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Kendall v. Berryhill

United States District Court, E.D. California

May 8, 2018

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



         On May 6, 2017, Plaintiff Lori Lynn Kendall (“Plaintiff) filed a complaint under 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her application for Disability Insurance Benefits (“DIB”) under Title XVI of the Social Security Act (the “Act”). (Doc. 1.) Plaintiff filed her opening brief on February 1, 2018, (Doc. 16), Defendant filed her opposition on March 27, 2018, (Doc. 19), and Plaintiff filed her reply on April 11, 2018, (Doc. 20). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.[1]

         I. BACKGROUND

         On May 22, 2013, Plaintiff filed protectively an application for DIB payments, alleging that she became disabled on March 18, 2013, due to “chronic fatigue syndrome/fibromyalgia.” (Administrative Record (“AR”) 20, 26, 74, 197, 209.) Plaintiff was born on May 30, 1973, and was 49 years old on the alleged onset date. (AR 26, 74, 89, 197.) She has a high school education. (AR 26, 364.) Plaintiff has past work experience as a medical receptionist and an x-ray operator. (AR 30-31, 184, 200, 210.)

         A. Relevant Medical Evidence[2]

         1.Treating Physician Rex A. Adams, M.D.

         On March 15, 2013, Plaintiff presented to rheumatologist Dr. Adams for a self-referred rheumatology examination. (AR 310-12.) Plaintiff reported her symptoms of fatigue and poor mental focus had been worsening over the last 18 months. (AR 310.) She complained of cold symptoms, headache, sore throat, cervical lymphadenopathy, and increasing joint and muscle pain in her neck, shoulders, low back, and legs. (AR 310.)

         Dr. Adams' evaluation of Plaintiff noted “notable myofascial tender points involving the axial skeleton, ” specifically involving “areas of the occiput, posterior cervical, trapezius and rhomboid areas in a bilateral distribution.” (AR 311.) Plaintiff also had “tenderness involving the low lumbar areas, medial aspect of the elbows and the posterior aspect of the legs over the calf areas.” (AR 311-12.) Dr. Adams assessed Plaintiff with a “[l]ongstanding chronic fatigue syndrome/fibromyalgia syndrome apparently in exacerbation over the past 18 months with associated sleep disturbance.” (AR 312.) Dr. Adams recommended that Plaintiff take Adderall and continue with Trazodone, and suggested “medical disability” over a period of two months from March 18 to May 19, 2013. (AR 312.)

         Plaintiff presented for a follow up appointment with Dr. Adams on May 7, 2013. (AR 302-03.) She reported that although her mental focus was “somewhat better” early in the morning with Adderall, she “did not feel well through the day” and “had a racing sensation and anxiety that precluded further use after the first week.” (AR 303.) Plaintiff continued to feel “drugged, ” “dizzy and nauseated, ” and “quite fatigued[, ] despite attempts at resting as much as possible.” (AR 303.) She reported that she was required to go to Los Angeles for a three-day period in order to maintain her licensure for densitometry, and had a “severely bad time with motion sickness, anxiety, sweaty and clammy sensation, and diffuse muscle pain” from which it took her “several days to recover.” (AR 303.) Plaintiff stated that although her fatigue and nausea is “somewhat better, ” she “continues to have trouble with mental focus and anxiety.” (AR 303.)

         On examination of Plaintiff, Dr. Adams observed “myofascial tender points involving areas of the occiput, posterior cervical, trapezius and rhomboid areas in a bilateral distribution, ” as well as “involving the medial aspect of the elbows and the lateral aspect of the thighs.” (AR 303.) Dr. Adams assessed Plaintiff with “[longstanding history of chronic fatigue syndrome/fibromyalgia syndrome with continued exacerbation despite recent disability and trial of Adderall therapy.” (AR 303.) Plaintiff was prescribed Paxil and her disability extended through July 21, 2013. (AR 302.)

         Plaintiff also completed a “Multi-Dimensional Health Assessment Questionnaire” on May 7, 2013. (AR 304.) In it, Plaintiff reported that she had no difficulty dressing herself (including tying shoelaces and doing buttons), lifting a full cup or glass to her mouth, walking outdoors on flat ground, washing and drying her entire body, turning faucets on and off, and getting in and out of a car, bus, train, or airplane. (AR 304.) She indicated having some difficulty getting in and out of bed, bending down to pick up clothing from the floor, and walking two miles. (AR 304.) Plaintiff reported being unable to participate in sports and games. (AR 304.) She further indicated she was unable to get a good night's sleep, and to deal with feelings of anxiety or being nervous, depression, or feeling blue. (AR 304.) Plaintiff reported her pain level was low and that fatigue was a “major problem.” (AR 304.)

