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Perez v. Colvin

United States District Court, E.D. California

August 8, 2016

MOLLIE C. PEREZ, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         Mollie Christine Perez asserts she is entitled to period of disability and disability insurance benefits under Title II of the Social Security Act. Plaintiff argues the administrative law judge erred in evaluating the medical record and in rejecting the credibility of her subjective complaints. Because the ALJ applied the proper legal standards and substantial evidence supports the determination, the administrative decision is AFFIRMED.


         On February 3, 2011, Plaintiff filed applications for benefits, in which she alleged disability beginning July 25, 2010. (Doc. 16 at 2.) The Social Security Administration denied Plaintiff’s claim for benefits at the initial level on July 13, 2011, and upon reconsideration on February 6, 2012. (Doc. 13-4 at 87, 98.) Plaintiff requested a hearing, and testified before an administrative law judge (“ALJ”) on October 18, 2012. (Doc. 13-3 at 55.) On October 24, 2012, the ALJ denied her claim. (Doc. 13-4 at 37.)

         The Appeals Council reviewed Plaintiff’s case and remanded for a new hearing. (Id. at 44.) Plaintiff again testified before an ALJ on May 6, 2014. (Doc. 13-3 at 12.) The ALJ issued a decision denying Plaintiff’s application for benefits on August 15, 2014. (Id. at 20.) Plaintiff requested for review of the decision once more, but the Appeals Council denied the request on December 12, 2014. (Id. at 2.) Therefore, the ALJ’s determination became the final decision of the Commissioner of Social Security (“Commissioner”).


         District courts have a limited scope of judicial review for disability claims after a decision by the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact, such as whether a claimant was disabled, the Court must determine whether the Commissioner’s decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The ALJ’s determination that the claimant is not disabled must be upheld by the Court if the proper legal standards were applied and the findings are supported by substantial evidence. See Sanchez v. Sec’y of Health & Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).

         Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole must be considered, because “[t]he court must consider both evidence that supports and evidence that detracts from the ALJ’s conclusion.” Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).


         To qualify for benefits under the Social Security Act, Plaintiff must establish she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if:

his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). If a claimant establishes a prima facie case of disability, the burden shifts to the Commissioner to prove the claimant is able to engage in other substantial gainful employment. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984).


         To achieve uniform decisions, the Commissioner established a sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 404.1520, 416.920(a)-(f). The process requires the ALJ to determine whether Plaintiff (1) engaged in substantial gainful activity during the period of alleged disability, (2) had medically determinable severe impairments (3) that met or equaled one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether Plaintiff (4) had the residual functional capacity to perform to past relevant work or (5) the ability to perform other work existing in significant numbers at the state and national level. Id. The ALJ must consider testimonial and objective medical evidence. 20 C.F.R. §§ 404.1527, 416.927.

         A. Relevant Medical Evidence

         In August 2009, Plaintiff sought treatment at the Northwest Medical Group, reporting that “for the last 2-3 years she [had] been having left should pain with radiation between should blades on/off.” (Doc. 13-8 at 39.) She described the pain as a “dull ache, constant, ” which changed to a “stabbing” pain with movement. (Id.) Dr. Martin Wenthe determined Plaintiff had “[b]ilteral middle paraspinal muscle tenderness, ” “[m]ildly reduced flexion, ” and “mildly reduced left lateral motion.” (Id.) He referred Plaintiff to physical therapy. (Id. at 40.)

         Plaintiff attended six physical therapy sessions with Michael Jimenez for treatment of her neck and shoulder pain. (Doc. 13-8 at 2.) On September 29, 2009, Mr. Jimenez noted that Plaintiff “demonstrated ongoing palpatory tenderness of bilateral supraspinatus and bicep tendon insertions of shoulder, indicative of ongoing inflammation.” (Id.) However, Plaintiff reported her shoulders were “doing better and were no longer ‘achy’ at rest.” (Id.) Plaintiff requested that she be discharged from physical therapy, reporting she was “unable to afford [it]… secondary to a high deductible and financial constraints.” (Id.) Mr. Jimenez believed Plaintiff would experience “ongoing inflammation should she neglect treatment of her condition, ” but discharged Plaintiff as requested. (Id.)

         In October 2009, Plaintiff complained of fatigue, fever, and shortness of breath. (Doc. 13-8 at 34, 25) Dr. Matthew Lozano ordered x-rays, and found “[n]o active disease” in the chest. (Id. at 34) However, he determined Plaintiff had degenerative disc disease in the thoracic spine. (Id.)

         On February 2, 2010, Alison Lansing, a marriage and family therapist, conducted a diagnostic interview with Plaintiff, “who requested therapy due to stress at work.” (Doc. 13-8 at 7, 9.) Plaintiff reported she worked as a group travel agent, and had an “increased work load” after the company laid off some employees. (Id.) She reported being overwhelmed, having “panic attacks at work and at home, ” “decreased energy, difficulty concentrating at work, ” and feeling tired. (Id.) Plaintiff said she could not “remember the last time she slept through the night, ” and when she awakened, she felt tense and “beaten up in shoulders and back.” (Id.) Plaintiff had her first therapy session with Ms. Lansing on February 8, at which Plaintiff reported she felt “anxious from work” and “scatterbrained, distracted” over the weekend. (Id.)

