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Mayfield v. Commissioner of Social Security

United States District Court, E.D. California

September 5, 2017

DONNA JEAN MAYFIELD, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER GRANTING IN PART PLAINTIFF'S SOCIAL SECURITY APPEAL AND REMANDING FOR FURTHER DEVELOPMENT OF THE RECORD (ECF NOS. 14, 17)

         I.

         INTRODUCTION

         Plaintiff Donna Jean Mayfield (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for disability benefits pursuant to the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Stanley A. Boone.[1]

         Plaintiff suffers from degenerative lumbar disc disease and chronic pain syndrome. For the reasons set forth below, Plaintiff's Social Security appeal shall be granted in part and remanded for further development of the record.

         II.

         FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff protectively filed a Title II application for a period of disability and disability insurance benefits on July 23, 2012, alleging disability beginning September 2, 2011. (AR 191-93.) Plaintiff's application was initially denied on February 25, 2013, and denied upon reconsideration on July 22, 2013. (AR 88-115.) Plaintiff requested and received a hearing before Administrative Law Judge Susanne Lewald (“the ALJ”). Plaintiff appeared for a hearing via video teleconference on November 12, 2014. (AR 46-86.) On March 28, 2014, the ALJ found that Plaintiff was not disabled. (AR 17-33.) The Appeals Council denied Plaintiff's request for review on May 27, 2016. (AR 1-6.)

         A. Relevant Hearing Testimony

         A medical expert, Dr. Richard Hudson, [2] testified at the hearing. Based on a review of the medical record, Dr. Hudson noted that Plaintiff had an MRI of the lumbar spine indicating L5-S1 disc herniation; a surgical procedure involving a left L5-S1 disc herniation with removal of the disc and a decompression of the nerve roots on October 4, 2010; a discogram on February 3, 2012, that was positive or concordant for the type of pain that Plaintiff had at ¶ 4-4 and L5-S1, but L2-3 and L3-4 were negative; an MRI on January 21, 2011, which showed a repeat L1-2 small protrusion, L4-5 diffuse bulge and mild facet degenerative joint disease, and a bilateral bulging obtrusion; a two level spinal fusion with cages, internal fixation, and bone graft at ¶ 4-5 and L5-S1 by Dr. Todd Peters on May 21, 2013; an August 30, 2012 MRI showing small spurs at ¶ 5-6 and some facet changes, a bulging of the disc at ¶ 4-5, and a bulge at ¶ 6 with mild facet changes; a July 24, 2013 MRI where the lordosis or curl was normal, mild levo or left sided curvature or scoliosis in the lumbar spine, no compression fractures, and posterior lumbar interbody fusion from L4 to the sacrum; and a CAT scan of the lumbar spine on December 17, 2013, which did not find or report a pseudoarthrosis. (AR 51-55.) Dr. Hudson also noted that Dr. Leung's December 16, 2013 opinion indicated that there was a question whether there was pseudoarthrosis, where the fusion might not be healed, and that Dr. Perdikis mentioned that the graft was not fusing. (AR 54.)

         Considering the listings, Dr. Hudson found that Plaintiff has vertebrogenic disorders in the lumbar spine, having had two surgeries in the lumbar spine. (AR 52.) Dr. Hudson found that Plaintiff does not equal or meet listing 1.04 in severity. (AR 52.) Dr. Hudson found that Plaintiff could do sedentary work; lift 10 pounds occasionally and less than 10 pounds frequently; stand or walk 2 hours in an 8 hour day; sit 6 hours in an 8 hour day with a sit-stand option where she can stand up 5 minutes of every hour and not leave the work station, though the 5 minutes would not have to be consecutive; postural items on an occasional basis, except no ladders or scaffolds; no overhead reaching with the upper extremities; and for environmental limitations she would need to avoid concentrated exposure of extreme cold, extreme heat, wetness, humidity, and vibration, and no heights, hazardous areas, or moving machinery. (AR 52-53, 56.)

