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Gomez v. Saul

United States District Court, E.D. California

October 15, 2019

ZEFERINA ADELINA GOMEZ, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          ORDER ON PLAINTIFF'S SOCIAL SECURITY COMPLAINT (Doc. 1)

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On August 24, 2018, Plaintiff Zeferina Adelina Gomez (“Plaintiff) 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 her 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 22, 2014, Plaintiff protectively filed an application for DIB payments, alleging she became disabled on February 2, 2012 due to a herniated disc, lumbar spine impairment, severe back pain, cervical spine impairment, and headaches. (Administrative Record (“AR”) 19, 21-22, 55, 70, 246-50, 261.) Plaintiff was born on August 4, 1967 and was 44 years old as of the alleged onset date. (AR 28, 55, 70, 246, 261.) Plaintiff has a second-grade education and only speaks Spanish, and has past work experience in food service, and last worked full-time in 2011. (AR 28, 42-43, 322.)

         A. Relevant Medical Evidence

         1. Madera Community Hospital

         On February 2, 2012, Plaintiff was the passenger in a car that was rear-ended while making a right-hand turn. (AR 360-61.) Plaintiff experienced immediate pain in her lower back, neck, and right arm, and was transported to Madera Community Hospital. (AR 361.) The emergency room physician ordered an X-ray of Plaintiff and found mild degenerative narrowing of the L4-L5 disc interspace. (AR 422.) The X-ray was otherwise “unremarkable” with no fractures and no evidence of shoulder or elbow dislocation. (AR 422.)

         Plaintiff returned to Madera Community Hospital after the accident for occasional outpatient treatment and physical therapy. (See AR 560-620.) On March 1, 2012, the attending physical therapist directed that Plaintiff return for physical therapy twice a week for four weeks and recommended home exercise and biomechanics for self-care. (AR 608-09.) An MRI of Plaintiff's back on February 25, 2015, showed that Plaintiff “broad moderate posterior disk bulging” at ¶ 4-L5 and L5-S1, and normal lumbar vertebral alignment. (AR 576.) On March 16, 2015, the attending physician noted that Plaintiff suffered from “debilitating and disabling chronic lower back pain mostly over her right side, ” and recommended lumbar epidural steroid injections. (AR 575.) Plaintiff received the steroid injections on May 18, 2015. (AR 572-73.)

         On July 17, 2015, Plaintiff returned to Madera Community Hospital for a post-operative visit. (AR 566.) Plaintiff reported “[p]ersistent unrelenting lower back pain, ” and reported that the May 18 steroid injection failed to give her any relief and caused “swelling of [her] face with what she describes like pimples.” (AR 566.) The attending physician noted that further steroid injections would be deferred indefinitely “due to a possibility of adverse allergic reaction” and that surgical procedures would be explored. (AR 566.)

         2. Donald A. Poladian, D.C.

         On February 17, 2012, Plaintiff established care with chiropractor Donald Poladian. (AR 380-82.) Plaintiff saw Dr. Poladian multiple times each month from February 2012 through April 2013. (See AR 370-81.) Dr. Poladian's notes memorializing those visits are largely illegible, except for the dates of the visits, and the medical evidence does not contain detailed records from most of the visits. (See AR 370-81.)

         At the initial visit on February 17, 2012, Dr. Poladian noted Plaintiff reported pain in her neck, mid-back, area between her shoulder blades, joints, upper right arm, right forearm, right hand, lower back, buttocks, hip joint, and right leg. (AR 383.) Plaintiff reported the pain in her lower back was worse when she was sitting, bending, or laying down. (AR 383.) Plaintiff also reported a stiff neck, numbness of her right foot and toes, and that she could not raise her right arm. (AR 383.) Dr. Poladian diagnosed Plaintiff with cervicalgia, thoracic sprain/strain, pain in thoracic spine, sciatica, lumbar sprain/strain, and lumbalgia. (AR 384.)

