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Ayala-Salamat v. Berryhill

United States District Court, N.D. California, San Jose Division

July 12, 2017



          LUCY H. KOH, United States District Judge

         Plaintiff Silvia Monica Ayala-Salamat (“Plaintiff”) appeals a final decision of the Commissioner of Social Security (“Defendant”) denying Plaintiff's application for a period of disability and disability insurance benefits under Title II of the Social Security Act. Before the Court are Plaintiff's motion for summary judgment, (“Pl. MSJ”) ECF No. 18, and Defendant's cross-motion for summary judgment, (“Def. MSJ”) ECF No. 21. Having considered the parties' briefs and the record in the case, the Court DENIES Plaintiff's motion for summary judgment and GRANTS Defendant's cross-motion for summary judgment.

         I. BACKGROUND

         A. Factual Background

         Plaintiff was born on September 9, 1964. Administrative Record (“AR”) at 53. Plaintiff is a high school graduate. Id. Plaintiff worked as an operations manager for a commercial real estate company from March 2001 until May 2011. AR 224. On May 2, 2011, at age 46, Plaintiff was struck in the head by a 6-foot fence pole while at work. AR 833. In her application for disability benefits, Plaintiff alleged that she became disabled on May 2, 2011 due to the following: memory problems, dizziness and blurred vision, depression, severe chronic fatigue, speech problems, inability to handle her own mail and money, intermittent nausea, inability to focus on tasks, medication side effects, and brain injury. AR at 93-94. Plaintiff has acquired sufficient quarters of coverage to remain insured through June 30, 2017. AR at 19. Additional facts are discussed as necessary in the analysis.

         B. Procedural History

         On March 31, 2013, Plaintiff applied for a period of disability and disability insurance benefits and alleged that she had become disabled on May 2, 2011. AR 191. Plaintiff's application was denied initially and upon reconsideration. AR 136-40, 142-48. An Administrative Law Judge (“ALJ”) conducted a hearing on December 17, 2014. AR 48-92. At the hearing, Plaintiff appeared with a non-attorney representative and testified about her physical and mental health as they relate to her ability to work. AR 48-92. Vocational Expert (“VE”) Joy Yoshioka and Psychological Expert (“PE”) Alfred Jonas also appeared and testified at the hearing. Id.

         On April 15, 2015, the ALJ issued a written decision denying Plaintiff's request for Social Security disability insurance benefits. AR 16-47. In making her decision, the ALJ stated that she considered the entire record. AR 24. The ALJ applied the five-step evaluation process for determining disability described in 20 C.F.R. § 404.1520(a). After applying the five-step evaluation process, the ALJ concluded that Plaintiff was not disabled and denied her request for SSDI. AR 42.

         Plaintiff appealed the ALJ's decision to the Social Security Administration's Appeals Council. AR 14-15. The Appeals Council denied Plaintiff's request for review. AR 1-6. Thus, the ALJ's decision became the final decision of the Commissioner on July 22, 2016. AR 5.

         On August 23, 2016, Plaintiff filed her complaint in this Court. ECF No. 1. On January 26, 2017, Plaintiff filed her motion for summary judgment. ECF No. 18. On March 23, 2017, Defendant filed its cross motion for summary judgment and opposition to Plaintiff's motion for summary judgment. ECF No. 21. On April 19, 2017, Plaintiff filed her reply. ECF No. 22.


         A. Standard of Review

         This Court has the authority to review the Commissioner's decision to deny benefits. 42 U.S.C. § 405(g). The Court will disturb the Commissioner's decision “only if it is not supported by substantial evidence or is based on legal error.” Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). In this context, “substantial evidence” means “more than a mere scintilla but less than a preponderance-it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion.” Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); see also Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where evidence exists to support more than one rational interpretation, the Court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1258.

         B. Standard for Determining Disability

         The Social Security Act defines disability as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The impairment must also be so severe that a claimant is unable to do her previous work and cannot “engage in any other kind of substantial gainful work which exists in the national economy, ” given her age, education and work experience. 42 U.S.C. § 423(d)(2)(A).

         “ALJs are to apply a five-step sequential review process in determining whether a claimant qualifies as disabled.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). At step one, the ALJ determines whether the claimant is performing “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled. If not, the analysis proceeds to step two. At step two, the ALJ determines whether the claimant suffers from a severe impairment or combination of impairments. 20 C.F.R. § 404.1520(a)(4)(ii). If not, the claimant is not disabled. If so, the analysis proceeds to step three. At step three, the ALJ determines whether the claimant's impairment or combination of impairments meets or equals an impairment contained in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”). 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is disabled. If not, the analysis proceeds to step four. At step four, the ALJ determines whether the claimant has the residual functioning capacity to perform his or her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is not disabled. If not, the analysis proceeds to step five. At step five, the ALJ determines whether the claimant can perform other jobs in the national economy. 20 C.F.R. § 404.1520(a)(4)(v). If so, the claimant is not disabled. If not, the claimant is disabled.

