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Akhmedov v. Berryhill

United States District Court, D. Oregon

November 21, 2017

ADIL B. AKHMEDOV, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE

         Adil B. Akhmedov (“Plaintiff”) brings this appeal challenging the Commissioner of the Social Security Administration's (“Commissioner”) denial of his application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f.[1]The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. § 1383(c)(3), which incorporates the review provisions of 42 U.S.C. § 405(g). For the reasons that follow, the Court affirms the Commissioner's decision because it is free of harmful legal error and supported by substantial evidence.

         BACKGROUND

         Plaintiff is a native of Uzbekistan who came to the United States as a refugee over nine years ago and later became a naturalized United States citizen. (Tr. 39, 49, 290.) He was born in June 1964, making him forty-eight years old on March 15, 2013, the day he filed his protective application.[2] (Tr. 38.) Plaintiff's past relevant work experience includes time as a janitor. (Tr. 38.) In his application for SSI, Plaintiff alleges disability due to depression, migraines, lower back, heart, and bone pain, memory loss, low blood pressure, and “short[ness] of breath.” (Tr. 69, 85, 219.)

         On January 15, 2013, Plaintiff suffered a heart attack and had a stent implanted. Dr. Nickolas Juliano (“Dr. Juliano”) advised Plaintiff of the “importance of smoking cessation, ” and noted that “[h]e may need staged intervention in the left anterior descending artery” in the future. (Tr. 294.)

         In an Exercise Stress Echocardiographic Report dated March 27, 2013, Matthew Janssen (“Janssen”), a cardiac sonographer, noted that Plaintiff's exercise capacity was “[a]verage for [his] age, ” Plaintiff reported experiencing chest pressure during the exam, but did not complain of “chest pain with exertion, ” and the exam was indicative of “[c]oronary artery disease.” (Tr. 322.)

         On April 18, 2013, Plaintiff presented for a follow-up visit with Terrance James (“James”), a family nurse practitioner, regarding “headaches, dizziness in [the morning], joint and muscle pain.” (Tr. 377.) Plaintiff reported that his “symptoms get better as [the] day goes on” and are “worse when he wakes up.” (Tr. 377.) James noted that Plaintiff appeared “alert” and in “no apparent distress” on physical examination, that Plaintiff suffers from “anxiety, depression, difficulty falling asleep, early morning awakening, fatigue, nervous breakdown, and [generally] not doing well since his heart attack” in January 2013, and that Plaintiff's wife wanted “him to engage in therapy” because he was “not improving on [anti-depressants] alone.” (Tr. 377-78.)

         On May 15, 2013, Plaintiff visited Dr. S. Albert Camacho (“Dr. Camacho”), a cardiologist at Oregon Health and Sciences University. Plaintiff reported that he “continue[d] to feel poorly” and was experiencing “on-going pin pricks in his chest” that “occur at rest and last many hours.” (Tr. 328.) Plaintiff also complained of “fatigue . . . at some times but not others, ” reported a “history of chronic headaches, ” and denied “excessive lightheadedness, syncope, or falls.” (Tr. 328.) Dr. Camacho noted that Plaintiff's coronary artery disease was “asymptomatic, ” his reports of feeling on-going pin pricks in his chest are “atypical” and “non-cardiac, ” his hypertensive heart disease was “controlled and excellent, ” and his “anxiety-depression” was “[p]robably post-traumatic syndrome” and the “likely cause of fatigue” and difficulty breathing. (Tr. 330-31.)

         On May 21, 2013, Plaintiff appeared for a psychotherapy session with Margaret Mahlik (“Mahlik”), a licensed clinical social worker. Plaintiff complained of poor sleep and indicated that he was interested in medication to treat nightmares that stem from his time serving in the Soviet-Afghan War. In her progress notes, Mahlik observed that Plaintiff's affect was “brighter than [his] previous session” with Mahlik, that Plaintiff's “[o]rientation, judgment, insight, and memory [were] all within normal limit, ” that Plaintiff suffers from posttraumatic stress disorder and depression, and that Plaintiff's Global Assessment of Functioning (“GAF”) score was fifty-eight.[3] (Tr. 345.)

