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Cynthia E. L. v. Berryhill

United States District Court, C.D. California

June 25, 2019

CYNTHIA E. L., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security,[1] Defendant.


          KAREN E. SCOTT United States Magistrate Judge.

         I. BACKGROUND

         Plaintiff Cynthia E. L. (“Plaintiff”) applied for Social Security disability benefits on June 2, 2014, alleging disability commencing July 9, 2013, her last day of work as a department manager at Wal-Mart. Administrative Record (“AR”) 178, 208, 394. On June 5, 2017, an Administrative Law Judge (“ALJ”) conducted a hearing at which Plaintiff, who was represented by an attorney, appeared and testified, as did a vocational expert (“VE”). AR 32-74. On September 20, 2017, the ALJ issued an unfavorable decision. AR 10-27. The ALJ found that Plaintiff suffered from the medically determinable severe impairments of “degenerative disc disease of the lumbar spine with lumbar musculoligamentous strain; Achilles tendinitis of the right ankle; and right sinus tarsi syndrome with neuritis.” AR 16. The ALJ found that Plaintiffs obesity, diabetes mellitus, hypertension, history of abdominal disorders, adjustment disorder, depressed mood, and anxiety symptoms were non-severe impairments. AR 16-19. Despite these impairments, the ALJ found that Plaintiff had a residual functional capacity (“RFC”) to perform light work with some additional restrictions. AR 19. Of relevance here, the ALJ found that Plaintiff could stand and/or walk for 6 hours out of an 8-hour workday with normal breaks and required “a sit/stand option at-will without going off-task ” Id.

         Based on the RFC analysis and the VE's testimony, the ALJ found that Plaintiff could work as an office helper (Dictionary of Occupational Titles [“DOT”] 239.567-010), mail clerk (DOT 209.687-026), and counter clerk (DOT 249.366-010). AR 25-26. The ALJ concluded that Plaintiff was not disabled. AR 26.



         Issue One: Whether the ALJ's RFC finding that Plaintiff can stand or walk for 6 hours in an 8-hour workday lacks substantial evidentiary support.

         Issue Two: Whether the ALJ erred in evaluating Plaintiffs subjective symptom testimony. (Dkt. 24, Joint Stipulation [“JS”] at 4.)



         A. ISSUE ONE: Evidentiary Support for the ALJ's RFC Determination.

         1. Summary of Relevant Medical Evidence.

         Plaintiff injured her right ankle playing hopscotch on July 9, 2013, and she never worked at Wal-Mart again. AR 43-44, 325 (“Was playing hop skotch 2 months ago when she had pain with normal hopping. No twisting injury to the ankle.”), 394. On August 29, 2013, she reported ankle pain to her treating doctors at the Riverside Medical Center (“RMC”) who diagnosed her with Achilles tendinitis and a “foot contusion”; they prescribed her a controlled ankle movement (“CAM”) boot and Motrin. AR 325-26. They recommended rest, ice, and a follow-up appointment in six weeks. AR 326.

         On October 10, 2013, Plaintiff presented with a “normal gait” and her treatment plan was to “wean” her off the boot, do physical therapy, wear comfortable shoes, and follow-up in two months. AR 324-35.

         On October 24, 2013, Plaintiff started physical therapy to treat her right ankle pain/tendinitis with PT George Marchis. AR 321. Plaintiff reported that she was still wearing the CAM boot and walking was “difficult.” AR 321-22. PT Marchis set as a goal “patient will be able to ambulate 15-20 minutes at a time in order for her to be able to do her job in 8 weeks.” AR 321. Plaintiff was scheduled for 10 sessions, 1 per week. Id. PT Marchis assessed her rehabilitation potential as “fair/good.” Id.

         On November 5, 2013, Plaintiff told PT Marchis that she had “minimal complaints of pain in the Achilles [tendon]” and reported her pain level as only 2/10. AR 320. On November 13, 2013, she reported, “Some soreness in the ankle” and a pain level of 4/10. AR 318. She told PT Marchis, “After prolong[ed] walking [she] feels like she is getting a blister at the bottom of the foot, ” but upon his checking, “there is no blister.” Id. She had “minimal to no limp when ambulating.” Id.

         On November 26, 2013, Plaintiff reported experiencing an “ankle pop” two days earlier that had caused pain at ¶ 5/10 level ever since. AR 313. She had a “minimal antalgic limp” and could “ambulate more than 250 feet with no walking boot at a slow speed.” AR 314.

         On December 3, 2013, she reported pain of 6/10 that was temporarily improved by using K-tape. AR 311. PT Marchis reported, “overall, she is responding well to physical therapy.” AR 312. Plaintiff, however, did not return to complete her physical therapy; the December 3rd session was her last with PT Marchis. AR 292. In March 2014, PT Marchis discharged her for “fail[ing] to follow up with therapy.” Id.

