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Reitshtein v. Berryhill

United States District Court, C.D. California

May 31, 2017

NANCY A. BERRYHIL, [1] Acting Commissioner of Social Security, Defendant.





         Eduard Reitshtein (“Plaintiff”) seeks review of the decision of the Commissioner of the Social Security Administration (“Commissioner” or “Agency”) denying his application for Disability Insurance Benefits and Supplemental Security Income benefits. The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the Court AFFIRMS the Commissioner's decision.



         On March 3, 2010, Plaintiff filed an application for Disability Insurance Benefits (“DIB”) and for Supplemental Security Income (“SSI”). (Administrative Record (“AR”) 22). Plaintiff alleged that he became unable to work as of February 12, 2007, due to chronic lower back pain and knee pain. (AR 701-02, 778). The Agency denied the application on December 14, 2010 (AR 48, 50) and on reconsideration on April 5, 2012. (AR 336-37). On April 14, 2012, Plaintiff requested a hearing. (AR 66). Administrative law judge, Zane Lang, conducted a hearing on August 14, 2012. (AR 773-81). On August 30, 2012, a decision was issued denying benefits. (AR 19-38). Plaintiff sought review before the Appeals Council, which was denied on March 27, 2014. (AR 731). On April 23, 2014, Plaintiff filed a complaint in federal district court (see 2:14-CV-03133-MAN (“Prior Action”)), and on February 25, 2015, the parties agreed by joint stipulation to remand the case to the Commissioner for further proceedings. (See Prior Action at Dkt. No. 23). On February 8, 2016, a second hearing was held before administrative law judge, Sally Reason (“ALJ”). On March 2, 2016, the ALJ issued a decision denying benefits. (AR 648-63). On May 1, 2016, the ALJ's determination then became the Commissioner's final decision. Plaintiff filed the instant action on June 16, 2016. (Dkt. No. 1).



         Plaintiff was born on August 12, 1948. (AR 43). On September 18, 2007, the alleged disability onset date, Plaintiff was 60 years old. (AR 661). Plaintiff completed high school through the tenth grade. (AR 700). Prior to his disability onset date, Plaintiff worked as an auto mechanic. (AR 661, 700-01). Plaintiff maintains that he suffers from chronic lower back pain and osteoarthritis in the left knee. (AR 702-03, 778; Memorandum in Support of Plaintiff's Complaint (“MSP”) at 5).

         A. Plaintiff's Relevant Medical History And Physicians' Opinions

         1. Yami Arad, D.C.

         Dr. Arad was Plaintiff's chiropractor from December 2006 to December 2008. (AR 201-24). Although Dr. Arad saw Plaintiff on a weekly basis, (see 203, 208-09, 238, 240, 245-48), there are just two treatment notes in the record. (See AR 212, 243-44). November 15, 2006, treatment notes indicated that Plaintiff was being treated for pain in the L4-5 and L5-S region of the lumbar spine, and November 27, 2008, treatment notes state Plaintiff's back condition lasted “on and off [for] the past 15 years, ” although during this time Plaintiff worked ten hours per day as an auto mechanic. (Id.; AR 226).

         Dr. Arad filled out a number of disability reports for Plaintiff's life insurance company, stating that Plaintiff was temporarily unable to work and would be able to perform his “regular customary work” within a one to two month period. (See AR 203, 206, 208-09, 214, 232-34, 238, 240, 245-48). In these reports, Dr. Arad opined that Plaintiff's symptoms were aggravated by “repeated stooping and bending, ” should avoid “any lifting/bending, ” and should not lift more than 5 or 10 pounds. (AR 210, 216, 236). Dr. Arad recommended chiropractic treatment and physical therapy. (AR 224).

         2. Michael S. Wallack, M.D.

         On November 30, 2010, Dr. Michael Wallack, a board certified specialist in internal medicine, saw Plaintiff for a consultative examination. (AR 316-23). During the exam, Plaintiff stated that “he has had back pain for 20 years” and took Advil and Vicodin. (AR 316). Dr. Wallack noted that Plaintiff had no surgeries or injections. (Id.). Upon examination, Plaintiff had no tenderness to palpation, muscle spasm, or evidence of scoliosis. A straight leg test was limited to 75 degrees “apparently because of tightness in [Plaintiff's] hamstrings, ” forward flexion was 70 degrees, extension was 15 degrees, and all other flexion/extension were normal. (AR 319). Dr. Wallack opined that there was no basis to conclude that Plaintiff had any functional limitations from degenerative disease in his lower back and left knee. (AR 320-21).

