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Dominguez v. Colvin

United States District Court, C.D. California

February 26, 2013

Salvador DOMINGUEZ, Jr., Plaintiff,
v.
Carolyn W. COLVIN, Acting Commissioner of Social Security,[1] Defendant.

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[Copyrighted Material Omitted]

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William M. Kuntz, Riverside, CA, for Plaintiff.

Dennis J. Hanna, SAUSA-US Attorney's Office, San Francisco, Assistant U.S. Attorney LA-CV, AUSA-Office of U.S. Attorney, Los Angeles, CA, Assistant U.S. Attorney LA-SSA, Office of the General Counsel for Social Security Adm., for Defendant.

MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER

JEAN ROSENBLUTH, United States Magistrate Judge.

I. PROCEEDINGS

Plaintiff seeks review of the Commissioner's final decision denying his application for Social Security disability insurance benefits (" DIB" ) and Supplemental Security Income benefits (" SSI" ). The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). This matter is before the Court on the parties' Joint Stipulation, filed October 22, 2012, which the Court has taken under submission without oral argument. For the reasons stated below, the Commissioner's decision is affirmed and this action is dismissed.

II. BACKGROUND

Plaintiff was born on February 21, 1968. (Administrative Record (" AR" ) 211.) He has a high-school education. ( Id. ) Plaintiff previously worked as a collection supervisor at a collection agency and as a self-

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employed collector and server of delinquency letters. (AR 212-13.)

On November 14, 2007, Plaintiff filed an application for DIB, and on December 5, 2007, he filed an application for SSI. (AR 22, 277-79, 281-85.) Plaintiff alleged that he had been unable to work since October 5, 2007, because of a stroke, recurring transient ischemic attacks (" TIA" ), depression, and fibromyalgia, among other things.[2] (AR 277, 281, 335, 345, 387.)

After Plaintiff's applications were denied, he requested a hearing before an ALJ. (AR 236-40, 245-49, 251.) A hearing was held on September 23, 2009, at which Plaintiff, who was represented by counsel, appeared and testified, as did a vocational expert (" VE" ). (AR 208-31.) The ALJ, however, determined that the record was not complete and postponed the case. (AR 230.) A supplemental hearing was held on January 20, 2010, at which Plaintiff, who was still represented by counsel, appeared and testified, as did a different VE and medical expert Dr. Arnold Ostrow. (AR 173-207.) In a written decision issued on April 1, 2010, the ALJ determined that Plaintiff was not disabled. (AR 22-32.) On January 4, 2012, the Appeals Council denied Plaintiff's request for review. (AR 1-5.) This action followed.

III. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401, 91 S.Ct. 1420; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir.2007). It is more than a scintilla but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.2006)). To determine whether substantial evidence supports a finding, the reviewing court " must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.1998). " If the evidence can reasonably support either affirming or reversing," the reviewing court " may not substitute its judgment" for that of the Commissioner. Id. at 720-21.

IV. THE EVALUATION OF DISABILITY

People are " disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir.1992).

A. The Five-Step Evaluation Process

The ALJ follows a five-step sequential evaluation process in assessing whether a

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claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir.1995) (as amended Apr. 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a " severe" impairment or combination of impairments significantly limiting his ability to do basic work activities; if not, a finding of not disabled is made and the claim must be denied. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a " severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments (" Listing" ) set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient residual functional capacity (" RFC" ) [3] to perform his past work; if so, the claimant is not disabled and the claim must be denied. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant has the burden of proving that he is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id. If that happens or if the claimant has no past relevant work, the Commissioner then bears the burden of establishing that the claimant is not disabled because he can perform other substantial gainful work available in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). That determination comprises the fifth and final step in the sequential analysis. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n. 5; Drouin, 966 F.2d at 1257.

B. The ALJ's Application of the Five-Step Process

At step one, the ALJ found that Plaintiff had not engaged in any substantial gainful activity since October 5, 2007. (AR 24.) At step two, the ALJ concluded that Plaintiff had the severe impairments of " status post 1991 cervical spinal fracture," " status post posterior lumbar spinal fusion," morbid obesity, obstructive sleep apnea, " history of [TIAs]," and psoriasis. (AR 24-26.) He concluded that Plaintiff's " renal failure/sepsis," diabetes mellitus, TIAs, depression, fibromyalgia, and hypertension were nonsevere. ( Id. ) At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the impairments in the Listing. (AR 26.) At step four, the ALJ found that Plaintiff retained the RFC to perform " sedentary work" with certain additional limitations. ( Id. ) Based on the VE's testimony, the ALJ concluded that Plaintiff could perform his past work as a collector at a collection agency as it was generally performed. (AR 30-31.) Alternatively, at step five, the ALJ concluded that Plaintiff was not disabled under the framework of the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, and that jobs existed in significant numbers in the national economy that Plaintiff could perform.

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(AR 31-32.) Accordingly, the ALJ determined that Plaintiff was not disabled. (AR 32.)

