The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER AFFIRMING AGENCY'S DENIAL OF BENEFITS AND ORDERING JUDGMENT FOR COMMISSIONER
Plaintiff Helen Butler, by her attorney, Steven Rosales, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits ("DIB") under Title II of the Social Security Act and for supplemental security income ("SSI") under Title XVI of the Social Security Act (42 U.S.C. § 301 et seq.) ("the Act").*fn1 The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge.*fn2
Following a review of the complete record and applicable law, the Court finds the decision of the Administrative Law Judge ("ALJ") to be supported by substantial evidence in the record as a whole and based upon proper legal standards. Accordingly, this Court affirms the Commissioner's determination.
Plaintiff claims she has been disabled since September 4, 2004. On February 28 and May 4, 2006, she applied for DIB and SSI income. AR 105, 108, 122. The agency denied benefits, and on 4 November 21, 2008, ALJ James P. Berry found Plaintiff not disabled. AR 7-13. Plaintiff appealed, 5 and this Court remanded on July 16, 2010, with instructions to further consider the testimony of a 6 lay witness and the evaluation of a vocational expert. AR 701-17. 7
On August 8, 2011, ALJ Berry conducted the remand hearing. Plaintiff appeared with 8 counsel and testified. Also testifying were Michael Gurvey, M.D., an impartial medical expert who 9 appeared telephonically at the invitation of the agency; Linda Ferra, an impartial vocational expert; and Shauna Marie De La Cruz, Plaintiff's daughter. AR 621-51. In a decision dated August 29, 2011, ALJ Berry again denied Plaintiff's application. AR 602-13. Plaintiff appealed. Doc 1.
A. Testimony of Plaintiff and Plaintiff's Daughter
Plaintiff was born in 1951 and has a high school education and past work as a stock clerk and cashier. AR 126. Prior to her disability date, she was employed by a grocery store for eleven years. AR 312. When Plaintiff applied for benefits, she alleged she could not work because of a herniated lumbar disc with multilevel spondylosis and emphysema. AR 126. At the 2008 hearing, she further alleged she could not work because of knee pain. AR 27-28.
At the 2011 hearing, Plaintiff she said she had become more reliant on her cane since the hearing three years prior. She has fallen several times. She must use the cane all the time, including inside her house. AR 31, 639-41. Using her cane, she could stand fifteen minutes total, walk fifteen to twenty minutes, and sit fifteen to twenty minutes in eight hours. She spends all day in her recliner or in bed. AR 642-43. She stated that her ability to lift had declined, from five to ten pounds at the previous hearing, to four pounds now. She could not carry that amount of weight "very far."
Plaintiff lives with her daughter, who also testified. She said that Plaintiff can hardly do anything for any amount of time because her knees swell. Plaintiff has a hard time climbing the three steps into their house. She stays in the same clothes for three or four days because she has a hard time dressing, and it has been that way since the date of the injury in 2004. Plaintiff will try to do dishes for two or three minutes, then sit for 15 to 20 minutes. She has witnessed Plaintiff fall a 2 couple of times this year, and says that she tries to use a cane all the time. At the grocery store, 3 Plaintiff holds onto the shopping cart. She cannot carry boxes or a gallon of milk, and has problems 4 with small things. Plaintiff moans and groans and breathes heavily, and her arms shake; it is obvious 5 she is in excruciating pain. AR 644-46. 6
On September 4, 2004, Plaintiff developed a sharp back pain while at work. In the immediate 9 aftermath of her injury, Plaintiff was examined by Dr. Irene Sanchez. Upon examination, Dr. Sanchez noted that Plaintiff could not stand erect and had a "slow" gait. AR 292. X-rays of Plaintiff's lumbosacral spine displayed an "abnormality" at L5-S1 that she believed indicated spondylolisthesis. AR 292-93. She diagnosed lumbar radiculopathy, right low extremity, but ruled out a herniated disc. AR 293.
An MRI was performed on September 27, 2004. AR 248. Dr. William Dunn interpreted the findings as evidencing mild degenerative changes with no disc protrusion at T12-L1. AR 248. He noted degenerative changes of the lumbar spine with a focal, moderately large protrusion and extruded component of the right side at L5-S1 compressing the S1 root and the ventral lateral aspect of the thecal sac. AR 249. He also noted a broad annular tear and protrusion at the L3-4 level lateralizing more to the left of midline and bulging into the neural foramen. Id.
At a follow-up examination in October 2004, Dr. Sanchez discussed the MRI findings with Plaintiff. AR 288. Plaintiff seemed to have somewhat less discomfort and stood more erect, although she still walked with a gait favoring the left leg. Id. She referred Plaintiff to Dr. Brian Grossman, an orthopedic surgeon, for a consultative examination. AR 289.
