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Allen S. v. Commissioner of Social Security

United States District Court, N.D. California

December 27, 2019

ALLEN S., [1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS. 17, 19

          THOMAS S. HIXSON UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Plaintiff 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.

         II. BACKGROUND

         A. Age, Education and Work Experience

         Plaintiff 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.

         B. Medical Evidence

         1. Medical Background[2]

         Plaintiff 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.

         On 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.

         In a 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.

         On 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 310-12, 329.

         On 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.

         A February 2015 EMG at Stanford Hospital showed mild polyneuropathy. AR 583.

         In 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.

         On 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.

         On July 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.

         On July 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.

         An x-ray of Plaintiff's left ankle in September 2016 showed minute ossific densities and no acute abnormalities. AR 1585.

         On 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.

         On April 5, 2017, Plaintiff had negative Straight leg raise testing. AR 2184, 2576.

         On May 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.

         On July 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.

         2. Opinion Evidence

         a. Maria Antoinette Acenas, M.D.

         On June 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.

         b. Erika Gilyot-Montgomery, Psy.D.

         State 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 opinion. Id.

         c. Eugene Campbell, Ph.D.

         State 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.

         d. Alexander Grinberg, M.D.

         On 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.” Id.

         On 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 fair. Id.

         Dr. 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 complexity” ...


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