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Kennedy v. Colvin

United States District Court, S.D. California

June 26, 2014

CAROLYN W. COLVIN, acting Commissioner of Social Security, Defendant.


KAREN S. CRAWFORD, District Judge.

Pursuant to Title 42, United States Code, Section 405(g) of the Social Security Act ("SSA"), plaintiff Kimberly Kennedy ("plaintiff') filed a Complaint on July 12, 2013 to obtain judicial review of a final decision by the Commissioner of Social Security ("defendant") denying her claim for a period of disability, disability insurance benefits ("DIB"), and supplemental security income ("SSI").[1] This case was referred for a Report and Recommendation on the parties' Motions for Summary Judgment. [Doc. No. 4; See 28 U.S.C. ยง 636(b)(1)(B)] After considering the moving papers [Doc. Nos. 16, 23, 24 (Duplicate), 26], the Administrative Record [Doc. No. 10], and the applicable law, the Court RECOMMENDS that plaintiff's Motion for Summary Judgment [Doc. No. 16] be DENIED, and that defendant's Cross Motion for Summary Judgment [Doc. No. 23] be GRANTED.


Plaintiff filed applications for a period of disability, DIB, and SSI on June 16, 2010, alleging disability beginning on November 1, 2008. [Administrative Record (AR) at 213-228] After defendant denied plaintiff's applications at both the initial and reconsideration levels [AR at 120-27, 130-36], plaintiff appeared with her attorney before Administrative Law Judge ("ALJ") Leland Spencer on April 9, 2012 in San Diego, California. [AR at 24-71] ALJ Spencer heard testimony from plaintiff, medical expert Eric C. Puestow, M.D., and vocational expert John P. Kilcher. Id. Based on the testimony and the documentary evidence, on April 17, 2012, the ALJ issued his written decision, finding that plaintiff was not disabled under sections 216(i) and 223(d) of the SSA. [AR at 10-18] The ALJ's finding that plaintiff was not disabled became defendant's final decision on May 17, 2013, when the Appeals Council declined plaintiff's request for review. [AR at 1-5]


A. Background

Plaintiff was born on October 16, 1959. [AR at 296] She completed school up through the 11th grade and is able to communicate in English. [AR at 246-48] Plaintiff's past work experience includes the occupations of assistant deli manager, bartender, administrative clerk, and truck rental agent. [AR at 248] Her positions of assistant deli manager and bar tender required standing, walking, bending, kneeling, crawling, reaching, pushing, pulling, lifting up to 50 pounds, squatting, climbing, overhead work, and grasping. [AR 256-59] Her positions of administrative clerk and truck rental agent required both sitting and standing, walking, climbing, stooping, kneeling, crouching, grasping, pushing, pulling, and lifting between 30 and 50 pounds. [AR 260-61] Plaintiff complains of chronic back pain, gastrointestinal issues, kidney disease, and bladder/bowel problems. [AR at 247] Plaintiff claims these problems caused her difficulty at work, most notably severe back pain from being on her feet at her last job of bartender. Id. In an Exertional Daily Activities Questionnaire completed by plaintiff on July 7, 2010, she states that she lives with a friend and that her average day consists of sleeping, walking, and some chores, but that her constant pain hinders all of these activities and her ability to leave the house. [AR at 253-55]

B. Medical Evidence

1. Desert Oasis Medical Center (2007-2010)

From 2007 to 2010, plaintiff visited Desert Oasis Medical Center numerous times presenting with a myriad of symptoms and complaints, most commonly back pain and gastrointestinal issues, but also including hemorrhoids and skin irritation on her arms and face. [AR 459-88] On August 24, 2007, plaintiff presented to this facility for the first time complaining of anxiety, bruising to her ribs caused by a recent fall, diarrhea, and a lump on the back of her left leg. [AR at 471] She advised that she was in the process of separating from her spouse. Id. Plaintiff admitted to smoking 1 and 1/2 packs of cigarettes per day and drinking alcohol, but denied using illicit drugs. Id. The treating physician referred her to a surgeon for the lump, to a gynecologist for an annual check-up, and prescribed Lopramide for the diarrhea. [AR at 472]

On December 27, 2007, plaintiff appeared for a follow-up presenting with a mild rash, sore throat, and chronic diarrhea. [AR at 469] At that point, plaintiff had still not presented to a gynecologist as previously referred. Id. Plaintiff was prescribed Benadryl for the rash, a Z-Pack for the sore throat, and given Loperamide for the diarrhea. Id. She was again advised to schedule an appointment with a gynecologist and referred to a gastroenterologist. Id.

