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Castellucci v. Colvin

United States District Court, N.D. California, San Francisco Division

September 3, 2014

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


LAUREL BEELER, Magistrate Judge.


Plaintiff D. Ann Castellucci moves for summary judgment, seeking judicial review of a final decision by Defendant Carolyn W. Colvin, the acting Commissioner of Social Security Administration (the "Commissioner"), denying her Social Security Income ("SSI") disability benefits for her claimed disability stemming from spinal stenosis, nerve damage, and degenerative disc disease. Pl.'s Mot., ECF No. 19 ("Motion");[1] Administrative Record ("AR") 164. The Administrative Law Judge ("ALJ") determined that Ms. Castellucci could not perform her past relevant work but that she was capable of working as a telephone solicitor, a job that existed in significant numbers in the national economy. AR 27. Accordingly, the ALJ denied Ms. Castellucci's application for benefits. Id.

Pursuant to Civil Local Rule 16-5, the matter is deemed submitted for decision without oral argument. All parties have consented to the court's jurisdiction. ECF Nos. 6, 12. For the reasons stated below, the court GRANTS Ms. Castelluci's motion for summary judgment, DENIES the Commissioner's cross-motion for summary judgment, and REMANDS for an award of benefits.



Ms. Castelluci, now 60 years old, filed a Title II application for disability and disability insurance benefits on July 27, 2010. AR 136. The Commissioner denied her application both initially and upon reconsideration. AR 67-71. On April 26, 2011, Ms. Castellucci timely requested a de novo hearing before an ALJ. AR 72-73. The ALJ conducted a video hearing on March 6, 2012 in Oakland, California. See Transcript, AR 37-57. Ms. Castellucci appeared with her attorney, Mr. William Galvin, and testified at the hearing along with vocational expert David Dettmer (the "VE"). See AR 39.

On May 24, 2012, the ALJ issued a decision finding that Ms. Castellucci was not disabled because she had acquired work skills from past relevant work and was capable of working as a telephone solicitor, a job that existed in significant numbers in the national economy. AR 26-27.

Ms. Castellucci timely requested that the Appeals Council review the ALJ's decision on June 6, 2012. AR 14. The Appeals Council denied the request for review on July 29, 2013, rendering the ALJ's decision as the final decision of the Commissioner. AR 1-5.

On September 25, 2013, Ms. Castellucci filed a complaint for judicial review under 42 U.S.C. ยง 405(g). Compl., ECF No. 1. Ms. Castellucci and the Commissioner both have moved for summary judgment. Motion, ECF No. 19; Comm'r's Opp'n and Cross-Mot., ECF No. 20 ("Opp'n"). Ms. Castelluci filed her reply to the Commissioner's Cross-Motion on May 19, 2014. Reply, ECF No. 21.


This section summarizes (A) the evidence in the administrative record, (B) the vocational expert's testimony, (C) Ms. Castellucci's testimony, and (D) the ALJ's findings.

A. Medical Evidence

Ms. Castellucci was born on November 22, 1953. AR 140. Ms. Castelluci has a history of adrenal cancer and in about 2007, she had surgery on her right hand to correct trigger finger releases.[2] AR 23, 266. She alleged disability beginning March 11, 2010, due to nerve root damage, degenerative disc disease, limited range of motion as a result of spinal surgery, left radiculopathy, disc desiccation at L1-L4, osteoporosis of the spine, degenerative spondylolisthesis, spinal deterioration, nerve damage, and stenosis. AR 18, 164. In January 2010, Ms. Castellucci reported experiencing constant, debilitating pain in her low back, left buttock, hamstring, and calf region, possibly stemming from a lifting injury she suffered at work. AR 266. After complaining of worsening radicular and acute low back pain, Ms. Castelluci consulted with an orthopedist, Dr. Byers, who diagnosed her with spinal DDD (disc degenerative disease); spinal stenosis, with a facet joint cysts on her left L5-S1 vertebrae; and progressively worsening acute left-sided low back and sacaral pain, with left leg radiculitis. AR 262-64. To address these issues, Ms. Castellucci underwent two surgeries in March and September of 2010. AR 235. The surgeries did not relieve her symptoms.

