United States District Court, E.D. California
ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF
COMMISSIONER OF SOCIAL SECURITY AND AGAINST
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. 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
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.
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.
Appeals Council denied review on June 21, 2018. AR 1-5. On
August 17, 2018, Plaintiff filed a complaint in this Court.
(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
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.
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
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.
Adult Function Report
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.
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.
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 fingersin Plaintiff's
brain. AR 466-70.
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.
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,
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
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.
a second appointment with Dr. Tankou,  Plaintiff began
injecting Copaxone 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
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 to be taken as needed. AR 446.
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.
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.
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
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.
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.
did not keep his March 2015 appointment at UCLA. AR 684.
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. AR 536.
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.
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.
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.
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.
Standard of Review
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
(9th 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 (9th 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
(9th Cir. 2006) (citations and internal quotation
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
(9th 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 (9th Cir. 2008)
(citations and internal quotation marks omitted).
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).
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. §§
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. §
Summary of the ALJ's Decision
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).
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
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
Reliability of ...