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Conejo v. Berryhill

United States District Court, D. Nevada

May 4, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security,[1]Defendant.



         This matter involves Plaintiff Zeidy M. Ponce Conejo's appeal and request for judicial review of the Acting Commissioner of Social Security, Defendant Nancy A. Berryhill's final decision denying her claim for disability insurance benefits under Title II of the Social Security Act (the “Act”), 42 U.S.C. §§ 401-33.


         I. Procedural History

         Plaintiff Zeidy M. Ponce Conejo (“Conejo”) filed an application for disability benefits on December 30, 2010, alleging onset of disability on July 20, 2010, the last day she worked as a medical aesthetician. AR 10, 45, 169.[2] She was 38 years old when she applied. AR 31. In her application, Ms. Conejo claimed she was unable to work because of cervical fusion, a titanium disc in her neck, pain in her left arm, constant pain in her spine, and depression. AR 168. A motor vehicle accident in March 2008 caused her to undergo a cervical fusion and plate placement in 2009. AR 15. A second accident in February 2010 necessitated a second and third cervical surgery in August 2010 and November 2011. AR 19-20. Conejo alleged she became disabled and stopped working shortly before the second surgery. AR 168. The Social Security Administration (the “Agency”) denied her application initially and on reconsideration. AR 86-89; 95-97.

         An administrative law judge (“ALJ”) held a hearing on May 9, 2013, where Ms. Conejo appeared with counsel. AR 40-60. The ALJ accepted testimony from Conejo, AR 42-57, and a vocational expert, AR 57-60. During the hearing, counsel asserted that Conejo was disabled based on her back pain, cervical fusion, depression, and a recently diagnosed seizure disorder. AR 43. In a decision dated June 12, 2013, the ALJ found that she was not disabled. AR 10-33. The ALJ found that, despite her allegations of debilitating pain, Conejo's testimony revealed no restrictions in her daily activity and the medical records cast doubt on the severity of her symptoms.

         Ms. Conejo requested review of the ALJ's decision by the Appeals Council, but the ALJ's decision became final when the Appeals Council denied review on August 5, 2014. AR 1-5. On September 23, 2014, she filed Complaint (ECF No. 1) in federal court, seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). The Commissioner filed her Answer (ECF No. 14) on March 3, 2015. Conejo filed a Motion to Remand (ECF No. 18), and the Commissioner filed a Response and Cross-Motion to Affirm (ECF Nos. 21, 22). The court has considered the Motion, the Response and Cross-Motion, and the Reply (ECF No. 23).

         II. The Administrative Record

         A. Neck and Back Pain

         In March 2008, Ms. Conejo was involved in a motor vehicle accident. AR 305-08. According to Mary Angela Thomas, M.D., an EMG/nerve conduction study of her upper extremities in June 2009 revealed essentially normal findings and no findings suggestive of C6-7 radiculopathy, despite a “slightly decreased ulnar motor nerve amplitude on the left.” AR 248- 49. However, she failed conservative care of her neck pain with radiculopathy, including chiropractic treatment, medication, nerve root blocks, and injections. AR 241-65 (medical records from Dr. Thomas); AR 562-64 (medical records from John B. Siegler, M.D.). Her injuries led to a cervical spinal surgery (fusion of C6-7 with decompression and reconstruction), which was performed by orthopedic surgeon, Mark Kabins, M.D., in August 2009. AR 17, 266-95. Conejo testified at the administrative hearing that she never felt well after the surgery and continued to experience neck pain, but she worked through the pain in order to pay bills. AR 48.

         In February 2010, Ms. Conejo was involved in a second auto accident. AR 299-304. She presented to the St. Rose Dominican Hospital emergency room the following day reporting stiffness of her neck and upper back and discomfort in her right wrist. AR 299. She was ambulatory with a normal gait and denied having any numbness, weakness, or tingling, distally. AR 299. She expressed concern that the second accident may have damaged the hardware in her neck from the cervical fusion surgery. Id. She was discharged from the emergency room with prescriptions for Motrin, Percocet, and Flexeril, and told to follow up with Dr. Kabins and her primary doctor. AR 300-301. She testified that the second accident worsened her neck pain and caused headaches. AR 49-50.

         In April 2010, Ms. Conejo was treated by urologist, Helen Housley, M.D., for a recurrent urinary tract infection (UTI). AR 309-12. On a review of systems, Conejo reported symptoms including joint or back pain, steroid joint injections, weakness and numbness in her extremities, and radicular pain. AR 310. However, Dr. Housley's examination revealed largely normal findings, even though the second accident occurred about six weeks prior. AR 310-11, 541-44. Conejo's spine was straight with a normal range of motion and there was no CVA or spinal tenderness to percussion. AR 310. She demonstrated a normal gait. Id. Her head was atraumatic and she was in no acute distress. AR 311. Additionally, she reported having recently traveled outside of the country to Costa Rica. AR 310.

