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Lewis v. Colvin

United States District Court, Ninth Circuit

August 5, 2013

RICHARD L. LEWIS, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [ECF NO. 10], DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT [ECF NO. 11], AND REMANDING FUR FURTHER PROCEEDINGS

RUBEN B. BROOKS, Magistrate Judge.

On January 19, 2010, Plaintiff Richard L. Lewis filed an application for supplemental security income benefits alleging a disability onset of February 26, 2009. (Admin. R. Attach. #2, 13, ECF No. 8; id. Attach. #5, 119.) The Social Security Administration ("SSA") denied his claim on March 18, 2010, and again upon reconsideration on July 7, 2010. (Id. Attach. #2, 13; id. Attach. #3, 44-45; id. Attach. #4, 55-59.) Lewis then filed a written request for a hearing, which is dated July 26, 2010. (Id. Attach. #2, 13; id. Attach. #4, 62.)

A hearing was held before Administrative Law Judge ("ALJ") Larry B. Parker on May 18, 2011. (Id. Attach. #2, 25.) He issued a written decision on June 22, 2011, finding that Plaintiff was not disabled. (See id. at 20.) The Appeals Council declined to review the decision on July 10, 2012. (Id. at 1.)

On August 22, 2012, Lewis filed a Complaint in this Court against Defendant Michael J. Astrue, then-Commissioner of Social Security [ECF No. 1]. Plaintiff challenges the denial of his claim for disability insurance benefits. (Compl. 2-3, ECF No. 1.) Defendant filed an Answer to Complaint on November 2, 2012, along with the Administrative Record [ECF Nos. 7, 8]. On January 30, 2013, Lewis's Motion for Summary Judgment or Remand was filed [ECF No. 10]. Astrue filed a Cross-Motion for Summary Judgment on February 12, 2013, with a Memorandum of Points and Authorities [ECF No. 11]. The Cross-Motion is essentially the same document as Defendant's Opposition to Plaintiff's Motion for Summary Judgment, which was filed the same day [ECF No. 12]. Lewis did not file an opposition to the Cross-Motion.

Since the initiation of this lawsuit, Carolyn W. Colvin has replaced Astrue as the Acting Commissioner of Social Security. Colvin is therefore substituted for her predecessor pursuant to Federal Rule of Civil Procedure 25(d).

The Court finds this matter suitable for decision without oral argument. See S.D. Cal. Civ. R. 7.1(d)(1). For the reasons set forth below, the Court recommends that the district court GRANT IN PART AND DENY IN PART Lewis's Motion for Summary Judgment [ECF No. 10], DENY Defendant's Cross-Motion for Summary Judgment [ECF No. 11], and remand the case for further proceedings.

I. MEDICAL EVIDENCE

Plaintiff if a sixty-one-year old male who graduated from high school and attended three years of college. (Admin. R. Attach. #2, 29, ECF No. 8; id. Attach. #4, 81.) He previously worked at an auto dealership as a sales manager and as a finance manager. (Id.)

Lewis began seeking treatment for back pain in September of 2003. (Id. Attach. #7, 297.) An MRI completed on October 7, 2003, showed that Lewis had degenerative disk disease at L4-5 and L5-S1. (Id. at 293-94.) In April and May of 2004, he received epidural steroid injections. (Id. at 338-42.) On October 4, 2004, Dr. Virgil Hilliard, M.D., performed a provocative discography on Plaintiff that "revealed a severely degenerated disk with a right posterolateral leak." (Id. at 318.) Plaintiff was evaluated on November 3, 2004, by Dr. Sanjay Khurana, M.D., who opined that based on Lewis's MRI, he had a "significantly collapsed disk at L5-S1 as well as a blackened disk at L4-5...." (Id. at 320.) Dr. Khurana subsequently performed an interbody and posterolateral fusion procedure. (Id. at 330.)

On May 2, 2006, Lewis underwent another MRI, which revealed "no clear impingement upon the neural elements." (Id. at 257.) His back pain persisted, and he later had the interbody and posterolateral fusion surgery reversed and the hardware removed. (Id. at 330-31, 334.) Seven weeks after surgery, on December 11, 2006, the claimant reported that his back pain had improved but his leg pain continued. (Id.)

