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Billups v. Berryhill

United States District Court, N.D. California

September 12, 2019

WALTER BILLUPS, Plaintiff,
v.
NANCY A. BERRYHILL, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION TO REMAND RE: DKT. NOS. 18, 23

          ELIZABETH D. LAPORTE, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Walter Billups, Jr., seeks judicial review under 42 U.S.C. § 405(g) of the Commissioner of Social Security's denial of his application for Supplemental Security Income (“SSI”). Plaintiff filed a motion for summary judgment and Defendant filed a motion for remand. Plaintiff asks the Court to grant summary judgment for Plaintiff, reverse the decision of the Commissioner, and remand with instructions to award benefits pursuant to sentence four of 42 U.S.C § 405(g). In the alternative, the Court should remand for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Defendant requests a remand for further proceedings related to the ALJ's weighing of the medical evidence. For the reasons discussed below, Plaintiff's motion is denied and Defendant's motion to remand is granted.

         I. BACKGROUND

         Plaintiff was 39 years old when he filed his initial claim for disability, dated June 1, 2009. AR 78. He completed high school through the 11th grade. AR 42. At the time of his application for benefits, Plaintiff alleged that he suffered from a learning disability, back spasms, a gunshot wound in back, hearing voices, anxiety, depression, and asthma. AR 78. Plaintiff's most recent employment was in 2009 when he worked in a temporary position at the port, worked for a janitorial cleaning service, and was in shipping at a warehouse. AR 42. Before that time, Plaintiff lived in Louisiana where he cared for his mother and was employed full-time as a manual laborer. AR 42-43.

         A. Procedural History

         On August 1, 2014, Plaintiff filed an application for SSI, alleging a disability onset date of June 1, 2009. AR 204. His application was initially denied on November 3, 2014, and upon reconsideration on March 3, 2015. AR 109-114, 116-21.

         Plaintiff requested a hearing on his application for disability insurance benefits, and administrative law judge Arthur Zeidman (the “ALJ”) held a hearing on February 21, 2016. AR 38-77. The ALJ received testimony from Plaintiff and a vocational expert. 38-77. The ALJ issued an unfavorable decision on his application on March 10, 2017. AR 12-35. Upon reconsideration, the Appeals Council denied Plaintiff's request for review of the ALJ's decision on March 29, 2018. AR 1-6. The ALJ's decision became final on that date. Plaintiff filed this lawsuit on May 24, 2018.

         B. Plaintiff's Medical History

         i. Santa Rita Jail Records

         The administrative record contains medical records from Plaintiff's incarceration in the Santa Rita Jail in Alameda County in 2013. In October 2013, Plaintiff tested positive for tuberculosis, but he was not exhibiting symptoms and treatment was not advised. AR 333. A medical information transfer form noted that Plaintiff was taking medication for hypertension, anxiety, and chronic back and knee pain. AR 335. During an intake screening, Plaintiff complained of neck and shoulder pain two times a week. AR 336.

         In a computer-generated intake screening report, the nurse performing the evaluation reported that Plaintiff was alert and oriented to person, place, and time and did not have any mobility restrictions. AR 337. The nurse noted that Plaintiff has had high blood pressure or hypertension for over five years and currently takes medication for the condition. AR 339. In this report, the nurse stated that Plaintiff complained of left shoulder pain of more than seven days duration. AR 340. Plaintiff reported having a history of mental health disorder but denied a history of suicidal thoughts or a learning disability. AR 340.

         ii. East Oakland Health Center (treating providers)

         In 2012 and 2013, Plaintiff received primary care from Ramiro Soler, M.D., of the East Oakland Health Center. Dr. Soler's treatment notes are often difficult to read but indicate that Plaintiff was being treated for knee and back pain and hypertension. AR 374, 376, 378, 384, 388, 392, 394, 396, 401-15. On February 26, 2013, Plaintiff appears to have complained of right knee pain for the first time and reported at a follow-up appointment on April 2, 2013 that the knee pain resolved. AR 415, 418. In Dr. Soler's notes from April 2, 2013, he noted that Plaintiff explained that his back pain makes it hard for him to stand or change positions in bed. AR 418. Dr. Soler often indicated that Plaintiff walked several times a week for exercise. AR 374, 376, 380, 386, 388, 390, 394.