         On February 10, 2010, Dr. Lozano examined Plaintiff and found she had “bilateral middle paraspinal muscle tenderness, “mildly reduced flexion, ” and “left lateral motion.” (Doc. 13-8 at 19.) He also noted Plaintiff reported depression, anxiety, and insomnia. (Id.) Dr. Lozano found no change in Plaintiff’s personality, “no memory problems, no mood swings, … [and] no suicide ideation.” (Id.) He prescribed sleeping medication to Plaintiff. (Id. at 5.)

         On February 18, 2010, Plaintiff told Ms. Lansing she did not have any panic attacks during the prior week. (Doc. 13-8 at 5.) Plaintiff said she was sleeping longer with the prescribed mediation, but was “still very tired.” (Id.) Ms. Lansing opined Plaintiff had a major depressive disorder and an anxiety disorder, not otherwise specified. (Id. at 10) She noted Plaintiff’s goal was to decrease her anxiety and stress, and believed Plaintiff’s prognosis was “good.” (Id.) In March 2010, Plaintiff continued to report she was “doing better with [anxiety]” and “sleeping better, ” though still tired. (Id. at 4) Plaintiff then discontinued her therapy sessions with Ms. Lansing, stating she “want[ed] to catch up on copays” and would “call when ready to [return].” (Id. at 3)

         Dr. Lozano examined Plaintiff on March 30, 2010, and found she was “[o]riented to person, place, time and general circumstance.” (Doc. 13-8 at 16.) Dr. Lozano opined Plaintiff’s mood was “appropriate” and she exhibited “[n]ormal judgment and insight.” (Id.)

         On July 30, 2010, Plaintiff told Dr. Lozano that her anxiety had increased, and she felt “emotionally paralyzed.” (Doc. 13-8 at 44.) She also told Dr. Lozano that she “[w]ould rather not work.” (Id.) Plaintiff reported “[n]o change in personality, no memory problems, [and] no mood swings.” (Id. at 45.) According to Dr. Lozano, Plaintiff was “[o]riented to person, place, time and general circumstances.” (Id.) In addition, Plaintiff exhibited normal judgment and insight. (Id.) He recommended Plaintiff see a counsellor and would “need to take time off.” (Id. at 46.)

         On May 5, 2011, Dr. Rustom Damania a conducted a consultative physical examination of Plaintiff. (Doc. 13-8 at 48- 53.) Plaintiff complained of having “joint pains for one year, ” “psychiatric problems, hyperlipidemia and obesity.” (Id. at 48.) Plaintiff reported the only medication she was taking was Excedrin and Advil PM. (Id.) Dr. Damania observed that Plaintiff was “a well-developed, obese female in no distress, ” and “was alert, cooperative and well-oriented in all spheres.” (Id. at 50.) Dr. Damania found “no tenderness to palpation in the midline or paraspinal areas” and “no muscle spasm.” (Id.) Plaintiff’s range of motion was normal in her back, shoulders, elbows, and hands. (Id. at 51.) In addition, Dr. Damania determined Plaintiff had “good active tone” and her strength was “5/5 in all extremities.” (Id. at 52.) Dr. Damania concluded: “The patient should be able to lift and carry 20 pounds occasionally and 10 pounds frequently. The patient can stand and walk six hours out of an eight hour work day with normal breaks. The patient can sit six hours.” (Id. at 53.) Dr. Damania did not find any postural, manipulative, visual, or communicative impairments. (Id.)

         Dr. Sadda Reddy reviewed Plaintiff’s medical record on May 19, 2011. (Doc. 13-8 at 54-56.) Dr. Reddy opined there were “no treatment records to support [Plaintiff’s] allegations of pain.” (Id. at 54.) In addition, Dr. Reddy observed that Plaintiff had a “[n]ormal exam of all joints including fingers” as well as “[n]ormal strength, sensation and gait.” (Id. at 56.) According to Dr. Reddy, the limitation to light work-as recommended by Dr. Damania-had “no objective basis considering a normal physical exam.” (Id.)

         On May 23, 2011, Plaintiff went to Dr. Lozano, complaining of seasonal allergies, anxiety, and joint pain. (Doc. 13-8 at 85-86.) Dr. Lozano observed that Plaintiff was “[o]riented to person, place, time and general circumstances, ” and Plaintiff continued to have an “appropriate” mood and affect with “[n]ormal judgement and insight.” (Id. at 86.)

