United States District Court, E.D. California
ORDER RE PLAINTIFF’S SOCIAL SECURITY
APPEAL
SHEILA
K. OBERTO, UNITED STATES MAGISTRATE JUDGE
I.
INTRODUCTION
Plaintiff,
Carl Leroy Cagle (“Plaintiff”), seeks judicial
review of a final decision of the Commissioner of Social
Security (the “Commissioner”) denying his
application for Supplemental Security Income
(“SSI”) Benefits pursuant to Title XVI of the
Social Security Act. 42 U.S.C. § 1381-83. 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]
II.
FACTUAL BACKGROUND
Plaintiff
was born on February 4, 1963, and alleges disability
beginning on December 1, 2009. (Administrative Record
(“AR”) 258.) Plaintiff claims he is disabled due
to difficulty walking, sciatic nerve, difficulty sitting, and
back and leg pain. (See AR 227.)
A.
Relevant Medical Evidence
Plaintiff
was treated at Kern Medical Center from July 2010 through May
2013. (AR 266-98; 310-15; 319-54; 360-76.)[2] On July 8, 2010,
decreased lumbar range of motion and left knee tenderness to
palpitation were observed. (AR 266.) Imaging of
Plaintiff’s left knee revealed tears of the anterior
cruciate ligament and another ligament. (AR 266.)
On
January 24, 2011, tenderness was again observed upon
palpitation of Plaintiff’s lower back and positive left
knee edema was reported. (AR 270.) On January 25, 2011,
radiological imaging of Plaintiff’s left knee revealed
degenerative joint disease with small joint effusion and
exostosis of the proximal left tibia medially (AR 289) and
imaging of Plaintiff’s lumbar spine revealed
degenerative joint disease and grade II spondylolsthesis of
the L5 vertebrae. (AR 292.) Radiological imaging of
Plaintiff’s right knee on January 26, 2011, revealed
minimal degenerative joint disease of the right knee with a
small amount of joint effusion and a “[p]robably old
chip fracture of the right tibial tubercle or old
Osgood-Schlatter disease.” (AR 288.)
On
September 30, 2011, at the request of the state agency, Dr.
Kale H. Van Kirk, M.D., performed an orthopedic examination.
(AR 299-303.) Dr. Van Kirk reviewed the lumbar spine imaging
studies but did not review imaging of Plaintiff’s
bilateral knees. (AR 299.) Plaintiff reported a history of
chiropractic and physical therapy with only minimal benefits
and no acupuncture or surgical interventions. (AR 299-300.)
Plaintiff’s pain radiates down both legs and increased
if he lifts heavy objects, twists, turns, climbs, runs,
jumps, squats, goes up and down ladders or stairs, crouches,
or crawls. (AR 300.) He can stand and walk for about 15
minutes and sit for about 2 minutes, uses a cane sometimes to
help with balance and getting up and out of chairs, and has a
history of falling due to pain in his back and weakness in
his legs. (AR 300.)
On
examination, Plaintiff’s lumbar spine range of motion
was restricted with radiating pain, and a positive straight
leg test was observed at the supine position. (AR 301-02.)
Plaintiff had normal sensation in the upper and left lower
extremities as well as a strip of hypoesthesia along the
lateral aspect of the right lower extremity. (AR 302.) Dr.
Van Kirk could not detect patellar reflexes. (AR 302.) Dr.
Van Kirk diagnosed Plaintiff with chronic lumbosacral
musculoligamentous strain/sprain associated with degenerative
joint disease; and grade II spondylolisthesis of the L5 on
S1. (AR 302.) He opined Plaintiff could stand and walk
cumulatively four hours out of an eight-hour day and would
require the ability to sit down and rest periodically for a
brief period of time; could sit cumulatively for four hours
out of an eight-hour day and would require the ability to
stand up and move around periodically for a brief period of
time to stretch and reposition himself; “should use his
cane when he is out and about for even and uneven terrain and
also at home to help with balance . . . and to help him to
get up and out of a chair[;]” could lift and carry 25
pounds frequently and 50 pounds occasionally; had no
manipulative limitations; could not work in cold or damp
environments; and could only occasionally crouch, bend,
stoop, climb, kneel, balance, crawl, push, or pull. (AR
302-03.)
