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Gann v. Berryhill

United States District Court, E.D. California

May 31, 2018

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




         On March 6, 2017, Plaintiff John Allen Gann (“Plaintiff”) filed a complaint under 42 U.S.C. §§ 405(g) and 1383(c) seeking judicial review of a final decision of the Commissioner of Social Security (the “Commissioner” or “Defendant”) denying his application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) benefits. (Doc. 1.) 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]


         On August 23, 2012, Plaintiff protectively filed applications for DIB and SSI, alleging that he became disabled on December 15, 2011, due to fibromyalgia, restless leg syndrome, tendonitis, gastritis, and schizophrenia. (Administrative Record (“AR”) 180-94, 204, 208.) Plaintiff was 34 years old when he filed the application. (See AR 180 (listing Plaintiff's date of birth as May 18, 1978).) Plaintiff has a high school education, and he previously worked as a security guard from 2001 to 2004 and a maintenance worker from 2004 to 2011. (AR 209.)

         A. Relevant Medical Evidence [[2]]

         1. Sierra View District Hospital

         On April 13, 2012, Plaintiff presented to Sierra View District Hospital complaining of a burning sensation throughout his body. (AR 289.) Plaintiff was alert and cooperative, able to move all extremities, ambulatory, and in no apparent distress. (AR 290.) The examining doctor speculated Plaintiff may have fibromyalgia. (AR 294-95.)

         2. Lindsay Family and Pediatrics

         On May 12, 2012, Plaintiff presented to Lindsay Family and Pediatrics complaining of pain throughout his body and anxiety. (AR 330.) The doctor noted 14 trigger points. (AR 330.) Plaintiff's diagnosis included fibromyalgia and chronic back pain. (AR 330.)

         Plaintiff returned to Lindsay Family and Pediatrics on June 16, 2012. (AR 328.) Since Plaintiff's treatment notes state he was diagnosed with schizophrenia at age 18, the doctor referred him to mental health. (AR 328.) Plaintiff returned to Lindsay Family and Pediatrics later in June for evaluation of his fibromyalgia. (AR 324.) His treatment notes provide a diagnosis of fibromyalgia, migraine headaches, asthma, and hypertension. (AR 324.) Plaintiff's doctor added bipolar disorder to his impairments in August 2012. (AR 316.)

         Between August 2012 and August 2013, Plaintiff returned to Lindsay Family and Pediatrics approximately once a month for review of his medications and other concerns. (AR 301-20, 390-402.) Plaintiff was consistently alert, showed no edema or focal deficit, and his treating doctor made no notes suggesting any apparent distress. (AR 301-20, 390-402.)

         3. Consultative Examiner Emmanuel Fabella, M.D.

         On February 12, 2013, internist Emmanuel Fabella, M.D., performed an independent internal medicine consultation and reviewed Plaintiff's available medical records. (AR 355-61.) Plaintiff's principal complaint was fibromyalgia. (AR 355.) Plaintiff told Dr. Fabella that prolonged standing worsens his fibromyalgia symptoms and he needs to rest after walking half a block, but he could occasionally lift his 27-pound son. (AR 355.) Plaintiff stated his pain was mild to moderate and medication helped ease the pain. (AR 355.)

         Dr. Fabella found Plaintiff to be cooperative, friendly, and displaying no signs of depression, delusional thought, or psychomotor retardation. (AR 358.) Dr. Fabella noted that Plaintiff moved briskly both in the examining room and out to the parking lot as he was going to his car. (AR 358.) Dr. Fabella's neurological examination found no weakness, numbness, light-headedness, or difficulty with coordination. (AR 357.) Plaintiff's hand grip strength measured 50 pounds on the right and 85 pounds on the left. (AR 357.) Examination of Plaintiff's hands showed loss of prominence of one joint in his right hand, but was otherwise unremarkable and he exhibited good hand coordination. (AR 359-60.) All range of motion testing was within normal limits. (AR 358-59.)

         Based on the examination, Dr. Fabella concluded Plaintiff had fibromyalgia with more than 11 trigger points and medication only partially improved Plaintiff's condition. (AR 360.) Dr. Fabella opined Plaintiff had the residual functional capacity to lift and carry up to 20 pounds occasionally and 10 pounds frequently, stand and walk four to six hours in an eight-hour day, and sit without any restrictions. (AR 360.) Dr. Fabella further opined Plaintiff was capable of occasionally climbing, balancing, kneeling, crawling, bending, crouching, stooping, and walking on uneven terrain. (AR 360.) However, Dr. Fabella recommended that Plaintiff avoid climbing ladders, working at heights, and exposure to cold. (AR 360-61.)

