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Brouckaert v. Colvin

United States District Court, S.D. California

July 10, 2014

GREGORY A. BROUCKAERT, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION: DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT (Doc. Nos. 10 and 15-1.)

BERNARD G. SKOMAL, Magistrate Judge.

I. INTRODUCTION

On June 27, 2013, Gregory A. Brouckaert ("Brouckaert") filed a complaint pursuant to the Social Security Act ("Act"), 42 U.S.C. § 405(g), challenging the Commissioner of the Social Security Administration's ("Commissioner") denial of disability benefits. (Doc. No. 1.) On September 19, 2013, the Commissioner filed an answer. (Doc. No. 7.) On October 25, 2013, Brouckaert filed a motion for summary judgment, requesting reversal of the Administrative Law Judge's ("ALJ") final decision. (Doc. No. 10.) Specifically, Brouckaert seeks reversal of the ALJ's denial or, in the alternative, remand for further administrative proceedings on the basis that the ALJ failed to articulate clear and convincing reasons for rejecting Brouckaert's testimony. ( Id. )

On January 9, 2014, the Commissioner filed a cross-motion for summary judgment and a response in opposition to Brouckaert's motion. (Doc. Nos. 15-1 and 16.) The Commissioner argues that the ALJ's decision was supported by substantial evidence, free from legal error, and should be affirmed. (Doc. No. 15-1.)

Pursuant to Civ. L.R. 7.1(d)(1), the Court finds the parties' cross-motions suitable for decision on the papers and without oral argument. After careful consideration of the administrative record and the applicable law, the Court recommends that Brouckaert's motion for summary judgment be DENIED and that Commissioner's cross-motion for summary judgment be GRANTED.

II. LEGAL STANDARDS FOR DETERMINATION OF DISABILITY

In order to qualify for disability benefits, an applicant must show that: (1) he or she suffers from a medically determinable physical or mental impairment that can be expected to result in death, or that has lasted or can be expected to last for a continuous period of not less than twelve months; and (2) the impairment renders the applicant incapable of performing the work that he or she previously performed or any other substantially gainful employment that exists in the national economy. See 42 U.S.C. § 423(d)(1)(A), (2)(A). An applicant must meet both requirements to be "disabled." Id. The applicant has the burden to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

The Secretary of the Social Security Administration set forth a five-step sequential evaluation process for determining whether a person has established his or her eligibility for disability benefits. See 20 C.F.R. §§ 404.1520, 416.920. The five steps in the process are as follows:

1. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is not disabled within the meaning of the Social Security Act. If not, proceed to step two. See 20 C.F.R. §§ 404.1520(b), 416.920(b).
2. Is the claimant's impairment severe? If so, proceed to step three. If not, then the claimant is not disabled. See 20 C.F.R. §§ 404.1520©, 416.920©.
3. Does the impairment "meet or equal" one or more of the specific impairments described in 20 C.F.R. Pt. 404, Subpt. P, App. 1? If so, then the claimant is disabled. If not, proceed to step four. See 20 C.F.R. §§ 404.1520(d), 416.920(d).
4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is not disabled. If not, proceed to step five. See 20 C.F.R. §§ 404.1520(e), 416.920(e).
5. Is the claimant able to do any other work? If so, then the claimant is not disabled. If not, then the claimant is disabled. See 20 C.F.R. §§ 404.1520(f), 416.920(f).

Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

In steps one through four, the claimant bears the burden of proof to establish that he is disabled. Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996); see Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (finding that the claimant bears the burden "to establish [his] entitlement to disability insurance benefits" at all times). At step five, the Commissioner bears the burden of proof to demonstrate that the claimant is not disabled. See Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009) (stating that the burden shifts to the Commissioner at step five to show that claimant can do other kinds of work). The Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy by "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); see also 20 C.F.R. § 404.1566 (describing "work which exists in the national economy"). If the Commissioner meets this burden, then the claimant is not disabled. Bustamante, 262 F.3d at 954. However, if the Commissioner fails to meet this burden, then the claimant is disabled. Id.

