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Lopez v. Colvin

United States District Court, D. Arizona

July 8, 2016

Galena Kaye Duarte Lopez, Plaintiff,
Carolyn W. Colvin, Defendant.


          David G. Campbell United States District Judge

         Plaintiff Galena Kaye Duarte Lopez seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security which denied her disability insurance benefits and supplemental security income under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. Because the ALJ's decision contains reversible error and there are no substantial grounds for doubting that Lopez is disabled, the Court will remand for an award of benefits.

         I. Background.

         Lopez is a 49-year-old female who previously worked as an office clerk, fast food worker, hospital worker, and production line worker. A.R. 38-39. On November 14, 2011, Lopez filed an application for disability insurance benefits and supplemental security income, alleging disability beginning December 31, 2008. A.R. 26. On August 14, 2013, an ALJ held a hearing on the application. A.R. 50-85. Lopez appeared with her attorney and testified. A vocational expert also testified. Id.

         On December 18, 2013, the ALJ issued a decision that Lopez was not disabled within the meaning of the Social Security Act. A.R. 26-40. The decision proceeded according to the five-step evaluation process set forth at 20 C.F.R. § 404.1520(a)(4). At step one, the ALJ found that Lopez had not engaged in substantial gainful activity at any time between the alleged onset date and the date of decision. A.R. 28. At step two, the ALJ found that Lopez had the following severe impairments: lumbar degenerative disc disease, bilateral carpal tunnel syndrome (status post-right release), cervical spine degenerative disc disease and joint disease, thoracic spine spondylosis, and bilateral knee osteoarthritis. A.R. 28. At step three, the ALJ determined that Lopez did not have an impairment or combination of impairments that met or medically equaled an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. A.R. 31. At step four, the ALJ found that Lopez had the residual functional capacity ("RFC") to:

lift and carry 20 pounds occasionally and 10 pounds frequently. She can stand and/or walk for 4 hours in an 8-hour workday with normal breaks. She can sit for 6 hours in an 8-hour workday with normal breaks. The claimant has no limitations with pushing and pulling as long as within the weight restrictions above. She can occasionally climb ramps and stairs, stoop, kneel, and crouch. She should never climb ladders, ropes, or scaffolds or crawl. She is limited to frequent fingering, handling, and feeling bilaterally with the upper extremities. The claimant should avoid even moderate exposure to unprotected heights. The claimant may need to use a cane for balance when ambulating.

A.R. 33. The ALJ found Lopez unable to perform any of her past relevant work. A.R. 38. At step five, the ALJ concluded, considering Lopez's age, education, work experience, transferrable skills, and RFC, that there were jobs existing in significant numbers in the national economy that she could perform, including appointment clerk and address clerk. A.R. 39. The Appeals Council denied Lopez's request for review, making the ALJ's decision final. A.R. 1.

         II. Legal Standard.

         The district court reviews only those issues raised by the party challenging the ALJ's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court may set aside the Commissioner's disability determination only if the determination is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a preponderance, and relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the record as a whole. Id. In determining whether substantial evidence supports a decision, the court must consider the record as a whole and may not affirm simply by isolating a "specific quantum of supporting evidence." Id. (internal citations and quotation marks omitted). As a general rule, "[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted).

         III. Symptom Testimony.

         In evaluating the claimant's symptom testimony, ALJs must engage in a two-step analysis. First, the ALJ must determine whether the claimant presented objective medical evidence of an impairment that could reasonably be expected to produce the symptoms alleged. 20 C.F.R. § 404.1529(b). If the claimant has presented such evidence, the ALJ proceeds to consider "all of the available evidence, including [the claimant's] history, the signs and laboratory findings, and statements from [the claimant], " her doctors, and other persons to determine the persistence and intensity of these symptoms. § 404.1529(c)(1). If there is no evidence of malingering, the ALJ may reject the claimant's symptom testimony only by giving specific, clear, and convincing reasons that are supported by substantial evidence. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).

         Lopez testified that she was unable to work because of pain in her hands, knees, and lower back. A.R. 57-58. She rated her pain as an 8 out of 10, and stated that she was unable to obtain pain medication due to lack of insurance. A.R. 61. She testified that her pain prevented her from lifting heavy objects, sitting for more than two hours at a time, or standing or walking for more than 25 minutes at a time. A.R. 59-60, 64-65.

         The ALJ determined that Lopez's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but that her statements concerning the intensity, persistence, and limiting effects of these symptoms were not entirely credible. A.R. 33-34. The ALJ found Lopez's testimony not entirely credible because: (1) she failed to account for the benefit she previously received from medication; (2) the alleged limitations were inconsistent with her "somewhat normal level of daily activity and interaction"; (3) her complaints of debilitating pain were not supported by clinical or laboratory findings; and (4) her testimony was marred by a variety of inconsistencies. A.R. 33-36. Lopez challenges each of these findings.

