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Valenzuela v. Berryhill

United States District Court, S.D. California

March 28, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Hon. Thomas J. Whelan United States District Judge

         Plaintiff Ricardo Lopez Valenzuela (“Plaintiff”) seeks judicial review of the determination by Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (“Defendant”), that he is not entitled to supplemental security income (“SSI”) benefits. The parties have filed cross-motions for summary judgment. For the reasons set forth below, Plaintiff's motion for summary judgment is GRANTED; Defendant's cross-motion for summary judgment is DENIED; and this matter is REMANDED for further proceedings.

         I. Background

         Plaintiff was born on December 13, 1965. (Administrative Record (“AR”) 296.) Plaintiff is from Sinaloa, Mexico and moved to the United States when he was 14 years old. (AR 504.) He attended school until eleventh grade. (AR 59-60.) Plaintiff can read, write, and speak English, but is more comfortable in Spanish. (AR 60.) Plaintiff has worked in the past as a laborer helper, floor sweeper, factory worker, and fast food cook. (AR 60-61, 68, 84.)

         Plaintiff protectively filed an application for SSI benefits on April 24, 2012, alleging he had been disabled since January 1, 2012. (AR 24, 296.) Plaintiff alleged he was disabled due to chronic back pain, shoulder and neck pain, mental delay, and depression. (AR 92.) The claim was initially denied on August 24, 2012 and upon reconsideration on March 8, 2013. (AR 118-24, 130-35.) Plaintiff requested an administrative hearing, which resulted in three hearings before Administrative Law Judge (“ALJ”) James S. Carletti. (AR 43, 52, 57.) The first hearing, held on April 7, 2014, was continued to obtain more records, and the second, held on August 19, 2014, was continued because of interpreting difficulties. (AR 48, 54.) The third and primary hearing took place on December 1, 2014. (AR 57.) Plaintiff, medical expert Alfred G. Jonas, M.D., a psychiatrist, and vocational expert John P. Kilcher testified at the third hearing. (AR 24, 57-91.)

         The ALJ issued an unfavorable decision on February 26, 2015. (AR 18-34.) Plaintiff sought review of the ALJ decision; the Appeals Council for the Social Security Administration (“SSA”) denied Plaintiff's request for review on July 29, 2016, making the ALJ's decision the final decision of the Commissioner. (AR 1-8.) Plaintiff then commenced this action pursuant to 42 U.S.C. §405(g). (ECF No. 1.)

         II. Summary of Records

         A. Physical Impairments

         According to Plaintiff, his physical problems began in 1985 after he had a car accident for which he never received treatment. (AR 503.) The accident resulted in injury to the left side of his body; blurry, limited vision in his left eye; and daily headaches due to head trauma. (AR 440, 503.)

         1. Dr. Cevallos, San Ysidro Health Center (Treating Physician)

         Plaintiff received treatment between 2011 and 2014 from Dr. James Cevallos with San Ysidro Health Center. In May 2011, Plaintiff presented to Dr. Cevallos with respiratory problems, including shortness of breath and wheezing, and pain in the left side of his neck and left side of his ribcage. (AR 443-44.) In July 2011, Plaintiff stated he had rheumatoid arthritis in his back and requested disability. (AR 442.) In August 2011, Plaintiff complained of chronic mid-back pain without radiculopathy, for which Dr. Cevallos prescribed ibuprofen. (AR 441.) An x-ray of Plaintiff's thoracic spine showed “mild multilevel degenerative change with possible mild compression of an upper thoracic vertebral body, age-indeterminate.” (AR 452.) In September 2011, Plaintiff reported continued back pain, and stated prescribed exercises made his symptoms worse. (AR 438-40.) He also complained of weakness on his left side. (AR 440.) His physical exam revealed constricted pupils, decreased range of motion in his neck with crepitus (crackling or popping sounds), and positive tenderness to palpation of his mid-upper thoracic spine. (AR 437, 440.) Dr. Cevallos referred Plaintiff to physical therapy and prescribed Vicodin. (AR 439-40.) An x-ray of Plaintiff's cervical spine indicated mild spondylosis. (AR 451.) An MRI of his thoracic spine showed a minimal disk bulge at ¶ 7-8. (AR 430.)

