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McCoy v. Colvin

United States District Court, N.D. California

November 24, 2014

LOLITA MCCOY, Plaintiff,

For Lolita McCoy, Plaintiff: Erika Dale Bailey Drake, LEAD ATTORNEY, Law Offices of Erika Dale Bailey Drake, Calabasas, CA.

For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Timothy R. Bolin, LEAD ATTORNEY, Special Assistant United States Attorney SSA, OGC, San Francisco, CA; Alex Gene Tse, U.S. Attorneys Office, San Francisco, CA.


JACQUELINE SCOTT CORLEY, United States Magistrate Judge.

Plaintiff Lolita McCoy (" Plaintiff") brings this action pursuant to 42 U.S.C. § 405, subdivision (g), seeking judicial review of a final decision by Defendant Carolyn W. Colvin, the Commissioner of the Social Security Administration (" Defendant" or " Commissioner"), denying her disability benefits. Now pending before the Court is Plaintiff's motion for summary judgment and Defendant's cross-motion for summary judgment. (Dkt. Nos. 12, 13.) After carefully considering the parties' submissions, the Court DENIES Plaintiff's motion for summary judgment and GRANTS Defendant's cross-motion for summary judgment.


A claimant is considered " disabled" under the Social Security Act if she meets two requirements. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, the claimant must demonstrate " an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). Second, the impairment or impairments must be severe enough that she is unable to do her previous work and cannot, based on her age, education, and work experience " engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). To determine whether a claimant is disabled, an ALJ is required to employ a five-step sequential analysis, examining:

(1) whether the claimant is " doing substantial gainful activity"; (2) whether the claimant has a " severe medically determinable physical or mental impairment" or combination of impairments that has lasted for more than 12 months; (3) whether the impairment " meets or equals" one of the listings in the regulations; (4) whether, given the claimant's " residual functional capacity, " the claimant can still do his or her " past relevant work"; and (5) whether the claimant " can make an adjustment to other work."

Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); see also 20 C.F.R. § § 404.1520(a), 416.920(a).


Plaintiff applied for Supplemental Security Income (" SSI") and Disability Insurance Benefits (" DIB") on September 1, 2009. Plaintiff alleges that her disability began on February 17, 2009. The Social Security Administration (" SSA") denied her initial application and also on reconsideration. Plaintiff then timely filed a request for a hearing before an administrative law judge (" ALJ").

A hearing was held before ALJ Timothy Stueve on June 28, 2011 in Oakland, California. Testimony was given by Plaintiff, Plaintiff's mother Leola Buchanan, and vocational expert (" VE") Joanne Yoshioka. The ALJ issued a written decision denying Plaintiff's application. After the Appeals Council denied review on March 26, 2013, the ALJ's decision denying Plaintiff's application for a period of disability, SSI, and DIB, became the final decision of the Commissioner. Plaintiff subsequently brought the current action, seeking judicial review pursuant to 42 U.S.C. § 405(g).


Plaintiff McCoy, now 54, underwent an elective craniotomy with resection of a left temporal meningioma on February 17, 2009. (AR 393.) There were no intraoperative or postoperative complications and Plaintiff was discharged from the hospital on February 20, 2009. (AR 393.) Plaintiff alleges disability stemming from this procedure. (AR 205.) Plaintiff previously worked as a receptionist, an operator, a medical billing clerk, and as a clerical assistant. (AR 60-62, 218.) She engages in the following daily activities: grocery shopping, watching television, preparing meals on occasion, household chores, checking the mail, listening to music, reading and writing, and talking with friends and family on the phone. (AR 72, 235-240.)

A. Medical Evaluations

1. Dr. Patel, Dr. Dougherty, and Dr. Zemo

Plaintiff presented to the Highland Hospital emergency department on January 13, 2009 complaining of ongoing headaches. (AR 379-80.) An MRI showed that Plaintiff had a left temporal meningioma (benign brain tumor). (AR 489.) Elective surgery was scheduled for February 17, 2009 and Plaintiff was scheduled to visit the hospital for a clinic appointment at the end of January. Plaintiff presented to the emergency department three days before the scheduled appointment complaining of headaches and requesting emergency surgery to remove the tumor. (AR 346.) A medical report listing Drs. Atul Patel and Joseph Dougherty as Plaintiff's treating physicians indicated that Plaintiff was told at length that her condition was " non emergent, " that the tumor was benign, and that the tumor would " not spread deeper into other tissue." (Id.) The report further noted that Plaintiff appeared " extremely suspicious of medical personnel, " that Plaintiff " remain[ed] dubious about the accuracy of the information offered to her, " and that Plaintiff refused to take any of the medications offered to make her more comfortable and " slow the growth of the tumor." (Id.) The report also indicated that Plaintiff had not been taking the drug Dilantin[1] as she was previously prescribed, and that it was recommended she take Ativan to control her anxiety. (AR 347.)

