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Pizano v. Berryhill

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

May 31, 2018



          HOWARD R. LLOYD United States Magistrate Judge


         Plaintiff 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 part.

         All parties consented to have this matter adjudicated by a magistrate judge. Dkt. Nos. 9, 11.


         A. Medical History

         Born in 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.

         Pizano 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.

         Pizano 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.

         As for 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.

         Finally, 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 400-01.

         Pizano is “mildly obese, ” with a 2014 body mass index of 30.1. AR 95.

         Multiple 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.

         Another 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.

         Third 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.

         B. Procedural History

         Pizano applied in 2014 for benefits under Title II of the Social Security Act, alleging that his disability began on July 15, 2013.[1] 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.

         Three 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 ...

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