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Soyka v. Berryhill

United States District Court, C.D. California

May 23, 2017

MELODY SOYKA, Plaintiff,
v.
NANCY BERRYHILL, [1] Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM DECISION AND ORDER

          SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Melody Soyka (“Plaintiff”) brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration (the “Commissioner” or “Agency”) denying her application for Disability Insurance Benefits (“DIB”). On May 10, 2016, Plaintiff filed a complaint (the “Complaint”) commencing the instant action. On October 4, 2016, Defendant filed an Answer to the Complaint (the “Answer”) along with the Administrative Record (“AR”). On November 8, 2016, Plaintiff filed a memorandum in support of the Complaint (“Pl. MSO”). On January 17, 2017, Defendant filed a memorandum in support of the Answer (“Def. MSO”). On January 31, 2017, Plaintiff filed a reply (the “Reply”). The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. (Dkt. Nos. 7, 12). For the reasons stated below, the Court AFFIRMS the Commissioner's decision.

         II. PROCEDURAL HISTORY

         Plaintiff filed an application for DIB on September 5, 2013. (AR 118-121). Plaintiff alleged a disability onset date of August 6, 2012. (AR 118). The Agency denied Plaintiff's application on December 30, 2013. (AR 60-62). On January 29, 2014, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 63-64). On September 12, 2014, ALJ Joan Ho conducted a hearing to review Plaintiff's claim. (AR 24-48). Plaintiff, represented by Troy Monge, testified before the ALJ. (AR 30-43). At the hearing, Plaintiff requested to amend her alleged disability onset date to July 16, 2013. (AR 29). Vocational expert (“VE”) Susan Allison also testified at the hearing. (AR 44-47). On November 12, 2014, ALJ Ho found that Plaintiff was not disabled under the Social Security Act. (AR 9-20). Plaintiff sought review of the ALJ's decision before the Appeals Council on January 7, 2015. (AR 7-8). On March 25, 2016, the Appeals Council denied review. (AR 1-3). As such, the ALJ's decision became the final decision of the Commissioner. (AR 1). Plaintiff commenced the instant action on May 10, 2016. (Dkt. No. 1).

         III. FACTUAL BACKGROUND

         Plaintiff was born on March 10, 1958. (AR 118). She was 55 years old as of the alleged disability onset date of July 16, 2013. She was 56 years old when she appeared before the ALJ. (AR 30). Plaintiff completed the twelfth grade and received a high school diploma. (AR 31, 202). For fifteen years prior to her alleged disability onset date, Plaintiff worked as a nanny. (AR 134, 139). Prior to that, Plaintiff worked as a file clerk, preschool teacher, and cashier. (AR 202).

         In the Disability Report, Plaintiff alleged that back problems, peripheral neuropathy, chondromalacia patellae, ulcerative colitis, a learning disability, osteoporosis, and “knees, stomach, etc.” limit her ability to work. (AR 132). According to medical records, Plaintiff has chronic low back pain that worsened in September of 2012 when a vehicle that was backing up struck her car. (AR 215).

         At the hearing, Plaintiff testified that she no longer has problems with ulcerative colitis (AR 36), but that she has “scoliosis, arthritis … osteoporosis sponlykiosis [phonetic] … [and] neuritis.” (AR 35).

         A. Plaintiff's Testimony

         Plaintiff testified that she stopped working on August 6, 2012 because she “fractured [the] 5th metatarsal in [her] left foot.” (AR 32). She was out on disability from August until October and was subsequently let go for not coming back to work at a particular time. (Id.). She testified that, after this injury, she received Worker's Compensation for her medical bills. (Id.). She also testified that she was on unemployment from October 12, 2012 until December 2013. (Id.).

         Plaintiff testified that her physician restricted her to standing and walking twenty-five percent of the time and sitting only a certain percentage of the time. (AR 33). She testified that she looked for work adhering to these restrictions but was unable to find anything. (AR 32). Specifically, Plaintiff testified that she looked for office work and nanny jobs. She testified that, had she received an office job allowing her to work within the guidelines of her restrictions, she would have been able to do it. (AR 33).

         Plaintiff testified that she has been unable to work since July 16, 2013 because her back has gotten increasingly worse and she feels that “no employer will hire [her]” with her postural restrictions. (AR 32). She stated that her back pain is “really bad” and that every day she has to “lie in bed because the pain is so great.” (AR 34). Plaintiff further testified that the pain is located in her lower back, below the belt line, and that doctors gave her pain medications and back exercises to decrease her pain. (Id.). Plaintiff testified that, in February of 2013, she did these back exercises in her bed for 30 minutes a day, seven days a week. (AR 41-42). Plaintiff testified that doctors have not recommended any treatment aside from medication and physical therapy (AR 38) and that doctors told her that there is nothing they can do for her condition. (AR 35). She stated that while one doctor recommended an epidural injection a long time ago, there was no guarantee that it would help. (AR 39).

