Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Carlon v. Saul

United States District Court, E.D. California

September 9, 2019

DEREK WADE CARLON, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          ORDER ON PLAINTIFF'S SOCIAL SECURITY COMPLAINT ORDER DENYING AS MOOT PLAINTIFF'S MOTION TO ADMIT NEW EVIDENCE (Docs. 1, 21)

          SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On August 13, 2018, Plaintiff Derek Wade Carlon (“Plaintiff), proceeding pro se, filed a complaint under 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social Security (the “Commissioner” or “Defendant”) denying his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.[1]

         II. FACTUAL BACKGROUND

         On August 28, 2013, Plaintiff protectively filed an application for DIB payments, alleging he became disabled on June 15, 2013 due to back problems, including “herniated discs 14 to s1, ” “c4-c6 ddd with reverse lordosis, ” L6 (extra lumbar vertebrae) spina bifida occulta, C3-7 degenerative disc disease/foraminal encroachment, cervical reverse lordosis, L4-5 herniated disc, and L5-S1 (L6) herniated disc. (Administrative Record (“AR”) 18, 20-21, 99, 109, 170-76, 198.) Plaintiff was born on May 10, 1972 and was 41 years old as of the alleged onset date. (AR 26, 99, 109, 170, 198.) Plaintiff has a college degree in theater and has past work experience as a mail carrier, salesperson, tank truck driver, stock clerk, heavy truck driver, and truck driver helper, and last worked full-time in 2009. (AR 26, 40-41, 117, 204.)

         A. Relevant Medical Evidence[2]

         1.Precision Health Imaging

         On August 7, 2009, Plaintiff underwent magnetic resonance imaging (MRI), which showed that Plaintiff had degenerative disc disease without evidence of herniated discs, and foraminal encroachment and narrowing in his lower back. (AR 373.) On October 23, 2010, Plaintiff underwent an MRI on his lumbar spine, which revealed a minimal degree of disc bulge at ¶ 1-L4. (AR 416-17.) On June 25, 2011, an MRI on Plaintiff's cervical spine showed that Plaintiff's disc desiccation and disc height loss at ¶ 5-6 had increased since the August 2009 MRI, but were unchanged at the C3-4 and C5-6 levels. (AR 374.) On October 3, 2011, a cervical spine myelography showed Plaintiff had degenerative disc disease, mild retrolisthesis, and an extradural bulge, and a separate CT scan showed Plaintiff's most significantly affected level was at ¶ 5-6. (AR 382-84.)

         Plaintiff's next MRI was on July 13, 2013, which showed Plaintiff had a protrusion at ¶ 5-S1. (AR 375-76.) An MRI on January 10, 2014 showed central disc protrusions at ¶ 5-S1 and possible infected fluid collection. (AR 381-82.) On March 3, 2014, an MRI on Plaintiff's back showed “[m]ild reversal of the normal cervical lordosis, ” “mild uncovertebral joint degeneration, ” and small disc protrusions at ¶ 5-6 and C6-7. (AR 378.)

         2. Dr. Gabriel Garcia-Diaz, M.D.

         On June 20, 2013, Plaintiff established care with orthopedic surgeon Dr. Gabriel Garcia-Diaz, M.D., at Ortho Spine Advance Health Inc. in Merced, California. (AR 326-71.) At his initial appointment with Dr. Garcia-Diaz, Plaintiff reported he had pain in his upper posterior neck, upper extremities, and both sides of his lower back. (AR 327.) Plaintiff reported his back problems began 27 years earlier and had worsened since Spring 2009. (AR 327.) On examination, Dr. Garcia-Diaz noted that Plaintiff's cervical spine and thoracic spine were “unremarkable with normal inspection, normal alignment, full pain-free range of motion, no muscle spasms, no tenderness . . . and no other significant findings[.]” (AR 330-31.) Dr. Garcia-Diaz noted that a lumbosacral spine x-ray showed a congenital abnormality in the sixth lumbar vertebrate and diagnosed Plaintiff with spina bifida occulta. (AR 332.) Dr. Garcia-Diaz recommended home exercise and provided free samples of muscle relaxants. (AR 332.)

         Plaintiff next saw Dr. Garcia-Diaz for an evaluation on July 18, 2013. (AR 336-43.) Dr. Garcia-Diaz observed that Plaintiff's pain was generally unchanged, but review of an MRI taken earlier in July 2013 showed Plaintiff had more conditions affecting his back. (See AR 336-37, 340- 42.) Dr. Garcia-Diaz diagnosed Plaintiff with spina bifida occulta; idiopathic low back pain; herniated nucleus pulposus; L4-5 herniation; degenerative disc disease; central spinal stenosis; lateral recess spinal stenosis; and radiculitis. (AR 342.) Dr. Garcia-Diaz recommended epidural corticosteroid injections at ¶ 4-5 and prescribed a muscle relaxant. (AR 342.)

