Argueta v. Colvin

          ORDER ON PLAINTIFF’S SOCIAL SECURITY COMPLAINT (Doc. 1)

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On July 19, 2015, Plaintiff Esther Diaz Argueta (“Plaintiff) filed a complaint under 42 U.S.C. §§405(g) and 1383(c)(3) seeking judicial review of a final decision of the Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her applications for disability insurance benefits (“DIB”) and Supplemental Security Income (SSI). (Doc. 1.) 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. BACKGROUND

         Plaintiff was born on August 26, 1957, and is currently 58 years old. (Administrative Record (“AR”) 98.) She is from El Salvador, has a sixth-grade education, and speaks only Spanish. (AR 55.) On September 30, 2011, Plaintiff filed a claim for DIB and SSI payments, alleging she became disabled on May 22, 2010, due to injuries to her right knee, right shoulder, right foot, and lower back. (AR 38, 42, 98, 109.) From 2001 to May 22, 2010, Plaintiff was sorter for a produce company. (AR 310.)

         A. Relevant Medical Evidence ^[2]

         In February 2010, while working as an orange sorter, Plaintiff slipped from a stool and caught herself on a conveyor belt, injuring her right shoulder, right knee, low back, and neck. (AR 408, 389.) Plaintiff thereafter had physical therapy throughout 2010 to relieve pain. (AR 386, 392-93, 396, 398, 521, 403, 408.) She underwent MRIs of her cervical spine (neck) and lumbar spine (low back) in June and July 2010, respectively, revealing posterior disc bulges with no evidence of stenosis or narrowing in the cervical spine (AR 438), and mild to moderate narrowing in the lumbar spine. (AR 435.)

         Plaintiff had an agreed medical evaluation for her worker’s compensation claim in January 2011 with Jaime Contreras, M.D. Plaintiff told Dr. Contreras that after her injury in February 2010, she had modified work that involved lifting only up to 10 pounds and standing and walking only four hours per day. (AR 408-09). She was laid off from her modified work on May 22, 2010. (AR 408.) Dr. Contreras found no tenderness in Plaintiffs cervical roots, but tenderness in the interspinous ligaments and transverse processes, decreased range of motion with pain, and normal sensation and reflexes in the arms. (AR 410.) Plaintiff also had decreased range of motion in her low back with pain and tenderness, but had normal sensation and reflexes in her legs, and normal muscle strength, indicating no atrophy. (AR 411.) Dr. Contreras observed that Plaintiff had pain on motion of her right shoulder and a “positive” impingement sign, but found no palpable bone deformities, no soft tissue masses, no articular effusion and no evidence of ligament instability. (AR 411.) He further found tenderness in Plaintiffs right knee, with pain on motion and crepitation of the patellofemoral joint. (AR 412.) Dr. Contreras diagnosed Plaintiff with “multi level intervertebral cervical disc syndrome, ” “multi level intervertebral lumbar disc syndrome with mild right sciatic radiculopathy, ” “supraspinatus infraspinatus tendinopathy, bicipital tendinitis, impingement syndrome” in her right shoulder, “oblique radial tear of the posterior horn and mid portion of the medial meniscus” in her right knee, and a right ankle sprain. (AR 416.) Dr. Contreras recommended that Plaintiff have physical therapy and over-the-counter medication for her pain. (AR 416.). He found no indications for surgery to Plaintiffs neck, lower back, right shoulder, or right ankle, but he did recommend that Plaintiff receive arthroscopic surgery of her right knee. (AR 416.) Dr. Contreras opined that Plaintiff should avoid heavy lifting, repetitive bending, prolonged sitting, working above the shoulder with her right arm, and prolonged standing and walking. (AR 418.)