         In October 2011, Plaintiff reported Vicodin helped his back pain but made him sleepy. (AR 435.) Plaintiff described his pain as “mal” and was unable to do anything at times due to his pain. (AR 434.) Dr. Cevallos referred Plaintiff to physical therapy and the pain clinic. (AR 434.) In November 2011, Plaintiff stated physical therapy had taken his pain down from a 10 to a 5, on a 1-to-10 scale. (AR 433.) He also described again having left lower rib pain. (AR 433.) An x-ray of Plaintiff's left ribs was normal. (AR 450.) Plaintiff's visit with the pain clinic did not result in any recommendations because his exam was “essentially unremarkable.” (AR 430.) In December 2011, Plaintiff stated he had lung pain and shortness of breath, which he attributed to “a chronic disease in my lungs.” (AR 430.) In early 2012, Plaintiff presented with complaints of depression, stress, and chronic back pain. (AR 426-28.) Dr. Cevallos prescribed Paxil (an antidepressant) and referred Plaintiff for psychiatric care. (AR 426-27.) In April 2012, Plaintiff stated he used 1 to 5 tablets of Vicodin per day. (AR 426.) Plaintiff continued to receive refills of Vicodin through 2012 and reported it brought his pain level from 10 to 5. (AR 487-89.) Plaintiff continued to receive routine checkups with Dr. Cevallos' office during 2013 and 2014. (AR 514-20, 526-31, 538-44.)

         On April 4, 2014, Dr. Cevallos completed a medical source statement analyzing Plaintiff's ability to perform work-related activities on a daily basis in a full-time job setting. (AR 536-37.) Dr. Cevallos concluded Plaintiff's chronic left side body pain limited him to lifting or carrying less than ten pounds, standing or walking less than two hours in an eight hour workday, and sitting for less than one hour per day. (AR 536.) Dr. Cevallos stated Plaintiff would need to alternate sitting and standing on a “minutes to hourly” basis to relieve his symptoms. (AR 537.) He indicated Plaintiff could never perform any acts of climbing or balancing, and could only occasionally stoop, kneel, crouch, or crawl. (AR 537.) Dr. Cevallos noted Plaintiff's left-eye blindness limited his vision, and his left side pain and numbness limited his ability to reach or perform fine or gross manipulation of objects. (AR 537.) Dr. Cevallos gave Plaintiff a “fair” prognosis, and opined he could not work because of his left side body pain and numbness. (AR 537.)

         2. Vision Testing

         Plaintiff had his vision tested in June 2013. (AR 521-22.) Plaintiff received a diagnosis of left eye blindness and optic atrophy in the left eye from Dr. Martin Rajsbaum of Advanced Eye Care. (AR 522.) Dr. Rajsbaum prescribed Plaintiff glasses and indicated Plaintiff's visual acuity could be corrected to 20/25 in the right eye and at best, he would be able to “count fingers” with the left eye. (AR 525.)

         3. Sleep Study

         On July 14, 2014, Plaintiff underwent a sleep study at Advanced Lung and Sleep Clinic and was diagnosed with mild obstructive sleep apnea. (AR 546-49.) Treatment recommendations included CPAP (continuous positive airway pressure) therapy, practicing good sleep hygiene, treatment of nasopharyngeal problems such as allergic rhinitis, and weight loss. (AR 548.) Plaintiff was also diagnosed with Chronic Obstructive Pulmonary Disease. (AR 549.)

