McMillen v. Saul

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

         I. Introduction

         Plaintiff William John McMillen IV (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for disability insurance benefits pursuant to Title II 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.^[1] See Docs. 15, 16 and 17. 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 March 19, 2014, Plaintiff filed an application for disability insurance benefits alleging disability beginning March 10, 2014. AR 10. The Commissioner denied the application initially on June 30, 2014, and again following reconsideration on August 14, 2014. AR 10, 114.

         On August 28, 2014, Plaintiff filed a request for a hearing. AR 10. Administrative Law Judge Richard T. Breen presided over an administrative hearing on August 10, 2017. AR 41-93. Plaintiff appeared and was represented by an attorney. AR 41. On August 21, 2017, the ALJ denied Plaintiff's application. AR 10-21.

         The Appeals Council denied review on June 21, 2018. AR 1-5. On August 17, 2018, Plaintiff filed a complaint in this Court. Doc. 1.

         III. Factual Background

         A. Plaintiff's Testimony

         1. Agency Hearing

         Plaintiff (born April 19, 1985) lived with his spouse and four children in California City, California. AR 60. He completed high school and thereafter worked as a laborer performing heavy construction work building and maintaining roads and bridges. AR 61. His duties included such things as shoveling asphalt grindings, lifting and placing sandbags, and transporting and installing asphalt in areas that trucks could not reach. AR 62-63. From 2009-2014, Plaintiff worked as a field inspector, checking finished paving as well as tools and equipment. AR 63.

         Although Plaintiff drove short distances near his home, his spouse generally drove him on longer trips. AR 60. At most, he could stand and walk for 30 minutes in an eight-hour work day. AR 72. He could sit for 30 to 40 minutes before needing to lay down. AR 78. He could lift two gallons of milk and use his hands and fingers. AR 77. Plaintiff had difficulty bending over to wash his legs and feet and while looking up to shave. AR 77. Because Plaintiff had difficulty reaching his lower extremities, his wife helped Plaintiff dress. AR 77. Plaintiff did very little housework but could vacuum and wipe down counters. AR 78. He could not do dishes or laundry because he could not bend. AR 78. Plaintiff's medications made him drowsy, but pain kept him awake at night. AR 80. He had dizzy spells at least once a month. AR 80.

         Plaintiff continued working after his initial diagnosis of multiple sclerosis. AR 68. Ultimately, he began passing out at work experiencing numbness in his hands and feet, and finding himself unable to move or stand because of his back and neck problems. AR 68. He could not carry his tools. AR 70. Severe pain prevented him from doing even less physical work. AR 70-71.

         Because he lived three hours from Los Angeles, Plaintiff had not returned to the UCLA neurologist since 2015. AR 67. He had been unable to find a neurologist near his home. AR 74. Finding that shots were ineffective at controlling his pain, Plaintiff had discontinued seeing his pain management specialist, Dr. Emenike, in 2015 or 2016. AR 73. Similarly, Plaintiff had discontinued seeing Dr. Del Rosario in favor of getting the same medications from his primary care physician. AR 73.

         2. Adult Function Report

         In an Adult Function Report dated April 18, 2014, Plaintiff reported spending most of his day lying on the couch watching television, or napping until his children returned from school and the family went to the children's practices. AR 314. In addition to the daily activities to which he testified, Plaintiff reported feeding the family's animals and taking out the trash depending on his pain level. AR 316. He shopped every two weeks for about three hours. AR 317. Plaintiff's impairments affected his ability to lift, squat, bend, walk, stand, reach, sit, kneel, climb stairs, see, complete tasks, concentrate and use his hands. AR 319.

         On a fatigue questionnaire of the same date, Plaintiff reported first experiencing fatigue in early 2012. AR 323. He napped for one to two hours daily. AR 324.

