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Dikov v. Social Security Administration

United States District Court, D. Oregon, Portland Division

November 13, 2014



JOHN V. ACOSTA, Magistrate Judge.


Plaintiff Vitaliy A. Dikov ("Claimant") seeks judicial review of a final decision by the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI") Under Title XVI of the Social Security Act. See 42 U.S.C. §§ 1381-1383(D. This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Following a careful review of the record, the court affirms the decision of the Commissioner.

Procedural Background

Claimant filed for SSI benefits July 10, 2009, alleging disability beginning February 1, 2000. (Tr. at 27.) The Commissioner denied Claimant's application initially and on reconsideration. (Tr. at 27.) Claimant appeared at a hearing before Administrative Law Judge Eleanor Laws ("the ALJ"), who issued her decision finding Claimant was not disabled. (Tr. at 38.) Claimant timely requested review of the ALJ's decision, and the Appeals Council denied his request, making the ALJ's opinion the Commissioner's final decision. Claimant filed for review of the decision in this court on January 23, 2013.

Factual Background

Claimant was born in the Ukraine and emigrated to the United States in 1998. (Tr. at 102.) Prior to moving to the U.S., Claimant worked as a welder for Ukraine Coal Company and as an office clerk for the Ukranian Army. (Tr. at 168.) After settling in this country, Claimant held two jobs, one as a welder and the other working an industrial sander. (Tr. at 165-167.) In June 1999, Claimant suffered a vertebral injury while positioning a heavy piece of metal at work. (Tr. at 469.) He continued working for about a week, but soon stopped working and sought treatment for the acute pain. (Tr. at 469.) He has not been employed since. (Tr. at 165.)

I. Medical Facts

After Claimant's on-the-job injury, he sought treatment by Dr. Eric Long ("Dr. Long"). Dr. Long became Claimant's treating physician. (Tr. at 469.) Dr. Long performed extensive testing on Claimant, including physical examinations and electrodiagnostic tests of Claimant's nerves. (Tr. at 469-74.) Dr. Long consistently diagnosed Claimant with a T89 thoracic disc injury and ulnar compression. (Tr. at 413-32, 469-88.) In January 2001, based on "lateral imaging, " Dr. Long determined Claimant had an "anterior annular tear." (Tr. at 487.) Dr. Long's report from May 2009 indicates a diagnosis of "T89 disc lesion, documented 3.29.00. 03.09.02, unchanged 01.28.08" and ulnar nerve compression in Claimant's elbows. (Tr. at 415-16.) On May 12, 2010, Dr. Long completed and endorsed a form prepared by Claimant's counsel in which he concluded "Mr. Dikov's medical conditions... [make] it unlikely that he could perform any physical work activity on a regular and continuing basis, " and that Dikov would likely "miss two or more days of work each month due to symptoms and/or the need to lie down or seek medical treatment...." (Tr. at 397-99.)

Early on in Claimant's treatment, he sought the opinion of Dr. Victoria Carvalho ("Dr. Carvalho"). (Tr. at 444-464.) Dr. Carvalho treated Claimant between June 1999 and March 2000 and observed that Claimant consistently reported pain in his lower and mid-back despite temporarily being on a leave of absence from his job, which required him to crouch and stoop on a regular basis. (Tr. at 464.) In Dr. Carvalho's most recent report, she noted that Claimant had 5/5 bilateral strength in his shoulder abductors, adductors, forward flexors, biceps, triceps, and wrists, and concluded Claimant had a cervical and thoracic sprain. (Tr. at 463.) Dr. Carvalho also adopted the conclusion of Claimant's physical therapist that he "was able to work in the medium category with 35 pounds of occasional lifting with maximum lifting of 47 points...." (Tr. at 464.)

In April 2010, Claimant saw Dr. Curtis Hill to review the results of a recent MR1. (Tr. at 467-68.) Dr. Hill opined in his report that Claimant's MRI results are within the normal range. (Tr. at 468.) He also noted that Claimant took no medication on a sustained basis and was in relatively good health. (Tr. at 467.) Further, Dr. Hill explained that he was "at a loss to explain why [Claimant] has the symptoms that he does in his chest and back" as Dr. Hill could "find anything neurosurgically wrong with him." (Tr. at 468.)

Between 2008 and 2010, Claimant was examined by several more doctors in hopes of developing evidence to support his claim for SST. In March 2008, Claimant was examined by Dr. Jason Mauer ("Dr. Mauer"). (Tr. at 389.) Dr. Mauer observed that Claimant had normal gait and motor strength, but upon analyzing Claimant's first MRI, concluded that Claimant had a "T8-9 disk disruption with positive provocative discography." (Tr. at 389.) Dr. Mauer diagnosed Claimant with "[m]ild deconditioning with fear-pain avoidance behavior pattern." (Tr. at 389.) In June 2008, Claimant was referred to Dr. Jung Yoo ("Dr. Yoo") for a second analysis of Claimant's 2008 MRI and to discuss possible surgical options to address his pain. (Tr. at 349.) Dr. Yoo explained to Claimant that the MRI "shows a very minor disc bulge at t8-9 without any significant neurocompression." (Tr. at 349.) Dr. Yoo concluded that Claimant was experiencing "nonphysicologic symptoms" which would likely be exacerbated by surgery. (Tr. at 349.)