         In a progress note dated June 5, 2013, Mahlik noted that Plaintiff reported “having fears about sleeping/nightmares” on a daily basis, that Plaintiff's mental health symptoms “remained at the same level” as the previous session, that Plaintiff reported being extremely irritable, but that was “not shown [during their] session, ” and that Plaintiff's orientation, judgment, insight, memory, attention, concentration, and thought content were “all within normal limits.” (Tr. 340-41.)

         On June 24, 2013, Dr. Dorothy Anderson (“Dr. Anderson”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 74-75.) Based on her review of the record, Dr. Anderson concluded that the limitations imposed by Plaintiff's mental impairments failed to satisfy listings 12.04 (affective disorders) and 12.06 (anxiety-related disorders).

         Also on June 24, 2013, Dr. Anderson completed a mental residual functional capacity assessment form, in which Dr. Anderson rated Plaintiff's limitations in each of sixteen categories of mental ability. (Tr. 77-79.) Dr. Anderson rated Plaintiff to be “not significantly limited” in ten categories and “moderately limited” in six categories. (Tr. 77-78.) Dr. Anderson also concluded that Plaintiff is capable of (1) understanding and remembering short and simple instructions, (2) carrying out short and simple instructions, (3) completing short and simple tasks with “regular scheduled breaks, ” and (4) “only superficial coworker contact” and no contact with the public. (Tr. 77-78.)

         On June 25, 2013, Dr. Martin Kehrli (“Dr. Kehrli”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 75-77.) Dr. Kehrli concluded that Plaintiff can lift and carry twenty pounds occasionally and ten pounds frequently, stand, sit, or walk up to six hours during an eight-hour workday, and push or pull in accordance with his lifting and carrying restrictions. Dr. Kehrli also concluded that Plaintiff does not suffer from any postural, manipulative, visual, or communicative limitations, but Plaintiff does need to avoid concentrated exposure to hazards, such as machinery and heights, due to episodes of dizziness.

         In a treatment note dated June 28, 2013, Tina Walde (“Walde”), a treating psychiatric mental health nurse practitioner, noted that Plaintiff reported that he had not “noticed any improvement in [his] mood” and he continued to “wake several times during the night” and “feel low energy and fatigue during the day, ” but he was having fewer nightmares and his energy levels were “somewhat improving.” (Tr. 397.) Walde also observed that Plaintiff's affect and symptoms had “improved” on Zoloft, Plaintiff was less irritable, and Plaintiff's orientation, judgment, memory, attention, concentration, and thought content were all within normal limits. (Tr. 397-98.)

         On November 19, 2013, Dr. Kordell Kennemer (“Dr. Kennemer”), a non-examining state agency psychologist, completed a psychiatric review technique assessment, agreeing with Dr. Anderson's finding that Plaintiff's mental impairments do not satisfy listings 12.04 and 12.06. (Tr. 92.)

         That same day, Dr. Kennemer completed a mental residual functional capacity assessment, wherein he agreed with Dr. Anderson's conclusion that Plaintiff is “not significantly limited” in ten categories of mental ability and “moderately limited” in six categories. (Tr. 95-96.) Dr. Kennemer also agreed that Plaintiff is capable of understanding and remembering short and simple instructions, carrying out short and simple instructions, completing short and simple tasks with “regular scheduled breaks, ” and “only superficial coworker contact” and no contact with the public. (Tr. 95-96.)

         Also on November 19, 2013, Dr. Martin Lahr (“Dr. Lahr”), a non-examining state agency physician, completed a physical residual capacity assessment, wherein he agreed with Dr. Kehrli's conclusion that Plaintiff can lift and carry twenty pounds occasionally and ten pounds frequently, stand, sit, or walk up to six hours during an eight-hour workday, and push or pull in accordance with her lifting and carrying restrictions. (Tr. 93-95.) Dr. Lahr also agreed with Dr. Kehrli's conclusion that Plaintiff does not suffer from any postural, manipulative, visual, or communicative limitations, but he does need to avoid concentrated exposure to workplace hazards.

