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Bravo v. Berryhill

United States District Court, C.D. California

June 8, 2017

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




         Tereza Campos Bravo (“Plaintiff”) brings this action seeking to overturn the decision by the Commissioner of the Social Security Administration (hereinafter the “Commissioner” or the “Agency”) denying her application for Supplemental Security Income (“SSI”). The parties consented, pursuant to 28 U.S.C. § 636, to the jurisdiction of the undersigned United States Magistrate Judge.

         For the reasons stated below, the decision of the Commissioner is AFFIRMED.



         Plaintiff filed for Supplemental Security Income (“SSI”) benefits on April 3, 2013. (AR 140-48). After the application was denied, (AR 66-71), Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 75). The ALJ held hearings on October 21, 2014, (AR 41-53), and February 18, 2015. (AR 22-40). On March 19, 2015, the ALJ issued an unfavorable decision. (AR 7-21). The Appeals Council denied review on June 29, 2016. (AR 1-4). This action followed on August 2, 2016.

         A. Plaintiff's History And Adult Function Report

         Plaintiff was born on August 11, 1953. (AR 54). She was slightly more than fifty-seven and a half years old at the time of her alleged disability onset date of April 18, 2011. (Id.). At the time she filed for disability benefits, Plaintiff lived with her children in an apartment where she cooked, shopped and did house chores. (AR 58, 141, 172-73). Plaintiff previously worked as a cashier, (AR 48), and as a yard supervisor “watching kids.” (AR 49, 191-93). She is clinically obese. (AR 14). Plaintiff alleges that she suffers from back pain, sciatica, arthritis, and depression.[2] (AR 46, 54, 188).

         In an Adult Function Report dated May 29, 2013, Plaintiff states that she suffers pain in her back, legs and hands. (AR 179). According to Plaintiff, she experiences “very painful spasms in [her] lower back” and pain in her “knees, hips, hands, [and] ankles.” (Id.).[3] Plaintiff admits that gets up to feed her dog. (AR 180). She also does “a little cleaning, ” her “own laundry, ” and waters the grass and plants. (Id.). Plaintiff further states that she goes shopping “once or twice a week as needed” to purchase “food, shampoo, toilet paper, dish soap, toothpaste.” (AR 182). Plaintiff reported that she takes the following prescription medication: Ibuprofen (pain), Pravastatin (cholesterol), Bupropion (depression), Hydrochlorothiazide (hypertension), and Atenolol (hypertension). (AR 186).

         B. Plaintiff's Testimony

         Plaintiff testified that she suffers constant pain “everywhere, ” but mostly in her back and down through her legs. (AR 46). The pain prevents her from being able to stand or sit for long periods. (Id.). “Standing hurts too, ” so Plaintiff has to keep “moving a little bit.” (AR 47). She can stand or walk for fifteen minutes before she needs to lie down again. (AR 48).

         Plaintiff testified at the October 21, 2014 hearing that after filing for benefits, she moved in with her brother “for financial reasons, ” where she continues to do “housework, ” although it may take her a full day to clean “one little room.” (AR 51-52). At the February 18, 2015 hearing, Plaintiff stated that she “just had to move out of Lancaster[, ] so on cold days, [she's] hurting, ” and on hot days, “there's more inflammation” and “more aching.” (AR 33).

         C. Third Party Adult Function Report

         On May 29, 2013, Plaintiff's daughter completed a Third Party Adult Function Report that closely mirrors the Report completed by her mother on the same date. The Report states that Plaintiff “is in constant pain[, ] which keeps her from getting things done” and from sleeping. (AR 170-71). Plaintiff “can't do lifting, bending over, or a lot of standing.” (AR 171). Plaintiff's daughter states that she must help her mother get dressed. (Id.). However, Plaintiff can cook meals “that can be cooked in the oven or microwave, ” and is able to do “laundry & washing dishes.” (AR 172). Plaintiff also goes shopping for food and toiletries, typically for two hours every couple of weeks. (AR 173).