         During a June 11, 2013 visit, Dr. Soler stated that Plaintiff had been “running daily for [sic] miles a day [and] has developed pain and swelling of knee L and R. [N]o trauma.” AR 421. Dr. Soler performed an examination of Plaintiff's knees and reported normal findings with no atrophy, aside from mild crepitation in the right knee. AR 423. At another appointment on July 16, 2013, Dr. Soler reviewed Plaintiff's X-ray results of his knees, which showed that bone alignment was within normal limits, although he has asymmetric posture and the left knee seems hyperextended. AR 425. Dr. Soler also noted that Plaintiff's examination was within normal limits. AR 425. He diagnosed knee tendinitis and recommended that Plaintiff ice his knees and complete muscle building exercises. AR 425. At another visit on August 20, 2013, Plaintiff complained of significant knee and leg pain and being unable to walk. AR 429. Dr. Soler reported that his examination of Plaintiff's left leg was within normal limits. AR 429.

         On October 23, 2013, Plaintiff sought evaluation from Dr. Soler for neck pain and shoulder swelling. AR 398. Plaintiff denied trauma or strenuous activity that might explain the shoulder discomfort. AR 435. Dr. Soler performed an examination of his shoulders and found generally normal results. AR 438. He commented that Plaintiff was likely resolving a muscle strain and had shoulder tendinitis. AR 437-38.

         On January 23, 2014, Plaintiff had an appointment with Merritt Smith, M.D. Plaintiff's physical examination was generally normal, with the exception of tenderness of his lumbar spine on inspection/palpation. AR 444-45. Dr. Smith reported that Plaintiff's gait was normal and he had the full range of motion of all joints. AR 445.

         Dr. Smith ordered X-rays of Plaintiff's spine and shoulders, which were taken on April 29, 2014. AR 503-04. The X-rays showed mild to moderate disc space narrowing with endplate spurring in the mid and lower cervical levels of his spine and prominence of the uncovertebral joints which may cause foraminal stenosis. AR 503. The lower thoracic spine exhibited minimal levoscoliosis with mild disc space narrowing. AR 503. Plaintiff had mild levoscoliosis centered on L3 of his lumbar spine. AR 503. His lower lumbar spine had facet arthropathy and no significant disc space narrowing or compression fracture. AR 503. The radiologist's overall impression was that Plaintiff had degenerative changes throughout the course of the spine, most prominent are the lower cervical spine changes with possible foraminal stenosis. AR 503. The X-rays of Plaintiff's shoulders were unremarkable. AR 504.

         In notes for an appointment on December 9, 2014, Dr. Smith stated that the physical examination was largely normal, aside from tenderness of the thoracic and lumbar spine. AR 486-87. He also conducted a mental status examination in which he reported that Plaintiff was not oriented to time, place, person, or situation. AR 487. Although Plaintiff exhibited normal judgment, Dr. Smith found that Plaintiff did not demonstrate appropriate mood or affect. AR 487. Approximately one month prior to this appointment, on October 28, 2014, Plaintiff's mental status examination was normal. AR 491.

         On March 12, 2015, Dr. Smith referred Plaintiff to an ophthalmologist for a glaucoma consultation. AR 592. At this appointment, Plaintiff also complained of his chronic back pain and pain in his right hand. AR 592. Dr. Smith ordered X-rays of Plaintiff's hands and wrists. AR 601. The X-rays showed early osteoarthritis in the first carpometacarpal and first MTP joints. AR 601.

         iii. Alameda County Medical Center (treating providers)

         Alameda County Medical Center records indicate that Rick Ochoa P.A., also provided primary care to Plaintiff for a period of time in 2012 and 2013. The first records of Plaintiff's treatment by Mr. Ochoa are from August 8, 2012. AR 372. Plaintiff reported experiencing back pain and that he was out of his medication. AR 372. Mr. Ochoa refilled his prescriptions for nifedipine, tramadolol, Vicodin, and trazodone. AR 372. On September 23, 2012, Plaintiff requested a refill of his Vicodin, which was denied with a note that he has repeatedly missed appointments and there was no record of “CURES/PAR.” AR 371. Plaintiff missed his next appointment on October 12, 2012. AR 370. Plaintiff kept his October 31, 2012 visit, during which he reported constant back pain of 7-8 out of 10. AR 368. Mr. Ochoa noted that Plaintiff's condition was stable and he needed refills on his medications. AR 368.