         Ms. Conejo underwent a second surgery with Dr. Kabins in August 2010. AR 50, 316. In January 2011, the surgeon noted that she had residual neck discomfort and a restricted range of neck motion. AR 380. The following month, radiographs of her cervical spine demonstrated that the instrumentation was in place, spinal alignment was well maintained, and there was no evidence of loosening, migration or failure. AR 379. Although she had residual spasms, neck pain, and headaches, she had no new motor sensor deficits or new objective findings of abnormality. AR 378-79. Dr. Kabins deemed Conejo “neurologically stable.” AR 379. Over the next few visits, Kabins stated that she had “made excellent progress, ” was “markedly improved from her preoperative status” overall, and she was “happy with the outcome” of the second surgery. AR 377-78.

         In March 2011, Dr. Siegler, a board-certified physical medicine and rehabilitation specialist, noted that Conejo was status post a second cervical surgery with improvement of her radicular pain. AR 359. Her upper extremity strength was recorded as 5/5; however, she was still experiencing symptoms in her neck. Id. Dr. Siegler administered trigger point injections and prescribed pain medications including Oxycodone, Percocet, Zanaflex, and Lidocaine patches. AR 360.

         Over the next few visits to Dr. Siegler, Ms. Conejo reported anxiety and gastrointestinal symptoms. AR 354, 356, 472, 476. She indicated that her primary doctor placed her on Zoloft and Xanax. AR 476; see also AR 370 (progress notes of Seema Sood, M.D.). Dr. Siegler adjusted her medications periodically and administered injections regularly. AR 463, 465, 467, 473, 477. Conejo's August 2011 treatment notes indicate that a plane ride flared her pain, but the medication was helping. AR 464. In September 2011, Dr. Siegler noted that she was “stable on medications, ” and she reported that the medications were “helpful.” AR 462. However, the following month she stated that her pain seemed to be “worsening with increasing upper extremity complaints.” AR 460.

         Ms. Conejo also reported increasing pain, paresthesia, and dysesthesia to Dr. Kabins in September 2011. AR 490. She had decreased sensation in her fingertips and the lateral aspects of her hands and arms. Id. Radiographs indicated to Dr. Kabins that her artificial disc at ¶ 5-6 “could be inferior, keel if loose.” Id. The treatment notes state that “a radiolucency around this indicative of pseudoarthrosis or loosening of the endplate to the vertebral bodies that are fixed, ” and Dr. Kabins believed this was likely the cause of Conejo's symptomology. Id. Based on her ongoing symptoms and failure of conservative care, Dr. Kabins referred her for a myelogram, CT scan, and further EMG testing, and he noted she may be a candidate for revision surgery at ¶ 5-6. Id.

         Ms. Conejo underwent a cervical myelogram in October 2011. AR 502-03. The findings indicated that her fusion hardware appeared “intact without evidence of loosening.” AR 502. There was a straightening of the normal cervical lordosis, a mild disc bulge at ¶ 3-4, and a minimal disc bulge at ¶ 4-5. Id. There was no evidence of spinal canal or neuroforaminal stenosis. Id. The EMG/nerve conduction study of her bilateral upper extremities stated impressions that there was no electrodiagnostic evidence of cervical radiculopathy, brachial plexopathy, peripheral polyneuropathy. or left upper extremity entrapment neuropathy. AR 494. After reviewing these results, Dr. Kabins concluded that Conejo was an appropriate candidate for revision surgery that would “require complete removal, revision decompression and reconstruction.” AR 489.

         In a letter to Ms. Conejo's insurance company, dated October 26, 2011, Dr. Kabins stated that she had an “apparent failure of the inferior portion of the artificial disc.” AR 492. There was “a radiolucency on the Prodisc-C keel which [wa]s attempted to be imbedded in C6.” Id. The doctor opined that the radiolucency was “indicative of loosening.” Id.; see also AR 493-94 (Kabins noting that “the artificial disc could be inferior, possibly loose”). Although the loosening and/or failure was difficult to definitively ascertain from the CT/myelogram, the plain radiographs displayed “clear evidence of collapse and failure” and Conejo had a “distinct worsening of her underlying clinical condition failing supportive care services and medications.” AR 492. As such, she consented to revision surgery. Id.