         “The burden of proof is on the claimant at steps one through four, but shifts to the Commissioner at step five.” Bray, 554 F.3d at 1222. “The Commissioner can meet this burden through the testimony of a vocational expert or by reference to the Medical Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2.” Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002).


         Plaintiff does not contest the ALJ's decision in steps one, two, and three. At step four, Plaintiff claims that the ALJ gave inadequate reasons for discounting or partly discounting certain opinions in the record. At step five, Plaintiff claims that the ALJ improperly relied solely on the grids rather than relying on the testimony of a Vocational Expert.

         The Court first summarizes the relevant medical evidence and then addresses Plaintiff's arguments in turn.

         A. Relevant Medical Evidence

         “There are three types of medical opinions in social security cases: those from treating physicians, examining physicians, and non-examining physicians.” Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009). “As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “The opinion of an examining physician is, in turn, entitled to greater weight than the opinion of a nonexamining physician.” Id.

         Accordingly, when evaluating medical evidence, an ALJ must give a treating physician's opinion “substantial weight.” Bray, 554 F.3d at 1228. “When evidence in the record contradicts the opinion of a treating physician, the ALJ must present ‘specific and legitimate reasons' for discounting the treating physician's opinion, supported by substantial evidence.” Id. (quoting Lester, 81 F.3d at 830). “The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors, are correct.” Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). “However, ‘the ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory and inadequately supported by clinical findings.'” Id. (quoting Thomas, 278 F.3d at 957).

         The record evidence regarding Plaintiff's condition is summarized below:

         1. Treatment from May 2011 to September 2012

         Soon after her May 2, 2011 accident, Plaintiff was diagnosed with a minor head injury, a concussion, and a single contusion of the scalp and was prescribed Antivert. Ex. 10F. However a CT scan was negative for relevant abnormalities. A consultation with a specialist showed some head tenderness and a diagnosis of post-concussive syndrome and cervical strain. Ex. 1F at 377. The specialist did not indicate whether the cervical strain was caused by the May 2, 2011 accident. The specialist approved Plaintiff to return to work as of May 10, 2011 with limitations that Plaintiff should not perform safety sensitive work and should be allowed a break every two hours. Id. In follow-up appointments in the next month, Plaintiff demonstrated some tingling and spasms but relatively little pain or neck soreness, as well as the ability to ambulate with less loss of balance and the ability to tolerate outings for 3-4 hours. Ex. 2F at 385-86, Ex. 3F at 394.

         Plaintiff then saw Wei Wang, M.D. between May 2011 and October 2011. Plaintiff complained of neck pain, headaches, dizziness, nausea, fatigue, photosensitivity, insomnia, and memory and concentration problems following her May 2, 2011 injury. Ex. 7F at 609. Dr. Wang stated that Plaintiff had “headaches secondary to cervicogenic causes and/or sequela of postconcussive syndrome”; “neck pain with sporadic left upper extremity parasthesias concerning for cervical radiculopathy/radiculitis”' “word finding difficulty, memory deficits, dizziness, anhedonia, intermittent nausea/vomiting, fatigue, mood disturbance, and sleep disturbance concerning for postconcussive syndrome from closed-head mild to moderate traumatic brain injury”; “vitreous humor collapse of the right eye”; and “possible depression.” Id. at 611. Dr. Wang prescribed Nortrptyline, Treximet, and Toopmax for headaches. Id. at 622, 709. Dr. Wang also noted on several occasions that, “There is no impairment of insight or judgment. Memory intact. Patient has normal mood and affect.” Ex. 7F at 689, 705, 709, 712. Plaintiff also underwent physical therapy between May 2011 and September 2011, during which she experienced some improvement. Exs. 2F, 3F.

         On Mar 23, 2011, Dr. Wang stated that Plaintiff could return to work the next day performing sedentary work for four hours per day. Ex. 7F at 643-44. On July 19, 2011, Dr. Wang stated that Plaintiff could return to work for five hours, and later perhaps six, “if she is able to tolerate the work load and hours.” Id. at 674. On August 8, 2011, Dr. Wang recommended Plaintiff decrease her working hours to four hours per day. Id. at 679. On September 12, 2011, Dr. Wang stated that Plaintiff would likely be unable to return to work for approximately two months. Id. at 649. However, in response to the question “[i]s employee able to perform work of any kind, ” Dr. Wang indicated “Yes.” Id.

