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Valero v. Colvin

United States District Court, E.D. California

March 16, 2015

ERICA VALERO, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


SHEILA K. OBERTO, Magistrate Judge.


Plaintiff Erica Valero ("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 filed an application for DIB on August 19, 2010, alleging disability beginning on December 1, 2007, due to carpal tunnel, depression, anxiety, shoulder problems, neck pain, headaches, insomnia, fatigue, panic attacks, and arthritis. (AR 191.)

A. Relevant Medical Evidence

In November 2010, Plaintiff was evaluated by workers' compensation physician, William J. Previte, D.O., regarding Plaintiff's claim for an injury she sustained while working as an office assistant. (AR 718-32.) Dr. Previte completed a detailed history of Plaintiff's medical care and work history. Plaintiff stated she worked as an office assistant approximately 4 to 5 days per week, 8 to 10 hours a day. (AR 718.) She began experiencing symptoms in December 2007 which included numbness, tingling, and pain in her wrists that over time radiated to her shoulders. (AR 718.) She went to see her primary care physician, and she was referred for electro diagnostic studies. (AR 718.) Plaintiff reported those studies were abnormal and she filed a workers' compensation claim in January 2008. She continued to work through this time period, but when she began treatment through the workers' compensation system, she was "taken off" work by the doctors, which occurred at some time in early 2008. (AR 718.)

In January 2008, it was noted that pain was increasing in her left arm and Plaintiff was referred to neurosurgery. (AR 719.) She was also referred for evaluation of a sleep disorder, but the study detected no sleep disorder. (AR 719.)

In March 2008, Plaintiff was examined by Tomas B. Rios, M.D., as part of her workers' compensation claim, and Plaintiff described hand and neck pain with bilateral hand numbness. Examination showed positive Durkan's, Tinel's, and Phalen's tests, with symptoms greater on the left than the right. She was diagnosed with subacute cervical strain, bilateral wrist tendonitis, bilateral carpal tunnel syndrome, and situational anxiety. (AR 720.) The treatment plan was to request authorization for chiropractic visits, wrist splints on each arm, medication, and cervical X-rays. (AR 720.)

In April 2008, Plaintiff underwent a comprehensive medical evaluation with Dr. Rios. (AR 720.) The examination revealed positive carpal tunnel signs and Plaintiff was diagnosed with cervical strain secondary to cumulative injuries occurring during employment. (AR 720.) The plan was to pursue hand surgery with Dr. Thomas E. Hoyt and to follow up with a magnetic resonance imaging scan ("MRI") of the cervical spine if surgery did not relieve these symptoms. (AR 720.)

Plaintiff underwent carpal tunnel release surgery on her left hand in April 2008. (AR 322, 718.) On April 23, 2008, Dr. Hoyt reported that Plaintiff was seen for follow-up after her left carpal tunnel release surgery, and she was "doing extremely well" following the operation. (AR 322.) He noted that her motor and sensory functions were improved "dramatically, " and he would see her again for follow-up in the future. (AR 322.)

On May 15, 2008, Plaintiff followed up with Dr. Hoyt, who noted she was "recovering nicely after her left carpal tunnel release." (AR 297.) Although Plaintiff still had numbness in her median nerve, the pain was "now gone." (AR 297.) Dr. Hoyt also indicated that Plaintiff "still has carpal tunnel symptoms in the right hand, primarily numbness and tingling, but not pain." Although Dr. Hoyt discussed surgery for her right hand, he stated Plaintiff wanted to see "how well the hand therapy works on the left side." (AR 297.) Plaintiff was to follow-up with Dr. Hoyt after completing her therapy. (AR 297.)

In May 2008, Plaintiff returned to see Dr. Rios and reported persistent left neck and arm pain. (AR 720.) By July 2008, although physical therapy had been completed, Plaintiff still continued to report bilateral hand, neck, and shoulder pain. (AR 720.) She declined carpal tunnel release surgery on her right hand. (AR 720.) She was returned to modified work duty and was noted to be "weaning" off medication. (AR 720.) In July 2008, Plaintiff followed up with Dr. Hoyt after completing hand therapy. (AR 294.) She no longer had any significant tenderness over the incision on her left hand, and she had good motor and sensory function in the median nerve distribution in the hand. (AR 294.) Plaintiff indicated her right hand was "not bothering her as badly as it once did, " and Dr. Hoyt urged her to contact him in the future should the right hand begin to bother her and she could do the right carpal tunnel release. (AR 294.) In August 2008, Plaintiff was released back to full work duty. (AR 720.)

