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Keifer v. Colvin

United States District Court, N.D. California

May 1, 2014

ROBERTA SHERRY KEIFER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AND REMANDING FOR FURTHER PROCEEDINGS

ELIZABETH D. LAPORTE, Magistrate Judge.

Plaintiff moved for summary judgment and asks the Court to reverse the final decision of the Defendant Commissioner of Social Security and either award Plaintiff disability insurance benefits or remand the case for further administrative proceedings. Defendant filed a combined opposition to Plaintiff's motion and cross motion for summary judgment asking the Court to affirm Defendant's decision. For the reasons set forth below, the Court grants in part Plaintiff's motion, denies Defendant's motion, and remands this matter to the Administrative Law Judge for further proceedings.

I. Factual Background

A. General Background

Plaintiff is an approximately 45 year old single female. (Administrative Record ("AR") 457.) She lives with her boyfriend and two children, who were teenagers at the time of the administrative hearing and are now in their late teens or early twenties. (AR 47.) Plaintiff worked as an urgent care technician from 2001 to April 2009 at Santa Rosa Memorial Hospital. (AR 34, 209.) In April 2009, Plaintiff had a heart attack and was treated at her hospital. (E.g., AR 352.) After her heart attack, Plaintiff returned to work from September 2009 through December 2009. (AR 453.) She subsequently worked for a few months as a cashier at a casino. (AR 35.) It is undisputed that Plaintiff has not engaged in "substantial gainful activity" since April 6, 2009. (AR 18.)

B. Medical History

1. Treating Physicians

a. Dr. Lowy

Dr. James Lowy was Plaintiff's treating physician from at least March 2008 through June 2011. Plaintiff considered Dr. Lowy to be her primary care physician, and he treated her before and after her April 6, 2009, heart attack. (AR 36.) On April 20, 2008, Plaintiff complained to Dr. Lowy of tiredness and right leg pain that kept her from walking. (AR 283.) He diagnosed her with atherosclerosis, rheumatoid arthritis, depression, and atrial fibrillation. (AR 282.) On June 5, 2009, Plaintiff met with Dr. Lowy regarding her return to work and foot pain. (AR 279-280.) He diagnosed her with nausea, rheumatoid arthritis, atherosclerosis, and bone and cartilage disorder. (AR 280.) Dr. Lowy noted that Plaintiff was doing better and walking three miles daily but that she still tired easily. She said she was not having chest pain but was feeling some bilateral heel pain. (AR 280.) On September 18, 2009, Plaintiff visited Dr. Lowy for a medication check and was diagnosed with nausea, esophageal reflux, and family history of diabetes mellitus. (AR 278.) Dr. Lowy noted that Plaintiff saw Dr. Coombs, her cardiologist, because of fatigue and substernal chest pain, which was usually nonexertional. (AR 278.) On March 9, 2010, Dr. Lowy diagnosed Plaintiff with malaise and fatigue, rheumatoid arthritis, depression, atherosclerosis, and memory loss. Plaintiff was concerned about her memory and functional daily activities since her heart attack. (AR 276-77.) Plaintiff told Dr. Lowy that she had pain in her feet, heels, and other joints. He noted that her joints had no synovitis. (AR 277.) On March 22, 2010, Dr. Lowy diagnosed Plaintiff with memory loss, atherosclerosis, and rheumatoid arthritis and noted that she had full range of motion in her ankles. (AR 274.)

Plaintiff also saw Dr. Lowy in September 2010 for various conditions unrelated to her claim for Social Security disability benefits. (AR 521.) On September 16, 2010, Dr. Lowy noted that Plaintiff's memory was better and that she did not have chest pains. (AR 521.) On November 8, 2010 (after Plaintiff's application disability benefits had been denied in October 2010), Plaintiff saw Dr. Lowy again regarding left shoulder and back pain. (AR 520.) She also stated that she had trouble climbing stairs at times but no chest pain. She also said she had cramps in her legs. (AR 520.) Dr. Lowy noted that Plaintiff needed to see Dr. Hopkins, her new cardiologist, again. (AR 520.)

