United States District Court, N.D. California
ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT.
NOS. 17, 19
S. HIXSON UNITED STATES MAGISTRATE JUDGE.
Allen S. brings this action pursuant to 42 U.S.C. §
405(g), seeking judicial review of a final decision of
Defendant Commissioner of Social Security, Commissioner of
Social Security, denying Plaintiff's claim for disability
benefits. Pending before the Court are the parties'
cross-motions for summary judgment. ECF Nos. 17 (Pl.'s
Mot.), 19 (Def.'s Mot.). Pursuant to Civil Local Rule
16-5, the motions have been submitted on the papers without
oral argument. Having reviewed the parties' positions,
the Administrative Record (“AR”), and relevant
legal authority, the Court hereby DENIES
Plaintiff's motion and GRANTS
Defendant's cross-motion for the following reasons.
Age, Education and Work Experience
is 64 years old. AR 34. He received a B.S. in industrial
design in 1980 and three further years of education ending in
1988. AR 35, 197. He described his past relevant work as a
hardware and components engineer. AR 51.
suffers from lumbar degenerative disc disease, arthritis, and
peripheral neuropathy. AR 19; Pl.'s Mot. at 2. His
treatments have included steroid injections and medial branch
blocks. AR 309, 543, 869, 1097-99, 1842. He exhibited normal
gait, 5/5 strength, normal coordination, normal motor
functioning, and normal muscle tone, with no edema. AR 319,
370, 442, 555, 563, 568, 589, 591 (“gait smooth and
symmetric”), 606, 740, 760, 763, 787, 795, 804, 872,
892, 895, 919, 927, 935, 1094, 1116. Plaintiff was also
diagnosed with anxiety and insomnia, depression screening,
and took medication for these impairments. AR 477, 479-80,
482, 489, 501, 1627.
January 11, 2013, Plaintiff saw Pradipta Ghosh, M.D., at
Kaiser Permanente. AR 318-20. He had bilateral wrist and
right elbow pain, treated with injection. AR 319-20. On
examination, he had no cyanosis, clubbing, or edema; his
motor functioning was normal; his sensory functioning was
normal; and his gait and stance were normal. AR 319.
July 16, 2013 treatment note, Plaintiff reported a history of
sciatic pain radiating as far as the back of his left knee.
AR 314. On examination, he was well appearing and in no
distress; his neck was supple; he had no joint tenderness,
deformity, or swelling, and his peripheral pulses were normal
with no pedal edema, clubbing, or cyanosis. Id.
August 14, 2013, Plaintiff reported to treating physician
Todd Tung Nguyen, D.O., that physical therapy and Advil had
been somewhat helpful and he took Meloxicam and Flexeril as
needed. AR 311. On examination, Dr. Nguyen found no
tenderness, swelling, redness, or gross abnormalities in
Plaintiff's lumbar spine, lumbar flexion to 70 degrees,
extension to 20 degrees, internal and external hip rotation
without associated groin pain, positive Straight leg raise
testing on the left versus negative Straight leg raising on
the right, negative facet loading, negative faber, 5/5 motor
strength, grossly intact sensation, negative Babinksi's,
normal coordination, and normal gait and station. AR 312. Dr.
Nguyen referred him for an MRI, which showed generalized disc
disease with minimal-to-moderate multilevel bilateral neural
foraminal narrowing, worst at the L3-4 and L4-5 levels on the
left, marginal osteophyte formation at all levels, no
spondylolisthesis, and normal marrow signal throughout. AR
January 14, 2015, Plaintiff's treating provider found he
was alert and oriented x3 and in no acute distress; he had
normal ranges of motion in his extremities with no lower
extremity edema; he had no motor or sensory deficits, and his
gait was normal. AR 1205.
February 2015 EMG at Stanford Hospital showed mild
polyneuropathy. AR 583.
2016, Plaintiff had decreased lumbar extension and reduced
lumbar-related knee and ankle strength/flexion. AR 539, 555.
He reported improved decreased pain after treatment. AR 540.
Plaintiff also reported muscle spasms. AR 1297. He reported
some improvement in neuropathy and back pain with gabapentin,
some benefit with pain through physical therapy, and that his
radicular symptoms had resolved, although he had some
low-muscle spasms. Id. A February 18, 2016 MRI
showed moderate to severe left neural foraminal narrowing at
¶ 3-4 and L4-5. AR 616-17.
March 24, 2016, Plaintiff saw Jennifer Ray Bunch, M.D., for a
consultation for pain. AR 553-56. On examination, Dr. Bunch
found static posture within normal limits; adequate dynamic
balance; non-antalgic gait bilaterally, he was able to heel
and toe walk bilaterally; reduced ranges of motion; and 5/5
extremity strength. AR 555.
19, 2016, Plaintiff reported that his pain his left leg did
not radiate. AR 1075. He reported a history of lumbar
radiculopathy, which “has resolved.” Id.
21, 2016, Plaintiff reported, “his low back pain is
about the same and does not bother him as much as his right
lateral ankle.” AR 1073. In her assessment, Vicki Sae,
P.T., D.P.T., stated that Plaintiff “seems to have
benefit from lumbar injection due to decrease in radicular
symptoms in left leg. Patient shows functional improvement in
his ability to perform ADLs such as cleaning and has
increased awareness of body mechanics . . . . Patient shows
improvement with multifidi activation with plank activation
with visual and tactile cueing and able to perform modified
planks correctly after practice . . . . Patient is agreeable
to beginning to taper down physical therapy to once a month
after his next visit for 1-2 more visits.” AR 1074.
x-ray of Plaintiff's left ankle in September 2016 showed
minute ossific densities and no acute abnormalities. AR 1585.
