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Rivera v. Colvin

United States District Court, S.D. California

May 15, 2017

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          Hon. Barbara L. Major United States Magistrate Judge

         Plaintiff Margarita Rivera brought this action for judicial review of the Social Security Commissioner's (“Commissioner”) denial of her claim for disability insurance benefits. ECF No. 1. Before the Court are Plaintiff's Motion for Summary Judgment [ECF No. 15-1 (“Pl.'s Mot.”)], Defendant's Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment [ECF Nos. 16-1 and 17-1[1] (“Def.'s Mot.”)], and Plaintiff's Opposition to Defendant's Cross-Motion for Summary Judgment and Reply to Defendant's Opposition [ECF No. 18 (“Pl.'s Reply”)].

         This Report and Recommendation is submitted to United States District Judge Thomas J. Whelan pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 72.1(c) of the United States District Court for the Southern District of California. For the reasons set forth below, this Court RECOMMENDS that Plaintiff's Motion for Summary Judgment be DENIED and Defendant's Cross-Motion for Summary Judgment be GRANTED.


         On July 21, 2011, Plaintiff filed a Title II application for disability and disability insurance benefits, alleging disability beginning on June 30, 2011. See Administrative Record (“AR”) at 148-50. The claim was denied initially on August 5, 2011, and upon reconsideration on January 26, 2012, resulting in Plaintiff's request for an administrative hearing. Id. at 63-70, 72-75, 86-87.

         On January 8, 2014, a hearing was held before Administrative Law Judge (“ALJ”) Leland H. Spenser. Id. at 13, 25-53. Plaintiff, an impartial medical expert, Kenneth L. Cloninger, M.D., and an impartial vocational expert (“VE”), Gloria J. Lasoff, testified at the hearing. See Id. In a written decision dated January 29, 2014, ALJ Spenser determined that Plaintiff has not been under a disability, as defined in the Social Security Act, from June 30, 2011, through the date of the ALJ's decision. Id. at 13, 19. Plaintiff requested review by the Appeals Council. Id. at 8-9. In an order dated March 19, 2015, the Appeals Council denied review of the ALJ's ruling, and the ALJ's decision therefore became the final decision of the Commissioner. Id. at 1-7.

         On May 11, 2015, Plaintiff filed the instant action seeking judicial review by the federal district court. See ECF No. 1. On April 14, 2016, Plaintiff filed an application for entry of default against Defendant. ECF No. 5. Default was not entered due to improper service. See ECF No. 6 at 1. On April 15, 2016, the District Judge issued an “Order to Show Cause why Case Should not be Dismissed for Failure to Prosecute” (“OSC”), in which he noted that Plaintiff “appeare[d] to have only served the agency, not the United States.” Id. at 1-2. On April 26, 2016, Plaintiff properly served Defendant, and Defendant entered an appearance in the case. ECF Nos. 7 and 8. On May 2, 2016, Plaintiff moved to vacate the OSC, and on May 9, 2016, the District Judge granted the motion and vacated the OSC. ECF Nos. 9 and 10.

         On July 21, 2016, Plaintiff filed a motion for summary judgment alleging the following errors: the ALJ erred in finding Plaintiff less than fully credible, the “ALJ's interpretation of the medical evidence should not be entitled to deference as unsupported by law when taken in the context of the special weight to be afforded to [Plaintiff's] treating physicians, ” and the ALJ “improperly characterized Plaintiff's past relevant work and Plaintiff's ability to perform any past relevant work.” Pl.'s Mot. at 4-9; Pl.'s Reply at 2-4. On August 29, 2016, Defendant filed a timely cross-motion for summary judgment asserting that the ALJ properly determined that Plaintiff was less than fully credible, that the ALJ's interpretation of the medical evidence was rational and entitled to deference, and that Plaintiff failed in her burden at step four of the sequential evaluation. Def.'s Mot. at 4-10. On September 20, 2016, Plaintiff timely filed a reply to Defendant's opposition and an opposition to Defendant's cross-motion for summary judgment. Pl.'s Reply; see also ECF No. 20 (accepting Plaintiff's filing as timely). Defendant did not file a reply. See Docket.


