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Vasquez v. Colvin

United States District Court, Ninth Circuit

January 8, 2014

Carla Vasquez, Plaintiff,
Carolyn W. Colvin, Commissioner of Social Security, Defendant.


BRIDGET S. BADE, Magistrate Judge.

Carla Vasquez (Plaintiff) seeks judicial review of the final decision of the Commissioner of Social Security (the Commissioner), denying her application for disability insurance benefits under the Social Security Act (the Act). The parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and have filed briefs in accordance with Local Rule of Civil Procedure 16.1. For the following reasons, the Court affirms the Commissioner's decision.

I. Procedural Background

On March 29, 2010, Plaintiff applied for disability insurance benefits under Titles II and XVI of the Act. 42 U.S.C. § 401-34. (Tr. 203.)[1] Plaintiff alleged that she had been disabled since January 1, 2009, due to a back injury, degenerative disc disease, and depression. (Tr. 203-09, 222.) After the Social Security Administration (SSA) denied Plaintiff's initial application and her request for reconsideration, she requested a hearing before an administrative law judge (ALJ). After conducting a hearing, the ALJ issued a decision finding Plaintiff not disabled under the Act. (Tr. 84-93.) This decision became the final decision of the Commissioner when the Social Security Administration Appeals Council denied Plaintiff's request for review. (Tr. 1-5); see 20 C.F.R. § 404.981 (explaining the effect of a disposition by the Appeals Council.) Plaintiff now seeks judicial review of this decision pursuant to 42 U.S.C. § 405(g).

II. Medical Record

The record before the Court establishes the following history of diagnosis and treatment related to Plaintiff's back injury and mental health. The record also includes opinions from State Agency Physicians who either examined Plaintiff or reviewed the records related to her physical and mental health, but who did not provide treatment.

A. Records Related to Physical Health

1. Treating Physician Khalid Sethi, M.D.

Plaintiff saw Dr. Khalid Sethi for back pain in 2009. In February 2009, an MRI of Plaintiff's back showed a herniated disc with a mass effect on a nerve root. (Tr. 356-57.) On March 21, 2009, Dr. Sethi operated on Plaintiff's back. (Tr. 479.) During a follow-up appointment in late March 2009, Plaintiff reported that she was "doing well, " but was experiencing "moderate low back pain." (Tr. 353.) Dr. Sethi reported that on examination Plaintiff was alert, cooperative, and in no obvious distress. ( Id. ) Dr. Sethi noted that Plaintiff had a mildly antalgic gait (a limp), but good leg strength. He prescribed narcotic pain medication and physical therapy. ( Id. )

During a May 12, 2009 office visit with Dr. Sethi, Plaintiff reported "mild tolerable" discomfort but had "no active complaints." (Tr. 352.) Dr. Sethi observed that Plaintiff had "excellent strength" in her arms and legs with "no focal myotomal weakness, " and a stable gait. ( Id. ) Dr. Sethi opined that Plaintiff was doing "quite well" and stated that he would continue to see her on a routine basis. ( Id. )

During a November 10, 2009 office visit, Plaintiff reported that she had recently been experiencing numbness in her left foot and pain in her back that radiated into her right leg and foot. (Tr. 351.) Dr. Sethi reported that on examination, Plaintiff had "some palpable spasms and point tenderness" in her lower back, a positive straight leg raise test on the right side, and decreased sensation in the right nerve distribution, but full 5/5 leg strength and a "steady and stable" gait. (Tr. 351.) Dr. Sethi ordered an MRI, which showed signs of the prior surgery, but no evidence of residual or recurrent disc herniation. (Tr. 372.) During an examination later that month, Dr. Sethi noted that Plaintiff had some palpable muscle spasms, but she had negative straight leg raise tests, good muscle strength, and a steady gait. (Tr. 350.) Dr. Sethi noted Plaintiff's report that past epidural injections did not relieve her pain and that physical therapy and medication provided "mild relief." ( Id. ) He started her on anti-depressant medication to "calm down some of the nerve and burning issues." ( Id. )

In January 2010, Plaintiff returned to Dr. Sethi and reported continuing lower back pain with right leg radiculopathy. (Tr. 349.) She also reported numbness and burning in her left thigh, which traveled to her left foot. Plaintiff denied any gross weakness. ( Id. ) Dr. Sethi reported that on examination, Plaintiff had a "quite steady and stable gait, " she was "limited in extreme of forward flexion and extension, " and had mild spasm. ( Id. ) She had a negative straight leg raise test and had 5/5 strength in her lower extremities. ( Id. ) In February 2010, an MRI showed recurrent nerve root encroachment. (Tr. 348 (duplicated at Tr. 478).) Dr. Sethi recommended "redo decompression and stabilization at L5-S1." (Tr. 348.) He noted that Plaintiff was relocating to Arizona and would seek treatment there. ( Id. )