         Dr. Steven Swanson conducted a psychological assessment on May 24, 2011. (Doc. 13-8 at 57.) He administered the Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV), Wechsler Memory Scale-Fourth Edition (WMS-IV), Bender Visual-Motor Gestalt Test, 2nd Ed. (Bender-Gestalt II), and Trail Making Test. (Id. at 57-58.) The plaitntiff told Dr. Swanson that she was not taking any medication, and could not afford the prescribed anti-depressant. (Id. at 58-59.) Plaintiff said she was “independently able to complete all activities of daily living, ” and spent her day reading, doing crossword puzzles, on the computer, and visiting the library. (Id. at 59.) Dr. Swanson found Plaintiff’s “[s]hort-term, recent, and remote memories were within normal limits.” (Id.) Also, he determined Plaintiff had a full scale I.Q. of 89 with the WAIS-IV, and her WMS-IV scores did “not reveal relative weakness in memory functioning.” (Id. at 61.) Dr. Swanson believed Plaintiff “maintained satisfactory attention and concentration and the results [were] considered a valid representation of her functioning.” (Id. at 60.) He concluded Plaintiff’s “mental and emotional functioning [fell] within normal limits.” (Id. at 62.)

         Dr. Rosalia Pereya completed a psychiatric review technique form on July 6, 2011. (Doc. 13-8 at 65.) She believed Plaintiff had an adjustment disorder with an anxious and depressed mood, but this caused no restrictions on her activities of daily living; no difficulties maintaining social functioning; no difficulties in maintaining concentration, persistence, or pace. (Id. at 68, 75.) Dr. Pereya noted Plaintiff was not taking psychiatric medication, and concluded her symptoms were not severe. (Id. at 77.)

         In September 2011, Plaintiff returned to Northwest Medical Group for treatment. (Doc. 13-8 at 81-83.) Plaintiff reported her anxiety was “getting worse” and she was “[h]aving trouble getting out of the house.” (Id. at 81.) Dr. Lozano believed Plaintiff exhibited normal judgement and insight, but appeared “depressed, anxious, [and] apprehensive.” (Id. at 82.) He prescribed Cymbalta for Plaintiff, and recommended she “check in” with her counselor. (Id. at 83.)

         In November 2011, Plaintiff told Dr. Lozano that she “[c]ould not take the cymbalta with[out feeling] [n]ausea and feeling weird.” (Doc. 13-8 at 89.) She stopped taking the medication and “[t]hen got very depressed.” (Id.) Dr. Lozano observed Plaintiff appeared depressed, but was “not nervous/anxious.” (Id.) Further, Dr. Lozano opined Plaintiff’s memory, cognition, and judgment were normal. (Id.)

         Dr. Ernest Wong reviewed the record and completed a case analysis on December 27, 2011. (Doc. 13-8 at 93.) Dr. Wong observed that Plaintiff “doesn’t allege any physical issues” and “overall” her examination results were “completely” normal. (Id.) Dr. Wong concluded Plaintiff’s physical impairments were not severe. (Id.)

         Dr. Frances Breslin completed a psychiatric review technique form and mental residual functional capacity assessment on January 7, 2012. (Doc. 13-8 at 94-112.) Dr. Breslin opined Plaintiff suffered from an adjustment disorder with mixed anxiety depressed mood. (Id. at 97.) Dr. Breslin believed Plaintiff had mild restriction of activities of daily living; mild difficulties in maintaining social functioning; and moderate difficulties in maintaining concentration, persistence or pace. (Id. at 104.) Specifically, Dr. Breslin indicated Plaintiff was “not significantly limited” in all areas of understanding, memory, concentration, persistence, and social interaction. (Id. at 109-11.) However, she was “moderately” limited with “[t]he ability to respond appropriately to changes in the work setting.” (Id. at 111.) Dr. Breslin concluded Plaintiff was able to “understand and remember simple and detailed instructions.” (Id. at 112.) Additionally, Dr. Breslin opined Plaintiff was able to “work a typical 8-hour workday, ” including appropriate interactions with the public, peers, and supervisors. (Id.)

         On August 3, 2012, Plaintiff told Dr. Lozano that she was “[f]eeling more anxiety over forms with SSI” and her pain was worse. (Doc. 13-9 at 14.) She reported her joints were “painful” and she had knee and “mid back pain with movement.” (Id.) Plaintiff reported she “[h]ad been unable to afford testing.” (Id.) Dr. Lozano found Plaintiff exhibited “decreased range of motion” in both knees and her thoracic spine. (Id.)

         On August 6, 2012, Plaintiff visited Clinica Sierra Vista for treatment. (Doc. 13-9 at 50.) She told Dr. Getta Ramesh that she had “sharp and throbbing” pain in her knees, which was “aggravated by bending, sitting and walking.” (Id.) In addition, Plaintiff said she had pain in her neck and back. (Id.) Dr. Ramesh determined Plaintiff had a normal gait and “[n]ormal range of motion, muscle strength, and stability in all extremities with no pain on inspection.” (Id. at 52.) Dr. Ramesh ordered x-rays of Plaintiff’s knees, lumbar spine, and cervical spine. (Id. at 52, 55.) Upon ...

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