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Silvia Trevino v. Michael J. Astrue

November 15, 2011


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Plaintiff Silvia Trevino, by her attorneys, Christenson Law Firm, seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits under Title II of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act")and for supplemental security income ("SSI"), pursuant to Title XVI of the Act. The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge. Following review of the record as a whole and applicable law, this Court affirms the agency's determination to deny benefits to Plaintiff.

I. Administrative Record

A. Procedural History

Plaintiff was insured under the Act through December 31, 2008. On May 12, 2004, Plaintiff filed for disability insurance benefits, alleging disability beginning March 13, 2003. Her claim was denied initially on December 7, 2004, and upon reconsideration on May 10, 2005. On June 15, 2005, Plaintiff timely requested an administrative hearing. Plaintiff appeared and testified at a hearing on August 7, 2006. Supplementary hearings were held on November 16, 2006, and March 7, 2007. On March 12, 2007, Administrative Law Judge James P. Berry denied Plaintiff's application. Plaintiff appealed to the Administrative Council.

While the appeal was pending, Plaintiff filed a new application for both disability insurance benefits and SSI.

On September 12, 2007, the Appeals Council vacated the hearing decision and remanded to the ALJ, directing him to give further consideration to treating and examining source opinions; to obtain additional evidence regarding Plaintiff's physical and mental impairments, including a consultative examination and medical expert testimony if warranted; and to obtain medical expert testimony if necessary to clarify the nature and severity of Plaintiff's impairments.

Plaintiff appeared and testified at a hearing on September 15, 2008. On December 8, 2008, Judge Berry again denied Plaintiff's application. The hearing decision incorporated both of Plaintiff's applications for benefits. Plaintiff appealed to the Administrative Council, which denied review on June 30, 2010. On August 17, 2010, Plaintiff filed her District Court complaint.

B. Agency Record

Plaintiff (born August 20, 1972) is a high school graduate and has completed two years of college. Having completed a certification program, she was previously employed as a certified nursing assistant. While this application was pending, Plaintiff attended Porterville College from Spring 2007 through Fall 2008.

At the time she was injured, Plaintiff was working two full-time jobs: psychiatric technician at Porterville Developmental Center and certified nurse assistant at Gaithers Home Care, a nursing home serving severely disabled elderly patients. In her job at the developmental center, she worked with individuals who had been judged mentally incompetent to stand trial.

Plaintiff was injured on March 13, 2003, while she tried to break up a fight between two developmental center residents. A large resident approached Plaintiff from behind and pulled her backward by her hair, causing Plaintiff to experience neck and back pain and shortness of breath. She was initially treated by a physician at the developmental center and subsequently by an occupational physician. On March 25, 2003, while resting at home, Plaintiff experienced a drop in blood pressure and a seizure, possibly as a reaction to the medication.*fn1 Plaintiff was stabilized by paramedics, then transferred for treatment at Sierra View Hospital.

While she recovered, Plaintiff received care from family members. Her father and brother paid her mortgage after she was injured. Since Plaintiff is a single mother, her three daughters were temporarily placed in the custody of their respective fathers.*fn2 Plaintiff's workers' compensation claim was resolved February 28, 2005, for a lump sum payment of $38,850.00.

According to Plaintiff's account to Andrew Whyman, M.D., following her seizure, Plaintiff suspected malpractice by the workers' compensation doctor. She retained an attorney, who referred her to Dr. Wlasichuk.

Treatment at Porterville Developmental Center. Following the assault, C. Pugh, F.N.P., observed that Plaintiff had a headache and severe cervical (neck) pain. Although Plaintiff was alert and responsive, she slept in a chair until a family member arrived to take her home. Pugh diagnosed cervical strain with cephalalgia (headache), and referred Plaintiff to Valley Promptcare Medical Corp. for treatment.

Dr. James. Dwight James, M.D., a physician at Valley Promptcare, treated Plaintiff until she suffered a seizure on March 24, 2003. After x-rays indicated a normal cervical spine, James diagnosed cervical sprain and a headache. Plaintiff's neck was tender from C3-C6. Her range of motion on March 14, 2003 was flexion, 30-90E; extension, 20/30E; right rotation, 30/45E; and left rotations 40/45E.*fn3 Initially, James directed Plaintiff to remain off work until March 19, 2003; later, he extended the recommended absence to March 28, 2003.