2. Treating Physician Paul LaPrade, Jr., M.D.

In April 2010, Plaintiff saw Dr. Paul LaPrade at Southwestern Neurosurgery in Arizona for low back and leg pain. (Tr. 360.) She also reported depression and a past history of migraine headaches. ( Id. ) Plaintiff reported that her pain was worse when she was sitting or standing for an extended period of time. Dr. LaPrade reported that on examination Plaintiff was alert, coherent, and in no acute distress, with negative straight leg raise tests, full 5/5 motor strength in her lower extremities, and had intact sensation. Because Plaintiff declined epidural injections due to skin irritation caused by injections, Dr. LaPrade recommended "redo right L5-S1 decompression with microdiskectomy, " which he performed in May 2010. (Tr. 360-63 (duplicated in part at Tr. 468-69); see also Tr. 371.) Following Plaintiff's surgery, on May 20, 2010, Dr. LaPrade noted that Plaintiff had "some spasms in her right buttock and back, " but that her leg was "basically pain free." Plaintiff was taking one Vicodin per day. (Tr. 364 (duplicated at Tr. 471).)

In June 2010, Plaintiff reported to a physician assistant at Dr. LaPrade's office that she experienced some lower back and right buttock pain if she sat for a long time, but that her right leg pain was "basically gone." (Tr. 470.) Plaintiff reported taking Vicodin about twice per day when she felt sore. The physician assistant observed that Plaintiff was "doing quite well." (Tr. 470.)

3. Treating Physician Dennis Roy Parker, D.O.

Plaintiff received treatment from Dr. Dennis Roy Parker during late 2010 and early 2011.[2] (Tr. 448-59, 462-63.) She continued to receive medication to manage her low back pain during that time. Plaintiff occasionally reported headaches. (Tr. 448-59, 462-63.) Plaintiff reported lower back pain, burning, muscle spasms, and some radiating pain. (Tr. 446, 454, 456.) Treatment notes indicated that Plaintiff sometimes had "vertebral tenderness, " but had a normal gait, posture, range of motion, and strength. (Tr. 445, 454, 458, 463.) In May 2011, an MRI of her brain and pituitary was normal. (Tr. 460.)

4. Examining Physician Brian Briggs, M.D.

In May 2010, Plaintiff saw Dr. Brian Briggs for a physical evaluation related to her Social Security claim. (Tr. 377.) Plaintiff complained of low back pain. (Tr. 377.) Dr. Briggs noted that Plaintiff was fourteen days post back surgery. He reported that on examination Plaintiff exhibited a normal ability to follow simple instructions. She walked with an antalgic gait and had reduced range of motion in her back due to the recent surgery, but she could hop, squat, and tandem walk, heel/toe walk, and she exhibited intact sensation, normal reflexes, and full 5/5 strength and regular range of motion in her arms and legs. (Tr. 377-78.) Dr. Briggs did not perform straight leg raise tests due to the recent surgery. X-rays of Plaintiff's back were normal. Dr. Briggs declined to assess Plaintiff's functional abilities in view of the recent surgery; however, he opined that she did not have any conditions that would impose limitations for twelve continuous months. (Tr. 374, 377-81.)

5. State Agency Examining Physician John Prieve, D.O.

On October 26, 2010, Plaintiff was examined by state agency physician John Prieve in connection with the Social Security claim. She reported to Dr. Prieve that she could walk up to a half-mile, stand for one hour at a time, and sit for up to thirty minutes at a time (with constant shifting). (Tr. 406.) She further reported that she handled her own self-care and did some light housework. She stated that she avoided heavy work, lifting, and bending. (Tr. 407.) Dr. Prieve noted that Plaintiff had an "antalgic, short-spaced regular gait, " and that she could tandem walk, toe walk, heel walk, hop on either foot (but complained of pain), and squat normally (but complained of pain). (Tr. 407.) After examining Plaintiff, Dr. Prieve opined that in an eight-hour day Plaintiff could: lift twenty pounds occasionally and ten pounds frequently; sit for four to six hours; stand/walk for four hours intermittently; occasionally climb, stoop, kneel, crouch, and crawl; and frequently reach, handle, finger, and feel. (Tr. 406-11.)

6. State Agency Reviewing Physicians Schenk and Disney

In June 2010, state agency physician Paul Schenk, M.D., reviewed the record and opined that Plaintiff had not shown severe physical impairments. (Tr. 109-10.) In November 2010, state agency physician Thomas Disney, M.D. reviewed the record and opined that Plaintiff could occasionally lift/carry twenty pounds, frequently lift/carry ten pounds, stand/walk four hours, sit for four to six hours (alternating sitting and standing), occasionally climb ladder/ropes/scaffolds, occasionally stoop/crouch/kneel, and could frequently balance. (Tr. 124-25.)

7. Treating Physician Lawrence M. Kutz, D.O.

In August 2011, Plaintiff saw Dr. Lawrence Kutz for back pain. He reported that on examination Plaintiff was in no acute distress, had a mildly antalgic gait, moderate right-side tenderness, and positive straight leg raising on the right, but normal range of motion in her back and full 5/5 muscle strength. Dr. Kutz ordered nerve conduction studies, which showed results consistent with radiculopathy. An MRI showed small disc protrusion and scarring around nerve roots at two levels of her spine. Dr. Kutz prescribed nerve pain medication and opined that she was an excellent candidate for lumbar epidural injections. (Tr. 481-83.)