On August 28, 2008, Plaintiff was examined again by Dr. Rios in connection with her workers' compensation claim. (AR 1182-95.) Dr. Rios reviewed Plaintiff's medical file and conducted an examination. (AR 1182.) At the time of her examination, Plaintiff was four and a half months post-carpal tunnel surgery on her left hand with no further change in her symptoms. (AR 1183.) Dr. Rios noted Plaintiff had refused surgery on her right hand, and she was presenting to Dr. Rios for her final examination and disposition of her claim. (AR 1183.) Plaintiff reported that she had an ache in her left hand with dull pain. Plaintiff denied any sensory deficits in her hands at that time, and she indicated her left hand felt weak with grasping and heavy lifting activities. (AR 1183.) Dr. Rios provided the following comments and discussion based on his review of the record and examination findings:

At this point in time, this patient continues to have ongoing subjective complaints of bilateral hand pain, which is described as an "ache" increasing to a "dull pain" with prolonged use (L>R). There is full range of motion about the hands and wrists. All orthopedic signs and tests were essentially unremarkable. There does appear to be some sensory deficits in the wrists/hands (R>L), which in my clinical judgment could be expected. It is my opinion that her ongoing subjective pain/discomfort is reasonable and proportional to her activity level.
Pursuant to the absence of any further improvement, and her refusal of surgery on the right hand, it is my opinion that Erica Valero has attained maximum medical improvement. Her ongoing subjective would be best described as intermittent mild to slight, and is not labor disabling. She was released [] back to usual and customary work, effective today, August 28, 2008.

(AR 1192.)

In April 2009, Plaintiff again saw Dr. Rios and reported increased cervical stiffness and a flare up of the left wrist. Medication was dispensed and the plan was for Plaintiff to continue with full duty work detail. (AR 721.) In July 2009, Plaintiff reported that she was unable to perform her modified work with the right hand, and it was noted she was awaiting surgery. (AR 721.)

On September 11, 2009, Plaintiff was again examined by Dr. Rios who noted Plaintiff was experiencing an acute flare up of her right wrist and she wished to schedule surgery on her right hand. (AR 1203.) She was fitted with a right-wrist splint, and Dr. Rios noted her employer stated there was modified work she could perform. (AR 1203.)

In October 2009, an electromyogram and nerve conduction velocity study ("EMG/NCV") study indicated mild to moderate right carpal tunnel syndrome affecting sensory and motor components. (AR 721.) Plaintiff again saw Dr. Rios and complained of persistent right upper extremity pain, but she was instructed to return to work on modified duty and to perform no work with her right hand until November 15, 2009. (AR 721, 1204.)

In October 2009, Plaintiff was also examined by Catalina Dureza, M.D., who diagnosed Plaintiff with bilateral carpal tunnel syndrome, left-shoulder impingement, and a mood disorder. (AR 722.) The treatment plan included a right-hand carpal tunnel release, MRI testing of the left shoulder, and an EMG/NCV. (AR 722.)

Upon examination with Dr. Previte in November 2010, Plaintiff reported stiffness and tightness in her neck with pain radiating toward her shoulders bilaterally and headaches. She also continued to note weakness in gripping and grasping with numbness and tingling in both hands and rated her pain as an 8 out of 10. (AR 723-24.) Plaintiff reported her left carpal tunnel release had resulted in only limited benefit, and she was still awaiting her right hand carpal tunnel release surgery. (AR 723.) Although Plaintiff reported independence in her activities of daily living, she noted she required help with such items as laundry and preparation of meals. Dr. Previte noted Plaintiff's non-specialized hand functions such as gripping, grasping, twisting and torqueing were compromised, and Plaintiff was also compromised in her ability to perform fine manipulation such as writing or typing. (AR 724.) Dr. Previte noted Plaintiff appeared to have low-grade bursitis in her shoulders, right side slightly worse than left. (AR 727.) Dr. Previte opined Plaintiff was currently temporarily partially disabled:

She is precluded from repetitive forceful use of both upper extremities as well as prolonged fine manipulation with both upper extremities. I would allow her a 5-minute break from fine motor skill functions in both upper extremities such as typing, writing or fingering type movements each hour. Temporary total disability between [January 2008] and [August 2008] would seem to have been indicated and appropriate in relationship to this industrial injury.

(AR 731.) Dr. Previte also made treatment recommendations:

I believe that Ms. Valero should undergo right carpal tunnel release surgery. In the postoperative period, therapeutic intervention with modalities and physical therapy for the bilateral upper extremity, wrists and hands as well as the cervicotrapezius area would appear to be indicated. At an appropriate point as determined by her Primary Treating Physician, her condition could be considered at maximum medical improvement, and I would be happy to ...

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