         D. Treating Physicians

         The medical records from Plaintiff's primary care provider, the Venice Family Clinic (“VFC”), reflect that Plaintiff sought treatment for various ailments between July 23, 2012 and August 29, 2014 on twelve occasions.[4] The first three of these visits pre-date the filing of Plaintiff's SSI Application in April 2013. Dr. Tarin Molly Koehler, D.O. is listed as Plaintiff's treating physician for each of these visits, with the exceptions of the June 25, 2013 and July 29, 2013 consults, which identify Dr. Analiza Sanchez, M.D. as the provider. (AR 322, 325).

         The VFC records for the three visits before Plaintiff filed for SSI benefits -- for July 23, 2012, February 21, 2013, and March 21, 2013 -- reflect that Plaintiff presented with complaints of hypertension, (AR 242, 245 and 248), but do not reflect any complaints of back pain. (AR 242-51). Each of these pre-SSI filing medical records lists Plaintiff's four “chronic problems” as hypertension, hyperlipidemia, [5] depression, and GERD, again without mention of back pain.[6] (AR 242, 245 and 248). During the July 2012 visit, Plaintiff complained of “pain in joint involving ankle and foot, ” for which Dr. Koehler prescribed Ibuprofen. (AR 250). However, that complaint was not renewed in the February or March 2013 visits.

         The VFC record for May 13, 2013, the first visit after Plaintiff filed for SSI benefits, reflects that Plaintiff for the first time presented with complaints of “persistent” back pain, which she claimed had begun two years earlier. (AR 239). The May 2013 visit is also the first of only two times out of all twelve recorded VFC visits that Plaintiff is documented as presenting with an “antalgic” gait.[7] However, the May 2013 record further notes that Plaintiff's “straight leg raise” test, which determines whether a patient with low back pain has an underlying herniated disk, was negative.[8] According to Plaintiff, the pain in her back was a sharp ache, and was relieved by movement and stretching. (Id.). The records for this visit reflect that Plaintiff declined a “PT [physical therapist] or Ortho referral at this time.” (AR 241). Dr. Koehler “encourage[d] gentle ROM exercises and conservative therapy.” (Id.). As with the prior records, the May 2013 record identifies Plaintiff's four “chronic problems” as hypertension, hyperlipidemia, depression, and GERD. (AR 239).

         On June 11, 2013, an x-ray revealed that Plaintiff had “mild anterolisthesis[9] of L4 on L5 by approximately 10% of the vertebral body length and likely bilateral spondylolysis. L4-5 and L5-S1 facet arthrosis[10] is likely. There is loss of disc height at the L5-S1 level which is mild. There is mild generalized osteopenia.”[11] (AR 337).

         Beginning with the June 25, 2013 visit and consistently thereafter, the VFC records add “lumbago” to the list of Plaintiff's “chronic problems.”[12] (AR 283, 287, 292, 302, 308, 315, 319, 323). However, with the sole exception of the July 29, 2013 visit, (AR 319), none of the post-May 2013 records reflect that Plaintiff “presented with” back pain, although she may have discussed back pain with her provider during the visit. (See AR 323 (6/25/13 visit, presented with depression and for follow up on lab tests); AR 315 (10/21/13 visit, follow up on lab tests and hyptertension); AR 308 (11/4/13 visit, cough and hypertension); AR 302 (11/20/13 visit, hypertension); AR 292 (1/22/14 visit, hypertension); AR 287 (2/24/14 visit, women progress note and hypertension); and AR 283 (8/29/14 visit, hyperlipidemia and hypertension)).

         On June 25, 2013, Dr. Sanchez discussed treatment options with Plaintiff for her lumbago, including acupuncture, physical therapy and “ortho.” (AR 325). Dr. Sanchez referred Plaintiff to acupuncture after Plaintiff indicated that that was her preference among the options. (Id.). Plaintiff was also advised to continue NSAIDs (nonsteroidal anti-inflammatory drugs, such as Ibuprofen). (Id.). On July 29, 2013, Dr. Sanchez noted that although Plaintiff had been referred to acupuncture, she had not yet heard about the status of the referral. (AR 319). Treatment for lumbago continued to be a follow-up on the referral to acupuncture, and “NSAIDs or tylenol for pain.” (AR 321). On October 21, 2013, Dr. Koehler noted that a VFC coordinator needed to “help reschedule” Plaintiff's acupuncture appointments because Plaintiff had missed the initial appointments. (AR 317). Dr. Koehler prescribed “home exercises” and “weight loss” to treat the lumbago. (Id.).