Sierra View District Hospital. After Plaintiff suffered a seizure on March 24, 2003, she was taken by ambulance for treatment at Sierra View District Hospital. Frank S. Cavallaro, M.D., reviewed x-rays of Plaintiff's cervical spine. He found the vertebral body heights and disc space heights were maintained, with no evidence of fracture or subluxation. No prevertebral or paraspinal soft tissue mass was observed. There were no significant arthritic changes.

Thomas W. McClennan, M.D., evaluated Plaintiff's brain scan on March 25, 2003, and reported that there was no intracranial hemorrhage, mass or infarct. McClennan also evaluated a MRI of Plaintiff's cervical spine, which revealed slight widening of the disc space at T2-3 and mild cervical disc protrusion at C5-6. He observed no enlargement, contusion or edema of the cervical cord, nor did the slight disc protrusion at C5-6 impinge on the spinal cord.

On March 28, 2003, Godofredo R. Celis, M.D., opined that Plaintiff had experienced a generalized tonic-clonic seizure due to postural hypotension. Her EEG was abnormal, revealing a 7 to 8 cycle per second background indicative of diffuse cerebral dysfunction and generalized 20 to 25 cycle per second waves. Celis suggested these may have been related to Plaintiff's drug intake.

The agency records include documentation of numerous visits to the emergency room at Sierra Vista Hospital, including October 10, 2004, chronic back pain and epigastric pain; December 22, 2004, seizure; February 6, 2005, seizure; February 11, 2005, back pain following auto accident; March 21, 2005, chest pain and shortness of breath; and April 26, 2005, headache with dizziness and numbness of hands.

Dr. Wlasichuk.*fn4 Following her seizure, Plaintiff's attorney referred her to Michael Wlasichuk, M.D., a physical medicine and rehabilitation specialist. In a treating physician's progress report for workers' compensation dated April 30, 2003, Wlasichuk's objective findings included cervical sprain, diffuse spasm and tenderness, and limitation of spinal movement to 15E, rotation to 15E, and lateral bends to 15E. Wlasichuk prescribed Zonegran,*fn5 Flexeril,*fn6 and Darvocet.*fn7 He instructed Plaintiff to remain off work until June 1, 2003.

Beginning May 7, 2003, Plaintiff complained of headaches. Her movement was reduced to neck flexion/extension, 15E; rotation, 10E; and lateral bends, 10E. Wlasichuk added prescriptions for Biofreeze*fn8 and Lidoderm Patch.*fn9 He directed Plaintiff to continue therapy and directed her not to return to work until July 1, 2003.

On June 16, 2003, Wlasichuk noted that Plaintiff was still wearing her cervical collar and had limited neck movement due to pain. Wlasichuk directed Plaintiff to wean herself from the cervical collar and to continue therapy. He directed Plaintiff to remain off work until August 1, 2003.

At her July 16, 2003 appointment, Plaintiff reported that she could take off the neck brace for twenty minutes every two hours. Plaintiff reported that therapy was helping her to move her neck: Wlasichuk noted Plaintiff was capable of flexion, 20E; extension, 10E; rotation, 10E; and lateral bends, 10E. He directed Plaintiff to continue physical therapy and not to return to work until September 1, 2003. Wlasichuk added reactive depression to Plaintiff's diagnoses and prescribed Effexor*fn10 and Xanax.*fn11 He directed Plaintiff to continue psychotherapy with Dr. Borrego.

On August 15, 2003, Plaintiff complained of daily headaches, pain, spasms, and an inability to move her neck fully. Wlasichuk noted 15E rotation and 15E lateral bends. Plaintiff was not to return to work until October 1, 2003.

At her appointment on October 10, 2003, Plaintiff's depression was not fully controlled, and she was crying easily. Moving her neck was painful. Rotation, bending, flexion, and extension were limited. Wlasichuk told Plaintiff not to return to work until January 2, 2004.

On October 22, 2003, Plaintiff's movement had increased to rotation, 25E; lateral bends, 25E; flexion, 25E; and extension, 20E. On December 24, 2003, Wlasichuk added a prescription for Elavil*fn12 and directed Plaintiff to remain off work until February 1, 2004.

On January 29, 2004, Plaintiff's flexion was 20E; extension, 15E; rotation, 20E; and bends, 10E. Wlasichuk directed Plaintiff not to return to work until March 15, 2004.

