United States District Court, N.D. California, San Jose Division
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT, RE: DKT.
NOS. 21, 28
R. LLOYD United States Magistrate Judge
Juan Antonio Pizano Zavala (“Pizano”) appeals a
final decision by Defendant Nancy A. Berryhill, Acting
Commissioner of the Social Security Administration
(“the Commissioner”), to deny Pizano's
application for disability benefits under the Social Security
Act. Each party now moves for summary judgment. Dkt. Nos. 21,
28. The Court takes both motions under submission without
oral argument, Civil L.R. 7-1(b), and for the reasons
described below grants each motion in part and denies each in
parties consented to have this matter adjudicated by a
magistrate judge. Dkt. Nos. 9, 11.
Mexico in 1972, Pizano attended school through the sixth
grade before coming to the United States. AR 53. He gained
permanent resident status, AR 197-98, and for twenty years
picked grapes nine hours a day, six days a week. AR 54,
217-18. One week's labor earned him $350. AR 217-18.
Pizano is the father of two young girls, who live with him
and his longtime partner, Monica. AR 52-53, 71-72.
has a history of problems with his head, spine, shoulders and
neck. He injured his head in 2002 during an altercation with
police. As Pizano explained it, he was at a house with other
people “when suddenly the police came and they started
beating another guy[.]” AR 70. Pizano tried to
intervene but an officer pushed him and he fell on the left
side of his head. Pizano cannot remember anything else about
the incident. Id. An October 2013 MRI revealed
“extensive posttraumatic encephalomalacia of the left
frontal lobe and left temporal lobe and to a lesser extent
left parietal lobe.” AR 339-40.
also experienced degenerative changes in his spine, but the
condition remained largely stable between 2013 and 2015. An
April 2013 MRI revealed “posterior disc bulge at ¶
5-S1 with an annular tear in the right foraminal region which
may touch the right S1 nerve. Minor posterior disc bulge at
¶ 4-5. Left paracentral disc bulge at ¶ 11-12
without stenosis.” AR 349. In March 2014, an MRI showed
“mild multilevel discogenic degenerative changes,
” but “[n]o significant interval change from
prior comparison examination of [April 2013].” AR 399.
The following year, an MRI was “similar to prior
comparison examination of March 2014.” AR 487.
his shoulders, an April 2013 MRI of the right shoulder
revealed “[a]cromioclavicular joint arthritis. Minimial
subacromial subdeltoid bursitis. Mild infraspinatus strain or
tendinitis without evidence of frankrotator cuff tear . . .
.” AR 351. A year later, an MRI of the left shoulder
was generally normal, with “minimal strain and/or
tendinitis.” AR 396-97.
a February 2014 neck MRI showed “[m]ild multilevel
degenerative changes most pronounced at ¶ 6-7 where
diffuse disc bulging and a left posterior paracentral disc
protrusion are seen. These degenerative changes result in
advanced left neural foraminal encroachment.” AR
is “mildly obese, ” with a 2014 body mass index
of 30.1. AR 95.
physicians offered opinions about Pizano's ailments, but
three are most relevant to the parties' motions. Borina
Dramov, MD, Pizano's treating neurologist, described
Pizano's prognosis as “guarded” in July 2015.
AR 587-88. Dr. Dramov looked to the October 2013 MRI, which
she said indicated that Pizano would have difficulty with
memory, learning, and keeping a job. Id. She said
that Pizano was unable to stand or sit for more than an hour
at a time and that he was “incapable of even low stress
work. Id. Dr. Dramov offered similarly pessimistic
opinions of Pizano's ability to work in February 2014, AR
292, 590, and September 2015, AR 639-41.
treating physician, Raymond Gaeta, MD, was also skeptical
about Pizano's ability to work. Dr. Gaeta said Pizano
could not sit or stand for more than thirty minutes at a time
and that he would miss more than four days of work per month
because of his impairments. AR 600-04. Dr. Gaeta said Pizano
should not lift anything - even less than ten pounds - in a
competitive work environment. AR 602.
and finally, in October 2014 a non-examining state agency
physician, J. Bonner, MD, reviewed the record and concluded
that Pizano could lift 20 pounds occasionally, 10 pounds
frequently, and could stand, walk, and sit for about six out
of eight hours in a normal workday. AR 97.
applied in 2014 for benefits under Title II of the Social
Security Act, alleging that his disability began on July 15,
2013. AR 195-96. After the Commissioner denied
Pizano's application initially and on reconsideration,
Pizano requested a hearing before an administrative law judge
(“ALJ”). ALJ Betty Roberts Barbeito presided over
a hearing in San Jose in 2015. AR 45-80.
witnesses testified at the hearing. Pizano testified through
an interpreter, describing his education, work history, and
his various ailments. AR 51-56, 65-72. He said he speaks no
English and that when he worked in the fields, he
communicated exclusively in Spanish. AR 52-53, 67. Second,
Arthur Robenger, MD, a medical expert, described his review
of Pizano's medical records. He said Pizano had no
limitations for sitting, could stand and walk for six out of
eight hours in a workday (three hours each), and that he
could lift ten pounds frequently, twenty pounds occasionally.
AR 63. Dr. Robenger ...