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Gustavo Cosio v. Michael J. Astrue

July 15, 2011


The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge



Gustavo Cosio ("Plaintiff") requests this Court to overturn the decision of the Commissioner of the Social Security Administration (the "Commissioner") denying his application for Supplemental Security Income ("SSI") benefits and disability insurance benefits ("DIB"). On June 4, 2010, Plaintiff filed a Request To Proceed In Forma Pauperis ("IFP Request") and lodged a complaint (the "Complaint"). On August 3, 2010, this Court granted Plaintiff's IFP Request and filed Plaintiff's Complaint. Pursuant to this Court's August 4, 2010 order, the Commissioner filed an answer to Plaintiff's complaint and a certified administrative record ("AR") on December 6, 2010, and Plaintiff and the Commissioner each filed a memorandum of points and authorities ("Plaintiff's Memorandum" and the "Commissioner's Memorandum") in support of their positions on January 5, 2011 and January 31, 2011 respectively. On February 15, 2011, Plaintiff filed a reply to the Commissioner's Memorandum. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the decision of the Commissioner is AFFIRMED.


On February 9, 2006, Plaintiff filed an application for DIB under Title II. (AR 38). On February 15, 2006, Plaintiff filed a second application for SSI benefits under Title XVI. (AR 37). Plaintiff was born on June 29, 1967 and was thirty-eight years old at the time he filed his benefit applications. (AR 37-38). Plaintiff claimed he has been disabled since January 18, 2005. (AR 44, 83). Plaintiff was thirty-seven at the time he allegedly became disabled. (See AR 37-38, 52). The Commissioner initially denied Plaintiff's applications on June 8, 2006 and again denied Plaintiff's applications upon reconsideration on January 11, 2007. (AR 54-59, 62-66).

On February 1, 2007, the Commissioner received Plaintiff's request for an Administrative Hearing (the "Hearing") by an Administrative Law Judge ("ALJ"). (AR 71). The Hearing took place in San Bernardino,California on December 4, 2007. (AR 11). At the Hearing, Plaintiff, represented by counsel, appeared and testified. (AR 17-30). Vocational expert ("VE") Corrine Porter also testified at the Hearing. (AR 31-35). On January 23, 2008, Plaintiff learned that the ALJ issued an unfavorable decision. (AR 10). On February 19, 2008, the Commissioner received Plaintiff's request for a review of the ALJ's decision. (AR 9). On April 7, 2010, the Commissioner denied Plaintiff's Request for Review, making the ALJ's decision final. (AR 1-3).


A. Plaintiff's Testimony

At the December 4, 2007 Hearing, Plaintiff, represented by counsel, testified that he has not worked since January 2005 due to severe back pain. (AR 20). According to Plaintiff, he reported a problem with his back in 2000 and had since received one injection and pain medication to address his back pain. (AR 21). Plaintiff also testified that he watches television and walks outside to "use up [his] day," but he "hardly get[s] any exercise because of the pain." (AR 22). Plaintiff described difficulty while standing and sitting. (AR 23-24). Plaintiff also described difficulty while sleeping, stating that "at night, . . . [Plaintiff must sleep in a] complete almost standing position with cushions around." (AR 23). Plaintiff added that he "hardly sleep[s] at all during the night." (Id.).

Additionally, Plaintiff described difficulties with self-care. (AR 27). Plaintiff testified that he has difficulties bathing and dressing himself and that he required his wife's assistance to get dressed. (Id.). Plaintiff also stated that he has to lay down for about one hour three to four times during the day because he has to sleep and that he can only lift and carry "nine pounds if even that." (Id.). When the ALJ asked Plaintiff about a May 25, 2004 medical report that quoted Plaintiff as saying that he regularly plays soccer, Plaintiff stated that he did not know when he last played soccer and did not think 2004 was the last time he played. (AR 28). When asked to rate his pain on a scale of zero to ten, Plaintiff stated, "It's an intense like a nine. It's an intense pain that is inside. Like, for instance, if I try to bend out like straighten myself out, it increases the pain more." (AR29).

B. Plaintiff's Medical Evidence

Plaintiff's medical evidence begins on June 5, 2000 and continues to January 11, 2007. (AR 150-295). The Administrative Record contains medical records from Concentra Occupational Medical Center; Desert Valley Medical Group; Desert Valley Hospital; and various Kaiser Permanente locations. (AR 150-73, 189-256, 269-91). The AR also contains examinations conducted by Dr. Albert Simpkins and Dr. Warren Yu, as well as reviews of Plaintiff's medical records by Dr. Leonard Naiman and Dr. F. Kalmar. (AR 174-88, 257-68, 292-95).