         Plaintiff saw Mr. Ochoa again on April 10, 2013. AR 367. Plaintiff reported being out of his medications for two months. AR 367. Mr. Ochoa noted that Plaintiff was ambulatory and his insomnia had resolved. AR 367. On August 22, 2013, Plaintiff visited Ochoa with complaints of back and left knee pain. AR 366. Plaintiff rated the pain as 9-10 on a 10-point scale. AR 366. Ochoa reported that Plaintiff stated he had new pain in his right knee, as well as swelling and stiffness. AR 366. Ochoa recommended X-rays of Plaintiff's “weight bearing knees” and use of a cane. AR 366.

         On September 30, 2013, Plaintiff had images taken of his left knee due to his history of pain and swelling. AR 359. Eric Yasumoto, M.D., reviewed the scans, which indicated no fractures, dislocations, or effusions. AR 359. They showed, however, mild tricompartmental degenerative changes. AR 359.

         On October 3, 2013, Plaintiff saw Ochoa for a review of his X-ray results and to obtain medication refills. AR 365. Ochoa noted that he was ambulatory with the use of a cane. AR 365. Plaintiff rated his back and knee pain as a 7-8 on a 10-point scale. AR 365. For his knee pain, Ochoa recommended that Plaintiff begin leg lifts to increase his knee strength. AR 365.

         On February 27, 2014, Plaintiff visited S. Portnoy, P.A., for routine primary care. AR 361. He complained of chronic low back pain, which he has experienced for the last 10 years and was caused by a gunshot wound and a work-related injury. AR 354. Plaintiff also described a history of hypertension and osteoarthritis of the knees. AR 354. He complained at the visit of coughing and night sweats. AR 354. Plaintiff initially acknowledged that he is a smoker and has been for many years, but denied using alcohol or drugs, even though a urine screening was positive for amphetamine and cocaine. AR 355. After receiving the urine screening results, Plaintiff admitted to using amphetamine and cocaine within a week of the tests. AR 355.

         iv. Sausal Creek Outpatient Stabilization Clinic

         The administrative record includes records relating to psychiatric assessments of Plaintiff that were performed at the Sausal Creek Outpatient Stabilization Clinic. AR 457-71.

         The first assessment took place on July 2014 after Plaintiff was referred by his doctor. AR 463. Plaintiff reported sometimes having thoughts of harming other people and attempting to hurt other people in the prior week. AR 463. He also stated that he had problem with sleep and his appetite, hears voices, and has a depressed mood. AR 465. He described his distress or anxiety as interfering with his daily activities a lot. AR 467.

         In assessment notes from July 14, 2016, it is noted that Plaintiff has been hearing voices since 2005 and has been depressed since 2003. AR 457. This decline in Plaintiff's mental health is reportedly connected to the death of his father and grandmother. AR 457. Plaintiff stated that his appetite has decreased, he suffers from insomnia, and he has passive suicidal ideation with no intent. AR 457. In a mental status examination, Plaintiff was alert and oriented to person, place, and time. AR 459. He was engaged, his speech was normal, his grooming was poor, and his mood was depressed. AR 459. His affect was appropriate, and his thought process was logical, but his insight and judgment were marginal. AR 459. His thought content exhibited hallucinations. AR 459. He was diagnosed with psychosis NOS, depression NOS, and cannabis abuse. AR 459.

         v. Laura J. Catlin, Psy.D. (examining psychologist)

         In a report dated September 11, 2014, Laura J. Catlin, Psy.D. provided the results of her psychological disability evaluation of Plaintiff. AR 472-82. The report's findings were based an examination of Plaintiff by Dr. Catlin, as well as various tests. AR 472. Based on the intelligence tests, Dr. Catlin concluded that Plaintiff has an IQ score of 65, which places him in the borderline to extremely low range of intellectual functioning. AR 477. In her mental status examination of Plaintiff, Dr. Catlin found that he was alert but somewhat disoriented, was marginally groomed but inappropriately dressed for the weather, his demeanor was anxious and fearful, his mood was depressed and anxious, his affect was inappropriate and labile, he reported some suicidal thoughts without plan or intent, he reported hearing voices for many years, his thought process was tangential, his thought content evidenced some perversion on negative thinking and paranoia, and his insight and judgment were impaired. AR 475-76.

