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Baker v. Berryhill

United States District Court, N.D. California

August 31, 2017





         Plaintiff Lautrinda Baker (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of Defendant Nancy A. Berryhill (“Defendant”), the Acting Commissioner of Social Security, denying Plaintiff's claim for disability benefits. Pending before the Court are the parties' cross-motions for summary judgment. Dkt. Nos. 18, 21. Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having carefully reviewed the parties' positions, the Administrative Record (“AR”), and the relevant legal authority, the Court hereby GRANTS IN PART Plaintiff's motion and DENIES Defendant's cross-motion for the reasons set forth below.


         Plaintiff was born in 1970. In 2012, she began to experience chronic pain in her back and hip. Subsequently, she developed chronic pain in her neck and shoulders. Imaging studies and physician examinations revealed abnormalities in her lumbar and cervical spine. Her pain progressively worsened. Despite acupuncture, pain medication, and physical therapy, Plaintiff continued to experience physical limitations and pain. Her treating physician diagnosed Plaintiff with a number of conditions relating to her back, neck, and shoulders; he also diagnosed fibromyalgia.


         On November 20, 2012, Plaintiff filed a claim for Disability Insurance Benefits under Title II of the Social Security Act, alleging disability beginning on August 27, 2012. On November 6, 2014, she applied for Supplemental Security Income under Title XVI of the Act. On May 9, 2013, the Social Security Administration (“SSA”) denied Plaintiff's Title II claim, finding that Plaintiff did not qualify for disability benefits. Plaintiff subsequently filed a request for reconsideration, which was denied on December 5, 2013. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). ALJ Nancy Lisewski conducted a hearing on December 22, 2014. Plaintiff testified in person at the hearing and was represented by counsel, Beth Mazie.

         A. Plaintiff's Testimony

         In August 2012, Plaintiff's doctor told her to stop working full-time and drop to four hours per day because of problems with her back and hip. AR 45. In February 2013, she stopped working after she was hospitalized for heart problems and had heart surgery. AR 46, 51-53. Her employer informed her she had to return to work in July or would be terminated. AR 46. She returned to work, but only worked three hours a week. AR 46. In November 2013, her doctor again ordered her to stop working because she could neither sit nor stand very long. AR 46. She has not worked since. AR 46.

         She is unable to work full time because her back, shoulders, and neck constantly hurt. AR 48. The pain in her back causes it to lock up, and radiating symptoms cause her to be unable to feel her left leg at times. AR 49. She has burning pain in her shoulder and neck with tingling into the fingers. AR 49. She gets chest pain and sometimes feels short of breath. AR 49. She has difficulty with activities such as sitting, standing, getting out of the tub, putting on her clothes, cooking, and holding things. AR 50. About twice a week, her pain is so intense that she stays in bed and does not shower or dress that day. AR 50-51. Her hands, feet, and ankles constantly swell. AR 53.

         She sometimes needs help with shopping because she does not move well; a friend named Manual goes to the store for her. AR 54. If she does go to the store, she goes with Manual. AR 54. Manual also takes care of her cooking, cleaning, and laundry. AR 55. Her brother also comes by her home and helps her at times. AR 55. Walking short distances, for example to her mailbox, is difficult for her; pain limits her standing to fifteen minutes at a time; she can sit about twenty minutes at a time; she cannot lift even a gallon of milk. AR 56-57. She sees a physical medicine and rehabilitation specialist, Michael Hebrard, M.D., who prescribed Lyrica and cyclobenzaprine. AR 58.

         Plaintiff is depressed; she gets regular psychotherapy from Nancy Kersey, MFT. AR 59-60, 614. Therapy has not been very helpful; she still feels depressed, upset, and angry about the murder of her son. AR 61. Her son disappeared in 2009, and Plaintiff discovered he had been murdered in 2013 when his remains were found. AR 60-61.

         B. Medical Evidence of Record

         1. Dr. Michael E. Hebrard, M.D.

         i. Treatment Records

         Dr. Hebrard is board-certified in physical medicine and rehabilitation; he specializes in physical medicine, pain management, and electrodiagnostic medicine. AR 368. Plaintiff began treatment with Dr. Hebrard in September 2012 after experiencing several months of pain in her left hip and low back. AR 365-68. Dr. Hebrard performed a physical examination and a battery of “provocative tests” at each of Plaintiff's appointments. He repeatedly documented tightness and trigger points in Plaintiff's back; diminished lumbar flexion; paresthesia along the left foot and fingers; positive facet joint testing bilaterally; diminished lumbar range of motion; loss of sensation in the lower left extremity; loss of strength of some of the muscles of the legs and feet; severe motor loss; and suppressed or overly active reflexes. See, e.g., AR 365-68 (September 2012), 264 (December 2012), 320 (January 2013), 639-42 (October 2013), 652-55 (November 2013), 618-21 (October 2014).