Plaintiff attended her clinic appointment on February 4, 2009 to give her consent for the February 17, 2009 surgery. (AR 406.) Dr. Sessunu Zemo noted that Plaintiff was " noncompliant with any other medications that were prescribed, such as Dilantin and Ativan." (AR 406.) In an undated follow up appointment before Plaintiff's surgery, Plaintiff's treating physician indicated that Plaintiff was " encouraged and educated about the risks of not being compliant with her Dilantin, and [that Plaintiff] acknowledged those risks but did not intend on being compliant." (AR 408.) Plaintiff had successful surgery on February 17, 2009 and was prescribed the following medications: Decadron for inflammation, Vicodin elixir for pain, and Dilantin to prevent seizures. Following discharge, Plaintiff was scheduled for a follow up with the neurosurgery department on February 27, 2009 to determine her ability to return to work. (AR 396.) The record does not indicate what was discussed at this appointment.

Plaintiff met with Dr. Patel for an additional follow up on July 17, 2009. (AR 343.) Dr. Patel noted that he had previously prescribed Plaintiff the drug Elavil[2] after she presented to the emergency department on June 9, 2009 complaining of severe headaches. (Id.) Plaintiff told Dr. Patel that she " took one pill and didn't like it." (Id.) Dr. Patel also indicated that Plaintiff had many vague complaints such as headaches, memory difficulties, stiffness, and stress that were not explained by her surgical procedure. (Id.)

2. Dr. Sani

Plaintiff had two follow up MRI appointments in August 2009. An MRI reviewed by Dr. Sani on August 4, 2009 showed no evidence " to suggest recurrent and/or residual tumor." (AR 488.) The results also showed " increased signal in the periventricular white matter" which the doctor opined " most likely represent chronic microvascular ischemia." (Id.)

3. Dr. Castro-Marie

Plaintiff's next MRI was performed on August 26, 2009. Dr. Castro-Marie's neurosurgery progress notes from that visit report that Plaintiff was still complaining of head pain that was relieved by taking Ibuprofen. The doctor noted that there was " no recurrence of tumor" and " scattered areas of high intensity in periventricular white matter." (AR 342.) Dr. Castro-Marie scheduled a follow up MRI to check for multiple sclerosis. According to Plaintiff, Dr. Castro-Marie told her that the white spots on her brain were likely aging spots. (AR 65, 304.)

4. Dr. Lee

On October 10, 2009, Plaintiff had another MRI and Dr. Chung Lee concluded that Plaintiff did not have multiple sclerosis. (AR 490.) Dr. Lee indicated that there was " [n]o evidence of recurrent tumor" and " [m]ultiple foci of increasing intensity in the periventricular white matter on long TR images." (Id.) Dr. Lee noted that " [t]he size and number of the plaques appear stable when compared to the prior study dated August 4, 2009." (Id.) Plaintiff's medical records dated October 16, 2009 indicate that Plaintiff did not need to be referred to neurology because she was without symptoms. (AR 340.) The report noted limited range of motion in the cervical and lumbar spine, but no motor weakness and no sensory deficit. The report further noted that the MRI from October 10 showed " stable demyelinating plagues in periventricular white." (Id.) Plaintiff was scheduled for a follow up MRI in one year.

5. Physician's Assistant McDonald -- January 2010 to August 2010

Plaintiff visited her primary care provider on January 25, 2010 complaining of abdominal girth, weight gain, and ongoing headaches. (AR 442.) She also complained of hiccups and nausea that were made better by eating. Plaintiff's Physician's Assistant, Shivaun McDonald, noted that Plaintiff's abdomen was " very firm, enlarged" and " quite tender throughout." (AR 443.) Ms. McDonald recommended scheduling a CT scan for Plaintiff's abdomen and pelvis as soon as possible. A CT scan performed on February 5, 2010 showed that her abdomen and pelvis were " basically normal except for [a] small stable liver lesion and [a] stable fibroid." (AR 441.) Ms. McDonald reported that Plaintiff stated her abdominal symptoms were made better by taking antacids such as Pepcid. (Id.)

Plaintiff left a telephone message at her primary clinic on April 7, 2010 stating that she went to the emergency room on April 2, 2010 with " throbbing pain in her brain" after completing her first day of physical therapy. (AR 439.) Physician's Assistant McDonald noted in her clinic progress report that Plaintiff received " a head CT which was negative, " and that Plaintiff " was prescribed Dilantin which she did not get." (Id.) Plaintiff returned to her primary care clinic on April 26, 2010 and stated that her first physical therapy session caused her intense pain and that she did very little in her second session. (AR 438.) Plaintiff again refused any pain medication. Plaintiff returned to Ms. McDonald on August 2, 2010 with " multiple head to toe complaints, " but Ms. McDonald noted that " care [was] challenging/difficult" because Plaintiff was " reluctant to hear recommendations." (AR 434.)