         On December 28, 2012, Dr. Poladian wrote a letter stating that Plaintiff had not returned to work since her accident in February and opining that Plaintiff was “unable, at this time, to return to work as a result of her injuries.” (AR 398.) On April 4, 2013, Dr. Poladian wrote an updated opinion letter. (AR 424-28.) In the updated letter, Dr. Poladian stated that he had examined Plaintiff earlier that day and she reported her symptoms included neck pain and stiffness that caused “serious diminution in her capacity to carry out daily activities.” (AR 425) (emphasis in original). Dr. Poladian stated Plaintiff reported aching pain in her upper back that radiates into her mid-back, sharp pain in her mid-back, and sharp pain in her lower back, which Plaintiff stated precluded carrying out activities of daily living. (AR 425.) Dr. Poladian noted that Plaintiff had mild-to-moderate restriction in range of motion of her cervical spine, and severe restriction in range of motion of her lumbar spine. (AR 426-27.) Dr. Poladian diagnosed Plaintiff with thoracic sprain/strain; lumbar sprain/strain; lumbago (lower back pain); pain in thoracic spine; cervicalgia (neck pain); lumbar disc displacement; thoracic or lumbosacral neuritis or radiculitis; and sciatica. (AR 427-28.) Dr. Poladian opined that Plaintiff's impairments had a “high probability” of causing further problems, including “aggravation brought on by normal activities of daily living or new trauma.” (AR 428.)

         3. Michael J. Esposito, M.D.

         On July 17, 2012, Plaintiff established care with orthopedic surgeon Michael Esposito. (AR 360-68.) Dr. Esposito examined Plaintiff after her February 2, 2012 car accident, and Plaintiff complained of “constant pain in the low back, with radiating pain into the right leg, posterior calf and foot, and mild pain in the left lower extremity, ” “numbness and burning in her right calf and foot, ” and difficulty sitting, standing, and walking. (AR 360.) Dr. Esposito noted that at the time of the accident, Plaintiff was not working. (AR 361.) On examination, Dr. Esposito found that Plaintiff had “focal tenderness along the L3-4, L4-5, and L5-S1 posterior spinous processes and paraspinal muscles, ” no focal neurological deficit, “mild motor power weakness” on the right side, and decreased sensation in the L5-S1 nerve root distribution to her right foot. (AR 362.) Dr. Esposito diagnosed Plaintiff with lumbar herniated nucleus pulposus at ¶ 5-S1 and right L5 radiculopathy. (AR 362.) Dr. Esposito recommended Plaintiff undergo a lumbar transforaminal epidural steroid injection from the right at ¶ 5-S1, and prescribed Ultracet for pain. (AR 362-63.)

         4. Robert Simons, M.D.

         On August 5, 2015, Plaintiff established care with neurosurgeon Robert Simons. (AR 639- 41.) Dr. Simons' physician assistant noted that Plaintiff neck pain, back pain, muscle rigidity, limited neck motion, right deltoid pain, irregular gait, decreased sensation to right let and foot, ability to heel/toe walk for short duration only, and diminished reflexes. (AR 640.) Dr. Simons ordered an MRI on August 27, 2015, which showed disc herniations at ¶ 4-L5 and L5-S1 “with superimposed mild central stenosis at ¶ 4-5.” (AR 646.)

         Dr. Simons next examined Plaintiff on September 14, 2015. (AR 637.) Dr. Simons noted that Plaintiff's general examination was “unremarkable” but that she had mild disc bulging at ¶ 4-L5 and L5-S1. (AR 637.) Dr. Simons noted that surgery would be inappropriate in the cervical spine, but may be helpful in the lumbar area. (AR 637.) Dr. Simons diagnosed Plaintiff with lumbar radiculopathy, prolapsed lumbar intervertebral disc, and cervical radiculopathy. (AR 638.)