         In September 2012, Dr. Hebrard examined Plaintiff and performed a battery of tests. AR 365-66. He observed functional deficits in terms of sitting, standing, walking, pushing, pulling, reaching and lifting; diagnosed left hip bursitis, lumbosacral strain, and illiotibial band friction syndrome on the left. AR 366. He recommended physical therapy (“PT”) twice a week for five weeks, a self-directed home exercise program, custom orthotics, and lumbar support (not be used more than 2 hours in an 8-hour work day, and for no more than 2 consecutive days). AR 367; see also AR 643 (noting in October 2013 that the PT helped with pain, but Plaintiff lost focus when she had her cardiac surgery; recommending another twelve PT sessions to help treat pain). He ordered an EMG nerve conduction test be performed on Plaintiff to help diagnose conditions that caused her pain, weakness, and numbness in her lower extremities, for example, to determine whether there has been nerve root entrapment. AR 367. He also recommended Plaintiff get a vascular flow study to further assess her vascular and venous systems. AR 368.

         The EMG/nerve conduction study that was performed in November 2012 showed possible bilateral L5 radiculopathy. AR 324, 328. Dr. Hebrard recommended Plaintiff obtain an MRI. AR 324. An MRI dated December 13, 2012 revealed mild facet arthropathy from L2-3 through L5-S1, with a small amount of effusion at ¶ 2-3 and L3-4; it also showed mild to moderate disc height loss and desiccation at ¶ 2-3 and moderate disc height loss at ¶ 3-4; it also revealed a synovial cist at ¶ 3-L4. AR 321, 326.

         In January 2013, Dr. Hebrard diagnosed a number of conditions, including lumbosacral degeneration with piriformis syndrome causing sciatic neuropathy. AR 321. He stated he would like to start Plaintiff on facet joint injections and would get authorization for that treatment. AR 321. (There is no indication in the AR whether this treatment was authorized and provided.)

         Plaintiff also saw Dr. Hebrard when she developed pain in her neck and shoulders. AR 651-52. In November 2013, Dr. Hebrard noted crepitus of both shoulders, trigger points in the cervical/scapular regions, and diminished cervical range of motion. AR 652. Dr. Hebrard noted paresthesia along six digits, overly brisk reflexes in the arms, and diminished strength in the arms. AR 653. A November 2013 MRI of the cervical spine showed a disk/osteophyte complex at ¶ 5-6 causing mild spinal stenosis as well as disc bulging at ¶ 3-4 and C4-5. AR 662-63. An MRI of the right shoulder showed mild acromioclavicular degenerative changes and tendinopathy at the supraspinatus tendon. AR 661, 655. Dr. Hebrard noted that Plaintiff's combination of issues pertaining to her neck and right shoulder had been getting progressively worse, but that she was not a surgical candidate as a result of her pre-existing heart condition; he also noted her chronic pain that had caused emotional anxiety problems. AR 655; see also id. (“Given the frailty of her cardiac history and recent cardiac ablation . . . in combination with her musculoskeletal condition involving the cervical spine and right shoulder, the patient presents with a complex chronic pain history.”). A November 2013 MRI of Plaintiff's lumbar spine showed “[c]onsiderable loss of disc height and partial disc desiccation” at ¶ 2-3 and moderate loss of disc height with disc desiccation at ¶ 3-4. AR 655, 664.

         When Plaintiff visited him because of a flare up of her cervical spine in January 2014, Dr. Hebrard noted trigger points in seven regions. AR 634. He found paresthesias. Id. He found brisk reflexes with diffused weakness consistent with a mild myelopathy. AR 635. He requested a consultation with an orthopedic spine surgeon for possible surgical intervention in the neck. AR 634-35. Dr. Hebrard diagnosed lumbar sprain/strain, lumbar disc degeneration, and lumbosacral neuritis/radiculitis; he prescribed Lyrica and PT. AR 570, 620, 649.