         On December 6, 2013, Plaintiff visited Walde and reported “little change in his mood or health status since [their] last visit in July 2013.” (Tr. 408.) Plaintiff also reported that he was “not interested . . . in taking medication for anxiety or depression, ” and that he was “not interested in mental health counseling to learn strategies to manage stress or anger, ” even though Plaintiff “recognize[d] these are problems in his life.” (Tr. 408.) In her progress notes, Walde stated that Plaintiff was “calm and friendly, ” Plaintiff smiled when he spoke “about his granddaughter, ” Plaintiff's insight and judgment are limited, and Plaintiff's memory, behavior, orientation, attention, concentration, and thought content were all within normal limits. (Tr. 409.) Walde also noted that Plaintiff “has symptoms of depression and anxiety with limited insight and low readiness for treatment, ” and discontinued his prescription for Zoloft because he was “not taking it.” (Tr. 411.)

         On February 19, 2014, Plaintiff established care with Dr. Anna Raphael (“Dr. Raphael”) at Kaiser Permanente. Plaintiffs reported that he started using tobacco again and complained of daily headaches that were “getting worse, ” “nearly constant chest pain, ” “generalized fatigue and weakness, ” lower back pain, and “multiple joints pains from a history of brucellosis infection.” (Tr. 421-22.) Dr. Raphael referred Plaintiff to cardiology regarding his atypical chest pain, noted that Plaintiff's headaches were “likely related to untreated” sleep apnea “or eye strain, ” stated that “brucellosis does not seem associated with joint pain” based on an “initial literature review, ” and recommended that Plaintiff continue taking Zoloft and participating in counseling. (Tr. 422-24.)

         On February 21, 2014, Plaintiff presented for a cardiology consultation with Dr. Lori Lee McMullan (“Dr. McMullan”) regarding his atypical chest pain. Plaintiff complained of chest pain, headaches, and “weakness all over his body, ” and reported that he “is too weak” to work and sits “all day watching” television, but added that he “actually exercises at [a] fitness center for [one] hour [three to five] times a week with no chest pain” and “some shortness of breath.” (Tr. 427.)

         On March 31, 2014, Dr. Raphael noted that a computed tomography (“CT”) scan of Plaintiff's abdomen was “unremarkable” and did not show “anything that could cause his side pain.” (Tr. 463.)

         In a treatment note dated April 2, 2014, Dr. Raphael noted that Plaintiff recently felt like he was “about to pass out” after walking on the treadmill at his public gym and using the sauna for five minutes, and that Plaintiff called an ambulance and was “diagnosed with unexplained fainting.” (Tr. 468.) Dr. Raphael added that she spoke with a cardiologist who felt that Plaintiff's symptoms were “consistent with dehydration” and were “very unlikely to be cardiac” related. (Tr. 469.)

         On April 2, 2014, an echocardiogram of Plaintiff's heart “show[ed] normal pumping function.” (Tr. 472.)

         On April 4, 2014, an ultrasound of Plaintiff's neck “showed no significant blocked arteries to the blood flow to his head, ” which “further support[ed]” that his “near fainting episode was from dehydration from sweating after walking on the treadmill and going to the sauna.” (Tr. 475.)

         On April 24, 2014, Plaintiff informed Dr. Raphael that he “only goes to the gym every [two] to [three] days instead of daily like before” as the result of fatigue, that he had difficulty tolerating an antibiotic used to treat a bacterial infection, that he experiences “shortness of breath episodes, sometimes associated with chest pain, ” that his anxiety had not increased, that he “does not want to take any more medications to treat anxiety or depression, ” that he “did not find the psychotherapy helpful, ” and that he chews tobacco and smokes two to three cigarettes a day. (Tr. 484-85.)

         On April 30, 2014, Plaintiff visited the emergency room department at Kaiser Permanente, complaining of weakness, shortness of breath, dizziness, and chest and neck pain. (Tr. 495-96, 501.) Dr. Samer Halim Abufadil (“Dr. Abufadil”) recommended further gastrointestinal (“GI”) evaluation because he felt Plaintiff's symptoms were “most consistent with GI issues.” (Tr. 498.) An upper GI series revealed “[m]arked gastroesophageal reflux” and “incomplete relaxation of the proximal cervical esophageal sphincter, possibly secondary to inflammation from the reflux.” (Tr. 509.) Plaintiff was discharged with a diagnosis of chest pain “most likely due to [GI] disease, i.e., ...


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