B. Mental Health Records

1. Examining Psychologist Carl Mansfield, Ph.D.

In June 2010, Plaintiff saw Dr. Carl Mansfield for a psychological evaluation related to her Social Security claim. Plaintiff reported a ten-to-fifteen-year history of depression. (Tr. 385.) She stated that she had "a little problem with memory, " (explaining that she "sometimes mislays keys") but denied concentration problems. Plaintiff stated that she prepared two to three "full meals" per week and did light cooking on other days. She also reported that she washed dishes, swept and vacuumed, shopped for groceries, watched television, and used the computer. (Tr. 386.) Dr. Mansfield reported that on examination Plaintiff exhibited "[n]ear average" memory and average cognitive functioning. Dr. Mansfield diagnosed "mild" major depression and opined that Plaintiff would not have any significant work-related limitations. (Tr. 383-87.)

2. Examining Psychologist Ron J. Lavit, Ph.D.

In December 2010, Plaintiff saw Dr. Ron Lavit for a psychological examination related to her Social Security claim. Plaintiff reported that she had experienced depression since about age fifteen. (Tr. 413.) She also reported having migraine headaches and auditory and visual hallucinations. (Tr. 415.) Plaintiff reported that her activities included getting the children ready for school, checking homework, making dinner, watching television, driving, talking on the telephone, attending medical appointments, going to the library, grocery shopping, and going out to dinner with her boyfriend. (Tr. 414-15.) Plaintiff scored twenty-nine out of thirty possible points on a "mini mental status exam." (Tr. 417.)

Dr. Lavit assessed Plaintiff's cognitive skills as "average to bright-normal in range." (Tr. 420.) He noted that, although she reported difficulty with concentration and memory, she did not exhibit any "significant difficulties" during the examination. Dr. Lavit opined that Plaintiff might have some problems with understanding and memory. (Tr. 421.) He found that she was "moderately limited" in concentration, persistence, and pace, could carry out simple instructions and ask simple questions, but could not make simple work decisions. ( Id. ) He also found that she could not interact appropriately with the general public. (Tr. 421.)

3. Reviewing Psychologist Lazorwitz and Psychiatrist Zuess

In June 2010, state agency psychologist Nicole Lazorwitz reviewed the record and opined that Plaintiff had not shown severe mental impairments. (Tr. 109-10.) In late 2010, state agency psychiatrist Jonathan Zuess, M.D., reviewed the record and opined that Plaintiff could perform simple work on a sustained basis, but might perform best in settings with limited social interaction. (Tr. 121-23, 126-28.)

4. Terros, Inc.

In January 2011, Plaintiff presented to Terros, Inc., for an initial evaluation related to her mental health. (Tr. 472.) Plaintiff reported experiencing depression, anger, anxiety, and auditory and visual hallucinations. Nurse practitioner Marilyn Staires assessed major depressive disorder and obsessive compulsive disorder. (Tr. 476.) In February 2011, Nurse Staires completed a functional capacity (mental) questionnaire. (Tr. 429.) She opined that Plaintiff had: marked limitations in social functioning, concentration, persistence, and pace; episodes of decompensation; and moderate restrictions in activities of daily living. She rated Plaintiff's global assessment of functioning (GAF) at 53, indicating moderate symptoms. (Tr. 429; see also Tr. 435-37 (March 28, 2011 note repeating the February 2011 GAF rating, but noting that Plaintiff had not been seen at Terros since January 2011).)[3]

Plaintiff was next seen at Terros in April 2011, when she presented to physician assistant Tracie Serrato for evaluation. (Tr. 433.) Plaintiff reported depression, anger, anxiety, and bedtime auditory and visual hallucinations. On examination, she had good concentration, intact memory, and logical thought processes with non-psychotic thought content. The physician assistant adjusted Plaintiff's medication. (Tr. 431-34; see also Tr. 435-37.)

III. Administrative Hearing Testimony

Plaintiff was represented by counsel during the administrative proceedings. However, her counsel withdrew before the administrative hearing and Petitioner appeared pro se at the hearing. (Tr. 140, 173.) The ALJ advised Plaintiff of her right to have a representative present at the hearing, but she chose to proceed without representation. (Tr. 22, 508-09.)

Plaintiff was in her thirties at the time of the administrative hearing. She had a high school education, and her past relevant work included telephone operator, assistant manager, call center operator, babysitter, packer, and assembly worker. (Tr. 203, 223, 518-20.)[4] Plaintiff testified at the administrative hearing that she quit her last job as a taxi dispatcher in April 2007 because her employer allegedly falsified records. (Tr. 518.) She stated that she was unable to work due to depression, anxiety, obsessive compulsive disorder, and a back impairment. (Tr. 513.) Plaintiff stated that she had received an epidural injection two days before the hearing, and that her doctor was waiting to determine whether the injection was effective before ...

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