United States District Court, E.D. California
JEANNE C. COLE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security,  Defendant.
ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY
COMPLAINT (DOC. 13)
S. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Jeanne C. Cole (“Plaintiff”) seeks judicial
review of the final decision of the Commissioner of Social
Security (“Commissioner” or
“Defendant”) denying her application for
Disability Insurance Benefits (“DIB”) benefits
pursuant to Title II of the Social Security Act. (Docs. 1 and
13). The Commissioner filed an opposition (Doc. 18).
Plaintiff filed a reply. (Doc. 22). The matter is currently
before the Court on the parties' briefs which were
submitted without oral argument to the Honorable Gary S.
Austin, United States Magistrate Judge. After reviewing
the administrative record and the pleadings, the Court finds
the ALJ's decision is supported by substantial evidence
and denies Plaintiff's appeal.
BACKGROUND AND PRIOR PROCEEDINGS
filed an application for DIB on April 8, 2011, alleging a
disability beginning December 20, 2006. AR 34; 148-152. Her
application was denied initially and on reconsideration on
November 14, 2011. AR 34. Plaintiff requested a hearing
before an administrative law judge (“ALJ”). AR
22. ALJ Trevor Skarda conducted a hearing on December 10,
2012 (AR 56-87), and published an unfavorable decision on
January 31, 2013. AR 34-48. Plaintiff filed an appeal and the
Appeals Council denied the request for review on July 24,
2104, rendering the order the final decision of the
Commissioner. AR 1; 18-20.
ISSUES FOR JUDICIAL REVIEW
challenges the ALJ's non-disability determination. She
alleges the ALJ: (1) improperly weighed the medical opinions
in her case. Specifically, she contends that the ALJ did not
properly consider the opinion of Rhonda Johnson, a certified
physician's assistant who treated her, and Dr. Patel, her
treating pulmonologist's opinions, as well as several
other doctors' opinions related to her gastrointestinal
condition; (2) failed to discuss whether fibromyalgia met or
equaled a listing impairment; (3) erroneously rejected
Plaintiff's pain and fatigue testimony; and (4)
improperly relied on the vocational expert's testimony at
step five resulting in erroneously concluding that Plaintiff
could work as an addresser, a lens inserter, and a touch up
screener.Plaintiff argues that the case be remanded
for a calculation of benefits, or in the alternative, that
the case be remanded for further proceedings. (Doc. 13, pgs.
6-28; Doc. 22, pgs. 3-8). The Commissioner opposes each of
these arguments and contends that the ALJ's evaluation of
the medical evidence, his credibility determinations, and his
analysis at step five were proper and are supported by
substantial evidence. (Doc. 17, pgs. 6-16).
THE MEDICAL RECORD
Summary of the Medical Treatment Notes
complained of excessive daytime sleepiness. During a
consultative examination on August 1, 2007, pulmonologist
Kirit Patel, M.D. diagnosed her with obstructive sleep apnea,
fibromyalgia, gastroesophageal reflux, depression, and mild
exogenous obesity. AR 434-435. A sleep study revealed that
Plaintiff had three hundred eighty three minutes of total
sleep time with normal sleep efficiency. AR 436. Plaintiff
was advised that she could undergo nasal CPAP therapy and
should consider weight loss, avoidance of pre-sleep alcohol
intake, and avoidance of supine sleeping position. AR 436.
began seeing Physician's Assistant (“PA”)
Rhonda Johnson at the Central Valley Pain Management and
Wellness Clinic in September 2007 for a re-evaluation of
cervical and low back pain, anxiety, and myofascial pain
syndrome. She reported a pain rating of seven out of ten and
a depression rating of six to seven out of ten. AR 387.
Plaintiff was prescribed Duragesic (a fentanyl transdermal
system to treat pain), Norco (for pain) and Omeprazole (for
acid reflux). AR 387.
continued to see PA Johnson in 2008 and 2009 for monitoring
and adjustment of her medications. During this time she
complained of pain, fatigue, and headaches. AR 389-412. In
July 2008, Plaintiff was doing well with medications despite
ongoing pain throughout her body, muscle weakness, and
swelling. AR 387; 393. The dosage of her Duragesic patch was
reduced in early August 2008 (AR 391) because of concerns
that she was over medicated (AR 389-390), and Plaintiff was
prescribed Avinza for pain. AR 397. Plaintiff's reported
pain control was good on the new medications. AR 391. Later
in August 2008, she presented with headaches and reported
soreness after working in her garden, but continued doing
well on the decreased dosage of Duragesic. AR 393. In October
2008, Plaintiff reported taking Xanax for anxiety and Lexapro
in addition to Duragesic. AR 395-396. Plaintiff requested
that the Duragesic patch be discontinued and another
medication be substituted in its place. AR 395. Plaintiff was
prescribed Valium. AR 396. The Duragesic dosage was reduced
further and the Xanax was discontinued. AR 396. In November
2008, it was reported that Plaintiff was taking Ambien (for
sleep), Lexapro (for depression), Zanaflex (for acid reflux),
Trazodone (for pain), Lexapro (for depression), and Norco
(for pain). Plaintiff's prescriptions for Avinza and
Valium were also renewed. AR 397. She complained of fatigue
in November and December. AR 397; 399.
