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Philavanh v. Berryhill

United States District Court, D. Nevada

August 8, 2017

NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.



         This matter is before the Court on Plaintiff Johnny Philavanh's Complaint for Review of Final Decision of the Commissioner of Social Security (ECF No. 3), filed on March 18, 2016. The Acting Commissioner filed her Answer (ECF No. 9) on May 20, 2016. Plaintiff filed his Motion for Reversal and Remand (ECF No. 24) on December 8, 2016. The Acting Commissioner filed her Cross-Motion to Affirm the Agency's Decision (ECF No. 27) on February 2, 2017. Plaintiff did not file a reply. Pursuant to the written consent of the parties, this case was referred to the undersigned United States Magistrate Judge on July 7, 2017 to conduct all proceedings and order the entry of a final judgment in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. See Reference Order (ECF No. 29).


         A. Procedural History.

         Plaintiff filed an application for a period of disability, disability insurance benefits and supplemental Social Security Income on February 13, 2012, alleging that he became disabled beginning February 19, 2011. See Administrative Record (“AR”) 153-161. The Commissioner denied Plaintiff's applications initially on April 27, 2012, AR 91-94, and upon reconsideration on January 30, 2013. AR 97-103. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). AR 105-106. The hearing was conducted on September 4, 2013 at which Plaintiff appeared and testified. AR 33-63. The ALJ issued his decision on January 3, 2014 and concluded that Plaintiff was not disabled from February 19, 2011 through the date of the decision. AR 18-27. Plaintiff's request for review by the Appeals Council was denied on July 17, 2015. AR 1-4. Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g).

         B. Factual Background.

         Plaintiff Johnny Philavanh, a native of Laos, was born on July 9, 1967. AR 183. He came to the United States when he was fifteen years old and finished the eleventh grade of school. AR 40. Mr. Philavanh is able understand, speak, and write a little in English, but is primarily fluent in the Laotian language. AR 36-37. He was employed as a casino porter at Caesars Palace Hotel-Casino from 1988 until 2003. He then worked as a food-runner at Excalibur Hotel-Casino from 2004 to 2005. He worked as a driver-messenger or courier for Southwest Courier from June 2005 until March 2010. AR 192. As a casino porter, Mr. Philavanh was required to walk and stand 8 hours a day. He frequently lifted 25 pounds. The maximum weight he lifted was 50 pounds. He noted that he lifted mop buckets, dust pans, and a vacuum, which he carried everywhere. AR 193. As a food-runner, Mr. Philavanh walked and stood for 8 hours a day. He frequently lifted 25 pounds. He lifted meat, milk, vegetables, fruits, and dishes. AR 194. As a driver-messenger, Mr. Philavanh worked 10 hours a day and would walk or stand for up to 10 hours, and sit for 4 hours. He frequently lifted 25 pounds and occasionally lifted 50 pounds. He lifted bags and boxes to and from a car to load onto an airplane. AR 195.

         Mr. Philavanh injured his back in a motor vehicle in 2009. The administrative record does not contain any medical records regarding any treatment that Plaintiff may have received shortly after this accident. Mr. Philavanh stated in his January 15, 2013 Function Report that he “got hit by a drunk driver and injured my lower back and neck.” AR 218. He told Dr. Trevor Nogueira in October 2013 that his car slowed down at a red light and he was “rear ended by a Chevy pickup truck.” AR 489.

         1. Medical Records.

         The administrative record contains a May 7, 2009 lumbar spine MRI report obtained by Plaintiff's chiropractor. AR 320. The report stated that at ¶ 3-4, there was congenital narrowing of the spinal canal, mild facet arthrosis, normal lateral recesses and patent neural foramina. At ¶ 4-5, there was disc dessication, mild decreased disc space height, posterior annular tear with an associated 2 mm broad-based posterior disc protrusion, which in addition to the congenital narrowing of the spinal canal, contributed to narrowing of the midsagittal dimension of the thecal sac to approximately 7 mm. There was mild facet arthropathy and patent neural foramina. At ¶ 5-S1, there was normal disc hydration with preservation of the disc height. There was mild congenital narrowing of the spinal canal with midsagittal diameter of 10 mm, mild facet arthrosis, and patent neural foramina.