         B. Mental Impairments

         Plaintiff underwent a Behavioral Health intake assessment at San Ysidro Health Center on November 18, 2011. (AR 503-06.) The intake notes reflect Plaintiff has “low interest in doing things, feels depressed, can't sleep, can't concentrate and moves very slowly.” (AR 503.) Plaintiff reported “he has memory loss everyday [and] feels anxious and unable to relax.” (AR 503.) He also stated he had no family history of mental illness, had never been hospitalized for mental health problems, and had never been prescribed psychotropic medications. (AR 503.) Plaintiff denied suicidal or homicidal ideation. (AR 503.) He stated he was living in a tent in someone's backyard, and that he no longer worked. (AR 504.) He reported having held small side jobs for the past twenty years, but had been unable to retain them due to his physical condition. (AR 504.) The intake assessment notes, “Client is displaying symptoms of depression and anxiety due to a car accident that has caused some medical conditions. He feels hopeless as he is unable to work and has problems making social connections.” (AR 504.) Plaintiff's treatment plan included attending therapy, exploring activities he enjoyed, and increasing his social skills. (AR 505.) Plaintiff was observed as being expressionless and having a decreased amount of motor activity, slowed speech, flat affect, depressed mood, ideas of worthlessness, poor recent memory, below normal intellect, and poor insight. (AR 506.)

         1. Dr. Fajerman, San Ysidro Health Center (Treating Psychiatrist)

         Plaintiff started seeing Leon Fajerman, M.D., psychiatrist with San Ysidro Health Center, on February 1, 2012. (AR 509.) Dr. Fajerman reported Plaintiff exhibited mildly increased motor activity; peculiar posturing; repetitive acts; blunted, inappropriate affect; mild depressed and anxious mood; moderate poverty of content of thought; severe somatic complaints; moderate inability to concentrate; poor remote memory; poor insight and judgment; and unrealistic views of his illness. (AR 511.) Dr. Fajerman indicated Plaintiff's most severe Global Assessment Function (“GAF”)[1] score in the year prior was 45, and assigned a GAF score of 55 at the time of the assessment. (AR 510.) Dr. Fajerman prescribed supportive therapy and 150 milligrams of Wellbutrin ER, an antidepressant, and instructed Plaintiff to return in four weeks. (AR 510.)

         Plaintiff saw Dr. Fajerman on nine occasions between February 23, 2012 and July 10, 2014. (AR 496-99, 508-13, 532, 534, 556-57.) The records generally indicate similar mental symptoms as on the first visit, at times with differing severities. On multiple occasions, Dr. Fajerman recorded that Plaintiff's compliance in taking his medication was “inconsistent” or “poor.” (AR 497, 499, 532, 534.) Dr. Fajerman noted that Plaintiff needed “very specific reminders” for taking his medication, and also wrote he had to review proper use of medications with Plaintiff. (AR 532, 534.) On July 10, 2014, Dr. Fajerman reported that Plaintiff exhibited pressured and excessive speech, flat affect, anxious and labile mood, discouraged attitude, and poor judgment and insight. (AR 556-57.) Dr. Fajerman assigned a GAF score of 50, and Plaintiff's Wellbutrin ER dosage remained at 150 milligrams (one tablet per day in the morning). (AR 556-57.)

         Dr. Fajerman completed two Psychiatric Review Forms in September 2012, and October 2014, providing his analysis of the severity of Plaintiff's mental limitations in work-related functioning. (AR 476, 551.) Both indicate Plaintiff suffered from sleep and mood disturbance; anhedonia or pervasive loss of interests; psychomotor agitation or retardation; feelings of guilt or worthlessness; difficulty thinking or concentrating; emotional withdrawal or isolation; blunt, flat, or inappropriate affect; decreased energy; decreased need for sleep; generalized persistent anxiety; and a poverty of content of speech. (AR 476, 551.) In 2014, Dr. Fajerman added that Plaintiff exhibited personality change; emotional lability; delusions or hallucinations; recurrent panic attacks; suicidal ideation; flight of ideas; oddities of thought, perception, speech or behavior; intrusive recollections of a traumatic experience; somatization unexplained by organic disturbance; easy distractibility; and a loosening of associations. (AR 551.) Dr. Fajerman listed Plaintiff's medications as Wellbutrin ER 150 milligrams and Trazodone 200 milligrams. (AR 552.)