         Dr. Hudson looked at page 8 of Exhibit 21F, which is the report of the December 17, 2013 lumbar CT and he stated that the graft has partially taken to the bone, but not completely yet. (AR 56.) Dr. Hudson indicated that sometimes it takes 2 years for a bone graft to be incorporated in a spinal fusion. (AR 57.) The bone graft is there and the metal is holding the bones together to allow the bone to get a new blood supply and then heal. (AR 57.) Incomplete bony bridging means that it has not yet completely fused. (AR 57.) Plaintiff's surgeon does not mention that she had a pseudoarthrosis at that level. (AR 57.) The only one who mentioned that there was a pseudoarthrosis at that level was Dr. Leung, a neurosurgeon who is a pain doctor. (AR 57.) Dr. Hudson stated that there is no way to correlate the results of a CT scan or an MRI to how much pain a person has or how much someone can function. (AR 57-58.) Dr. Hudson was surprised that there had not been another CT scan done, but Plaintiff stated that it has been an insurance issue. (AR 58.)

         Plaintiff also testified at the hearing by video teleconference. Plaintiff is 45 years old and her birthday is May 29, 1969. (AR 59.) She is not married and has no children. (AR 60.) She lives with her mother and uncle. (AR 60.) She has an AA degree in humanities and a certificate in a medical program where she learned coding and medical terminology. (AR 59-60.)

         She has a driver's license and is able to drive on a limited basis. (AR 60.) The farthest she drives is 10 or 12 miles. (AR 60.) Plaintiff's aunt drives her to the doctor, who is an hour away, and a friend drove her to the hearing. (AR 60-61.)

         She last worked at Riverside County Regional Medical Center in 2011 before she went on temporary disability in September 2011 and resigned in 2012. (AR 61, 64.) She did not attempt to go back to work after her fusion surgery in 2012. (AR 61-62.) She had gone back to work for 10 months after her first surgery. (AR 61.) She had worked there for 13 years as a medical records clerk where she had to walk, stand, and sit. (AR 62.) She did customer service at a public window, did computer input, worked the phones, pulled charts, filed, made copies at the copy machine, lifted boxes and reams of paper, and transported charts. (AR 62-64.) She did not supervise any employees. (AR 64.) Before working at Riverside County Regional Medical Center, she worked at a sports clinic for 2 years. (AR 64.)

         She has intense pain where she cannot sit for over 10 to 15 minutes. (AR 65.) At most, she could sit 20 minutes, but the pain really hurts and is intense by the time 20 minutes has passed. (AR 73.) She cannot walk a lot because the pain radiates down both of her legs and shoots down her thighs, knees, and sides of her calves into her feet. (AR 65.) She cannot do paperwork where she has to put her head down even for a few seconds. (AR 65.) She has spasms 24/7 in her back and up her spine into her neck. (AR 65.) When she tries to do anything in a prolonged position, the pain is unbearable in her lumbar spine and it spasms up to the middle of her spine and neck. (AR 65.) She cannot concentrate on anything because she is always in pain. (AR 78.)

         She is not sure how long she can sit throughout the day. (AR 73.) She stands for a few hours throughout the day, but not for a long time continuously. (AR 74.) She walks her dog in the afternoon for about 15 or 20 minutes, but then she has to lay down or lean back on the couch. (AR 74.) She lays down for 2 or 3 hours a day and she sleeps and take naps. (AR 75.) She has 6 bad days a week where she lays down most of the time. (AR 76.)

         Dr. Langston Holly performed the first surgery, which was a discectomy on one of her three herniated bulging discs. (AR 78.) She had two sets of cortisone injections, but they did not work. (AR 78.) Her sciatica and the radiculopathy improved for 3 or 4 months, but it intensified after the surgery in October 2010, so she had the spinal fusion. (AR 78.) She has had spinal decompression, acupuncture, massages, and physical therapy, so there is nothing further to do. (AR 78.) She could have a revision of the spinal fusion, but Dr. Perdikis said it would be a very poor prognosis and she could end up in worse pain or in a wheelchair. (AR 79.) Dr. Perdikis said what is going to make it fuse the next time since it has not fused this time. (AR 79.)