         On June 21, 2013, Plaintiff called Dr. Adams' office to report that she has been unable to sleep for a week and was “depressed, anxious, losing a lot of hair, and feels like she is going to have a nervous breakdown.” (AR 301.) She requested that Dr. Adams prescribe an antifungal medication, but he refused, indicating he was “not comfortable giving a long term antifungal without constant monitoring, ” and recommended Plaintiff see her primary care physician for such treatment. (AR 301.)

         At a follow up visit with Dr. Adams on July 9, 2013, Plaintiff complained of “severe fatigue” that varied in intensity but was present on a “regular basis, ” along with headaches and “significant nausea and dizziness.” (AR 292.) Plaintiff reported that “[t]here is no day where [she] actually feels normal, feeling very anxious at times as well.” (AR 292.) Dr. Adams' physical examination revealed the same “myofascial tender points” as previously noted, and he assessed Plaintiff with “[longstanding history of chronic fatigue syndrome/fibromyalgia syndrome with persistent disability based on chronic fatigue, lack of mental focus, chronic nausea and inability to focus.” (AR 292.) Dr. Adams extended her disability for an additional six months while awaiting results of a pending endocrine evaluation for “possible therapeutic opportunities.” (AR 292.)

         Plaintiff also completed another “Multi-Dimensional Assessment Questionnaire” on July 9, 2013. (AR 293.) She reported improvement with bending down to pick up clothing from the floor and participating in sports and games. (AR 293.) Plaintiff also indicated improvement in dealing with feelings of anxiety, nervousness, and depression, but that she was still unable to get a good night's sleep. (AR 293.)

         On October 23, 2013, Plaintiff called Dr. Adams' office to inform him that she was “not feeling any better, ” is “more exhausted, ” and has had “a cold, bronchitis, and sinus infection” for a month. (AR 369.) She also reported she has an upcoming appointment for “bioidentical hormone replacement.” (AR 369.)

         2. Treating Physician Michael J. Powell

         Upon relocation of Dr. Adams (AR 54-55), Plaintiff established care at the rheumatology practice of Michael F. McClanahan, PA-C, and Michael J. Powell, M.D., on October 31, 2013. (AR 241, 461.) Plaintiff presented to rheumatologist Dr. Powell on June 3, 2014, for an evaluation. (AR 461.) She reported that she was seeing a hormone specialist, and complained of nightmares, insomnia, anxiety, and porphyria. (AR 461.)

         On September 8, 2014, Plaintiff complained that her heart pounded during the day and at night, that her “mind spins, ” and that she “can't calm down.” (AR 460.) Plaintiff also noted that she met with a hormone specialist with no improvement. (AR 460.) She requested an antidepressant. (AR 460.) Dr. Powell assessed Plaintiff with depression and recommended a trial of Cymbalta. (AR 460.) Dr. Powell also noted Plaintiffs depression on February 19, 2015. (AR 459.)

         Plaintiff presented to Dr. Powell on July 22, 2015, for an appointment. (AR 458.) He noted Plaintiffs diagnoses of fibromyalgia, pain, and cognitive impairment, and that there was no change in Plaintiffs symptoms. (AR 458.) Plaintiff s medications were adjusted. (AR 458.)

         On August 6, 2015, Dr. Powell completed a “Questionnaire.” (AR 464-65.) He opined that Plaintiffs medical problems precluded her from performing “any full-time work at any exertional level, including the sedentary level.” (AR 464.) He noted Plaintiff had muscular pain for greater than twelve months. (AR 464.) Dr. Powell stated that Plaintiffs primary impairment was “[s]evere fatigue with pain” and “decreased cognitive function.” (AR 464.) He based his opinion on “[s]ymptoms consistent with Fibromyalgia, ” specifically that Plaintiff had 13 of 19 “pain points” and was therefore positive for a fibromyalgia diagnosis. (AR 464.) Dr. Powell opined that Plaintiff could sit and stand for one hour and walk for thirty minutes during an eight-hour day, and was required to lie down for two hours during an eight-hour day. (AR 464.) Dr. Powell further opined that Plaintiff was “[u]nable to multi-task due to cognitive dysfunction.” (AR 464.) He indicated that these limitations existed as of her “[f]irst visit with diagnosis [on] 10/31/13.” (AR 465.)

         3. Stanford Hospital and Clinics

         Plaintiff was referred to Stanford to be evaluated for chronic fatigue syndrome/myalgic encephalomyelitis and presented for an assessment on October 21, 2014. (AR 390-93.) She reported symptoms of anxiety/depression, headaches, fatigue, nausea, “brain fog, ” lack of focus and concentration, dizziness, exhaustion, and “feelings of being overwhelmed.” (AR 390.) Plaintiffs physical and mental status examinations were normal. (AR 392.) Plaintiff stated that her “hormone issues” are “under better control” since she has been taking supplements and seeing an endocrinologist. (AR 390.) The evaluating physician's assistant's impression was that Plaintiffs history and symptoms were “consistent” with chronic fatigue syndrome. (AR 392.) Plaintiff was referred to endocrinology and a sleep center, and was advised to avoid any “major post-exertional malaise episodes, ” which can be “triggered by physical or cognitive tasks as well as by physical or emotional stressors.” (AR 393.)