On July 10, 2008, plaintiff again presented with anxiety, and advised that she was in the midst of divorce proceedings. [AR at 466] Plaintiff stated that Xanaz helped with anxiety in the past, and wanted to try it again. Id. Additionally, she complained of a generalized rash, acid reflux, and chronic diarrhea. Id. However, she failed to see a gastroenterologist, as referred in December of 2007. Id. She was prescribed Xanax for anxiety, Prilosec for acid reflux, and referred to Dr. Singh for the diarrhea. Id.

On March 25, 2009, plaintiff complained of anxiety and acid reflux and sought refills of her Xanax and Prilosec, stating that she recently regained insurance coverage. [AR at 465] Plaintiff denied any abdominal pain, diarrhea, or urinary complaints. Id. She also sought a referral to her gynecologist, Dr. Borchers. Id. The prescriptions were filled and the referral was made as requested. Id.

On April 16, 2009, plaintiff presented as a walk-in patient to the clinic as a follow-up to a recent emergency room visit. [AR at 467] Plaintiff had been seen and treated in the ER the previous day with kidney stones, hematuria, and abdominal pain. Id. After being given three medications in the ER, she woke up the next day with an itchy rash. Id. All three medications were discontinued, and replaced with Bactrim, Atarax, and an injection to relieve the itching. Id. Plaintiff was referred to Dr. Azher for the kidney stones. Id.

On January 22, 2010, plaintiff and "her significant other" appeared in the clinic, complaining of itching on her arms and face. [AR at 463] She denied any pain in her abdomen, back, or joints. Id. Her alcoholism and tobacco addition were identified as contributing factors. [AR at 463-64] Plaintiff presented again on April 15, 2010 for a follow-up. [AR at 461] Due to a fight a couple of weeks prior, bruising appeared on her right breast area. Id. However, she denied any chest pain, abdominal pain, diarrhea, or urinary complaints. Id. Plaintiff sought an increase in her Xanax dosage, as the current amount prescribed was no longer providing relief. Id. Her Xanax prescription was increased, and a referral made for hemorrhoids. [AR at 461-62]

On June 8, 2010, plaintiff presented with back pain and acid reflux, seeking medication for both. [AR at 460] This came shortly after her discharge from the hospital on June 4, 2010, to which she was admitted for 10 days for sepsis and anemia starting on May 26, 2010. Id. She was advised to continue the medicines proscribed in May, and diagnosed with alcoholic liver disease and anxiety. Id. She was prescribed Ultram, Soma, and Zantac for the back pain and ordered to return in one month with a completed blood test. Id.

On July 14, 2010, plaintiff presented complaining of a burning sensation while urinating. [AR at 485] Bactrim was prescribed and plaintiff was again advised to get a blood test, something she failed to do following her June 8, 2010 visit. Id.

The Court notes that on a number of plaintiff's visits in 2010, she denies any back or abdominal pain. [AR at 461, 463, 485]

2. Western Arizona Regional Medical Center (2009-2010)

On April 14, 2009, plaintiff presented to the emergency room chiefly complaining of severe flank pain, diarrhea, nausea, and vomiting. [AR at 447] Plaintiff advised medical staff of her history of kidney stones and that she recently experienced burning with urination that had since resolved. Id. A CT scan of her abdomen and pelvis revealed no acute findings. [AR at 448] Plaintiff was diagnosed with kidney stones, but feeling much better one hour into the visit, she was discharged with instructions and a variety of prescriptions. [AR at 449] On June 10, 2009, plaintiff presented in the emergency room with sudden onset of lesions. [AR at 443] Plaintiff was diagnosed with elevated liver enzymes, and instructed not to drink alcohol or take Aspirin. Id.

