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Vasquez v. Colvin

United States District Court, E.D. California

March 24, 2015

ROBERTO MUNIZ VASQUEZ, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER ON PLAINTIFF'S COMPLAINT (Doc. 31)

SHEILA K. OBERTO, Magistrate Judge.

I. INTRODUCTION

Plaintiff, Roberto Muniz Vasquez ("Plaintiff"), seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying his application for Disability Insurance Benefits ("DIB") benefits pursuant to Title II of the Social Security Act. 42 U.S.C. ยง 405(g). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.[1]

II. FACTUAL BACKGROUND

Plaintiff was born on June 7, 1955, and alleges disability beginning on July 22, 2006. (AR 111; 136.) Plaintiff claims he is disabled due to seizures, colitis, and back pain. ( See AR 93-9; 116; 130.)

A. Relevant Medical Evidence

On October 5, 2001, Marilyn Benck, M.D., notified the Department of Motor Vehicles ("DMV") that Plaintiff had suffered a seizure with a lapse of consciousness on October 3, 2001, during his lunch hour at work. (AR 424.) Plaintiff's family reported a history of seizures beginning in 1994. (AR 424.) Dr. Benck noted Plaintiff "has not been under any type of treatment or physician's supervision for his seizures, nor has he had a full workup as to the type of seizures he's experiencing." (AR 424.)

Plaintiff sought treatment at Bautista Medical Group on October 4, 2005. (AR 174.) He complained of seizures and dizziness, abdominal bloatedness, heartburn, indigestion, abdominal gas, and bloody stools. (AR 174.) Plaintiff refused a referral to a gastroenterologist for a colonoscopy and was given advice on diet alterations to help with his symptoms. (AR 175.)

Plaintiff visited the emergency room in January and February 2006, when he was admitted to Community Medical Center after being struck in the head by a baseball bat and later to have his staples removed. (AR 158-59; 164-67; 426-28.) Imaging of Plaintiff's head on January 27, 2006, revealed bilateral soft tissue swelling and bilateral maxillary sinus mucous retention cyst or polyp, but indicated no evidence of acute intracranial abnormality. (AR 160; 168.) Imaging of Plaintiff's left elbow and right fingers were normal. (AR 161-62; 169-70.)

On August 17, 2006, Plaintiff reported seizures and low back pain, but appeared well-nourished and well-developed, with no deformities and full range of motion in the extremities. (AR 172-73.) Plaintiff was prescribed Dilantin, Tegretol, and Celebrex for his seizure symptoms. (AR 173.)

On November 18, 2006, internal medicine consultative examiner Rustom Damania, M.D., examined Plaintiff. (AR 176-80.) Plaintiff was observed to be well-built, well-nourished, and in no acute distress or discomfort. (AR 177.) Dr. Damania observed Plaintiff to be well-groomed, well-dressed, cooperative, and pleasant, with good eye contact. (AR 177.) Plaintiff did not use an assistive device, his gait was normal, his straight leg raise testing was negative in the seated and supine positions, he had full (5/5) motor strength, and he had normal reflexes and sensory exam. (AR 178.) An X-ray of the lumbar spine showed some mild narrowing of the L2-L3 disk and narrowing of the L5-S1 and L4-L5 disks, but was otherwise normal. (AR 180.) Dr. Damania opined Plaintiff could stand, walk, and sit for six hours, lift 50 pounds occasionally and 25 pounds frequently, and had no postural, manipulative, visual, or communicative limitations. (AR 178.) Dr. Damania noted Plaintiff required seizure precautions, and placed "[e]nvironmental limitations... on climbing and balancing secondary to [Plaintiff's] seizures[.]" (AR 178-79.)

On January 19, 2007, State agency physician B.J. Ginsburg, M.D., completed a physical residual functional capacity ("RFC") assessment. (AR 181-85.) Dr. Ginsburg opined Plaintiff could stand, walk, and sit for six hours out of an eight-hour days, and lift and carry 50 pounds occasionally and 25 pounds frequently. (AR 182.) Dr. Ginsburg opined Plaintiff was subject to "usual seizure precautions" and therefore could never climb ladders, ropes, and scaffolds, must avoid "concentrated exposure" to machinery and heights, but could frequently climb ramps and stairs. (AR 183-84.) Dr. Ginsburg identified no postural, manipulative, or communicative limitations, opining Plaintiff could also frequently balance, stoop, kneel, crouch, and crawl. (AR 183.) Dr. Ginsburg opined Plaintiff should avoid concentrated exposure to hazards. (AR 183-84.)

