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Jeffrey S. v. Saul

United States District Court, C.D. California

July 8, 2019

JEFFREY S., Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant.

          MEMORANDUM OPINION AND ORDER

          KAREN E. SCOTT, UNITED STATES MAGISTRATE JUDGE.

         I. BACKGROUND

         Plaintiff 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.

         In June 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.

         The ALJ 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.

         Despite 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. Id.

         Based 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 77.

         II.

         ISSUES PRESENTED

         Issue 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.)

         III.

         DISCUSSION

         A. ISSUE ONE: Dr. Johnson.

         1. Summary of Relevant Medical Evidence.

         In June 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.

         Dr. 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.

         Dr. 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.[2] 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.

         About 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.

AR 636.

         Also in 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 October 2015).

         Plaintiff 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.

         On October 22, 2015, the Social Security Administration denied his application for benefits. AR 198.

         On 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.” AR 801.

         On the 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.

         Less 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.

         About 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.

         A few 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.

         Plaintiff 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 ...


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