V. RELEVANT FACTS

On October 5, 2007, Plaintiff was seen in the emergency room for complaints of weakness and chest pain. (AR 422.) At discharge, Plaintiff was noted to be ambulating without assistance. (AR 424.) On October 19, 2007, Plaintiff was again seen in the emergency room and was noted to be suffering from nonischemic chest pain and anxiety. (AR 415.)

On January 14, 2008, Plaintiff was admitted to the hospital for complaints of right-side weakness and slurred speech, both of which had been going on " for quite a long time." (AR 618, 620-21.) Plaintiff also complained of back pain and was noted on admission to have high blood pressure. (AR 618.) A brain MRI, brain MR angiogram, and cervical-spine CT scan were normal, but a lumbar-spine CT scan showed bilateral L5 spondylolysis. (AR 132, 460-61, 639-40.) Dr. Chenna Reddy Mallu diagnosed " possible transient ischemic attack," " slurred speech which is longstanding," " [r]ight-sided weakness which is longstanding," and back pain.[4] (AR 618.) Plaintiff was discharged after an overnight stay. (AR 618-19.) On January 25, 2008, Dr. Reddy noted that Plaintiff had chronic back pain, obesity, hypertension, elevated triglycerides, and a two-year history of slow speech. (AR 531.)

On February 24, 2008, Dr. Reddy noted that Plaintiff had slow speech and sent him to the emergency room. (AR 530.) Plaintiff was admitted to the hospital with slurred speech and right-leg weakness. (AR 436, 441-42, 448-49.) He was noted to have a history of hypertension, hyperlipidemia, morbid obesity, possible sleep apnea, and hypertriglyceridemia. (AR 441.) A brain MRI, cerebral MR angiogram, and cervical-spine MRI were normal. (AR 131, 459, 463-64.) On February 25, 2008, Dr. Bhupat H. Desai performed a neurology consultation, noting that Plaintiff reported developing right-side weakness and numbness and abnormal and stuttering speech after October 2007, had dizziness, and had started using a cane. (AR 444.) Dr. Desai noted that Plaintiff had " mild drift of extended right arm," " moderate weakness" in right-lower extremity, reduced " [r]apid alternating movements on the right side," and " slightly brisk" deep tendon reflexes. (AR 445.) Dr. Desai concluded that Plaintiff's " history and findings" were " consistent with acute ischemic stroke, possibly brain stem with residual neurological deficit." (AR 444-46.)

On February 26, 2008, Dr. Reddy noted that MRIs of Plaintiff's brain and cervical spine were negative and a lumbar puncture was " essentially negative" except for elevated protein. (AR 436, 605.) Dr. Reddy's discharge diagnoses were " [p]ossible cerebrovascular accident in the brainstem with residual neurological defects," morbid obesity, hyperlipidemia, hypertension, and metabolic syndrome. (AR 436.)

On February 29, 2008, Dr. Sarah L. Maze examined Plaintiff at the Social Security Administration's request. (AR 467-70.) She noted that Plaintiff had weakness in the right side of his body, was forgetful, and had " poor balance" in his hands. (AR 467.) Dr. Maze observed that Plaintiff had a " very bizarre speech pattern at times speaking in a normal matter and at times speaking with a stutter that is not consistent," " chang[ing] from word to

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word," and that Plaintiff's speech pattern improved " considerably" when he was distracted. (AR 468.) She also noted that Plaintiff's language could be understood. ( Id. ) She found that Plaintiff had normal intelligence, intact sensation, and decreased reflexes on the left. (AR 468-69.) Plaintiff's motor function was 5/5 throughout except for finger abduction on the right, which was " 5-/5." ( Id. ) His grip strength was 35/35/35 on the right and 95/95/95 on the left. (AR 469.) He brought a walker to the examination but left it outside and walked to a chair in the examination room. ( Id. ) She noted that Plaintiff was able to walk independently. ( Id. )

Dr. Maze concluded that Plaintiff had " an unusual speech pattern not resembling dysarthria or aphasia" and " reflex asymmetry suggesting that there was a small cerebral event." (AR 469.) She believed that there was a " component of non-organic overlay in the clinical presentation." [5] ( Id. ) Dr. Maze diagnosed " [h]istory of stroke" and opined that Plaintiff could lift 20 pounds occasionally and 10 pounds frequently, stand and walk for two hours in an eight-hour day, and perform fine motor activities with his arms and legs. (AR 470.)

On March 10, 2008, Dr. Reddy noted that Plaintiff had a history of " CVA," or cerebro-vascular accident, see Luis R. DeSousa et al., Common Medical Abbreviations 58 (1995), and complained of stuttering speech (AR 158). Dr. Reddy noted that Plaintiff had diet-controlled diabetes and referred him to Dr. Ali Mesiwala, at the Southern California Center for Neuroscience and Spine, for treatment of disc prolapse, and to neurology and physical therapy. ( Id. )

On March 25, 2008, state-agency consultant Dr. Franklin Kalmar reviewed the medical evidence in Plaintiff's file and completed a Physical Residual Functional Capacity Assessment. (AR 471-77.) Dr. Kalmar opined that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently, stand or walk for at least two hours in an eight-hour day, sit for about six hours in an eight-hour day, and perform unlimited pushing and pulling. (AR 472.) He could never climb ladders, ropes, or scaffolds, but he could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. (AR 473.) Plaintiff also needed to avoid concentrated exposure to extreme heat and cold, vibration, and hazards. (AR 474.)

