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Diaz v. Colvin

United States District Court, C.D. California

February 13, 2015

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


SUZANNE H. SEGAL, Magistrate Judge.


Plaintiff Maria Consuelo Diaz ("Plaintiff") brings this action seeking to reverse the final decision of the Commissioner of the Social Security Administration denying her application for Disability Insurance Benefits. The parties consented, pursuant to 28 U.S.C. ยง 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the decision of the Commissioner is REVERSED and the action is REMANDED for an award of benefits consistent with this decision.



Plaintiff applied for Supplemental Security Income ("SSI") benefits on October 16, 2006. (Administrative Record ("AR") 102). Plaintiff alleged disability beginning on March 11, 2006, due to residual pain and limitations from surgery for left breast cancer, a thyroid condition, left arm/hand pain and swelling, headaches from a tumor in her head, high cholesterol, and back pain that radiates to her left leg. (AR 115-119, 122-129, 139-143). Plaintiff's application was denied on February 7, 2007, and on reconsideration on September 13, 2007. (AR 44-53). Plaintiff requested a hearing on October 12, 2007. (AR 54-56). Her initial hearing was held on November 3, 2008 before Administrative Law Judge ("ALJ") Mary L. Everstine. (AR 27-41). Plaintiff testified with the aid of an interpreter. (AR 27-41). Vocational expert ("VE"), Edward Bennett also testified. (AR 27-41). The ALJ issued an unfavorable decision dated November 26, 2008. (AR 20-25).

On February 18, 2011, the Appeals Council denied Plaintiff's requested review. (AR 1-4, 12-13). On April 1, 2010, Plaintiff commenced a civil action in the United States District Court, 412-427). Meanwhile, Plaintiff filed another application for Title XVI benefits on March 23, 2011, which was associated with the prior application for a hearing by the Appeals Council. (AR 436).

A hearing was held on February 4, 2013. Plaintiff testified with the assistance of an interpreter, along with a different V.E., Sharon Spaventa. (AR 356-391). The ALJ indicated she was willing to issue a favorable decision based on a later onset date of disability in March of 2011. (AR 358-365). Plaintiff was unwilling to amend her alleged onset date to March of 2011, and the hearing continued. (AR 358-365). The ALJ issued an unfavorable decision. (AR 309-331).

On March 1, 2013, Plaintiff filed written exceptions and later submitted further legal argument and supporting medical records to the Appeals Council. (AR 285-300, 307). On April 16, 2014, the Appeals Council declined to reverse the ALJ. (AR 279-284). Plaintiff timely filed this action on May 27, 2014.



Plaintiff was fifty-seven years old at the time of her second hearing. (AR 102). Plaintiff has a sixth grade education and does not speak or understand English. (AR 368). Plaintiff alleges an onset date of March 11, 2006 due to residual pain and limitations from breast cancer surgery, a thyroid condition, left arm/hand pain and swelling, headaches from a tumor in her head, high cholesterol, and back pain that radiates to her left leg. (AR 102-106, 115-119, 122-149, 139-143). Plaintiff has a vocational background as an assembly person in the aircraft manufacturing industry where she had to lift cables that weighed up to thirty pounds. (AR 369).

A. Plaintiff's Medical History

1. Abraham Orozco, M.D.

Plaintiff received extensive treatment at CMH Center for Family Health in Oxnard, California. (AR 184-186, 188-205). Dr. Orozco, Plaintiff's treating physician, provided records showing at least twelve visits documenting Plaintiff's lumbar spine stenosis, disc disease and radiculopathy. (AR 185-188, 190, 200, 203). On a note dated March 5, 2007, Dr. Orozco indicated that Plaintiff had a permanent condition limiting her left arm and restricting her ability to work. (AR 270). On October 5, 2007, Dr. Orozco documented numbness from Plaintiff's "left knee on down." (AR 192). On October 24, 2008, Dr. Orozco completed a "Medical Source Statement (Physical)" form where he diagnosed Plaintiff with lumbar spinal stenosis, disc disease, and left leg radiculopathy. (AR 269). He also found that the diagnosis had existed for a year prior. (AR 269). He found that Plaintiff could occasionally and frequently lift/carry/upward pull less than ten pounds, walk less than two hours, sit continuously for less than six hours and has moderate push/pull limitation in her upper extremities and severe limitation in her lower extremities. (AR 269). A 2008 CT scan and MRI supported Dr. Orozco's findings. (AR 247-248, 245-246).

2. Angela Rabkin, M.D.

On September 28, 2007, Dr. Rabkin documented that Plaintiff was having some lumbar pain in the back of her leg, numbness in her calf, and that the Plaintiff was moving cautiously due to six weeks of back pain. (AR 162). Dr. Rabkin noted that Plaintiff had continuing complaints of pain and fatigue in the left arm associated to repetitive movement. (AR 161). Dr. Rabkin completed a "Medical Source Statement (Physical)" form on October 19, 2008, where she noted Plaintiff's past breast cancer and current left lumbar radiculopathy. (AR 271). Dr. Rabkin also found that Plaintiff could occasionally lift/carry/upward pull less than ten pounds, stand/walk for less than two hours in an eight hour work day, must alternate sitting continuously, and had moderate limitation to push/pull in both her upper and lower extremities. (AR 271). On November 11, 2009, Dr. Rabkin wrote "these symptoms [left arm pain and swelling] are more pronounced when [Plaintiff] uses her arms for heavy work. She has other more disabling medical conditions." (AR 554).