Plaintiff sought treatment for pain in his back and legs from Dr. Janith Seidel, a family practitioner, on September 6, 2007. (Id. at 277.) The physician diagnosed Lewis with diabetes, ventricular tachycardia, lumbar disk disorder, lumbar spondylosis, hypermlipidemia, and hypertension. (Id. at 278.)

Almost eighteen months later, on February 27, 2009, Plaintiff returned to Dr. Seidel and complained that his back pain was getting worse. (Id. Attach. #8, 717.) The doctor determined that Lewis had failed back syndrome and she recommended acupuncture. (Id. at 718.) Dr. Seidel again diagnosed the claimant with diabetes, ventricular tachycardia, lumbar disk disorder, lumbar spondylosis, hypertension, a nonruptured cerebral aneurysm, and migraines. (Id. Attach. #7, 289-90.) In a letter addressed "To Whom It May Concern" and dated March 8, 2011, Dr. Seidel described Lewis's physical limitations.

As a result of Mr. Lewis's conditions he cannot sit, stand, or walk for more than one hour total in an eight hour work day on a sustained basis, he can only occasionally lift and carry up to ten pounds, and he has significant limitations in doing repetitive reaching, handling, fingering, and lifting. As a result, he is markedly limited, essentially precluded in his bilateral upper extremities for grasping, turning and twisting objects, using fingers/hands for fine manipulations, and using arms for reaching (including overhead).
Additionally, he is precluded from pushing, pulling, kneeling, bending, and stooping. His condition also interferes with his ability to keep his neck in a constant position (e.g. looking at a computer screen, looking down at a desk) so he could not do a full time

job that requires this activity on a sustained basis. (Id. Attach. #9, 878.) The treating physician ultimately opined that Lewis's recovery potential was poor, he was only capable of working at a low-stress job, and his symptoms would become worse in a competitive work environment. (Id.)

On May 21, 2009, Plaintiff consulted with Dr. Lisa Anne Phillip, M.D., about his back pain. (Id. Attach. #7, 255-56.) Dr. Phillip diagnosed Lewis with postlaminectomy syndrome of the lumbar region, arthropathy of lumbar facet, degeneration of lumbosacral intervertebral disk, and myofascial pain syndrome. (Id. at 258.) Two weeks later, an MRI was performed which revealed fusion at the L4 to S1, persistent left L5-S1 spondylotic foraminal stenosis, and minor multi-level spondylosis. (Id. at 281-82.) On the same day, an x-ray was taken which showed that Lewis had "postoperative and mild degenerative changes with mild scoliosis and spondylolisthesis." (Id. at 280.) Plaintiff also sought acupuncture treatment again, to which he responded favorably. (Id. at 373.)

Dr. Louis Rosen, an osteopathic specialist in physical medicine and rehabilitation, evaluated Lewis on February 19, 2010. (Id. Attach. #8, 557.) Dr. Rosen observed that Plaintiff moved cautiously, used a walking stick, and suffered from atrophy of his gluteal muscles. (Id. at 559.) The doctor diagnosed Lewis with postlaminectomy syndrome, diabetes, and "deconditioning/chronic pain syndrome." (Id. at 560.)

On March 2, 2010, Dr. S. Brodsky, D.O., completed a residual functional capacity ("RFC") questionnaire. (Id. Attach. #7, 464-68.) Dr. Brodsky opined that Plaintiff could frequently lift or carry ten pounds and could stand or walk at least two hours in an eight-hour day. (Id. at 465.) According to Dr. Brodsky, Lewis could sit six hours in an eight-hour day and had unlimited ability to push and pull. (Id.) Plaintiff could also occasionally climb, stoop, kneel, crouch, and crawl, but never balance. (Id. at 466.) The doctor concluded that Lewis had the RFC to perform sedentary work. (Id. at 470.)

Dr. Gregory Nicholson, M.D., completed a comprehensive psychiatric evaluation of Plaintiff on March 4, 2010. (Id. at 472-77.) The physician noted that Lewis took prescription medications Xanax and nortriptyline. (Id. at 473.) Dr. Nicholson stated that Plaintiff did not have symptoms consistent with any psychiatric conditions and determined that "[f]rom the psychiatric standpoint, the claimant's condition is expected to remain stable without treatment." (Id. at 476.) Based on the examination, Dr. Nicholson drew the following conclusions:

1. The claimant is able to understand, remember, and carry out simple one or two-step job instructions.
2. The claimant is able to do detailed and complex instructions.
3. The claimant's ability to relate and interact with coworkers and the public is not limited.
4. The claimant's ability to maintain concentration and attention, persistence and pace is not limited.
5. The claimant's ability to associate with day-to-day work activity, including attendance and safety is not limited.
6. The claimant's ability to accept instructions from supervisors is not limited.
7. The claimant's ability to maintain regular attendance in the work place and perform work activities on a consistent basis is not limited.
8. The claimant's ability to perform work activities without special or additional supervision is not limited.

