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Penn v. Colvin

United States District Court, N.D. California, San Francisco Division

March 23, 2015

LONNY M. PENN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


LAUREL BEELER, Magistrate Judge.


On December 9, 2013, Lonny M. Penn, who is proceeding pro se, filed a complaint seeking judicial review of a final decision by the Commissioner of Social Security, Carolyn W. Colvin, denying his supplemental security income ("SSI") benefits for his claimed disabilities caused by spinal injury. (Complaint, ECF No. 1.) The Administrative Law Judge ("ALJ") found that Mr. Penn has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b), except he is not able to climb ladders, ropes, or scaffolds. (Administrative Record ("AR") 13-20.) Now, Mr. Penn and the Commissioner both move for summary judgment. (Motion, ECF No. 17; Cross-Motion and Opposition, ECF No. 19.) All parties have consented to the court's jurisdiction. (ECF Nos. 6, 12.) Pursuant to Civil Local Rule 16-5, the matter is deemed submitted for decision by this court without oral argument. For the reasons stated below, the court grants Mr. Penn's motion for summary judgment, denies the Commissioner's cross-motion for summary judgment, and remands the action for further proceedings.



Mr. Penn applied for SSI on November 1, 2010, alleging disability beginning July 4, 1997. (AR 156-163.) It appears from the record that he may have received SSI benefits after a 1997 accident that resulted in a spinal cord injury. ( See AR 39, 276.) In 2011, Mr. Penn reported to the state agency consultant Dr. Sanford Selcon that he received SSI benefits after his accident until he went to prison in 2004, at which time his benefits were terminated. (AR 276.) Through his 2010 application, he seeks reinstatement of those prior benefits. (AR 276.)

The Commissioner denied Mr. Penn's claims initially on June 20, 2011 and upon reconsideration on July 27, 2011. (AR 57-60, 64-69.) On September 6, 2011, Mr. Penn requested a hearing before an ALJ, and it was scheduled for March 29, 2012. (AR 76-77, 114-115.) ALJ Philip E. Callis granted a continuance of the hearing at Mr. Penn's attorney's request because Mr. Penn was intoxicated at it. (AR 48-51.)

ALJ Daniel G. Heely conducted a hearing on July 19, 2012 in Stockton, California. (AR 10-47.) Mr. Penn was represented by attorney Shellie Lott. (AR 13.[1]) Mr. Penn and vocational expert Cheryl R. Chandler (the "VE") testified. ( Id. ) At the hearing before the ALJ, there was this colloquy between Mr. Penn and his attorney:

Q: [Y]ou were on disability previously, is that right?
A: Yes, ma'am.
Q: And then you were cut off when you were incarcerated?
A: Yes, ma'am.

(AR 39.)

On August 8, 2012, the ALJ issued his decision that Mr. Penn was not disabled under the Social Security Act. (AR 13-20.) On September 25, 2013, the Appeals Council denied Mr. Penn's request for review, rendering the ALJ's decision the final decision of the Commissioner. (AR 1-5.)

On December 9, 2013, Mr. Penn filed the complaint in this action. (Complaint, ECF No. 1.) Because Mr. Penn did not move for summary judgment by April 30, 2014, in accordance with the court's Social Security Procedural Order, ECF No. 2, the court ordered him to show cause, in writing, why his action should not be dismissed for failure to prosecute. (Order, ECF No. 16.) By fax dated October 22, 2014, Mr. Penn responded to the order to show cause, stating that the Commissioner improperly denied his claim for benefits because he previously had been awarded benefits and an ALJ already ruled that he should receive benefits. ( See Motion ECF No. 17 at 3.) Mr. Penn also stated that he is much worse now than when he previously was determined to be disabled and entitled to benefits. ( See id. )

Because Mr. Penn is representing himself on this appeal, the court construed Mr. Penn's October 22, 2014 filing as a motion for summary judgment and found that he timely filed it. (Order, ECF No. 18 at 2, citing Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013).) The Commissioner filed an opposition and cross-motion for summary judgment, arguing only that in Mr. Penn's motion for summary judgment, "he does not challenge any aspect of the ALJ's decision, nor does he advance any argument based on the evidence of record, which supported that decision." (Cross-Motion and Opposition, ECF No. 19.) Mr. Penn did not file a reply to the Commissioner's cross-motion and opposition.


This section summarizes the medical evidence in the administrative record from (A) Mr. Penn's treating physicians, (B) his non-treating physicians, (C) the hearing testimony, and (D) the ALJ's findings.