         There does not appear to be any reference to treatment for Plaintiff's lumbago in the records for her November 3, 2013 VFC visit. (AR 308-11). However, an attached record reflects that Plaintiff visited an acupuncture clinic on October 22, 2013, the day after her prior VFC visit. (AR 314). On November 20, 2013, Dr. Koehler noted that Plaintiff was “getting some relief w/acupuncture, ” and consequently, Dr. Koehler elected to “defer Cpain referral for now.”[13] (AR 304). On January 22, 2014, Dr. Koehler noted that Plaintiff continued to experience “some relief w/acupunture.” (AR 294). However, Dr. Koehler also noted that VFC should refer Plaintiff to “Cpain clinic via insurance once insurance status confirmed.” (Id.). On February 24, 2014, Dr. Koehler elected to “hold [off] on Cpain referral until [Plaintiff] has reliable transportation (per [Plaintiff's] request).” (AR 289). Although the precise dates of the acupuncture sessions are somewhat obscured as presented in the Administrative Record, it appears that between October 22, 2013 and January 28, 2014, inclusive, Plaintiff received acupuncture treatment approximately eleven times. (AR 291, 296-301, 305-07, 314).

         Finally, on August 29, 2014, Dr. Koehler specifically noted that Plaintiff was “applying for SSI” but continued to experience “improvement w/conservative therapy [for her lumbago], will cont[inue] w/new clinic.” (AR 285). Dr. Koehler also observed, for only the second time in the record, that Plaintiff's gait was antalgic. (Id.). Also on August 29, 2014, Dr. Koehler completed a Medical Opinion form in connection with Plaintiff's SSI claim in which she stated that Plaintiff had chronic low back pain and opined that Plaintiff could lift and carry 10 pounds occasionally; less than 10 pounds frequently; sit for 15 minutes at a time and for about four hours in an eight-hour day; stand and walk for 15 minutes each and for less than two hours in an eight-hour day; had to alternate at will between sitting and standing/walking; had to lie down at unpredictable times but as often as every hour; could occasionally twist, crouch, and climb stairs; could never stoop or climb ladders; had environmental limitations; and would miss more than three days of work a month (AR 339-41). Dr. Koehler further stated that the assessed limitations on Plaintiff's ability to do work-related activities were supported by Plaintiff's back spasms, her limited back range of motion, and her June 2013 lumbar spine x-ray, which revealed anterolisthesis at ¶ 4-5 and facet arthrosis with a loss of disc height at ¶ 5-S1. (AR 340). Dr. Koehler noted, however, that Plaintiff did not use an ambulatory device and reported some relief with acupuncture. (AR 341).

         E. Consultative Examination

         On September 6, 2013, Board-certified internist Dr. Soheila Benrazavi, M.D., conducted a consultative examination. (AR 15, 271-76). Accordingly to Dr. Benrazavi, Plaintiff stated that “she thinks that maybe she has arthritis, ” that the “pain radiates everywhere to the body, ” and is “worse with walking, standing and sitting.” (AR 272). Plaintiff listed the drugs she was taking as “Ibuprofen, ranitidine, hydrochlorothiazide, lisinopril, atenolol, pravastatin, and bupropion.”[14] (Id.). Dr. Benrazavi recorded Plaintiff's height as 5'1” and her weight as 187 pounds without shoes. (Id.).

         Dr. Benrazavi performed a straight leg raise test, which was “negative at 90 degrees.” (AR 273). Dr. Benrazavi also noted that Plaintiff had “[f]orward flexion 45º with pain otherwise normal.” (Id.). With respect to Plaintiff's hands, Dr. Benrazavi observed “[v]ery mild osteoarthritic changes . . . in the area of the right and left fifth digit DIP joints and very small ones on the right hand at the DIP joint of the middle finger.” (AR 274). However, Plaintiff was “able to make a full fist bilaterally” and there was no swelling or any other joint deformity. (Id.). The range of motion was normal bilaterally in Plaintiff's knees, without any swelling, heat, redness or effusion. (Id.). Plaintiff's ankles also had a normal bilateral range of motion. (Id.). Dr. Benrazavi's ...

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