United States District Court, C.D. California
MEMORANDUM OPINION AND ORDER
E. SCOTT, UNITED STATES MAGISTRATE JUDGE.
Jeffrey S. (“Plaintiff”) worked for six years as
a loan officer for AmeriSave Mortgage Corporation based in
Atlanta, Georgia. Administrative Record (“AR”)
119, 603. He worked out of his home in California, sitting in
a kitchen chair and using his own telephone and computer to
call leads, explain loan terms, enter data, and originate
loans. AR 119-20, 122, 431, 603, 607. In 2009 and 2010, he
reported more than $100, 000 in annual income. AR 313. He
developed neck and back pain and quit in July 2011 due to
“excruciating pain.” AR 431, 603, 607. Three
years later in June 2014, he filed a workers'
compensation claim against AmeriSave. AR 602. After some
medical treatment, he received a settlement for $17, 000 in
approximately 2015. AR 122.
2015, he applied for Title II and Title XVI social security
disability benefits, alleging disability commencing December
31, 2013. AR 302-07. On February 15, 2018, 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
113-33. On April 4, 2018, the ALJ issued an unfavorable
decision. AR 65-83.
found that Plaintiff suffered from several severe medically
determinable impairments that cause back and neck pain, as
follows: “cervical spine degenerative disc disease;
history of cervical spine sprain/strain with spondylosis of
the cervicothoracic region and cervicalgia; and lumbar spine
degenerative disc disease; and lumbar spine
sprain/strain.” AR 70. The ALJ found that
Plaintiff's depression, anxiety, and insomnia were
non-severe. AR 71.
these impairments, the ALJ found that Plaintiff had a
residual functional capacity (“RFC”) to perform
medium work with some additional restrictions. AR 72. Of
relevance here, the ALJ found that Plaintiff could stand,
walk, or sit for 6 hours during an 8-hour workday.
on the RFC analysis and the VE's testimony, the ALJ found
that Plaintiff could perform his past relevant work as a loan
advisor (Dictionary of Occupational Titles
[“DOT”] 249.362-018) or telephone solicitor (DOT
299.357-014), both of which are classified as sedentary jobs.
AR 76. The ALJ concluded that Plaintiff was not disabled. AR
One: Whether the ALJ erred by giving no weight to the
opinion of Plaintiffs treating orthopedist in 2014 and 2015,
Dr. David Johnson, that Plaintiff should be restricted from
sitting or standing for more than “3 hours at a time
per day” (AR 636).
Issue Two: Whether the ALJ erred by finding
Plaintiffs mental impairments non-severe.
Issue Three: Whether the ALJ erred in evaluating
Plaintiffs subjective symptom testimony.
(Dkt. 21, Joint Stipulation [“JS”] at 2.)
ISSUE ONE: Dr. Johnson.
Summary of Relevant Medical Evidence.
2014, Plaintiff attended an initial evaluation with Dr.
Johnson as part of his workers' compensation claim. AR
430, 602. He described his neck and back pain as having a
gradual onset from 2006 to 2011 and reaching a 7/10 level by
2014. AR 354, 431. Plaintiff was taking aspirin for pain
management, and he reported that medication helped alleviate
his pain. AR 432. Dr. Johnson observed that Plaintiff had a
normal range of motion (“ROM”) in his cervical
spine but a somewhat reduced ROM in his lumbar spine. AR
433-34. His legs had 4/5 motor strength. AR 434. Dr. Johnson
diagnosed Plaintiff as suffering from cervical and lumbar
spine sprain/strain and radiculopathy, injuries that were
“sustained while in the course and scope of his
employment” before he quit in July 2011. AR 435.
Plaintiff was referred for additional tests, physical
therapy, acupuncture, shockwave therapy, and chiropractic
treatment; he was also prescribed various creams and patches
as pain medication. AR 435-36.
Johnson evaluated Plaintiff again one month later in July
2014. AR 443. Plaintiff still reported his pain as 7/10 and
the ROM of his cervical spine had slightly decreased, but he
“denied any problems with the medications.” AR
444-45. Dr. Johnson opined that Plaintiff could return to
work immediately if his employer could accommodate a
restriction against “prolonged standing, sitting, or
walking” and other limitations. AR 449.
Johnson continued to see Plaintiff approximately monthly.
See AR 451 (August 2014); AR 458 (September 2014);
AR 460 (October 2014); AR 466 (December 2014); AR 471
(January 2015); AR 477 (February 2015); AR 483 (March 2015);
AR 489 (April 2015); AR 495 (May 2015); AR 501 (July 2015).