         B. Medical Records

         The record includes examination notes of Plaintiff's primary care physician, Kain Kumar, M.D., Ph.D., from November 2012 through July 2015. AR 458-70, 514-18. Dr. Kumar's notes are brief and frequently illegible. By November 2012, Plaintiff was reporting severe back pain and finger numbness. AR 464-65. As a result, Dr. Kumar ordered the November 29, 2012 magnetic resonance imaging studies that indicated areas of demyelination and Dawson's fingers^[2]in Plaintiff's brain. AR 466-70.

         On January 23, 2013, neurologist Vijay Shanmugam, M.D., examined Plaintiff as a new patient. AR 411-13. Plaintiff reported recurrent neck pain beginning six years prior that had become constant in the last two years; bilateral blurry vision; twice passing out; migraine headaches; and, intermittent numbness of the second and third fingers. AR 411. Dr. Shanmugam's examination of Plaintiff was normal in all regards. AR 412. The doctor summarized:

Patient's history and exam not consistent with MS. The neck pain appears to be musculoskeletal and he has a history of vasovagal syncope. Visual acuity is 20/25 in both eyes without red desaturation.

AR 412.

         On January 30, 2013, Dr. Shanmugam administered a visual evoked potential test. AR 414. Plaintiff's responses were abnormal with prolonged latency on both sides suggestive of demyelinating optic neuropathy. AR 414. In a follow-up examination on February 27, 2013, the doctor reported that the November 2013 magnetic resonance imaging showed white matter lesions suggestive of demyelination but no cervical spine lesions. AR 409. Because Plaintiff's MRI and EP abnormalities that indicated demyelination but were not specific for multiple sclerosis, Dr. Shanmugam referred Plaintiff to a multiple sclerosis specialist at UCLA. AR 405, 407.

         Stephanie Tankou, M.D., Ph.D., examined Plaintiff at UCLA on April 27, 2013. AR 4-39. Except for mild decreased sensation to pinprick in a stocking distribution at Plaintiff's feet, the physical examination was normal. AR 435-36. Dr. Tankou wrote:

27-year-old right-handed male with history of headache with migrainous features who presents with a constellation of symptoms including 1 year [history of] worsening daytime fatigue, intermittent episodes of numbness in the third and fourth fingers bilaterally, and heavy sensation in both legs that are concerning for multiple sclerosis. The patient underwent a brain MRI study that showed Dawson fingers. We were not able to review his C-spine MRI, but T-spine MRI also shows area of hyperintensity along the left side that is suspicious for a demyelinating process and could explain abnormal sensation in his legs. The patient does meet the criteria for clinically definite multiple sclerosis as some of the lesions were enhancing and others were not and the lesions were in different areas; this fulfill[s] the criteria for dissemination in time and space. He has also been complaining of neck pain radiating to his back which is sounding more like musculoskeletal type of pain, especially because it is exacerbated by movement, but since we have not had the opportunity to review the C-spine MRI, we can't completely rule out the possibility that his neck pain is secondary to an underlying C-spine disease/abnormality. The blurry vision episodes of vertigo were lasting less than 24 hours, they would not qualify as multiple sclerosis symptoms.

AR 436-37.

         Following a second appointment with Dr. Tankou, ^[3] Plaintiff began injecting Copaxone^[4] on June 17, 2013. AR 422, 425. When Plaintiff saw Dr. Tankou on July 27, 2013, he was experiencing a skin reaction (swelling and erythema) at the injection sites, particularly at the hips and thighs. AR 425. Plaintiff continued to experience fatigue, bilateral numbness of the thumbs and third and fourth fingers, and soreness in his lower extremities. AR 425. Dr. Tankou reviewed Plaintiff's November 2012 C-spine MRI and observed no clear area of demyelination. AR 425. She encouraged Plaintiff to discontinue Vicodin and Soma, both of which had sedating effects that could exacerbate Plaintiff's fatigue. AR 427.