1. Plaintiff's Treatment Records

On May 25, 2004, Plaintiff received treatment from Jones and Jones Medical Associates. (AR 159). The notes state that Plaintiff initially complained of a headache but later denied the headache and complained only of back pain. (Id.). Plaintiff also stated that he plays soccer regularly without difficulty. (Id.). The next day, Plaintiff had three views of his spine imaged at Valley Imaging Center. (AR 155). Dr. G.S. Kang reported that Plaintiff had very minimal degenerative changes. (Id.).

Dr. Suk Won Park, Plaintiff's treating physician, began seeing Plaintiff on December 29, 2004. (AR 269). Dr. Park's notes from December 29, 2004 state that Plaintiff had no job, complained of lower back pain and assessed Plaintiff with an acute lumbosacral strain. (AR 228). X-rays on Plaintiff's spine from that day noted a "minimal old anterior compression fracture . . . involving the L1 vertebra with mild to moderate degenerative change of the L1-2 disc interspace" and reported that the other levels of the lumbar spine show a very mild degree of degenerative changes and no disalignment. (AR 215).

On January 18, 2005, Plaintiff met with Karen Chambers, PA-C, complaining of headaches after a non-contrast CT scan of his head. (AR 193, 201-02). Ms. Chambers physically examined Plaintiff, noting that Plaintiff was alert and was in no acute distress. (AR 201). Ms. Chambers also noted that Plaintiff's back was normal upon inspection and that Plaintiff's head CT images returned normal. (AR 201-02).

In a clinic progress record dated January 20, 2005, Dr. Park noted that Plaintiff still complained of back pain. (AR 229). Dr. Park wrote that Plaintiff's lower back pain was likely more secondary to the degenerative joint disease than the minimal compression fracture. (Id.). Dr. Park also noted that Plaintiff's head CT was normal and that Plaintiff was seeking disability benefits. (Id.).

On February 17, 2005, Plaintiff underwent an MRI of the lumbosacral spine. (AR 156). Although "compression fracture" was listed under clinical information, the interpreting doctor did not mention any independent evidence confirming Plaintiff had a compression fracture. (Id.). The interpreting doctor found a "focal left dorsal lateral extrusion of nucleus pulposus" and a "[m]ild peridiscal hypertrophic changes with bulging annulus" at the "L1-L2 level," a "[m]ild broad-based prolapse of nucleus pulposus" and "[v]ery mild disc related spinal stenosis" at "L4-5," "[b]ulging annulus with linear tear in the outer fibers" at "L5-S1," "and "[v]ery mild bilateral lateral recess stenosis from "L4 to S1." (Id.).

On February 22, 2005, Dr. Park noted that Plaintiff had an old compression fracture of L1, and Plaintiff's MRI showed a mild disc bulge and mild degenerative joint disease. (AR 238). Dr. Park wrote in a referral note that even though Plaintiff reported that his current medication did not control his pain, he refused morphine. (Id.). On February 24, 2005, Dr. Park met Plaintiff to follow up on his back pain. (AR 230). Plaintiff still complained of "L1/L2 back pain" and noted that the MRI showed minimal degenerative joint disease. (Id.).

On February 25, 2005, Dr. Park wrote a letter diagnosing Plaintiff with a "L1 lumber (sic) compression fracture, with significant pain at that site." (AR 173). Dr. Park stated that the MRI ruled out other pathology despite previously stating that the MRI showed a disc bulge and mild degenerative joint disease. (Id.).

Dr. Park referred Plaintiff to Dr. Joey Gee for Plaintiff's headaches. (AR 204-06). In Dr. Gee's outpatient neurology consultation notes dated April 4, 2005, he stated that Plaintiff's strength was within normal limits and that Plaintiff was alert, oriented, pleasant and cooperative. (AR 205). Dr. Gee also noted that Plaintiff's arm swing and gait were normal. (Id.). Two days later, Plaintiff saw Dr. Robert Allen, who modified Plaintiff's duties and referred Plaintiff to "ortho." (AR 152). According to Dr. Simpkins, Dr. Allen prescribed Plaintiff a back brace that Plaintiff did not find "very helpful." (AR 176, 183).

On June 14, 2005, Dr. Park wrote a letter stating that Plaintiff suffered severe pain that could not be controlled "despite aggressive treatments" and categorized Plaintiff as disabled. (AR 169). On that day, Dr. Park noted that Plaintiff could ambulate despite his back pain and that Plaintiff kept postponing anesthesia. (AR 236). On July 7, 2005, Dr. Gee noted that Plaintiff was in no apparent distress and had a normal gait. (AR 237).

