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Reed v. Colvin

United States District Court, N.D. California

October 3, 2014

MONICA REED, Plaintiff,


MARIA-ELENA JAMES, Magistrate Judge.


Plaintiff Monica Reed ("Plaintiff") brings this action pursuant to 42 U.S.C. ยง 405(g), seeking judicial review of a final decision of Defendant Carolyn W. Colvin, the Acting Commissioner of Social Security, denying Plaintiff's claim for disability benefits. Pending before the Court are the parties' cross-motions for summary judgment. Dkt. Nos. 15 and 19. Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having carefully reviewed the parties' positions, the Administrative Record ("AR") in this case, and relevant legal authority, the Court hereby GRANTS Plaintiff's motion and DENIES the Commissioner's cross-motion for summary judgment for the reasons set forth below.


A. Introduction

Plaintiff, a 50 year old African American female, was diagnosed with colon cancer in 2010. AR 232. Plaintiff underwent surgery to remove the tumor and chemotherapy, during which time she developed neuropathy and severe colonic dysfunction. AR 35, 46, 50.

B. Stephen D. Weiss, M.D.

On June 14, 2010, Dr. Weiss performed a laparoscopic colon resection for stage I colon cancer, removing a tumor from Plaintiff's colon. AR 232. On August 11, 2010, Dr. Weiss noted that Plaintiff continued to complain of constipation. AR 272. On September 8, 2010, Dr. Weiss again examined Plaintiff and noted that she had abdominal discomfort, without nausea or vomiting. AR 275. On March 1, 2011, Dr. Weiss noted that Plaintiff had a large amount of retained stool, though reported she has been "pretty regular every day." AR 391. Dr. Weiss advised Plaintiff to take stool softeners twice daily, which she would probably need to do for life. AR 391. On April 19, 2011, Dr. Weiss reviewed the results from Plaintiff's most recent barium enema and noted that her anastomosis was tighter than it should be, which he opined might be the cause of her continued symptoms of abdominal pain. AR 396. On June 14, 2011, Dr. Weiss noted that Plaintiff's bowel was not obstructed, and that there were no complications from her surgery that would cause her constipation. AR 401. Dr. Weiss recommended Plaintiff see a gastroenterologist and opined that the problem was functional. AR 401.

C. Phillip Seu, M.D.

On October 22, 2010, consultative examiner Philip Seu, M.D., performed a comprehensive internal medicine examination of Plaintiff. AR 236-39. At the time of the examination, Plaintiff was undergoing chemotherapy. AR 236. Dr. Seu diagnosed colon cancer and hypertension. AR 239. Dr. Seu noted that Plaintiff appeared "chronically ill, " though she could walk, sit, stand, and use her hands to take her shoes on or off without difficulty. AR 237. Dr. Seu opined that Plaintiff's condition would not impose limitations for 12 continuous months, and would improve after chemotherapy. AR 239. He also found that Plaintiff could stand or walk up to six hours in an eight-hour work day, and that she did not require an assistive device for ambulation or mobility. AR 239. Dr. Seu did notice that Plaintiff had some numbness in her right hand, but believed it would improve over time after chemotherapy. AR 239.

D. Lili Wang, M.D.

Dr. Wang is Plaintiff's oncologist. On August 24, 2010, Dr. Wang noted that Plaintiff was having abdominal pain and nausea, which was helped by morphine. AR 327.

E. Gerald Schaffer, M.D.

In March 2011, Dr. Schaffer diagnosed peripheral neuropathy following chemotherapy. AR 392. Dr. Schaffer also opined that Plaintiff might develop autonomic neuropathy from the chemotherapy, involving the stomach. AR 392.

F. Paul Reif, M.D.

On June 22, 2011, Plaintiff saw Dr. Reif for a gastrointestinal consultation. AR 402. Dr. Reif noted that Plaintiff was taking a number of constipating medications for her neuropathy and blood pressure. Dr. Reif also found that Plaintiff had no urge to defecate and no sensation that there is stool in the rectum, suggesting the possibility of anorectal dysfunction. AR 402. Dr. Reif recommended a sitzmark[1] study once Plaintiff was completely off of amitriptyline and verapamil. Although there are no further records showing treatment by Dr. Reif, the September 12, 2012 progress notes of Dr. Cominos note that Plaintiff continued to receive testing and treatment: Plaintiff saw Dr. Snape at CPMC, who recommended a colonoscopy and rectal manometry. AR 550.

G. Sylvia Torrez, Psy.D.

On September 18, 2011, consultative examiner Sylvia Torrez Psy.D., performed a psychiatric examination of Plaintiff. AR 502-07. Dr. Torrez diagnosed Plaintiff with moderate major depressive disorder, single episode, and assessed her GAF as 58-60. AR 506. Dr. Torrez believed that Plaintiff had a fair likelihood of improving within 12 months. AR 507. Dr. Torrez opined that Plaintiff's ability to accept instructions from a supervisor and respond appropriately was fair, as was her ability to complete a normal workday/week without interruptions, interact with co-workers, deal with changes in the work environment or setting. AR 507. The likelihood of Plaintiff emotionally deteriorating in the work environment was also listed as fair. AR 507.