On April 17, 2008, a CT of Plaintiff's head was normal. (AR 130.) On April 29, 2008, Dr. Reddy noted that Plaintiff complained of right-side weakness and slow speech that had been going on for four months. (AR 157.) Dr. Reddy's assessment was " brain stem CVA," diet-controlled diabetes, elevated lipids, hypertension, and " ? OSA," or questionable obstructive sleep apnea. [6] ( Id. )

On May 13, 2008, Dr. Mesiwala noted that Plaintiff complained of neck and low-back pain radiating into both legs, with associated numbness and tingling. (AR 110.) Dr. Mesiwala examined Plaintiff and found that he had " slow and broken" speech but intact memory. ( Id. ) Plaintiff had 4 strength diffusely on the right side and 5/5 strength on the left. ( Id. ) His sensation on the right side was decreased to light touch and pinprick. ( Id. ) He had no evidence of cerebellar dysfunction, his gait was slow, and he used a cane. (AR 110-11.) Plaintiff's reflexes were 1 on

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the left and absent on the right. (AR 111.) Dr. Mesiwala noted that a CT of Plaintiff's spine showed L5 spondylolysis that " may be causing low back pain and radiculopathy," whereas Plaintiff's neck and right-hemisphere abnormalities were likely a result of his stroke. ( Id. ) Dr. Mesiwala ordered a lumbar-spine MRI. ( Id. )

On June 23, 2008, state-agency consultant Dr. Leonore C. Limos affirmed Dr. Kalmar's March 2008 RFC. (AR 484.) On July 7, 2008, Dr. Reddy noted that Plaintiff suffered from fibromyalgia, obesity, depression, and elevated lipids. (AR 156.) On August 12, 2008, Dr. Mesiwala noted that an MRI of Plaintiff's lumbar spine showed an L5 pars defect with resultant L5-S1 facet degeneration and hypertrophy, which caused " moderate to severe bilateral L5-S1 foraminal stenosis." (AR 108, 125-26.) Dr. Mesiwala recommended " an operation in which [Plaintiff's] L5 posterior elements are removed, his spinal nerves are decompressed, and he has a fusion." ( Id. )

In an undated note that appears to have been faxed to the Social Security Administration on August 19, 2008, Dr. Reddy stated that Plaintiff had a history of stroke and suffered from fibromyalgia, " spine disk prolapsed," diabetes, and depression. (AR 500.) Dr. Reddy opined that because of Plaintiff's " health condition he is not able to work." ( Id. ) On September 5, 2008, Dr. Reddy wrote a note " to whom it may concern," stating that Plaintiff had " multiple medical problems" and was " permanently disabled." [7] (AR 154.)

On September 8, 2008, Dr. Mesiwala performed the recommended surgery on Plaintiff's lumbar spine. (AR 133-36.) On September 10, 2008, a physical therapist noted that Plaintiff had been walking with a cane and that his physical-therapy goals included ambulating 50 feet with a front-wheeled walker within one week and 150 feet within two weeks. (AR 802-03.) On September 12, 2008, x-rays showed L5-S1 posterior fusion. (AR 123, 577.) Dr. Mesiwala noted that Plaintiff had made an " uneventful" recovery and discharged him from the hospital. (AR 141.) Dr. Mesiwala instructed Plaintiff to participate in activities as tolerated but to wear a brace when out of bed. ( Id. ) That same day, a front-wheeled walker was delivered to Plaintiff. (AR 731.)

On September 25, 2008, Dr. Mesiwala wrote a letter to the Social Security Administration, stating that Plaintiff had undergone " major spine surgery" in September 2008 and would " likely be unable to work for approximately three months." (AR 678.) Dr. Mesiwala believed that as a result of the surgery, Plaintiff would likely have " a 90% improvement" in pain and tingling in his legs but noted that there was " no guarantee" that Plaintiff's low-back pain would be relieved. ( Id. )

On October 7, 2008, Plaintiff was admitted to the hospital for treatment of an infection of his surgical wound. (AR 137-39, 647-48, 653-54, 657-58, 663-64.) Dr. Luong Thanh Ly performed an infectious-disease consultation and found that Plaintiff had an infection of his surgery site; psoriasis; " [c]erebrovascular accident weakness of the extremities, chronic and stable" ; and hypercholesterolemia. (AR 658.) Plaintiff was treated with intravenous antibiotics. (AR 647, 658.) On October 8, 2008, Dr. Mesiwala noted that Plaintiff had " fluent" speech and intact memory and that he was ...


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