Dr. Lowy examined Plaintiff again on February 7, 2011. (AR 519.) Dr. Lowy noted that Plaintiff had not been able to work and was trying to get Social Security benefits and brought forms from her representative to her appointment. Plaintiff asked Dr. Lowy questions regarding her heart and ability to lift, sit, etc., which Dr. Lowy thought were more appropriately handled by her cardiologist. (AR 519.) Plaintiff complained of upper and mid thoracic pains. Plaintiff told Dr. Lowy that she was recently in Aruba. (AR 519.) Plaintiff saw Dr. Lowy again on June 20, 2011. (AR 519.) He reviewed Plaintiff's CT scan, which was ordered by Dr. Hopkins. (AR 519.) He noted that Plaintiff's cognitive problems were not related to the CT changes. (AR 519.)

b. Dr. Robert Coombs

Dr. Coombs was a cardiologist at Northern California Medical Associates and treated Plaintiff before and after her heart attack until December 2009. He treated Plaintiff as early as August 2005 and again in March 2007. (AR 445.) In 2008, Plaintiff met with Dr. Coombs and had an echocardiogram that was largely normal. (AR 347-350.) Dr. Coombs noted that Plaintiff was in a pacemaker clinic due to a pacemaker previously put in place by Dr. Chang Soon because of a history of paroxysmal supraventricular tachycardia. (AR 347-350.) The pacemaker was working well as of 2008. (AR 347-50.) Plaintiff had no cardiac symptoms, breathing problems, chest discomfort, etc.. in March 2008 according to Dr. Coombs's notes. (AR 350.) Plaintiff met with Dr. Coombs on July 30, 2008, and he urged her to stop using tobacco and to take a statin drug, which she did not do. (AR 342, 346.)

Plaintiff met with Dr. Coombs again April 15, 2009, soon after her April 6, 2009, heart attack. (AR 342.) Dr. Coombs noted that Plaintiff was doing well and did not have symptoms of angina; her main complaint was fatigue. (AR 342.) Dr. Coombs opined that in general things were going well. (AR 342.) Plaintiff's next appointment with Dr. Coombs was on April 30, 2009. (AR 344.) He noted that she had some atypical chest discomfort that sounded like it was associated with her stent. (AR 344.) He also noted that she walked a mile or so a day and generally felt well when she walked except for some shortness of breath when she was on hills. (AR 344.) Plaintiff met with Dr. Coombs again on June 3, 2009. (AR 329.) Dr. Coombs noted that Plaintiff was not having any specific cardiac symptoms but felt anxious and worried about her cardiac status since her heart attack. Plaintiff also indicated that she had no particular problems since her last appointment except for her continued concern about her future after the heart attack. She further indicated that she was walking about three miles per day. (AR 329.) Dr. Coombs further noted that she had a "chronic left bundle branch block." (AR 329.) He felt that it would be reasonable for Plaintiff to return to her nursing job three months after the heart attack. (AR 330.) Plaintiff met with Dr. Coombs again on June 24, 2009. (AR 331.) She told him that she was feeling better and more active. (AR 331.) Dr. Coombs said that her echocardiogram was very favorable. (AR 331.) He further noted that she was not having cardiac symptoms. (AR 331.) Dr. Coombs called Plaintiff on July 15, 2009. (AR 333.) He noted that she seemed to be doing well, was back at work, and not having cardiac symptoms. (AR 333.)

Plaintiff had another office visit with Dr. Combs on September 17, 2009. (AR 334.) He noted that she was generally doing well but that in early September she had an episode of precordial aching in the lower substernal area, about the size of a hand print. (AR 334.) Plaintiff did not seek medical attention or call in about it, and according to Dr. Coombs, it sounded somewhat musculoskeletal in nature. (AR 334.) Dr. Coombs noted that Plaintiff was breathing well. (AR 334.) Dr. Coombs wrote that Plaintiff was "back to work and has been exercising and working in cardiac rehab and eating a good diet." (AR 334.) He noted that her atypical chest discomfort needed to be evaluated. (AR 334.)

Plaintiff had a follow up appointment on September 30, 2009, after having a Cardiolite scan. (AR 336; see also AR 318.) Dr. Coombs noted that the scan was normal. (AR 318, 336.) He also noted that Plaintiff had the same symptoms in her chest that she complained of earlier. He opined that they were atypical, "and while certainly there is a possibility that she has angina, it is atypical." (AR 336.) He explained further that although the symptoms could be angina, the scan was favorable, and "it appears more likely that the chest discomfort is noncardiac in origin." (AR336.) He described Plaintiff as a "very pleasant patient in no distress who looks well." (AR 336.) It appears that Plaintiff complained to Dr. Coombs of fatigue. (AR 336.)

