United States District Court, C.D. California
MEMORANDUM DECISION AND ORDER
SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE
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.
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).
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).
Plaintiff's Relevant Medical History And Physicians'
Yami Arad, D.C.
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).
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).
Michael S. Wallack, M.D.
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).
Kaiser Permanente Woodland Hills
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.
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.).
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).
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.).
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 and recommended a geriatrics consult, but
Plaintiff declined the consult. (AR 620).
6, 2012, Dr. Elperin reviewed a MRI of Plaintiff's lumbar
spine showing spondylosis,  mild to moderate
stenosis 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
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
Harainian Bleeker, M.D.
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).
Glenna Tolbert, M.D. Q.M.E.
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
Medical Expert's Relevant Testimony
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).
Plaintiff's Adult Function Report
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).
Plaintiff's Relevant Testimony
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
Vocational Expert's Relevant Testimony
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).
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