(SS) Carson v. Commissioner of Social Security ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LYNETTE DOREEN CARSON, Case No. 1:21-cv-00508-EPG 12 Plaintiff, FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF’S SOCIAL 13 v. SECURITY COMPLAINT 14 COMMISSIONER OF SOCIAL (ECF No. 1, 18). 15 SECURITY, 16 Defendant. 17 18 This matter is before the Court on Plaintiff’s complaint for judicial review of an 19 unfavorable decision by the Commissioner of the Social Security Administration regarding her 20 application for disability insurance benefits. The parties have consented to entry of final judgment 21 by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c) with any appeal 22 to the Court of Appeals for the Ninth Circuit. (ECF No. 11). 23 Plaintiff presents the following issue: 24 A. The ALJ erred in finding that Plaintiff’s cervical spine degenerative disc disease and fibromyalgia were non-severe impairments at Step Two and the 25 resultant RFC fails to include limitations related to that impairment. 26 (ECF No. 18, p. 1). 27 Having reviewed the record, administrative transcript, the briefs of the parties, and the 28 applicable law, the Court finds as follows: 1 I. ANALYSIS 2 Plaintiff argues that the ALJ erred at Step Two by failing to find Plaintiff’s cervical spine 3 degenerative disease and fibromyalgia to be severe impairments. As a result, Plaintiff argues that 4 the RFC assessment failed to reflect limitations related to those impairments. If a claimant has a medically determinable impairment (MDI), the ALJ must determine 5 “whether [the] impairment(s) is severe,” which is referred to as Step Two. 20 C.F.R. § 404.1521. 6 A “severe” impairment is “any impairment or combination of impairments which significantly 7 limits [a claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. 8 § 404.1520(c). The “ability to do basic work activities,” in turn, is defined as “the abilities and 9 aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1522(b). 10 The Ninth Circuit has provided the following guidance regarding whether medically 11 determinable impairments are severe under Step Two: 12 An impairment or combination of impairments may be found “not severe only 13 if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual’s ability to work.” [Smolen v. Chater, 80 F.3d 1273, 1290 14 (9th Cir. 1996)] (internal quotation marks omitted) (emphasis added); see Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988). The Commissioner has stated that 15 “[i]f an adjudicator is unable to determine clearly the effect of an impairment or combination of impairments on the individual’s ability to do basic work activities, 16 the sequential evaluation should not end with the not severe evaluation step.” 17 S.S.R. No. 85–28 (1985). Step two, then, is a “de minimis screening device [used] to dispose of groundless claims,” Smolen, 80 F.3d at 1290, and an ALJ may find 18 that a claimant lacks a medically severe impairment or combination of impairments only when his conclusion is “clearly established by medical 19 evidence.” S.S.R. 85-28. Thus, applying our normal standard of review to the 20 requirements of step two, we must determine whether the ALJ had substantial evidence to find that the medical evidence clearly established that [Plaintiff] did 21 not have a medically severe impairment or combination of impairments. See also Yuckert, 841 F.2d at 306 (“Despite the deference usually accorded to the 22 Secretary’s application of regulations, numerous appellate courts have imposed a narrow construction upon the severity regulation applied here.”). 23 Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005). Substantial evidence “is such relevant 24 evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 686. 25 A. Cervical Spine Degenerative Disease 26 Here, the ALJ found Plaintiff’s lumbar disc degenerative disease to be severe. (A.R. 43). 27 However, the ALJ concluded that Plaintiff’s cervical spine degenerative disc disease was not a 28 1 severe impairment: 2 After carefully considering the medical evidence of record in its entirety, I find that the claimant’s cervical spine degenerative disease. . . [does] not significantly 3 limit the ability to perform basic work activities and are therefore nonsevere. 4 July 2, 2015 cervical spine x-rays revealed diffuse osteopenia without evidence of fracture or significant subluxation. There was diffuse disc space narrowing at C4- 5 5, C5-6, and C6-7 with osteophytosis and facet and uncovertebral joint arthropathy. There was no nerve root impingement. (See Exhibit 8F/32-33). 