On
November 29, 2011, magnetic resonance imaging of
Plaintiff’s lumbar spine revealed multilevel lumbar
disc bulges/osteophytes at L1-S1, with stenosis at L2-3 and
L4-S1, most severe at L5-S1 foramina; lumbar degenerative
disease at L3-L4 and L5-S1; worsening of L5-S1
anterolisthesis grade II with widening of bilateral pars
defects; wedging of L5 vertebral body; bilateral lumbar facet
joint arthropathy at L5-S1; dextroscoliosis of lower thoracic
spine and levoscoliosis of mid-to-lower lumbar spine. (AR
419.)
On
February 29, 2012, Dr. Jan Eckermann, M.D., saw Plaintiff for
a neurosurgery consultation. (AR 314-15.) On examination Dr.
Eckermann observed Plaintiff was “tender to palpation
with bilateral positive leg raise test consistent with severe
nerve compression.” (AR 314.) Dr. Eckernmann noted
imaging studies “showed L5-S1 and grade II
spondylolisthesis, which created a significant narrowing of
the foramen.” (AR 314.) Dr. Eckermann opined Plaintiff
had “severely disabling” severe leg and back pain
secondary to grade II L5-S1 spondylolisthesis that would
prevent Plaintiff “from doing any kind of work that is
associated with lifting or prolonged sitting” and
requested surgical authorization for L5-S1 fusion,
laminectomy, and decompression of that area and prescribed
Plaintiff Norco “to carry him over.” (AR 314.)
On
August 23, 2012, Plaintiff was seen for medication refill and
reported that, although his pain had improved with use of
morphine, it remained high at 8/10 with medication and 10/10
without medication. (AR 360.) Plaintiff was assessed with
L5-S1 spondylolistheis, grade 2, diabetes, and hypertension,
and presented with an antalgic gait. (AR 360-68.)
From
March 22 through May 17, 2013, Plaintiff was seen at Central
Valley Pain Management for pain management. (AR 416-21.) On
March 25, 2013, Plaintiff was noted to be awaiting an L5/S1
fusion surgery and laminectomy by Dr. Eckermann; but needed
to lose 100 pounds. (AR 382.) On April 19, 2013, Plaintiff
received a bilateral sacroiliac joint injection with steroid
and local anesthesia for bilateral sacroiliac tenderness and
reported a pain level of 10/10. (AR 417-18.)
B.
Testimony
1.
Plaintiff’s Self-Assessments
On
August 10, 2012, Plaintiff completed an adult function
report, stating that he does not do “much of
anything” due to the pain in his back (AR 250), and
cannot dress or stand for long because of his pain (AR
251-52). Plaintiff cooks for himself every day and spends
about 3 to 5 minutes preparing each meal. (AR 252.) He spends
most of his day watching television and cannot sleep for a
long period of time due to his pain. (AR 254.) He cannot bend
or squat due to pain, can only lift 3 pounds at a time, and
has difficulties standing, reaching, walking, sitting,
kneeling, climbing stairs, and completing tasks. (AR 255.) He
can walk about 20 feet before needing to rest for 10 to 15
minutes, can follow written and spoken instructions
“ok, ” has no difficulties concentrating, and is
able to pay attention “all the time.” (AR 255.)
2.
Third-Party Assessment
On
August 2, 2012, Plaintiff’s friend Chrystal Forrister
completed a third-party adult function report. (AR 242-49.)