         On February 1, 2016, Dr. Simons noted that Plaintiff reported radiating pain to her right buttocks into the posterior right lower extremity and associated numbness in the foot and leg. (AR 635.) Dr. Simons noted that Plaintiff had “not worked for a lengthy period [of] time and she feels unable to do physical work or prolonged standing.” (AR 635.) Dr. Simons ordered an MRI on March 8, 2016, which showed that Plaintiff had disc herniations at ¶ 4-L5 and L5-S1 with mild impingement on the bilateral L5 nerve roots and impingement on the S1 nerve root. (AR 642-43.) On March 30, 2016, Dr. Simons stated that Plaintiff had “some features suggesting surgery” and that Plaintiff's condition remained generally unchanged. (See AR 632.) Dr. Simons recommended surgery and Plaintiff underwent a lumbar laminotomy at ¶ 5-S1 on April 28, 2016. (AR 632, 669.)

         Plaintiff visited Dr. Simons for post-operative and follow-up visits multiple times from May 2016 through July 2017. (See AR 667, 885, 889-90, 892, 894, 907-909.) At a June 8, 2016 follow-up appointment, Dr. Simons noted that Plaintiff continued to have right leg pain after the laminotomoy, but that her surgical incision was healing well. (AR 908.) Dr. Simons stated he would send Plaintiff for physical therapy and would see her again in 6-8 weeks. (AR 908.) On August 24, 2016, Plaintiff reported that she still had right leg pain, the physical therapy had “made her ‘worse, '” and she had “never improved” after the surgery. (AR 894.) Dr. Simons recommended epidural steroid injections. (AR 895.)

         On October 26, 2016, on examination of Plaintiff, Dr. Simons found “no percussion tenderness in her lumbar spine” and that her lumbar wound was “unremarkable.” (AR 892.) Dr. Simons noted that Plaintiff had “long-standing neural compression” and “may be experiencing chronic neuropathic pain.” (AR 892.) Dr. Simons opined that Plaintiff did “not seem able to do gainful employment at this point in time, ” and directed Plaintiff to return for a follow-up appointment in about six months. (AR 892.) On July 5, 2017, Dr. Simons noted Plaintiff's condition was generally unchanged and stated that “[i]t is doubtful that . . . direct reexploration lumbar spine surgery would be helpful, ” but that there were surgical options available. (AR 885.) Dr. Simons stated that Plaintiff had “right lower extremity neuropathic pain/nerve damage due to the fact that surgery in the lumbar spine was delayed by approximately 4 years prior to intervention.” (AR 885.)

         Dr. Simons completed two spinal impairment questionnaires for Plaintiff in 2016 and 2017. (AR 725-30, 867-72.) In the first questionnaire, completed August 26, 2016, Dr. Simons diagnosed Plaintiff with lumbar radiculopathy, lumbar pain, and cervical radiculopathy. (AR 725.) Dr. Simons opined that Plaintiff could sit for 3-4 hours in an 8-hour workday and stand and/or walk for 3-4 hours in an 8-hour workday. (AR 727.) Dr. Simons stated that it was medically necessary for Plaintiff to avoid continuous sitting in an 8-hour workday and needed to get up and move around every 4 hours, but did not need to elevate her legs while sitting. (AR 728.) Dr. Simons opined that Plaintiff could lift and/or carry between 5 and 20 pounds occasionally and between 20 and over 50 pounds never or rarely. (AR 728.) Dr. Simons opined that Plaintiff could “ambulate effectively” and had no significant limitations in reaching, handling, or fingering. (AR 728-29.) Dr. Simons stated that vigorous activity would exacerbate Plaintiff's condition, her symptoms would increase if she were placed in a competitive work environment, Plaintiff would experience pain occasionally during an 8-hour workday, she would need to take unscheduled breaks to rest during the day, and she would be absent from work two to three times per month. (AR 729.) Dr. Simons stated that his opinion applied only as of August 5, 2015, and not before that date. (AR 730.)