         On August 23, 2013, Plaintiff returned to Dr. Garcia-Diaz for a follow-up appointment. (AR 344-52.) Dr. Garcia-Diaz noted that Plaintiff's pain and physical condition were generally unchanged, he had normal gait, normal heel and toe walking, no evident pain, and normal general strength. (AR 344-48.) Dr. Garcia-Diaz recommended home exercise, ice packs, “patient directed self care, ” and lumbar spine surgery. (AR 350.) Dr. Garcia-Diaz noted that Plaintiff had considered all available treatment options and indicated he wanted to proceed with the lumbar spine surgery as recommended. (AR 350-51.)

         Dr. Garcia-Diaz saw Plaintiff for a pre-operative visit on September 16, 2013 and performed a laminectomy and decompression surgery on September 18, 2013. (AR 353-60, 369-71.) The surgery was successful, and Dr. Garcia-Diaz saw Plaintiff for a post-operative evaluation on October 1, 2013. (See AR 370-71, 361-68.) Dr. Garcia-Diaz noted that “[t]he previously described symptoms have gotten much better since the last office visit” except for some numbness in the left leg. (AR 361.) Plaintiff's post-operative status was described as “excellent” and Dr. Garcia-Diaz noted that the surgery provided “a great deal of relief of current symptoms.” (AR 361-62.) Dr. Garcia-Diaz recommended home exercise and patient-directed self-care. (AR 367.)

         Dr. Garcia-Diaz's treatment notes from September 16, 2013 indicate that Plaintiff was scheduled for a follow-up appointment four weeks later, but no treatment notes from that appointment or other appointments with Dr. Garcia-Diaz are included in the record. (See AR 367.) The record similarly does not contain medical opinion evidence from Dr. Garcia-Diaz.

         3. Dr. Diana J. Hylton, M.D.

         On February 4, 2014, Plaintiff first saw neurologist Dr. Diana Hylton, M.D. (AR 387-88.) Dr. Hylton diagnosed Plaintiff with severe left L5-S1 radiculopathy and noted that Plaintiff had “a moderate right L5 denervation pattern.” (AR 387-88.) On March 19, 2014, Dr. Hylton performed motor nerve conduction and sensory nerve conduction studies on Plaintiff, and concluded that Plaintiff exhibited “MILD R CTS, ” “DELAY IN THE L MEDIAN AND ULNAR SENSORY AT THE WRIST, ” and “L ULNAR COMPRESSION AT THE ELBOW.” (AR 389-90.) Plaintiff returned to Dr. Hylton on July 15, 2016, and she prescribed Lyrica for shoulder pain. (AR 488.)

         4. Stanford Neurology Clinic

         In June 2014, Plaintiff established care with the General Neurology Clinic at Stanford Healthcare. (See AR 434-49.) On June 5, 2014, neurosurgeon Dr. Jongsoo Park, M.D., noted that Plaintiff reported that after the September 2013 surgery, pain and numbness in his left leg increased and he did not experience any relief from his pre-operative symptoms. (AR 438.) Dr. Park determined that Plaintiff suffered from “discogenic back pain” and recommended conservative therapy in the form of physical therapy and use of an inversion table. (AR 440.)

         On July 29, 2014, fellow Dr. Brian Shaller, M.D. and neurologist Dr. Steven McIntire, M.D., saw Plaintiff for a follow-up visit. (AR 441-46.) Plaintiff reported a history of left lower extremity numbness and weakness beginning in 2013. (AR 441.) Plaintiff reported that his functional status and low back pain had improved significantly, but he had a sudden onset of numbness in early 2014, which resolved in about 30 minutes. (AR 441, 444.) Dr. Shaller noted Plaintiff had normal strength, muscle tone, and bulk, intact coordination, normal gait, and intact sensation. (AR 441.) Dr. McIntire noted that Plaintiff had no abnormalities on neurological examination other than residual effects of his September 2013 surgery. (AR 446.)

         5. Dr. Mario Sablan, D.O.

         In early 2014, Plaintiff established care with orthopedic surgeon Dr. Mario Sablan, D.O., for treatment for his elbow and shoulder issues. (See AR 452-82.) On April 17, 2014, Dr. Sablan saw Plaintiff for an evaluation and examination of his left elbow and left wrist. (AR 476-78.) Dr. Sablan noted that Plaintiff reported his elbow symptoms began in 2009, his discomfort had not decreased over the years, and he was in “severe” pain. (AR 476.) Dr. Sablan noted that Plaintiff's complaints were “essentially identical for both elbows” but the left elbow was reported to be more symptomatic. (AR 476.) On August 6, 2014, Dr. Sablan saw Plaintiff for a pre-operative examination and noted that Plaintiff had agreed to undergo left elbow surgery. (AR 472-75.) Dr. Sablan diagnosed Plaintiff with cubital tunnel syndrome in his left elbow. (AR 474.) On August 8, 2014, Dr. Sablan performed surgery on Plaintiff's left elbow to treat his cubital tunnel syndrome. (AR 481-82.)