         Dr. Catlin, Psy.D. diagnosed Plaintiff with schizoaffective disorder - severely depressed with paranoia. AR 479. She opined that in addition to his severe paranoia, depression, and auditory hallucinations, Plaintiff has great difficulty relating to people and is distrustful and paranoid of people in general. AR 479. She noted that he hears voices and is fearful for his safety. AR 479. As a result, she opined that he is often preoccupied by his internal stimuli even when trying to concentrate on other tasks. AR 480. Dr. Catlin further opined that Plaintiff has serious cognitive impairments with severe memory deficiencies and very low intelligence. AR 480. She concluded that he is most vulnerable when he is under an even minimal increase in mental demands. AR 480.

         As a result of this assessment, Dr. Catlin opined that Plaintiff's ability to work is severely impaired in his ability to: understand and remember short and simple work-like procedures; carry out short and simple instructions; understand and remember detailed instruction; carry out detailed instructions; maintain adequate pace and persistence to perform simple tasks; maintain attention for a two-hour segment; maintain regular attendance and be punctual within customary, usually strict tolerances; work in coordination with or proximity to others without being unduly distracted; make simply work-related decisions; complete a normal workday and workweek without interruptions from psychologically-based symptoms; maintain adequate pace and persistence to perform complex/detailed tasks; perform at a consistent pace without an unreasonable number and length of rest periods; ask simply questions or request assistance; adapt to changes in job routine; withstand the stress of a routine workday; accept instruction and respond appropriately to criticism from supervisors; get along with co-workers and peers without unduly distracting them or exhibiting behavioral extremes; interact appropriate with co-workers, supervisors, and the public on a regular basis; be aware of normal hazards and take appropriate precautions; adhere to basic standards of neatness and cleanliness; travel to unfamiliar places; and use public transportation. AR 480-81.

         Dr. Catlin further opined that Plaintiff's impairments will cause him to be absent from work more than four days a month and that he is unable to engage in any meaningful employment or obtain or retain a job. AR 481. She specifically stated that it is her opinion that Plaintiff is not malingering. AR 481.

         vi. Schuman-Liles Clinic (treating physicians)

         a. Christopher Stauffer, M.D.

         On September 5, 2014, Plaintiff began seeing Christopher Stauffer, M.D., at the Schuman-Liles Clinic for psychiatric care. AR 546. At that time, Plaintiff's primary complaint was that he was hearing voices. AR 546. Plaintiff reported depression and anxiety for the preceding 4-5 years, as well as pain issues from being shot in the back. AR 547. He also described panic-like symptoms such as feeling like he's choking, as well as having trouble sleeping and thinking about hurting himself and others. AR 547. Dr. Stauffer diagnosed Plaintiff with chronic schizoaffective disorder and he prescribed clonazepam and olanzapine. AR 548. Dr. Stauffer continued to see Plaintiff for follow-up visits on an approximately monthly basis and switched Plaintiff's medication over time based on how he was responding. AR 522-45, 667-78, 687-98. Plaintiff also received treatment from James Liles, M.D, and Michael Hipolito, M.D.. AR 662-66, 679-86.

         Dr. Stauffer completed a mental impairment questionnaire for Plaintiff on December 17, 2016. AR 714-19. In the form, Dr. Stauffer reported that Plaintiff has a diagnosis of schizoaffective disorder with an approximate onset date of 1996. AR 714. He opined that Plaintiff's prognosis was poor and chronic. AR 714. Dr. Stauffer stated that the severity of Plaintiff's mental impairment is demonstrated by the following clinical findings: severe symptoms since 1996, monotone, disheveled, malodorous, wearing bike helmet (to “keep him safe from attackers”), sunglasses throughout sessions, slowed movements, dysthymic, blunted, agitated at times, “AH, ” and history of suicidal ideation. AR 714. He stated that Plaintiff had anxiety signs and symptoms including autonomic hyperactivity, vigilance and scanning, apprehensive expectation, recurrent severe manic attacks, recurrent intrusive recollections of traumatic experience, and the complete inability to function independently outside his home. AR 715. With respect to signs and symptoms of schizophrenia, Dr. Stauffer noted delusions or hallucinations, emotional withdrawal and/or isolation, and blunt affect. AR 715.

         Dr. Stauffer also opined about Plaintiff's limitations in various areas of functioning. For understanding and memory, he opined that Plaintiff is moderately limited in his ability to remember locations and work-like procedures and understand and remember very short and simple instructions. AR 716. He opined that plaintiff is extremely limited in his ability to understand and remember detailed instructions. AR 716.