         Plaintiff began treatment with The Spine and Orthopedic Center in March 2011. (AR 608.) She had reduced range of motion and tenderness, but had normal motor strength, intact sensation, symmetrical reflexes, and negative straight-leg raising tests. (AR 609). The treating physician opined that Plaintiff should perform a “sitting job only, no lifting.” (AR 610.) Plaintiff continued with treatment throughout 2011, reporting improvement from medication and acupuncture. (AR 555, 566, 570, 574-75.) Plaintiff said that she could sit, stand, or walk for between 15 and 30 minutes at a time. (AR 613-26.)

         On October 17, 2011, Plaintiff had surgery on her right knee. (AR 664-65.) She thereafter had physical therapy, which she reported was “very beneficial.” (AR 853.) By December 2011, Plaintiff was able to sit and walk for one hour each, and stand for 15 minutes at a time. (AR 879.) In January 2012, Plaintiff said she could sit for only 30 minutes at a time, and stand and walk for 20 minutes each. (AR 877.) Plaintiffs chiropractor said that her knee improved only marginally from surgery; the chiropractor believed this was because she waited too long for surgery. (AR 742-43.)

         On January 16, 2012, State agency physician N. Shibuya, M.D., reviewed Plaintiffs records for her disability claim. Dr. Shibuya opined that Plaintiff could stand and walk about six hours each per day, sit for about six hours per day, lift and carry up to 20 pounds occasionally and 10 pounds frequently; and could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs, but could never climb ropes, ladders, or scaffolds. (AR 103-04.) Dr. Shibuya concluded also that Plaintiff had limitations in overhead reaching, and should avoid concentrated exposure to hazards such as unprotected heights, inclined planes, and uneven terrain because of her pain. (AR 104-05.)

         Plaintiff continued to report pain, and continued with physical therapy, acupuncture, and home exercise. (AR 841-42.) She told her chiropractor that she did not believe that she was “being addressed appropriately for her medical conditions” through the worker’s compensation system. (AR 738.) Plaintiff saw Dr. Contreras again in April 2012, and Dr. Contreras said Plaintiffs symptoms “have been essentially unchanged” since her prior examination. (AR 666-68.) He noted that Plaintiff had tenderness and decreased range of motion with pain, but normal neurological findings including reflexes and sensation. (AR 669-72.) He opined that Plaintiff should avoid very heavy lifting repetitive bending, prolonged sitting, repetitive work above the right shoulder, prolonged standing and walking, repetitive squatting, kneeling, climbing, and prolonged stooping. (AR 678-79.) During this time, Plaintiff believed that she could sit, stand, and walk for up to 30 minutes each at one time. (AR 867.) Throughout 2012, Plaintiff continued to report pain, and stated that physical therapy and medication helped her pain. (AR 800-01, 805-06, 813, 817, 825.)

         In October 2012, State agency physician R. Fujikama, M.D., reviewed Plaintiffs records for Plaintiffs reconsideration request. (AR 132.) Dr. Fujikama’s findings were consistent with Dr. Shibuya’s opinion, and the State agency denied Plaintiff applications again on reconsideration. (AR 133-37.)

         On January 16, 2013, Plaintiff was evaluated by Mark Greenspan, M.D. Plaintiff told Dr. Greenspan that she could lift up to 25 pounds before her injury, but now could lift only 5 pounds. (AR 1016.) Plaintiff reported difficulty with daily activities including laundry, shopping, getting dressed, showering, vacuuming, mopping, sweeping, dusting, cleaning bathrooms, and washing dishes. (AR 1018.) Dr. Greenspan examined Plaintiff and found decreased range of motion and tenderness, normal (5/5) motor strength, symmetric reflexes, some decreased sensation, and negative straight leg raising. (AR 1020-23, 1025-27.) He noted that Plaintiff “was started on a conservative medical management” including medication, physical therapy, chiropractic care, stretching and strengthening exercises, soft tissue manipulation, and a trans-cutaneous electrical nerve stimulation (TENS) unit. (AR 1028.)

