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Scott v. Berryhill

United States District Court, E.D. California

April 28, 2017

PETRA SCOTT, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          ORDER AFFIRMING THE AGENCY'S DENIAL OF BENEFITS (DOC. 18)

          Gary S. Austin UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff Petra Scott (“Plaintiff”) seeks judicial review of the final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for Supplemental Security Insurance (“SSI”) benefits pursuant to Title XVI of the Social Security Act. (Docs. 1 and 14). The Commissioner filed a Motion for Summary Judgment in opposition. (Doc. 18). Plaintiff filed a reply. (Doc. 19). 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.[2] After reviewing the administrative record and the pleadings, the Court finds the ALJ's decision is supported by substantial evidence. Accordingly, Plaintiff's appeal is denied and the Commissioner's Cross-Motion for Summary Judgment is granted. (Doc. 18).

         II. BACKGROUND AND PRIOR PROCEEDINGS[3]

         Plaintiff filed application for SSI on September 20, 2013, alleging a disability beginning May 30, 2013. AR 28; 180. Her application was denied initially on January 28, 2014 and on reconsideration on April 18, 2014. AR 28; 114-119; 123-127. Plaintiff requested a hearing before an administrative law judge (“ALJ”). AR 130-132. ALJ Katherine Loo conducted a hearing on April 22, 2015 (AR47-88), and published an unfavorable decision on June 30, 2015. AR 28-39. Plaintiff filed an appeal and the Appeals Council denied the request for review, rendering the order the final decision of the Commissioner. AR 1-3.

         III. ISSUES FOR JUDICIAL REVIEW

         Plaintiff challenges the ALJ's credibility determination on the basis that the ALJ failed to provide clear and convincing reasons to reject her testimony. (Doc. 14, pgs. 2-9; Doc. 19, pgs. 2-5). She argues that the case should be remanded for a calculation of benefits, or in the alternative, that the case be remanded for further proceedings. (Doc. 14, pg. 9; Doc. 19, pg. 5). The Commissioner contends that the ALJ gave sufficient reasons to find Plaintiff's testimony less than fully credible and that the decision is supported by substantial evidence. (Doc. 18, pgs. 7-12).

         IV. PLAINTIFF'S TESTIMONY

         Plaintiff completed a function report dated October 16, 2013. AR 212. She indicated that she is in constant pain and takes pain medication which makes her sleepy and constipated. AR 212; 219. She spends each day doing exercises to stretch her back, watching television, feeding her dogs, and sleeping. AR 213. She cares for her dogs by feeding them, giving them water, and opening the back door for them. AR 213. She also prepares her own meals which are usually cold cereal or sandwiches. AR 214. She vacuums for three minutes weekly and cleans the toilet and sinks for two minutes weekly. AR 214. Plaintiff reported that she does not do yard work because they had a gardener. AR 215. However, she goes grocery shopping once a week, loves reading, sews as a hobby, and goes out about twice a week. AR 215-217. Plaintiff reported that she spends time with others on the phone and that her sister visits occasionally, but she only goes out about twice a week. AR 215-216. She follows written and spoken instructions well and gets along well with authority figures. AR 217-218. She can deal with stress and is able to handle changes in routine. AR 218. She is only able to stand for a short period of time and can walk around the block. AR 219. She has difficulty completing tasks because she gets tired and things are too heavy. AR 219.

         Plaintiff also testified before the ALJ at a hearing on April 22, 2015. AR 45-88. She noted she has an associate's degree in health care. AR 51. She last worked in 2004 as an underwriting service assistant but left that position because she was not able to sit for long periods of time. AR 53. She currently is unable to work because of her back pain and because her medication makes her lethargic. AR 54. In the past, Plaintiff received six or eight epidural shots to relieve the pain but they were only effective for about a day or so, so she has not gotten one recently. AR 55. On an average day Plaintiff's pain is an eight on a ten point scale. The pain starts in her back and radiates down her right leg. When the pain moves into her leg (which occurs about once a month), her right foot goes numb. AR 70-71. She also suffers from migraine headaches about once a month which she treats with medication. AR 72.

         Plaintiff has been seeing Dr. Gordon, her primary care doctor, every two weeks for a couple of years and receives shots in her hip to relieve her back pain. AR 56-57. Surgery has been recommended for her back but she has not received the necessary authorization from her insurance company so she has not had the surgery. AR 56. She is currently taking M.S. Contin and Norco four times a day and Motrin as needed. She also has suffered from depression for about three years and has difficulty sleeping at night. She takes Cymbalta, Seroquel, and Resterol (occasionally) to treat the depression and insomnia. AR 59-60. She also takes thyroid medication because her thyroid was removed in 2005. AR 57-58.

         In addition to her primary care physician, Plaintiff also sees Dr. Fisher, a pain management specialist every two months. AR 60. She participated in physical therapy about a year and a half ago but it did not help. AR 60. She does stretching exercises in the morning if her daughter is home to help her off the floor. AR 61. She has a TENS unit that she wears for about six hours a day once a week. She also occasionally wears a back brace, but it is too constricting so she does not wear it often. AR 61-62.

         Plaintiff's days are spent watching television and playing computer games on her Kindle. AR 63. She tries to go to church on Sundays but it is difficult because the pews are really hard to sit in. AR 64. Plaintiff occasionally goes shopping at the mall or grocery store with her daughter but she usually “poops out” and sits on a bench. AR 64. She pushes the cart and her daughter places the items to be purchased in the cart. AR 65. Plaintiff can go to the store by herself to get an item, but she generally does not go alone - her medications make her drowsy and she chooses not to drive because the vibrations hurt her back. AR 77. She only drives her car short distances about once every two weeks to Dr. Gordon's office which is approximately four minutes from her house. AR 78.

         By way of daily activities, Plaintiff can vacuum, although it is “tough, ” and she hand washes dishes at the sink for short periods of time. AR 65. She is able to put clothes in the washing machine and fold them once they are out of the dryer, however, her daughter has to pull the clothes out of the washer and the dryer because Plaintiff is unable to bend down. AR 65-66. Plaintiff further testified that she took care of a family friend full-time in November 2013 which entailed sitting and watching TV all day. AR 67-68. She left the position in May 2013 because the friend fell down and she needed to be lifted which was more care than Plaintiff was able to provide. AR 68.

         Plaintiff stated that she is able to sit for ten minutes for a total of an hour each day. AR 73-74. She can also stand for about fifteen minutes at a time for a total of an hour each day. AR 74. Sitting is easier than standing. AR 74. She can walk a block and can walk up a flight of stairs if she has help. AR 75. She is able to lift and carry about ten pounds but her doctors have not given her any restrictions. AR 75. She is able to lift her ten pound dog off of a counter but not off the floor. AR 75-76.

         V.THE MEDICAL RECORD

         In May 2012, the medical records note that Ms. Scott was experiencing chronic low back pain. An MRI of the lumbar spine showed left paracentral disc protrusion at ¶ 4-L5 measuring 3mm at ¶ 3-4, a disc measuring 3mm, and at ¶ 5-S1 a 4mm disc protrusion. AR 302. Increased pain and numbness on the right lower extremity was also noted. Plaintiff's pain was a six to seven on a ten ...


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