         For sustained concentration and persistence, Dr. Stauffer opined that Plaintiff is moderately limited in his ability to carry out very short and simple instructions. AR 716. He also opined that Plaintiff is markedly limited in his ability to make simple work-related decisions. AR 717. Finally, he opined that Plaintiff is extremely limited in his ability to carry out detailed instructions; maintain attention and concentration for a two-hour segment; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; the ability to sustain an ordinary routine without special supervision; the ability to work with or near others without being distracted by them; and the ability to complete a normal workday and workweek uninterrupted by psychologically based symptoms; and the ability to perform at a consistent pace without an unreasonable number/length of rest periods. AR 716-17.

         For social interaction, Dr. Stauffer opined that Plaintiff is markedly limited in his ability to ask simple questions or request assistance. He also opined that Plaintiff is extremely limited in his ability to interact appropriate with the general public, accept instructions and respond appropriately to criticism from supervisors, get along with co-workers or peers without exhibiting behavioral extremes, and lastly, the ability to maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness. AR 717.

         Regarding Plaintiff's ability to adapt, Dr. Stauffer opined that Plaintiff is moderately limited in his ability to be aware of normal hazards and take appropriate precautions in response to those hazards as well as moderately limited in the ability to travel in unfamiliar places or use public transportation. AR 717. He opined that Plaintiff is markedly limited in his ability to respond appropriately to changes in the work setting. AR 717. Finally, he opined that Plaintiff is extremely limited in his ability to set realistic goals or make plans independently of others. AR 717.

         For activities of daily living, Dr. Stauffer opined that Plaintiff is markedly limited in his ability to perform home safety and maintenance tasks and consistently self-administer medications. AR 717. He further opined that Plaintiff is extremely limited in his ability to attend to personal grooming and hygiene, pay bills and attend to personal finances, and do shopping and cook food. AT 717-18.

         Finally, Dr. Stauffer opined that Plaintiff has moderate restrictions on his activities of daily living and extreme difficulties in maintain social functioning and maintaining concentration, persistence, or pace. AR 718. He opined that Plaintiff has had four or more episodes of decompensation within a 12-month period, each lasting at least 2 weeks duration. AR 718. Dr. Stauffer further opined that Plaintiff has a current history of 1 or more years' inability to function outside a highly supportive living arrangement with an indication of continued need for such an arrangement. AR 718. He also noted that Plaintiff has an anxiety-related disorder and complete inability to function independently outside the area of his home. AR 718. He estimated that Plaintiff would be absent from work as a result of his impairments for 5 or more days per month. AR 719. Dr. Stauffer also estimated that Plaintiff would be expected to be “off task” on the job more than 30% of the time and that the intensity, persistence, and limiting effects of his conditions and symptoms are expected to fluctuate over time. AR 719.

         b. Norman Cheung, M.D. (treating physician)

         The administrative record contains records from Norman Cheung, M.D.'s treatment of Plaintiff in 2016. AR 604-20. Plaintiff's initial appointment with Dr. Cheung concerned his right ankle, which he twisted playing basketball on December 29, 2015. AR 616. Plaintiff visited the emergency room and was given a posterior splint for the ankle, but he was still experiencing pain at the time of his January 13, 2016 visit with Dr. Cheung. AR 616. Dr. Cheung's examination indicated gross swelling of the right ankle and pain on palpitation, although there was comfortable motion, less no gross instability, and neurovascularly intact. AR 616. An X-ray showed a minimally displaced oblique fracture of the lateral malleolus. AR 616. Dr. Cheung ordered a cast boot for protection, rehabilitation exercises, and a follow-up appointment. AR 616. At his next appointment on January 28, 2016, Plaintiff reported feeling fine with no pain. AR 614. An X-ray showed a stable fracture and Dr. Cheung ordered Plaintiff to continue wearing the cast boot. AR 614.

         At a further follow-up appointment on February 11, 2016, Plaintiff again reported feeling no pain in his right ankle but raised new complaints about bilateral knee pain and swelling, with the left worse than the right. AR 612. On examination of the knee, Dr. Cheung noted mild effusion, pain on palpation over the medial joint line, positive McMurray's test on the left knee, stable to stress, and neurovascularly intact. AR 612. Dr. Cheung ordered an MRI of Plaintiff's left knee. AR 613. Plaintiff's condition remained unchanged at his next appointments on February 25, 2016 and March 9, 2016, except that Plaintiff was allowed to bear weight on his right ankle and to stop physical therapy. AR 608, 610.