Ms. Forrister reported Plaintiff spent the
“majority” of his time “sitting, laying,
leaning for support to ease pain” and “constantly
trying to get comfortable & any sort of relief from
pain.” (AR 242.) Prior to his impairments, Plaintiff
could “work, lift over 51 lbs, [do] yardwork, bend over
without pain” and “ride in a car without stopping
every 10 min[utes] to ease pain.” (AR 243.) Plaintiff
requires help with dressing to bend over and put on his shoes
and socks and get his pants on, and takes 30-45 minutes to
get dressed, must use extenders to properly wash and wipe
when using the toilet, cannot keep his hands steady to shave,
and must lean against the wall to brush his teeth and to
urinate. (AR 243.) Plaintiff cannot stand long enough to cook
and does not use a stove or oven. (AR 243-44.)
Ms.
Forrister reported Plaintiff is limited in his ability to
lift, squat, bend, stand, reach, walk, sit, kneel, climb
stairs, see, concentrate, complete tasks, and use hands, can
walk about 8 steps before needing to rest 10-20 minutes, and
can only concentrate for a few minutes at a time due to pain.
(AR 247.) Due to his pain, Plaintiff “constantly
sweats” and his “body shakes, he can never get
comfortable in any environment” and “he gets very
depressed with his inability to do hardly anything without
severe pain.” (AR 249.)
3.
Hearing Testimony
a.
Plaintiff’s Testimony at Hearing
Plaintiff
testified he had numbness in both legs -- his left more than
his right -- nearly all the time. (AR 62-63.) He normally
leans rather than stands, to “take the pressure
off” his back. (AR 63.) Plaintiff uses a cane, and
believed a physician at Kern Medical Center had prescribed
the use of a cane to him at some point three or four years
earlier. (AR 64.) Plaintiff’s physician had prescribed
surgery for Plaintiff, but Plaintiff had failed to lose
enough weight to have the surgery despite his “good
faith” efforts to lose weight by exercising in his
apartment swimming pool. (AR 64-66 (testifying that he had
lost about 20-22 pounds in the past six months).)
Plaintiff
further testified that he did not feel he could “handle
any kind of job eight hours a day, five days a week”
because he “d[id]n’t think [he] could stand long
enough to do [his] job and the employers don’t want to
see you leaning and stuff.” (AR 66.) He spends most of
his day lounging in a large chair, midway between sitting up
and laying down, and has difficulty getting up from a seated
position. (AR 66-67.) Plaintiff’s pain affects his
concentration and makes it difficult to sleep. (AR 67.)
Plaintiff also has “numbness” in his hands and
had gotten “pain injections” and used a TENS
unit, without benefit. (AR 67-68.) Plaintiff brought a cane
to the hearing and reported using it for “maybe five
months.” (AR 72.) Plaintiff uses a microwave and an
oven to cook for himself, and is able to shop by himself with
the use of a mobility scooter. (AR 69.)
Plaintiff
completed seventh and eighth grades with
“F’s” and dropped out of school because he
“just didn’t feel [he] needed it.” (AR
73-74.) He never returned for a GED certificate or completed
any other schooling. (AR 74.) Plaintiff did not work between
2000 and 2007 because he “[c]ouldn’t find any
work” and worked in 2008 as an apartment maintenance
worker. (AR 70-71.)
b.
Medical Expert Testimony at Hearing
The
Medical Expert (“ME”) testified at the hearing
that based on his review of the medical evidence of record,
Plaintiff did not meet or equal any Listing. (AR 58; see
also AR 61 (testifying Plaintiff did not meet the
requirements of Listing 1.04C).) The ME testified that
Plaintiff could lift 20 pounds occasionally and 10 pounds
repetitively; stand, sit, and walk for four hours, two hours
at a time; was unable to use bilateral foot pedals; bend and
climb stairs occasionally; could not stoop, crawl, kneel,
crouch, or climb ropes, ladders, or scaffolding; and would be
precluded from working at unprotected heights. (AR 58-61.)
The ME further testified that there “was no
documentation in the medical records of [Plaintiff] ever
obtaining a walker or any assistive device being prescribed
or used.” (AR 60.)
c.
Vocation Expert ...