         Plaintiff also consulted Dr. Hebrard in April 2014 due to pain and tenderness throughout her body, which Dr. Hebrard diagnosed as fibromyalgia. AR 631-32. The diagnosis was reached and maintained after Dr. Hebrard noted multiple tender points above and below the waist, complaints of fatigue, weakness, cold intolerance, irritability, and decreased tolerance for loud noises. AR 619, 620, 624-25, 628-629, 632. Because of Plaintiff's history of cardiovascular disease, Dr. Hebrard noted she was unable to take NSAID medications.[1] AR 629. Dr. Hebrard prescribed Lyrica for fibromyalgia; his goal was to reduce Plaintiff's pain by 50% and maximize her function with standing, walking, and activities of daily living. AR 629.

         Plaintiff's neck and shoulder pain continued into late 2014. AR 618.

         ii. Disability Paperwork

         Dr. Hebrard completed several employer-issued certification forms supporting Plaintiff's request for family and medical leave. AR 311-313, 341-42, 560-63. In the first form, which was completed at some point between September 2012 and June 3, 2013, Dr. Hebrard indicated Plaintiff's chronic back condition prevented her from sitting, standing, walking, lifting, or reaching for long periods of time; that Plaintiff would need to miss work to attend monthly doctor's appointments, and due to weekly flare ups in her condition; and that her condition would prevent her from working between October 4, 2012 through September 20, 2014. AR 311-13. In the November 2012 certification, Dr. Hebrard indicated Plaintiff would be intermittently incapacitated and unable to work through November 18, 2013. AR 341. He noted Plaintiff would need to be seen on a biweekly basis for medical visits and twice a week for physical therapy. AR 341. He stated she could work 4 hours daily, with 30 minutes standing and 30 minutes sitting. AR 342. He stated it would be medically necessary for her to miss work due to flare ups. AR 342. In the December 2013 certification, Dr. Hebrard explained the results of Plaintiff's C-spine and L-spine MRIs, as well as the results of her right shoulder MRI. He wrote Plaintiff had complex chronic pain and limited functional tolerance and ability. AR 560. Dr. Hebrard noted Plaintiff was first precluded from working on November 20, 2013, and that he expected her condition would be permanent. AR 561. He anticipated Plaintiff would need time off work on a weekly basis for PT and acupuncture, and monthly for office visits. AR 561. He also documented eight office visits between December 2012 and November 2013, including four visits in October through November 2013. AR 562.

         In April 2013, Dr. Hebrard completed a Work Restrictions note indicating Plaintiff was restricted to standing no more than 15 minutes a day and lifting no more than 10 pounds intermittently. AR 318. In November 2013, Dr. Hebrard provided a work excuse to Plaintiff confirming she was totally temporarily disabled from November 20, 2013 through January 16, 2014. AR 564.

         Dr. Hebrard also completed a physician source statement on July 10, 2014. AR 566-67. He summarized the results of the December 2012 MRI, the November 2012 EMG, and the cervical spine MRI. AR 566. He explained that Plaintiff suffered from chronic shoulder pain, that MRI results showed degenerative changes and tendinopathy, and that she had ongoing issues with shoulder pain and limitations. Id. Dr. Hebrard does not explain how the conditions identified by these various objective tests affect Plaintiff's ability to function. He documented the results of his examinations and opined that due to her “complex multifactorial medical issues, she is not a candidate for any full time work” because her condition requires treatment such as PT due to frequent flare ups, and office visits. AR 566. Dr. Hebrard estimated Plaintiff would miss about five days of work per month if she attempted to work full time. AR 566. He also opined that Plaintiff was limited to standing and walking less than 2 hours in an 8 hour workday, was limited to sitting 4 hours in an 8-hour workday, and needed to be able to change positions at will to relieve her pain. AR 566. Dr. Hebrard invited the SSA to contact him if further information was needed.

         2. Doctors Medical Center

         Plaintiff visited the Doctors Medical Center in February 2013 complaining of a rapid pulse. AR 267. Dr. Weiland noted Plaintiff had had some type of heart surgery when she was a child, examined Plaintiff and noted her heart rate was 100 and irregular; he admitted her with an atrial flutter, symptomatic, and started her on Lovenox and Amiodarone; he ordered a cardiac echocardiogram and iron studies. AR 268. The cardiac echocardiogram showed cardiomyopathy, significantly reduced left ventricular function with an ejection fraction of only 25%, and atrial flutter with moderate ventricular response. AR 546-47. Plaintiff underwent an ablation to convert her back to normal sinus rhythm. AR 277-279. The ablation improved Plaintiff's heart function, but she continues to have ...

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