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Kelley v. Commissioner of Social Security

United States District Court, S.D. California

March 27, 2015



CYNTHIA BASHANT, District Judge.

On May 10, 2013, plaintiff Dorraine R. Kelley ("Plaintiff"), proceeding pro se, filed a complaint against Carolyn W. Colvin ("Defendant"), Acting Commissioner of Social Security, pursuant to 42 U.S.C. § 405(g) of the Social Security Act ("SSA") to obtain judicial review of a final decision by the Commissioner of Social Security denying her disability insurance benefits. The Court then referred this matter to Magistrate Judge Karen S. Crawford, who issued a Report and Recommendation ("Report") on February 26, 2015 recommending that this Court: (1) deny Plaintiff's motion for summary judgment, (2) grant Defendant's cross-motion for summary judgment, and (3) deny Plaintiff's request for a remand to consider new evidence submitted with her motion for summary judgment and with her opposition to Defendant's motion for summary judgment. Thereafter, Plaintiff filed objections to the Report, and the Commissioner filed a response to the objections.


A. Procedural History

On or about February 22, 2010, Plaintiff filed an application for supplemental security income ("SSI"). (ECF No. 23-5 at pp. 3-13.) In a Disability Report (Form SSA-3368) completed in connection with her application, Plaintiff stated she has degenerative disc disease, diabetes, and spinal stenosis and cannot work for the following reasons: "lack of motivation, can't stand longer than 10 minutes, trouble bending or twisting, can only lift 10 lbs, [and] pain level is 10." (ECF No. 23-6 at pp. 3-12.)

A Work History Report dated April 7, 2010 states that Plaintiff worked as a receptionist from November 1992 through June 1994. She worked five days a week for eight hours each day and was paid $10 per hour. Her duties included answering telephones and working on a computer. From January 1990 through April 1992, Plaintiff worked five days per week in food service. She worked five hours a day and was paid $8.50 per hour. Her duties included making food, taking food orders at a cash register, and working in the stock room. She carried boxes of canned food from the truck to the shelves and trash bags from the restaurant to a trash receptacle. ( Id. at pp. 41-43, 52.) In the "Remarks" section of the Work History Report dated April 7, 2010, Plaintiff wrote that she has "severe pain 24/7" and "cannot get out of bed to even look for a job." ( Id. at p. 52.)

On June 23, 2010, Plaintiff was notified by letter that she did not qualify for disability benefits. (ECF No. 23-4 at p. 8.) The letter provides the following explanation for the denial of benefits: "We have determined that your condition is not severe enough to keep you from working. We considered the medical and other information, your age, education, training, and work experience in determining how your condition affects your ability to work. [¶]You said you are unable to work because of degenerative disc disease, diabetes, and spinal stenosis. ¶We have determined that your condition is not so severe as to prevent you from working...." ( Id. at p. 8.) Three reports from the following medical providers were used to decide Plaintiffs claim for SSI benefits: (1) Dr. Noli Cava; (2) Sharp Memorial Hospital; and (3) Seagate Medical Group (Dr. Ajit Raisinghani).

Plaintiff also completed a Disability Report Questionnaire[2] which states as follows: "It is very hard to get even out of bed without pain medication. I would be hospitalized without pain medications. I cannot clean, drive, cook, bathe without pain medications.... My day begins with waking up to pain medications [, ] crawling out of my bed and to the couch as soon as the medication sets in. I hurry about trying to make a bed or clean the house, care for my children and be a "Mom." My daily housework assignments are limited. Each pain pill lasts 4-6 hours (if it works). I am constantly chasing a remedy to relieve the pain.... My day ends with pain medication, muscle relaxers and a whole bunch of denials from my insurance to see the doctors.... Doctors say I will not be able to work anytime soon. I will have possible surgery-pending. Waiting appointment with neurosurgeon. My insurance will not o'k' a visit to the neurosurgeon. We are pushing to get me in to him. I have been waiting 3 months for clearance to see neurosurgeon and 3 weeks for clearance to get an x-ray or MRI." (ECF No. 23-6 at p. 66.) At this time, Plaintiff also represented she was taking a number of medications for an infection, diabetes, back pain, and high blood pressure. Reported side effects for these medications included severe nausea, fatigue, dizziness, and headaches. ( Id. at p. 67.)

Although Plaintiff submitted a request for reconsideration, her request was denied on August 12, 2010. (ECF No. 23-4 at pp. 14-19.) On September 12, 2010, Plaintiff requested a hearing before an administrative law judge ("ALJ"). ( Id. at pp. 21-27.) A hearing was scheduled and held on August 11, 2011. (ECF No. 23-2 at pp. 26-51; ECF No. 23-4 at pp. 42, 53, 78.) At the hearing, the ALJ considered testimony by (1) Plaintiff; (2) John R. Morse, M.D., a medical expert; and (3) John P. Kilcher, a vocational expert. (ECF No. 23-2 at pp. 26-50; ECF No. 23-4 at pp. 70-77.)

On August 31, 2011, the ALJ issued a written opinion concluding that Plaintiff did not qualify for disability insurance benefits under the SSA. (ECF No. 23-2 at pp. 1-21.) Plaintiff requested review of the ALJ's decision, arguing that the ALJ "did not rule in accordance [with] the weight of the evidence." ( Id. at pp. 7-8.) Plaintiffs request for review was denied by the Appeals Council on March 8, 2013. ( Id. at pp. 2-4.) Plaintiff then filed her Complaint in this action on May 10, 2013. (ECF No. 1.)

B. Medical Evidence

The following is a summary of the medical evidence in the Administrative Record that was submitted in support of Plaintiff's disability claim and considered by the ALJ in reaching his decision to deny benefits on August 31, 2011:

1. Sharp Memorial Hospital

On October 21, 2009, Plaintiff went to Sharp Memorial Hospital complaining of pain radiating down both legs "for the past 3 months." (ECF No. 23-7 at p. 18.) Plaintiff said she had been taking Motrin "without significant change." ( Id. at p. 18.) An x-ray of the spine revealed "slight scoliosis." ( Id. at p. 25.)

On December 22, 2009, Plaintiff was once again examined in the emergency room at Sharp Memorial Hospital because of "progressively worsening lower back discomfort" and pain in her legs. She reported to medical personnel at the hospital that the pain began "3 months ago without antecedent trauma or exertion." ( Id. at p. 3.) The results of an MRI "of the lumbosacral spine... showed mild disk bulging at L3-4, mild disk protrusion at L4-5, and mild to moderate spinal stenosis at L4-5 secondary to disk and hypertrophy of the ligamentum flavum." ( Id. at pp. 5, 13.) The emergency room physician concluded the MRI revealed "significant disk disease, particularly on the left, likely accounting for patient's [symptoms]. As she showed no signs of cord compression [or other conditions] warranting... surgical intervention, " the emergency room doctor prescribed pain medication and referred Plaintiff to her primary care physician. ( Id. at p. 5.)

2. Dr. Noli A. Cava

Dr. Noli A. Cava ("Dr. Cava") was Plaintiff's treating physician beginning January 5, 2010. (ECF No. 23-7, at pp. 27, 41.) In support of Plaintiff's disability claim, Dr. Cava provided medical records and/or treatment notes from January 5, 2010 through May 4, 2011. ( Id. at pp. 38-41, 79-90, et seq. ) Although these notes are somewhat illegible, many mention chronic low back pain, which Dr. Cava was treating with pain medication. ( Id. at pp. 39-41, ...

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