September 15, 2016, Bindu Chandran, M.D., noted
Plaintiff's hypertension was controlled on medication and
he was taking medication for insomnia. AR 2942-43. On January
26, 2017, Dr. Chandran stated that Plaintiff did not want to
take medication for hyperlipidemia, his cholesterol was
minimally elevated, and he would continue with lifestyle
changes instead; his hypertension was at goal on medication;
and he was taking gabapentin and managing his diet. AR 2940.
April 5, 2017, Plaintiff had negative Straight leg raise
testing. AR 2184, 2576.
7, 2017, Plaintiff reported having no muscle, joint pain, or
stiffness. AR 1194, 1204. On examination, he was well
appearing; had a normal mood and affect; was awake and alert;
and had a normal gait. AR 1195.
2, 2017, Plaintiff's treating provider found him to be
alert, oriented x3, and in no acute distress; had normal
range of motion in his extremities with no leg swelling; and
he had no motor deficits, intact sensation, and a steady
gait. AR 1175. He reported improvement in pain after
medication. AR 1178.
Maria Antoinette Acenas, M.D.
15, 2016, Dr. Acenas performed a psychiatric consultative
exam. AR 1056-58. Plaintiff reported that he had “No
psychiatric treatment.” AR 1056. He reported that he
could perform his personal grooming and hygiene and perform
household chores of cooking, cleaning, and doing laundry.
Id. On mental status exam, Plaintiff presented with
good grooming and hygiene and was not in any physical
distress; he was friendly and cooperative with spontaneous
speech; his thought content was coherent and cohesive with no
delusions; his mood was depressed with appropriate affect; he
was oriented x3; he remembered 2/3 objects in three minutes;
he was able to perform serial threes and knew who the
president of the United States was; he could spell
“world” forward but not backward; when asked to
interpret the proverb “do not cry over spilled milk,
” he stated, “do not take it so difficult”;
and when asked to differentiate between apples and oranges,
he stated they were similar in that they both had skins and
seeds, and the difference was in their taste. AR 1056-57. Dr.
Acenas assessed Plaintiff was “not impaired” in
all work-related mental functions. AR 1057.
Erika Gilyot-Montgomery, Psy.D.
agency psychiatric reviewing physician Dr. Gilyot-Montgomery
found Plaintiff had no severe mental impairment. AR 72. She
found the medical evidence showing grossly intact functioning
with no more than mild limitations in working
memory/sustained concentration, Plaintiff's activities of
daily living, and Dr. Acenas's opinion supported her
Eugene Campbell, Ph.D.
agency psychiatric reviewing physician Dr. Campbell found
that the medical evidence and Plaintiff's activities of
daily living supported a finding of no severe mental
impairment. AR 87.
Alexander Grinberg, M.D.
December 30, 2017, Dr. Grinberg completed a Psychiatric
Disability Evaluation. AR 2964-68. Plaintiff reported
experiencing significant depression and anxiety that had
become more severe in the past four years. AR 2964. He stated
he had a history of treatment with medications in 1993-95 and
2001-02. Id. Plaintiff reported that in the latter
period, pain aggravated anxiety and caused insomnia.
Id. He reported having childhood difficulties in
Iran and said that he experienced prejudice as an Iranian
student in the United States at the time of that
country's revolution and in seeking employment here
immediately thereafter. AR 2965. He reported that employment
struggles intertwined with marital problems, including trying
to hold onto employment to provide coverage for chemotherapy
for a second wife with ovarian cancer, who subsequently died.
AR 2965-66. Around the same time, Plaintiff's brother was
diagnosed with bipolar disorder, becoming dependent on him.
AR 2966. After his wife's death, Plaintiff suffered
financially stressful interruptions in employment and, at the
point he stopped working, the deaths of his brother and of
his mother, the latter of whom he couldn't place in a
proper facility in Iran, resulting in guilt. Id.
“Since 2012 till now, patient was not able to work, his
depression and anxiety were getting worse.”
mental-status examination, Dr. Grinberg found that Plaintiff
made fair eye contact; reduced, soft, and normal-flow speech;
constricted affect; mild psychomotor lability; reported guilt
regarding his mother; had linear thought processes; was alert
and oriented to place, time, and person; made errors with
multiplication and serial 7s, he could spell
“world” forward but not backward, and lapses
similar to the remembering only two of three objects on
short-term memory, indicating some “mild”
deficits in short-term memory; he was able to appropriately
perform on tasks for abstract thinking, generalization, and
proverb interpretation; and his insight and judgment were
Grinberg diagnosed major depressive disorder, recurrent,
moderate, and “at least moderate” anxiety.
Id. Dr. Grinberg's Axis III diagnosis states
that Plaintiff's “pain syndromes”
“definitely aggravates patient's depression and
anxiety.” AR 2967. Global assessment of functioning
ranged from 54 to 60. Id. Dr. Grinberg described
Plaintiff's reports of self-isolating from people,
sometimes avoiding driving because of anxiety, and
maintaining only minimal activities of daily living because
of lack of energy. Id. He posited work-related
mental limitations: for pace, persistence, and attendance;
for “processing instructions of just moderate