         4. Consultative Examiner Roger A. Izzi, Psy.D.

         On February 12, 2013, Roger A. Izzi, Psy.D., performed a psychiatric evaluation of Plaintiff. (AR 364-67.) Plaintiff complained of high blood pressure, fibromyalgia, and depression as well as experiencing insomnia, occasional unprovoked crying spells, and auditory hallucinations when alone. (AR 364.) Dr. Izzi observed Plaintiff was alert and responsive, fully oriented, and able to recall three words without any obvious difficulty. (AR 365-66.) Plaintiff spelled “world” correctly forward with no difficulty, but made two mistakes spelling “world” backward. (AR 366.) Dr. Izzi diagnosed Plaintiff with mood disorder, not otherwise specified. (AR 366.)

         Dr. Izzi concluded Plaintiff was cable of performing simple and repetitive type tasks on a consistent basis over an eight-hour period. (AR 366.) Dr. Izzi further opined that Plaintiff's mood disorder would fluctuate with Plaintiff's subjective perception of pain and that his ability to get along with his peers would be moderately limited by his mood disorder. (AR 366.) Plaintiff was capable of responding to usual work session situations regarding attendance and safety issues and dealing with changes in a routine work setting. (AR 366-67.) Plaintiff was also capable of managing his own finances. (AR 367.)

         5. Treating Physician Anthony Aguirre, M.D.

         On April 8, 2014, Plaintiff presented to Anthony Aguirre, M.D. to establish care for fibromyalgia. (AR 445-46.) Plaintiff reported a history of chronic pain from fibromyalgia as well as anxiety issues and bipolar disorder. (AR 445.) Plaintiff further reported that the chronic pain got better during the day and medication helped alleviate the pain. (AR 445.) Dr. Aguirre noted Plaintiff was pleasant, alert, well nourished, and in no acute distress. (AR 445.) Dr. Aguirre also noted Plaintiff had many tender points and “slight” pain with range of motion, but range of motion was full. (AR 445.) Dr. Aguirre diagnosed Plaintiff with unspecified myalgia and myositis, anxiety, elevated blood pressure without diagnosis of hypertension, and fibromyalgia. (AR 446.) Dr. Aguirre prescribed medication for myalgia and myositis as well as anxiety, and renewed several other prescriptions. (AR 446.)

         Plaintiff returned to Dr. Aguirre several more times between May 2014 and February 2015. (AR 420-22, 425-27, 430-31, 436-42, 472-75, 479-81.) At each visit Plaintiff continued to be pleasant, alert, well nourished, and in no acute distress. (AR 421, 426, 431, 437, 439, 441, 472, 474, 480.) Plaintiff also continued to have full range of motion with “slight” pain, except on November 20, 2014, when Plaintiff reported “mild” pain with range of motion as well as the inability to form a grip with his right hand. (AR 421, 426, 431, 437, 440-41, 472, 474, 480.) On February 19, 2015, Plaintiff reported to Dr. Aguirre that his depressive symptoms had improved. (AR 479.) Plaintiff felt tired and had little energy, but in the previous two weeks he had no trouble concentrating on things such as watching television and had no feelings of hopelessness or that he was a failure. (AR 479.) Plaintiff also reported that his medications made his chronic pain bearable, but did not relieve the pain entirely. (AR 479.)

         On April 14, 2015, Dr. Aguirre completed a Fibromyalgia Medical Source Statement for Plaintiff. (AR 483-87.) Dr. Aguirre identified the following signs and symptoms: history of widespread pain, 11 of 18 specific tender points, muscle pain, dizziness, insomnia, fatigue, depression, anxiety disorder, numbness or tingling, nausea, and nervousness. (AR 483.) Dr. Aguirre described Plaintiff's pain as occurring daily, moderate to severe in intensity, and achy/dull. (AR 484.) Dr. Aguirre opined Plaintiff did not have the stamina and endurance to work an easy job eight hours a day, five days a week due to Plaintiff's chronic pain, anxiety, and depression with the physical limitations as the “main problem.” (AR 485.) Dr. Aguirre also stated Plaintiff needed a job that permitted him to shift positions at will, walk around every 30 minutes for five minutes at a time, take four to five unscheduled breaks for 20 minutes at a time, and elevate his legs to 90 degrees for 30% of each eight-hour workday. (AR 486.) Plaintiff had no significant limitations with reaching, handling or fingering, but was only capable of grasping, turning, twisting, engaging in fine finger manipulation, reaching in front and reaching overhead with each hand for 10% of each day. (AR 486.) Dr. Aguirre also found Plaintiff's symptoms would be severe enough to interfere with the attention and concentration needed to perform even simple work tasks 25% or more of each workday. (AR 487.) Ultimately, Dr. Aguirre concluded Plaintiff was incapable of tolerating even low stress jobs and would likely miss more than four days per month as a result of his impairments and treatment. (AR 487.)