         She has talked about her pain with Dr. Perdikis, but the pain medication is not controlling it. (AR 65-66.) Dr. Perdikis has tried prescribing different medications for her, but she is sensitive to the medications. (AR 66.) She started taking OxyContin when she had the fusion in 2012, but the pain is so intense that she cannot stop taking it. (AR 66.) The Vicodin is not enough to control the pain. (AR 66.) Dr. Perdikis prescribed Methadone to help the pain, but it made her nauseated, dizzy, and sick, so she went back to the OxyContin. (AR 67.)

         The OxyContin causes her severe stomach pain and cramps, and it intensifies her IBS symptoms. (AR 68.) So she also takes Linzess, which causes really bad constipation. (AR 68.) She does not usually have diarrhea, but she has constipation. (AR 68.) The Vicodin is causing dizziness and causing her hairline to recede. (AR 68.) She takes Ambien because she has a hard time sleeping, but it makes her groggy and nauseous. (AR 68-69.) The Baclofen, a muscle relaxer, helps a little, but she still has spasms, and she has dizziness, nausea, and her depth perception and reflexes are affected. (AR 69.)

         Since she is a thin and petite person, she feels the hardware in her back and she always feels a heaviness and radiating, penetrating pain from the metal in her back. (AR 66.)

         She went to a program called VMC because she thought it was going to teach her ways to help control her pain without the opiates because she wanted a healthier alternative method, but it was a rehab for addicts. (AR 67.) She was there for 6 days without her medications and she was in excruciating pain where she could barely walk, so she left the program. (AR 67.)

         She is independent with showering, bathing, doing her hair, and getting dressed, but she sometimes needs help with her shoes and she does use a grabber to pick things up. (AR 69-70.) Her mom does all of the cooking and the shopping and helps her because she uses a walker in the morning, which was prescribed when she had the fusion surgery. (AR 70.) Plaintiff does a minimal amount of chores around the house. (AR 70.) When she does the dishes, she can only stand there for less than 10 minutes. (AR 70.) She lays down in her bed or leans back on the couch with pillows behind her a lot of times during the day because of the pain in her neck and lumbar spine. (AR 71.) She watches TV and reads during the day. (AR 72.) When she reads, she cannot look down at the book, so she has to hold the book level. (AR 72.)

         She goes shopping with her mom to Rite Aid or K-Mart on rare occasions, but she does not go grocery shopping. (AR 71.) On the rare occasions when she goes out, she cannot go out for longer than 2 or 3 hours. (AR 72.) She goes to church services that are 1 ½ to 2 hours long, but she has to stand up and move around every 10 to 20 minutes. (AR 72.)

         She has a dog that is 9 to 10 pounds and she can pick him up if she has to for 5 to 10 minutes, but she normally does not. (AR 81.) She picked him up one time during a walk when a huge Labrador ran up, but she torqued her back and she was in pain for 3 days. (AR 81.)

         She used to like to hike and last went on a hike before her first surgery, the discectomy. (AR 72-73.) She was very active and athletic before her injury. (AR 73.)

         Dr. Perdikis, who is the only doctor she is seeing, is not talking about doing any intervention on her cervical spine. (AR 76-77.) The doctor she saw in Riverside who did the fusion surgery ordered the CT that she had on December 17, 2013, but then he left the practice. (AR 76.) After Plaintiff resigned from her job, she had to move to Bishop and her COBRA insurance did not cover any doctors in Bishop, so she could not get an orthopedic doctor to continue her treatment. (AR 77.) She goes to Dr. Perdikis for pain management and pays cash to see him. (AR 77.) Her insurance covers her medications. (AR 77.)

         During the hearing, she leaned on the table when she stood up because it gave her support and the medications make her dizzy and lightheaded. (AR 79.) She carried in her hand a bag with a little folder in it and her purse. (AR 80.)

         A vocational expert also testified at the hearing. (AR 82-86.)

         B. ALJ Findings

         The ALJ made the following findings of fact and conclusions of law.

         • Plaintiff meets the insured status requirements of the Social Security Act through March 31, 2017.

         • Plaintiff has not engaged in substantial gainful activity since ...


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