Dr. Grossman saw Plaintiff on October 18, 2004. Plaintiff complained of right hip pain and pain running down her right leg. AR 278. Dr. Grossman reviewed the recent MRI and examined Plaintiff. AR 279. Dr. Grossman diagnosed Plaintiff with disc extrusion, right L5-S1 with radiculopathy. AR 280. He advised that Plaintiff could return to work, but restricted her to standing no more than 6 hours a day, with 10 minute breaks each hours, and also restricted her to lifting no more than 10 pounds. Id. At a follow-up examination on November 1, 2004, Plaintiff reported that in 2 the previous week or two, her significant right leg pain had improved but that she still had pain in the 3 right buttocks. AR 270-71. Dr. Grossman diagnosed a herniated lumbar disc at L5-S1 with 4 radiculopathy. AR 271. In a follow-up examination a month later, Dr. Grossman reported that 5
Plaintiff had received her first epidural treatment, which resulted in no more radiating pain, but some 6 low back pain remained. AR 262. He reiterated his previous diagnosis but expanded it to include 7 degenerative discs at L1-2, L2-3, L3-4 and L4-5, with disc protrusion and annular tear at L1-2 and 8 L3-4. AR263. He restricted Plaintiff to lifting no more than 10 pounds and to no more than 9 occasional bending, stooping and standing. Id.
Between January 2005 and November 2006, Plaintiff was treated by Dr. Russell Nelson, an orthopedist. During this period, Dr. Nelson diagnosed Plaintiff with a herniated disc at L5-S1 with disc injuries above that point, as well as multilevel spondylosis. Dr. Nelson documented Plaintiff as experiencing intermittent periods of numbness and tingling in the feet. See id. Treatment included epidural injections which improved the pain, occasional pain medication, a TENS (transcutaneous electrical nerve stimulation unit), and recommended home exercise. Id. He reported that an MRI showed "multiple areas of abnormality" in her spine. AR 386. Dr. Nelson noted that Plaintiff seemed to benefit from epidural treatments. AR 402.
Between March 2007 and May 2008, Plaintiff saw Dr. John Larsen. Dr. Larsen noted tenderness in Plaintiff's lumbar and paraspinal region, and noted that she made frequent complaints of persistent back and leg pain. Dr. Larsen diagnosed degenerative disc disease and lumbar disc herniation at L5-S1 with spondylosis and stenosis. See id. A new MRI was performed in March 2007.*fn3 Dr. Larsen reported that it showed a 4 mm disc protrusion at L4-S1. AR 582. He characterized Plaintiff as "temporarily totally disabled." He recommended that Plaintiff be given epidural treatments for her symptoms, as well as other possible "invasive" treatment. AR 582, 586.
In June 2008, Plaintiff visited Kern Medical Center. Although she reported problems "ambulating," she had "no problems" with activities of daily living. AR 592.
In July 2005, Plaintiff saw Stephen Choi, M.D., a board-certified orthopedic surgeon, for a 3 qualified medical examination. AR 312. Plaintiff reported to Dr. Choi that she had suffered "minor 4 intermittent" back pain since January 2004. AR 312. She reported also an onset of "sharp pain" 5 while stocking cases of milk and juice at work on September 4, 2004. Id. 6
Dr. Choi reviewed Plaintiff's September 2004 MRI and noted that it showed "diffuse 7 degenerative disk change in the lower lumbosacral spine." AR 313. He noted that it revealed "a large 8 right paracentral bulging disk, either protruded or extruded, causing stenosis, and causing S1 9 impingement" in the L5-S1 region. Id.
Dr. Choi characterized Plaintiff's complaint as "mechanical pain." Plaintiff told Dr. Choi that "with rest, there is no pain," and that her pain rose in proportion with increased activity. AR 313. Plaintiff reported that she could lift a maximum of 10 pounds and sit for a couple of hours in an entire day. Id. She said that standing became difficult after about 30 to 45 minutes and that she could not walk for more than 10 minutes. Id. She denied waking up at night with pain and denied numbness or tingling in her lower extremities. Id.
Dr. Choi described Plaintiff as walking with a "slow, steady gait." AR 315. He saw no limping or antalgic gait but noted some stiffness in her back and a loss of posterior lordosis. Id. He did not believe she was in acute distress. Id. He described her back range of motion as "compromised." Id.
Dr. Choi described Plaintiff's condition as a low back strain without radiculopathy. AR 318. He also diagnosed "[p]robable diskogenic myofascial strain with obesity and deconditioned low back." AR 319. Dr. Choi believed that Plaintiff aggravated a chronic, ongoing, degenerative disc condition in September 2004, and that this condition resulted from her obesity. AR 319. He noted that when a patient has a "deconditioned back" and is overweight, recovery may be "extremely difficult and compromised, unless the patient loses the excess weight. Id. He believed that the injury she sustained in September 2004 was "gradually resolving" but that because of her weight and deconditioned back, "she still gets mechanical pain with activities." Id. He characterized her condition as permanent and stationary and believed "she had reached maximal medical improvement." Id. He believed that Plaintiff should be precluded from lifting more than 25 pounds 2 and should avoid bending and twisting of the back for the next six months to a year while her 3 deconditioned back ...