         6.Treating Therapists Brooke A. Foster, Psy.D. and Dawn K. Miller, L.C.S.W.

         On July 22, 2014, Plaintiff presented to Brooke A. Foster Psy.D., for an initial therapy session. (AR 434-35.) Plaintiff reported a long-term history of depression and anxiety for which he was taking medication, which was not helping. (AR 434.) Dr. Foster advised Plaintiff to discuss his medication concerns with his primary care physician. (AR 434.) Plaintiff's diagnosis included depressive disorder and anxiety. (AR 434.)

         On August 28, 2014, Plaintiff returned to Dr. Foster and reported he had experienced panic attacks and auditory hallucinations. (AR 432.) Dr. Foster added possible psychosis to Plaintiff's diagnosis. (AR 432.) When Plaintiff returned to Dr. Foster for an appointment on September 10, 2014, Plaintiff reported no current hallucinations. (AR 428.) Plaintiff also reported he had significant pain and some days were worse than others, but he had recently attended a support group for individuals with fibromyalgia, which was helpful. (AR 428.)

         Plaintiff subsequently changed therapists and on October 30, 2014, Plaintiff presented to Dawn K. Miller, L.C.S.W., for an initial therapy session. (AR 422-24.) Ms. Miller noted Plaintiff's mood was depressed and worried, but he was cooperative, oriented, had normal psychomotor activity, good eye contact, intact thought process, and unremarkable thought content. (AR 424.)

         Plaintiff returned to Ms. Miller on December 11, 2014, and January 26, 2015. (AR 470- 71, 476-77.) During the December 2014 visit, Plaintiff reported intrusive thoughts that seemed to come from outside his head as well as fatigue and loss of interest in pleasure or normal activities. (AR 470.) During the January 2015 visit, Plaintiff reported feeling depressed or hopeless more than half the days, having little interest or pleasure in doing things, feeling tired, and having trouble concentrating on things such as watching television--nearly every day. (AR 476.) Plaintiff also reported he continued to struggle with chronic pain, but showers helped relieve the pain. (AR 476.) Ms. Miller noted during both visits Plaintiff lost his train of thought and reported unusual experiences, but denied hallucination. (AR 471, 477.)

         7.State Agency Physicians

         On March 8, 2013, Dr. I. Ocrant, M.D., Disability Determination Services medical consultant, reviewed the medical evidence of record and concluded Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently; sit, stand and walk six hours in an eight-hour day; and occasionally climb, stoop, kneel, crouch, and crawl. (AR 72-73.) Dr. Ocrant found no manipulative, visual, communicative, or environmental limitations. (AR 73.)

         On March 15, 2013, a Disability Determination Services mental health consultant, Dr. G. Ikawa, M.D., reviewed the evidentiary record and concluded Plaintiff's mental impairments were non-severe. (AR 69-70.)

         Upon reconsideration, on October 11, 2013, another Disability Determination Services mental health consultant, Dr. A. Garcia, M.D., affirmed Dr. Ikawa's opinion that Plaintiff's mental impairments were non-severe. (AR 96-97.) Additionally, on October 17, 2013, another Disability Determination Services medical consultant, Dr. Sadda V. Reddy, M.D., performed an independent review of Plaintiff's medical records and affirmed Dr. Ocrant's opinion. (AR 99- 100.) Dr. Reddy stated that there was no evidence of any worsening of Plaintiff's fibromyalgia and noted that Plaintiff had normal range of motion, no joint swelling, and no focal deficits. (AR 99.)

         B. Administrative Proceedings

         The Commissioner denied Plaintiff's applications for DIB and SSI initially on March 21, 2013, and again on reconsideration on October 17, 2013. (AR 118-22, 128-33.) Consequently, on November 15, 2013, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 134-36.) At the hearing on March 12, 2015, Plaintiff appeared with counsel ...

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