         Later that month, on January 26, 2013, Plaintiff attended a consultative examination with psychologist Gil Schmidt, Psy.D. Dr. Schmidt observed that Plaintiff carried a cane “but did not appear to use it for any significant issue, ” that she “walked without any sense of having physical pain, ” that her mood and gait were normal, and that she was “bantering socially with the interpreter and laughing.” (AR 1041, 1043.) Plaintiff told Dr. Schmidt that she showered daily, handled her own hygiene without assistance, and was able to perform light duty domestic chores. (AR 1043.) Dr. Schmidt noted that Plaintiffs mental health was “stable, ” and that her “mental health condition will probably abate within the next 12 months.” (AR 1045.)

         B. Plaintiff’s Statement

         On September 15, 2012, Plaintiff completed a function report. (AR 334.) When asked to describe what she did from the time he wakes up to the time he goes to bed, Plaintiff reported that she has to take several breaks when she is awake and she tries to do light duty chores. (AR 335.) She responded that she has trouble getting dressed and requires assistance, that she has to hold herself to wash while showering, that she has to support her left hand to comb her hair, and that she has trouble reaching after using the toilet. (AR 335.) Plaintiff prepares meals such as soup, microwaveable meals, and sandwiches, but that she can’t stand for a long period of time. (AR 335.) Plaintiff reported that she sometimes forgets to take her medications due to her pain. (AR 336.) She has her husband or grandson help her with chores. (AR 336.) She goes outside one to three times a day, and gets around by walking, using public transportation, and riding in car. (AR 337.) Plaintiff has her daughter or son do her stopping for her. (AR 337.) Plaintiff is able to count change. (AR 337.) Plaintiff reports no hobbies or social activities, but reports that she attends church on Sunday mornings. (AR 338.) Plaintiff feels vulnerable when she goes out so she feels like she needs a relative or friend to assist her in getting out of a vehicle when visiting places outside the home. (AR 338.) Plaintiff can walk for about 30-45 minutes before needing to rest, and could resume walking after 20-30 minutes. (AR 339.) Plaintiff can pay attention for about 15-20 minutes. (AR 339.) Plaintiff uses a cane because of weakened strength in her right/lower knee. (AR 340.)

         C. Administrative Proceedings

         Plaintiff filed an application for DIB and SSI on September 30, 2011, alleging she became disabled on May 22, 2010. (AR 38, 98, 109.) The agency denied Plaintiffs applications for benefits initially on January 25, 2012, and again on reconsideration on March 4, 2013. (AR 120-60.) On November 5, 2013, Plaintiff appeared without counsel and testified before an administrative law judge (“ALJ”) with the aid of an interpreter. (AR 54-75.)

         1. Plaintiff’s Testimony

         At the November 2013 hearing, Plaintiff agreed to appear unrepresented. (AR 55.) Plaintiff testified she was 56 years old at the time of the hearing. (AR 55.) Plaintiff did all of her schooling in El Salvador and has a sixth-grade education. (AR 55.) Plaintiff speaks only Spanish, and testified at the hearing with the aid of an interpreter. (AR 54-56.) She testified that at her previous job, she sorted mandarin oranges for seven months of the year and collected unemployment benefits in the off-season. (AR 65-66). Plaintiff initially testified that she stopped working because she hurt herself when she slipped on plastic and fell at work (AR 56), but later testified that she stopped working because the job was finished and she was laid off (AR 56-57). Plaintiff testified that following her injury, between February and May 2010, she was allowed to sit while sorting, and at some point “they came and took the chair away from her” and “gave her a different kind of chair that didn’t have a rest to rest her back.” (AR 73-74.) Plaintiff said she was laid off on May 22, 2010, and has not tried to obtain other work since. (AR 57.) Plaintiff testified that her job ended in May 2010 because the seven-month sorting season ended, and “if the season had still been going on and there will still mandarins to sort, [she] would have been able to continue doing that with the chair.” (AR 73.) Plaintiff again stated that if she had her “same job back where [she] was doing sorting work and [she] was able to do that position in the same chair [she] used for three months, [she’d] be able to do [her] work like [she] did before.” (AR 75. See also AR 73.)

