Alcaide v. Commissioner of Social Security Administration

          ORDER

          Honorable John J. Tuchi United States District Judge.

         At issue is the final decision of the Commissioner of Social Security, denying a request from Plaintiff Kelly A. Alcaide, on behalf of Margaret Mary Smith, for Disability Insurance Benefits (Doc. 9 at 758-760). Plaintiff filed a Complaint (Doc. 1) on May 3, 2018, asking this Court to review the denial of Ms. Smith's benefits. The Court has reviewed the briefs (Docs. 12, 16, 17) as well as the Administrative Record (Doc. 9) and now finds that the Administrative Law Judge (ALJ) committed legal error and based her decision on less than substantial evidence. Furthermore, the Court finds that the three factors for the credit-as-true test are met. Accordingly, the Court reverses the ALJ's decision and remands the case to the Social Security Administration for a calculation of benefits.

         I. BACKGROUND

         Margaret Mary Smith originally applied for Title II Disability Insurance Benefits (“DIB”) and Title XVI Supplemental Security Disability Income (“DI”) on October 29, 2007 (the “original claims”), alleging disability beginning November 2, 2006. (R. at 115- 127.) After Ms. Smith's application was denied initially and on reconsideration, she requested a hearing, which was held on January 10, 2010. (R. at 19-39.) On April 28, 2010, an ALJ issued a decision denying Ms. Smith's original claims. (R. at 44-58.) On April 27, 2011, the Appeals Council upheld the ALJ's decision. (R. at 1-3.) On June 24, 2011, Ms. Smith filed an appeal to the federal district court. (R. at 819-827.)

         While her first claim was pending, Ms. Smith filed a second application for DIB and DI (the “subsequent claims”). (R. at 1097-1108.) On December 18, 2013, an ALJ issued a favorable decision on the subsequent claims and established a disability onset date of April 29, 2010-the day after Ms. Smith's original claims were denied by the first ALJ. (R. at 907-912.)

         On August 15, 2012, this Court reversed the first ALJ's denial of the original claims and remanded the case for a new administrative hearing to resolve “conflicting medical opinions regarding Plaintiff's ability to do work-related activities[.]” (R. at 870.) Plaintiff appealed the decision to the Ninth Circuit, asking for a remand for payment of benefits. (R. at 765.) The Ninth Circuit affirmed this Court's decision to remand for a new administrative hearing. (R. at 765.)

         The Appeals Council affirmed the ALJ's approval of the subsequent claims and directed an ALJ on remand to consider disability for a closed period between November 2, 2006 and April 28, 2010. (R. at 903-905.) Ms. Smith passed away on May 23, 2016. (R. at 1019.) Kelly A. Alcaide continued the appeal on her behalf. (R. at 1019.) On July 6, 2017, an ALJ issued a decision denying disability benefits for the closed period between November 2, 2006 and April 28, 2010. (R. at 765-779.) On March 7, 2018, the Appeals Council denied Ms. Alcaide's request for review. (R. at 758-760.) The present appeal followed.

         A. Medical Evidence

         Ms. Smith had multiple medical conditions. The Court will only address those that the parties discuss in their pleadings.^[1]

         1. Treating Physicians a. Dr. Jeffrey Levine

         Dr. Jeffrey Levine treated Ms. Smith for her orthopedic conditions for several years. On November 6, 2006, Dr. Levine diagnosed Ms. Smith with cubital tunnel syndrome of the left elbow and a left frozen shoulder. (R. at 328.) Dr. Levine operated on her left elbow on December 14, 2006. (R. at 351-352, 358.) In January 2007, Ms. Smith reported that she had tripped and injured her left shoulder. (R. at 360.) Dr. Levine's January treatment notes stated that Ms. Smith was “doing extremely well, ” had “regained nearly full motion of the left shoulder, ” and had a “[f]ull range of motion” in her left elbow. (R. at 363.) But in February, Dr. Levine diagnosed Ms. Smith with a “high grade” tear in her left shoulder and noted that it was “very symptomatic.” (R. at 367.) Dr. Levine first operated on Ms. Smith's left shoulder on March 20, 2007. (R. at 369-370.) During the procedure, he diagnosed and repaired several issues. (R. 369-370.) In May 2007, Dr. Levine noted that Ms. Smith was “doing reasonably well” but was “quite stiff” and had “minimal motion.” (R. at 374.) In June and July, Dr. Levine reported that Ms. Smith was doing “very well.” (R. at 377.) But by August, Dr. Levine opined that Ms. Smith was “not doing well” due to pain in her left shoulder and left elbow. (R. at 375.)

         Dr. Levine performed a second operation on Ms. Smith's left shoulder on December 4, 2007. (R. at 388.) Again, he found several issues in the joint and made repairs. (R. at 388.) At Ms. Smith's follow-up appointment, Dr. Levine stated that her shoulder and wound looked “excellent.” (R. at 393.) In January 2008, he stated that her pain was “quite minimal” and referred her to physical therapy (but did not prescribe pain medications due to her allergies to them.) (R. at 399.) In February, Dr. Levine noted that Ms. Smith had “minimal, if any, pain” in her left shoulder but reported symptoms in her right shoulder (R. at 403.) In March 2008, Dr. Levine found that Ms. Smith had “regained excellent motion” of her left shoulder. (R. at 567.) In April 2008, Dr. Levine noted that an EMG and nerve conduction study substantiated an “abnormality of the lower extremities” and recommended a consultation with an orthopedic surgeon for Ms. Smith's lower back problems. (R. at 566.) He stated that Ms. Smith's left shoulder was “improving markedly” with physical therapy. (R. at 566.)

         In November 2007, Ms. Smith reported to Dr. Levine that she had hip and knee pain. (R. at 387.) Dr. Levine noted that she had osteoarthritis in all joints. (R. at 387.) He found only mild tearing in an ultrasound of her knee. (R. at 393.) On May 20, 2008, Dr. Levine saw Ms. Smith for lower back pain, leg pain, and substantial right hip and left knee pain. (R. at 564-565.) Dr. Levine recommended consultation with a neurosurgeon regarding her lower back and procedures for her right hip and left knee. (R. at 565.)

         Dr. Levine assessed Ms. Smith's ability to do work-related activities on April 14, 2008 and found that she could: stand and/or walk for less than 2 hours in an 8-hour workday; sit for 2 hours in an 8-hour workday; and lift or carry less than 10 pounds. (R. at 553-55.) Dr. Levine opined that Ms. Smith's pain was moderately severe and could be reasonably expected to result from objective medical findings. (R. at 556.) Furthermore, Dr. Levine stated that Ms. Smith would not be able to sustain work on a regular and continuing basis. (R. at 560.)

         b. Dr. Tutankhamen Pappoe

         Dr. Tutankhamen Pappoe, a spinal care specialist, treated Ms. Smith from November 2007 through February 2008. (R. at 307-322.) When Ms. Smith first saw Dr. Pappoe on November 5, 2007, she reported pain in her neck, shoulders, lower back, and legs. (R. at 307.) Dr. Pappoe diagnosed her with cervical facet syndrome, lumbar facet syndrome, and lumbar radiculopathy, and ordered an MRI of her spine. (R. at 307.) Dr. Pappoe's December 11 treatment notes show three additional diagnoses-a herniated disc, cervical spondylosis, and lumbar spondylosis-and an order for steroid injections, which Ms. Smith received on January 16, 2008. (R. at 312-314.) At Ms. Smith's follow-up appointment on January 28, she reported a pain level of 7 out of 10, and Dr. Pappoe scheduled another round of steroid injections, which occurred on January 31. (R. at ...