1. Kathy Chang, M.D.

On January 21, 2010, Ms. Castellucci went to Mt. Tam Orthopedics complaining of back pain. Attending physician Dr. Chang examined Ms. Castellucci. AR 266. Dr. Chang noted that Ms. Castellucci reported that her symptoms were "excruciating at present" and were "constant, worse with standing and walking." Id. She reported that Ms. Castellucci was unable to lift anything at all, stand at all, walk without assistance, or sit for more than half an hour. Id. Dr. Chang also noted that in the past, Ms. Castellucci received treatments, including heat, ultrasound, massage, traction, and an epidural injection. Id. Ms. Castellucci's lumbar x-rays revealed "disc spaces intact measuring 9 mm, 11 mm, and 10 mm." Id. Dr. Chang diagnosed Ms. Castellucci with "a left S1 radiculopathy indicative of an L5-S1 disc herniation with a prior history of a lifting injury diagnosed previously with a disc herniation, treated previously with epidural steroids, now with increasingly debilitating pain." Id. Dr. Chang also reported that she was unable to exclude the possibility that Ms. Castellucci's symptoms were "somehow connected with her underlying neoplastic condition." Id. Dr. Chang concluded that Ms. Castellucci would benefit from a lumbar corset, taking oral steroids, analgesic therapy, and antispasmodic therapy. AR 267. She also recommended that an MRI be taken of Ms. Castellucci's lumbar spine to determine whether she would benefit from epidural therapy, coblation therapy, and potentially an operative decompression. Id.

2. Ernest H. Sponzilli, M.D.

On February 1, 2010, at the recommendation of Dr. Chang, Ms. Castellucci underwent a lumbar MRI scan. AR 265. The MRI did not show any "pathologic processes, " but revealed that Ms. Castellucci had spondylosis at her L3-4 vertebrae, facet effusions at her L4-5 vertabrae, and moderate central stenosis. Id. The MRI also revealed a small facet joint cyst on Ms. Castellucci's L5-S1, with marked compression of her left S1 nerve root. Id. Dr. Sponzilli reported that Ms. Castellucci was to have a hydraulic facet capsulotomy combined with a S1 epidural. Id.

On February 24, 2010, Dr. Sponzilli performed left S1 selective epidural/nerve root blocks and a left L5/S1 facet joint cyst aspiration/injection on Ms. Castellucci. AR 271. Ms. Castellucci reported experiencing a 25% reduction of her symptoms for less than one day as a result of these procedures. AR 271. A week later, on March 1, 2010, Dr. Sponzilli examined Ms. Castellucci again. AR 264. He reported that she "failed to improve with a facet capsulotomy and decompression, " and was having debilitating radicular pain. AR 264. Dr. Sponzilli noted that Ms Castellucci would consult with Dr. Byers and Dr. Su regarding a facetectomy, and prescribed her with Dilaudid and Lyrica. Id.