         3. Kaiser Permanente Woodland Hills

         Plaintiff was a patient at Kaiser Permanent Woodland Hills from November 2006 to July 2012 where Dr. Emin Kuliev, M.D., was his primary care physician. (AR 262-493, 618-41). At his first appointment with Dr. Kuliev, Plaintiff appeared with medial left knee pain and was referred for x-rays and physical therapy. (AR 262). On October 15, 2007, Plaintiff noted having lower back pain. (AR 288). On January 3, 2011, Plaintiff complained of back pain that had lasted for six weeks. (AR 388). On January 3, 2011, Plaintiff had a normal heel and toe walk, normal gait with mild antalgic symptoms, and did not need assistance when moving. (AR 389). Dr. Kuliev instructed Plaintiff on weight management and exercise and referred him to a specialist to consider an epidural. (Id.).

         Plaintiff received physical therapy for his lower back and left knee from January to May 2011. (AR 344-76, 491-95). During Plaintiff's first visit, he reported needing to use both legs to get out of the car. (AR 370). Upon examination, Plaintiff had a normal gait; a somewhat limited range of motion, with fingertips reaching “just above the knee” when doing a side bend; full extension with increased pain; 5 out of 5 on all strength resistance tests; a “slight increase in muscle tension on the left paraspinals;” and no lumbar spine “red flags.” (AR 370, 372). On March 23, 2011, Plaintiff reported that his injuries had lasted for over 20 years but “began hurting more beginning December 2010.” (AR 344). Physical therapist Debra Zalmanowitz assessed that Plaintiff was “not demonstrating proper body mechanics and postures as instructed, ” was “not doing exercises properly, and this [was] probably why [he was] making no progress with physical therapy.” (AR 345). By May 23, 2011, Plaintiff “did not return for any additional visits.” (AR 493). Plaintiff's “recovery was complicated by multiple body parts, poor compliance, and infrequent visits.” (Id.).

         On January 3, 2011, Peter Michael Filsinger, M.D., a radiologist, performed x-rays of Plaintiff's lumbar spine and knees. Dr. Filsinger interpreted the lumbar spine x-rays to show “mild degenerative osteophytes and disc space narrowing [in the lumbar spine]. No compression fracture, spondylolisthesis or other abnormalities seen.” (AR 399-400). Dr. Filsinger concluded that the x-rays showed “mild medial compartment joint space narrowing of the knees bilaterally, consistent with [degenerative joint disease]. (AR 400).

         On January 10, 2011, Plaintiff saw David Haberman, M.D., regarding Plaintiff's complaints of lower back pain and right sciatica “made worse with bending.” (AR 379). Dr. Haberman reviewed the January 2011 x-rays, concluding that Plaintiff had moderate L5-S1 and mild L4-5 disc degenerative changes. (Id.). Upon examination, Plaintiff was toe walking “with effort, ” had a normal range of motion in the upper extremities, and exhibited with low back pain when doing a left piriformis and right hip stretch. (AR 380). Plaintiff was referred for a knee brace, which he did not obtain. (Id.).

         On June 6, 2012, Louis Elperin, M.D., saw Plaintiff for back and knee pain. (AR 618-19). Plaintiff stated that his pain was better with chiropractic adjustments and hot pads for his knees. (Id.). Upon examination, Plaintiff's back was nontender, had a normal straight leg raise, had normal gait, and was able to squat and rise. (AR 619). Dr. Elperin prescribed Meloxicam[2] and recommended a geriatrics consult, but Plaintiff declined the consult. (AR 620).

         On July 6, 2012, Dr. Elperin reviewed a MRI of Plaintiff's lumbar spine showing spondylosis, [3] mild to moderate stenosis[4] at ¶ 4-5, mild stenosis at ¶ 5-S, a small annulus bulge at ¶ 2-L3 and L1-L2, a small to moderate annulus bulge at ¶ 3-L4, and disc degeneration at ¶ 5-S1. (AR 641). Dr. Elperin concluded that Plaintiff had multi-level degenerative changes in the lumbar spine, bilateral subarticular zone stenosis, and foraminal narrowing.[5](Id.).

         During the course of Plaintiff's treatment at Kaiser Permanente, he went on multiple trips. On January 15, 2007, Plaintiff reported going on a three-week trip to Thailand, on a guided tour. (AR 266). On March 23, 2011, Plaintiff left “for over a month to visit his son, ” (AR 345), and on March 5, 2012, Plaintiff went to Costa Rica a two week trip. (AR 591).

