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Leon v. Berryhill

United States District Court, E.D. California

March 30, 2017

NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff, David Dina Leon, seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for disability insurance benefits pursuant to Title II and for supplemental security income (“SSI”) pursuant to Title XVI 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 to the Magistrate Judge.[1]

         Plaintiff presents two issues: (1) whether the Administrative Law Judge's (“ALJ”) residual functional capacity finding precluded Plaintiff's performance of alternative work activity, and (2) whether the ALJ failed to articulate clear and convincing reasons for rejecting Plaintiff's testimony. Following a review of the administrative record and applicable law, the Court finds the ALJ's decision to be supported by substantial evidence in the record as a whole and based on proper legal standards.

         I. Procedural History

         On May 9, 2012, Plaintiff filed separate applications for disability insurance benefits and SSI. In both applications, Plaintiff alleged disability beginning July 4, 2009. The Commissioner initially denied the claims on October 25, 2012, and upon reconsideration, on February 27, 2013. On April 5, 2013, Plaintiff filed a timely request for a hearing.

         Plaintiff appeared and testified at a hearing on April 1, 2014. Cheryl R. Chandler, an impartial vocational expert, also appeared and testified.

         On May 30, 2014, Administrative Law Judge Sharon L. Madsen denied Plaintiff's application. The Administrative Council denied review on November 9, 2015. On January 7, 2016, Plaintiff filed a complaint seeking this Court's review.

         II. Factual Background

         A. Plaintiff's Testimony and Written Reports

         Plaintiff (born June 21, 1968) lived in a house with her 16-year-old son and 18-year-old daughter.[2] She was five feet tall and weighed 175 pounds. Plaintiff completed high school, participating in an unspecified special education program. She attended, but did not finish, some college courses.

         On a typical morning, Plaintiff awoke and got her son ready for school. She threw in a load of wash and did some housekeeping before stopping to rest when her pain began. Sometimes she crocheted.

         Beginning in 2001, Plaintiff, who had previously packaged vitamins, began working as a cashier in grocery stores and fast food restaurants. She stocked shelves, bagged groceries, and carried out customer's purchases.

         In 2006, Plaintiff's back was injured in an automobile accident. Despite her pain, Plaintiff returned to work since it was necessary to support her family. After two and one-half years, however, her pain was so great that Plaintiff could not continue working.

         At the time of the hearing, Plaintiff experienced constant low back pain, which was aggravated in rainy or cold weather. The pain radiated from her back to her left leg, which became numb and sometimes swelled. Plaintiff elevated her leg to relieve the swelling. She experienced pain when she moved her bowels. She took pain medications (Ultram, Robaxin, and Neurontin), sat in hot baths, rested, and used a TENS unit and a home pelvic traction device. Neither the TENS unit nor the traction device effectively relieved her pain. Prescribed physical therapy increased her pain. Plaintiff, tried, but discontinued, medical marijuana. Although a physician recommended surgery, Plaintiff lacked insurance or other means of paying for it.

         Plaintiff wore a back brace. Her physicians had given varying directions for its use. Plaintiff wore it four hours daily and found that it did not relieve her pain. When she removed the brace, however, her pain worsened.

         Most mornings, Plaintiff had a headache. The most effective remedy was to induce vomiting and sleep. Plaintiff also experienced vertigo and had high blood pressure.

         Plaintiff estimated that she could lift no more than five pounds. At most, she could sit for one-half hour before she needed to stand up. She could then stand for one-half hour before needing to sit down. Plaintiff, who used a cane or a walking stick, was able to walk as far as “next door.” Climbing stairs was “very hard.” When she bent over, she was sometimes unable to straighten up.

         Plaintiff retained her driver's license and drove a car, although she was “not supposed to.” She did household chores, went shopping, and attended church when she was able to do so. She sometimes needed help when showering, and her children put on her socks and shoes.

         The changes in Plaintiff's life caused depression. She could not do the things that she did before her back injury. Plaintiff cried constantly. She could not control things that she “should not be thinking, ” and was unable to pay attention to television programs or crocheting, but could manage bill paying and budgeting.

         Plaintiff took Celexa for depression. She had stopped seeing the social worker although she was supposed to have made arrangements to continue therapy.

         B. Medical Records

         The record includes the examination notes of Syed Naqvi, M.D., and various physician assistants and nurse practitioners at Family Healthcare Network from 2008 through 2014. Plaintiff was treated for migraine and tension headaches on multiple occasions, and complained of anxiety and depression.[3]

         In November 2008, Plaintiff rated her back pain as nine out of ten and reported muscle spasms in her back. Beginning in July 2009, she was off work for back pain. A July 18, 2009, MRI at Advanced Radiology of Beverly Hills revealed 1-2 mm disc bulges at L2-3 and L3-4; moderate left and right neural foraminal narrowing secondary to a 2 mm disc bulge and facet joint hypertrophy at L4-5; and a posterior annular tear and 2-3 mm disc bulge resulting in moderate-to-severe left and mild right neural foraminal narrowing and facet joint hypertrophy at L5-S1.

