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Cole v. Berryhill

United States District Court, E.D. California

March 31, 2017

JEANNE C. COLE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT (DOC. 13)

          GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff 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.[2] 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.

         II. BACKGROUND AND PRIOR PROCEEDINGS[3]

         Plaintiff 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.

         III. ISSUES FOR JUDICIAL REVIEW

         Plaintiff 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.[4]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).

         IV. THE MEDICAL RECORD

         A. Summary of the Medical Treatment Notes

         Plaintiff 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.

         Plaintiff 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.

         She 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.

         In 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.

         In 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 421; 423.

         In 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.

         On June 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.

         On June 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.

         On June 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.

         In June 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.

         On July 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.

         On 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.

         On 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.

         An 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 286-287.

         Following 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.

         Plaintiff 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.

         In June 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.

         In June 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.

         Dr. 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.

         In 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). AR 505.

         B. Summary of Medical Opinions

         1. Medical Impairments a. Dr. ...


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