III. BACKGROUND

Brouckaert filed a Tile II application for a period of disability and disability insurance benefits on December 18, 2010, [1] alleging disability beginning September 21, 2010. (Doc. No. 8-2 at 15; Doc. No. 8-3 at 10.) Brouckaert's application alleged disability due to: (1) "cervical spine numbness tingling pin [sic] in neck and shoulder;" (2) "cervical spine;" (3) "tingling and pain in neck, shoulders, upper back;" (4) "tingling and pain in left arm, hand and chest;" (5) "constant pain in lower left back;" and (6) "shooting pain down both legs." (Doc. No. 8-3 at 2, 11-12.) The Social Security Administration ("SSA") denied Brouckaert's application on March 30, 2011. (Doc. No. 8-4 at 2.) On April 13, 2011, [2] Brouckaert requested reconsideration of his application. ( Id. at 7.) The SSA denied reconsideration on May 20, 2011. ( Id. at 8.) Subsequently, on June 13, 2011, [3] Brouckaert requested a hearing before an ALJ. ( Id. at 14.) On January 23, 2012, the ALJ Gary J. Lee held a video hearing in San Francisco, California. (Doc. No. 8-2 at 70.) Brouckaert appeared in Bakersfield, California, represented by Diana Wade, a non-attorney representative. ( Id.; Doc. No. 8-4 at 16.) Michael Goldhamer, an impartial medical expert ("ME"), Herbert M. Tanenhaus, an impartial psychological expert ("PE"), and Nancy A. Rynd, an impartial vocational expert ("VE"), also appeared and testified. (Doc. No. 8-2.)

A. Relevant Medical Records Submitted to ALJ for Review

1. Degenerative Disc Disease

i. Medical Records from Kaiser Permanente

On September 21, 2010, Brouckaert saw Dr. Don Alan Paxton for the first time at the Discovery Plaza Medical and Administrative Offices for persistent pain in his posterior neck, left shoulder, and left arm that ranged from mild to moderate levels in severity. (Doc. No. 8-7 at 55.) Dr. Paxton diagnosed Brouckaert with cervical radiculopathy as the "primary encounter diagnosis." ( Id. at 59-60, 65-66.) Brouckaert informed Dr. Paxton that "he prefers to continue conservative therapy with medication, " and "he is also not interested in surgical referral." ( Id. at 60, 65.) During this first visit, Dr. Paxton prescribed nortriptyline 25 mg for improvements in sleep and pain and informed Brouckaert to continue taking hydrocodone-acetaminophen ("NORCO") 10-325 mg for pain. ( Id. at 65, 68.)

Dr. Paxton's progress note from this first visit included an analysis of a magnetic resonance imaging (MRI) test of Brouckaert's cervical spine from September 7, 2010. ( Id. at 56-58, 61-63.) The analysis concluded that Brouckaert had: (1) "mild to moderate degenerative and spondylotic changes from C3-4 through C6-7;" (2) "multilevel degenerative stenoses from C3-4 through C6-7" and "small disc protusions at C3-4, C4-5, and C6-7 contributing to stenoses;" and (3) "mild associated cord flattening at C6-7, C5-6, and to a lesser extent C4-5, related to stenoses and disc protusions, " and (4) "no abnormal intramedullary signal identified to suggest myelomalacia or cord edema." ( Id. at 57.)

On December 30, 2010, Brouckaert saw Dr. Paxton for back pain. ( Id. at 35.) After conducting a physical exam, Dr. Paxton observed that Brouckaert exhibited decreased range of motion and tenderness with no spasm in his cervical back. ( Id. at 38, 43.) Dr. Paxton also observed that Brouckaert exhibited tenderness and normal range of motion in his lumbar back. ( Id. ) Dr. Paxton diagnosed Brouckaert with Mechanical Low Back Pain. ( Id. at 45.) Brouckaert informed Dr. Paxton "he did not want referral to a surgeon or a pain intervention, " but "he prefers medication management." ( Id. at 35, 44.) At this visit, Dr. Paxton continued to prescribe NORCO and adjusted nortriptyline to 50 mg due to the benefits Brouckaert experienced from them. ( Id. at 39, 44.) Moreover, Dr. Paxton prescribed Morphine Sulfate Controlled-Release ("MSContin") 15 mg for his chronic, non-malignant pain. ( Id. )

