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Gomez v. Saul

United States District Court, E.D. California

November 4, 2019

SILHOUETTE GOMEZ, Plaintiff,
v.
ANDREW SAUL, [1] Commissioner of Social Security, Defendant.

          ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF COMMISSIONER OF SOCIAL SECURITY AND AGAINST PLAINTIFF

          GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff 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.[2] 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 denied.

         II. Procedural Background

         On 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 175.

         Administrative 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.

         On 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.

         On 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 185-91.

         On 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.

         On 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.

         III. Factual Background

         A. Plaintiff's Testimony

         1. July 2015

         At the first agency hearing on July 29, 2015, Plaintiff (born October 28, 1976) was living with her partner[3] and her sons aged 3, 4, 8 and 17 years.[4] 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.

         Plaintiff 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.

         Plaintiff 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.

         For 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.

         Before 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.

         Plaintiff 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.

         2. October 2017

         Plaintiff's 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.

         With 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 60-61.

         Plaintiff's 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.

         Plaintiff 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 52.

         Her 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.

         B. Plaintiff's Adult Function Reports

         In an 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, [5] Paroxetine, [6] Sumatriptan, [7]and propranolol.[8] AR 496.

         On a 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.

         In an 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.

         In an 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[9] and Gabapentin.[10]AR 550. Plaintiff was having trouble sleeping. AR 557. She struggled with personal care, cooked infrequently and no longer did the laundry. AR 557.

         In or about April 2015, Plaintiff's prescription medications included Clonazepam, [11]Abilify, Paroxetine, Propranolol, Topiramate, Gabapentin, Metformin, [12] Vitamin D, Ventolin HFA, [13] QVAR[14] and Tylenol Extra Strength.[15] AR 585.

         In August 2017, Plaintiff reported that her prescription medications included Vitamin D-3, Topamax, Tramadol, [16] Lyrica, [17] Propranolol, Abilify, Lithium, [18] Paroxetine, Temazepam, [19]Sumatriptan, Clonazepam, and Lidocaine patches.[20] AR 617.

         C. Third-Party Adult Function Reports

         On 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.

         In an 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.

         Plaintiff's 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

         D. Medical Records

         On 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 range.[21] See AR 1059 (A1c = 6.0), 1062 (blood glucose = 88), 1105 (blood glucose=82), 1423 (A1c = 5.7), 1424 (blood glucose = 95).

         Nearly 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. AR 678.

         On 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.

         In 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.

         In May 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.

         In June 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.

         Plaintiff 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.

         In July 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.

         On 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.

         On 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.

         On 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.

         On 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 936.

         At a 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.

         On 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.

         On 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.

         On 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.

         In May 2014, Mr. Barrett noted that Plaintiff's headaches and anxiety were both well controlled. AR 909.

         In July 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.

         Plaintiff 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 861. .

         After 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.

         On 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.

         On 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.

         On 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.

         On June 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 Keterolac.[22] 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

         When 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.[23] 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.

         In 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.

         In 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 ...


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