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Oakey v. Berryhill

United States District Court, S.D. California

May 5, 2017

Susan Marie Oakey, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE: DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DOC. 10); AND GRANTING DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT (DOC. 14.)

          Peter C. Lewis U.S. Magistrate Judge United States District Court

         I.

         INTRODUCTION

         Plaintiff seeks judicial review of Acting Commissioner of Social Security's final decision denying Plaintiff's application for disability insurance benefits. (Doc. 1.) Plaintiff filed a Motion for Summary Judgment (Doc. 10), and Defendant filed a Cross-Motion for Summary Judgment (Doc. 14). The Honorable William Q. Hayes referred the matter to the undersigned judge for Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). After a thorough review of all pleadings and the entire record submitted in this matter, this Court recommends that Plaintiff's Motion for Summary Judgment be DENIED and that Defendant's Cross-Motion for Summary Judgment be GRANTED.

         II.

         BACKGROUND

         A. Procedural Background

         Plaintiff Susan Oakey filed an application for Disability Insurance Benefits and Supplemental Security Income on September 2, 2011, alleging an inability to work beginning April 6, 2010 due to back problems and a shoulder tear. (A.R. 19-21.) On June 2, 2014, the ALJ found that Plaintiff remained capable of performing her past relevant work as an administrative clerk and insurance clerk and thus was not disabled within the meaning of the Social Security Act. (A.R. 19-26.) On March 15, 2016, the Appeals Council denied review of the ALJ's decision, making that decision the final decision of the Commissioner. (A.R. 1-7.) On May 9, 2016, Plaintiff commenced this action pursuant to 42 U.S.C. § 405(g). (Doc. 1.) Defendant answered on July 26, 2016. (Doc. 8.) Plaintiff filed a Motion for Summary Judgment (Doc. 10), and Defendant filed a Cross-Motion for Summary Judgment in Opposition to Plaintiff's Motion for Summary Judgment (Doc. 14). In her motion, Plaintiff argued that the ALJ failed to articulate specific, clear and convincing reasons for deeming Plaintiff's subjective pain testimony not fully credible. (Doc. 10.) In Defendant's motion, the government argued that the ALJ made specific credibility findings regarding Plaintiff's subjective testimony that are supported by substantial evidence. (Doc. 14-1, at 3.)

         This Report and Recommendation addresses both motions pending before this Court.

         B. ALJ's Decision

         The ALJ sought to determine whether Plaintiff was disabled under the Social Security Act. (A.R. 19.) The ALJ found that Plaintiff had not engaged in substantial gainful activity since April 6, 2010, the alleged onset date. (A.R. 21.) The ALJ determined that Plaintiff had the following severe impairments: degenerative disc disease of the lumbar spine, cervical spondylosis without myelopathy, bicipital tendinitis, and right shoulder rotator cuff tear. (A.R. 21.) The ALJ stated that Plaintiff's left hip pain was minimal and nonsevere based on CT scan dated March 9, 2006. (A.R. 21.) Based on her impairments, the ALJ found that Plaintiff had the residual functional capacity to perform less than a full range of light work, except that Plaintiff can stand and walk for four hours of an eight-hour workday and sit six hours of an eight-hour workday with the option to sit or stand at her convenience and comfort for no more than one or two minutes at a time to relieve pain; can frequently balance, stoop, kneel, crouch and crawl; can never climb ladders, ropes, or scaffolds; can perform occasional reaching overhead with bilateral upper extremities; and should avoid workplace hazards, such as dangerous machinery and unprotected heights. (A.R. 22.)

         The ALJ stated that Plaintiff's longitudinal medical history of low back pain was not necessarily consistent with her allegation of disability. (A.R. 22.) The ALJ stated that Plaintiff injured her back in July 2008 after she slipped and fell. The ALJ stated that Plaintiff received epidural steroid injections from December 2008 to January 2009 and was able to continue working. (A.R. 22.) On January 25, 2010, a back evaluation was performed at Associated Physical Therapy that reported Plaintiff was doing well. (A.R. 22.) Plaintiff was reportedly discharged on March 7, 2011 from physical therapy because her progress was good and she felt better. (A.R. 22.)

         On March 29, 2011, a pain management doctor performed a consultative evaluation of Plaintiff due to her having ongoing mid-back pain, buttock pain with tingling in her bilateral thighs and sharp stabbing pain in her right foot after a nerve ablation procedure. (A.R. 23.) Although Plaintiff reported no pain when lying down or driving a car, she reported pain after performing activities. (A.R. 23.) Plaintiff was referred to undergo a diskogram procedure to assess whether she should undergo a lumbar disk replacement or fusion. (A.R. 23.) On April 28, 2011, Douglas Dobecki, Jr., M.D., said an MRI of the lumbar spine revealed L4/5 spondylolisthesis with facet arthrosis, disc bulge and ligament hypertrophy at the L5/S1 and left par central disc bulge. Dr. Dobecki diagnosed Plaintiff with intervertebral disk disorder without myelopathy, low back pain, and degeneration of the lumbar disc. Dr. Dobecki suggested Plaintiff follow up with acupuncture treatments and prescribed Cymbalta medication for pain. (A.R. 23.)

         The ALJ noted that Plaintiff was seen at the Naval Medical Center of San Diego on September 16, 2011 after she was rear-ended while backing out of her driveway. (A.R. 23.) In x-rays taken after the accident, there was no grossly displaced fracture and bone mineralization was normal. Although there were some degenerative changes of the cardiothoracic spine, ...


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