During the examination, Plaintiff stated that she sees her doctor once or twice a month. AR 503. Plaintiff also reported seeing a neurologist, gastroenterologist, OB/GYN, and a surgeon. AR 503.

H. Uwe Jacobs, PhD.

On October 16, 2011, state psychiatric consultant, Uwe Jacobs, PhD., reviewed Dr. Torrez's conclusions and prepared a mental residual functional capacity assessment. AR 510. Dr. Jacobs opined, without citing any evidence for his findings that Plaintiff was markedly limited in the ability to interact appropriately with the general public. AR 511.

I. Eve Danae Cominos, M.D.

Dr. Cominos is Plaintiff's treating physician, who she saw approximately every three months. See AR 276, 389, 397, 403. On October 4, 2010, Dr. Cominos examined Plaintiff and noted that Plaintiff had begun FOLFOX chemotherapy, was feeling fatigued, and was suffering from significant constipation. AR 276. Plaintiff was scheduled for a follow-up in three months. AR 276. Plaintiff saw Dr. Cominos again on February 11, 2011 for treatment of a rash, and was directed to return for a follow-up in April. AR 389. On April 29, 2011, Plaintiff complained to Dr. Cominos that she is still having infrequent bowel movements, approximately once to twice weekly. AR 397. Plaintiff was scheduled for a colonoscopy with Dr. Weiss and directed to follow-up thereafter. AR 400. On July 13, 2011, Dr. Cominos removed a cyst from Plaintiff's axilla. AR 403.

Although Plaintiff testified that she saw Dr. Cominos "regularly, " the next record of treatment from Dr. Cominos is dated September 12, 2012. AR 38, 549. This progress note lists the following diagnoses: hypertension; menopause; stage IIIA colon cancer (sigmoid); chronic low back pain due to lumbar degenerative disc disease ("DDD") and degenerative joint disease ("DJD"); chronic constipation; obesity; obstructive sleep apnea; colonic dysmotility; hypocortisolemia; osteoarthritis and degenerative disc disease of the cervical spine; cubital tunnel syndrome; and bilateral carpal tunnel syndrome. AR 549. Dr. Cominos opined that

Since surgery for colon cancer in 2010 she has had severe colonic dysfunction that prevents defecation for up to one month at a time. She currently is undergoing a work-up for this at Sutter Pacific Medical Center in San Francisco. This inability to defecate is likely a nerve problem due to surgery and causes unrelenting abdominal pain for [Plaintiff]. This pain is very debilitating and prevents [Plaintiff] walking, standing, lifting, or sitting for prolonged periods.

AR 549.

With respect to the severity of the cubital and carpal tunnel symptoms, Dr. Cominos observed positive Tinnel's and Phalen's at Plaintiff's wrists and elbows, with greater symptoms in ulnar distribution bilaterally suggested ulnar nerve entrapment. AR 549, 551. Based on these observations, Dr. Cominos opined that Plaintiff was prevented from writing and keyboarding. AR 549.

Dr. Cominos also noted that while Plaintiff had 5/5 motor strength in all of the proxital and distal groups of her upper extremities, she had clinical signs of carpal and cubital tunnel, with 50% hypoesthesia (numbness) on all digits of her right hand and 30% hypoesthesia on all but the little finger of her left hand, which had 20% hypoesthesia. AR 549. Further, Plaintiff had 30% hypoesthesia on her left forearm, and 50% on her right dorsal forearm. AR 549. Plaintiff also experienced 30% hypoesthesia on the left distal neck, and marked bilateral myofascial trigger points on the left side. AR 550.

Dr. Cominos found that Plaintiff also had limited mobility in her back, with less than 10 degrees of extension, minimal lateral flexion, and minimal rotary motion. AR 549. Although Plaintiff had "10 out of 10" with regard to motor strength in her lower extremities, she had "marked hypoesthesia in the L5 and S1 dermatomes of the left foot." AR 550.

Dr. Cominos also recommended further treatment and testing for Plaintiff's conditions. AR 550. Dr. Cominos noted that because Plaintiff had no relief with epidural steroid injections, she was referring Plaintiff for surgery for her degenerative joint and disc disease of the lumbar spine. AR 550. Dr. Cominos also referred Plaintiff for an EMG for her osteoarthritis and degenerative disc disease of the cervical spine. AR 550. Dr. Cominos scheduled Plaintiff for another appointment on October 1, 2012. AR 550. Plaintiff also had upcoming appointments with her dermatologist and ophthalmologist. AR 552.

Last, the progress notes state that Plaintiff saw Dr. Snape at CPMC, and that he would like to perform a colonoscopy and rectal manometry. AR 550. Plaintiff is currently prescribed fluoxetine by Dr. Keller for depression. AR 552.


On June 28, 2010, Plaintiff filed a concurrent claim for Social Security and Disability Insurance Benefits, alleging disability beginning on May 20, 2010. AR 16. On November 24, 2010, the Social Security Administration ("SSA") denied Plaintiff's claim, finding that Plaintiff did not qualify for disability benefits. AR 69-73. Plaintiff subsequently filed a request for reconsideration, which was denied on November 4, 2011. AR 79-83. On December 19, 2011, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 84-85. ALJ Amita B. Tracy conducted a hearing on September 13, 2012. AR 30. Plaintiff testified in ...

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