mental
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impairments are of such severity that she not only cannot do her previous work but is
unable, considering her age, education, and work experience, to engage in any other kind
of substantial gainful work which exists in the national economy. 42 U.S.C. §
423(d)(2)(A).
On review, the Court is instructed to uphold the decision of the Commissioner if
the decision is supported by substantial evidence and is not the product of legal error. 42
U.S.C. § 405(g); Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474
(1951); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); DeLorme v.
Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla but less than a
preponderance, Jamerson v Chater, 112 F.3d 1064, 1066 (9th Cir. 1997), and “does not
mean a large or considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552,
565 (1988).
The Court cannot disturb the Commissioner’s findings if they are supported by
substantial evidence, even though other evidence may exist that supports the petitioner’s
claims. 42 U.S.C. § 405(g); Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453,
1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if supported by
substantial evidence, will be conclusive. Flaten, 44 F.3d at 1457. It is well-settled that, if
there is substantial evidence to support the decision of the Commissioner, the decision
must be upheld even when the evidence can reasonably support either affirming or
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reversing the Commissioner’s decision, because the Court “may not substitute [its]
judgment for that of the Commissioner.” Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th
Cir. 1999).
When reviewing a case under the substantial evidence standard, the Court may
question an ALJ’s credibility assessment of a witness’s testimony; however, an ALJ’s
credibility assessment is entitled to great weight, and the ALJ may disregard a claimant’s
self-serving statements. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Where
the ALJ makes a careful consideration of subjective complaints but provides adequate
reasons for rejecting them, the ALJ’s well-settled role as the judge of credibility will be
upheld as based on substantial evidence. Matthews v. Shalala, 10 F.3d 678, 679-80 (9th
Cir. 1993).
DISCUSSION
Petitioner contends the ALJ erred at step three, because her February 12, 2014,
MRI results indicated Petitioner met or equaled the severity requirements set forth in
Listing 1.04A. Petitioner argues the ALJ failed to properly read, interpret, and analyze
the medical records, and instead relied improperly upon the State Consultative
Examiner’s findings, which did not include review of the later MRI findings. Petitioner
contends, if the ALJ did not fully understand the MRI results, a medical expert should
have testified about the significance of the findings on her MRI. Petitioner requests
reversal of the Commissioner’s decision with an award of benefits.
Respondent argues Petitioner’s MRI did not establish she met all the requirements
MEMORANDUM DECISION AND ORDER - 5

for Listing 1.04A, because she did not show she suffered from “neuro-anatomic
distribution of pain,” and motor loss. Respondent cites the consultative examiner’s
record, dated November 7, 2013, from Dr. Craig Stevens, who noted “no weakness,
wasting or other externally apparent objective physical finding… and an entirely normal
objective physical examination if viewed purely by objective criteria….” (AR 203.)
Respondent argues also Petitioner did not establish listing equivalency.
Respondent contends the ALJ had no duty to develop the record with review by a
medical expert at the hearing, because the MRI would not have changed the outcome of
the decision. Respondent points to the close proximity in time between the state agency
physician’s review in late 2013 and the MRI, which was obtained in February of 2014.
Finally, Respondent asserts the ALJ considered the MRI report, but because it showed
moderate changes, the ALJ had the discretion to conclude that the testimony of a medical
expert was not necessary.
If the claimant satisfies the criteria under a listing and meets the twelve month
duration requirement, the Commissioner must find the claimant disabled without
considering age, education and work experience. 20 C.F.R. § 404.1520(a)(4)(iii), (d). A
claimant bears the burden of producing medical evidence that establishes all of the
requisite medical findings that his impairments meet or equal any particular listing.
Bowen v. Yuckert, 482 U.S 137, 146, n. 5 (1987). Further, if the claimant is alleging
equivalency to a listing, the claimant must proffer a theory, plausible or other, as to how
his combined impairments equal a listing. See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir.
MEMORANDUM DECISION AND ORDER - 6