         Plaintiff attended a follow up appointment on February 10, 2015. (AR 393, 407-24.) She reported feeling same as she did the last visit and her physical and mental status examinations were normal. (AR 407-08.) The evaluating physician's assistant recommended that Plaintiff begin taking an antibiotic and referred her to a sleep study. (AR 410-11.) On March 2, 2015, Plaintiff again presented to the clinic to establish care for her chronic fatigue syndrome, hypothyroidism, and anxiety/depression. (AR 425.) On physical examination, the attending physician noted Plaintiff had an appropriate affect and eye contact and intact thought and speech. (AR 435.) The physician noted Plaintiff was in an “[u]pbeat mood at the beginning of the encounter, then seemed to become dazed as we went through preventative recommendations and rationale.” (AR 435.) The physician further noted Plaintiffs statements that she was “not disinterested but her fatigue was increasing with the information and the fact she drove 2 hours to be here.” (AR 435.) She was recommended to return in three months for a follow-up appointment. (AR 435.)

         On September 25, 2015, Jane Norris, PAC, opined that Plaintiff “meets the clinical criteria for Chronic Fatigue and Immune Dysfunction Syndrome.” (AR 466.) PA Norris stated that “[u]ntil [Plaintiffs] symptoms have measurably improved, I recommend that she limit her workload, daily activities and stress, as overexertion could lead to a worsening of her condition.” (AR 466.)

         4. Consultative Examiner Paul Martin, Ph.D.

         On October 2, 2013, licensed psychologist Dr. Martin review Dr. Adams' treatment notes and medical source statement and performed a mental status evaluation of Plaintiff at the request of the Department of Social Services. (AR 363-65.) Plaintiff was observed to have driven herself to the appointment and was considered a “reliable historian.” (AR 363.) She was adequately groomed and presented in a “friendly and cooperative manner” during the evaluation. (AR 364.) Plaintiff made good eye contact, her facial expression and gross motor function were normal, and she interacted appropriately. (AR 364.) She was able to ambulate without assistance. (AR 364.)

         Plaintiff complained of an “18 year history of chronic fatigue syndrome and fibromyalgia” with “accompanying anxiety and depression.” (AR 363.) She reported symptoms of “low energy, poor motivation, crying spells, anhedonia, memory problems, and feelings of hopelessness.” (AR 363.) Plaintiff also reported feeling suicidal at times and is “often nervous, worried, and tense.” (AR 363.) She denied having panic attacks. (AR 363.) She reported that she stopped working in 2013 because “she always feels as though she is in a ‘brain fog.'” (AR 364.)

         Plaintiff reported physical and cognitive limitations, but was “independent for basic [activities of daily living].” (AR 364.) Specifically, she is able to prepare simple meals, light household chores, make change at the store, take public transportation independently, and drive a car. (AR 364.) She reported she typically spends her day at home resting, and her level of activity varies depending on how she feels. (AR 364.) Plaintiff lives alone. (AR 364.)

         Plaintiff's mental status examination was normal except that she was noted to be tearful at times. (AR 364.) Dr. Martin diagnosed Plaintiff with major depressive disorder, recurrent (moderate), and pain disorder associated with both psychological factors and a general medical condition. (AR 365.) He assigned Plaintiff a Global Assessment of Functioning (“GAF”) score of 60 and a prognosis of “guarded.” (AR 365.) With respect to Plaintiff's mental residual functional capacity (“RFC”)[3], Dr. Martin opined that Plaintiff's ability to understand, remember, and carry out simple instructions and to manage funds independently was unimpaired. (AR 365.) He opined Plaintiff had mild impairment in the following areas: the ability to understand, remember, and carry out detailed and complex instructions; the ability to maintain attention and concentration throughout the current evaluation; the ability to maintain pace throughout the current evaluation; the ability to endure the stress of the current interview; and the ability to interact with the public, supervisors, and coworkers in a work setting. (AR 365.) Plaintiff's ability to maintain pace and persistence throughout the evaluation and her ability to adapt to changes in routine work-related settings were deemed by Dr. Martin to be moderately impaired. (AR 365.)

         5. State Agency Physicians

         On September 16, 2013, Martha A. Goodrich, M.D., a state agency physician, reviewed the record and assessed Plaintiff's physical RFC. (AR 79-80, 82-83.) Dr. Goodrich found that Plaintiff could: occasionally lift and/or carry 20 pounds and frequently 10 pounds; stand and/or walk for about six hours in an eight-hour workday; sit for more than six hours in an eight-hour workday; perform unlimited pushing/pulling with the upper and lower extremities, subject to the lift and carry restrictions; occasionally climb, kneel, crouch, and crawl; and frequently balance and stoop. (AR 82-83.) Dr. Goodrich found that Plaintiff had no other limitations. ...

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