At the request of the Commissioner, Claimant was examined by consultive physician Dr. Amy Cowan ("Dr. Cowan"). (Tr. at 372-376.) Dr, Cowan did a full orthopedic examination and diagnosed Claimant with "thoracic spine pain with reported T8-T9 disk injury, without any significant findings on physical examination or radiographic findings" and "subjective depression" without suicidal ideation. (Tr. at 375.) Dr. Cowan also gave a functional assessment in which she determined Claimant had no limitations on his functional capacity except that he could lift and early a maximum of fifty pounds occasionally and twenty-five pounds frequently. (Tr. at 376.)

Just days after seeing Dr. Cowan, nonexamining physician Dr. Neal E. Berner ("Dr. Berner") released his report and Residual Functional Capacity Assessment based on Dr. Berner's review of Claimant's then-existing medical records. (Tr. at 377-84.) Dr. Berner noted that there was no imaging evidence in Claimant's file demonstrating that Claimant suffered from a disabling condition. (Tr. at 384.) On this basis, Dr. Berner concluded Claimant was capable of medium-level exertion, could occasionally lift fifty pounds, could frequently lift twenty-five pounds, could stand and/or walk for six hours per day, and could sit for roughly six hours per workday, but had no other functional limitations. (Tr. at 380-382.)

In 2010, Claimant underwent a third MM. The results were analyzed by Dr. Melba Nagy ("Dr. Nagy"). (Tr. at 400.) Dr. Nagy summarized her observations as follows:

Anatomic alignment of the thoracic spine is within normal limits. Thoracic vertebral body height is well maintained. The thoracic spinal cord is normal in signal and morphology. The bone marrow signal is unremarkable. At T8-9, there is a small central disk protrusion with mild effacement of the anterior thecal sac. A small Schmorl's node is again noted within the superior endplate of T12.

(Tr. at 400.) On the basis of Claimant's MM, Dr. Nagy concluded that Claimant suffered from a "[s]mall central disk protrusion at T8-9 which is not significantly changed from prior exam." (Tr. at 400.)

Most recently, Claimant sought an examination by Dr. Francisco X. Soldevilla ("Dr. Soldevilla"). (Tr. at 403-04.) Dr. Soldevilla administered a physical examination and neurological examination. (Tr. at 404.) The only portion of that exam which indicated anything abnormal was the MM scan, which showed "a small disc herniation at T8/9." (Tr. at 404.) Dr. Soldevilla opined that Claimant's thoracic pain could "possibly [be] due to his T8/9 disc herniation. (Tr. at 404.).

II. The ALJ's Findings

The ALJ engaged in the five-step "sequential evaluation" process for evaluating SSI claims. 20 C.F.R. § 416.920. (Tr. at 29-37.) The Claimant bears the burden of proof at steps one through four, but the burden of production shifts to the Commissioner at step five to identify jobs existing in significant numbers in the national economy that the claimant can perform despite his or her residual functional capacity, age, education, and work experience. Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). Each step is potentially dispositive. 20 C.F.R. § 416.920(a)(4).

A. Steps One and Two

At step one, the ALT determined that Claimant had not engaged in substantial gainful activity since his application date. (Tr. at 29.) At step two, the ALT determined Claimant's only severe impairment was degenerative disc disease. (Tr. at 29.) The ALT recognized, and briefly discussed, Claimant's allegations that he suffered from ulnar compression in the elbows and paresthesia in the ulnar distribution, but according to the ALJ, Claimant's paresthesia was not medically determinable because there was insufficient objective medical evidence to support the diagnosis. (Tr. at 29.)

The ALJ also concluded that "[C]laimant's medically determinable medical impairment of depression does not cause more than minimal limitation in the [C]laimant's ability to perform basic mental work activities and is therefore nonsevere." (Tr. at 30.) The ALJ came to this conclusion after reviewing the four broad paragraph B criteria and concluded Claimant: (1) had only mild limitations to his activities of daily living: (2) had no limitation in social functioning; (3) had mild limitations in concentration, persistence, or pace; and (4) experienced no episodes of decompensation of extended duration. (Tr. at 30.)

B. Step Three

At step three, the ALJ concluded Claimant "does not have an impairment or combination of impairments that meets or medically equals" those listed in the pertinent regulations. (Tr. at 30.) In reaching this conclusion, the ALJ explained that Claimant's degenerative disc disease did not result in limited spinal mobility, motor loss, sensory or reflex loss, or lumbar spinal stenosis. (Tr. at 31). Moreover, the ALJ determined claimant was able to ambulate effectively and experienced no "upper or lower extremity weakness, reflex loss, or objective sensory deficit." (Tr. at 31.)

C. The Residual Functional Capacity

In the ALJ's Residual Functional Capacity Assessment ("RFC"), the ALJ concluded that Claimant had the ability to perform light work but had the following limitations:

He cannot climb ladders, ropes or scaffolds. He can only occasionally balance, stoop, kneel, crouch, and crawl. He can climb ramps and stairs rarely. He can no more than frequently perform handling and fingering with the right upper extremity. He can no more than occasionally reach overhead bilaterally. He must be given the ...

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