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Bruce v. Colvin

United States District Court, E.D. California

July 21, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         Plaintiff Scott James Bruce seeks review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act (42 U.S.C. § 301 et seq.) (“the Act”). The matter is before the Court on the parties’ cross-briefs, which were submitted without oral argument. For the reasons discussed below, the Court affirms the decision of the Administrative Law Judge (“ALJ”).


         A. Procedural History

         Plaintiff applied for DIB on July 21, 2011, alleging disability beginning on November 2, 2010. AR 75, 165.[1] The Commissioner denied the claim on December 14, 2011, and upon reconsideration, on July 13, 2012. AR 82, 97. Plaintiff then requested a hearing before an ALJ. AR 103.[2]

         Plaintiff appeared and testified before an ALJ, John Heyer, on August 4, 2014. Also at the hearing were Plaintiff’s counsel and an impartial vocational expert (“VE”). AR 47. In a written decision dated September 23, 2014, the ALJ found Plaintiff was not disabled under the Act from November 2, 2010 through the date of the written decision, September 23, 2014. AR 22. On December 11, 2014, the Appeals Council denied review of the ALJ’s decision, which thus became the Commissioner’s final decision, and from which Plaintiff filed a timely complaint. AR1; Doc. 1.

         B. Factual Background The Court will not recount in detail all the facts of this case, discussing only what is relevant to this appeal.

         1. Medical Evidence

         In late March 2002, Plaintiff checked in to the emergency room at Anaheim Memorial Medical Center (“AMMC”) due to abdominal, nausea and vomiting. Plaintiff reported that on March 15, 2002, he had fallen from a platform at work and landed on his back. He suffered multiple contusions and a CT scan of his spine showed spinous process fractures of T11 and T12. No surgery was recommended but Plaintiff was advised to take medications. AR 378-379. From 2006 to 2008, Plaintiff underwent a number of procedures: cystoscopies and biopsies of the bladder in 2006; repair of right inguinal hernia in 2008, and right carpal tunnel release in 2008. AR 392-421, 430, 432, 434.

         In August and September 2008, Plaintiff consulted with Dr. Tien Nguyen at the Orange County Brain and Spine Group. Dr. Nguyen assessed Plaintiff with cervical radiculopathy secondary to disk herniation at C5-6 and C6-7. He provided Plaintiff with several options ranging from conservative management of pain to surgery. Plaintiff chose surgery. AR 572-573, 577-578.

         In September 2008, Plaintiff underwent an anterior cervical C5-6 and C6-7 discectomy and an anterior cervical C5-7 fusion and plating with autograft. AR 574. A week after surgery, Plaintiff had a follow up with Dr. Nguyen, who noted that Plaintiff was doing well and could return to work within two weeks “with light duties only” and could “do some light exercises.” In a December 2008 follow up, Dr. Nguyen found Plaintiff doing well with no evidence of infection. However, there was no fusion yet between the inferior end plates of C5 and the graft. A month later, in a January 2009, Plaintiff reported occasional pain down his arms and neck, with the latter being occasionally severe when sitting for prolonged periods. Dr. Nguyen observed some fusion although not completely, and expressed hope of fusion with time. AR 569-571.

         More than two years later, at a follow up with Dr. Nguyen in May 2011, Plaintiff reported two incidents which triggered his neck pain. In the first instance, Plaintiff was using a sledge hammer to repair a car which resulted in right neck and elbow pain. In the second instance, Plaintiff experienced bilateral neck pain and immobility for two days after driving his motorcycle in a windy area. Consequently, he used a cuff to help with the pain and swelling in the elbow. Dr. Nguyen observed slight displacement of the plate from the vertebral body, degenerative changes, and nonfusion. He opined the nonfusion may have been due to Plaintiff’s smoking. He noted that MRI and X-ray are needed but as Plaintiff had no insurance, medication was prescribed. AR 567-568.

         Between 2011 and 2012, a number of physicians provided their functional assessments of Plaintiff. They include Drs. Laja Ibraheem, Concepcion A. Enriquez, Timothy Walker, and Richard May. In October 2011, Dr. Enriquez completed an internal medical consultation of Plaintiff at the request of the Department of Social Services (“DSS”). He opined that Plaintiff could: (1) lift/carry 20 pounds occasionally and 10 pounds frequently; (2) stand/walk/sit with normal breaks for 6 hours in an 8-hour workday; (3) occasionally engage in above-the-shoulder lifting, pulling and pushing; and (4) frequently engage in handling, grasping and fingering. AR 602.

         In November 2011, Dr. Ibraheem completed a psychiatric evaluation of Plaintiff also at the request of DSS. During the evaluation, Plaintiff reported his current level of functioning to include the ability to dress and bathe himself, manage his own money, and go places unaccompanied, but that he had no daily activities. She opined that Plaintiff would be able to focus attention adequately and interact with supervisors, co-workers, and the general public. He would have zero to minimal difficulty following one and two-part instructions, remembering and completing simple tasks, tolerating inherent workplace stress, maintain regular attendance, and work without supervision.

         In December 2011, Dr. Walker, a medical consultant, completed a check the box form assessment and opined that Plaintiff could: (1) lift/carry 20 pounds occasionally and 10 pounds frequently, (2) stand/walk/sit with normal breaks for about 6 hours in an 8-hour workday; and (3) push/pull without limitations. He concluded Plaintiff had no postural, manipulative, visual, communicative, and environmental limitations. Dr. Walker considered Plaintiff’s activities of daily living and medial source statement in arriving at his findings. AR 624-630. The findings found support in Dr. May, another medical consultant, who in June 2012, recommended affirming Dr. Walker’s assessment of a light RFC with the addition of manipulative limitations. AR 640.

         After the Commissioner denied the DIB claim on reconsideration, Plaintiff visited his primary physician, Dr. Hoong Tang for purposes of a report to DSS. Plaintiff’s neck was tender to percussion and pain from all neck movement. His upper and lower extremities moved well, shoulder and elbow joints had full range of motion, hip and knee joints had good range of motion, and lumbar pain was normal. His neurological exams were all normal. Dr. Tang’s impressions were that Plaintiff had neck and upper back pain second to the old fracture of the T1 vertebra from the fall at work, and that he had C5-6 and C6-7 discectomy with bone graft and placement of a metal cage with six screws. In sum, Dr. Tang opined that Plaintiff had real neck and upper back pain, including severe anxiety and depression from the “parade of illness and injuries he suffered since 2001.” AR 633.

         About two years later, in December 2013, Dr. Nguyen completed a form, captioned “Listing § 1.04A - Spinal Nerve Root Compression, ” in December 2013. Therein, he opined that Plaintiff had a disorder of the spine (non-fusion and cervical degeneration) with evidence of nerve root compression characterized by neuro-anatomic distribution of pain (neck pain, bilateral shoulder pain and left arm pain), limited motion throughout the spine, and sensory/reflex loss. However, Dr. Nguyen found no muscle weakness or signs of motor loss. He thus concluded that Plaintiff’s combined impairments were medically equivalent to the severity of conditions associated with listing 1.04A. On the question of ...

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