         4. Harainian Bleeker, M.D.

         On April 8, 2008, Dr. Bleeker, a board certified orthopedic surgeon examined Plaintiff. Plaintiff reported having back trouble for the past two years with pain going down the right leg, taking Vicodin, Advil, and Tylenol for pain. (AR 479). Upon examination, Plaintiff had normal posture, gait, and range of motion; rose from a chair without difficulty; did straight leg raising at 90 degrees with a positive tripod sign; could forward flex at 60 degrees; did supine straight leg raising at 80 degrees with low back pain; and completed a normal toe walking test. (AR 480-81). Dr. Bleeker opined that Plaintiff's degenerative arthritis of the lumbar spine and both knees prevented Plaintiff from going back to “his duty” as Plaintiff described. (AR 482).

         5. Glenna Tolbert, M.D. Q.M.E.

         On June 15, 2007, Dr. Tolbert, a qualified medical examiner, evaluated Plaintiff on a consultative basis for a life insurance company. (AR 225-30). Plaintiff's chief complaints were that he had “localized pain in his back that intermittently [went] to the legs, ” could lift only “very light weights, ” and pain prevented him from sitting or standing “more than 30 minutes.” (AR 227). Upon examination, Plaintiff appeared well-developed, well-nourished, and was able to ambulate independently. A neuromusculoskeletal examination revealed no gross atrophy, normal knee extension, and a negative straight leg raising test. (AR 228). Dr. Tolbert reviewed x-rays of Plaintiff's lumbar spine showing narrowing of the L4-S1 and L4-5 disc spaces and concluded that Plaintiff had a history of “lumbar sprain/strain” and “underlying lumbosacral degenerative arthritis.” (AR 229). Dr. Tolbert opined that Plaintiff “may walk as tolerated; sit or stand no longer than 20 [to] 30 minutes continuously; avoid lifting no more than 10 pounds from the floor . . . and avoid climbing.” (Id.).

         B. Medical Expert's Relevant Testimony

         On February 8, 2016, Dr. Anthony Francis, a medical expert and board certified orthopedist, testified at Plaintiff's second hearing before the ALJ. (AR 670). Dr. Francis assigned Plaintiff a medium to light RFC depending on the ALJ's further credibility findings. (AR 683, 695). Specifically, Dr. Francis testified that Plaintiff was able to lift 50 pounds occasionally and 25 pounds frequently; stand, walk, and sit for six hours in an eight-hour workday; climb stairs and ramps two-thirds of the day; not climb ladders, ropes, or scaffolds; stoop and bend frequently; crouch kneel, crawl, and balance occasionally; use his lower extremities to operate foot controls frequently; not work at unprotected heights, around excessive cold, or around heavy industrial vibration; and should avoid hazardous machines with moving parts. (AR 684-85).

         C. Plaintiff's Adult Function Report

         In an August 10, 2010 adult function report, Plaintiff stated that he could not bend or lift “due to lower back pain [and] pain in [his] knees.” (AR 145). Plaintiff stated that he stretched, exercised in the pool, watched television, ate, and rested. (AR 146). Plaintiff stated that he did not do household chores, prepare meals, or go shopping and drove in cars only a “short distance, ” (AR 147-48).

         D. Plaintiff's Relevant Testimony

         At the first hearing on August 14, 2012, Plaintiff testified that he stopped working because his symptoms were “too painful.” (AR 777). To illustrate, Plaintiff testified, “I used to go to the car [and] fall down. I can't - my knees don't hold me. When I bend over the hood the pain was cutting me there . . . The back was cutting me like a knife.” (AR 777-78). Plaintiff also testified that he would grocery shop twice a week with his wife, drive, sometimes do chores, and do exercises in the pool. (AR 778-80).

         E. Vocational Expert's Relevant Testimony

         At the second hearing on February 8, 2016, vocational expert (“VE”) Dr. Ronald Hatakeyama testified that Plaintiff could not perform his past work as an auto mechanic. (AR 705). The ALJ asked whether an individual of the same age, education, and past work history - who is limited to medium work; cannot use ropes, scaffolds, ladders; can stand, walk, and sit up to 6 hours in an eight-hour workday; can frequently climb stairs and ramps, stoop, and bend; can occasionally crouch, kneel, crawl, and balance; avoid height, excessive cold, heavy industrial vibration, and heavy moving machinery; and can operate foot controls two-thirds of the day - perform any work that exists in significant numbers in the national economy. (AR 704).

         The VE opined that Plaintiff could perform the jobs of kitchen helper DOT 318.687-010 (medium unskilled, 7, 000 jobs in the regional economy) and linen room attendant DOT 222.387-030 (medium unskilled, 1, 000 jobs in the regional economy). (AR 707). The ALJ did not question the VE regarding any apparent ...

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