United States District Court, N.D. California
ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT.
NO. 18, 21
MARIA-ELENA JAMES UNITED STATES MAGISTRATE JUDGE.
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.
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
SECURITY ADMINISTRATION PROCEEDINGS
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.
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.
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.
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.
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.
Medical Evidence of Record
Dr. Michael E. Hebrard, M.D.
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
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.
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.
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
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.
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,
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. 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.
neck and shoulder pain continued into late 2014. AR 618.
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.
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.
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
Doctors Medical Center
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 ...