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Salazar v. Berryhill

United States District Court, C.D. California

June 12, 2017

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




         Luis Salazar ("Plaintiff") brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration (the "Commissioner" or "Agency") denying his application for Supplemental Security Income ("SSI") benefits. The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. (Dkt. Nos. 11, 12) . For the reasons stated below, the Court AFFIRMS the Commissioner's decision.


         Plaintiff filed an application for SSI on May 16, 2013. (AR 134-39). Plaintiff alleged a disability onset date of November 19, 2005. (AR 118). The Agency denied Plaintiff's application on October 3, 2013. (AR 59-67). On October 10, 2013, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 71) . On December 29, 2014, ALJ David G. Marcus conducted a hearing to review Plaintiff's claim. (AR 39-58). On January 29, 2015, the ALJ found that Plaintiff was not disabled under the Social Security Act. (AR 28-35). Plaintiff sought review of the ALJ's decision before the Appeals Council on March 16, 2015. (AR 22). On June 29, 2016, the Appeals Council denied review. (AR 8-10) . The AL J's decision then became the final decision of the Commissioner. (AR 8). Plaintiff commenced the instant action on September 7, 2016. (Dkt. No. 1).


         Plaintiff was born on March 9, 1965. (AR 134) . He was 40 years old as of the alleged disability onset date of November 19, 2005, and 49 years old when he testified before the ALJ. (AR 39, 134) . Plaintiff previously worked as a security guard and mover/driver. (AR 46, 34). Plaintiff alleges disability due to lower back injury/screws in back, low blood count, stomach surgery for holes in esophagus, and depression. (AR 59, 161).

         A. Plaintiffs Testimony And Statements

         Plaintiff testified that he worked as a mover and driver for approximately five years beginning in 2001. (AR 46, 161-62). In 1999 and 2000, Plaintiff worked as a security guard at a homeless shelter. (AR 46-47, 162) . Plaintiff has not worked since he filed his application for SSI benefits in May 2013. (AR 48).

         Plaintiff had prior back surgeries in February 2009 and February 2010. (AR 164). Plaintiff testified that there is a "ball" in the lumbar area of his back at the location of his past surgeries that "hurts" and does "not feel right." (AR 51-52) . This pain prevents him from laying on his bed and leaning over. (AR 52). Plaintiff testified that he "can't do anything." (Id.).

         Plaintiff reports that his condition has worsened since his initial application for SSI benefits. (AR 170) . Plaintiff testified that, due to his back pain and other limitations, he can lift only ten to fifteen pounds, stand for three to four hours out of an eight-hour work day, and walk for about eight hours out of an eight-hour work day. (AR 53-55).

         Plaintiff testified that the only medical care he is receiving is for treatment of his back. (AR 50). The last time Plaintiff saw a doctor for his back symptoms was in March 2013.[2] (Id.) . Plaintiff has not seen a doctor since that time "because they cut me off of my workman's comp . . . [, i.e., ] being covered." (AR 51). Plaintiff testified that the only medications he takes are over-the-counter Ibuprofen and Tylenol. (Id.).

         B. Physicians' Opinions

         1. Worker's Compensation Physician Simon Lavi, D.O.

         Simon Lavi, D.O., was Plaintiff's original worker's compensation physician. (AR 31). Dr. Lavi treated Plaintiff for ongoing symptoms associated with retained symptomatic lumbar spine hardware and status post L4 to SI bilateral transforaminal lumbar interbody fusion. (AR 258; see also AR 50). Dr. Lavi's physical examination on October 18, 2013, revealed tenderness from the mid to distal lumbar segment of Plaintiff's spine. (AR 257). Dr. Lavi reported pain with terminal motion and a positive seated nerve root test with dysesthesia at the L5-S1 dermatome. (Id.). Dr. Lavi's treatment plan included obtaining updated magnetic resonance imaging of Plaintiff's lumbar spine and bilateral lower extremities and ordering an electromyogram study to assess Plaintiff's radicular symptoms. (AR 258).

         2. Consultative Examining Physician Conception A. Enriquez, M.D.

         On September 11, 2013, Plaintiff was examined by Conception A. Enriquez, M.D., a consultative examining internist. (AR 244-47) . Dr. Enriquez noted that Plaintiff presented for treatment for a history of peptic ulcer disease and back pain. (AR 244) . Dr. Enriquez reported that Plaintiff drove himself to his appointment. (AR 245).

         Dr. Enriquez's physical examination of Plaintiff's spine revealed that his cervical spine range of motion was within normal limits with no tenderness or muscle spasm. (AR 246). While there was tenderness in Plaintiff's lumbosacral spine with decreased range of motion at 70/90 degrees on trunk flexion, there was no tenderness to palpation or muscle spasm in that area. (Id.). Plaintiff's straight leg raising test was positive at 70 degrees. (Id.) .

         Dr. Enriquez reported that Plaintiff's gait and balance are within normal limits and Plaintiff does not require an assistive device for ambulation. (AR 247). Using the Jamar dynamometer, Dr. Enriquez noted that Plaintiff is able to generate 80 pounds of force using his right hand and 90 pounds of force using his left hand. (AR 245) . The remaining portions of Dr. Enriquez's examination of Plaintiff were unremarkable. (AR 244-47) .

         Dr. Enriquez's medical impressions were that Plaintiff's back revealed tenderness and decreased range of motion in the lumbosacral spine area with signs of radiculopathy. (AR 247). As a functional assessment, the doctor opined that Plaintiff can occasionally lift or carry twenty pounds and frequently lift and/or carry ten pounds, stand and/or work with normal breaks for six hours in an eight-hour work day, sit with normal breaks for six hours in an eight-hour work day, and occasionally bend, stoop, and twist. (Id.).

         3. Consultative Examining Physician Richard Pollis, M.D.

         On August 7, 2014, Plaintiff underwent a consultative orthopedic examination by Richard Pollis, M.D. (AR 666-71). Dr. Pollis reported that Plaintiff's gait was "normal without signs of limp or antalgia." (AR 668) . Dr. Pollis further noted that Plaintiff is able to stand on his heels and toes without difficulty and no evidence of weakness in the ankle flexors and extensors. (Id.). Further, Plaintiff has no difficulty getting on and off of the examination table, sat in a chair comfortably without tilt, is able to rise from a sitting and supine position, and requires no assistive devices to ambulate. (Id.).

         Dr. Pollis's examination of Plaintiff's spine revealed paravertebral muscle tenderness and spasm, forward flexion to 70 degrees, extension to zero degrees, right and left lateral flexion to fifteen degrees, and straight leg raise test to 80 degrees bilaterally with hamstring spasm. (Id.). The Jamar dynamometer measured Plaintiff's grip strength at 80/70/80 in both hands. (AR ...

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