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Teresa M. anderson v. Carolyn W. Colvin

April 26, 2013


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Plaintiff Teresa M. Anderson, by her attorney Young Chul Cho, seeks review of the final decision of the Commissioner of Social Security ("Commissioner") that she is not entitled to benefits under the Social Security Act ("the Act"). Both parties consented to magistrate jurisdiction. Docs. 11 & 13. The matter is before the Court on the parties' cross-briefs, which were submitted without oral argument. For the reasons below, Defendant's motion for summary judgment is DENIED, and the matter is REMANDED for further proceedings.

I. Procedural History

Plaintiff previously applied for Title II benefits in May 2006, as well as for Title XVI benefits on a date that is unclear from the record. AR 172-74. In July or August 2006, these claims were denied on the grounds that Plaintiff had been disabled, but her disability had not lasted 12 months. AR 173, 489-90. In January 2007, her claims were denied on reconsideration. Id.

Plaintiff applied again in April 2008. (Title II benefits are retroactive for twelve months. Title XVI benefits are not retroactive. 20 C.F.R. §§ 404.621(a)(1), 416.335.) The agency denied benefits, initially in July 2008 and on reconsideration in December 2008. Plaintiff requested a hearing, and 2 testified on July 9, 2010 before Sally C. Reason, administrative law judge ("ALJ"). On October 21, 3 2010, the ALJ denied her application. The Appeals Council denied review on March 13, 2012. 4

Plaintiff appealed. 5

II. Factual Record

A. Medical History

1. Evidence Prior to MRI of September 2007

Plaintiff was born in 1979 and was 31 years old at the hearing. She had a high school 9 education and worked as a high school security guard for four years, beginning in September 2001. Before that, she continuously reported earnings since age 18. AR 187.

Plaintiff hurt her back on January 12, 2005 while breaking up a fight at the high school. AR 253, 278. Two days later she was referred to the employer-selected physician, William Marshall, D.O., at the Bakersfield Occupational Medical Center. He took x-rays and diagnosed lumbar and sacroiliac strain. Initial treatment included anti-inflammatories, which caused upset stomach, and limited physical therapy, which also apparently did not help. AR 253, 273, 278, 507.

After two months of pain and discomfort and a continued inability to return to work, she was referred to a specialist. Between April and November 2005, she saw Steven Schopler, M.D., an orthopedist at Southern California Orthopedic. In May 2005, an MRI of the lumbar spine was unremarkable except for a "small dorsal disc protrusion at L5-S1 with no significant resulting stenosis."*fn1 AR 255. Based on x-rays and the MRI, he diagnosed lumbar sprain and a small (3mm) central disc protrusion at L5-S1. He noted that Plaintiff was not a surgical candidate at that time but could benefit from a lumbar epidural steroid injection. AR 508. Physical therapy yielded a "mild improvement" in pain. AR 298, 302. In July 2005, he wrote that Plaintiff's condition was permanent and stationary with "maximum lifting of 25 pounds" and "no repetitive bending, lifting, stooping, or twisting." AR 293. She did not benefit from "extensive" physical therapy. She "appears to amplify her symptoms above and beyond what her diagnostic studies indicate." Surgery was unnecessary, 2 but pain management or epidural injections were an option. In November 2005, Plaintiff told Dr. 3

Schopler that she had sought a second opinion. AR 290. This was from Joel Mack, M.D., an 4 orthopedic surgeon whom she first saw in June 2005. In June 2005, Dr. Mack reviewed x-rays, but 5 not the MRI, and diagnosed chronic lumbosacral strain. 6

In August 2005, the Division of Workers' Compensation requested a comprehensive 7 medical-legal evaluation. Dr. Clement O. Alade, M.D., performed a record review, an orthopedic 8 exam, and additional testing. AR 271-88. Nerve conduction studies were abnormal and consistent 9 with a right S1 radiculopathy. A computerized study of spinal movement suggested submaximal effort. Her gait was antalgic, and she had difficulty with heel and toe walking, squatting, kneeling, and bending. Dr. Alade diagnosed a lumbar spine strain. Pain medication was not necessary except for anti-inflammatories and epidural injections. Plaintiff's disability was "equivalent to disability precluding very heavy lifting." She was permanent and stationary with a 5 percent "total whole person" impairment. She could return to her prior job with modified duties including lifting and carrying no more than 50 pounds and occasional twisting, kneeling, pushing, pulling, and crawling.

In February 2006, Plaintiff saw Thomas Gable, D.O., at Bakersfield Occupational Medical Center. He noted back pain, diagnosed chronic sciatica, and recommended pain management and epidural injections. AR 310. In July 2006, Plaintiff complained of low back pain with radiculopathy into the right lower extremity. Dr. Gable diagnosed lumbar spine pain and improved sciatica, and recommended medication and pain management. She could return to work with modifications. Specifically, she had a limited capacity to lift, push, pull 25 pounds, bend, twist, stoop, kneel, squat, and stand. She could not climb, run, or engage in repetitive or prolonged walking. AR 312. (Plaintiff states that she did not return to work because her employer did not have positions with those modifications. AR 510.)