2001).
An impairment, or combination of impairments, is medically equivalent to a
listing “if it is at least equal in severity and duration to the criteria of any listed
impairment,” considering “all evidence in [the] case record about [the] impairment(s) and
its effects on [the claimant] that is relevant….” 20 C.F.R. § 404.1526(a), (c). Further,
equivalence depends on medical evidence only; age, education, and work experience are
irrelevant. Id. at § 404.1526(c). Finally, “the claimant’s illnesses ‘must be considered in
combination and must not be fragmentized in evaluating their effects.’” Lester v. Chater,
81 F.3d 821, 829 (9th Cir. 1995) (quoting Beecher v. Heckler, 756 F.2d 693, 694-95 (9th
Cir. 1985)).
“A boilerplate finding is insufficient to support a conclusion that a claimant’s
impairment does not” meet or equal a listed impairment. Lewis, 236 F.3d at 512 (citing
Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990)).
Listing 1.04A provides that certain “disorders of the spine” are among the
impairments conclusively establishing disability. Examples of spinal disorders are given,
such as spinal stenosis, and degenerative disc disease resulting in compression of a nerve
root as a prerequisite. It next requires “[e]vidence of nerve root compression
characterized by”—i.e., distinguished by—the four symptoms listed, which include
neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy
with associated muscle weakness or muscle weakness) accompanied by sensory or reflex
loss and, if there is involvement of the lower back, positive straight-leg raising test
MEMORANDUM DECISION AND ORDER - 7

(sitting and supine). 20 C.F.R. Part 404, Subpart P, App. 1, § 1.04A; MERRIAM
WEBSTER'S COLLEGIATE DICTIONARY 192 (10th ed.1997) (“characteristic”). The use of
“and” to connect the four symptoms means that all of the symptoms must be present, but
not necessarily at the same time. Radford v. Colvin, 734 F.3d 288, 298 (4th Cir. 2013).
However, positive straight-leg raising test is required only if there is involvement of the
lower back. 20 C.F. R. Part 404, Subpart P, App.1, § 1.04A.
For the Court to engage in a meaningful review of the record, there must be a
record of the basis for the ALJ’s ruling, which should include a discussion of which
evidence the ALJ found credible and why. Here, the ALJ’s ruling lacks such a discussion.
First, the decision regarding the applicability of Listing 1.04A is devoid of reasoning. The
ALJ simply concluded summarily that Petitioner’s impairment of her cervical spine did
not meet or equal a listed impairment, but provided no explanation other than the
statement that “Listing 1.04 was considered in evaluating the claimant’s degenerative
disc disease.” (AR 13.) No discussion of the MRI results appears, nor is there any
discussion of treating physician Margaret Russell’s MRI review dated February 21, 2014,
anywhere in the ALJ’s ruling.
A full explanation by the ALJ would be particularly helpful in this case because
the MRI results indicate evidence supportive of Petitioner’s claim. Dr. Russell indicated
the MRI results indicate spinal cord compression at C5-C6, with a combination of disc
erosion and an osteophyte on the left causing Petitioner’s symptoms in her left arm.
Petitioner reported she suffered from numbness, tingling and pain from her elbows to her
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fingers, with difficulty grasping. (AR 210.) Dr. Russell indicated that the MRI results
showed foraminal stenosis of the nerves, and neuropathy on the left. (AR 218.) Thus,
from the results of the MRI, it appears Petitioner has spinal stenosis, degenerative disc
disease at the cervical spine, and nerve root compromise.
Respondent argues that the MRI does not indicate “neuro-anatomic distribution of
pain.” But, the ALJ completely failed to analyze this aspect of the listing requirements.
Yet, the MRI results, and Dr. Russell, both indicate the presence of cervical
radiculopathy, which is defined as nerve root irritation through compression which can
then radiate along the nerves pathways into the arm and hand. 1 The MRI findings
indicated abnormal signal intensity within the cervical spinal cord at the C5-6 level,
raising the possibility of myelopathy. (AR 217.) Myelopathy refers to the compression of
the cervical spinal cord which may result in symptoms of deterioration of fine motor
skills and intermittent shooting pains into the arms like an electrical shock, especially
when bending the head forward, and arm pain (cervical radiculopathy). 2 Petitioner
reported at the hearing and to consultative examiner Craig Stevens that she experienced
pain and numbness in her hands and forearms, and an electric sensation on median
Tinel’s over both wrists and at the ulnar nerve at both elbows. (AR 202.)
The ALJ cited the state medical opinions later in his analysis as support for his
conclusion, but that is not enough to constitute substantial evidence. Radford, 734 F.3d at
295. Although the ALJ gave the state medical opinions of Dr. Stevens and the reviewing
1
2

