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Carpenter v. Colvin

United States District Court, E.D. California

September 25, 2014

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


SHEILA K. OBERTO, Magistrate Judge.


Plaintiff Florinda Carpenter ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying her application for Disability Insurance Benefits ("DIB") benefits pursuant to Title II of the Social Security Act. 42 U.S.C. ยง 405(g). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.[1]


Plaintiff was born on December 30, 1959, and has a 12th grade education. (Administrative Record ("AR") 41.) On September 21, 2009, Plaintiff filed an application for DIB alleging disability due to body trauma, neck problems, depression, and back problems. (AR 270-73; 296.) Plaintiff alleges that she became unable to work on September 20, 2007. (AR 270.)

A. Relevant Medical Evidence

Plaintiff injured her neck in a work-related accident in 2002, and suffered repetitive injury to her right shoulder which led to right-shoulder surgery in 2002. Plaintiff was treated by Sanjay J. Chauhan, M.D., for her neck injury that continued to cause pain. (Administrative Record ("AR") 596-609.) According to Dr. Chauhan's treatment notes between August 2007 and April 2008, Plaintiff consistently showed normal motor strength; normal gait with some spasms, tenderness and diminished range of motion in the cervical spine; positive Spurling's sign in the right shoulder, scapular and upper arm pain; negative straight leg raise at 90 degrees; mild tenderness in the shoulders; and negative impingements sign. (AR 599-600.) A cervical spine magnetic resonance imaging scan ("MRI") performed in April 2008 revealed a 1mm bulging disc at C6-7 with mild hypertrophy without significant foraminal stenosis or "probably just mild foraminal stenosis, " slightly greater on the left; and a 2 mm broad-based disc protrusion at C6-7 only partially indenting the ventral thecal sac without significant stenosis, and only mild left foraminal stenosis. (AR 605.) Dr. Chauhan interpreted this MRI as mostly stable, and without significant abnormality requiring surgery. (AR 607.) Dr. Chauhan's treatment recommendations consisted of pain medication and home exercises. (AR 602.)

On August 30, 2007, state agency reviewing physician A.M. Khong, M.D., opined that Plaintiff retained the functional capacity to perform medium work, [2] but noted she was limited in her ability to reach in all directions. (AR 556-60.)

On August 2, 2007, psychiatrist Latif Ziyar, M.D., wrote a letter regarding Plaintiff's mental condition. He noted she had been initially assessed in November 2005 and had last visited Fresno County Mental Health on July 30, 2007, for bipolar disorder and depression. He opined that she was capable of working. (AR 637.)

On February 12, 2008, Plaintiff was examined by Perminder Bhatia, M.D., for a neurological pain evaluation. (AR 595-95.) Dr. Bhatia noted Plaintiff's motor, sensory, and cerebellar findings were normal, as was Plaintiff's gait. (AR 595.) Despite these findings, Plaintiff exhibited 14/18 tender points for fibromyalgia. (AR 728-31.) Dr. Bhatia hypothesized Plaintiff had fibromyalgia, prescribed Lyrica, and recommended Plaintiff return in two weeks. (AR 595.) Dr. Bhatia's records show that Plaintiff did not return for a follow-up visit until December 2011. ( See AR 730-31.)

On August 28, 2008, Plaintiff sought treatment with Dr. Ziyar related to mental health symptoms. (AR 619.) She presented with complaints of fibromyalgia. (AR 619.) She reported her daughter was leaving home to go to college, and Plaintiff was thinking about looking for a job. (AR 619.) Dr. Ziyar's again assessed bipolar disorder. (AR 619.)

On December 7, 2009, Plaintiff was examined by James A. Nowlan, Jr., M.D., who noted Plaintiff reported "[m]ultiple areas of pain with few objective findings." (AR 654.) Dr. Nowlan opined Plaintiff could stand and walk for six hours in an eight hour day; had unlimited sitting capacity; could lift 25 pounds frequently, and 50 pounds occasionally; and had no postural, manipulative or environmental limitations. (AR 654.)

On December 1, 2011, Plaintiff was examined again by Dr. Bhatia. (AR 730.) Plaintiff reported neck pain that moderately limited her activities and a diffuse headache that was described as incapacitating. (AR 730.) On examination, Plaintiff complained of pain in her elbows and hands, but she denied any anxiety or depression. (AR 730.) Dr. Bhatia noted all normal findings, but diagnosed spasmodic torticollis, cervicalgia, and a depressive disorder. (AR 731.) Dr. Bhatia recommended Plaintiff massage and exercise her neck. If there was no response to this treatment, then they would consider steroid injections into trigger points. (AR 730.)

On January 4, 2012, Plaintiff was seen by David Baker, M.D., for complaints of neck pain. (AR 728.) She described chronic and sharp pain, which was ongoing daily and moderately limited her activities. (AR 728.) On examination, Dr. Baker noted that her cervical spine movements were restricted and tender to palpation. (AR 728.) Dr. Baker prescribed medication, recommended cervical spine exercises, and noted Plaintiff should return for a follow-up appointment in one month. (AR 729.)

B. Administrative Proceedings

The Commissioner denied Plaintiff's application initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 90-93, 96-104.) On April 11, 2012, and May 31, 2012, the ALJ held two hearings on the matter. (AR 31-81.)[3]

1. Plaintiff's May 31, 2012, Hearing Testimony

Plaintiff received vocational training from the Caesar Chavez Adult School, which included a certificate in computers. (AR 42.) While Plaintiff was working at Albertson's grocery store as a butcher block manager for the meat/seafood department, she fell and injured herself. (AR 42.) She returned to work, but she was placed on light duty. (AR 42.) She stopped working at Albertson's in January 2004, and applied for Worker's Compensation benefits. ( See AR 69.) She did not return to work at Albertson's. She last worked in October 2009 at DiCicco's Restaurant for two days filling in for a waitress who was having heart trouble. (AR 43.) Between 2007 and 2009, Plaintiff applied for work at NAPA auto parts, LKQ, which is an auto distributor, and she looked at part-time work as a waitress, but she "didn't have any luck." (AR 44.) She last looked for work six-months prior to the May 31, 2012, hearing. (AR 44.)

Her shoulder problems cause popping, grinding, and achiness. (AR 46.) She experiences pain upon repetitive use of her shoulders. (AR 53.) She also has pain in her hands and the back of her neck. (AR 45.) In a typical day, Plaintiff performs chores such as vacuuming, dishes, and cleaning, but she must take breaks every 15 to 20 minutes, which last anywhere from 30 minutes to an hour. (AR 46.) She is able to shower, get dressed, cook, do laundry, go grocery shopping, and she can lift between 15 to 18 pounds. (AR 46-47.) She used to garden, but her pain limits her from gardening for more than 30 minutes at a time. (AR 48.)

The pain in her neck is constant, and often is accompanied by headaches. (AR 49.) Lifting, bending, or reaching over her head with her arms aggravates her neck pain. (AR 49.) Keeping her head elevated also causes pain and strains her neck. (AR 50.) She attempts to perform the home exercises she learned in physical therapy, but the exercises also cause pain. (AR 50.)

Plaintiff estimates she can walk half a block before she has to take a break due to tingling, numbing, and throbbing in her fingers and toes. (AR 51.) She can sit up to 15 or 20 minutes, but then she must stand. (AR 51.) She rests during the course of the day due to throbbing headaches and pain in her neck and upper back. (AR 51.) She struggles to concentrate and is only able to focus or maintain attention for five minutes. ...

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