         Between October 2011 and August 2012, Plaintiff was treated at Alliance Occupational Medicine. Plaintiff was treated with medications, as well as acupuncture and physical therapy, and was also given work restrictions. Ex. 4F, 5F, 6F. For example, in October 2011, Plaintiff was diagnosed with a contusion of the head, sprain/strain of the cervical spine, and sprain/strain of the upper back. Ex. 4F. The doctor also noted that Plaintiff was alert and oriented, that her speech and affect were within normal limits, and that Plaintiff's gait was normal. Id. at 411. The doctor recommended continuing on medication and undergoing physical rehabilitation, and the doctor noted, “No Permanent Disability Expected.” Id. at 412.

         In January 2012, Plaintiff was treated by Dr. Petros. Plaintiff exhibited some symptoms of post-concussive syndrome and continued being prescribed Treximet for headaches. Ex. 5F at 436. Dr. Petros also recommended that Plaintiff not drive at work and that Plaintiff be limited to lifting, pulling, or pushing under 25 pounds. Id. However, Dr. Petros concluded that Plaintiff could work six hours per day with these limitations. Id. at 541. Plaintiff also received 20 sessions of speech therapy before September 2012. Ex. 16F at 949.

         In March 2012, Plaintiff complained of a fall due to dizziness and was referred to vestibular therapy. Ex. 6F. There is some evidence that Plaintiff attended neuromuscular and gait training in 2012, but there is no evidence that Plaintiff attended vestibular therapy after 2012. In March 2012, Plaintiff was also prescribed Nortriptyline for mood disorder and central pain symptoms, and her doctor sought authorization for additional speech language therapy, which Plaintiff received. Ex. 6F.

         In July and August 2012, Plaintiff was treated for flared left-sided clinical cervical radiculitis with Medrol Dosepak, acupuncture, Vicodin, Flexeril, and an H-Wave Homecare System. Ex. 6F at 557-58, 566. Plaintiff reported an increase in overall functioning ability in August 2012. Id. at 543.

         2. MRI, EEG, and EMG Evaluations

          Plaintiff received an MRI on May 19, 2011, which was read as “[d]iffuse degenerative disc disease, with broad-based bulge @C6-7, mild to moderate facet degenerative changes without significant neural foraminal stenosis. The central canal is normal throughout.” Ex. 4F at 411. Plaintiff received a second MRI of her head on May 19, 2011, which was read as “[u]nremarkable MRI appearance of brain, Empty Sella syndrome, a normal variant, and mild chronic paranasal sinusitis.” Id. In short, the spine MRI showed cervical degenerative disease and disc bulge, but the brain MRI was normal. Ex. 16F at 948.

         On March 25, 2013, Plaintiff underwent an MRI of the cervical spine that showed “some straightening of the cervical lordosis that may indicate underlying muscle spasms.” Ex. 16F at 922. The findings also indicated disc disease and/or degenerative changes, which were compatible with annular tears in the C3-C4 and C6-C7 levels. Id. However, there were no intrinsic abnormalities in the spinal cord or the foramen magnum. There was also no large herniation or transligamentous disc extrusion, no significant lateral recess or foraminal encroachment, and no central canal narrowing. Id.

         On May 29, 2013, Plaintiff received an electroencephalogram (EEG) which showed normal findings in wakefulness and sleep. Ex. 15F at 893. During the photic stimulation portion of the EEG, Plaintiff reported “feeling electric shocks all over [her] body . . . .” Id.

         On May 29, 2013, Plaintiff also underwent an electromyogram (EMG) and nerve conduction study. The findings of this study were consistent with left cervical radiculitis. ECF No. 16F at 914. However, the study found that “[t]here is no electrodiagnostic evidence of peripheral entrapment neuropathy of the left median or ulnar nerve at the wrist or the elbow.” Id.

         3. Thynn Lynn, M.D. (Treating Neurologist)

         Plaintiff saw Thynn Lynn, M.D. from September 2012 through 2014. Plaintiff consistently complained of headaches, pain, fatigue, dizziness, balance problems, occasional falls, blurry vision, sleep problems, depression, and difficulties with memory, cognition, and concentration. See, e.g., Ex. 16F at 906, 908. Throughout this period, Dr. Lynn treated Plaintiff with cervical traction, occipital nerve block and trigger point injections, and medications. Id. Dr. Lynn also recommended various forms of therapy, including psychotherapy. Id. at 908.

