United States District Court, E.D. California
ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF
COMMISSIONER OF SOCIAL SECURITY AND AGAINST
S. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Silhouette Gomez (“Plaintiff”) seeks judicial
review of a final decision of the Commissioner of Social
Security (“Commissioner” or
“Defendant”) denying her application for
disability insurance benefits pursuant to Title II and
supplemental security income pursuant to Title XVI of the
Social Security Act. The matter is currently before the Court
on the parties' briefs which were submitted without oral
argument to the Honorable Gary S. Austin, United States
Magistrate Judge. See Docs. 21 and 22. Having
reviewed the record as a whole, the Court finds that the
ALJ's decision is supported by substantial evidence and
applicable law. Accordingly, Plaintiff's appeal is
January 19, 2013, Plaintiff filed applications for disability
insurance benefits and supplemental security income alleging
disability beginning December 31, 2012. AR 123, 134, 175. The
Commissioner denied the applications initially on May 23,
2013, and upon reconsideration on November 26, 2013. AR 133,
144, 157, 168. On November 30, 2013, Plaintiff filed a
request for a hearing before an Administrative Law Judge. AR
Law Judge Cynthia Floyd presided over an administrative
hearing on July 29, 2015. AR 68-122. Plaintiff appeared and
was represented by an attorney. AR 68. Impartial vocational
expert Robin Genereax also testified. AR 68.
September 10, 2015, ALJ Floyd granted Plaintiff's
application. AR 175-82. Because Plaintiff was undergoing
treatment and her condition was expected to improve, ALJ
Floyd recommended a continuing disability review in twelve
months. AR 182.
November 5, 2015, the Appeals Council notified the parties of
its intent to review the hearing decision. AR 282-89. On
February 19, 2016, the Appeals Council vacated the hearing
decision and remanded the case for further proceedings. AR
October 31, 2017, ALJ Joyce Frost-Wolf presided over the
administrative hearing of the remand. AR 38-67. Plaintiff
appeared and was represented by an attorney. AR 38. Impartial
vocational expert Stephen B. Schmidt also testified. AR 38.
December 6, 2017, ALJ Frost-Wolf issued a hearing decision
denying Plaintiff's applications. AR 15-28. The Appeals
Council denied review on April 23, 2018. AR 1-4. On June 27,
2018, Plaintiff filed a complaint in this Court. Doc. 1.
first agency hearing on July 29, 2015, Plaintiff (born
October 28, 1976) was living with her partner and her sons aged 3, 4, 8
and 17 years.
AR 72. Although Plaintiff had a driver's license, driving
made her anxious and she preferred to have her partner or her
teen-aged son drive her or run errands for her. AR 75-76.
was approximately five foot, three inches tall and weighed
230 pounds. AR 73. Although her weight had fallen from 267
pounds following lap band surgery, Plaintiff was still obese
and still had type 2 diabetes and high cholesterol. AR 73-74.
She experienced chronic migraines that lasted for two or
three days, and occurred three to five times per month. AR
90. On three occasions, Plaintiff sought emergency room
treatment for her migraines receiving morphine shots before
returning home to rest in a dark room. AR 93. Plaintiff also
had chronic back problems and sciatica that shot pain down
her right leg and sometimes made her unable to walk. AR 90.
Her right arm tingled. AR 90. She had high blood pressure,
severe depression, asthma and anxiety. AR 91, 95-96, 104.
Plaintiff reported suicidal ideation and multiple suicide
attempts, which she attributed to her life experiences which
included being sexually assaulted as a child. AR 104-05.
drank from four to eight glasses of wine daily to “make
[her] body feel a little loose.” AR 109-10. She did not
know if her drinking affected her mentally. AR 110. Plaintiff
had received no treatment for her alcohol use. AR 110.
