United States District Court, E.D. California
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 ...