         Plaintiff testified at the hearing that she could not work because of hand, shoulder, back, and leg problems. (AR 57-58.) She said that she did not believe she could work because she couldn’t “even do the chores in my house right now.” (AR 58.) Plaintiff testified that the doctors referred to her by her insurance company told her that she has a “bone dislocated from her foot.” (AR 58-59.) She testified that she had headaches and high blood pressure. (AR 69.) Plaintiff testified that she felt sad and depressed, but that she was not receiving any mental health treatment. (AR 71.) Plaintiff said she feeds herself using her left hand only, that her son or husband had to help her get dressed, and her daughter brushed her hair. (AR 68-69.) Plaintiff stated that she could sit and stand throughout the day in 15-minute increments if she could shift positions, and that she could use her left hand to lift and carry up to 20 pounds, but not her right hand. (AR 61-63.)

         2. Medical Expert’s Testimony

         Alexander White, M.D., an internist, testified at the hearing as a medical expert. (AR 72.) Dr. White said that Plaintiff had the medically determinable impairments of right shoulder tendinopathy and right ankle spurs, and that the record showed slight limitations in Plaintiffs back, but none that would limit her ability to work. (AR 77-80.) He noted that Plaintiff could benefit from using a cane to walk because of her antalgic gait and her obesity. (AR 81.) Regarding functional limitations, Dr. White testified that Plaintiff could lift and carry up to 20 pounds occasionally and 10 pounds frequently with her left arm and 10 pounds occasionally and 5 pounds frequently with her right arm; could walk four to six hours per day, sit for an hour at one time for six hours total, and stand for an hour at one time for six hours total; occasionally bend and crouch; should avoid climbing ramps and stairs; hazardous, moving machinery, unprotected heights, concentrated exposure above street levels for dust, gas and fumes, and climbing ropes, ladders, and scaffolds; and could occasionally reach overhead with her right arm, extend her right arm to half of a normal distance both to the front and to the side, and use both hands for fine fingering, handling, and feeling. (AR 82-86, 88.)

         3.Vocational Expert’s Testimony

         A Vocational Expert (“VE”) testified at the hearing that Plaintiff had past relevant work as a sorter, DOT 529.687-186, which was a light job with a specific vocational preparation (“SVP”)^[3] level of 2. (AR 92). The VE also identified sedentary sorting, DOT 521.687-086, which represents another category of jobs, usually involving nuts, but the VE acknowledged Plaintiff “wasn’t sorting nuts.” (AR 92). The ALJ asked the VE to consider a person of Plaintiff’s age, education, and with her work experience. The VE was to assume this person had the functional limitations as follows:

Has the capacity to work at the light exertion level, which would include - modified light, rather - which would include lifting and carrying up to 10 pounds frequently and 20 pounds occasionally with the left arm, and the use of the right arm is limited to 10 pounds frequently and 10 pounds occasionally.

Has the capacity to sit in one hour increments for up to six out of an eight hour workday, to stand in the same increments for the same durations, and to walk tin one half hour increments for a range of appropriately four to six hours out of the normal workday. This is without a sit/stand option. The increments are sufficient.

Posturals are all occasional. There would be a preclusion, however, from climbing ladders, ropes, or scaffolds, or stairs and ramps. There would also be a preclusion for working around hazardous, moving machinery or at unprotected heights. The manipulative limitations are that the right upper extremity for reaching is limited to occasional overhead reaching. Otherwise is limited to one half of normal full extension for reaching below shoulder level to the front or to the right side. The left upper extremity, there are no limitations.

Environmental. There should be a preclusion from exposure to concentrated dust, gases, and fumes above street level. As far as manipulative limitations otherwise with both hands, there are unrestricted - foot controls, unrestricted. Then finally there would be a provision to allow the hypothetical [person to ...