         In his second questionnaire, completed February 18, 2017, Dr. Simons opined that Plaintiff could sit for 4-5 hours in an 8-hour workday and stand and/or walk for 3-4 hours in an 8-hour workday. (AR 869.) Dr. Simons stated that it was medically necessary for Plaintiff to avoid continuous sitting in an 8-hour workday and needed to get up and move around every 4-5 hours, but did not need to elevate her legs while sitting. (AR 870.) Dr. Simons opined that Plaintiff could lift and/or carry between 0 and 10 pounds frequently, between 10 and 20 pounds occasionally and between 20 and over 50 pounds never or rarely. (AR 870.) Dr. Simons opined that Plaintiff could “ambulate effectively” and had no significant limitations in reaching, handling, or fingering. (AR 870-71.) Dr. Simons stated that work activity would exacerbate Plaintiff's condition, her symptoms would increase if she were placed in a competitive work environment, Plaintiff would experience pain rarely during an 8-hour workday, she would need to take unscheduled breaks to rest 3 times per day for about 10-15 minutes each time, and she would be absent from work once per month. (AR 871-72.) Dr. Simons stated that this second opinion applied as far back as February 2, 2012, Plaintiff's alleged onset date. (AR 872.)

         5. Tomas Rios, M.D.

         On January 14, 2015, Plaintiff attended a consultative examination with internist Tomas Rios. (AR 552-56.) Dr. Rios stated that Plaintiff was able to help with household chores including meal preparation, cooking, and light housekeeping, and was “independent with her activities of daily living.” (AR 552.) Dr. Rios noted that Plaintiff had “tenderness on palpation of the mid lumbar spine” and tenderness in her neck, and diagnosed Plaintiff with cervical sprain/strain injury, lumbar sprain/strain injury, and degenerative disk disease of the cervical and lumbar spine. (AR 555.) Dr. Rios found that Plaintiff had multi-level disk disease at the lumbar and cervical spine but that Plaintiff's “range of motion remains preserved and no findings of nerve root compromise” were noted. (AR 555.) Dr. Rios opined that Plaintiff could stand or walk for six hours; had no limitations for sitting; did not require an assistive device; could lift and/or carry 20 pounds occasionally and 10 pounds frequently; could frequently climb steps, stairs, ladders, scaffolds, and ropes, and kneel and crawl; could occasionally stoop and crouch; and had no limitations on manipulative activities or workplace environment activities. (AR 555-56.)

         6. State Agency Physicians

         On January 28, 2015, Judy Panek, M.D., a Disability Determinations Service medical consultant, assessed the severity of Plaintiff's impairments. (AR 64-66.) In assessing Plaintiff's residual functional capacity (RFC), [2] Dr. Panek opined that Plaintiff could lift or carry 20 pounds occasionally and 10 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 64.) Dr. Panek found Plaintiff could climb ramps/stairs, balance, kneel, and crawl frequently; and climb ladders/ropes/scaffolds, stoop, and crouch occasionally. (AR 64-65.)

         Upon reconsideration, on May 21, 2015, another Disability Determinations Service medical consultant, A. Ahmed, M.D., affirmed Dr. Panek's findings as to the severity of Plaintiff's impairments. (AR 77-80.)

         B. Administrative Proceedings

         The Commissioner denied Plaintiff's application for benefits initially on January 29, 2015, and again on reconsideration on May 22, 2015. (AR 85-90, 92-96.) On July 2, 2015, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 97-98.)