3. Robert H. Byers, M.D. (March 2010-September 2010)

Dr. Byers, who is an orthopedic surgeon, has been Ms. Castellucci's treating physician since March 2010. AR 262. On March 5, 2010, at the request of Dr. Sponzilli, he evaluated Ms. Castellucci for the constant pain that she complained of in her lower back and left leg. AR 262. Dr. Byers noted that Ms. Castellucci reported experiencing such pain since December 2009. Id. Ms. Castellucci was "in obvious discomfort... and ambulate[d] with a limp on the left, but [was] able to heel and toe walk, bilaterally." Id. Upon examination of her thoracic/lumbosacral spine, Dr. Byers noted Ms. Castellucci had a limited range of motion of her back, "such that... she is unable to extend beyond neutral, and laterally bends 15 degrees, bilaterally, and left-sided low back pain is reproduced at the extremes of range of motion in all directions." Id. Physical tests on Ms. Castellucci's legs resulted in a positive sciatic stretch test, positive left bowstring test, and positive left straight leg raises. Id. X-rays of Ms. Castellucci's lumbosacral spine revealed "slight retrolisthesis at L1-2 and L2-3, as well as L4-5, and a slight disc space narrowing at L3-4 and L4-5." Id. Dr. Byers also reviewed Ms. Castellucci's February 1, 2010 lumbar MRI and noted that it revealed "diffuse DDD throughout the lumbosacral region" with a "developmentally small canal extending from L3 to S1, with mild to moderate central spinal stenosis at L3-4 and L4-5." AR 263. Dr. Byers reported that there was a "small left L5-S1 facet joint cyst with resultant compression of the left S1 nerve root and an annular fissure localized to the intraforaminal portion of the L5-S1 disc on the left, but no obvious disc herniation." Id. Dr. Byers concluded that Ms. Castellucci's clinical presentation was consistent with her lumbosacral spinal degenerative disc disease, and also revealed progressively worsening acute left low back/sacral pain and nerve root irritation. Id. He also concluded that an MRI scan confirmed the presence of a nerve root compression at her left S1 nerve root, which was caused by a facet joint cyst on Ms. Castellucci's left L5-S1 vertebrae. Id. Dr. Byers noted that this was consistent with Ms. Castellucci's distribution of symptoms. Id. Because Ms. Castellucci's symptoms continued to worsen despite her previous care under Dr. Sponzilli, Dr. Byers offered the option of microdecompression on her left L5-S1 vertebrae and surgically removing the facet joint cyst. Id. Dr. Byers reported that after a thorough discussion of the procedure and its related risks, Ms. Castellucci decided to proceed with the procedure. Id. In the meantime, the doctor instructed Ms. Castellucci to continue taking her medications as prescribed.[3] Id.

On March 11, 2010, Dr. Byers performed decompression surgery on Ms. Castellucci's left L5-S1 vertebrae and also removed the facet joint cyst. AR 260, 318. On April 27, 2010, approximately six weeks after the surgery, Dr. Byers noted that Ms. Castellucci's left lower extremity symptoms had resolved, but that she continued to experience significant residual lower back pain. AR 260. He also reported that Ms. Castellucci was not taking any medication for her back pain. Id. Dr. Byers directed Ms. Castellucci to take iboprofen and Dilaudid for pain control. AR 261.

Between April 27, 2010 and September 27, 2011, Dr. Byers evaluated Ms. Castellucci approximately every six weeks. AR 254-61, 370-73, 404-26. On June 15, 2010, Ms. Castellucci complained of recurring constant low back pain that radiated to her left buttock and thigh. AR 258. Dr. Byers noted that Ms. Castellucci reported less intense pain than before surgery, but that sitting continued to aggravate it. Id. Based on a physical examination, Dr. Byers noted that residual nerve root irritation persisted and was probably aggravated by Ms. Castellucci's increased level of activity. Id.

On August 11, 2010, an MRI of Ms. Castellucci's lumbar spine confirmed that an even bigger facet joint cyst had redeveloped on her left L5-S1 vertebrae, which compressed her left S1 nerve root. AR 254. Dr. Byers diagnosed Ms. Castellucci with "improved, but residual acute low back/sacral pain, with left lower extremity radiculitis, secondary to recurrence of left L5-S1 facet joint cyst, superimposed on lumbosacral spinal stenosis, status post decompression left L5-S1 with facet joint excision for lumbosacral spinal DDD." Id. Dr. Byers recommended that Ms. Castellucci undergo a second operation to alleviate her symptoms. AR 255.

On September 27, 2010, Dr. Byers performed another decompression surgery on Ms. Castellucci's left L4-5 and L5-S1 vertebrae, and placed bilateral screws at L5 and S1. AR 423. Dr. Byers noted that Ms. Castellucci participated in acute rehabilitation at St. Francis Hospital after surgery. Id.