         A third cervical surgery was performed in November 2011. AR 424-35. Ms. Conejo experienced residual neck discomfort postoperatively but her treatment notes state that she was “markedly improved” overall from her preoperative status and was “happy with the outcome.” AR 487. In January 2012, Dr. Kabins indicated that her “neck was stable, ” spinal alignment was well maintained, and there was “no evidence of loosening, migration or failure.” AR 486. Dr. Kabins deemed Conejo “neurologically stable” in March 2012, and he instructed her to continue using an electrical bone stimulator and follow up with Dr. Siegler. Id. AR 485.

         Shortly after the third surgery, Ms. Conejo reported new onset low back pain to Dr. Siegler and Dr. Kabins. AR 457, 486. She reported pain in her back and tailbone that radiated in her bilateral lower extremities. AR 485. She also reported difficulty standing, walking, and ambulating. Id. Both Dr. Siegler and Dr. Kabins recommended an MRI of her lumbosacral spine as Conejo was tender in the lower back and had paresthesia in the lower extremities. AR 456, 486. Dr. Kabins noted that she was indicated for physical therapy. AR 485. Dr. Siegler also treated the lower back pain with epidural injections. AR 507.

         In July 2012, Dr. Kabins' treatment notes state that Ms. Conejo was “taking a short hiatus to Costa Rica” and would return to his care in late August 2012. AR 556. Upon her return, Dr. Kabins indicated that she was “neurologically unchanged” but remained with significant pain in her back, hip, and radiating to her lower extremities. AR 555. As such, Kabins opined that she was a candidate for decompression and stabilization at ¶ 4-5, L5-S1. Id.

         In late August 2012, Conejo reported to Dr. Siegler that some back pain had returned but not as severe as before the injections. AR 615. The following month she received an additional injection for lower back pain. AR 613, 623-24. Her treatment notes indicate that she was “going out of the country for a family emergency.” AR 613. In October 2012, Dr. Siegler's treatment notes state that she had increasing pain in the low back and legs. AR 608. She remained with pain in her neck but that was “controlled with medication.” Id.

         Dr. Siegler performed a lumbar disc stimulation on Conejo in December 2012 pursuant to Dr. Kabin's recommendation. AR 554, 617-19. The discogram showed concordant pain at ¶ 4-5 and L5-S1. AR 606. Although she reported pain in the neck, the medications were “helpful.” Id. Given the results of the discography, Dr. Kabins recommended surgery. AR 553, 603.

         B. Headaches and Seizures

         During the administrative hearing, Ms. Conejo testified that she began having headaches after the second car accident in February 2010. AR 49; see also AR 519. She reported dizziness, lightheadedness, and vertigo to Dr. Kabins in November 2012. AR 554. She was referred to neurologist Jimmy John Novero, M.D. AR 514-37, 570-85.

         During her initial visit with Dr. Novero, Conejo's chief complaint was dizziness. AR 531. The treatment notes indicate that she had been complaining of episodic dizziness for about two months and the symptoms were worsening with increased frequency. Id. She described a spinning sensation with occasional nausea, vomiting, and occipital headaches. Id. However, she reported that two days prior to her appointment, she experienced numerous seizure episodes during which her whole body shook causing her to fall to the ground. Id. She may have experienced tongue biting, but there was no incontinence. Id. Ms. Conejo's son reported that she was confused but did not lose consciousness, and she did not look pale or sweaty. Id.

         An MRI of Conejo's brain was normal. AR 529-30. She also underwent two electroencephalogram (EEG) studies. AR 522-24, 535-36. In December 2012, the EEG study was “grossly unremarkable except for the occasional suspicious left temporal sharp waves.” AR 535. Dr. Novero requested further evaluation with a repeat sleep-deprived study. Id. The second study showed findings suggestive of interictal epileptiform activity. AR 522. Novero's impressions indicated that intermittent spikes could suggest a partial seizure disorder. Id.

         In a December 2012 follow-up visit, Ms. Conejo described having good days and bad days with frequent headaches associated with nausea, dizziness, and light sensitivity. AR 525. Dr. Novero prescribed Zomig 5 mg tabs for her to take at the onset of a headache. AR 527. Conejo's symptoms were the same the following month, but she reported several more seizure incidents in which she “passed out.” AR 574. Her son was present and she was “on the floor for about an hour.” Id. The next day she experienced a similar event and “suddenly fell down after passing out.” Id. Dr. Novero noted that he would write a letter to the DMV regarding a three-month driving restriction. AR 576. He prescribed her Topiramate and indicated that he would adjust the dose according to her response. Id.

         Ms. Conejo brought a neighbor to her February 2013 neurology appointment. AR 518. She complained of “constant severe headaches.” Id.; see also AR 553, 603 (reporting seizures to Drs. Kabins and Siegler in February 2013). The neighbor stated that Conejo was having at least two seizures a week. AR 518. The neighbor, who lived below Conejo, witnessed some of her seizures but also knew when she was having a seizure because she would “ ‘hear her fall on the floor'.” Id. Dr. Novero prescribed Sumavel injections and continued the Topiramate. AR 520.