         On August 21, 2014, and September 22, 2014, Dr. Sablan saw Plaintiff for post-operative visits. (AR 467-71.) Dr. Sablan noted there was “definite improvement since surgery when compared to the pre-op symptoms” and “[o]verall, there has been significant improvement.” (AR 467, 470.) Dr. Sablan noted that a left arm evaluation was “basically unremarkable” with sensory and motor function “grossly intact” and “grossly normal.” (AR 468, 471.)

         On July 16, 2015, Plaintiff returned to Dr. Sablan with left shoulder issues. (AR 463-66.) Dr. Sablan noted that Plaintiff had moderate pain in his left shoulder and Plaintiff had “recently noticed the problem worsening.” (AR 463.) Dr. Sablan noted that Plaintiff desired surgery on his left shoulder. (AR 466.) Dr. Sablan scheduled Plaintiff for a pre-operative visit on September 2, 2015. (AR 459-62.) Dr. Sablan performed left shoulder surgery on Plaintiff on September 4, 2015, and saw Plaintiff for a post-operative visit on September 17, 2015. (AR 455-58.) Dr. Sablan noted that Plaintiff felt the progress since surgery was “satisfactory, ” and recommended self-directed rehabilitation. (AR 455, 457.)

         On October 19, 2015, Plaintiff returned to Dr. Sablan with right shoulder pain. (AR 452- 54.) Dr. Sablan diagnosed Plaintiff with rotator cuff tendonitis and impingement syndrome in his left shoulder/arm and labral tear and impingement syndrome in his right shoulder/arm, and recommended surgery on the right shoulder. (AR 453-54.)

         6. State Agency Physicians

         On November 15, 2013, P. Frye, M.D., a Disability Determinations Service medical consultant, assessed the severity of Plaintiff's impairments and projected that Plaintiff would be able to perform medium work within 12 months after his alleged onset date. (AR 103-04.) Dr. Frye opined Plaintiff could lift or carry 50 pounds occasionally and 25 pounds frequently; stand or walk for about 6 hours in an 8-hour workday; sit for about 6 hours in an 8-hour workday; and had unlimited pushing/pulling ability. (AR 104.) In assessing Plaintiff's residual functional capacity (RFC), [3] Dr. Frye opined that Plaintiff could climb ramps/stairs and ladders/ropes/scaffolds and kneel, crouch and crawl frequently; and stoop occasionally. (AR 105.)

         Upon reconsideration, on September 20, 2014, another Disability Determinations Service medical consultant, R. Mitgang, M.D., discussed the medical evidence and Plaintiff's disabling conditions and stated that “the projected RFC dated 11/15/2013 cannot be affirmed, and it appears that [Plaintiff] may actually be able to meet [Listing] 1.04, depending on current evaluations.” (AR 114.) Dr. Mitgang also requested that more recent evaluations, including treatment notes from a June 5, 2014 appointment at Stanford Healthcare, be made part of the record. (AR 114.)

         On October 6, 2014, a third Disability Determinations Service medical consultant, Charles Fina, M.D. assessed Plaintiff's current RFC (as opposed to Dr. Frye's assessment of Plaintiff's projected RFC). (AR 109-19.) Dr. Fina found Plaintiff could currently perform light work; lift or carry 20 pounds occasionally and 10 pounds frequently; stand or walk for about 6 hours in an 8hour workday; sit for about 6 hours in an 8-hour workday; and had unlimited pushing/pulling ability. (AR 116-18.) Dr. Fina opined that Plaintiff could climb ramps/stairs frequently; climb ladders/ropes/scaffolds occasionally; balance frequently; stoop and kneel occasionally; and crouch and crawl frequently. (AR 117-18.)

         B. Administrative Proceedings

         The Commissioner denied Plaintiff's application for benefits initially on November 26, 2013, and again on reconsideration on October 17, 2014. (AR 121-24, 128-32.) On October 24, 2014, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 126.)

         On August 2, 2016, Plaintiff appeared without counsel and testified before an ALJ as to his alleged disabling conditions. (AR 34-98.) The ALJ advised Plaintiff of his right to be represented by counsel at the hearing, and Plaintiff responded that he understood and wanted to proceed without counsel. (AR 36.) Plaintiff testified that he could drive, shower, and dress without assistance, and did household chores daily at his own pace. (AR 41.) Plaintiff stated that in a typical day, he would eat breakfast, see his wife off to work, read the newspaper online, and take his dog for a walk. (AR 43.) Plaintiff testified he has held multiple jobs in the past 15 years, including jobs as a pet store manager, locksmith trainee, a position driving a small box truck, delivery driver, dock manager, associate at Home Depot, and a mail carrier. (AR 46-51.)