         Thereafter, the examination notes consistently reflect Plaintiff's reported low back pain and use of various prescription pain relievers including Cycobenzaprine, Naproxen, Gabapentin, and Hydrocodone. On October 9, 2009, Michael Flores, PA-C, noted shoulder pain upon movement and intermittent back pain. On April 12, 2010, Flores provided an excuse from work until June 15, 2010. On August 4, 2010, Flores prepared paperwork for Plaintiff's disability application. Plaintiff's lower back was tender to palpation, but her thoraco-lumbar spine was normal in all regards. A positive straight leg test revealed lower extremity weakness. Plaintiff rated her pain at six. Flores authorized permanent disability parking, and in January 2012, he diagnosed Plaintiff with chronic pain syndrome.

         On September 23, 2009, neurologist Boota S. Chahil, M.D., administered a sensory nerve conduction study. Dr. Chahil found “no evidence of compression neuropathy, polyneuropathy, or ongoing lumbar radiculopathy.”

         Dr. M. Rashidi of Bakersfield Neuroscience and Spine Institute treated Plaintiff between November 2009 and June 2010. In a November 2009 report to Dr. Syed, Dr. Rashidi diagnosed Plaintiff with low back pain with radiation to the legs and disc degenerative changes and foraminal stenosis at ¶L4-L5 and L5-S1. Based on a neurological examination, Plaintiff's mental status and cranial nerves were normal, sensation was intact, and deep tendon reflexes were symmetrical. Plaintiff had normal power in her upper and lower extremities on both sides. Dr. Rashidi recommended lumbar epidural injections, use of a lumbar brace, and clinical follow-up.

         On August 25, 2010, radiologist Thomas W. Maclennan, M.D., reviewed Plaintiff's lumbar spine x-rays and observed a moderately reduced range of motion between flexion and extension. Alignment of vertebral bodies was satisfactory. There was no fracture or spondylolisthesis. Although a February 20, 2010 MRI study was generally consistent with the X-rays, Dr. Maclennan observed diffuse disc desiccation, disc space narrowing at l4-L5, a 2 mm central disc bulge extending to the foraminal regions at L5-S1, a mild left L5 ganglionic compression, and a 1 mm disc bulge at L4-L5. There was no disc protrusion at L3-L4, L2-L3, or L1-L2.

         On February 1, 2011, Jaime Aguet, M.D., reviewed an MRI performed at Kaweah Delta Medical Center. Dr. Aguet diagnosed mild lumbar spondylosis and mild facet arthropathy at the L4-5 and L5-S1 levels. No disc herniations nor significant central or peripheral spinal cord stenosis correlated with Plaintiff's history of back pain. The conus medullaris and cauda equine were normal.

         On March 11, 2011, neurologist Timothy M. Wiebe, M.D., F.A.A.N.S., of Bakersfield Neuroscience and Spine Institute noted that Plaintiff reported constant pain and bladder and bowel difficulties, including episodes of both incontinence and inability to void. Plaintiff also reported frequent headaches, some of which awakened her from sleep at night. A February 2, 2011, MRI revealed “termination of the conus medullaris at the level of the inferior L2 vertebrae, a thickened fatty filum signal on an axial t1 image at the L1-2 level, and degenerative stenosis/trefoil canal at L3, L4, and L5.” Dr. Wiebe diagnosed (1) multilevel lumbar stenosis with claudication, (2) tethered cord syndrome with low lying conus medullaris and fatty filum terminale, and (3) headaches with features of Ciari malformation. In view of Plaintiff's incontinence, Dr. Wiebe recommended urgent surgery: bilateral laminectomies at L3 through L5, medial facetectomies, and detethering.

         In September 2012, internist Roger Wagner, M.D., performed a consultative examination for the agency. Plaintiff told Wagner that she exercised using a recumbent bike and a treadmill and also walked for exercise. Wagner observed that Petitioner was easily able to get out of the waiting room chair, get on and off the examining table, take off her shoes, and retrieve them from the ground. She walked at normal speed. Plaintiff bent forward at the lumbar spine when walking or sitting.

         Dr. Wagner diagnosed Plaintiff with generalized low back pain and mild facet arthropathy. EMG and nerve conduction studies showed no radiculopathy, leaving Plaintiff's leg pain without a known cause. Dr. Wagner opined that Plaintiff could stand and sit up to six hours sit with no limitations with normal breaks, lift and carry 50 pounds occasionally and 25 pounds frequently, and stoop and crouch no more than frequently. No assistive device was necessary, and manipulative activities and workplace environmental activities were unlimited.

         When Plaintiff saw Elijah Youssefi, PA-C, at Family Health Network on October 30, 2012, she complained of back pain dating to her motor vehicle accident and was taking no prescription pain reliever or medication of any type. Plaintiff told Youssefi that, in the past, she had taken Oxycontin for pain and had a license for medical marijuana. She added that she ...

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