On November 10, 2010, six weeks post surgery, Dr. Byers reported that Ms. Castellucci complained of low back pain and indicated that she noted "recurrence of left lower extremity symptoms approximately one week ago." Id. Dr. Byers also noted that Ms. Castellucci recalled having night sweats during rehabilitation, which continued to persist. Id. Dr. Byers recommended that Ms. Castellucci undergo laboratory studies, and a CT scan of her lumbar spine. AR 424. Accordingly, on November 15, 2010, Ms. Castellucci underwent a CT scan of her lumber spine. AR 421.

On November 18, 2010, Dr. Byers reviewed Ms. Castellucci's CT scan, which revealed evidence of decompression and excision of her facet joint cyst. Id. Dr. Byers reported that although her left S1 screw appeared to be adjacent to her left S1 nerve root, it was not causing compression. Id. He concluded that Ms. Castellucci's increased left leg pain likely was related to her increased level of activity and postoperative root irritation, and not due to screw placements or compression. Id.

4. P. Davis, Psy.D.

On November 18, 2010, Ms. Castellucci underwent a psychiatric review by Dr. P. Davis, a State agency psychological consultant. AR 336. Dr. Davis opined that Ms. Castellucci had (a) no restrictions of daily living activities, (b) no difficulties in maintaining social functioning, concentration, persistence, or pace, and (c) no continuous episodes of decompensation. AR 346. Dr. Davis noted possible dysthymia but categorized it as "not severe." AR 336, 339.

5. Dale Van Kirk, M.D.

On December 21, 2010, approximately three months after Ms. Castellucci's second back surgery, Ms. Castellucci saw Dr. Dale Van Kirk, who performed a consultative orthopedic evaluation. AR 350-54. Dr. Van Kirk noted that Ms. Castellucci sat in moderate pain in the examination chair, got up and out of the chair "slowly but surely, " walked around the room, and got on and off the exam table with some discomfort. AR 351. A Romberg test[4] proved to be abnormal and Ms. Castellucci wavered and almost fell after 2 seconds. AR 352. The doctor also observed reduced range of motion in Ms. Castellucci's lumbar region, but full range of motion in her cervical regions and in all joints. AR 352-53. Regarding functional capacity, Dr. Van Kirk opined that Ms. Castellucci should be able to stand and/or walk cumulatively for 4 hours out of an 8-hour day with periodic rest sitting down; should be able to sit cumulatively for 4 hours out of an 8-hour day but would need to get up and move around periodically to stretch and reposition herself; and should be able to lift and carry 10 pounds frequently[5] and 20 pounds occasionally.[6] AR 353-54. He also noted that Ms. Castellucci is limited to only occasional postural activities (including bending, stooping, crouching, climbing, kneeling, balancing, crawling, pushing, or pulling) due to significant residual pain in the lower back. AR 354. Dr. Van Kirk diagnosed Ms. Castellucci with "status-post two lumbar surgeries" with residual pain and recommended that she use her lumbar corset when she is out and about for even and uneven terrain. AR 353.

6. Dr. Byers (December 2010)

On December 28, 2010, Dr. Byers noted that Ms. Castellucci reported "constant mild low back pain with radiation to the left buttock region" extending to her thigh. AR 419. Dr. Byers also noted that Ms. Castellucci stated that her symptoms were more severe when sitting, a little less when walking or standing, and diminished when lying down. Id. Dr. Byers recommended that Ms. Castellucci participate in physical therapy and continue taking her medication. AR 420.

7. S. Amon, M.D.

On January 7, 2011, State agency medical consultant Dr. S. Amon reviewed Ms. Castellucci's medical records and assessed her functional capacity. AR 355-61. In his assessment, Dr. Amon opined that (a) Ms. Castellucci is able to lift and/or carry 20 pounds occasionally and 10 pounds frequently, (b) stand and/or walk for at least 2 hours in an 8-hour workday, and (c) sit for about 6 hours in an 8-hour workday. AR 356. Additionally, Dr. Amon opined that Ms. Castellucci could occasionally climb, stoop, kneel, crouch, and crawl. AR 357.