Plaintiff thought that if she stopped drinking she would be
tense and in pain. AR 111. She stated, “I don't see
myself stopping drinking.” AR 111.
about three months in 2013, Plaintiff did office work and
fundraising for her mother's business, Emmanuel Outreach
Ministries. AR 79-80. Plaintiff's mother, who owned the
church and was its pastor, permitted Plaintiff to work
flexible hours when she felt well. AR 79-80. Plaintiff
reported self-employment wages received from the church for
many years. AR 82, 88.
becoming ill in 2012, Plaintiff worked for Merced Community
College doing filing and data entry in the billing
department. AR 81-82. For approximately five years she
provided IHSS in-home care for her mother, who was then
seriously ill. AR 82-83. She also worked for recruitment
services companies and sold tickets for the ferry from Long
Beach to Catalina Island. AR 83-84.
testified that she had attended special education classes
throughout school due to a learning disability (catatonia).
AR 77. She had a business degree from Merced Community
College. AR 77. Plaintiff had difficulty concentrating,
reading and doing math. AR 77-78.
testimony at the October 2017 remand hearing was generally
consistent with her testimony in July 2015. Plaintiff's
attorney emphasized that Plaintiff's condition had
worsened in the interim. AR 42-43. Specifically,
Plaintiff's physicians had prescribed lithium, identified
mild degenerative changes of Plaintiff's spine and
referred her for pain management. AR 42-43. Plaintiff needed
a cane or a walker to get around. AR 54. She wore a back
brace and used a TENS unit daily. AR 55. Cortisone shots
relieved but did not eliminate her back pain. AR 55-56. Her
medications caused memory loss. AR 53-54.
the help of her cane, Plaintiff could stand in one place for
five minutes. AR 59. She could sit comfortably for about 30
minutes. AR 60. Although Plaintiff could not walk a block,
she testified that she needed always to be in motion. AR
debilitating migraines continued. AR 62. She needed to lie
down when she took her medications. AR 62. Her depression
caused a “breakdown” at least once a week. AR 61.
When Plaintiff experienced a breakdown she isolated herself,
cried, began suicidal ideation and needed to call her
therapist or the suicide prevention hotline. AR 61.
testified that because of her migraines and intense pain she
was no longer able to work at Emmanuel Outreach Ministries.
or to perform any household chores. AR 49, 51. She
experienced back spasms that caused her to fall in stores. AR
partner was home during the day and able to help her care for
the children. AR 53. Plaintiff was able to sit on the bed
with her younger children (aged 5, 6 and 10), snuggling,
reading, watching television and playing games. AR 45, 53.
Plaintiff's Adult Function Reports
adult function report dated April 3, 2013, Plaintiff claimed
she experienced cervical cancer, respiratory illnesses
(asthma), vision loss, mental disorders (depression and
anxiety), diabetes, regular severe migraine headaches,
“pass[ing] out, ” hair loss, disorientation and
high blood pressure. AR 489. Her impairments affected
lifting, bending, walking, sitting, stair-climbing, seeing,
remembering, completing tasks, concentrating, understanding,
following instructions and getting along with others. AR 494.
She had no trouble dealing with authority figures or
co-workers. AR 495. Her medications were Topiramate,
typical day, Plaintiff cared for her children and prepared
meals. AR 490. She had no problem with personal care. AR 490.
She regularly did laundry but needed help lifting and
carrying. AR 491. Plaintiff tried to go outside each day but
had to be careful because she sometimes “black[ed]
out.” AR 492. She shopped for three hours at a time
about four times monthly, and could manage her own finances.
AR 492. Plaintiff had no time to socialize and was too sick
to enjoy her former hobbies of hiking, running, playing ball,
reading and watching television. AR 493.
undated report prepared after January 25, 2013, Plaintiff
reported severe migraine headaches, frequent loss of vision,
depression, anxiety and isolation. AR 560. She had recently
been diagnosed with fibromyalgia but had not taken the
medication prescribed for it. AR 560. Plaintiff was seeing a
counselor to address her depression and bipolar disorder. AR
560. She added that she was diagnosed ADD/ADHD and learning
disabled (dyslexia). AR 561. She read below the sixth-grade
level. AR 561.
undated report prepared after June 24, 2013, Plaintiff
reported that her condition continued to deteriorate. AR 550.
