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James A. v. Saul

United States District Court, N.D. California

September 23, 2019

JAMES A.,[1] Plaintiff,
v.
ANDREW M. SAUL, Commissioner, Social Security Administration, Defendant.

          ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS. 14, 19

          THOMAS S. HIXSON, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff James A. brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of Nancy A Berryhill, then-Acting Commissioner of Social Security, [2]denying Plaintiff’s claim for disability benefits. Pending before the Court are the parties’ cross-motions for summary judgment. ECF Nos. 14 (Pl.’s Mot.), 19 (Def.’s Mot.). Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having reviewed the parties’ positions, the Administrative Record (“AR”), and relevant legal authority, the Court hereby DENIES Plaintiff’s motion and GRANTS Defendant’s cross-motion for the following reasons.

         II. BACKGROUND

         A. Age, Education and Work Experience

         Plaintiff is 55 years old. AR 234. He completed the 10th grade and earned his G.E.D. AR 48, 282. In the past, he worked as a sheet metal worker journeyman. AR 70, 273.

         B. Medical Evidence

         Plaintiff injured his tailbone in a kayaking accident in 2009. AR 713. He underwent spinal surgery in June 2012, excision of a central canal tumor at the L4-5 and S1 level, L4 through S1 laminectomies, and a multilevel spinal fusion (L4 through S1 levels). AR 349-50, 358-59 (March 2012 lumbar MRI scan), 367-68, 392-93 (operative report).

         1. Del Norte Community Health Center

         Plaintiff received treatment at Del Norte Community Health Center beginning in August 2014 from Jesse Vos, PA-C., Dustin Jacot, PA, and Melody Pope, FNP, under the supervision of Warren Rehwaldt, M.D. AR 447-75, 482-510, 516-23, 612-23, 673-79, 689-90, 717-23. On August 8, 2014, Plaintiff reported chronic back pain, increased neck pain, and difficulty sleeping because of pain. AR 454-56. He exhibited intact grip strength, intact strength, intact gait and coordination, and no focal neurological deficits during these visits. AR 454, 456. PA Vos observed “mild” limitation in range of motion of his lower extremities, tenderness to palpation of his paravertebral muscles, and limited flexion and extension on toe touch. AR 455-56. PA Vos prescribed ibuprofen and Baclofen, a muscle relaxant. AR 456-57.

         On August 22, 2014, Plaintiff reported he did not experience improvement with Baclofen or ibuprofen and that his sleep was poor because of pain. AR 453. PA Vos observed Plaintiff had tenderness to palpation of his paravertebral muscles, limited lumbar motion, and limited lower extremity motion. AR 454. PA Vos diagnosed back pain status post laminectomy with spinal fusion, and chronic pain disorder. Id. PA Vos prescribed Hydrocodone. Id.

         On September 27, 2014, Plaintiff reported improved change in pain level and improved sleep with medication, but with increased nightmares. AR 451. He also reported his current medication allowed him to continue multiple activities of daily living that he otherwise would be unable to complete. Id. Plaintiff reported his pain level at 3/10 and that he was riding a bike two times per week. Id. PA Vos observed Plaintiff had tenderness to palpation of his paravertebral muscles, limited lumbar motion, and limited lower extremity motion. AR 452. PA Vos refilled Plaintiff’s Hydrocodone and Baclofen prescriptions. Id.

         On January 3, 2015, Plaintiff reported that his pain was controlled with Baclofen and Hydrocodone, and that his daily pain level, activity, and level of function “are noticeably improved when using narcotic medications.” AR 449. His pain level remained at 3/10 and he continued riding a bike. Id. PA Vos observed Plaintiff had tenderness to palpation of his paravertebral muscles, limited lumbar motion, and limited lower extremity motion. AR 450. PA Vos refilled Plaintiff’s Hydrocodone and Baclofen prescriptions. Id.

         On February 20, 2015, Plaintiff reported that his pain continued to be controlled with Baclofen and Hydrocodone, and that he continued riding a bike. AR 447. On examination, PA Vos observed Plaintiff had tenderness to palpation of his paravertebral muscles, limited lumbar motion, and limited lower extremity motion. AR 448. PA Vos refilled Plaintiff’s Hydrocodone and Baclofen prescriptions and referred him for a physical therapy evaluation for back and hip pain. Id. A February 25, 2015 hip x-ray revealed mild degenerative changes of his hips. AR 518.

