United States District Court, D. Nevada
ZEIDY M. PONCE CONEJO, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security,Defendant.
REPORT OF FINDINGS AND RECOMMENDATION (MOT. TO REMAND
- ECF NO. 18) (CROSS-MOT. TO AFFIRM - ECF NO. 21)
A. LEEN UNITED STATES MAGISTRATE JUDGE.
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.
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,
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;
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.
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.
The Administrative Record
Neck and Back Pain
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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,
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
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.
Headaches and Seizures
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.
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.
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.
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
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.
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.
Anxiety and Depression
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.
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.
Judicial Review of Disability Determination
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.
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)).
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
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
Disability Evaluation Process
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).