She was experiencing visual hallucinations and had become
isolated. AR 550. She had neck tension and a pinched nerve in
her back. AR 550. Because sunlight triggered her migraines,
Plaintiff was staying inside. AR 550. She continued to lose
her hair and black out. AR 551. She was in severe pain and
sick with asthma. AR 550. Her prescription medications were
Vitamin D, Paroxetine, Topiramate, Abilify and
Gabapentin.AR 550. Plaintiff was having trouble
sleeping. AR 557. She struggled with personal care, cooked
infrequently and no longer did the laundry. AR 557.
about April 2015, Plaintiff's prescription medications
included Clonazepam, Abilify, Paroxetine, Propranolol,
Topiramate, Gabapentin, Metformin,  Vitamin D, Ventolin HFA,
Tylenol Extra Strength. AR 585.
August 2017, Plaintiff reported that her prescription
medications included Vitamin D-3, Topamax, Tramadol,
Propranolol, Abilify, Lithium,  Paroxetine, Temazepam,
Sumatriptan, Clonazepam, and
Lidocaine patches. AR 617.
Third-Party Adult Function Reports
April 4, 2013, Plaintiff's sister, Charlotte Lee Dee,
completed a third-party adult function report. AR 475-83.
Although Ms. Dee lived in Las Vegas, Nevada, she reported
that she spent one week each month with Plaintiff and her
family. AR 475, 483. On each visit, Ms. Dee saw Plaintiff in
“excruciating pain to where she's in tears,
unfocused to the point of passing out.” AR 475.
Plaintiff performed her own personal care and prepared food
for her children but otherwise remained in her bed. AR 476.
Plaintiff was able to cook, straighten up and do laundry. AR
477. Plaintiff could handle money and shopped about once
weekly for food and clothing. AR 478. Plaintiff had
difficulty lifting, bending, talking, hearing, seeing,
completing tasks, concentrating, understanding, following
instructions and getting along with others. AR 480. Plaintiff
got along well with authority figures and co-workers and was
able to adapt to changes in routine. AR 481. She did not
handle stress well. AR 481.
unsigned letter dated September 1, 2017, “Emmanuel
Outreach Ministries” reported that in 2016 Plaintiff
performed light volunteer services including filing papers,
preparing sandwiches, organizing extravaganzas for the
holidays and as her health permitted, visiting hotels and
motels to discuss with management Emmanuel's goals and
services for homeless persons housed there. AR 625.
friends Trini Brookins, Reyna Gomez and Shelly Jane
McLaughlin wrote letters on Plaintiff's behalf attesting
to Plaintiff's good character and medical symptoms. AR
627-29, 631-33, 635-36
March 26, 2012, Plaintiff ‘s youngest son was delivered
by Caesarian section. AR 649. Although Plaintiff had
experienced gestational diabetes, her blood glucose was in
the normal range at her son's birth. AR 649. Other than
Plaintiff's self-report of a Metformin prescription, no
evidence of treatment for diabetes appears within the record
for the time period relevant to Plaintiff's disability
applications. Testing results of Plaintiff blood glucose and
hemoglobin A1c were consistently within the normal
See AR 1059 (A1c = 6.0), 1062 (blood glucose = 88),
1105 (blood glucose=82), 1423 (A1c = 5.7), 1424 (blood
glucose = 95).
all of Plaintiff's medical care was provided by Golden
Valley Health Centers, Merced, California. During an office
visit in October 2012, Plaintiff reported that she
experienced migraines following meningitis at age 12, but had
been migraine-free for many years until the migraines resumed
after a 2006 motor vehicle accident. AR 675. Plaintiff
received no medical care following the accident. AR 675.
Plaintiff reported no depression, anxiety or pain. AR 676.
Plaintiff's gait and range of motion were normal, and the
examination revealed no joint swelling or muscle weakness. AR
676. Prescription medications were naproxen and propranolol.
November 29, 2012, Dinesh Chhaganlal, M.D., noted that
Plaintiff's migraine headaches had resumed when she began
taking propranolol. AR 684. The doctor diagnosed
“common migraine without mention of intractable
pain.” AR 684.