         Mr. Philavanh initially saw Dr. Alafuro Oruene, a pain management physician, on April 7, 2010. AR 242-245. He told Dr. Oruene that he had been experiencing low back pain for more than one year. The pain was continuous and he described it as a burning, stabbing pain which radiated to his left lower extremity on the sides and back. The pain was aggravated by daily activities of bending and lying down. Mr. Philavanh also reported that the pain was aggravated a few weeks earlier when he tried to exercise. He stated that he could “barely stand.” Mr. Philavanh reported that his current pain level was 10/10. The pain was “alleviated by standing and sitting in between.” Her stated that he was currently working. AR 242.

         Under “Review of Systems, ” Dr. Oruene noted that the findings were normal in most body parts or systems. Under “Neck, ” the report stated: “Denies pain or swelling.” Under “Musculoskeletal, ” the report stated: “Back pain.” AR 243. Under “Examination, ” Dr. Oruene noted that Plaintiff was 5'2" tall and weighed 162 pounds. He appeared to be a well developed, well nourished male who was in mild distress. AR 243-244. Examination findings regarding Plaintiff's neck were reported as: “Supple, no JVD, carotid 2 without bruits. No thyromegaly appreciated on exam.” The musculoskeletal examination findings were as follows: “Normal flexion and extension of the C-Spine. Flexion 80 deg. and extension 5 deg of the lumbar sacral spine. Nor paraspinal muscle tenderness. Positive facet loading on the left. Normal range of motion for all joints. SLR Positive Left at 30 deg.” AR 244. Dr. Oruene's assessment was low back pain, lumbosacral radiculopathy, sciatica, and lumbar facet syndrome. Due to Plaintiff's level of discomfort, Dr. Oruene scheduled him for lumbar injections and stated that he would request a lumbar spine MRI. (There is no record of a lumbar spine MRI other than the one obtained in May 2009.) Dr. Oruene also prescribed Percocet medication.

         Mr. Philavanh received lumbar spine injections on April 8, 2010. On April 16, 2010, he reported that his pain level was 7/10. On July 8, 2010, Plaintiff reported that his pain level was 6/10. AR 246-261. Dr. Oruene noted that Plaintiff got some relief from the epidurals, but was now reporting pain in the right shoulder and elbow. Plaintiff stated that his pain had to do with constant opening and closing of doors in his job as a courier. AR 258. Thereafter, his low back pain level remained in the 6/10 to 7/10 level. On September 8, 2010, Plaintiff underwent a discogram at ¶ 1-2, L2-3, L3-4, L4-5, and L5-S1. The results were positive at ¶ 3-4 and L4-5.

         Mr. Philavanh saw Dr. Oruene on an approximate monthly basis for his low back pain through July 8, 2013. These office visits usually resulted in a refill or change of prescription pain medication. Plaintiff declined surgical intervention for his low back condition. AR 292 (December 30, 2010); AR 296 (February 24, 2011). The “Review of Systems” and “Examination” sections of Dr. Oruene's reports remained the same throughout his treatment of Plaintiff. Dr. Oruene did not update these sections as Plaintiff's condition and medical care progressed. For example, the “Review of Systems” section consistently stated that Plaintiff denied neck pain or swelling even after he began complaining of severe neck pain on March 29, 2011. AR 331-332. The “Examination” findings regarding Plaintiff's neck and musculoskeletal system also did not change from Dr. Oruene's April 7, 2010 report through his report on July 8, 2013. AR 243-244, 484-485. Dr. Oruene's reports also continued to state that Plaintiff was working even though Plaintiff testified that he stopped working in February 2011. AR 41-43, 45-46, 483.