Ms. McDonald completed a medical source statement on August 26, 2010 signed by supervising physician Dr. Wolfsy indicating that Plaintiff suffered from a history of temporal meningioma, chronic post-surgery headaches, chronic pelvic pain, and uterine prolapse. (AR 428.) She opined that Plaintiff could not comfortably lie down and that Plaintiff would need breaks every 10 to 15 minutes if she were to return to work. Ms. McDonald expressed that the only medication Plaintiff had taken was Ibuprofen, and that Plaintiff preferred no medication in general because she reported a history of past drug allergies. (AR 429.) She further noted that Plaintiff indicated physical therapy made her worse.

6. Dr. Ghassemi

Plaintiff had another MRI on June 2, 2010 which was read by Dr. Ghassemi and compared with the findings from her October 9, 2009 MRI. (AR 455.) Dr. Ghassemi found " [n]o evidence of residual or recurrent meningioma, " and " [s]table supratentorial white matter disease which may be related to chronic small vessel ischemic disease or demyelinating disease." (Id.)

7. Dr. Acharya

Plaintiff visited the Neurology Clinic on July 26, 2010. Dr. Acharya indicated that Plaintiff was still complaining of brain pain and other generalized body pains. (AR 435.) Plaintiff stated that she did not want any new medication without knowing if it was a different medication than previously given to her. (Id.)

Dr. Acharya thereafter reviewed Plaintiff's follow up MRI on October 6, 2010 and noted that Plaintiff was still complaining of consistent pain at the surgery site. (AR 430.) Plaintiff reported feeling weak and dizzy, but stated that she had not suffered any seizures. Dr. Acharya wrote that Plaintiff did not bring her medications as she was instructed, and that Plaintiff stated she was not willing to take the medications. Plaintiff also did not believe Dr. Acharya when he told her that the white spots showing up on her MRI were present before her surgery. (Id.)

8. Dr. Katzenberg

On January 10, 2010, Plaintiff saw neurological consultative examiner Dr. Daniel Katzenberg. (AR 409-10.) Dr. Katzenberg reviewed Plaintiff's medical record and conducted an examination. He indicated that Plaintiff had obvious signs of surgery but that she " had no findings on exam, i.e. she is intact from a sensory motor standpoint." (AR 410.) He noted that the only issue was " head pain and poor sleep resulting from the head pain, which certainly could affect her ability to function during the day, primarily because of the relative sleep deprivation." (Id.) Dr. Katzenberg further indicated " [s]he is subjectively disabled by head pain and potentially cognitive impaired by poor sleep." (Id.) He opined that " [i]t might be worth having her see a psychologist to determine whether there is any cognitive dysfunction from the brain tumor or from the pain and sleep deprivation." (Id.) Dr. Katzenberg's functional capacity assessment concluded that Plaintiff had no physical restrictions. He opined that from a neurological standpoint, there were " no physical restrictions other than those normally accorded to headaches, which, in this case, have an underlying organic basis." (Id.)

9. Dr. Reddy and Dr. Harar

On February 1, 2010, Plaintiff's record was reviewed by State agency consultant Dr. Reddy. (AR 417.) Dr. Reddy prepared a written Residual Functional Capacity (" RFC") and concluded that Plaintiff was less than fully credible. He opined that Plaintiff's headaches were relieved by taking over the counter Ibuprofen and that Plaintiff was able to go out alone and handle her personal care. He also noted that based on Plaintiff's activities of daily living, Plaintiff had no signs of concentration limitations. Dr. Reddy indicated that Plaintiff did not allege any mental deficits due to her brain tumor, and that the evidence did not support " a possible, discrete mental impairment." (AR 418-19.) Dr. Reddy based this opinion on the activities of daily living reported by both Plaintiff and her mother. He considered Plaintiff's ability to go out alone, her ability to concentrate without difficulties, her ability to follow written and spoken instructions, and her ability to handle finances and take medications without reminders. (AR 419.) Dr. Reddy recommended " RFC with hazard precautions" considering Plaintiff's potential for seizures. (AR 413, 415.) He concluded that Plaintiff's " [h]eadache severity and frequency do not meet or equal any listing." (AR 413.)

On July 19, 2010, State agency consultant Dr. Harar completed a written RFC for Plaintiff. (AR 421-27.) Dr. Harar concluded that Plaintiff had no exertional limitations, but that she should avoid concentrated hazards. Dr. Harar noted that Plaintiff complained of headaches but that her CT was negative. She concluded ...

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