Alcantar v. Colvin

• Decision Date: 25 September 2015
• Docket Number: Case No. 1:14-cv-00182-SKO
• Court: U.S. District Court — Eastern District of California
• Parties: KELLY JEAN ALCANTAR, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

KELLY JEAN ALCANTAR, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Case No. 1:14-cv-00182-SKO

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

September 25, 2015

ORDER ON PLAINTIFF'S COMPLAINT

(Doc. 19)

I. INTRODUCTION

Plaintiff, Kelly Jean Alcantar ("Plaintiff"), seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying her application for Disability Insurance Benefits ("DIB") benefits pursuant to Title II of the Social Security Act. 42 U.S.C. § 405(g). 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

Plaintiff was born on December 20, 1958, and alleges disability beginning on March 30, 2008. (AR 57; 146; 158-59; 193-99; 255; 274.) Plaintiff's date last insured was September 30, 2011. (AR 57; 146; 193; 255; 274.) Plaintiff claims she is disabled due to degenerative disc disease, lupus, arthritis, fibromyalgia, and bipolar disorder. (See AR 44; 96; 105; 198.)

A. Relevant Medical Evidence

Plaintiff was described as having the following: "mood disorder" and "pain" on June 5, 2009, "rheumatoid arthritis" on January 24, 2010, "insomnia" on May 5, 2011, and "sleep disorder" on October 24, 2011. (AR 664; 681.) It is not entirely clear from the record what medical facility and what medical practitioner, if any, made these diagnoses or upon what specific objective or subjective criteria these diagnoses were based. (See AR 664.)

On November 16, 2010, Plaintiff was seen by Dr. Matthew Lozano, M.D., for a follow-up appointment for a rash secondary to her new arthritis medication. (AR 670-72.) On September 8, 2011, Plaintiff reported taking more than six Norco per day and wanting to "get off Norco." (AR 665-66.) A December 8, 2011, sleep study reflected a diagnosis of "severe obstructive sleep apnea associated with sleep fragmentation and oxygen desaturations." (AR 680.)

Dr. Rolf G. Scherman, M.D., wrote reports on Plaintiff's status as a "Qualified Injured Worker" on January 22, 2003, and August 31, 2004. (AR 653-63.) In his 2003 report, Dr. Scherman opined Plaintiff had "mechanical low back pain" and that she was precluded from heavy lifting. (AR 653.) In his 2004 report, based on Plaintiff's return to work with modified duties, Dr. Scherman opined Plaintiff is not a Qualified Injured Worker and is able to perform a modified job and her usual and customary job. (AR 654.)

Dr. Perminder Bhatia, M.D., a Neuro-Pain Qualified Medical Examiner, treated Plaintiff for low back pain due to her work-related injury and lumbar degenerative disc disease. (AR 297-336.) Dr. Bhatia examined Plaintiff on May 18, June 9, and September 7, 2005, and January 9, 2006, for chronic neck pain, back pain, and fibromyalgia. (AR 487-96.) On all four occasions, Plaintiff presented with normal behavior and appearance, talk, mood, and content of thought. She displayed normal tone and 5/5 power in both upper and lower extremities, normal gait, andrestricted movement of the cervicolumbar spine. Dr. Bhatia continued Plaintiff's Norco and Robaxin prescriptions, added a Lyrica prescription, and added Liboderm patches for her lumbosacral spine. (AR 487-96.) A June 9, 2005, EMG report revealed electrical evidence of L4-L5 radiculopathy. (AR 492.)

Beginning on March 29, 2007, Plaintiff saw Dr. Jenni-Ann Kren, Ph.D., for therapeutic counseling. Dr. Kren diagnosed Plaintiff as suffering from bipolar I, post-traumatic stress disorder, chronic pain disorder, opioid dependence, fibromyalgia, and low back pain, and created a treatment plan to reduce Plaintiff's depression, anxiety, and post-traumatic stress disorder symptoms. (AR 633-34.) Plaintiff showed improvement during April of 2007. (AR 641.) On April 27, 2007, Dr. Kren noted that Plaintiff had overdosed on "Elavil" six months prior and had been in the hospital for five days, but there was no psychiatric intervention at that time. (AR 637.)

On June 1, 2007, Plaintiff complained of pain from fibromyalgia (AR 635) and on June 8, 2007, Plaintiff complained of "kidney pain" that interfered with her sleep (AR 634). On June 29, 2007, Plaintiff presented "as dysphoric but neatly dressed and well made up," and reported improvement in her nightmares. (AR 630.) On August 8, 2007, Plaintiff was very emotional and intermittently tearful. (AR 630.) On August 17, 2007, Plaintiff returned to work and presented with an improved mood, and on August 24, 2007, Plaintiff reported adjusting well to her work schedule and sleeping better. (AR 628-29.)

