United States District Court, C.D. California
MEMORANDUM DECISION AND ORDER
SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE
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.
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).
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).
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).
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
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.).
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).
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).
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).
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).
Diane A. Song, M.D.
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.).
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).
Alberto Ezroj, M.D.
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.).
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
Andrew Kahn, M.D.
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).
Reviewing Physician, Dr. ...