         On January 8, 2014, Plaintiff, represented by counsel, appeared at the hearing before the ALJ. See AR at 25-53. Plaintiff was fifty-nine years old at the time of the ALJ's hearing. See id. at 28. During the hearing, the ALJ questioned Plaintiff regarding her work experience and alleged disability. Id. at 28-42. Plaintiff testified that she has a high school education, that prior to her alleged onset of disability, she had worked as an “assistant, . . . a parent volunteer coordinator” for the “San Diego city schools, ” and that her duties included providing “translation [and conducting] conferences with parents.” Id. at 28-30, 38. Plaintiff stated that she spent approximately three hours per day outside, 40 minutes to one hour during “morning duty, ” two hours during “lunch duty, ” and about 30 minutes at dismissal. Id. at 38-39. Plaintiff testified that she worked full-time until June 30, 2011, that her “headaches were getting worse” and that her primary doctor, Dr. Sierra, recommended that Plaintiff work four hours per day.[2] Id. at 29- 30. Plaintiff also stated that she was absent during the last week of the school year due to her headaches. Id. at 29.

         Plaintiff testified that she lives with her two adult daughters and their two dogs, but does not care for the dogs, does not take the dogs for walks, and does not clean up after them. Id. at 31, 34-35. Plaintiff further stated that she cleans her house, does chores, drives a car three times a week to go grocery shopping, gardens for an hour to an hour-and-a-half every morning before the sun comes up, walks three times a week for about 20 minutes, sometimes reads, and volunteers in her granddaughter's kindergarten classroom once a week for about 40 minutes. Id. at 32-35.

         Plaintiff testified that she had her last seizure in 2006, and that headaches and her eye were her “main difficult[ies].” Id. at 31, 38. Plaintiff explained that she lost her right eye in a gunshot wound, but can see and read with her left eye, although her eye hurts when she reads small letters. Id. at 31, 35, 40. With respect to her headaches, Plaintiff testified that they are triggered by reading small letters for more than 20-25 minutes, exposure to sun, and stress. Id. at 35-36. Plaintiff stated that she gets “stressed” when she has to “strain [herself]” or is trying to catch up with work. Id. at 35-36, 38.

         Plaintiff further testified that she takes more medication than she took in 2010, because her headaches are more frequent. Id. at 37. Plaintiff stated that she had headaches every day for the past month, whereas in the past, she only had headaches three to four times per week, and that taking a break in a dark place where she could sit down and relax for about 20-30 minutes helps reduce the headaches. Id. at 39-40. Plaintiff also stated that she takes Ibuprofen when she has headaches and that “[s]ometimes” it helps. Id. at 40. Plaintiff stated that she takes the medication in the morning about four to five times a week. Id. at 36-37. She alleged that because her headaches are getting worse, she has to take two Ibuprofen 800 milligram pills to stop the headache. Id. at 40. Plaintiff also claimed that her headaches last two to three hours if she does not take her medication right away, and an hour to two hours if she immediately takes the medication. Id. at 41.

         Dr. Cloninger, a board-certified neurosurgeon, testified at Plaintiff's administrative hearing. Id. at 26, 41-48. He stated that Plaintiff's medical records indicate that in 2003, Plaintiff sustained a gunshot wound to the right orbit and right frontal lobe of her brain, lost sight in her right eye, and had a prosthesis inserted. Id. at 42, 44. Dr. Cloninger further testified that Plaintiff had a right frontal craniotomy and that her brain scan showed ensephalomalacia, a “softening of the brain right under that right frontal lobe, ” which he opined was Plaintiff's most significant problem. Id. He stated that Plaintiff had generalized seizures in 2005, and that Plaintiff's medical records and testimony establish that her last seizure was in 2006. Id. Dr. Cloninger also stated that Plaintiff's medical records consistently show that her Dilantin levels were within the therapeutic range, indicating that she was “very complaint with her medication, ” and concluded that “seizures are not a problem.” Id. at 43.

         Dr. Cloninger also stated that Plaintiff had a motor vehicle accident on April 1, 2011, and that her headaches increased after the accident. Id. at 42-43. With respect to Plaintiff's headaches, Dr. Cloninger stated that he could not determine their frequency, and that most of them were “tension headaches” caused by stress or exposure to bright sunlight. Id. Dr. Cloninger noted that Plaintiff took Ibuprofen for headaches, and opined that there were better medications for treating headaches. Id. He also testified that many neurologists specialize in treating headaches and could be “of great help” to Plaintiff, and further noted that Plaintiff had not consulted such specialists. Id. He further stated that Plaintiff's testimony regarding the frequency of her headaches was inconsistent with her medical records. Id. at 43-44. Dr. Cloninger concluded that Plaintiff's impairments include headaches and blindness in her right eye, and that her seizures appear to be controlled. Id. at 44.