Dr. Coombs saw Plaintiff for the last time on December 17, 2009. (AR 337.) He noted that she was not having cardiac symptoms and that while she felt tired, she did not have angina or significant shortness of breath. "Fatigue is her major complaint." (AR 337.) He noted that she was walking a mile or two every other day and that she felt well but tired and that she was not working any longer. (AR 337.) He reiterated that she was not having any symptoms suggesting angina. (AR 337.) Dr. Coombs implied that the fatigue might be caused by medications. (AR 337.) He ordered that Plaintiff have a repeat echocardiogram in February 2010. This echocardiogram did not show a significant change from the June 2009 echocardiogram. (AR 323.)

c. Dr. Gregory Hopkins

Dr. Gregory Hopkins, like Dr. Coombs, is a cardiologist at Northern California Medical Associates. (AR 337.) He first treated Plaintiff on April 6, 2009, the day of her heart attack, when she was admitted to Santa Rosa Memorial Hospital complaining of chest pain, heartburn, and an aching left arm. (AR 324, 339, 352.) While she was on a monitor, she developed a ventricular fibrillation and was resuscitated with defibrillation. (AR 339.) Dr. Hopkins ordered a chest x-ray, and the x-ray showed no evidence of acute cardiopulmonary disease process, though it did indicate a mild hyperinflation of the lungs and that Plaintiff had a pacemaker. (AR 324.) Plaintiff was subsequently found to have a total occlusion of her coronary artery, which was opened with a drug eluting stent on April 7, 2009. (AR 339, 342.) Dr. Hopkins noted that Plaintiff had significant left ventrical injury. (AR 339.) He also noted that she had a history of rheumatoid arthritis. (AR 352.) Plaintiff was discharged from the hospital on April 11, 2009. (AR 354-356.)

Plaintiff next saw Dr. Hopkins on February 25, 2010, after Plaintiff stopped seeing Dr. Coombs. (AR 339.) He summarized her treatment during the heart attack and noted that the February 2010 echocardiogram showed improvement. (AR 339.) Dr. Hopkins further noted that Plaintiff was not having any clear-cut angina chest discomfort but that occasionally she had some aching in her left arm. He also wrote that Plaintiff tolerated her medications. (AR 339.) Dr. Hopkins was worried, however, about Plaintiff's memory and cognitive function. (AR 339.) He noted that Plaintiff said that she made "silly mistakes with her knitting" and had trouble with simple math problems. He assessed her with atherosclerosis. (339-40.) He noted that she had atypical chest discomfort and a history of, among other things, rheumatoid arthritis. (AR 340.) Plaintiff met with Dr. Hopkins again on May 28, 2010. (AR 341.) Dr. Hopkins noted that she seemed more comfortable with her cognitive function but that she chose not to start on the antidepressant Dr. Lowry recommend. According to Dr. Hopkins, Plaintiff had no angina or trouble with her breathing. (AR 341, 375.)

Plaintiff next met with Dr. Hopkins on November 22, 2010, a little over two weeks after the Commissioner initially denied her application for benefits and the same day that she filed a request for reconsideration. (AR 70-75, 514.) Dr. Hopkins noted that Plaintiff had new symptoms; she had begun to feel breathless and have leg weakness when she climbed up four to five flights of stairs and when she walked between her neighbor's house and her home. She also complained of three to four episodes of burning in her chest. She said it reminded her of how she felt with her heart attack but to a much milder degree. (AR 514.) Plaintiff also described discomfort in her back. (AR 514.) Dr. Hopkins noted that her lungs were clear and that he did not hear wheezing. His notes stated: "rule out recurrent angina/ischemia." (AR 514.) Dr. Hopkins asked Plaintiff to take a repeat stress study and arranged for cardiac imaging. He was concerned about the symptoms but said that Plaintiff looked well. (AR 514.)

Plaintiff had a follow up appointment on April 19, 2011. (AR 509.) The cardiac imaging scan showed a defect consistent with her long-present bundle branch block but no evidence of ischemia. Dr. Hopkins noted that Plaintiff did not complain as much of troubled breathing or chest discomfort but rather complained about discomfort in her buttocks and thighs when she walked or climbed stairs. (AR 509.) He also noted that she complained about her vision. (AR 509.) Dr. Hopkins wrote that Plaintiff was going to have an ankle-brachial index study as a screening test for significant peripheral vascular disease. He decided not to pursue her chest symptoms given the results of the cardiac imaging. (AR 509.) The ankle-brachial screening on May 24, 2011, showed normal ankle-brachial indices at rest. (AR 507.) The report also noted that Plaintiff said that her bilateral leg pain improved 70% since she switched her medication. (AR 507.)