On September 14, 2007, Plaintiff reported injuring her back doing lawn work and sleeping at work. (AR 624.) On October 5, 2007, Plaintiff reported being sad about 4 out of 7 days a week. (AR 623.) Between October and November of 2007, Plaintiff worked with Dr. Kren on confronting her behavioral choices and reducing her feelings of being "out of control," and reported high use of her pain medications and trouble sleeping. (AR 618-19; 621-22.) From November of 2007 through February of 2008, Plaintiff discussed her troubled relationship with her spouse, and on January 11, 2008, Dr. Kren noted that Plaintiff "[a]ppears to be manipulative in describing self harm." (AR 611-17.)

On January 17, 2008, Dr. Bhatia noted that Plaintiff's pain had increased and increased her Duragesic patch and Lyrica prescriptions. (AR 334-35.) On February 22, 2008, Plaintiff was stillworking part time as a security guard, and told Dr. Kren that working aggravated her pain. (AR 608.) On March 7 and 14, 2008, Plaintiff complained of ongoing sleep difficulties, nightmares, and sleep walking. (AR 606-07.) On March 21, 2008, Dr. Kren opined that Plaintiff's "ability to function in [an] employment setting is reduced but as she works less, her ability to function at home is improved." (AR 604-06.) On March 28, 2008, Plaintiff told Dr. Kren she was doing poorly and having "a gap in medications caused when pharmacy and MD realized she was taking it at maximum rate prescribed but doctor not writing for enough medications to take that way." (AR 602.)

On March 31, 2008, Plaintiff was seen for worsening, chronic low back pain and lumbar radiculopathy; Dr. Bhatia noted he had requested a surgical consult for Plaintiff to have surgery "or even pain spinal cord stimulator because she is getting up higher on the pain medications ladder and presently she is taking almost 8 to 10 Vicodin with Norco a day." (AR 331; see also AR 603.) On examination, her motor strength was 5/5 in both upper and lower extremities and her straight leg raise test was positive on the right side. (AR 332.) Dr. Bhatia noted that Plaintiff had epidurals in the past which did not help with her symptoms. (AR 332.) Based on Plaintiff's worsening pain, Dr. Bhatia took her off work for three months. (AR 333.)

On April 4, 2008, Plaintiff told Dr. Kren she was going on disability for back pain and would change to Opana (oxymorphone) for back pain. (AR 602.) On April 18 and May 2, 2008, Plaintiff appeared "relaxed and nicely but casually groomed" with good affect during her appointments with Dr. Kren. (AR 601.)

On May 5, 2008, Dr. Bhatia saw Plaintiff for a follow-up appointment, noting that overall Plaintiff was doing better but was "complaining of right leg weakness which is getting worse" and wanted a surgical consult because she "cannot work and cannot do anything without pain." (AR 329.) On examination, Plaintiff's motor strength was 5/5 in both upper and lower extremities with normal tone, restricted lumbosacral movement, positive straight leg raise on the right, decreased right knee jerk, and mild weakness in the right quadriceps. (AR 330.) On May 30 and June 13, 2008, Plaintiff reported running out of pain medications and withdrawal symptoms, and reported "a couple of black outs (sic)" due to "taking high levels of drugs." (AR 600.) On June16, 2008, Dr. Kren called Dr. Bhatia to discuss Plaintiff's medication abuse. (AR 596; 599.) Plaintiff called Dr. Kren and reported she was "sick" from withdrawal. (AR 596.)

In a Utilization Review Program decision dated June 18, 2008, Plaintiff was noted as having "persistent back pain" and "more progressive right lower extremity symptomatology," as well as "long standing intermittent right radicular symptoms" supported by "2005 right lower extremity neurodiagnostics [which] showed a right L4-5 radiculopathy." (AR 325-26.) In 2007, "epidural steroids were attempted and were stated to not be helpful" and Plaintiff was noted to be on narcotics for the neuropathic and progression pain. (AR 325.) A September 2007 MRI showed degenerative changes, but no significant neuroforaminal encroachment was observed. (AR 325.) Because Plaintiff's "[t]reating physician also request[ed] a concurrent surgical evaluation because of failure for conservative treatment," the reviewing physician ordered an magnetic resonance imaging ("MRI") to determine whether a lesion existed that would warrant surgical intervention. (AR 325.)

On July 11, 2008, Dr. Kren observed Plaintiff's "affect [was] improved" and "bright" and noted Plaintiff was "interactive and talkative." (AR 595.) On June 23, 2008, Plaintiff was seen for ongoing pain and given a refill on her Norco prescription. (AR 323.) A June 26, 2008, lumbar spinal MRI revealed the following:

Transitional vertebral body identified and called L5 for the purposes of this dictation.

Decreased disc height, disc desiccation, degenerative marrow changes, anterolateral osteophytes, with a 1-2 mm diffuse disc bulge noted at the L4-L5 level. The bulging disc does not compress the thecal sac or the adjacent nerve roots. There is associated mild narrowing of the L4 neural foramina bilaterally.

Mild decreased disc height, mild disc desiccation, anterolateral osteophytes, with 1-2 [mm] diffuse disc bulges noted at the L1-L2 and L2-L3 levels. No thecal sac or nerve

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