         According to Dr. Cheung's notes from March 30, 2016, the MRI of Plaintiff's left knee showed chondromalacia of the medial and anterior compartment, possible small tear of the medial meniscus at the posterior horn, and fat pad irritation. AR 606. Dr. Cheung encouraged Plaintiff to try physical therapy and consider a cortisone injection for the knee. AR 606. At the next and final appointment with Dr. Cheung on July 25, 2016, he noted that he discussed treatment options with Plaintiff again and, once more, Plaintiff declined a cortisone injection but agreed to try Voltaren and Ultram and to go to physical therapy. AR 604.

         vii. East Bay Pain Clinic

         a. Anthony Riley, M.D. (treating physician)

         In July 2014, Plaintiff was referred to the East Bay Pain Clinic by Dr. Nirmala Kannan for chronic low back pain management to see Anthony Riley, M.D. AR 622. At his first visit, Plaintiff described his back pain as 10/10 when he was unmedicated, which interfered with his sleep and daily activities. AR 622. Plaintiff described the pain as being mostly limited to his back with spasms, with occasional sciatica to his thighs and, on rare occasions, buckling of his legs. AR 622. Plaintiff also complained of knee pain and occasional swelling from an old baseball injury. AR 622. At the time, Plaintiff walked with a cane. AR 622. Dr. Riley noted that Plaintiff was alert and oriented with a good, believable attitude. AR 623. Dr. Riley prescribed pain Norco and tramadol, with NSAID and Soma, and ordered several imaging tests to review the condition of his spine, knees, and heart. AR 623.

         At his next appointment on August 3, 2015, Plaintiff reported that the Norco was not helping, so Dr. Riley decided to advance him to oxycodone. AR 625. Dr. Riley noted that Plaintiff had not yet been cooperative in having the prescribed imaging done of his spine, knees, and heart as they discussed at his first appointment. AR 625.

         By Plaintiff's next appointment with Dr. Riley on August 17, 2015, Plaintiff had obtained knee X-rays. AR 628. Dr. Riley opined that the images looked normal to the eye, but that they needed a radiologist to read the X-rays. AR 628. Plaintiff did not have the chest X-ray or the MRI completed as ordered. AR 628. Dr. Riley noted that Plaintiff was doing well on the current oxycodone dosage as it was keeping Plaintiff functional and he was not having side effects. AR 628. Dr. Riley and Plaintiff agreed to discontinue the tramadol prescription.

         On November 10, 2015, Dr. Riley received readings of Plaintiff's August 2015 knee X-rays. AR 634. The images showed moderate bilateral arthrosis and sent him to orthopedist for a surgery evaluation. AR 634. On December 7, 2015, Dr. Riley received Plaintiff's MRI and noted that it evidenced significant right L4-5 forminal stenosis that correlated with Plaintiff's right leg sciatica. AR 637.

         On January 4, 2016, Dr. Riley's notes reflect Plaintiff's recent right foot and ankle fracture, for which he was treated in the emergency room and referred to an orthopedic doctor. AR 640. On April 19, 2016, Plaintiff's urine screening came back positive for cocaine and EtOH (ethyl alcohol). AR 652. Dr. Riley explained that he cannot give a prescription for Oxycodone if Plaintiff uses cocaine, which he described as an occasional “party” use, and Plaintiff assured Dr. Riley that he will not test positive for cocaine in the future. AR 652. Dr. Riley refilled the Oxycodone prescription. AR 653. On May 24, 2016, Dr. Riley noted that Plaintiff's urine screen was again positive for cocaine, which was expected, but that today's test should be clear. AR 655.

         Plaintiff saw Dr. Riley again on July 26, 2016 and August 10, 2016. AR 657-61. Plaintiff continued to test positive for cocaine, so Dr. Riley informed Plaintiff that he could no longer prescribe opioids to him and would begin a tapering prescription. AR 658. Dr. Riley's notes state that Plaintiff's orthopedist Dr. Cheung was offering conservative treatment for his knee and ankle and that Plaintiff would return in two weeks for a knee steroid injection. AR 658. He also noted that Plaintiff was being seen at the Fremont Spine and Pain Center and was told that surgery would be put off for now and that he should re-try physical therapy first. AR 658.

         viii. Lesleigh Franklin, Ph.D. ...


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