8. Dr. Byers (February 3, 2011)

On February 3, 2011, Dr. Byers recommended that Ms. Castellucci undergo another MRI scan of her lumbar spine and pelvis, and it was conducted on February 11, 2011. AR 413, 418. The MRI scans revealed increased subarticular stenosis on her left L3-4 vertebrae with potential compression of her left L4 nerve root and her exiting L3 nerve root. Id. The MRI scan of her pelvis also revealed mild degenerative changes in her left hip, which Dr. Byers opined could be contributing to her symptoms. AR 414.

9. Lisa M. Elvin, N.P.

On February 25, 2011, Ms. Castellucci saw Nurse Elvin, who worked with Dr. Byers at Mt. Tam Orthopedic Spine Center. AR 415. Upon physical examination, Nurse Elvin noted that Ms. Castellucci "is significantly disabled in her ability to sit, stand and walk for less than 15 minutes in virtually all planes." AR 416. She also reported that Ms. Castellucci "spends 40% of her time lying down to unload her back" and could foresee that Ms. Castellucci "would have absolutely no ability to compete in the open job market because no employer would be able to tolerate her need to miss work on a fairly routine basis" due to the unpredictable nature of her pain. Id. Nurse Elvin also reported providing Ms. Castellucci with a Lidoderm patch for pain control. Id.

10. Dr. Byers (February 25, 2011-April 2011)

On the same day, approximately five months after Ms. Castellucci's second operation, Dr. Byers completed a lumbar spine residual functional capacity questionnaire. AR 375-78. He noted that Ms. Castellucci had reduced range of motion, sensory loss, tenderness, and muscle spasms, as well as a positive straight leg raise. AR 376. He reported that Ms. Castellucci constantly experienced pain that was severe enough to interfere with attention and concentration needed to perform even simple task work. Id.

He opined that Ms. Castellucci needed to change positions frequently during the work day. See AR 376-77. Specifically, he indicated that Ms. Castellucci could only walk 1/4 block without rest or severe pain. AR 376. She could only sit for 15 minutes at a time before needing to get up and could only stand for 10 minutes at a time before needing to sit down or walk around. Id. 377. She could sit or "stand/walk" for less than 2 hours in an 8-hour work day. Id. At the same time, however, she needed to take a 5 minute walk every 15 minutes. Id.

With regard to conditions of employment, Ms. Castellucci needed a job that would permit her to shift positions at will and would allow her to take unscheduled breaks for about 15 minutes at least every 30 minutes. Id. She also would be absent from work on average more than four days per month (the most frequent option on the form). AR 378.

Dr. Byers also opined on Ms. Castellucci's physical abilities. See AR 377-78. He stated that in a competitive work situation, Ms. Castellucci could rarely lift less than 10 pounds and never lift 20 or 50 pounds. AR 377. She could rarely climb stairs and never twist, stoop, crouch, squat, or climb ladders. AR 378. She had significant limitations with reaching, handling, or fingering because she could not "raise above shoulders." Id. She could use her hands and fingers to grasp, turn, twist objects, and perform fine manipulations up to 30% of an 8-hour workday. Id.

Finally, Dr. Byers noted that the symptoms and limitations in the questionnaire first applied from between December 2009 and January 2010.

Ms. Castellucci saw Dr. Byers again on March 1, 2011. AR 413. Dr. Byers noted that Ms. Castellucci "continues to describe low back pain during the day, but sharp low back pain at night." Id. After a lengthy discussion, Dr. Byers recommended that Ms. Castellucci undergo left L3 and L4 nerve root blocks to relieve her symptoms. AR 414. Accordingly, she underwent nerve root blocks on March 25, 2011. See AR 412, 433. On April 5, 2011, Dr. Byers noted that Ms. Castellucci reported experiencing a 25% reduction of her low back symptoms approximately one week after the injections, but reported that "positive findings are slightly less so on physical examination today." AR 412.