For the first time in March 2004,*fn13 Wlasichuk noted that Plaintiff would require vocational rehabilitation. Plaintiff reported that she was not wearing the cervical collar except on rare occasions. She had full range of motion in her shoulders; flexion, 25E; extension, 15E; rotation, 3_E (second digit indecipherable), left and 25E, right; and bends, 25E. On March 17, 2004, Plaintiff saw Wlasichuk after the prior day's examination in Oakland left her neck sore and swollen. On April 1, 2004, Plaintiff's neck remained sore and swollen.

On May 3, 2004, Wlasichuk directed Plaintiff to remain out of work until June 1, 2004. Although her neck remained sore, Plaintiff was walking well and was not using the cervical collar. Passive rotation was 20E; bends, 15E; extension, 15E; and flexion, 20E. Plaintiff was not crying, but displayed flat affect.

Porterville Health Care Center. Records from May 1, 2003, through June 25, 2004, reflect Plaintiff's routine gynecological care. The notes include no reference to Plaintiff's back or neck injuries or to any ongoing physical impairment. On October 13, 2003, Alfonso Lupian, P.A.C., noted, "Patient appears in no acute distress." AR 301.

Dr. Klein. On March 16, 2004, psychologist Sandra H. Klein, Ph.D., prepared a pain and behavioral health report. After administering and analyzing the Pain Patient Profile, Klein determined that Plaintiff's depression, anxiety, and somatization were above average when compared both to other pain patients and to community subjects. On the Millon Behavioral Health Inventory, Plaintiff's scores were average on scales measuring chronic tension, recent stress, and social alienation. Her scores were above average on scales measuring premorbid pessimism, future despair, somatic anxiety, and poor response to pain treatment. Klein concluded that psychological factors were severely affecting Plaintiff's pain behavior and response to treatment. On a one-to-five scale of the likelihood of a successful outcome from surgical or other traditional medical intervention, the test scores rated Plaintiff as 5, which represents the poorest candidate for such treatment.

Dr. Newton. On April 8, 2004, neurologist Frederic H. Newton, M.D., an Agreed Medical Examiner in Plaintiff's workers' compensation case, prepared a report of his neurologic evaluation of Plaintiff on March 16, 2004. Newton observed that Plaintiff's clinical presentation was significantly influenced by psycho-social and "characterological" factors. Although he emphasized that Plaintiff's condition was not "in her head," her symptoms were fueled by her emotions. Plaintiff, said Newton, was focused on her somatic symptoms and her perception of her impairment. Newton considered Plaintiff's psychiatric problems to be significant and recommended an evaluation by a mental health specialist.

Newton determined that Plaintiff 's condition was permanent and stationary for workers' compensation purposes. Her disability included an about-one-third reduction in spinal motion with constant slight pain and slight/moderate headache. Plaintiff's pain could become moderate following heavy work. She could not perform heavy lifting or repeated flexion/extension movements of her cervical spine.

Newton opined that Plaintiff's continuing medical care would require continued reassurance, support, and encouragement; occasional physical therapy; and three to four annual doctor visits for medication monitoring. Plaintiff could not return to her prior work but was a candidate for vocational rehabilitation.

Dr. Wlasichuk. Beginning on June 1, 2004, Wlasichuk's progress reports no longer directed Plaintiff to remain off work. He observed that Plaintiff was less depressed. She demonstrated full flexion; rotation, 25E; and bends, 20E.

Dr. Whyman. On June 28, 2004, psychiatrist Andrew D. Whyman, M.D., reported on his agreed medical examination of Plaintiff on June 9, 2004, which was submitted as part of her workers' compensation claim. Plaintiff complained of head and neck pain, pointing out "what she call[ed] a big bump on her neck." AR 322. Her daily headaches lasted at least three hours and blurred her vision. She reported dry mouth, cold sweats, and upper back pain.

Psychologically, the first four months after the assault had been the worst, said Plaintiff, describing pain, irritability, anger, seclusion, and suicidal thoughts. The pain, combined with the loss of her career and her ability to manage her life, had made her depressed and angry. Plaintiff believed that her condition had improved thereafter, but had now leveled off, so that she would never be any better than she felt. In his summary, Whyman noted that Plaintiff's account of her adjustment after her injuries was "modestly compromised," including elements of repression and denial.

