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Guerrero v. Colvin

United States District Court, S.D. California

April 26, 2017

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


          Hon. Nita L. Stormes United States Magistrate Judge.

         Linda Guerrero (“Plaintiff”) brings this action under the Social Security Act. See 42 U.S.C. § 405(g). Plaintiff seeks judicial review of the Social Security Administration's (“Defendant”) final decision denying her claim for Supplemental Security Income benefits under Title XVI of the Act. This case was referred for a report and recommendation on the parties' cross motions for summary judgment. See 42 U.S.C. § 636(b)(1)(B). After considering the papers submitted, the administrative record, and the applicable law, the Court RECOMMENDS that Plaintiff's motion for summary judgment and for reversal or remand be DENIED and that Defendant's cross motion for summary judgment be GRANTED.

         I. BACKGROUND

         A. Procedural History.

         On July 23, 2012, Plaintiff filed an application for Supplement Security Income (“SSI”) under Title XVI of the Social Security Act. She alleges a disability onset date of August 20, 2007. AR 124-29, 140.

         The Commissioner denied Plaintiff's claim initially and on reconsideration. AR 74-78, 86-92. She requested a hearing before an Administrative Law Judge (“ALJ”). The ALJ held a hearing on September 17, 2014. Plaintiff was represented by counsel at the hearing. Plaintiff's counsel stated that Plaintiff returned to gainful employment on September 1, 2013, and thus she amended her SSI claim to reflect a “closed application period.” Plaintiff seeks benefits solely for the period starting on July 23, 2012 (the date she filed the application) through September 1, 2013 (the date she returned to work). AR 37-38.

         On November 20, 2014, the ALJ issued a decision. He found Plaintiff was not under a disability from July 23, 2012 through September 1, 2013. AR 20-28. On March 3, 2015, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for judicial review purposes. AR 1-4. Plaintiff timely commenced this action in federal court.

         B. Plaintiff's Background.

         Plaintiff was born on October 6, 1962. AR 131. The highest grade in school she completed was the twelfth grade. AR 148. In a disability report, Plaintiff stated she worked in customer service in the retail industry from 1998 through 2011, working six hours per day for five days per week. AR 147. She assisted customers, stocked product, and served as a cashier. AR 148. In 2007, she suffered a work-related injury to her back. AR 210, 228.

         Plaintiff claims that she suffers from back problems due to surgery and severe pain in her left leg, and that these conditions limit her ability to work. AR 146. She also claims she suffers from carpal tunnel syndrome. AR 286.

         C. Medical Evidence in the Record.

         1. Plaintiff's Previous Work-Related Injury (2007).

         On January 6, 2007 Plaintiff suffered a work-related injury to the lumbo-sacral junction while at the Navy Exchange. AR 210, 228. She received epidural steroid injections for lumbar radiculopathy in spring 2007. She underwent surgery for a spinal fusion L-5-S1 with laminectomy on August 29, 2007. AR 222, 228. She also had a transforaminal epidural steroid injection in February of 2008. AR 217.

         2. Workers' Compensation Primary Treating Physician Dr. Tayyab (2008).

         On March 31 2008, Dr. Neil Tayyab issued a primary treating physician's permanent and stationary report. AR 227. He reviewed Plaintiff's workplace injury, injection procedures and surgery. He reported that the “surgery went quite well and postoperatively she was walking around very nicely and had significantly reduced low back pain and also did not complain to any leg pain.” AR 228. But a few weeks later, Plaintiff began experiencing pain in her lower left leg. Id. Dr. Tayyab then tried a number of ultimately unsuccessful methods to treat and decrease the pain. He opined that Plaintiff reached her maximum medical improvement and a permanent and stationary status regarding her lumbar spine. AR 230. He opined she should not push or pull more than 10 pounds, should not repetitively bend or twist, and should not stand or walk for more than 30 minutes at one time-or for more than two hours total-in an eight-hour workday. AR 230.

         In May 2008 Dr. Tayyab opined that Plaintiff had reached maximum medical improvement, could only work four hours per day, and would not be able to work an eight-hour workday for at least three-to-six more months. AR 238. In August of 2008, he opined Plaintiff could still only work four hours per day and would not be able to work an eight-hour workday for three more months. He opined Plaintiff's daily limitations included sitting for four hours, standing for one hour, walking for one hour, and reaching and using her wrists and elbows for up to eight hours. AR 237.

         3. Dr. Sabourin's Report - Consultative Orthopedist (May 2013).

         Dr. Sabourin did a consultative exam of Plaintiff regarding the reported pain in her neck, left wrist, upper back, lower back, hips, knees and ankles. AR 253-257. Plaintiff drove herself to the appointment. AR 253. She reported that she had neck pain for two years, saw a doctor for it, and the doctor just told her to take Tylenol. Id. She did not have any workup done for the pain in her left wrist and hand. Id. Plaintiff received a lumbar fusion in August 2007. Id. Dr. Sabourin reported normal posture and gait, normal range of motion for the neck, pain with left lateral flexion, no spinal deformities or spasms. AR 254. As for her wrists, there was slight tenderness in the left wrist but no redness or swelling. AR 255. She tested negative for Tinel's and Phalen's tests. Id. Her left leg was also tender but without any inflammation in the joints, or redness, swelling or instability. Id.

         Based on his examination Dr. Sabourin concluded that Plaintiff could lift, carry, push or pull 20 pounds occasionally and 10 pounds frequently, could stand, sit or walk for six hours out of an eight-hour day, could climb, stoop, kneel and crouch occasionally, and had ...

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