6 On March 14 and 17, 2016 examination, she had tenderness of the left 7 cervioscapular, and decreased range of motion with lateral bend to the right. Rotation was normal. (Exhibits 12F/146 and 13F/5). She rarely, if ever, exhibited 8 abnormal cervical spine findings otherwise. (See Exhibits 1F, 2F, 3F, 4F, 6F, 7F, 8F, 9F, 10F, 11F, 12F, 13F, 14F, and 15F). Indeed, at the March 22, 2017 State 9 Agency consultative examination, her neck range of motion was within normal 10 limits. (Exhibit 4F/3). As such, I find her cervical spine degenerative changes to be nonsevere. 11 (A.R. 43). 12 Plaintiff contends that the ALJ erred in finding Plaintiff’s cervical spine degenerative 13 disease to be non-severe. (ECF No. 18, pp. 18-20). Step Two is a de minimis standard to screen 14 out non-meritorious claims. See Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Here, the 15 medical evidence does not “clearly establish” Plaintiff’s cervical spine degenerative disease as 16 non-severe. See Webb, 433 F.3d at 687. 17 The ALJ found Plaintiff’s cervical disease to be non-severe because a July 2015 cervical 18 spine X-ray did not evidence any fracture, significant subluxation, or nerve root impingement. 19 (A.R. 43 (citing A.R. 892-3)). However, as Plaintiff points out, this analysis omitted reference to 20 an October 28, 2015 MRI scan that had significant findings that are not consistent with this 21 opinion. (See ECF No. 18, p. 18 (citing A.R. 1382)). Specifically, the MRI found “[m]oderate cervical spondylosis with multilevel neural foraminal stenosis, most evident on the left at C6-C7” 22 and “[a]dditional central canal and neural foraminal narrowing.” (A.R. 1382). The Commissioner 23 argues that the ALJ’s finding is supported by the relative lack of abnormal cervical findings 24 during Plaintiff’s physical examinations (see A.R. 43 (citing A.R. 326-417, 420-1768), as well as 25 the ALJ’s reliance on a March 2017 state consultative medical examination where Plaintiff’s 26 range of motion in her neck was found to be within normal limits (A.R. 43 (citing A.R. 412)). 27 However, the ALJ’s general citation to over a thousand pages of the medical record, including 28 1 mental health treatment notes and specialist visits for conditions unrelated to Plaintiff’s neck pain, 2 does not indicate that the ALJ considered the MRI findings at all. To not discuss this evidence, 3 and base the finding on less probative evidence, was error. See Webb, 433 F.3d 683, 688 4 (substantial evidence did not support finding claimant’s lower back pain to be non-severe where the record included x-rays showing “disc space narrowing” and a doctor’s opinion that claimant 5 may have suffered “degenerative” back conditions and “disc fragmentation or significant 6 herniation”). 7 The Court next looks to whether the ALJ’s error was harmless. Any error in failing to find 8 an impairment severe at Step Two is harmless where the ALJ considers the limitations posed by 9 the impairment in the step four analysis. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007); see 10 also Buck v. Berryhilld, 869 F.3d 1040, 1049 (9th Cir. 2017) (Where the ALJ ultimately decided 11 step two in the claimant’s favor, “she could not possibly have been prejudiced.”). Here, it does 12 not appear that the ALJ specifically addressed symptoms related to cervical spine disease when 13 determining Plaintiff’s RFC, and the ALJ’s earlier determination that the impairment was not 14 severe may have limited the evaluation at this step as well. Accordingly, the Court finds remand 15 warranted to address what, if any, additional limitations should be added to the RFC regarding the 16 cervical degenerative disc impairment, and whether any change to the RFC affects the ALJ’s 17 ultimate decision regarding disability. 18 B. Fibromyalgia 19 As discussed above, the ALJ found Plaintiff’s lumbar disc degenerative disease to be 20 severe. (A.R. 43). However, the ALJ concluded that Plaintiff’s fibromyalgia was not a severe 21 impairment: 22 After carefully considering the medical evidence of record in its entirety, I find that the claimant’s. . . fibromyalgia/myofascial pain syndrome . . . [does] not 23 significantly limit the ability to perform basic work activities and are therefore nonsevere. 24 (A.R. 43). 