         Dr. Cloninger testified that he was “not certain” whether Plaintiff's headaches limit her functional capacity. Id. He noted that if Plaintiff suffers from tension headaches, such headaches could be controlled by avoiding stress and sun exposure. Id. He further testified that if, on the other hand, Plaintiff suffers from migraine headaches, “sick headaches with photophobia, phonophobia, nausea, [and] occasional vomiting, ” such headaches “can be disabling.” Id. Dr. Cloninger referenced treatment notes from Dr. Armstrong, a neurologist who had treated Plaintiff since 2005, indicating that Plaintiff suffered from recurrent headaches and that he prescribed Imitrex to relieve Plaintiff's migraine, noted that Dr. Armstrong's reference to Plaintiff's migraine “might have been the only reference to migraine” in Plaintiff's medical records, and that other references indicate that Plaintiff was suffering from tension headaches. Id. at 46-47. Dr. Cloninger stated that Plaintiff should avoid exposure to sunshine and stress. Id. at 48.

         Additionally, Ms. Lassof, a VE, testified at Plaintiff's administrative hearing. Id. at 48-53. She classified Plaintiff's past relevant work as a “[v]olunteer coordinator, ” Dictionary of Occupational Titles (“DOT”) 187.167-022, between sedentary or light, with an SVP 7. Id. at 48- 49. She opined that a hypothetical person of Plaintiff's age, education, and work experience, blind in the right eye, with a seizure disorder, who is required to avoid hazardous environments and prolonged periods in the sunshine or outdoors could perform Plaintiff's past work as a “volunteer coordinator” as “normally performed.” Id. at 49. The VE further testified that if such a person was required to spend prolonged periods of time outdoors, the person would not be able to perform Plaintiff's past relevant work “as actually performed, ” but such a person could perform other work, including a “cleaner/sweeper, ” a “dining room attendant, ” a “hospital cleaner, ” and a “cleaner/housekeeper.” Id. at 50-52.

         The VE clarified that a person who works as a playground attendant is classified as a “playground attendant, ” and that a person who is watching a playground is classified as a “child care attendant.” Id. at 51. She also stated that a child care attendant job does not “differentiate whether [the person is] outside or indoors.” Id.

         ALJ's DECISION

         On January 29, 2014, the ALJ issued a written decision in which he determined that Plaintiff was not disabled as defined in the Social Security Act. Id. at 13-20. Initially, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since her alleged disability onset date of June 30, 2011. Id. at 15. He then considered all of Plaintiff's medical impairments and determined that the following impairments were “severe” as defined in the Regulations: “seizure disorder, controlled; tension headaches; and right eye blindness.” Id. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. The ALJ concluded that Plaintiff's residual functional capacity (“RFC”) permitted her to “perform a full range of work at all exertional levels but with the following nonexertional limitations: . . . the claimant retains the capacity to perform work activity that does not require peripheral vision or depth perception; must avoid a hazardous work environment and prolonged periods outdoors.” Id. The ALJ then found that Plaintiff could perform her past relevant work as a “volunteer coordinator.” Id. at 18. The ALJ also determined that Plaintiff has the ability to perform other work existing in significant numbers in the national economy, including a “dining room attendant” and a “hospital cleaner.” Id. at 19.


         Section 405(g) of the Social Security Act permits unsuccessful applicants to seek judicial review of the Commissioner's final decision. 42 U.S.C. § 405(g). The scope of judicial review is limited in that a denial of benefits will not be disturbed if it is supported by substantial evidence and contains no legal error. Id.; see also Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

         Substantial evidence is “more than a mere scintilla, but may be less than a preponderance.” Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001) (citation omitted). It is “relevant evidence that, considering the entire record, a reasonable person might accept as adequate to support a conclusion.” Id. (citation omitted); see also Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “In determining whether the [ALJ's] findings are supported by substantial evidence, [the court] must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the [ALJ's] conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (citations omitted). Where the evidence can reasonably be construed to support more than one rational interpretation, the court must uphold the ALJ's decision. See Batson, 359 F.3d at 1193. This includes deferring to the ALJ's credibility determinations and resolutions of evidentiary conflicts. See Lewis, 236 F.3d at 509.