(Id. at 476-77.)

On April 12, 2010, Lewis sought treatment for his lower back and leg pain from Dr. Michael Scott Jaffe, a specialist in physical medicine and rehabilitation. (Id. at 515-16.) Dr. Jaffe opined that Plaintiff suffered from limited lumbar flexion, questionable stocking-glove loss of sensation in both feet and toes, poor vibratory sensation in both metatarsal joints, poor proprioreception in both feet, and mild atrophy of the left foot muscle. (Id. at 518.) He also stated that Lewis had moderate bilateral lumbar paraspinal spasms, moderate bilateral lumbar facet tenderness, a wide-based gait with less knee flexion than normal, and two and a half centimeters less circumference in the left thigh compared to the right. (Id. at 518-19.) As a result, the physician diagnosed Plaintiff with postlaminectomy syndrome of the lumbar region. (Id. at 519.)

Dr. Jaffe completed a lumbar spine impairment questionnaire two weeks later. (Id. Attach. #9, 806-12.) There, he noted that Plaintiff had poor recovery potential and walked with a limp. (Id. at 806-07.) In an eight-hour work day, Dr. Jaffe estimated that Lewis could only sit, stand, or walk for less than one hour each and that Plaintiff's symptoms would frequently interfere with his ability to concentrate. (Id. at 808, 810.) Dr. Jaffe opined that Lewis would need to get up and move around every half hour for ten to fifteen minutes. (Id. at 809.) He also stated that Plaintiff could lift or carry five to ten pounds occasionally and up to five pounds frequently. (Id.) The doctor ultimately concluded that Lewis was unable to work. (Id. at 811.)

When Plaintiff was evaluated by a neurologist, Dr. Sumati Rawat, M.D., on April 27, 2010, the doctor noted that Lewis was "unable to give good effort" during the strength testing because of his pain. (Id. Attach. #8, 501.) Dr. Rawat determined that Lewis had decreased sensation to pin pricks and touch in a stocking distribution and "differential decreased pin prick in the left medial foot and calf in the L5 distribution." (Id.) Additionally, Plaintiff had decreased reflexes, a very cautious, wide-based, antalgic gait, and an inability to perform a heel-to-shin maneuver due to back pain. (Id.)

On May 4, 2010, Dr. Rawat noted that the claimant was still suffering from back pain and taking Norco, morphine, nortriptyline, and gabapentin. (Id. Attach. #9, 814.) She opined that Plaintiff had a flat affect, decreased sensation in a stocking distribution below the knee, and differentially decreased pin prick sensation in the left foot and calf in an L5 distribution. (Id. at 815.) The doctor again stated that Lewis exhibited decreased reflexes and walked with a very cautious, antalgic, and wide-based gait. (Id.) A nerve conduction velocity/electromyograph (NCV/EMG) study was also completed by Dr. Rawat which showed left L5 radiculopathy with past axonal loss and active denervation. (Id. at 816-17.) Dr. Rawat diagnosed Plaintiff with post-laminectomy syndrome. (Id. at 817.) Two months later, Dr. R. Masters, M.D., reviewed Plaintiff's medical history; he affirmed the finding that Lewis had the RFC to perform sedentary work and was able to return to work as a financial manager. (Id. Attach. #9, 793.)

On October 25, 2011, four months after the ALJ issued his decision, Plaintiff sought an independent medical evaluation from an orthopedic surgeon, Dr. Alanson Mason. (Id. at 896-905.) Dr. Mason examined Lewis and diagnosed him with lumbar spondylosis at L4-5 and L5-S1; dextroscoliosis of the lumbar spine; facet joint arthrosis at L5-S1; status post-lumbar laminectomy; discectomy and fusion with instrumentation L4-5 and L5-S1; narcotic drug dependency; diabetes; and diabetic polyneuropathy. (Id. at 904.) He concluded that "[t] he cumulative effect of multiple co-mobidities preclude [Plaintiff's] return to substantial gainful employment...." (Id.)