         In September 2012, Dr. Lynn diagnosed Plaintiff with status-post traumatic head injury with concussion and scalp contusion; post-traumatic headaches with contribution by cervicogenic headaches and occipital neuralgia pain; cervical sprain and left cervical radiculopathy; post concussive syndrome with cognitive impairment; speech difficulty and mood disorder; post-traumatic dizziness/vertigo with cognitive impairment; speech difficulty and mood disorder; post-traumatic dizziness/vertigo and possible traumatic vestibular dysfunction; visual disturbance with light hypersensitivity; floaters and pain of the eyes; and anxiety and depression secondary to head injury and chronic pain syndrome. Ex. 16F at 960. Dr. Lynn recommended speech and cognitive therapy; physical therapy; trigger point injections and/or occipital nerve block injections; medications for mental symptoms; and a formal evaluation for vestibular problems. Id. at 961.

         In October 2012, Dr. Lynn prescribed Cymbalta for depression and anxiety, and in November 2012, Dr. Lynn administered occipital nerve block injections and trigger point injections and prescribed Motrin and Vicodin, to which Plaintiff responded well. See, e.g., id. at 933-34. Plaintiff again underwent occipital nerve block injections and trigger point injections in February 2013 after complaining of severe headaches. Id. at 925. In May 2013, Plaintiff was continued on medications with an increased dose of Flexeril, and in June 2013, Dr. Lynn recommended eight psychotherapy sessions for Plaintiff. Id. at 912, 915.

         In August 2013, Dr. Lynn treated Plaintiff with Saunder's cervical traction and advised Plaintiff to exercise at home. Id. at 906. In December 2013, Plaintiff appeared distressed and tearful, and Dr. Lynn again administered occipital nerve block injections and trigger point injections, after which Plaintiff reported instant relief. Ex. 29F at 1175-76. Dr. Lynn advised Plaintiff to continue home exercise and to take Motrin and Vicodin for pain. Id. In June 2014, Plaintiff flew to Utah for a wedding and took Xanax to help with anxiety and panic attacks associated with flying. Id. at 1159.

         In September 2014, Plaintiff recommended chiropractic sessions, continued speech and cognitive therapy, continued psychological counseling and psychotherapy, medication, home exercises, and using computer brain training games such as Lumosity. Id. at 1156-57.

         During the time that Dr. Lynn was Plaintiff's treating physician, Plaintiff was also examined by Dr. Scott Feldman, an optometrist, on August 14, 2012. Ex. 13F. In a June 4, 2013 report describing the earlier examination, Dr. Feldman found that Plaintiff had 20/20 vision in both eyes. Id. at 871. Dr. Feldman noted no pathological findings, full visual fields in each eye, and no reason to believe that Plaintiff had any significant visual defect that “causes her problems of consequence and certainly not a disability.” Id. Although Plaintiff had vitreous collapse, Dr. Feldman emphasized that this is “a very normal occurrence in someone her age.” Id.

         4. Robert Larsen, M.D.

         Robert Larsen, M.D., conducted a psychiatric evaluation of Plaintiff on May 17, 2012 in Plaintiff's worker's compensation case. Ex. 19F. During the evaluation, Plaintiff was dysphoric, became teary-eyed at times, and had some problems recalling pertinent information. However, Plaintiff was also neatly attired, alert, and oriented. Additionally, Plaintiff's speech was clear and well-metered, her behavior was cooperative, and her intelligence was “grossly within normal limits.” Ex. 19F at 1023-24.

         As part of the evaluation, Dr. Larsen reviewed the records of Dr. Eric Morgenthaler, who administered the following psychological tests to Plaintiff: Shipley-2, the MMPI-2 personality inventory, the Symptom Checklist-90-Revised, the Beck Depression Inventory, and the Rotter Incomplete Sentences. Ex. 19F at 1025. Plaintiff scored an IQ score of 66 on the Shipley-2 test, falling within the extremely low range of adult intelligence. However, Dr. Morgenthaler stated that the Shipley-2 test likely underestimated Plaintiff's intelligence. The MMPI-2 test also suggested possible symptom exaggeration. Dr. Morgenthaler also found that Plaintiff's “differential diagnosis should include somatoform, depressive and anxiety disorders in an individual who may be exaggerating the extent of her difficulties.” Ex. 19F at 1026.

         Based on his review of these records, Dr. Larsen diagnosed Plaintiff with a cognitive disorder not otherwise specified secondary to a closed head injury. According to Dr. Larsen, Plaintiff “essentially has a post-concussion syndrome that involves persistent headache, photophobia, problems with balance, memory dysfunction and emotional lability. The applicant's short-term memory problems affect her capacity to multi-task and learn new information.” Id. at 1029. Despite the test findings, Dr. Larsen also stated that “[t]here is no good reason to believe that [Plaintiff] is misrepresenting her true experience.” Id. Dr. ...

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