         Plaintiff testified that she also has neuritis, meaning that she does not have enough padding in her feet and is “stepping on [her] nerves all the time, and [her] feet are in pain 24/7.” (AR 35). Plaintiff testified that, on a scale from 1 to 10, she would rate her pain an 8. (AR 38). When she takes her medication, which consists of Evista for osteoporosis, Tylenol, Codeine, and another medication that she could not recall the name of, Plaintiff would rate her pain a 7. (AR 38) Plaintiff testified that, at the time of the hearing, she did not have problems with ulcerative colitis (AR 36), though it was alleged in the Disability Report. She also stated that her knees pop if she repetitively kneels, bends, and stoops, but that she stays in the guidelines of what she is not supposed to do and has been doing well. (AR 42-43).

         Plaintiff testified that she does household chores, including loading the dishes as she eats her meals and the laundry when necessary. (AR 43). She testified that she drives every day without limits. (AR 31). However, she does not vacuum because it hurts her back (AR 43) and she cannot lift two gallons of milk. (AR 35).

         B. Treating Physicians

         1. Diane A. Song, M.D.

         On March 29, 2013, Plaintiff visited her treating physician, Dr. Diane A. Song, M.D., to follow-up on back pain. (AR 463). Pursuant to this visit, Dr. Song completed a progress note, wherein she stated that Plaintiff “completed a course of physical therapy and was also evaluated by physical medicine and given work restrictions.” (AR 463). Under “Assessment/Plan”, Dr. Song wrote “Low back pain: Ok to return to work as a nanny.” (Id.).

         On July 16, 2013, Dr. Song completed a “Work Status Report”, diagnosing Plaintiff with “strain of back”, stating that she “is placed on permanent modified work/activity restrictions” including that she could sit and stand “[o]ccasionally (up to 25% of shift)” and could lift/carry/push/pull no more than 10 pounds. (AR 214). On August 2, 2013, Dr. Song completed another “Work Status Report”, diagnosing Plaintiff with “osteoporosis, spondylosis cervical joint wo myelopathy, chronic neck pain, strain of lumbar region” and opining the same restrictions to Plaintiff's activities. (AR 213).

         2. Alberto Ezroj, M.D.

         On August 6, 2013, Plaintiff's treating family physician, Dr. Alberto Ezroj, M.D., examined Plaintiff and noted that she had normal range of motion of back without spasm or exacerbation of pain, normal strength in her extremities, and did not exhibit any musculoskeletal tenderness. (AR 514). Dr. Ezroj listed Plaintiff's primary encounter diagnosis as “strain of back.” (Id.).

         On September 11, 2013, Dr. Ezroj completed a “Medical Assessment of Ability to do Work-Related Activities” form. (AR 198). Therein, Dr. Ezroj opined that Plaintiff can only lift/carry up to 10 pounds, can only stand or walk for 30 minutes without interruption, and can only stand/walk for two hours total in an eight-hour workday. Dr. Ezroj commented that x-rays “revealing Grade 2 spondylolisthesis and osteophytes throughout lumbar spine” support these assessments. (Id.).

         3. Andrew Kahn, M.D.

         On January 31, 2013, Plaintiff visited Dr. Andrew Kahn, M.D., for a physical medicine and rehabilitation outpatient consultation. Notes from this visit indicate that Plaintiff walked without an assistive device and moved easily from sit to stand and with transfers to the exam table. (AR 217). Physician notes indicate that Plaintiff's lumbar spine was nontender to palpation, with tenderness only noted in the paraspinal muscles at ¶ 5 to S1. (Id.). Plaintiff's manual motor testing was normal, and her sensation was intact to light touch throughout bilateral lower extremities. (Id.). Plaintiff had normal range of spinal motion and no pain with twisting of spine in extension. (Id.). Plaintiff had normal range of motion of the hip, and a negative straight leg raising test. (AR 218). Under “Plan, ” Dr. Kahn's notes state that Plaintiff “was informed of the spectrum of treatment options, from conservative monitoring, physical therapy/therapies, medications, interventions/injections or surgical evaluation/treatment.” (AR 218).

         C. Reviewing Physician, Dr. ...


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