         On April 10, 2015, Plaintiff reported that his pain continued to be controlled with Baclofen and Hydrocodone, but he had been unable to ride a bike due to weather and maintenance issues, although he planned to start again the following week. AR 519. PA Vos observed Plaintiff had tenderness to palpation of his paravertebral muscles, limited lumbar motion, and limited lower extremity motion. AR 520. PA Vos continued Plaintiff’s Hydrocodone and Baclofen prescriptions. Id.

         On May 7, 2015, Plaintiff reported that his pain was controlled with Baclofen, Hydrocodone, and physical therapy. AR 521. He requested continued physical therapy treatment rather than having further imaging and working up. Id. PA Vos observed he had tenderness to palpation of his paravertebral muscles, limited lumbar motion, and limited lower extremity motion. AR 523. PA Vos refilled his Hydrocodone and Baclofen prescriptions. Id.

         On July 30, 3015, Plaintiff reported falling one month prior and injuring his right knee. AR 623. Giora Praff, M.D., prescribed nonsteroidal anti-inflammatory drugs for three days and quad exercises. Id.

         On August 11, 2016, Plaintiff reported “moderate” relief with Hydrocodone but continued low back pain. AR 676. PA Jacot noted that Plaintiff had slight weakness with lower extremity flexion and palpation of the thoracic spine, but full 5/5 strength upon extension. AR 677. Plaintiff’s straight leg raise testing was negative bilaterally. Id. PA Jacot continued his prescription for Hydrocodone. Id.

         On February 4, 2017, Plaintiff reported back and neck pain. Id. He denied experiencing joint pain but complained of falling two to three times per week. AR 678. His left leg buckled when walking, and his last fall was one week prior. Id. He reported that he did not use a cane consistently but did use one to walk on “some days.” Id. NP Pope observed he had tenderness to palpation of the cervical and lumbar spine. Id. Upon Dr. Rehwaldt’s referral, Plaintiff underwent a lumbar spine CT scan in February 2017. AR 680-81. This scan detected “moderately severe” degenerative disc disease at the L5-S1 level with grade 1 anterolisthesis (slipping of the vertebra). AR 680. There was no evidence of central spinal stenosis or neural foramen stenosis. AR 681.

         On March 4, 2017, Plaintiff saw NP Pope for a follow up on his back pain. AR 689. She reported that Plaintiff moved slowly, but there was no leg drag and no limping. Id.

         On June 15, 2017, NP Pope noted a recent nerve conduction study of Plaintiff’s legs revealed large fiber neuropathy in the left leg. AR 720. During that visit, Plaintiff informed NP Pope that he “determined that he has to use the cane. He is trying to get used to using it.” Id. NP Pope ordered a cervical spine x-ray and refilled his pain medications. AR 721. The x-ray revealed mild to moderate multilevel cervical degenerative changes from the C3 to T1 levels with hypertrophy, spondylolistheses, and neuroforaminal stenosis (narrowing), most predominant at the C3-4 an C6-7 levels. AR 716.

         At a July 20, 2017 visit with NP Pope, Plaintiff had limited range of motion in his neck and reported that he could not tolerate sitting for more than 20 minutes. AR 721-22. Plaintiff was able to stand and move in the examination room. AR 722. NP Pope continued his Baclofen prescription and counseled him on weight management. Id.

         On July 27, 2017, Dr. Rehwaldt and NP Pope completed a check-box form assessment of Plaintiff’s physical work capacities. AR 725. They opined that Plaintiff could not perform even sedentary work activities.[3] Id. Plaintiff could sit for less an hour in an eight-hour workday and stand/walk for less than an hour in an eight-hour workday. Id. He required the use of a cane because of chronic back, hip and knee pain, and an increase in falls. Id. The cane was medically necessary as of February 4, 2017. Id. Dr. Rehwaldt and NP Pope concluded Plaintiff would miss four or more days of work a month because of his chronic pain disorder, and that he was unable to concentrate on work due to interruptions from his chronic pain disorder more than 30% of a workday. Id.

         2. Pacific Northwest Physical Therapy

         Plaintiff underwent physical therapy at Pacific Northwest between April and July 2015 and September 2015 and February 2016. AR 528-29, 565-66, 624-25, 670-71.