         On October 29, 2013, orthopedist Woojae Kim, M.D., examined Plaintiff to evaluate complaints of upper and lower back pain. AR 444-46. The physical examination was generally normal except for tenderness to palpation in the bilateral thoracic paraspinal muscles. AR 445. Magnetic resonance imaging of Plaintiff's lumbar spine (October 2013) revealed a broad-based disk protrusion with annular fissure and spur at ¶ 5-S1 with bilateral facet arthropathy probably touching both L5 exiting roots; a 2-3 mm disk bulge with facet hypertrophy at ¶ 3-L4 and L4-L5; and, trace facet joint effusions at ¶ 4-L-5 and L5-S1. AR 445-46, 449-50. Lumbar spine imaging was unremarkable. AR 451-52. Dr. Kim administered trigger point injections to the thoracic paraspinous [sic] bilaterally and prescribed Baclofen^[5] to be taken as needed. AR 446.

         Dr. Kim again administered trigger point injections on November 12, 2013. AR 447-48. Although Plaintiff's back pain had improved following the prior injections, the doctor remained concerned about Plaintiff's neck pain. AR 448. He diagnosed cervical radiculopathy and bilateral trapezius myofascial pain. AR 448.

         Ophthalmologist Reginald Sampson, M.D., evaluated Plaintiff's complaints of blurry vision in June 2014. AR 478-93. Plaintiff's visual acuity was 20/25, and he had astigmatism. AR 479, 481. Dr. Sampson prescribed glasses. AR 481.

         In the emergency department of Antelope Valley Hospital on October 14, 2014, Plaintiff was treated for paranoia and agitation following an argument in which he threatened his wife. AR 540. Emergency room medical personnel diagnosed depression and psychosis with mild delusional disorder (paranoia). AR 541. He was discharged and returned home the same day. AR 547.

         In November 2014, Plaintiff returned to UCLA where he was treated by Andrew M. Wilson, M.D. AR 681-83. Dr. Wilson noted that since Plaintiff's last appointment in July 2013, Plaintiff continued to experience fatigue and intermittent paresthesia but had no MS-like attacks. AR 681. Plaintiff experienced blurred vision and difficulty swallowing in the mornings, which improved as the day passed. AR 681. Plaintiff reported that he was hospitalized for a “mental breakdown” after his wife left him, taking their three young children. AR 681. Magnetic resonance imaging of Plaintiff's brain, cervical spine and lumbar spine in October 2014 revealed no new lesions. AR 681. Following a physical examination of Plaintiff, Dr. Wilson opined that Plaintiff's multiple sclerosis was stable. AR 682. He recommended that Plaintiff reduce his use of Norco and Ambien as tolerated. AR 683.

         Plaintiff received pain management services from Emmanuel Emenike, M.D., from February through July 2015. AR 623-58. Dr. Emenike prescribed Norco and periodically administered injections to relieve lumbar pain radiating to Plaintiff's lower extremities. AR 23-58.

         Plaintiff did not keep his March 2015 appointment at UCLA. AR 684.

         The record includes notes concerning Plaintiff's psychiatric treatment by Roy Del Rosario, M.D., from February 2015 to December 2016. AR 526-33, 670-71, 673-75. In an undated intake interview Plaintiff disclosed daily consumption of four alcoholic beverages. AR 534. His psychiatric history included anxiety, depression, psychosis and schizophrenia. AR 534. Dr. Del Rosario noted appropriate grooming and observed no loss of thought processes, intact associations, thoughts within normal limits, full orientation, intact recent and remote memory, impaired attention span and concentration, and anxious and depressed mood and affect. AR 535. Dr. Del Rosario's diagnosis is largely illegible except for his notation of a GAF score of 40.^[6] AR 536.

         On June 10, 2015, Plaintiff was treated for a broken toe and injured foot at Palmdale Regional Medical Center (PRMC). AR 556-61. Plaintiff experienced a tunneling of vision, dropped a clay pot on his foot, recovered, then blacked out and fell into a fountain striking his face. AR 556.

