United States District Court, C.D. California
CYNTHIA E. L., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
E. SCOTT United States Magistrate Judge.
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.
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.
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.
Two: Whether the ALJ erred in evaluating Plaintiffs
subjective symptom testimony. (Dkt. 24, Joint Stipulation
[“JS”] at 4.)
ISSUE ONE: Evidentiary Support for the ALJ's RFC
Summary of Relevant Medical Evidence.
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.
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.
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.”
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.
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.
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
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.
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.
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.
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.
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.”
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
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.
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.
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). 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.
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 ...