United States District Court, S.D. California
REPORT AND RECOMMENDATION FOR ORDER: (1) DENYING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 16];
and (2) GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
[Dkt. No. 21].
Nita L. Stormes United States Magistrate Judge.
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.
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.
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.
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.
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.
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.
Medical Evidence in the Record.
Plaintiff's Previous Work-Related Injury (2007).
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.
Workers' Compensation Primary Treating Physician Dr.
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.
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.
Dr. Sabourin's Report - Consultative Orthopedist (May
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.
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 ...