On May 26, 2010, plaintiff was taken to the emergency room by ambulance and admitted after being found unconscious on the floor of her domicile. [AR 330-440] Upon initial physical examination, her vital signs were normal, there was no evidence of external trauma, her heart rate and rhythm were normal, and she had normal range of motion in her extremities. [AR at 371] Upon regaining consciousness, plaintiff explained that she had been experiencing flu-like symptoms and fell and hit her head, causing her to lose consciousness. [AR at 357] Plaintiff denied any chest pain, but complained of incontinence. Id. CT scans were taken of her head, thoracic spine, abdomen, and pelvis, an MRI was taken of her brain, and an X-Ray taken of her chest. [AR at 423-30] While some mild abnormalities were discovered, nothing acute was identified in these scans. More specifically, no "acute intracranial pathology" was discovered in her head scans, and "[n]o evidence of acute or active cardiopulmonary disease" presented in the lungs. [AR at 440, 435] However, mild cerebral atrophy was discovered in her brain, and a mildly enlarged kidney in her abdomen. [AR at 437, 432] Examination of lung fields were clear and stable, showing only a pattern of bronchitis. [AR at 434] She was diagnosed with septicemia and a urinary tract infection, kept under close watch, and treated with a broad spectrum antibiotic. [AR at 340, 357] Plaintiff was discharged on June 4, 2010, after 10 days in the hospital. [AR at 330]

3. Tri-City Medical Center (2010)

On December 16, 2010, plaintiff presented to the emergency department complaining of a sore throat, high fever, cough, chills, ear pain, and general body aching. [AR at 519-30] At the time of her admission, she was not experiencing any vomiting, nausea, labored breathing, or any other alarming displays. [AR at 519] Plaintiffs daughters expressed concern because of plaintiff's prior admission for sepsis on May 26, 2010. [AR at 520-21] "Because [plaintiff] is immune compromised by her alcoholism it is felt that she should be treated vigorously with antibiotics to make sure that this does not recur...." [AR at 521] Plaintiff responded well to hydration and antibiotics. Id. She was diagnosed with a sore throat and a urinary tract infection and discharged the same day. [AR at 525]

On September 16, 2011, plaintiff arrived at the emergency room with a change in mental status and was admitted for further evaluation. [AR at 549] Specifically, plaintiffs parents brought her in because plaintiff appeared confused and sleepy. [AR at 551] During intake, plaintiff reported that she was an alcoholic and that it had been roughly 1 year since she had consumed alcohol, when she was hospitalized for septic shock. Id. Plaintiff also complained of head, neck, and back pain. [AR at 560] She was diagnosed with a urinary tract infection, hepatic encephalopathy, and cirrhosis of liver (alcohol-induced). [AR at 549] All symptoms resolved after treatment with lactulose and antibiotic. Id. Plaintiff was discharged three days later, on September 19, 2011. Id.

4. Michael Chipman D.O. - Consultative Examiner (orthopedist) (2010)

On August 17, 2010, Dr. Chipman examined plaintiff, and reviewed her medical records to date in advance of the exam, for the purpose of completing a Social Security Disability Evaluation. [AR at 499-502] On the date of examination, plaintiff's chief complaints were of back pain and bowel/bladder problems. [AR at 499] Plaintiff was able to ambulate in the room, get on and off the table, and take her slip-on shoes on and off without assistance or difficulty. [AR at 500] Dr. Chipman conducted a physical exam and tested plaintiff's range of motion and muscle strength, noting that the x-ray of the lumbar spine shows "minimal degenerative changes and no evidence of acute pathology." [AR at 500-01] Thus, Dr. Chipman opined that plaintiff's condition would not impose a limitation for 12 continuous months. [AR at 501]

5. Doris Javine, Ph. D. - Consultative Examiner (psychchologist) (2010)

On August 19, 2010, Dr. Javine, a clinical psychologist, conducted a 1 hour and 15 minute examination of plaintiff. [AR at 503-07] Dr. Javine noted that plaintiff drove to the interview, arrived on time, was appropriately dressed and with a cooperative and pleasant attitude, with sores on her face and leg, and appearing older than her stated age of 50 years. [AR at 503] Plaintiff asserted that she is unable to work because she cannot stand for "longer than like thirty minutes without [her] kidney []s hurting.... [and she cannot] sit [for] longer than fifty minutes [before] they start bothering [her]." Id. Dr. Javine noted that her speech was mildly slurred and that she appears to have problems retrieving words, making her mildly difficult to understand. [AR at 504] Plaintiff reported managing her own finances, knowing how to use a computer, showering every other day, brushing her teeth daily, and dressing without the assistance of ...

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