         Even if the reviewing court finds that substantial evidence supports the ALJ's conclusions, the court must set aside the decision if the ALJ failed to apply the proper legal standards in weighing the evidence and reaching his or her decision. See Batson, 359 F.3d at 1193. Section 405(g) permits a court to enter judgment affirming, modifying, or reversing the Commissioner's decision. 42 U.S.C. § 405(g). The reviewing court may also remand the matter to the Social Security Administration for further proceedings. Id.


         I. Treating Physicians' Opinions

         Plaintiff contends that her treating physicians diagnosed her with a seizure condition, headaches, and right eye blindness following a gunshot wound in 2003. See Pl.'s Mot. at 2; Pl.'s Reply at 3. Plaintiff argues that the ALJ overlooked the opinions of her treating physicians, who concurred that she suffers from the asserted conditions, opined that she would require a lifelong anticonvulsant treatment for post-traumatic epilepsy, and placed her on a restricted work schedule. See Pl.'s Mot. at 5-6; Pl.'s Reply at 3-4. Defendant contends that the ALJ properly evaluated, summarized, and interpreted the medical evidence, and found that Plaintiff was not disabled during the relevant period, and asserts that Plaintiff is “essentially arguing for a more favorable interpretation of the medical evidence.” Def.'s Mot. at 8.

         1. Plaintiff's Medical Records

         The Court initially notes that although Plaintiff argues that the ALJ disregarded the opinions of “three” of her treating physicians, Plaintiff does identify those physicians. See Pl.'s Mot. at 5 (citing AR at 239-49); Pl.'s Reply at 3 (citing AR at 250-61, 282, 321, 326). Plaintiff's citations to the record contain medical records from Drs. Spackman, Armstrong, Sierra and Ellis. See id. As discussed below, Drs. Armstrong, Sierra and Ellis examined and treated Plaintiff on numerous occasions, and Dr. Spackman examined Plaintiff only once during her Emergency Room visit on April 2, 2006.

         Dr. Spackman

         Plaintiff's medical records contain an “Emergency Service Report” from Dr. Sparkman dated April 2, 2006, noting that Plaintiff's chief complaint was “multiple seizures with airway difficulty.” AR at 321-24, 612-15. Dr. Spackman noted that Plaintiff had a history of a gunshot wound to the head, was status post right eye enucleation, right orbital reconstruction, and cerebral spinal fluid leakage, and presented with her first seizure. Id. at 321, 612; see also Id. at 324, 615. Plaintiff reported a headache lasting three weeks, which worsened in the past two days, was seen by her primary care physician, and started taking Motrin for headaches. Id. at 321, 612. Plaintiff also reported fever and chills associated with nausea. Id. Dr. Spackman noted that Plaintiff “had 3 witnessed seizures, each lasting less than 30 seconds.” Id. He also stated that Plaintiffs' X-ray showed “hypoaeration, no acute cardiopulmonary disease, ” the non-contrast head CT showed “postoperative surgical changes in the right frontal lobe and skull, no acute disease, ” and the “C-spine X-ray series w[ere] negative.” Id. at 323, 614; see also id. at 326 (listing the following impressions of Plaintiff's head CT results: (1) “[p]rior right frontal craniotomy with encephalomalacia[3] of an area of the right frontal lobe most likely related to prior surgery” and (2) “no acute findings.”). Dr. Spackman's diagnoses included seizure and fever. Id. at 324, 615.

         Dr. Armstrong

         Dr. Armstrong has been Plaintiff's treating neurologist since 2005. Id. at 281. On April 24, 2006, Dr. Armstrong noted that Plaintiff “had headaches for a number of weeks that [Plaintiff] f[elt] [we]re aggravated by the children at her work, ” a seizure three weeks ago, and that Plaintiff's headaches had improved since the seizure, were “no longer as severe, ” and were not accompanied by phonophobia, photophobia, nausea or vomiting. Id. at 413-14. Dr. Armstrong noted that Plaintiff's CT scan of the right frontal region “showed no change, only postoperative and post-traumatic abnormalities.” Id. Dr. Armstrong's assessment was (1) post-traumatic seizure disorder, no recurrent seizures on Dilantin, and (2) “[h]eadaches which sound like muscle contraction headaches.” Id. He noted that Plaintiff's headaches responded “when severe” to Tylenol or Ibuprofen, and stated that he might refer Plaintiff to the headache management program if her “headaches are resistant.” Id.