Plaintiff began treating with William Garnica, M.D., on April 6, 2007. (AR 189-90; 196.) In April 2007, physical examination findings were again mostly normal, with normal gait and normal range of motion. (AR 189-90.) Plaintiff reported back pain and bloody stool on August 3, 2007. (AR 472.) On September 29, 2007, Dr. Garnica noted that Plaintiff was unable to work due to chronic abdominal pain arising from his colitis. (AR 466.) On October 5, 2007, and January 21, 2008, Plaintiff reported gastrointestinal distress and abdominal pain, and requested a refill on Vicodin. (AR 464; 465.) On March 25 and April 4, 2008, Plaintiff requested disability, alleging that he could not work. (AR 456; 463.) Plaintiff reported bloody stools and going to a hospital in Tijuana, and Dr. Garnica diagnosed ulcerative colitis but noted Plaintiff's condition was not a guarantee of disability. (AR 456; 463; 464.)

Blood tests on March 28, 2008, indicated that Plaintiff's Dilantin levels were low. (AR 457-60.) On August 6, 2008, Plaintiff reported having no seizures for a year, although his Dilantin levels were still low. (AR 453; 455.) On August 20, 2008, Dr. Garnica opined Plaintiff's epilepsy was stable. (AR 452.) During his office visit in October 2008, Dr. Garnica again observed Plaintiff's epilepsy was stable, but noted Plaintiff's low Dilantin levels and encouraged Plaintiff to resume his medication. (AR 451; 453).

Dr. Garnica also completed a medical source statement on October 16, 2008. (AR 196-200.) Dr. Garnica opined Plaintiff suffered from uncontrolled seizures and chronic headaches (AR 196), but noted an undated MRI of the brain was normal (AR 197). Dr. Garnica opined Plaintiff could occasionally balance, work at unprotected heights and extreme temperatures, and use moving machinery, but could frequently climb, stoop, kneel, bend at the waist, grasp, push and pull, crouch, crawl, and reach above the shoulder level. (AR 198.) However, Dr. Garnica opined Plaintiff was only capable of light work and must avoid heavy machinery, climbing ladders, and driving vehicles due to his epilepsy. (AR 199.) Although Dr. Garnica opined Plaintiff's symptoms were permanent, he expected improvement with continued treatment and opined that Plaintiff would be able to perform work at any exertional level with continued treatment. (AR 200.)

On October 28, 2008, Dr. Garnica noted Plaintiff asked him to fill out "Calwork" forms indicating he is unable to work due to his seizures and observed Plaintiff's colitis was stable. (AR 450.) On April 16 and again on July 16, 2009, Dr. Garnica noted Plaintiff's seizure disorder was stable and opined Plaintiff would be able to return to work within three months. (AR 448; 449.) On October 15, 2009, Plaintiff reported having seizures once or twice a week and Dr. Garnica opined he could return to work within a month (AR 447), and on October 22, 2009, Dr. Garnica noted that Plaintiff was noncompliant with his epilepsy treatment and would be able to return to work within two months (AR 443). Dr. Garnica completed a state disability certification form on October 15, 2009, in which he opined without providing any diagnosis or specific limitations that Plaintiff could not work. (AR 441.) On December 22, 2009, Plaintiff was seen for a sore throat and his seizure medication levels were again low. (AR 438-40.)

On April 15, July 29, September 2, and September 10, 2010, Dr. Garnica observed Plaintiff's epilepsy was "stable." (AR 433; 434; 435; 436.) On January 13, 2011, Dr. Garnica noted that Plaintiff had not had any events in the last year and opined Plaintiff's epilepsy was stable. (AR 430; 688.) Noting that Plaintiff reported three seizures in the past month, Dr. Garnica opined Plaintiff's epilepsy was stable but Plaintiff was noncompliant with his treatment on July 14, 2011 (AR 684), and a lab report showed low levels of Dilantin on July 15, 2011 (AR 689). Plaintiff went to the emergency room at Community Regional Medical Center on July 18, 2011, for a single episode of loss of consciousness after a seizure, and his Dilantin levels were again low (AR 695-96; 699.) After being given Dilantin, Plaintiff returned to baseline and was discharged. (AR 695-96.)

On July 28, 2011, Dr. Garnica observed Plaintiff was not compliant with treatment and Plaintiff's epilepsy was uncontrolled. (AR 685.) On August 25, 2011, Dr. Garnica opined Plaintiff would be able to return to work within three weeks (AR 684; 721), but on September 11, 2011, Plaintiff was admitted to the emergency room for repeated seizures lasting three minutes. (AR 697-98.) Plaintiff was given a refill of Dilantin and follow-up was recommended (AR 697-98), and lab reports again indicated low levels of Dilantin (AR 700). On October 22, 2011, Plaintiff went to the emergency room after a single seizure lasting two to five minute and accompanied by an aura. (AR 701.) Lab reports indicated Plaintiff's Dilantin levels were again low, and he was prescribed Dilantin to bring his levels up. (AR 703-05).