January 2013, Eduardo Villarama, M.D., noted moderately
severe migraine headaches with pain rated 2/10. AR 688. Dr.
Villarama added prescriptions for Topamax, midodrine and
Paxil. AR 691.
2013, Plaintiff saw therapist Rosalba Serrano, L.C.S.W., and
reported a diagnosis of bipolar disorder and depression. AR
719-20. Plaintiff denied current thoughts of death or suicide
but reported that she had attempted suicide in 2002. AR 719.
2013, Plaintiff saw Walter Kip Johnson, M.D., and asked him
to increase her Paxil prescription. AR 725. Plaintiff
“also requested Lyrica for self-diagnosed
fibromyalgia.” AR 725. Following discussion, Dr.
Johnson increased Plaintiff's Paxil dosage but left all
other medications unchanged. AR 725. In a follow-up
appointment with Mayla T. Carlos, P.A., about a week later,
Plaintiff reported that the new Paxil dosage had helped
Plaintiff's anxiety. AR 729.
continued half-hour therapy sessions with Ms. Serrano from
May 22, 2013 through January 22, 2015. AR 733-34, 739-40,
746-47, 753-54, 755-56, 886-89, 895-96, 904-05, 921-22,
926-27, 941-42, 950-51, 956-59, 964-67. Plaintiff reported a
history of anger, rages and black-outs and complained of
increased anxiety, fatigue, hypersomnia, crying,
irritability, mood swings and visual hallucinations. AR
739-40. She spoke of marital problems and her children's
misbehavior. AR 733-34, 739-40, 746-47, 753-54, 755-56.
Plaintiff acknowledged that taking walks and keeping busy
helped her mood. AR 904.
2013, Plaintiff asked Dr. Villarama to evaluate her for
fibromyalgia. AR 741. In August 2013, Plaintiff told Dr.
Villarama that her migraines had worsened in the warm weather
but that she had not visited the emergency room. AR 748. Dr.
Villarama increased Plaintiff's prescriptions for Topamax
and Gabapentin. AR 751.
January 7, 2014, Plaintiff saw Amy Dieu, R.D., for a lap band
nutrition evaluation. AR 947-49. Plaintiff weighted 232.5
pounds. AR 948. Ms. Dieu recommended bariatric surgery with
ongoing nutrition support and counseling. AR 948.
February 14, 2014, Plaintiff told Christopher Barrett, P.A.,
that her migraines had worsened, with pain at 6/10. AR 943.
The headaches were associated with stress and were relieved
by prescription medications. AR 943. Mr. Barrett noted
inappropriate mood and affect. AR 945.
March 14, 2014, Plaintiff told Ms. Serrano of increased
depression, anxiety and urges to cut herself. AR 941. She was
hearing “inner voices.” AR 941.
March 24, 2014, Mr. Barrett noted that because Plaintiff was
not complying with the prescribed diet, she continued to gain
weight. AR 936. Plaintiff wanted to pursue bariatric surgery.
AR 936. She complained of continued migraine headaches. AR
psychiatric intake interview on March 26, 2014, psychiatrist
Cynthia Hunt, M.D., noted Plaintiff's primary care
physician and therapist had referred Plaintiff for treatment
of anxiety and depression. AR 932. Plaintiff recounted a
10-year history of anxiety and depression with no obvious
cause. AR 932. Plaintiff also complained of sleep
difficulties, excess energy, mood swings and auditory and
visual hallucinations. AR 932. Plaintiff recounted a prior
diagnosis of bipolar disorder, three previous suicide
attempts, trials of many medications, a history of cutting
and self-injury, severe domestic abuse by a prior husband,
and multiple rapes during her childhood. AR 932-33. Plaintiff
had served two prison terms, both of which she blamed on the
behavior of others. AR 933. Dr. Hunt diagnosed bipolar
disorder. AR 934.
April 1, 2014, Plaintiff told Mr. Barrett that she was
experiencing auditory and visual hallucinations despite
taking Abilify. AR 928. Mr. Barrett increased Plaintiff's
Abilify dosage from 10 mg to 15 mg daily. AR 930.