         At an initial evaluation on April 2, 2015, Plaintiff reported increased left leg pain since his surgery, which was aggravated by sitting, standing, lying down, walking climbing stairs, performing household activities, squatting, and sustained bending. AR 528. He also reported he occasionally lost his balance while walking and fell when his left leg “becomes suddenly weak.” Id. Examination revealed impaired motor control of his left lower extremity during open chain activities and 3 strength in his left lower extremity. Id. At a subsequent visit on April 24, 2015, Plaintiff reported improved balance on his left lower extremity and improved control of his left lower extremity. AR 530, 539. The therapist noted “[g]ood tolerance of exercise.” AR 538.

         At his May through July 2015 physical therapy sessions, Plaintiff had some improvement with physical therapy but still had difficulty sleeping because of pain, occasional loss of balance, and difficulty with “upright activities (standing/walking/household activities).” AR 541, 545, 547, 549, 551, 553, 555, 557, 559, 561, 563, 565. He had frequent muscle spasms in all muscle groups of his left lower extremity during movement. See e.g., AR 563, 565, 588, 590. However, Plaintiff reported improved balance and acknowledged that he had no falls since beginning physical therapy. AR 563. Plaintiff progressed from a half to a full squat and was able to perform higher-level balance challenges. AR 564. His physical therapist reported that his lower extremity balance and coordination would likely continue to improve with physical therapy. Id.

         Plaintiff participated in additional rounds of physical therapy in September through November 2015 and January through February 2016. AR 624-71. He consistently reported difficulties with upright activities such as standing and walking and reported waking up frequently because of pain. AR 624, 626, 628, 630, 632, 634, 636, 638, 640, 642, 644, 646, 648, 650, 652, 658, 660, 662, 664, 666, 668, 670. He also reported that he felt stronger and had better balance since starting physical therapy. Id. (all). Plaintiff displayed at least 4 strength in his left lower extremity and progress with balance and functional abilities. AR 670-71. He continued to demonstrate impaired motor control of his left lower extremity during activities because of frequent spasms. AR 632, 634, 636, 638, 640, 642, 644, 646, 648, 650, 652, 658, 660, 662, 664, 666, 668, 670.

         At the conclusion of physical therapy in February 2016, Plaintiff reported that he did not have any recent history of falls. AR 624. He reported difficulties with upright activities but stated that his balance and strength was improved. Id. His therapist found he did well with higher-level balance challenges, noting that his balance and coordination would likely continue to improve with physical therapy. AR 625.

         3. Agency Reviews

         a. Sohelia Benrazavi, M.D.

         In January 2014, Sohelia Benrazavi, M.D., performed a consultative orthopedic examination of Plaintiff. AR 431-43. Dr. Benrazavi’s review of Plaintiff’s background records was limited to May and June 2012 records related to his June 2012 spinal surgery. AR 438. Plaintiff stated he underwent a spinal fusion procedure in June 2012 but had continued back pain and left foot numbness. AR 435. He rated his pain as a “seven out of ten without pain medication and “four or five out of ten” when he took Advil. Id. Dr. Benrazavi reported that Plaintiff could sit and stand with normal posture, get on and off the examination table without difficulty, walk without an assistive device, and walk on toes and heels and perform tandem gait. AR 438. Plaintiff had slight weakness in his left big toe and foot but had full 5/5 strength elsewhere in his upper and lower extremities. AR 437. Dr. Benrazavi noted that Plaintiff had normal muscle bulk and no evidence of atrophy. Id. He had normal range of motion in his shoulders, elbows, wrists, hips, knees, and ankles. Id. Dr. Benrazavi described Plaintiff’s cervical spine range of motion as “mildly diminished” but reported no evidence of cervical radiculopathy. AR 437, 439. Plaintiff also had diminished sensation in his left lower extremity but normal sensation elsewhere in his extremities. AR 438. He had intact reflexes. AR 437.

         Based on the available information, Dr. Benrazavi opined Plaintiff retained the capacity to perform work at the following exertional levels: lifting up to 20 pounds occasionally; carrying up to 10 pounds frequently; sit/stand/walk 6 hours at one time and up to 6 hours in an 8-hour work day; use his hands frequently for reaching, handling, fingering, feeling, and pushing/pulling; use his feet frequently for operation of foot controls; and perform activities including shopping, traveling, ambulating without an assistive device, walk a block at a reasonable pace, use public transportation, climb steps at a reasonable pace, prepare simple meals and feed himself, care for his personal hygiene, and sort, handle and use paper/files. AR 431-34; 440-42.

         b. ...


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