3. Andraus Thurman, M.D.

Dr. Thurman saw Plaintiff twenty-two times between April of 2010 and March of 2013. On April 5, 2010, Dr. Thurman listed Plaintiff's diagnoses including dyspepsia, left breast cancer status post mastectomy, prolactinoma, low back pain, Sjogren's disease, fibromyalgia, hypothyroidism, thyroid nodules, and elevated liver enzymes. (AR 652). He also noted that Plaintiff was taking a number of medications including Levothyroxine, Femara, Tylenol, Cabergoline, and Meloxicam. (AR 652). On May 6, 2010, Dr. Thurman wrote in his treatment record that Plaintiff had swelling in the left arm, which gets worse with repetitive movement, prolactinoma, a tumor inside of the head that can cause vision and balancing problems, headaches and nausea, osteoarthritic changes in her lumbar spine area, Sjogren's disease and fibromyalgia, both of which are rheumatoid diseases that can flare up with activity. (AR 553). Dr. Thurman noted that Plaintiff's back pain was related to degenerative joint disease that was noted on a previous MRI. (AR 552). The doctor also noted that Plaintiff had received two epidurals for her pain. (AR 552). On March 10, 2011, Dr. Thurman completed a left trochanteric bursa steroid injection for bursitis and diagnosed the Plaintiff with thrombophlebitis. (AR 638). In an April 25, 2011 clinic note, Dr. Thurman stated that he saw Plaintiff for lower back pain, L5 radiculpathy, weakness in her left leg and referred her for an MRI of her lumbar spine. (AR 701, 810-812). In a MRI report dated June 9, 2011, it is noted that Plaintiff had "moderately severe bony narrowing of the left L4-L5 nerve root canal. A broad, central, paracentral and lateral disc bulge associated with dorsal spondylosis, and ventral osteophytes off of L1-L2 and L4." (AR 698-699).

Plaintiff went to ten physical therapy sessions at St. John's Regional Medical Center from November 2010 to March 2011. (AR 570-597). On November 19, 2012, Dr. Thurman wrote a letter concerning Plaintiff's health, stating that Plaintiff had pain symptoms including arthritis and ongoing back pain for which she takes Tylenol, Tramadol, Tylenol with codeine and Meloxicam. (AR 821). On November 26, 2012, Dr. Thurman noted that Plaintiff had a "headache with decrease in visual activity on the left eye as well as a history of prolactinoma." (AR 856).

Plaintiff was also treated at the Ventura County Medical Center from 2008 to 2012 for a total of thirty-three visits. (AR 563-567, 709-714, 717-721, 723, 726, 729, 733-752, 772-773, 802). Doctors noted findings of Sjogren's syndrome, obesity, prolactinoma, osteoporosis, hyperparathyroidism, hypothyroidism, metabolic syndrome, back pain/degenerative disc disease, hyperlipidemia and fibromyalgia and prescribed Femara, Levothyroxine, Nexium, Cabergoline, Meloxicam, Tramadol, Hyrdoxyzine, Ameprazole, Lasatudue, Zometa and Tylenol. (AR 563-567, 707, 710, 711, 719-721, 729, 733, 743).

B. Examining Doctor's Opinions

1. Ursula Taylor, M.D.

Dr. Taylor conducted an independent internal medicine evaluation on August 30, 2011. (AR 655). Dr. Taylor found that Plaintiff's grip strength in her left hand was weaker than in her right, minimal swelling of the left arm in comparison to the right and mild to moderate thoracic kyphosis. (AR 657-658). Dr. Taylor also noted that the Plaintiff could lift and carry twenty pounds occasionally and ten pounds frequently, limited due to her medical history and pain. (AR 659). Dr. Taylor concluded that the Plaintiff had a high risk of fractures, gross handling and reaching should be limited to frequently due to left arm pain on the left hand, that she should avoid extremes in temperatures due to obesity, swelling and some lower extremity edema and all postural movements should be limited to occasionally based on back pain and history of osteoporosis and left arm swelling. (AR 659).

2. Sean Leoni, M.D., Q.M.E.

Dr. Leoni, in his 2007 summary report of a Complete Internal Medicine Evaluation, noted that the Plaintiff had "no limitations to lifting, sitting, standing or walking" and that she was "able to travel by car or bus if necessary, perform basic activities and move and handle objects." (AR 153). Dr. Leoni diagnosed Plaintiff with history of breast cancer, hypothyroidism, and a history of prolactinoma. (AR 153).

C. Vocational Expert

Vocational Expert Sharon Spaventa had difficulty pinpointing Plaintiff's prior work in the Dictionary of Occupational Titles ("DOT"). (AR 369-377). The VE found a few positions in the DOT that sounded similar to Plaintiff's prior work, but each of those positions included other tasks that the Plaintiff did not perform. (AR 374). The VE testified that a hypothetical individual who is of advanced age, unable to communicate in English, with similar past work experience, who is limited to occasional overhead reaching with the left upper extremity, frequent gross handling with the left upper extremity, occasional climb, balance, stoop, kneel, crouch, crawl, who should avoid climbing ladders or exposure to temperate extremes could generally perform the job pursuant to the DOT. (AR 385-386). However, when asked by Plaintiff's attorney if the hypothetical individual could ...

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