On October 11, 2005, Dr. Eleanor Cho noted that Plaintiff rated his back pain as a five on a scale of one to ten, described his back pain as "somewhat bothersome" while sitting, and stated the pain got worse when he tried to get up. (AR 240). Dr. Cho also noted that Plaintiff had previously turned down an epidural injection, had received no treatment for his back other than Motrin and stated the pain decreased while standing but would hurt while walking. (Id.). Dr. Cho's notes described Plaintiff in relatively good condition, stating that Plaintiff was alert and cooperative, had no tenderness, had good motor strength in his lower extremities, had intact sensations in both lower extremities and had negative straight leg and Patrick's test. (AR241).

On April 14, 2006, Dr. Gerald Goodlow reviewed Plaintiff's MRI and examined him. (AR 275-76). Dr. Goodlow stated that the prior MRI showed that "there was bulging of the disc at L1-2, L4-5, and L5-s1." (AR 275). Dr. Goodlow noted that Plaintiff was "otherwise in good health" and that Plaintiff was taking Motrin for his back pain. (Id.). Dr. Goodlow's physical examination revealed pain "mostly located along the right lumbosacral paraspinal muscles and also in the midline," and the pain was "particularly worsened with extension and lateral bending." (Id.). Dr. Goodlow also noted that Plaintiff's strength was five out of five and had an unremarkable gait. (Id.). Dr. Goodlow stated that Plaintiff could have a "possible L1 compression fracture without evidence of radiculopathy." (Id.).

On June 28, 2006, Plaintiff underwent another MRI per Dr. Goodlow's referral. (AR 278-79). The scan revealed a "central disc protrusion at L5-S1 with annular tear," a generalized "posterior disc protrusion at L4-L5 level, affecting the lateral recess where bilateral traversing L5 roots are located," and a "moderate discogenic disease at L1-L2 with a . . . posterior disc protrusion." (Id.). The interpreting doctor explicitly found that the "lumbar spine is normal from L1 to S1 without compression fracture or spondylolisthesis." (AR279).

In between Plaintiff's appointments with Dr. Goodlow, Plaintiff met with Dr. Park on February 1, 2006, May 24, 2006 and July 28, 2006. (AR 280-282). On February 1, 2006, Dr. Park wrote that Plaintiff had an outside MRI and stated that a standing forklift was not available at his current job. (AR 280). On May 24, 2006, Dr. Park noted that Plaintiff wanted disability and worker's compensation for the lumbar compression fracture. (AR 281). On July 28, 2006, Dr. Park only wrote "form needs to be filled out." (AR 282). On August 2, 2006, Dr. Park filled out a Residual Functional Capacity Questionnaire where Dr. Park stated that Plaintiff suffered from a compression fracture of the first lumbar vertebrae and diffuse multilevel disc bulges of the lower spine. (AR 269). Dr. Park stated that Plaintiff suffered from insomnia, chronic lower back pain, and severe middle back pain. (Id.). Dr. Park stated Plaintiff could not sit or stand for more than thirty minutes before needing to get up, could only occasionally lift items less than ten pounds, will require unscheduled breaks daily, suffers symptoms that will frequently interfere with Plaintiff's attention and concentration, and has a "poor" prognosis. (AR 269-71).

2. Dr. Albert Simpkins

On October 25, 2005, Plaintiff submitted to an agreed medical evaluation by consulting physician, Dr. Albert Simpkins. (AR 175). Dr. Simpkins, an orthopaedic surgeon certified by the American Board of Orthopaedic Surgery, made findings based on Plaintiff's medical records from May 26, 2004 to July 7, 2005; Plaintiff's history of injury, as related by Plaintiff; a physical examination of Plaintiff; and Plaintiff's June 23, 2005 deposition. (AR 175-88).

Dr. Simpkins reviewed and summarized Plaintiff's medical records, including Dr. Peter Sofia's notes from a June 28, 2005 examination of Plaintiff. (AR 181-82).*fn1 Dr. Sofia noted that Plaintiff rated his pain a nine out of ten but he had difficulty believing Plaintiff's claim because "[he] was sitting quite comfortably." (AR 181). Dr. Sofia questioned why other doctors declared Plaintiff's alleged injury occupational or why Plaintiff had been scheduled for epidurals without evidence of radiculopathy. (AR 182). Dr. Sofia also stated that the injury did not appear to be work related, that [Plaintiff] has the expected degenerative ...

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