         Dr. Armstrong's October 2007 progress notes indicate that Plaintiff's headaches were “much less frequent, ” that Plaintiff “rarely t[ook] meds for them, ” but that her headaches increased with stress. Id. at 406-07. He noted that Plaintiff was alert and oriented, and had normal gait and finger-nose-finger test. Id. at 407. Dr. Armstrong's November 2008 progress notes state that “Plaintiff's [h]eadaches [we]re better, ” her physical exam was within the norm, and she was seizure-free on current treatment regimen. Id. at 385. Dr. Armstrong's diagnosis was generalized epilepsy. His April 2009 progress notes state that Plaintiff was taking Phenytoin to manage seizures, her Phenytoin level was 17.5, she tolerated Phenytoin well, and did not have interval seizures. Id. at 377. Dr. Armstrong noted that Plaintiff had “infrequent” headaches and diagnosed generalized epilepsy. Id.

         Dr. Armstrong's January 2010 progress notes state that Plaintiff developed a seizure disorder 2005, was “on [P]henytoin, ” tolerated Phenytoin well, her Phenytoin level was 16.4, and she did not have interval seizures. Id. at 352. Dr. Armstrong stated that Plaintiff had “moderate bitemp headache for approximately 5 days, ” which was initially aggravated by coughing, with no photophobia, chronophobia, nausea or vomiting, and that Plaintiff “ha[d] not had headaches in quite a while.” Id. He diagnosed generalized epilepsy and opined that Plaintiff was “doing well” and should “[c]ontinue present management.” Id. at 353.

         Dr. Armstrong's October 2010 progress notes state that Plaintiff had frequent headaches, but that “headache[s] severe enough . . . to take pain meds [were] infrequent.” Id. at 346. He noted “no interval seizures” and that Plaintiff was tolerating Phenytoin well. Id. He stated that Plaintiff was alert and oriented, had normal speech, balance and gait, and that her finger-to-nose and heel-to-shin test were also normal. Id. at 347. Dr. Armstrong diagnosis was controlled epilepsy. Id.

         Dr. Armstrong's July 2011 progress notes state that Plaintiff tolerated Phenytoin well and did not have interval seizures. Id. at 253, 501. He stated that Plaintiff had been involved in a motor vehicle accident on April 1, 2011, that her headaches increased after the accident, and that Plaintiff's headaches also increased with “work stress, ” but “improved quite a bit” when she was on vacation. Id. Dr. Armstrong further noted that Plaintiff's Phenytoin level was 12.4, and diagnosed (1) generalized epilepsy, “seizure controlled on current treatment regimen, ” and (2) tension headache, “headaches improved with stress reduction.” Id. at 254, 502. On September 16, 2011, Dr. Armstrong wrote a letter stating, inter alia, that Plaintiff developed seizure disorder in 2005, was on Phenytoin, and would “require life-long anticonvulsant treatment for post-traumatic epilepsy.” Id. at 281. He also stated that Plaintiff suffered from “recurrent headaches” and should be followed by a neurologist. Id.

         Dr. Sierra

         Dr. Sierra's notes indicate that in January 2008, Plaintiff presented with a headache that lasted one week, reported “daily” headaches, and was taking Vicodin and Tylenol, “which help[ed].” Id. at 405-06. Dr. Sierra stated that Plaintiff had no numbness, tingling, or dizziness, and that her last seizure was in 2006. Id. at 406. Dr. Sierra diagnosed headache and prescribed Hydrocodone-Acetaminophen. Id.

         Dr. Sierra's April 2008 notes state that Plaintiff was “negative” for headaches, blurred vision, nausea or vomiting, and that her physical exam showed no distress. Id. at 396-97. She assessed hypertension, uncontrolled DM2, [4] hyperlipidemia, and generalized epilepsy. Id. at 397-98. Dr. Sierra's June 3, 2008 progress notes state that Plaintiff presented with a headache that lasted two days, and that Plaintiff had been stressed at work. Id. at 502-03. Dr. Sierra assessed tension headache, “likely due to prior accident.” Id. at 503. Dr. Sierra's June and September 2008 exam notes state that Plaintiff was “negative” for ...

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