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Uribe v. Colvin

United States District Court, C.D. California

December 29, 2014

ARACELIA URIBE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

For Aracelia Uribe, Plaintiff: Matthew Mark Pope, LEAD ATTORNEY, Law Offices of Matthew M Pope, Whittier, CA.

For Carolyn W Colvin, Acting Commissioner or Social Security, Substituted for Michael J Astrue, Defendant: Esther H Kim, LEAD ATTORNEY, SAUSA - Assistant Regional Counsel - Scoial Security Admin, Office of the General Counsel Region IX, San Francisco, CA; Assistant U.S. Attorney LA-CV, Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, Office of the General Counsel for Social Security Adm., San Francisco, CA.

MEMORANDUM AND ORDER

HON. KENLY KIYA KATO, United States Magistrate Judge.

Plaintiff Aracelia Uribe seeks review of the final decision of the Commissioner of the Social Security Administration (" Commissioner" or " Agency") denying her application for Title II Disability Insurance Benefits (" DIB"). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the Commissioner's decision is AFFIRMED.

I.

PROCEDURAL BACKGROUND

On October 6, 2010, Plaintiff submitted an application for DIB. Administrative Record (" AR") at 133. On July 26, 2011, the Agency denied the application. Id. at 58.

On August 23, 2011, Plaintiff requested a hearing before an Administrative Law Judge (" ALJ"). Id. at 72. On March 14, 2012, a hearing was held before ALJ Joel B. Martinez. Id. at 23. On June 12, 2012, a followup hearing was held. Id. at 53. On July 27, 2012, the ALJ issued a decision denying Plaintiff's application. Id. at 10.

On September 10, 2012, Plaintiff asked the Agency's Appeals Council to review the ALJ's decision. Id. at 5. On September 6, 2013, the Appeals Council denied Plaintiff's request for review. Id. at 1.

On November 5, 2013, Plaintiff filed the instant action. This matter is before the Court on the parties' Joint Stipulation (" JS"), filed November 20, 2014, which the Court has taken under submission without oral argument.

II.

RELEVANT FACTUAL BACKGROUND

Plaintiff was born on November 30, 1969, and her alleged disability onset date (" AOD") is December 20, 2006. Id. at 133. Plaintiff alleges disability based upon fibromyalgia, " spondolidis, " [1] back pain, sciatica, stiffness and pain in her neck, and stiffness and pain in her pelvis area. Id. at 150. Plaintiff was 37 years old at the time of the AOD, and 42 years old at the time of the hearings before the ALJ. Plaintiff completed the eleventh grade, and last worked in December 2006 as a supervisor at a factoring company. See id. at 26, 28-30.

A. Treating Sources

1. Kaiser Permanente

Plaintiff was treated at Kaiser Permanente from January 2006 through December 2006. On October 16, 2006, Plaintiff rated the pain level in her neck as a four to five out of ten; the pain level in her mid-back as a five out of ten; and the pain in her lower back as a five out of ten. Id. at 276. On October 18, 2006, a doctor noted Plaintiff was " [d]eemed nonsurgical candidate for the lower back pain." Id. at 271. On December 1, 2006, Plaintiff reported that her pain level was three out of ten. Id. at 266.

On December 20, 2006, Plaintiff was treated by Kaiser employee Dr. Linda Atkinson. Id. at 255. Plaintiff was referred to Dr. Atkinson for " chronic neck and back pain." Id. According to Dr. Atkinson's report, Plaintiff " was told in the past that she may have" ankylosing spondylitis (" AS"). Id. Dr. Atkinson summarized Plaintiff's reporting of her problems as follows:

[Plaintiff] reports that she has had back pain since her teens. She reports having severe pain since 2000 that radiated down her leg. She had a laminectomy in 2000 which caused temporary relief for six months. She reports that since then she had gotten temporary relief with epidural injections.

Id. at 255.