On April 26, 2011, Brouckaert saw Dr. Paxton again for back pain. ( Id. at 86, 92.) Dr. Paxton noted that Brouckaert's symptoms at his neck have improved due to nortriptyline. ( Id. ) Moreover, Brouckaert reported that his symptoms are stable with the use of MsContin and nortriptyline. ( Id. at 90, 96.) After conducting a physical exam, Dr. Paxton observed that Brouckaert exhibited decreased range of motion and tenderness and exhibited no spasm in his cervical back. ( Id. at 89, 95.) Dr. Paxton also observed that Brouckaert exhibited tenderness and normal range of motion in his lumbar back. ( Id. ) Dr. Paxton diagnosed Brouckaert with the following diagnoses relevant to his degenerative disc disorder: (1) "spinal stenosis of cervical region;" (2) "degeneration of cervical intervertebral disc;" (3) "degeneration of lumbosacral intervertebral disc;" and (4) "mechanical low back pain." ( Id. at 97.) Brouckaert again informed Dr. Paxton that "he is not interested in surgical intervention or pain intervention at the cervical spine." ( Id. at 90, 96.) Dr. Paxton informed Brouckaert to continue NORCO, nortriptyline, and increased MSContin from 15 mg to 30 mg. ( Id. )

On September 15, 2011, Brouckaert visited Dr. Paxton for back and leg pain. ( Id. at 101, 108.) Dr. Paxton observed that Brouckaert's posterior neck pain has largely resolved. ( Id. ) Brouckaert reported that his lower back pain with extension to the buttocks are moderate. ( Id. at 102, 108.) Moreover, Brouckaert reported resolution of his radicular symptoms with the use of nortriptyline. ( Id. ) Brouckaert denied side effects to both MSContin and NORCO. ( Id. ) Dr. Paxton conducted a physical exam and stated Brouckaert exhibited no tenderness and decreased range of motion and pain in his cervical and lumbar back. ( Id. at 105, 111.) Dr. Paxton diagnosed Brouckaert the following diagnoses relevant to his degenerative disc disorder: (1) "chronic pain;" (2) "degeneration of lumbosacral intervertebral disc;" (3) "degeneration of cervical intervertebral disc;" and (4) "spinal stenosis." ( Id. at 113.) Dr. Paxton continued to prescribe MSContin but discontinued NORCO for therapy change and instead prescribed Morphine Sulfate Immediate Release ("MSIR") 30 mg. ( Id. at 115.)

In addition, during this visit, Dr. Paxton filled out a Doctor's Certification of Disability for Brouckaert to submit to the department of motor vehicles ("DMV"). ( Id. at 158.) Dr. Paxton stated Brouckaert should get a temporary placard for his vehicle till February 10, 2012 because Brouckaert has degenerative disc disorder and lumbar spine that impair or interfere his mobility. ( Id. at 158.) Subsequently, DMV issued the disabled person placard on November 1, 2011. ( Id. at 160.)

On December 5, 2011, Brouckaert revisited Dr. Paxton for back pain. (Doc. No. 8-8 at 15.) After conducting a physical exam, Dr. Paxton stated Brouckaert exhibited pain but he exhibited normal range of motion and no tenderness in the cervical back. ( Id. at 19.) Moreover, Brouckaert exhibited decreased range of motion and pain and no tenderness in the lumbar back. ( Id. at 19.) Dr. Paxton diagnosed Brouckaert with radicular pain. ( Id. at 25.) Dr. Paxton observed that Brouckaert received benefits for his back pain from MSContin and NORCO. ( Id. at 15-16.) Brouckaert denied side effects to these medications. ( Id. at 16.) Moreover, Brouckaert's radicular symptoms have been resolved due to nortriptyline. ( Id. )

ii. Physical/Occupational Therapy Records from Sequoia Physical Therapy

On September 15, 2011, Dr. Paxton referred Brouckaert to physical therapy with the diagnoses of Degenerative Disc Disorder and lumbar spine. (Doc. No. 8-8 at 32.) Brouckaert visited Sequoia Physical Therapy for the first time on September 28, 2011. ( Id. at 36.) Subsequently, he received physical therapy on October 3, 6, 11, 13, 17, 21, 26, 28, and 31 of 2011. ( Id. at 37-38.) Brouckaert's physical therapy treatments consisted of "moist heat, TENS, ultrasound, lumbar and abdominal flexibility and strengthening exercises 3X/WK for 4 ...


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