On May 24, 2011, Dr. Hopkins filled out a cardiac RFC questionnaire. (AR 494.) He noted that he saw Plaintiff every six months and diagnosed her with "leg pain with walking" and a "guarded" prognosis. (AR 494.) He further noted that she had symptoms of angina equivalent pain, shortness of breath, and weakness. (AR 494.) He indicated that Plaintiff was not a malingerer and that she had "marked limitation of physical activity as demonstrated by fatigue, palpitation, dyspnea, or angina discomfort on ordinary physical activity, even though [his] patient was comfortable at rest." (AR 494.) Dr. Hopkins checked the box signifying that Plaintiff was incapable of even low stress jobs because of "s/f myocardial infraction with cardiac arrest." (AR 495.) He found that Plaintiff's physical symptoms caused emotional difficulties and that emotional factors contributed to the severity of her subjective symptoms and functional limitations. (AR 495.) He further found that Plaintiff frequently experienced cardiac symptoms that would interfere with her attention and concentration needed to perform even simple work tasks. (AR 495.) Dr. Hopkins stated that Plaintiff's impairments had lasted, or could last, at least twelve months. According to Dr. Hopkins, Plaintiff: (1) could walk less than one city block without rest or severe pain; (2) could sit or stand/walk less than two hours; (3) needed a job that permitted shifting positions at will from sitting, standing, or walking; (4) would need to take unscheduled breaks during an eight hour working day on a daily basis; and (5) would not need to have her legs elevated with prolonged sitting. (AR 496-97.) He also indicated that Plaintiff could occasionally lift less than ten pounds and rarely ten pounds, she could occasionally twist and rarely stoop and crouch, and could never climb ladders or stairs. (AR 497.) Dr. Hopkins opined on the worksheet that Plaintiff should avoid all exposure to the listed environmental factors except perfumes. (AR 497.) Additionally, he found that Plaintiff's impairments would likely produce good days and bad days and that she would likely be absent from work three or more days a month. (AR 498.)

d. Susan Laliberte

On June 1, 2011, Susan Laliberte, a nurse practitioner, saw Plaintiff on behalf of Dr. Hopkins. (AR 503.) She noted that there was some blockage of an artery. (AR 503.) Ms. Laliberte noted that Plaintiff felt like she had some vision deterioration but had not seen an eye doctor. Plaintiff was worried that she might have already had a stroke. (AR 503.) Plaintiff did not have chest pain or pressure, and Ms. Laliberte noted that Plaintiff's buttock and thigh discomfort resolved initially after switching from simvastatin to Crestor, but returned albeit to a much milder degree. (AR 503.) Ms. Laliberte said that they would follow up with a CT of Plaintiff's brain to evaluate any changes given her carotid blockage and episodes of forgetfulness. (AR 504.) Plaintiff had a CT brain scan on June 7, 2011. (AR 500.) The scan showed an abnormal white matter in her brain that was "most consistent with previous infarction, especially given the history of vascular disease." (AR 500.) No acute infarction or hemorrhage was noted. (AR 500.)

2. Consulting Physicians

a. Examining Physician

Plaintiff underwent a consultative psychiatric evaluation by Dr. Marion-Isabel Zipperle, a clinical psychologist, on September 25, 2010. (AR 457.) As part of that examination, Dr. Zipperle reviewed the records of Dr. Hopkins. (AR 457.) Plaintiff told Dr. Zipperle that she could not do her job because she became confused and that she was anxious because she could not do what she used to do. (AR 457.) Plaintiff also stated that she was in physical pain every day. (AR 457.) Dr. Zipperle noted that the anxiety began when Plaintiff had a heart attack. (AR 457.) Plaintiff told Dr. Zipperle that she had anxiety when she drove, trouble sleeping, feelings of helplessness, and that she needed someone to go out with her all the time because she was too slow. (AR 457.) Plaintiff also noted that she felt like an old lady and could not ride her bike or walk fast. According to Plaintiff, 2010 was the first year she had not been in the hospital. Plaintiff stated that she felt blue, had felt suicidal, and had flashbacks and nightmares due to medical procedures and having "died" during the heart attack. (AR 457.) Dr. Zipperle noted that Plaintiff was on ten different medications, which comprised some prescription drugs and some over the counter drugs. (AR 457-58.) Dr. Zipperle noted that "[t]he cardiologist that [Plaintiff] worked for diagnosed her health problems." (AR 458.) Dr. Zipperle noted that Plaintiff could participate in self-care but was very slow and could only do some housework. (AR 459.)

Dr. Zipperle diagnosed Plaintiff with "pain disorder with medical condition and psychological factors with a general medical condition, " anxiety disorder, posttraumatic stress disorder, and dysthymic disorder. (AR 460.) Dr. Zipperle opined that Plaintiff's withdrawal from people and her physical issues made it difficult for her to function effectively. (AR. 460.) Dr. Zipperle further opined that Plaintiff had some issues with memory. (AR 460.) Dr. Zipperle noted that Plaintiff was not in therapy but concluded that her issues would not resolve in twelve months. (AR 460.) Dr. Zipperle concluded that Plaintiff: (1) was capable of managing her own money; (2) had the ability to perform simple repetitive tasks; (3) could accept instructions from supervisors and interact with coworkers and the ...


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