Dr. Atkinson stated she did not " find evidence of AS when I viewed [Plaintiff's] lumbo sacral xrays." Id. at 260. However, Dr. Atkinson referred Plaintiff for a test to see if Plaintiff has the HLA-B27 antigen, which " is seen with a frequency of 90 percent in patients with" AS. Id. at 260-61. The test determined Plaintiff has the antigen. Id. at 261.

Dr. Atkinson stated that Plaintiff had " enough tender points to qualify for a diagnosis of fibromyalgia. Regular exercise including pool exercises was encouraged." Id. at 260.

2. Dr. Randolph J. Betts

In a report dated July 8, 2008, Dr. Randolph J. Betts, a family medicine practitioner who treated Plaintiff, stated Plaintiff " has seen all specialists -- who all advise [no] surgery." Id. at 384. Dr. Betts diagnosed Plaintiff with " mild spondylosis only, " along with sciatica and chronic pain syndrome. Id. at 384, 387-88; see also id. at 479 (" [Plaintiff] was diagnosed with fibromyalgia and possible early ankylosing spondylitis.").

3. Dr. Kaleem Uddin

In a report dated February 25, 2008, Dr. Kaleem Uddin, a neurologist whom Dr. Betts asked for a second opinion, stated that a " recent MRI of [Plaintiff's] lumbosacral spine" was " completely normal, " with " no evidence of disk herniation" and " no evidence of arthritic changes." Id. at 425-26. Dr. Uddin stated Plaintiff's " examination and history is highly suggestive of fibromyalgia." Id. at 426. Dr. Uddin suggested Plaintiff " stop doing any surgical intervention or any epidural steroid injection, " and instead go to " a rheumatologist so that she can be treated for fibromyalgia." Id.

B. Consultative Sources

1. Dr. Nahel Al Bouz

On July 14, 2011, Plaintiff received a consultative examination by Dr. Nahel Al Bouz. Id. at 477. After physically examining Plaintiff, Dr. Bouz offered the following impression:

This is a 41-year-old female who presents with symptoms suggestive of fibromyalgia, history of sciatica with laminectomy, with temporary improvement and then worsening again. The claimant did not have any signs of muscle wasting on her physical examination. She had full range of motion of all her joints except for the C-spine, which had limited range of motion on flexion with pain in bilateral paraspinal areas, but there is no spine tenderness to palpation.

Id. at 481-82. Dr. Bouz stated Plaintiff " is able to walk without difficulties, " on both her toes and heels, and did not use an assistive device. Id. at 481.

Based on Plaintiff's history and the findings of the physical examination, Dr. Bouz found Plaintiff could push, pull, lift, and carry " 50 pounds occasionally and 25 pounds frequently"; could walk and stand " 6 hours out of an 8-hour work shift"; did not need an " assistive device"; had no sitting restrictions; " has postural limitations towards squatting, bending, and stooping to only frequent due to her low back pain and sciatica type pain"; " should avoid unprotected heights due to her low back pain"; had no sight or hearing restrictions; and had no restrictions on using " the hands for fine and gross manipulative movements." Id. at 482.

2. Dr. Elva Montoya

In a Physical Residual Functional Capacity Assessment dated July 22, 2011, Dr. Elva Montoya found, after reviewing " all evidence" in Plaintiff's file, that Plaintiff could " [o]ccasionally lift and/or carry" 50 pounds; could " [f]requently lift and/or carry" 25 pounds; could " [s]tand and/or walk (with normal breaks) for a total of about 6 hours in an 8-hour workday"; could " [s]it (with normal breaks) for a total of about 6 hours in an 8-hour workday"; had no " [p]ush and/or pull" limitations, " other than shown for lift and/or carry"; had frequent limitations with regard to climbing, stooping, kneeling, crouching, and crawling; had no limitations with regard to balancing; was occasionally limited with regard to overhead reach; had no limitations with regard to handling, fingering, and feeling; had no visual limitations; had no communicative limitations; and should avoid " unprotected heights due to low back pain." Id. at 484-86. Dr. Montoya stated that her findings were not " significantly different" from " treating/examining source conclusions about the claimant's limitations or restrictions." Id. at 487.