         On December 6, 2013, Plaintiff saw Dr. Patrick Serynek at RMC who noted no calf atrophy but an antalgic gait. AR 309-10. He recommended restarting the CAM boot and getting an MRI. AR 310. The MRI was initially interpreted to show “some inflammation in the foot and ankle as well as a cyst ….” AR 309. At a January 6, 2014 appointment, however, Dr. Serynek explained that the “cyst was not anywhere near her painful areas, ” and he recommended pain management, physical therapy, and a follow-up in 8 weeks. AR 308.

         On January 8, 2014, Plaintiff attended an initial pain management appointment with a psychologist. AR 306. Plaintiff also interacted with a new physical therapist, PT Pamela Hauger, this time concerning pain in her “low back into buttocks and LEs [lower extremities].” AR 304-05. She told PT Hauger that she was not currently in physical therapy, even though she still had an active referral at this time to return to PT Marchis. AR 305. She told PT Hauger that she had been suffering “constant” pain at a level of 5/10 for the past six months that had decreased her activity level by 50%. Id. PT Hauger observed that Plaintiff walked into the medical office with no assistive device and did not have an antalgic gait. Id. She prescribed Plaintiff a TENS unit. Id. On January 16, 2014, however, Plaintiff reported that she “wished to decline further services from pain management”; she was discharged from the program. AR 301.

         On January 29, 2014, Plaintiff met with another RMC physician, Dr. Melissa Buffington, for “ankle/foot pain” but reported “no other concerns.” AR 298-99. Dr. Buffington discussed potential side effects of nortriptyline, a nerve pain medication and antidepressant, and Plaintiff indicated that she wanted treatment, so Dr. Buffington prescribed nortriptyline. AR 301.

         On February 10, 2014, Plaintiff reported that the nortriptyline was not helping, and she was having leg spasms and severe pain in both legs. AR 297. Later in February, she contacted RMC about extending her “off work order”; she had been scheduled to return to work on February 18, 2014, but RMC agreed to extend the order until the date of her next appointment. AR 296-97.

         On February 18, 2014, Plaintiff saw Dr. Serynek to “follow up on foot pain.” AR 295. He noted that now she was reporting pain over the “dorsolateral aspect” of her ankle (i.e., the top of her foot/ankle) rather than her Achilles tendon. Id. He saw no calf atrophy or swelling, but Plaintiff displayed an antalgic gait. AR 296. He revised the assessment to “neuritis.” Id.

         On February 27, 2014, Plaintiff returned to Dr. Buffington to treat her back pain. AR 293-04. She reported “ongoing right ankle pain for almost 1 year.” AR 294. Dr. Buffington referred her for physical therapy, but Plaintiff declined. AR 294. Dr. Buffington prescribed more pain medication. Id.

         In March 2014, Plaintiff saw podiatrist Dr. Pham for a second opinion. AR 291. He observed that the range of motion for her foot and ankle was “intact” and there was no pain upon palpation of her Achilles, but her right sinus tarsi was tender. Id. He diagnosed her with right sinus tarsi syndrome and neuroma. AR 292. He recommended a “short leg cast” with crutches for 3-4 weeks. Id. Plaintiff returned to Dr. Serynek on April 15, 2014, describing her right foot and ankle as “still hurts, still swollen.” AR 289. He removed her cast and observed “swelling not present.” AR 290. He recommended restarting TENS therapy and pain management. Id.

         On May 1, 2014, Plaintiff saw RMC's Dr. Takhar about her back pain. AR 284. She told him that she was experiencing “difficulty moving her right foot and chronic pain” ever since her hopscotch injury, and she had tried pain management but “couldn't complete due to financial issues.” Id. She was limping on the right side and declined to try heel or toe walking due to pain. AR 286. He recommended physical therapy, but Plaintiff again declined because “it causes more pain.” AR 287. He referred her for acupuncture and ordered an MRI. Id.

         The May 2014 MRI showed a “small slipped disc” at ¶ 5-S1. AR 284; see also AR 460 (interpreting MRI as showing “mild narrowing” at ¶ 5-S1[2]). Dr. Takhar recommended that she make a follow-up appointment if her pain persisted after acupuncture. Id. Plaintiff tried acupuncture, but she reported that it “made her right foot/ankle pain worse.” AR 282.

         On May 19, 2014, Plaintiff asked RMC to extend her off-work order. AR 283. Plaintiff reported that she was “unable to put weight on her foot.” AR 281. Dr. Serynek responded, “Give her one more month but let her ...

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