         Plaintiff first reported severe neck pain to Dr. Oruene on March 29, 2011. The doctor revised his assessment of Plaintiff's condition to include “Tendonitis, Unspecified 726.9; Right Shoulder and Elbow improved; Cervicalgia (723.2); and Cervical Radiculitis (723.4). AR 333. Dr. Oruene obtained an MRI of the cervical spine on April 26, 2011 which stated that there was a 2 mm posterior disc osteophyte complex at ¶ 4-5. There was also moderate left neuroforaminal narrowing and the spinal canal measured 0.8 cm. At ¶ 5-6, there was a 2 mm posterior disc osteophyte complex. The spinal canal measured 0.8 cm. At ¶ 6-7 there was a 3 mm posterior disc osteophyte complex. The spinal canal measured 0.8 cm and there was moderate left neuroforaminal narrowing. AR 300.

         Dr. Oruene administered cervical spine injections to Plaintiff on May 3, 17, and June 1, 2011. AR 302, 304, 306, 339, 342, 349. On June 6, 2011, Mr. Philavanh stated that his low back pain was at 6/10 and his neck pain was at 5/10. He also reported that the neck pain radiated into both hands with numbness and tingling. Dr. Oruene noted that Plaintiff's neck pain was better, but his back pain was the same. AR 344. In July 2011, Plaintiff reported that his neck pain was 2/10 and was much better. AR 347. On August 8, 2011, however, Plaintiff reported that his neck pain was 3/10. He stated that it was “recurring” and he wanted to repeat the injections. AR 350. Dr. Oruene administered additional cervical spine injections on August 9, 2011. AR 354. In a followup visit on September 9, 2011, Plaintiff reported that his neck pain at 3/10. AR 356. On October 5, 2011, however, it had increased to 6/10. His low back pain was at the same level, which was consistent with his prior low back pain levels. AR 359. Plaintiff received another cervical spine injection on November 10, 2011. AR 366. On November 18, 2011, his neck pain was 6/10. AR 368. On December 12, 2011, it was 8/10. Plaintiff also reported increased low back pain at 7/10. AR 372. On January 10, 2012, Plaintiff reported neck pain at 9/10. Dr. Oruene also noted in this report that Plaintiff was applying for Social Security Disability. AR 376.

         On April 2, 2012, Plaintiff went to the University Medical Center (“UMC”) complaining of chronic low back and neck pain. He told the emergency room physician that he wanted surgery for his neck and back. He stated that this was recommended to him by his physician in 2009 and 2010, “but [he] has never been able to arrange this as he does not have any money.” AR 381. There is no indication in Dr. Oruene reports that he recommended neck surgery to Plaintiff. He had apparently discussed low back surgery with Plaintiff, and the latter declined it. AR 292, 294. The UMC doctor's physical examination of Plaintiff's neck on April 2, 2012 showed that it was supple. There was no midline tenderness and Plaintiff had full flexion/extension of the neck. With regard to the musculoskeletal system, the doctor stated: “He has no step-offs or tenderness to the T spine. Some mild tenderness over the lower L4-L5 segments of the L-spine, but no step-offs or deformities. “ Another UMC doctor evaluated Plaintiff and stated: “I see no indications for emergent surgery or imaging. He does not sound like he has any acute worsening of his symptoms, but he did run out of his pain medications this morning and says he does not have any insurance. I think he definitely does need to be seen by an ortho spine specialist.” AR 382. The doctor stated that he would provide Plaintiff with a referral to see a Dr. Vater. Id. There is no record showing that Plaintiff consulted with an orthopedic specialist after this emergency room visit.

         Plaintiff saw Dr. Oruene on April 6, 2012. There was no mention in that report of his recent visit to the emergency room or any referral to an orthopedic specialist. AR 417. Over the next year and three months, Plaintiff continued to report severe low back and neck pain usually at the 8/10 level for both areas. AR 420, 423, 426, 429, 432, 439, 443, 447. On February 28, 2013, Plaintiff told Dr. Oruene that he was going to Thailand for a family emergency. AR 467. He did not see Dr. Oruene during the month of March. On April 11, 2013, his condition appeared to be unchanged from his previous visit. AR 471. Dr. Oruene's last office visit report on July 8, 2013 described Plaintiff's current condition as follow:

Johnny's pain is continuous. He describes the pain as low back pain 8/10, burning, stabbing, radiating to the left lower extremity on the sides and the back. Neck pain 8/10, radiates to both hands with numbness and tingling, and is aggravated by daily activities, bending, laying down, and is alleviated ...

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