At the time of the interview, Plaintiff reported poor sleep, dreams in which she relived the assault, unwillingness to have people around her, a dislike of anyone touching her hair, and weight gain. On the other hand, for the first time in her life, she was able to spend time at home and actually enjoy it. "[S]he add[ed] quickly that she does not like to go out and so she stays home a lot and she is afraid of crowds and doesn't want to go into Walmart because of the crowds." AR 323. Although Plaintiff reported that her depression returned when she was told she could not return to her former job, Whyman questioned whether she had ever intended to return to her job.

Plaintiff described her daily activities as beginning at 7:00 a.m., when she awoke to get her children ready for school. She took her medication, which Glover had previously set out for her. (Glover, who worked third shift, slept in the early part of the day.) Because the school was nearby, the children walked there by themselves. Plaintiff did laundry and ate breakfast. Because of her pain, she spent a lot of time lying down, watching television or staring out the window. After Glover awoke, he would encourage her to get out of the house. At about 3:30 p.m., the children returned from school. Plaintiff supervised school work and the children's swim in the pool. The children spent the weekends with their respective fathers.

Although Plaintiff's extended family lived nearby, Plaintiff told Whyman that they were not close, and she only saw them about once a month. Plaintiff said that her family helped her after her injury only "because that was expected of them." AR 324. At another point in the interview, Plaintiff described her parents as "negative and stupid." AR 327.

Plaintiff had significant financial problems but did not expect to be able to work for a long time. Plaintiff "ma[de] it clear that she [was] not about to take some low-paying job." AR 323.

Whyman observed no thought disorder or cognitive disruption. Although Plaintiff was generally composed, she demonstrated undercurrents of emotionality and anger. Plaintiff worked diligently on the psychological testing, which was interpreted by Dr. Zampardi. Whyman commented:

The profile reveals an exaggerated response set. The MMPI clearly indicates an overemphasis on emotional problems and other tests were also in the extreme range, inconsistent with the clinical assessment.

AR 328.

In his summary, Whyman opined that, as a result of her injury, Plaintiff had "developed a quite substantial reactive emotional syndrome, either a significant and severe Adjustment Disorder or a Major Depressive Disorder." AR 329. Although subsequent treatment improved her condition, Whyman opined that, as a result of the assault, Plaintiff experienced psychiatric injury lasting for at least four to six months after her injury and more probably eight to ten months after her injuries. Her condition had stabilized by the time of Whyman's examination.

The testing administered in the course of Whyman's examination revealed symptom augmentation. Plaintiff demonstrated a pain disorder, in which her subjective complaints far exceeded objective findings. According to Whyman, Plaintiff's pain syndrome was attributable to psychological factors, perhaps primary or secondary gain.*fn14 Whyman cautioned the reader of his report to carefully distinguish Plaintiff's psychiatric disability from secondary gain in the form of the emotional and financial support that Plaintiff acquired from Glover's moving in to care for her.

Whyman opined that, as a result of the emotional repercussions of her injuries, Plaintiff would likely not return to her prior job. "She is capable of commencing vocational rehabilitation," stated Whyman, "and should be encouraged to do so." AR 332.

Dr. Zampardi. Psychologist Tara Zampardi, Ph.D., performed a "blind" personality assessment, that is, an analysis of Plaintiff's psychiatric test results without the knowledge of Plaintiff's history or a clinical interview. Zampardi scored the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), Shipley-Hartford Scale, Beck Depression Inventory (2nd edition), Wahler Physical Symptom Inventory, and Incomplete Sentences Blank, which Whyman had administered to Plaintiff.

Validity testing of Plaintiff's "F minus K" profile on the MMPI-2 yielded strong reasons to doubt the validity of the test results, suggesting a "fake bad" profile, that is, Plaintiff's over-reporting of the extent and severity of her psychological problems. If the profile were treated as accurate, Plaintiff would be either "floridly psychotic or severely disorganized," either of which would have been apparent to Whyman in his interview. Similarly, Plaintiff's elevated score on the FKB scale, also suggested a fake bad profile, that is, an exaggeration of emotional distress. Accordingly, Zampardi opined that it was unlikely that the clinical profile obtained on the MMPI-2 accurately represented Plaintiff's emotional status.