25 Treating notes show the claimant’s providers at Kaiser Permanente diagnosed her 26 with myofascial pain syndrome (fibromyalgia). (See Exhibit 9F/13). Fibromyalgia was later included in her past medical history at Camarena Health Centers, (see 27 Exhibit 6F/17), and on October 12, 2017, internist Dr. Pushkal Jadaun, M.D., to whom the claimant was referred for a disability evaluation, (see Exhibit 6F/25), 28 1 found that she had tender points all over the body, consistent with fibromyalgia. (Exhibit 6F/19). Earlier, on March 14, 2016, D. Muhammad Khalid Akbar, M.D. 2 of Kaiser Permanente found on examination that all four of the claimant’s extremities had mild-to-moderate tenderness present over tender points of 3 fibromyalgia. (Exhibit 12F/147). On March 10, 2016, then primary care physician 4 Dr. Maribeth Sian Ruiz, M.D. found that she was positive for trigger points on the back of her head, base of neck, shoulders, and lower back bilaterally. She was in 5 no acute distress. (Exhibit 12F/125). Dr. Akbar recorded no tender points on March 17, 2016 follow-up. (See Exhibit 13F/5). 6 Dr. Jadaun stated that the claimant’s fibromyalgia made her back pain worse. (See 7 Exhibit 6F/20). However, treating notes indicate little in the way of targeted treatment for fibromyalgia. On March 10, 2016, Dr. Ruiz recommended a trial of 8 tizanidine for fibromyalgia/muscle spasms. (Exhibit 12F/126). However, the claimant did not take this medication for long. She was started on another muscle 9 relaxant, Flexeril, and was on it by April 2016, but there was no mention it was 10 prescribed for fibromyalgia. (See Exhibit 3F/7). Little, if any, mention was made of fibromyalgia thereafter, (see Exhibits 3F, 6F, 12F, and 13F), and on October 12, 11 2017 workup with Dr. Jadaun, referenced in the preceding paragraph, it was listed among her past medical history, but she was no longer taking Flexeril at that time. 12 (Exhibits 6F/18). Fibromyalgia is not mentioned in current free clinic notes on 13 moving to Oklahoma. (See Exhibits 14F and 15F). As such, given the rare findings of tender points, lack of consistent mention in the 14 longitudinal medical record, and the fact that, as discussed in further detail below, the claimant has consistently been in no acute distress on examination, I find her 15 fibromyalgia to be nonsevere. 16 (A.R. 44-45). 17 Plaintiff argues that the ALJ’s finding that her fibromyalgia was not a severe impairment 18 is not supported by substantial evidence because the ALJ ignored the criteria for establishing 19 fibromyalgia as a medically determinable impairment, and thus, Plaintiff’s fibromyalgia is severe 20 because Plaintiff meets these criteria. (ECF No. 18, pp. 20-23). As the Commissioner points out, 21 Plaintiff conflates the agency guidelines for finding fibromyalgia to be a medically determinable 22 impairment with the guidelines for finding a claimant’s fibromyalgia to be severe after 23 establishing that the claimant’s fibromyalgia meets the criteria as a medically determinable 24 impairment. See Soc. Sec. Ruling, Ssr 12-2p; Titles II & Xvi: Evaluation of Fibromyalgia, SSR 12-2P, 2012 WL 3104869 at * 2-5 (S.S.A. June 25, 2012). 25 Moreover, the ALJ’s RFC assessment specifically accounted for Plaintiff’s testimony that 26 she experiences intense reactions to high heat or cold weather due to her fibromyalgia. (See A.R. 27 54; A.R. 64 (“She testified that her pain affects her ability to tolerate extreme heat and cold. The 28 1 | longitudinal medical records, as discussed above, shows that he has been treated for pain 2 | throughout the period under consideration. Albeit, such treatment has been routine and 3 || conservative, and she has consistently been in no acute distress on examination. However, I find 4 || it reasonable that due to paid, she must avoid even moderate exposure to extreme heat and 5 | cold.”)). Accordingly, even if the ALJ erred in finding Plaintiff's fibromyalgia to be non-severe, 6 such error would be harmless because the ALJ considered Plaintiff's fibromyalgia impairment 7 when formulating the RFC. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (holding that 8 any error in failing to find an impairment severe at Step Two is harmless where the ALJ considers 9 the limitations posed by the impairment in the Step Four analysis). I. CONCLUSION AND ORDER 0 Based on the above reasons, the decision of the Commissioner of Social Security is AFFIRMED, in part, and REMANDED, in part. On remand, the ALJ should address what, if any, 2 additional limitations should be added to the RFC regarding Plaintiff's cervical degenerative disc 13 disease impairment, and whether any change to the RFC affects the ALJ’s ultimate decision regarding disability. 15 16 | IT IS SO ORDERED. 'T | Dated: _ June 27, 2023 [JF Phy — 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28