April 4, 2014, Plaintiff told Ms. Serrano that despite the
recent change in the dosage of Abilify, Plaintiff was
experiencing depressed mood, lack of interest in performing
daily activities, difficulty with personal care, poor
concentration, forgetfulness, fatigue and agitation. AR 926.
Visual hallucinations were gone; auditory hallucinations
(voices) had decreased. AR 926.
April 2014, Dr. Hunt noted that the increased dosage of
Abilify had reduced Plaintiff's visual and auditory
hallucinations, but her fatigue and sleep difficulties
continued. AR 923.
2014, Mr. Barrett noted that Plaintiff's headaches and
anxiety were both well controlled. AR 909.
2014, Plaintiff told Mr. Barrett that her headaches had
worsened with pain rated at 6/10. AR 890. Plaintiff had
stopped exercising and was sleeping from 10:00 p.m. to 10:30
a.m. the following morning. AR 890.
was in a good mood when she saw psychiatrist R. David
Simenson, M.D., in October 2014. AR 861. Her son's
military station had changed from Georgia to California, and
Plaintiff took a three-day trip to a friend's wedding. AR
861. Plaintiff reported sleeping well but feeling tired. AR
observing Plaintiff's increased symptoms in November
2014, Dr. Hunt suspected schizoaffective disorder and
increased Plaintiff's Abilify dosage. AR 853. On January
9, 2015, Dr. Hunt noted that although Plaintiff continued to
wake during the night, Abilify had reduced Plaintiff's
anxiety. AR 845. Dr. Hunt observed that Plaintiff was verbal
and cooperative with improved mood and affect. AR 845.
January 23, 2015, Antonio Coirin, M.D., performed
laparoscopic bariatric surgery to place an adjustable gastric
band (lap band). AR 790-92. On the date of surgery, Plaintiff
weighed 255 pounds. AR 793.
February 11, 2015, Plaintiff reported seeing shadows in her
peripheral vision. AR 837. Dr. Simenson observed anhedonia,
anxiety and hopelessness, and noted that Plaintiff reported
depression but smiled. AR 840.
February 20, 2015, Mr. Barrett noted that Plaintiff's
migraines were mild with pain rated 3/10. AR 831. Mr. Barrett
reduced Plaintiff's Propranolol prescription and
encouraged her to exercise 30 to 60 minutes five to six days
weekly. AR 834.
19, 2015, Plaintiff was treated in Golden Valley's Urgent
Care center for a severe migraine (10/10) that affected her
vertex, frontal and temporal lobes and caused blurred vision,
dizziness, nausea and vomiting. AR 1414. Bounlath Souksavong,
P.A., administered Toradol and an injection of
AR 1416. On June 23, 2015, Plaintiff saw Mr. Barrett to
report that her headaches had worsened in the past five days.
AR 1409. Mr. Barrett adjusted dosages of Plaintiff's
prescriptions. AR 1412-13
Plaintiff saw psychiatrist R. David Simenson, M.D., on July
31, 2015, she reported that she was being treated by a new
therapist at CalWorks. AR 1399. Having to explain her past
traumas resulted in anxiety attacks, paranoia, mood swings,
poor concentration and thoughts of violent and sexual images
but no audio or visual hallucinations. AR 1399. In September
2015, Plaintiff told Dr. Simenson that she was having good
days and some bad days. AR 1394.
September 2015, Plaintiff had an initial evaluation for
physical therapy. AR 1008-12. Therapy was planned to occur
twice weekly for six weeks and to include progressive
stretching and strengthening, home exercise, progressive gait
training, balance training, modalities for pain control,
education and manual therapies. AR 1009. In December 2015,
Plaintiff was discharged from therapy having attended only
the initial evaluation and one therapy session. AR 1006.
December 2015, Dr. Simenson noted that Plaintiff had not
increased her dose of lithium since her insurance would not
cover the increased dosage. AR 1025. Plaintiff reported
experiencing agoraphobia and panic attacks in stores. AR
1025. She was experiencing ...