Plaintiff's score on the Beck Depression Inventory indicated that she was within the severe range of depression. Her scores indicated "high levels of hopelessness about the future; medium levels of sadness, getting little pleasure from things previously enjoyed, guilt feelings, disappointment in herself, feelings of agitation and irritability, difficulty making decisions, feeling worthless, lack of energy to do much, difficulty with concentration, fatigue and decreased libido; low levels of feelings that she may be punished, self-criticalness, suicidal thoughts without intent, crying more than usual, and sleeping and eating more than usual." AR 335-36. Zampardi cautioned, however, that the Beck was a poor measure without a clinical interview and was highly susceptible to intentional or unintentional distortion.

Plaintiff's results on the Walther Physical Symptom Inventory placed her within the top ten percent compared to other females in the normative sample. According to Plaintiff, nearly every day she experienced nausea, headaches, neck aches or pains, feeling hot or cold regardless of the weather, difficulty sleeping, backaches, intestinal or stomach trouble, trouble with eyes or vision, feeling tired, muscular weakness, dizzy spells, muscular tension, twitching muscles, poor health in general, and weight gain. Plaintiff's score suggest a considerable emphasis in physical complaints and a high level of somatization. Persons with somatizing tendencies tend to express their psychological and emotional difficulties through physical complaints that are not easily susceptible to treatment.

The Shipley-Hartford Scale estimates an individual's intellectual functioning. Plaintiff scored within the average range. Plaintiff's responses to incomplete sentences indicated a focus on pain, physical complaints, and emotional discomfort.

Zampardi summarized: "Testing suggests that there is significant emphasis on physical problems and concerns including pain and disability. Although actual and significant physical problems may be present, those scoring as [Plaintiff did] may show a tendency of overreacting to minor physical dysfunctions." AR 336.

Dr. Wlasichuk. On July 1, 2004, Plaintiff told Wlasichuk that she was exercising at home but experienced pain when she reached overhead. She was having headaches only three times weekly. Her anxiety and depression were more controlled.

On August 11, 2004, Plaintiff was severely depressed. Wlasichuk referred her to a psychiatrist, Dr. Dellanos, for management of psych meds. On September 27, 2004, Wlasichuk noted gradual, but slow, improvement of neck movement. He began to note Plaintiff's height (5'4"), weight (212 pounds), and blood pressure (104/72) on the progress reports. On November 10, 2004, Plaintiff began to refuse to be weighed.*fn15

Dr. Borrego. Plaintiff received psychotherapy from Rudolfo Borrego, D.S.W., L.C.S.W. For the most part, Borrego's treatment notes are repetitive, generalized, and conclusory one-paragraph summaries of Plaintiff's condition. Their lack of detail provides little insight into Plaintiff's condition and treatment. Plaintiff complained of depression, symptoms of post traumatic stress disorder, and pain syndrome, and received individual psychotherapy, supportive therapy, and stress management. Plaintiff attributed her depression to her physical pain. She grieved the loss of her health, ability to work, and lifestyle. Borrego reported that Plaintiff experienced panic attacks and had required hospital emergency treatment for panic.

Prior to her July 13, 2004 appointment, Plaintiff experienced an emotional set back when physical therapy was terminated.

On November 19, 2004, Borrego completed a claim form for Beneficial Finance on which he indicated that Plaintiff was not expected to return to any employment. Borrego opined that Plaintiff was not a candidate for vocational rehabilitation.

In an undated progress report, Borrego reported that, although Plaintiff continued to require treatment, he stopped providing it to her when workers' compensation stopped paying for it.

Adult Function Report (September 29, 2004). Eighteen months after she was injured, Plaintiff described her daily activities:

1. Wake up to take my medications

2. My companion serves me breakfast

3. Try to sit up for 30 min. to 1 hr

I have a severe cervical sprain

4. Read or watch a little T.V. until my medications starts to doze me to sleep

5. Wait for my children to come home from school

6. Watch my children do the chores to help me

7. Take meds again

Watch my companion help my children with homework Its not a fun days I miss being able to do everything on my own AR 196.*fn16

Plaintiff reported difficulties with personal care stemming from difficulties in bending or reaching up or down. Her medications caused dizziness, drowsiness, and forgetfulness, and prevented her from being able to focus and enjoy events. Because her medications impaired her judgment, she left decisions to her partner, who took care of all her needs. On doctors' orders, she did not lift or walk.

Because going out reminded her of how her life had changed, Plaintiff stayed at home except for medical appointments. ...

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