At all of these appointments, Plaintiff's ROM and motor
strength stayed about the same. He reported that the
medications provided “temporary relief” and
helped him sleep. He consistently denied medication side
effects. Most significantly, over this one-year
period, Plaintiff's reported pain level dropped from 7/10
(AR 444) to 6/10 (AR 460), 5/10 (AR 477), 4/10 (AR 489), and
finally to 3/10 (AR 501). Even on July 8, 2015, however, when
Plaintiff's neck and back pain were 3/10, Dr. Johnson
instructed him to remain off work. AR 501, 506.
two weeks later on July 28, 2015, Dr. Johnson wrote the
following opinion letter:
It is my medical opinion that [Plaintiff] be restricted from
sitting and or standing for more than 3 hours at a time per
day due to disc herniations … in his neck … and
lower back … as a provision of medical treatment.
Failure to provide such restriction would at least impede
[Plaintiff's] recovery process, if not put him in risk of
deterioration of his medical condition.
July 2015, Plaintiff completed a patient history
questionnaire (AR 602) and pain questionnaire (AR 353). He
described having “shooting pain” every day,
migraine headaches twice a week, and pain 51-75% of the time.
AR 604. He checked boxes indicating that his condition
affected his ability to sit and engage in postural
activities, but he did not indicate impaired standing or
walking. AR 605. He reported taking aspirin and Naprosyn (the
brand name of naproxen) for pain. AR 606; see also
AR 353 (he was taking 3 Advils/day and over-the-counter
sleeping pills, a regimen he had followed for 8 years).
During 2014 and 2015, it does not appear that Plaintiff was
prescribed narcotic pain medication. See AR 643
(list of prescriptions filled at CVS from 6/11/14 through
6/10/16 includes no prescription pain medication); AR 644-47
(list of prescriptions filled at Rite Aid from 1/12/15
through 6/10/16 includes only one pain medication: ibuprofen
prescribed by emergency room physician Dr. Vandordaklou in
did not see Dr. Johnson again after July 2015. On October 7,
2015, Plaintiff saw Dr. Edwin Mirzabeigi through the
workers' compensation system for an “initial”
evaluation. AR 703. Plaintiff still rated his neck and back
pain as only 3/10, consistent with his last reports to Dr.
Johnson in July 2015. AR 705.
October 22, 2015, the Social Security Administration denied
his application for benefits. AR 198.
October 27, 2015, at 8 a.m., Plaintiff visited the Long Beach
Memorial Hospital emergency room (“ER”)
complaining of back pain. AR 799. He left against medical
advice at about 8:15 a.m., saying that he wanted to find a
hospital that would “given him an epidural shot.”
morning of October 28, 2015, Plaintiff returned to the ER. AR
661, 803. He reported that his treatment from Dr. Johnson,
including “patches/ointments, ” provided him
“minimal relief.” AR 805. Results of a
straight-leg raising test, however, were negative. AR 662,
807. He received prescriptions for Motrin and Valium, and Dr.
Vandordaklou authorized a Toradol injection. AR 653-55. Prior
to those prescriptions, Plaintiff's pain medications were
Tylenol and aspirin. Id. Plaintiff exhibited
“mild improvement after medication” and was
discharged to follow up with his primary care doctor. AR 663.
than two weeks later on November 11, 2015, Plaintiff saw Dr.
Mirzabeigi again. AR 696. Plaintiff rated his neck and back
pain as 3/10. Id. Yet two days later on November 13,
2015, Plaintiff returned to the ER requesting another Toradol
injection. AR 812. He was “given Toradol with
relief.” AR 815.
one month later on December 11, 2015, Plaintiff saw Dr.
Mirzabeigi for a third time. AR 680. This time, Plaintiff
rated his neck pain as 9/10 and his back pain as 7/10.
Id. The results of his physical examination did not
change significantly, and nothing in the progress note
comments on or attempts to explain the significant increase
in reported pain.
days later on December 14, 2015, Plaintiff returned to the ER
complaining of neck and right ear pain. AR 749. His
prescriptions at that time included Tylenol, aspirin,
ibuprofen, and Valium. AR 750. He requested another injection
like the one he received during his last ER visit and again
had “pain relief with Toradol.” AR 751.
returned to the ER in January 2016. AR 759. This time he was
prescribed Norco, Flexeril, and ibuprofen. AR 762. He visited
the ER again in March 2016 complaining of lower back pain
“not relieved with ibuprofen.” AR 920. “He
was requesting toradol which ...