A. Medical Evidence: Treating Physicians

1. Physical Medicine and Rehabilitation, Dr. Peter C. Werner (January 21, 1998)

On July 4, 1997, Mr. Penn was injured after a fall from a moped, and he injured his spine. (AR 237.) On July 10, 1997, Mr. Penn was transferred to Santa Clara Valley Medical Center Spinal Cord Injury Unit and was under Dr. Peter C. Werner's care for acute comprehensive spinal cord injury care and rehabilitation until his discharge on August 15, 1997. ( Id. ) In Dr. Werner's letter dated January 21, 1998, he noted Mr. Penn's dependence on a wheelchair and opined that Mr. Penn required assistance with some of his activities of daily living. ( Id. ) Considering Mr. Penn's injuries and mobile limitations, Dr. Werner felt it would be a hardship for him to serve time in prison due to his daily medical and physical needs. ( Id. )

2. Dr. David Gershan (March 28, 2001)

In a letter dated March 28, 2001, Dr. David Gershan, who had been treating Mr. Penn since November 15, 2000, confirmed Mr. Penn's severe spinal cord injury, chronic pain, fecal incontinence, and weakness of extremities. (AR 238.) Dr. Gershan said that Mr. Penn should be considered for low-income housing that was on the first floor or elevator accessible with financial help that would include transportation and therapy. ( Id. )

3. Treatment Records From California Department of Corrections

The administrative record contains two exhibits of medical records from Mr. Penn's time at the California Department of Corrections ("CDC"): 1F (records dated 10/10/2003 to 7/28/2010) and 2F (records dated 3/5/2008 to 10/15/2010). The following sections summarize the relevant records.

a. Intake Records in 2004

Although the 2004 physician assessment has handwritten notes that are too faint to read ( see AR 243), 2004 CDC records at intake reflect a medical assessment of Mr. Penn's cervical spinal cord injury, residual right-side weakness, loss of proprioception, problems with balancing, use of a cane, and permanent mobility impairment. (AR 239-240.)

b. Mariana Lotersztain, M.D., and Nicolas Aguilera, M.D. (March 24, 2008)

The 2008 CDC records are consistent with those at intake from 2004. Mr. Penn received x-rays on March 12, 2008, which reflect (among other things) moderate degenerative changes at the L3-4 level and the post-surgical changes of the previous left total hip replacement. (AR 246.) On March 24, 2008, Dr. Mariana Lotersztain and Dr. Nicolas Aguilera (CDC physicians) noted that Mr. Penn had a "history of motor vehicle accident resulting in a spinal cord injury at C2-C4." (AR 245.) They also noted that he "experienced a quadriparesis but has regained most of his motor strength, " "has mild left-sided hemiparesis, " and "needs an elevator pass, a cane, and housing on a low bunk." ( Id. ) They opined that Mr. Penn's condition was chronic, stable, and non-progressive. ( Id. ) They reported that Mr. Penn could not walk for more than 100 yards without resting for thirty minutes. ( Id. ) Mr. Penn could lift up to ten pounds. ( Id. ) Dr. Lotersztain and Dr. Aguilera found Mr. Penn unable to bend, squat, kneel, climb, reach above shoulder level, drive, or work in high places. ( Id. )

c. 2009-2010 records

On April 22, 2009, M. Hopkins (apparently a nurse practitioner) said in her assessment of Mr. Penn that he was unable to climb, bend, stoop, or twist, and was limited to standing for fifteen minutes every thirty minutes, sitting for thirty minutes every sixty minutes, prolonged walking for more than 500 feet without resting, and lifting over ten pounds. (AR 241.) She classified the duration of her assessment as one year. ( Id. )

Other notes in the record span from 2009 to 2010 reflect Mr. Penn's complaint of lower back pain, complaints of imbalance and equilibrium requiring use of a cane (and a physician assistant's apparent disagreement about that need in 2009 based on Mr. Penn's walking quickly without it), denial of bowel and bladder disfunction, and prescription for Neurontin/Gabapentin. (AR 257-261.)

4. Post-release Treatment Records (2010 to 2012)

The AR has the following medical records that post-date Mr. Penn's release from the CDC: (a) records from Community Medical Centers from December 29, 2010 to December 12, 2011 (Ex. 13F, AR 303-312, and Ex. 16F, AR 319-322), and (b) records from San Joaquin General Hospital dated January 12, 2012, March 2, 2012, May 10, 2011 to March 2, 2012, and March 2, 2012 to June 13, 2012. (Exs. 14F, 15F, 17F, 18F, and 19F, AR 313-318, 323-352.)

a. Community Medical Center (December 29, 2010 to December 12, 2011)

These records are at Exhibits 13F and 16F. (AR 303-312, 319-322.)

On December 29, 2010, Dr. Deepthy Damien's records reflect Mr. Penn's reported back pain, his lumbar spine injury (including decreased range of motion secondary to pain), and the lack of pain medication for the past year except aspirin occasionally at the CDC. (AR 312.) In support of Mr. Penn's application for a fixed route discount fare card from the San Joaquin Regional Transit District, on December 29, 2010 Dr. Damien filled out the section entitled "medical diagnosis of disability" with the following: "chronic low back pain secondary to spinal cord injury." (AR 322.) Dr. Damien noted that Mr. Penn used a cane and answered "no" to the question, "Is the applicant's disability temporary?" ( Id. )

2011 records reflect Mr. Penn's neuropathic pain due to the spinal cord injury and the continued prescription by Dr. Khambati of ...

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