http://www.spine-health.com/conditions/neck-pain/what-cervical-radiculopathy
http://www.spine-health.com/conditions/spinal-stenosis/cervical-stenosis-myelopathy

MEMORANDUM DECISION AND ORDER - 9

examiner, Dr. Robert Vestal, great weight, he does not indicate why the opinions merit
that weight given Dr. Russell’s interpretation of the January 2014 MRI. See, e.g., Lester
v. Chater, 81 F.3d 821, 831 (9th Cir. 1995) (holding that reliance on the opinion of
nonexamining physicians cannot, by itself constitute substantial evidence). Moreover, the
ALJ appears to have totally and without explanation rejected the opinion of Dr. Russell,
given after she reviewed the MRI results.
Dr. Russell concluded Petitioner’s symptoms, including her arm pain and
numbness greater on left than right, limited range of motion, and her complaints of hand
weakness, were consistent with the MRI findings; and, she recommended surgical
intervention. This is in contrast to Dr. Steven’s findings, wherein he reviewed the x-rays
(which indicated only minimal abnormalities) and concluded Petitioner exhibits an
entirely normal objective physical examination “if viewed purely by objective criteria”
and not upon Petitioner’s statements. (AR 203.) This is in contrast to Dr. Russell’s review
of the more detailed MRI findings, and her note that Petitioner’s subjective symptoms
were entirely consistent with those objective findings. (AR 218-219.)
The ALJ’s failure to discuss the MRI findings in conjunction with Dr. Russell’s
review of them is suspect, because state medical opinions issued by non-examining and
consultative physicians are typically accorded less weight than a treating physician’s
opinion. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). Further, a treating
physician’s opinion contradicted by another doctor may only be rejected if the ALJ

MEMORANDUM DECISION AND ORDER - 10

provides “specific and legitimate reasons” supported by substantial evidence in the record
for doing so. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983).
Here, remand is appropriate given the apparent conflict between Dr. Steven’s
review and findings indicating Petitioner’s pain and radicular symptoms were
inconsistent with the x-rays he reviewed, and Dr. Russell’s review of the MRI findings
wherein she found them consistent with Petitioner’s subjective reports of radicular pain
and numbness. The ALJ’s failure to adequately explain why the MRI results, and Dr.
Russell’s review of them in conjunction with Petitioner’s subjective reports consistent
with those findings, precludes this Court from making a finding of disability on the
record before it. See, e.g., Kastner v. Astrue, 697 F.3d 642 (7th Cir. 2012) (reversing the
district court, and remanding because the ALJ failed to consider all relevant evidence in
determining whether the petitioner met Listing 1.04(A), and his conclusory statement was
insufficient). Remand is therefore appropriate.

MEMORANDUM DECISION AND ORDER - 11

ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

Plaintiff’s Petition for Review (Dkt. 1) is GRANTED.

2)

This action shall be REMANDED to the Commissioner for further

proceedings consistent with this opinion.
3)

This Remand shall be considered a “sentence four remand,”

consistent with 42 U.S.C. § 405(g) and Akopyan v. Barnhart, 296 F.3d 852,
854 (9th Cir. 2002).
September 14, 2015

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