3. Dr. Sarah L. Maze

On April 20, 2012, Plaintiff received a neurological evaluation by Dr. Sarah L. Maze. Id. at 507. Dr. Maze found Plaintiff has a " fair" general fund of knowledge; (2) " recalls three out of three items at one and five minutes"; " stands promptly from a seated position and walks in a stable manner"; has intellectual functioning that " appears to be in the normal range"; does not have reduced concentration; " is able to occasionally lift 50 pounds and frequently lift 25 pounds"; " is able to stand and walk for 6 hours of an 8-hour workday with normal breaks"; can " sit for 6 hours of an 8-hour workday with normal breaks"; and has no restrictions in use of her hands or feet. Id. at 508-10.

C. Plaintiff's Pre-Hearing Allegations

In a Pain Questionnaire dated January 7, 2011, Plaintiff stated she began suffering from neck pain after a car accident in 1988 and falling on her tail bone in 1991. Id. at 180.

In a Function Report from the same date, Plaintiff stated she cooks three times a week, and that if the cooking takes longer than 45 minutes, she needs to take breaks. Id. at 170. Plaintiff stated she does not " do any outdoor chores, " but does perform light cleaning. Id. Plaintiff stated she no longer cleans as long as she used to. Id. Plaintiff stated she needs help lifting laundry baskets. Id. Plaintiff stated she drives " at times, " and that she shops for groceries twice a month for an hour at a time. Id. at 171. Plaintiff stated she also goes to stores to shop for clothes and necessities. Id.

Plaintiff stated she takes care of her family when she can, but " it seems they take more care of me." Id. at 172. Plaintiff stated her husband and children take care of the family pets. Id. Plaintiff stated that before her physical condition deteriorated, she was able to play volleyball and basketball; " run after" her nephews and nieces; cook big meals; and " watch activities like football." Id. Plaintiff stated her physical condition affects her sleep, causing her to wake up after a few hours " because of back pain, " which makes her feel " tired in the morning." Id. Plaintiff stated " the only time" she has problems showering, using the bathroom, or dressing is when her " sciatica acts up." Id. Plaintiff stated that, when her sciatica " gets severe, " she needs " help up from my bed" and a " walker to get to bathroom." Id.

Plaintiff stated she does not " really go anywhere unless it's to take my daughter to school, grocery shop, visit when I can." Id. at 173. Plaintiff stated she gets along well with authority figures, and has never been fired because of problems getting along with other people. Id. at 174. Plaintiff stated she still has " trouble accepting there are things I just can't do." Id. Plaintiff stated she uses a walker and brace that were prescribed by a doctor after her surgery in 2000. Id. Plaintiff stated she uses the brace " every day off/on through the day, " and the walker " only when sciatica is very bad." Id. Plaintiff stated she does not " have any social activities since [her] illness worsened." Id. at 175.

Plaintiff stated she cannot lift over ten pounds or she will hurt her back. Id. She stated she cannot stand for more than ten minutes; can only walk up to twenty minutes before needing to rest; has difficulty squatting, bending, and kneeling; and her concentration goes when she is overwhelmed with pain or depression. Id. Plaintiff stated she follows written and spoken instructions " pretty good." Id. In a section of the Function Report for additional remarks, Plaintiff wrote: " I just want to apologize for the delay. After receiving this form I was sick with the flu for a week, then my fibro and back pain was bad and I was I guess in a depressed mode. I didn't realize the time frame." Id. at 176.

D. Third-Party Statements

In a series of letters, Plaintiff's relatives, acquaintances, and former manager wrote about their observations of Plaintiff. Plaintiff's brother wrote: " There are times when I call [Plaintiff] to see how she is doing & I can tell from the tone of her voice that she is in pain. . . [I] know that the rest of my family feels the same way, especially her Husband Bernie & her kids that see ...


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