United States District Court, N.D. California, San Jose Division
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT Re: Dkt. Nos. 18, 21
H. KOH, United States District Judge
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
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.
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.
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.
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.
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
Standard of Review
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.
Standard for Determining Disability
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).
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.
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).
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.
Court first summarizes the relevant medical evidence and then
addresses Plaintiff's arguments in turn.
Relevant Medical Evidence
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
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).
record evidence regarding Plaintiff's condition is
Treatment from May 2011 to September 2012
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
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,
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.
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.
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.
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.
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.
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.
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.
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.
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.
Thynn Lynn, M.D. (Treating Neurologist)
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.
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
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.
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.
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.
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.”
Robert Larsen, M.D.
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
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.
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. ...