         The following month, Ms. Conejo reported she was still experiencing recurrent seizures but they were lessening in frequency. AR 514. She still complained of headaches, occasionally severe, and migraines. Id. Dr. Novero instructed her to continue Topiramate and he prescribed Zomig nasal spray and Depakote as “a second migraine preventative and anticonvulsant.” AR 516. In a seizure questionnaire completed in April 2013, Dr. Novero stated that he diagnosed Conejo with complex-partial seizures and migraines. AR 549; see also AR 519 (noting that she presented with “partial seizures (i.e. complex-partial seizures), with intermittent migraines”). He indicated that she loses consciousness and averages two seizures per week. AR 549. She did not always have a warning of an impending seizure. Id. She could not always take safety precautions when she felt a seizure coming on. Id. When asked to describe the degree to which having seizures interfered with her daily activities following a seizure, Dr. Novero stated that her seizures did not occur at a certain time and they may come on at any given time, posing a risk to her and her surroundings. AR 550. The neurologist further indicated that Conejo's postictal manifestations were confusion, exhaustion, irritability, and visual blurriness. Id.

         C. Anxiety and Depression

         In May 2011, Ms. Conejo completed registration forms with Harmony Healthcare to begin individual counseling sessions for mental health issues related to her physical conditions. AR 414. Depression, anxiety, and marital conflict were described as her primary issues during her first session in June 2011. AR 420. In an initial psychiatric assessment, Agapito Racoma, M.D., diagnosed panic disorder without agoraphobia and prescribed her Zoloft, Xanax, and Ambien at night for sleep. AR 423. Her global assessment of function (GAF) was rated at 65. Id. Conejo's medications were periodically adjusted, see AR 591, 595-96; however, she also reported benefit from the medications. AR 596.

         Treatment notes from Ms. Conejo's counseling sessions through April 2013 repeatedly note that her problems were a combination of anxiety, depression, chronic pain, insomnia, headaches, and seizures. AR 415-40, 588-90, 592-94. In November 2011, a revised treatment plan documents Conejo's progress noting that she was “less depressed” and “less anxious.” AR 421. Medication progress notes report no evidence of hallucinations, paranoia, delusional thoughts, or cognitive dysfunction. AR 422, 591, 595-96. The mental status examinations over numerous counseling sessions reported no evidence of psychosis or suicidal/homicidal ideation. AR 415-20, 588-90, 592, 594.


         I. Applicable Law

         A. Judicial Review of Disability Determination

         District courts review administrative decisions in social security benefits cases under 42 U.S.C. § 405(g). Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). The statute provides that after the Commissioner has held a hearing and rendered a final decision, a disability claimant may seek review of that decision by filing a civil lawsuit in a federal district court in the judicial district where the disability claimant lives. 42 U.S.C. § 405(g). The statute also provides that the district court may enter, “upon the pleadings and transcripts of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” Id.

         The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g); Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005). But the Commissioner's findings may be set aside if they are based on legal error or not supported by substantial evidence. Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). The Ninth Circuit defines substantial evidence as “more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); see also Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). In determining whether the Commissioner's findings are supported by substantial evidence, a court “must consider the entire record as a whole and may not affirm simply by isolating a ‘specific quantum of supporting evidence'.” Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014) (quoting Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012)).

         Under the substantial evidence test, a court must uphold the Commissioner's findings if they are supported by inferences reasonably drawn from the record. Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2003). When the evidence will support more than one rational interpretation, a court must defer to the Commissioner's interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Consequently, the issue before a court is not whether the Commissioner could reasonably have reached a different conclusion, but whether the final decision is supported by substantial evidence.

         It is incumbent upon an ALJ to make specific findings so that a court does not speculate as to the basis of the findings when determining if the Commissioner's decision is supported by substantial evidence. See Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014). Mere cursory findings of fact without explicit statements about what portions of the evidence were accepted or rejected are not sufficient. Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir. 1981). An ALJ's findings should be comprehensive, analytical, and include a statement explaining the “factual foundations on which the ultimate factual conclusions are based.” Id. See also Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (an ALJ need not discuss all the evidence in the record, but must explain why significant probative evidence has been rejected).

         B. Disability Evaluation Process

         A claimant has the initial burden of proving disability. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995). To meet this burden, a claimant must demonstrate an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). A claimant must provide specific medical evidence to support his or her claim of disability. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). If a claimant establishes an inability to perform his or her prior work, the burden shifts to the Commissioner to show that the claimant can perform other substantial gainful work that exists in the national economy. See Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (noting that a claimant bears the burden of proof until the final step in the evaluation process).

         II. The ...

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