February 2009, Plaintiff complained of headaches, neck pain,
and lower back pain. She indicated that she was doing great
on her medication schedule and reported a two out of ten on
the pain scale. AR 401. She continued to be in school and was
doing well despite having “pain all over.” AR
403. In April 2009, she complained of fatigue but denied
insomnia. AR 403. She was cleared for low impact physical
education, and assessed her pain at five out of ten. AR 404.
Plaintiff continued to complain of headaches and pain in her
neck and shoulders throughout 2009 reporting a three in June
(AR 405), a one in September (AR 407) and a four in November
(AR 409). She complained of insomnia, fatigue, and anxiety in
September 2009. AR 407. In December 2009, Plaintiff reported
having her “worst headache ever” but was sure it
would be under control and rated her pain at an eight out of
ten. AR 411.
2010, there was no significant change in Plaintiff's
condition or prescriptions. AR 413-425. She complained of
headaches, neck and shoulder pain. AR 413; 415; 417; 419;
421. She also reported she was under stress in September and
October which was exacerbating her pain and making her
anxious. She was prescribed Xanax but did not take it unless
it was absolutely necessary. AR 423; 425. As of October of
that year, she was “stable with her current
medications” and was still anxious because she was in
school completing a degree in archaeology. AR 425. Her
reports of pain on a ten point scale in 2010 were as follows:
June -four (AR 413); March - three (AR 415); July - one (AR
419); September- three to four (AR 421-424); October - three
(AR 425). She reported fatigue only once in September. AR
January 2011, Plaintiff presented with pain in her back,
shoulder along with fatigue. AR 461. She reported increased
stress and requested to see a counselor. AR 461. She
continued to report pain, depression, anxiety and fatigue in
March, May, and June 2011 reporting five, eight and seven (AR
467) on a pain scale for those months respectively.
3, 2011, Plaintiff was seen at Golden Valley Health Center
for lower abdominal pain that she had been experiencing for
two months. AR 264. Physician's Assistant Rios referred
her to a gastroenterologist for suspected obstruction of a
bile duct. AR 265.
6, 2011, an abdominal sonogram performed by Dr. Kleiger
indicated a “constellation of findings considered
highly suspicious for obstruction of the common bile
duct” with dilation of the “main pancreatic duct,
gallbladder, and common bile duct.” AR 258.
15, 2011, Dr. Carlos Canale, M.D. a gastroenterologist,
performed a consultative exam and opined he did not believe
Plaintiff's pain related to a common bile duct
obstruction. He recommended a colonoscopy and a MRI to
evaluate the common bile duct more closely. AR 310-311. A MRI
of Plaintiff's abdomen was preformed and mild intra and
extrahepatic biliary ductal dilatation, distal dilatation
pancreatic duct, as well as rapid tapering at the level of
the ampulia was diagnosed. AR 283.
28, 2011, Plaintiff returned to Central Valley Pain
Management complaining of headaches, neck, back, and chest
pain. AR 467. She also reported lower abdominal pain and
requested additional pain medication that was stronger than
Norco. AR 467. PA Johnson added Oxycodone to Plaintiff's
medications. AR 468.
27, 2011, Plaintiff returned to see PA Johnson and presented
with neck, back, lower abdominal pain, chest pressure, and a
headache. AR 469-470. It was noted that Plaintiff's
insomnia, fatigue, depression, and anxiety had worsened. AR
469. Plaintiff reported an eight on a pain scale of ten and
indicated that the Norco worked better to relieve her pain.
PA Johnson discontinued the Ocxycodone and increased her
Avinza, as well as reduced her Trazodone. AR 470.
August 15, 2011, Plaintiff returned to PA Johnson complaining
of migraines, twitching, fatigue, achiness, blurry vision,
and bruising on the inside of her hands. AR 471. She also
reported back, hip, shoulder, arm, feet, and back pain as a
six on a pain scale of ten. PA Johnson discontinued the
Ocxycodone, and Norco was added back into Plaintiff's
prescription regimen, not to be taken more than six times a
day. AR 470.
August 15, 2011, Dr. Isaac Faraji performed an endoscopic
retrograde cholangiopancreatography, sphicterotomy, and
biliary stent placement. AR 313-315. On August 15, 2011,
Plaintiff was treated at the emergency room by Dr. Truoung
Van Thinh and hospitalized due to vomiting blood and
abdominal pain. AR 292-308. Upon examination, Plaintiff
reported a nine out of ten on the pain scale. AR 292. Dr.