On October 11, 2011, Plaintiff underwent an internal medicine consultative examination with Tomas Rios, M.D. (AR 690-93.) Dr. Rios observed Plaintiff to be well-developed and well-nourished, alert and oriented, and with intact gross cognitive and memory function. (AR 691-92.) Plaintiff's gait was normal and he did not use an assistive device, he moved with ease, and had good range of motion in the shoulders and hips and some tenderness in the region between the thigh and pelvis. (AR 691-93.) Plaintiff had full (5/5) strength throughout with normal muscle bulk and tone, and light touch and pinprick were intact throughout the upper and lower extremities. (AR 693.) Dr. Rios opined Plaintiff could stand, walk, and sit for six hours and lift 50 pounds occasionally and 25 pounds frequently, and could frequently climb, balance, stoop, kneel, crouch, crawl, reach, handle, finger, and feel. (AR 693.) Dr. Rios also noted Plaintiff should be prohibited from working at heights and around heavy machinery due to his seizure disorder. (AR 693.)

On October 26, 2011, State agency physician A. Nasrabadi, M.D., completed a physical RFC assessment. (AR 708-12.) Dr. Nasrabadi opined Plaintiff could stand, walk, and sit for six hours in an eight-hour day and could lift and carry 50 pounds occasionally and 25 pounds frequently. (AR 709.) He further opined Plaintiff could never climb ladders, ropes, and scaffolds and should avoid concentrated exposure to hazards, but could frequently balance, stoop, kneel, crouch, and crawl. (AR 710-11.) Dr. Nasrabadi assessed no manipulative, visual, or communicative limitations. (AR 710-11.) In his case analysis, Dr. Nasrabadi opined Plaintiff's seizures were "not of such frequency, intensity & severity as to meet/[equal] the listings." (AR 714.)

In November of 2011, Dr. Garnica noted that Plaintiff's last seizure had been on October 19, 2011, but opined that Plaintiff's epilepsy was controlled and Plaintiff could return to work in three months. (AR 720.) On February 6, 2012, Dr. Garnia noted Plaintiff's last seizure had been in November of 2011 and opined Plaintiff's epilepsy was stable. (AR 719.) On April 4, 2012, lab results again showed Plaintiff's Dilantin levels were low. (AR 718.) On June 7, 2012, Dr. Garnica observed Plaintiff was compliant with his medication, was not having major seizures, and therefore opined his epilepsy was stable. (AR 717.) On December 6, 2012, Dr. Garnica observed that Plaintiff's epilepsy was stable, and scheduled a follow-up appointment for June of 2013. (AR 716.)

C. Testimony

1. Written Testimony

In his Adult Disability Form completed on August 9, 2006, Plaintiff claimed he was unable to work because he has "seizures on the job which [are] a danger to myself and co-workers (operating equipment) [because] after a seizure it is hard to concentrate, remember instructions, [and] I am not functional after a seizure for many hours." (AR 116.)

In his Seizure Questionnaire completed on September 5, 2006, Plaintiff stated that he has been having one to two seizures per month since 1983. (AR 123.) Plaintiff's seizures were accompanied by convulsions, biting his tongue, urinary incontinence, and loss of consciousness, and lasted 5-10 minutes. (AR 123.) After a seizure, Plaintiff stated he becomes sore and has a migraine headache, and is unable to resume normal activities for three to four hours after regaining consciousness. (AR 123.)

In his Headache Questionnaire completed on June 6, 2007, Plaintiff stated that he has been having daily severe headaches since June 2004, which last as long as he is "outside [his] house." (AR 139.) According to Plaintiff, the left side of his head becomes "very heavy" and he feels pressure, tension, heat, and vibration. (AR 239.) He attributed the headaches to his epilepsy, and noted that his medication "helps [him] to prevent severe epilepsy attacks from happening[, ] [a]lthough [he] do[es] suffer from mild epilepsy attacks." (AR 140.)

In an undated appeal disability report, Plaintiff stated that he was working as a forklift driver at Wawona Frozen Foods, and starting in May 2007 he became "afraid" he would lose his job because his epilepsy attacks had increased to twice a week "due to fatigue at work." (AR 148.) According to Plaintiff,

It[]s hard for me to focus on my job, since I tend to forget what I'm doing. I suffer from memory loss. Sometimes when I'm driving I get dizzy and lose control of the forklift. I suffered from severe headaches because I forced myself to remain focus[ed] on my job. Currently I'm having problems with my sight and I'm loosing ( sic ) my sense of hearing. Some of ...

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