         Both forms indicate Plaintiff was moderately impaired in carrying out simple one-to two-step job instructions, relating with coworkers and the public, and accepting instructions. (AR 479, 554.) Both indicate, with respect to work-related activities, that Plaintiff had marked limitations in performing complex tasks; maintaining concentration, persistence and pace; maintaining regular attendance in the workplace; consistently performing work activities; and performing work activities without needing additional supervision. (AR 479, 554.) Dr. Fajerman also found Plaintiff would have marked restrictions in activities of daily living; marked difficulties in social functioning; marked difficulties in maintaining concentration, persistence, or pace; and three repeated episodes of decompensation, each of extended duration. (AR 479, 554.) Dr. Fajerman assigned a current GAF score of 55 in the 2012 form, adding that the most severe score in the year prior was 50. (AR 476.) He found Plaintiff was “currently disabled due to his affective disorders and pathology.” (AR 478.) In the 2014 form, Dr. Fajerman assigned a GAF score of 60, adding that the most severe score in the year prior was 60. (AR 551.) Dr. Fajerman gave a “guarded” prognosis in both forms, and noted Plaintiff's impairments or treatment would cause him to miss work three or more times per month. (AR 478, 553.)

         2. Dr. Nicholson (Examining Physician)

         On August 14, 2012, Gregory M. Nicholson, M.D., a board certified psychiatrist, conducted a comprehensive psychiatric evaluation of Plaintiff. (AR 469-74.) Plaintiff's chief complaint was anxiety. (AR 469.) Plaintiff stated he had been in a car accident, was bothered by memories of it, and was scared to drive. (AR 470.) Dr. Nicholson diagnosed Anxiety Disorder, not otherwise specified, based on Plaintiff's history of a traumatic car accident and his current history of posttraumatic stress disorder symptoms. (AR 473.) He also diagnosed Depressive Disorder, not otherwise specified, based upon Plaintiff history of depressed mood, dysphoric affect, and neurovegetative symptoms of depression. (AR 473.) Dr. Nicholson concluded Plaintiff had only mild mental limitations, assigned a GAF score of 55, and opined Plaintiff's condition would improve over the next twelve months with active treatment. (AR 473.)

         C. Function Reports

         1. Plaintiff's Function Reports

         Plaintiff completed two Function Reports on June 18, 2012 and September 21, 2012. (AR 336-43, 367-74.) His friend, Magdalena Aguilar, who also completed separate Third Party Function Reports, assisted him with filling out the June 2012 form. (AR 343.) Plaintiff indicated he lived alone in his car, and his symptoms affected his sleep. (AR 336-37.) He noted he did not cook his own meals and did not do house or yard work other than laundry and occasional sweeping. (AR 338, 369.) He was able to maintain personal care, and would either walk or take public transportation every day to go food shopping. (AR 337, 339, 370.) He handled money and paid bills, but experienced stress when handling a checkbook or money orders. (AR 339, 370.) He listed his hobbies as watching television and reading books, but also noted he was no longer able to read. (AR 340.) He said his symptoms limited his ability to lift, squat, bend, stand, reach, walk, kneel, talk, hear, climb stairs, see, remember things, concentrate, understand, follow instructions, and get along with others. (AR 341.) He stated he could walk for fifteen minutes before needing a break, and could pay attention for up to thirty minutes. (AR 341.) He stated he could not finish things he started, had difficulty following written or oral instructions, and had been laid off in the past because of his concentration problems. (AR 341-42.) He indicated he woke up every day feeling confused, and did not handle stress well as it made him feel ill. (AR 367, 373.) Plaintiff noted he was able to think and socialize before his symptoms worsened, but now experienced problems getting along with others. (AR 368, 372.)

         2.Third Party Function Reports

         Magdalena Aguilar, Plaintiff's friend, completed two Third Party Function Reports on June 19, 2012 and September 27, 2012. (AR 348-55, 376-83.) Ms. Aguilar said Plaintiff visited her about once per week, and occasionally attended church. (AR 352, 380.) She confirmed Plaintiff either walked or took public transportation daily to buy prepared food or frozen meals. (AR 350-51, 379.) Plaintiff handled money to buy food, and his poor vision and concentration prevented him from driving. (AR 351, 379.) She stated he had difficulty communicating with others, could not have fluent conversations, and had poor memory. (AR 353, 381.) Ms. Aguilar noted Plaintiff's disabilities limited his ability to work, and indicated Plaintiff had been fired in the past because of his problems getting along with other people. (AR 354.)

         III. The Administrative Hearing

         A. ...

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