Plaintiff continued treatment with Dr. Mack. In September 2006, he diagnosed chronic low back strain plus deconditioning. AR 362-64. Despite epidurals and some physical therapy, she "has not improved one bit." AR 351-53, 551, 360. In October 2006, he opined that she had not previously been prescribed "the kind of spinal stability and strengthening exercises that I would have ordered with her." He added a diagnosis "at least partially" of deconditioning, and prescribed two weeks of 2 conditioning exercises and core stabilizing exercises. She was "certainly" not a candidate for surgery 3 or strong opiate analgesics. AR 361. 4

By January 2007, the request for physical therapy had not been authorized. AR 360. In February 2007, after undergoing physical therapy, Plaintiff reported no improvement in pain. Dr. 6

Mack acknowledged, "I have reviewed her records and re-examined her today and explained to her 7 that at this point I am at a loss to account for her continued pain and disability." Id. He 8 recommended that she seek a second opinion. In April 2007, her pain had gotten worse, particularly 9 in the right iliolumbar region. Dr. Mack tried trigger point injections. Plaintiff reported some benefit from Vicodin, which she said she was borrowing from her husband. In July 2007, Dr. Mack expressed to Plaintiff that he had "exhausted my diagnostic and therapeutic capabilities" and could "do no more for you," and recommended she get a second opinion. Meanwhile, he would be happy to continue treating her and providing her with medication. AR 355.

2. Treatment with Dr. Tepper before His March 2009 Permanent and Stationary Report

In August 2007, Plaintiff began treatment with orthopedic surgeon Gil Tepper, M.D., who obtained a new MRI in September. The disc bulge at L5-S1 was now 10 millimeters and was causing a "moderately significant" degree of central stenosis. AR 402, 470. Based on the new MRI, Dr. Tepper diagnosed herniation, degenerative disc disease, and stenosis at L5-S1, as well as bilateral lower extremity radiculitis. AR 470-71. He recommended lumbar spine fusion surgery. Id. (When Dr. Mack reviewed the new MRIs, he acknowledged that the bulging disc had increased in magnitude, and concurred with Dr. Tepper that disc excision with instrumented fusion was appropriate. AR 354.) In October, while awaiting approval from workers' compensation for the fusion surgery, Dr. Tepper also recommended a chiropractic rehabilitation program. AR 465. In November 2007, the request for a chiropractor was denied because "the patient should be able to perform her exercises independently at this time." AR 418-422. In December 2007, Dr. Tepper renewed his request for surgery, noting that the x-rays and MRI showed L5-S1 disc height collapse, spondylosis, internal disc disruption, and herniation at L5-S1. AR 459.

Authorization for the surgery was obtained in December 2007, after the Division of Workers' Compensation obtained the opinions of two orthopedic reviewers. The first reviewer recommended 3 against the procedure. While he acknowledged the "significant disc protrusion" at 10mm causing 4

"some degree" of central stenosis, and while he believed a discectomy might be warranted, he 5 deferred to guidelines that only recommend fusion in more severe cases such as fracture, dislocation, 6 or infection. AR 365-68. A second reviewer recommended the procedure. He felt that "there has 7 been therapy and appropriate workup" based on "documentation from Dr. Tepper of significant 8 range of motion loss, with an internal disc disruption, right lower extremity radiculitis and 9 radiculopathy from a 2005 injury." AR 369-76.

The surgery occurred on January 9, 2008. AR 382. Plaintiff was discharged with a prescription for Norco and Soma, along with her existing prescriptions for Vicodin and Ultram. AR 379-80. Two weeks later (January 2008) the incision was "well-healed." Plaintiff complained of back soreness. Dr. Tepper diagnosed "status post 360 fusion L5-S1." AR 455. (This would remain his diagnosis for the remainder of treatment.) In February 2008, Plaintiff continued to feel soreness in the lumbar spine, occasionally radiating into her right leg. The pain made it hard to sleep. Range of motion was not tested due to the recent surgery, but straight leg raising was negative, and lower extremities showed 5/5 motor strength. (This finding appears in every subsequent progress note.) Dr. Tepper recommended a bone stimulator. AR 451-54. In March 2008, Plaintiff continued to describe aching in her lumbar spine and pain that occasionally radiated into her leg. However, she acknowledged a 50 percent reduction in pain in the eight weeks since her surgery, and benefited from the pain medication. AR 448-50. In April 2008, Plaintiff continued to complain of radiating back pain with a 20 to 25 percent improvement in back symptoms since her surgery. Dr. Tepper renewed his previous recommendation for a chiropractic rehabilitation program. AR 445-47. A CT scan revealed "satisfactory spinal fusion surgery at L5-S1." It also revealed 2 millimeter retrolisthesis of L4-S1 and L4-L5, right and left facet arthropathy at both levels, and a 2 to 3 millimeter disc protrusion at L4-L5. AR 404-09. Later in April 2008, the request for a bone stimulator was denied, in part due to a lack of recent medical imaging; the reviewer was unaware of the April CT scan. AR 411-17. Also, in May 2008, the chiropractor was again denied, because spinal 2 manipulation was contraindicated given the recent surgery. AR 423-26. 3

In May 2008, Plaintiff continued to complain of "frequent and moderate" lumbar pain, 4 radiating into both legs, worse in the left. Dr. Tepper again requested physical therapy, which had 5 not yet been approved, and renewed her Ultram and Vicodin. AR 442-44. In June 2008, Plaintiff 6 complained of shooting pain in her legs. Dr. Tepper renewed his request for physical therapy. In 7 addition to Ultram and Vicodin, he prescribed various analgesic creams. AR 439-41. In July 2008, 8 Plaintiff continued to have lumbar pain, with a 25 percent overall improvement since the surgery. In 9 August 2008, physical therapy was authorized. AR 431-35. However, the analgesic creams were retroactively denied because there was no showing why oral anti-inflammatories and painkillers were insufficient. AR 492-98. In September 2008, Plaintiff had tenderness in the right hypertonic lumbar spine. Dr. Tepper prescribed an additional month of physical therapy. AR 427-30. That ...

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