11. Ms. Castellucci's Mother's Third Party Function Report

The Administrative Record also contains a Third Party Function Report dated March 21, 2011, [7] filled out by Isabelle Trevethan, Ms. Castellucci's mother. See AR 212-19. Ms. Trevethan identified herself as Ms. Castellucci's mother and indicated they lived together. See AR 212. According to Ms. Trevethan, Ms. Castellucci was able to help with chores, including, dusting, and cooking but could not garden, take baths, bend to pick things up from the floor, care for her feet, or pull anything over 6-7 pounds, and she needed some help dressing. AR 212-15. Ms. Castellucci went shopping two or three times a week but not for longer than an hour. AR 215. Ms. Castellucci could drive but could not look to her right or left, so Ms. Trevethan had to check for traffic for her. AR 212. Ms. Trevethan noted that Ms. Castellucci's disability affected her ability to lift, squat, bend, reach, walk, kneel, climb stairs, and complete tasks. AR 217. It did not affect her ability to stand, sit, talk, hear, see, remember things, concentrate, understand, follow instructions, use her hands, or get along with others. Id. She could walk for 30 minutes before needing a 10 minute rest. Id. Finally, Ms. Castellucci required the use of a cane and a brace when she left home, and she also used a "picker" (a device used to pick things up from the floor). AR 212, 218.

12. N.J. Rubaum, M.D.

On April 13, 2011, Dr. N.J. Rubaum, another State agency medical consultant, reviewed Ms.

Castellucci's medical records and assessed her functional capacity. AR 383-90. Dr. Rubaum noted Dr. Byers's opinions in the February 25, 2011 RFC questionnaire. See AR 390. He then wrote the following: "Inconsistencies within/between reports and allegations: Credibility." Id. The report does not identify the alleged inconsistencies. Ultimately, Dr. Rubaum agreed with Dr. Amon's RFC assessment. Compare AR 383-90 (Dr. Rubaum's assessment), with AR 355-61 (Dr. Amon's assessment); see AR 390 ("The prior assessment re. physical impairments is affirmed.").

13. Dr. Byers (May 2011-January 2012)

Dr. Byers treated Ms. Castellucci five times between May 2011 and January 2012. Ms. Castellucci saw Dr. Byers on May 17, 2011, June 28, 2011, August 16, 2011, September 27, 2011, and January 4, 2012. See AR 403-11.

On May 17, 2011, Dr. Byers reported that Ms. Castellucci began noticing "some recurrence of constant left buttock pain radiating" to the left thigh about three weeks after the March 25, 2011 injections. AR 410. On May 17, 2011 and again on June 28, 2011, Dr. Byers reported offering Ms. Castellucci the option of undergoing another left L3 and L4 nerve root blocks in an effort to further diminish her symptoms. AR 411. In September 2011, Ms. Castellucci underwent another left L3 and L4 nerve root blocks in September 2011. AR 404. However, he noted that Ms. Castellucci "denies having experienced any symptomatic benefits" from the second nerve root blocks. Id. On September 27, 2011, about one year after Ms. Castellucci's second operation, Dr. Byers noted improved, but residual chronic low back/sacral pain, with recurrent lower extremity radiculitis and improved acute proximal left anterior thigh pain. Id.

On January 4, 2012, Dr. Byers noted that Ms. Castellucci expressed concern regarding the depression she had developed and her inability to sleep at night. AR 403. Dr. Byers recommended that Ms Castellucci meet with Nurse Elvin to discuss her depression and inability to sleep. Id.

14. Nurse Elvin (January 2012)

On January 18, 2012, Nurse Elvin noted that Ms. Castellucci was somewhat depressed and tearful (though she denied feeling suicidal) and she was "incredibly sleep deprived." AR 401. Nurse Elvin prescribed ...

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