Cagle v. Colvin

          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 ...