         On August 21, 2014, Plaintiff appeared with counsel and testified before an ALJ as to her alleged disabling conditions. (AR 37-54.) At the hearing, Plaintiff was assisted by an interpreter because Plaintiff only speaks Spanish. (AR 39-41.) Plaintiff testified she is not a U.S. citizen and has a green card that will expire in 2024. (AR 41-42.) Plaintiff testified that she has not worked for a long time because she cannot lift things and has physical impairments. (AR 42.) Plaintiff stated she had surgery on her waist and back, but the doctor said she cannot have further necessary surgery yet because she has nerve damage. (AR 42-43.) Plaintiff testified she takes Naproxen for pain and her daughter and husband do the household chores. (AR 43.) She went to Mexico for one day in June 2017 to visit her mom. (AR 43-44.) Plaintiff testified that she cannot stand for a long time and still has pain in her head and legs, and that her feet go numb at times. (AR 44.) She stated her problems were caused by a car accident. (AR 45.) Plaintiff further testified she can stand for about 30 minutes, cannot lift a gallon of milk, cannot tie her shoes or do other daily activities because of the pain, and cannot work. (AR 45-47.)

         A Vocational Expert (“VE”) testified at the hearing that Plaintiff had past work as a sorter, Dictionary of Occupational Titles (DOT) code 59.687-186, which was light work with a specific vocational preparation (SVP)[3] of 2; and a packer, DOT code 525.687-082, which was heavy work with a SVP of 2. (AR 48-49.) The ALJ asked the VE to consider a person of Plaintiff's age, education, and with her work background. (AR 49.) The VE was also to assume this person was illiterate in the English language, and could perform sedentary work except would be limited to lifting or carrying 10 pounds occasionally, sitting for 4 hours, standing or walking for 1 hour each, could never climb, balance, stool, kneel, crouch, or crawl, and would need unscheduled rest breaks that would cause her to be off task 20 percent of the workday. (AR 49.) The VE testified that such a person could not perform any jobs. (AR 49.)

         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 perform light work but could never climb ladders, ropes, and scaffolds, could occasionally climb ramps and stairs, could occasionally balance, stoop, kneel, or crouch, could never crawl, and could never work around hazards like unprotected heights. (AR 49-50.) The VE testified that such an individual could perform Plaintiff's past relevant work. (AR 50.) The VE testified the individual could also perform other jobs in the national economy, including: packing line worker, DOT code 753.687-038, which is light work with a SVP of 2 and over 600, 000 jobs available in the national economy; packing inspector, DOT code 753.687-038, which is light work with a SVP of 2 and over 300, 000 jobs available; and sorter, which is light work with a SVP of 2 and over 500, 000 jobs available. (AR 50.)

         Plaintiff's counsel then asked the VE to consider additional hypotheticals. (AR 51-52.) Plaintiff's counsel asked the VE to consider an individual with the limitations described in the ALJ's second hypothetical, but who would need to change positions between sitting and standing twice every hour. (AR 51.) The VE responded that the individual could perform the job of sorter. (AR 51.) In a fourth hypothetical, Plaintiff's counsel asked the VE to consider an individual with the limitations described in the ALJ's second hypothetical, but who could only occasionally use their right dominant hand to handle, finger, and feel, and could occasionally reach on the right. (AR 51.) The VE testified that such an individual could not perform any work. (AR 52.) Finally, in a fifth hypothetical, Plaintiff's counsel asked the VE to consider an individual with the limitations described in the ALJ's second hypothetical, but who would have no “assembly line pace, or strict production quotas.” (AR 52.) The VE testified that such an individual could not perform the packing line worker or packing inspector jobs. (AR 52.)

         C. The ALJ's Decision

         In a decision dated September 20, 2017, the ALJ found that Plaintiff was not disabled, as defined by the Act. (AR 19-30.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. § 404.1520. (AR 21-30.) The ALJ decided that Plaintiff had not engaged in substantial gainful activity from February 2, 2012, the alleged onset date, through December 31, 2016, the date last insured (step one). (AR 21.) At step two, the ALJ found that Plaintiff had the severe impairment of “degenerative disc disease of the cervical and lumbar spine.” (AR 21.) The ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the Listings (step three). (AR 21.)

         The ALJ assessed Plaintiff's RFC and applied the RFC assessment at steps four and five. See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three to step four, we assess your residual functional capacity … We use this residual functional capacity assessment at both step four and step five when we ...


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