Two and a half weeks later, Dr. Mason completed a cervical spine impairment questionnaire where he opined that during the course of an eight-hour day, Lewis could sit for three hours and stand or walk for one hour. (Id. at 908, 911.) Every hour, however, Plaintiff would need to get up and move around for ten minutes. (Id. at 911.) The doctor also determined that Lewis could frequently lift five pounds, occasionally lift five to twenty pounds, and never lift over twenty pounds. (Id.) He noted that Plaintiff frequently experienced pain, fatigue, or other symptoms that interfered with his ability to concentrate. (Id. at 912.) According to Dr. Mason, Lewis was capable of performing a job with low stress, but would likely miss work two to three times a month because of his impairments. (Id. at 912, 914.)

II. THE ADMINISTRATIVE HEARING

On May 18, 2011, an administrative hearing was held. (Id. Attach. #2, 25.) Lewis, his former attorney Michael Rickard, a vocational expert, and a medical expert were present at the hearing. (Id.) Judge Parker heard testimony from Plaintiff, the vocational expert, and the medical expert. (Id. at 28-43.)

A. Lewis's Testimony

Plaintiff testified that he was not working due to his multiple impairments. (Id. at 29-30.) To manage his pain when he previously worked at an auto dealership, Lewis would ice his back two to four times a day, prop his feet up on his desk, and move around when not consulting with customers. (Id. at 33.) He later began to take pain medication, but the medicine made him confused and unable to "think straight." (Id.) As a result, he was terminated from his job. (Id.)

Lewis testified that he took 120 milligrams of morphine a day along with Norco, Lorazepam, and "all kinds of other medicines." (Id. at 34.) He claimed that the medications caused him to nap up to three hours during the day. (Id. at 34-35.) Plaintiff also maintained that he was unable to read books because the medications impaired his ability to "keep the storyline[s] straight." (Id. 35-36.) Rather, he stated that his days were spent icing his back, watching television, and helping his wife with minor household chores such as dusting, making spaghetti, and some light grocery shopping. (Id. at 35-38.) Lewis represented that he was unable to return to work as a finance manager because he suffered from leg and back pain, along with numbness in his feet. (Id. at 38.) Additionally, he was unable to "think straight" or walk. (Id.)

B. The Medical Expert's Testimony

Dr. Arthur Brovender, the medical expert, testified that while the claimant did suffer from severe limitations, he did not meet or equal any of the listed impairments. (Id. at 30.) To support this conclusion, the expert cited two MRI's of Plaintiff's lumbosacral spine. (Id.) Both showed post-operative changes, degenerative disk disease, osteoarthritis, and a solid fusion of the L4 to S1. (Id.) According to the expert, the medical evidence also showed that Lewis suffered from weakness in his big toe, decreased sensation in both legs, and lower back pain at the L5-S1 space. (Id. at 30-31.) Plaintiff received acupuncture and epidural injections to help treat these ailments. (Id.)

The expert noted that the records indicated that Plaintiff had a normal gait, a negative straight leg raise, mild decreased range of motion at the lumbosacral spine, and decreased motor strength and sensation. (Id. at 31.) The electromyogram (EMG) performed on August 5, 2004, was negative, and a subsequent discogram completed in October of that year showed fifty percent concordance. (Id.) Five years later, however, Lewis's gait and neurological and sensory examinations were normal. (Id.)

Dr. Brovender then discussed a report prepared on April 27, 2010, which showed that Plaintiff had been complaining of chronic lower back pain and cramping in his lower extremities. (Id.) Lewis had stocking anesthesia in his legs that was possibly due to his diabetes. (Id.) According to the report, Plaintiff exhibited a cautious gait, but his deep tendon reflexes were present and symmetrical and he had a negative straight leg raise. (Id.) The expert stated that the fusion in Lewis's back was solid, and an EMC showed L5 radiculitis and "spinal cord stimulator." (Id.)

The medical expert then described the evidence contained in Exhibits 13F, 18F, and 21F. (Id.) Plaintiff's bilateral radiculitis was again noted. (Id.) Exhibit 18F showed that Lewis used a cane; his straight leg raise test was negative; and his neurological sensory examinations were normal. (Id.) The medical expert noted that in Exhibit 20F, one ...


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