Truong noted that, Plaintiff “has been doing well, in
her normal usual state of health, ” and that apart from
gastrointestinal issues, the ten systems were reviewed and
found to be negative.” AR 293.
abdominal CAT scan was performed on August 16, 2011, which
revealed inhomogeneity in the head of the pancreas with fluid
around the head of the pancreas with probable cholelithiasis
(inflammation of the gall bladder). Mild colitis was also
noted. AR 305. On August 17, 2011, Dr. Canale performed an
esophagogastroduodenoscopy with biopsies due to abdominal
pain and hematemesis (vomiting blood). Gastritis was noted.
AR 270-271. Following those procedures, Plaintiff suffered
pancreatitis. AR 296. She remained in the hospital and was
discharged on August 21, 2011, after she was stabilized. AR
surgery, on August 25, 2011, Plaintiff's presented to PA
Johnson with neck and bilateral shoulder pain on her left
side, rating the pain four out of ten. AR 473. Her medication
helped decrease the pain and her physical examination was
generally normal despite some tenderness and pain when
flexing her neck. AR 473-474. From a psychological
standpoint, Plaintiff presented with with normal cognition,
memory, thought, mood, and affect. AR 474.
continued to be monitored by PA Johnson once every two months
from October 2011 through September 2012. AR 475-496. She
complained of headaches, insomnia and fatigue; continued to
have pain in her back, neck, and shoulder; and exhibited
tenderness in various areas. Id. However, it was
noted during these visits that Plaintiff was ambulatory,
could perform self-care and was able to drive. AR 477; 479;
482; 485; 487; 489; 491; 493. At various times during this
period, Plaintiff was taking Trazodone (for depression),
Xanax (for anxiety), Norco (for pain), Abilify (for
depression), Avinza (for pain) and Lexapro (for depression).
AR 476; 480; 483; 485-486; 490; 494. Her pain fluctuated from
a four to eight on a ten point scale with six being the
average on several visits. AR 475 (October 2011 - seven); AR
477 (Nov. 2011- four); AR 479 (Jan. 2012 - six); AR 482 (Mar.
2012 - six); AR 483 (April 2012- six); AR 487 (May 2012 -
seven); AR 489 (July 2012 - five); AR 491(August 2012 -
eight). In October 2011, it was noted that she had been
overdoing it with household chores and requested a Toradol
injection. AR 475. In November 2011, she was taking Trazodone
at night for sleep, was rarely taking the Xanax for anxiety,
and that she was going to a gym. AR 477.
2012, Plaintiff was seen by Dr. Jaskaran S. Dhingsa, M.D. for
right-sided abdominal pain lasting for five days and feeling
itchy all over her body. AR 449. It was noted that Plaintiff
exercises occasionally. AR 450. Dr. Dhingsa did not find any
anomalies on physical examination except for abdominal
tenderness and constipation. AR 449-453. Plaintiff was
prescribed Miralax and Colace for constipation. AR451; 453. A
comparison abdominal ultrasound in June 2012 indicated
persistent biliary ductal dilatation, including prominence of
the pancreatic and common bile duct, no cholelithiasis, and
was suspicious for hepatocellular disease. AR 448.
2012, Dr. Faraji performed a consultative examination at the
request of Dr. Dhingsa and found Plaintiff to be well
developed . . . [and] in no apparent distress, with normal
ranges of motion, appropriate affect and grossly normal
memory. AR 455-456. Plaintiff was negative for fatigue but
complained of panic attacks and either sleeping too much or
not enough. AR 455. Dr. Faraji diagnosed Plaintiff with
gastroesophageal reflux disease. AR 457.
Faraji saw Plaintiff again on June 27, 2012 for abdominal
pain and elevated liver function test (“LFT”). An
endoscopic retrograde cholangiopancreatography and a change
of her stent was ordered. AR 459-460. An August 10, 2012, a
hepatobiliary iminodiacetice acid scan (“HIDA
scan”) used to diagnose conditions of the gallbladder,
liver and bile ducts was negative. AR 454.
September 2012, she returned to PA Johnson complaining of
migraine headaches and depression because he father was
dying. She did not want additional medication but requested
and received a Toradol injection. A 493-494. On November 1,
2012, Plaintiff underwent surgery with Dr. Greenbarg who
performed a cholecystectomy (surgical removal of gallbladder)
in an effort to address Ms. Cole's pain. AR 499-507. An
examination of the removed gallbladder revealed no gallstones
but chronic cholecystitis (inflammation of the gallbladder).
Summary of Medical Opinions
Medical Impairments a. Dr. ...