Fenion v. Commissioner of Social Security Administration

          ORDER

          Leslie A. Bowman United States Magistrate Judge.

         The plaintiff filed this action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g). (Doc. 1, p. 1)

         The Magistrate Judge presides over this case pursuant to 28 U.S.C. § 636(c) having received the written consent of both parties. See Fed.R.Civ.P. 73; (Doc. 15)

         The ALJ's finding that Fenion's back pain is not severe is not supported by substantial evidence and is not free from legal error. See Orn v. Astrue, 495 F.3d 625, 630 (9^th Cir. 2007). The case is remanded for further proceedings.

         PROCEDURAL HISTORY

         In August of 2013, Fenion filed an application for disability insurance benefits pursuant to Title II of the Social Security Act. (Tr. 127) He alleged disability beginning on June 26, 2012, due to PTSD (post-traumatic stress disease), depression, and back pain. (Tr. 127, 150)

         His application was denied initially and upon reconsideration. (Tr. 74-77); (Tr. 81-83) Fenion requested review and appeared with counsel at a hearing before Administrative Law Judge (ALJ) Myriam Fernandez Rice on December 15, 2015. (Tr. 32) In her decision, dated February 11, 2016, the ALJ found Fenion was not disabled because he has no severe impairments. (Tr. 17-26)

         Fenion appealed, but on July 21, 2017, the Appeals Council denied review making the decision of the ALJ the final decision of the Commissioner. (Tr. 1-5) Fenion subsequently filed this action seeking review of that final decision. (Doc. 1)

         Claimant's Work History and Medical History

         Fenion was 60 years old at the hearing before the ALJ. (Tr. 34) He is a high school graduate. (Tr. 34)

         Fenion last worked as a vinyl cutter in a carpet warehouse. (Tr. 34) He hurt his back in 2011 “when he was lifting a very heavy vinyl roll weighing some 300 pounds.” (Tr. 292) He received workers compensation that ended in 2012. (Tr. 34) Fenion stated that he suffers from PTSD, and COPD (chronic obstructive pulmonary disease). (Tr. 35) He takes medication for back pain and for depression. (Tr. 36) Fenion explained that he can no longer work because he can no longer perform heavy lifting. (Tr. 37)

         Mental Impairment

         In February of 2014, Raymond Novak, M.D., reviewed the medical record for the disability determination service and offered an opinion of Fenion's mental impairment. (Tr. 56-57) Novak diagnosed Fenion with affective disorder. (Tr. 56) He then evaluated Novak's “B” listing criteria, which gauge the severity of his limitations. See 20 C.F.R. § 404.1520a(c)(3). Novak found Fenion has no restrictions of his daily activities; “mild” difficulties in maintaining social functioning; “mild” difficulties in maintaining concentration, persistence, or pace; and no evidence of decompensation. (Tr. 56) Novak further opined that the medical evidence did not establish the presence of the “C” criteria, which are an alternative gauge of the extent of his mental impairment. (Tr. 56) Novak concluded that Fenion's mental impairment is non-severe. (Tr. 57)

         In August of 2014, Jaine Foster-Valdez, Ph.D., reviewed the medical record for the disability determination service and offered a second opinion of Fenion's mental impairment. (Tr. 68) Foster-Valdez agreed with the assessment provided by Novak. Id.

         In January of 2014, Fenion was examined by Gwendolyn W. Johnson, Ph.D., for the disability determination services. (Tr. 303) Johnson diagnosed Fenion with depressive disorder resulting from chronic health problems. (Tr. 305) She opined that his “prognosis for a successful return to the work force is estimated as good.” (Tr. 305) Johnson concluded that Fenion's mental impairment was not severe. (Tr. 306)

         Physical Impairment

         In August of 2011, Fenion underwent an MRI examination of his lumbar spine. (Tr. 317-318) Mild to moderate disc bulge was observed at the L2-3 position. Id. Mild disc bulging was observed at the L3-4, L4-5, and L5-A1 positions. Id.

         In March of 2012, Fenion underwent an extensive functional capacity evaluation at the Center for Career Evaluations. (Tr. 704-732) Susan Ito, RPT, explained that “Mr. Fenion's safe maximal lifting capacity is 10 lbs. He is unable to tolerate sitting/standing or walking for more than 10 minutes.” (Tr. 706)

         In April of 2012, Fenion's treating physician, John Giddens, M.D., completed a Primary Treating Physicians Permanent and Stationary Report in connection with his workman's compensation claim. (Tr. 356-358) The form instructions explain that it should be completed “once the patient's condition becomes permanent and stationary.” (Tr. 352) In the Functional Capacity Assessment section, Giddens marked “50 pounds or more” under the “Frequent Lift and/or Carry” section. (Tr. 357) He marked “Unlimited” in the “Stand and/or Walk” section and the “Sit” section. (Tr. 357) He marked “Unlimited” in the “Push and/or Pull” section. Id. Under “Activities Allowed” he marked “Occasionally” for Stooping and Crouching, and he marked “Frequently” for all other listed activities. (Tr. 357)

         In the narrative section, however, Giddens stated that “Mr. Fenion cannot bend or stoop repetitively. He should not kneel or squat, and must be able to alternate sitting and standing positions. He cannot lift, push, or pull greater than 10 pounds at [a] time.” (Tr. 357-358) This statement is entirely contrary^[1] to the evaluation given in the ...