         As to his disabling conditions, Plaintiff testified he had issues with his neck, shoulders, back, elbows, and legs. (See AR 53.) Plaintiff testified he has experienced back pain since he was in junior high school and it “comes and goes” depending on what he is doing. (AR 53.) Plaintiff stated when his back pain comes on, it starts at his lower back and moves down to both his legs and feet. (AR 54.) Since his surgery in September 2013, the pain that comes on causes Plaintiff's left leg to go numb from the knee down. (AR 54.) Plaintiff stated his back pain could occur at any time, and when his back pain starts, he would sometimes lay flat on the floor. (AR 57.) Plaintiff testified that because of the September 2013 surgery that caused left leg numbness, he now had severely damaged nerves in his left lower leg. (AR 54-55.) Plaintiff stated he had been prescribed Lyrica and Tramadol previously, but he now only took aspirin to help with his pain. (AR 60-62.) Plaintiff testified that his biggest current health problems involve his left shoulder and elbow. (AR 62-68.) Plaintiff testified he had left elbow surgery in February 2015 and left shoulder surgery in September 2015. (AR 64.) He stated he has experienced severe left shoulder pain since 2009. (AR 62.)

         Plaintiff testified he experiences stabbing pain in his toes, feet and legs, and is unable to use his right leg at all sometimes. (AR 68-69.) He experiences stabbing pain in his left leg as well. (AR 69.) Plaintiff stated he could lift about five to ten pounds, could generally stand if he had something to lean against, could wash dishes and bend over to pick things up, climb stairs slowly, and perform other activities. (AR 75-79.) Plaintiff also testified it was painful to sit at times. (AR 86.)

         A Vocational Expert (“VE”) testified at the hearing that Plaintiff had past work as a mail carrier, Dictionary of Occupational Titles (DOT) code 230.367-010, which was medium work with a specific vocational preparation (SVP)[4] of 4; a building materials sales attendant, DOT code 299.677-014, which was heavy work with a SVP of 3; a retail stock clerk, DOT code 299.367-014, which was heavy work with a SVP of 4; a tank truck driver, DOT code 903.683-018, which was medium work with a SVP of 3; a heavy truck driver, DOT code 905.663-014, which was medium work with a SVP of 4; and a truck driver helper, DOT code 905.687-010, which was heavy work with a SVP of 2. (AR 88-90.) The ALJ asked the VE to consider a person of Plaintiffs age, education, and with his work background. (AR 90.) The VE was also to assume this person could lift and carry 20 pounds occasionally and 10 pounds frequently; could sit, stand, or walk 6-8 hours in an 8-hour work day; occasionally climb ladders, ropes, or scaffolds, stoop, and kneel; frequently crouch, crawl, climb, reach overhead with the right upper extremity and finger and handle with the right upper extremity. (AR 90-91.) The VE testified that such a person could not perform Plaintiff s past relevant work. (AR 91.) The VE testified such a person could perform other jobs in the national economy, however, including: cashier II, DOT code 211.462-010, which is light work with a SVP of 2 with approximately 835, 000 jobs available in the national economy; sales attendant, DOT code 299.677-010, which is light work with a SVP of 2 with approximately 217, 000 jobs available; and fast food worker, DOT code 311.472-010, which is light work with a SVP of 2 with approximately 1, 258, 000 jobs available. (AR 91.)

         In a second hypothetical, the ALJ asked the VE to consider an individual with the limitations described in the first hypothetical except that the person could sit or stand but would need to change position about hourly. (AR 91.) The VE testified that such a person could not perform Plaintiff's past relevant work. (AR 91.) The VE testified such a person could perform other jobs in the national economy, however, including: cashier II, DOT code 211.462-010, which is light work with a SVP of 2, but with only 83, 500 jobs available in the national economy considering the limitations imposed in the second hypothetical; housekeeping cleaner, DOT code 323.687-014, which is light work with a SVP of 2 with approximately 135, 000 jobs available; and outside deliverer, DOT code 230.663-010, which is light work with a SVP of 2 with approximately 27, 000 jobs available. (AR 91-92.)

         In a third hypothetical, the ALJ asked the VE to consider an individual that could lift and carry 10 pounds occasionally and 10 pounds frequently; sit 6 hours in an 8-hour work day; stand and walk 2 hours in an 8-hour workday; occasionally stoop, crouch, crawl, climb, kneel, and balance; never climb ladders, ropes, or scaffolds; and perform occasional overhead reaching bilaterally and frequent right upper extremity finger gripping and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.