         On July 26, 2015, Plaintiff was treated at PRMC for severe back pain following a sneeze. AR 562-65. Emergency personnel diagnosed a possible herniated lumbar disc and prescribed Motrin and Norco for pain. AR 564-65.

         When Plaintiff saw Dr. Wilson in October 2015, he reported that his orthopedists were considering surgery to address numbness and weakness of Plaintiff's left leg, thought to be caused by a pinched nerve. AR 684. Since his last appointment Plaintiff had experienced no MS-like attacks such as change in vision, bowel/bladder disfunction or other extremity changes. AR 684. Plaintiff reported that stress from his divorce was disturbing his sleep, but he had family support and a new girlfriend. AR 684. Dr. Wilson encouraged exercise to improve Plaintiff's quality of life and ease disease progression. AR 686. He also encouraged Plaintiff to minimize stress and adapt good coping mechanisms. AR 686.

         In December 2016, Firooz Amjadi, M.D., performed a C5-C6 anterior cervical decompression and instrumented fusion of Plaintiff's spine at ¶ 5, C6 and C7. AR 594-95. The surgery eliminated Plaintiff's left arm pain and resolved the radiating pain to the fingers of the right arm; however, Plaintiff still experienced some pain from the neck to the right elbow. AR 594. By April 2017, Plaintiff's right arm pain had resolved. AR 662.

         IV. Standard of Review

         Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the Commissioner denying a claimant disability benefits. “This court may set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9^th Cir. 1999) (citations omitted). Substantial evidence is evidence within the record that could lead a reasonable mind to accept a conclusion regarding disability status. See Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9^th Cir. 1996) (internal citation omitted). When performing this analysis, the court must “consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social Security Admin., 466 F.3d 880, 882 (9^th Cir. 2006) (citations and internal quotation marks omitted).

         If the evidence reasonably could support two conclusions, the court “may not substitute its judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066 (9^th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ's decision for harmless error, which exists when it is clear from the record that the ALJ's error was inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9^th Cir. 2008) (citations and internal quotation marks omitted).

         V. The Disability Standard

To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. §1382c(a)(3)(B).

         To achieve uniformity in the decision-making process, the Commissioner has established a sequential five-step process for evaluating a claimant's alleged disability. 20 C.F.R. §§ 416.920(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929.

         Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial gainful activity during the period of alleged disability, (2) whether the claimant had medically determinable “severe impairments, ” (3) whether these impairments meet or are medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) whether the claimant retained the residual functional capacity (“RFC”) to perform his past relevant work, and (5) whether the claimant had the ability to perform other jobs existing in significant numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f).

         VI. Summary of the ALJ's Decision

         The Administrative Law Judge found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of March 10, 2014. AR 12. His severe impairments included: multiple sclerosis; cervical spine degenerative disk disease, status post fusion in December 2016; lumbar spine degenerative disk disease; and, depression. AR 13. None of the severe impairments met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). AR 13.

         The ALJ concluded that Plaintiff had the residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b), except he could no more than occasionally operate hand controls with his bilateral upper extremities. AR 15. He could never climb ladders, ropes or scaffolds; occasionally stoop, kneel, crouch and crawl; and, frequently balance and climb ramps and stairs. AR 15. He could reach overhead no more often than occasionally. AR 15. Plaintiff should avoid concentrated exposure to extreme heat, extreme cold, unprotected heights and moving mechanical parts. AR 15. He was limited to simple, routine and repetitive tasks. AR 15.

         Plaintiff was unable to perform his past relevant work. AR 19. However, considering Plaintiff's age, education, work experience and residual functional capacity jobs that he could perform existed in significant numbers in the national economy. AR 20. Accordingly, the ALJ found that Plaintiff was not disabled at any time from March 10, 2014, the alleged onset date, through August 21, 2017, the date of the decision. AR 21.

         VII. Reliability of ...