         A. Benefit of Treatment.

         "Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits." Warre v. Comm'r, 439 F.3d 1001, 1006 (9th Cir. 2006). Thus, the ALJ is entitled to discount a claimant's symptom testimony if the testimony relates to a period when the claimant was not using medication or other treatment, and there is evidence that the symptoms in question could have been effectively controlled with treatment. See 20 C.F.R. § 404.1529(c)(3)(iv)-(v) (in evaluating symptom testimony, ALJ will consider "[t]he type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms, " as well as treatments other than medication).

         The ALJ found that Lopez had been prescribed and taken appropriate medications for her impairments, and that the medications had been "relatively effective in controlling [her] symptoms." A.R. 34. The ALJ explained:

While the claimant has no medications due to lack of insurance coverage, the treating and progress notes prior to her loss of insurance indicate she received benefit from such medications and treatments in alleviating her symptoms. In December 2009, January 2010, February 2010, March 2010, and April 2010 the claimant reported the pain symptoms have been somewhat controlled with the medication regimen. [citing A.R. 388, 392, 397, 404, 410, 414]. On January 19, 2010 and February 4, 2010, the claimant reported that she noticed a "significant decrease" in the pain after the [steroid] injections to her knees. [citing A.R. 397, 404]. Progress notes from Valley Orthopedics in January 2013[] show[] the claimant reported a 70% improvement in her pain after undergoing caudal epidural steroid injections. [citing A.R. 780]. The claimant's allegations of severity and intensity are not supported as she has been able to manage her condition with medication when compliant and actively treating with providers.

Id. The Commissioner points to additional record support for the ALJ's position. See A.R. 495 (injections to Lopez's knees provided "tremendous relief but unfortunately wore off within approximately a month"), 601 (bilateral lumbar radiofrequency ablation provided "excellent benefit"), 604 ("bilateral lumbar medial branch nerve blocks . . . gave her 80% relief for one day").[1]

         The ALJ's analysis demonstrates that Lopez pain was somewhat responsive to medication and other treatment. But to reject a claimant's testimony, it is not enough for the ALJ to show that the pain was responsive to treatment; the ALJ must show that the pain was "controlled, " Warre, 439 F.3d at 1006, i.e., no longer debilitating. The fact that a claimant experienced a brief period of reprieve following treatment does not support a finding that her pain was controlled. Rather, the ALJ must show that the treatment was capable of providing lasting relief. Cf. Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1462 (9th Cir. 1995) ("individuals whose disabilities include periods of remission will lose their disabled status only if they are able to engage in substantial gainful activity" during the period of remission).

         None of the evidence relied upon by the ALJ or the Commissioner supports a finding that Lopez's pain was controlled. Even when Lopez's doctors reported that treatment had improved Lopez's symptoms, they consistently found that she remained in significant pain. See, e.g., A.R. 388 (although Lopez's pain had been "somewhat controlled" by medication, she continued to report pain between 5/10 and 10/10), 397 (despite "significant decrease in the pain after the injection, " Lopez reported pain level between 3/10 and 4/10), 780 (although caudal lumbar epidural steroid injections reduced Lopez's pain by 70%, she continued to report pain between 5/10 and 8/10). Moreover, the relief she experienced was short-lived. Compare A.R. 397 (reporting pain level between 3/10 and 4/10, one week after knee injection administered January 12, 2010) with A.R. 404 (reporting pain levels between 5/10 and 10/10 less than a month later, on February 4, 2010); see also A.R. 495 (injections to Lopez's knees provided "tremendous relief but unfortunately wore off within approximately a month"). In short, there is no evidence that Lopez was able to keep her pain at a manageable level for an extended period of time, even with aggressive treatment. Because substantial evidence does not support the ALJ's finding that Lopez could control her pain with medications or other treatments, it was error to reject Lopez's symptom testimony on this basis.

         B. Clinical and Laboratory Findings.

         "Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in [her] credibility analysis." Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). It was not a factor the ALJ could consider here, however, because the objective medical evidence amply supports Lopez's allegations of chronic, debilitating pain. For example, Lopez's treating physician, Dr. Edward Sayegh, included "obvious pain and discomfort" among the objective findings of his physical examinations on 24 occasions.[2] Lopez's pain specialist found that she "does have a legitimate pain generator and is in significant pain." A.R. 612. Lopez's doctors prescribed very aggressive treatment for her pain, including carpal tunnel surgery for both hands, A.R. 569-70, lumbar radio frequency ablation, A.R. 601, steroid injection in the knees, A.R. 396, steroid injections for the back, A.R. 714, physical therapy, wrist braces, A.R. 739, and multiple narcotics, A.R. 519. Doctors have recommended "total knee replacement" to address "significant arthritic change of the knee joints" including "bone on bone changes." A.R. 496, 739, 721. Doctors have suggested that back surgery may be required if steroid injections are not successful in ...

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