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Menges v. Berryhill

United States District Court, E.D. California

March 29, 2018

TERINA MAY MENGES, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

          BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Plaintiff Terina May Menges (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her applications for disability insurance benefits (“DIB”) under Title II of the Social Security Act and for supplemental security income (“SSI”) under Title XVI of the Social Security Act.[1] The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Barbara A. McAuliffe.

         The Court finds the decision of the Administrative Law Judge (“ALJ”) to be supported by substantial evidence in the record as a whole and based upon proper legal standards. Accordingly, this Court affirms the agency's determination to deny benefits.

         FACTS AND PRIOR PROCEEDINGS

         On October 4, 2012, Plaintiff filed applications for disability insurance benefits and supplemental security income. AR 216-21, 222-25.[2] Plaintiff alleged that she became disabled due detached retina-legally blind in right eye/clinically blind in left eye, asthma, dizziness, migraine headaches, floating objects in eyes and blinding reflections in eyes, hypoglycemia, sensitive skin and disoriented and combative. AR 149, 314. Plaintiff's applications were denied initially and on reconsideration. AR 139-42, 143-46, 149-53, 155-60. Subsequently, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). ALJ Christine Hilleren held a hearing on May 4, 2015, and issued an order denying benefits on August 20, 2015. AR 9-22, 29-72. Plaintiff sought review of the ALJ's decision, which the Appeals Council denied, making the ALJ's decision the Commissioner's final decision. AR 1-5, 8. This appeal followed.

         Hearing Testimony

         The ALJ held a hearing on May 4, 2015, in Fresno, California. Plaintiff appeared with her attorney Jonathan Pena. Impartial Vocational Expert (“VE”) Stephen Schmidt also appeared. AR 31.

         In response to questioning from the ALJ, Plaintiff testified that she was 45 years old and living with her 26-year-old daughter and her grandkids. She cannot drive and lost her license in 2006 or 2007. She now walks and does not use public transportation. AR 37-40.

         Plaintiff testified that she finished the 11th grade. She worked briefly for Augies Farm Labor Services in 2009 and 2010 driving a tractor. She worked for one month in 2010, but it was too dangerous because of her vision. AR 41-42. When asked about her other past work, Plaintiff testified that she worked for In-Home Support Services from 2001 to 2007 taking care of three different clients. Her duties included changing bandages, body rubs for circulation, cleaning, cooking and hygiene. In that job, she lifted about 65 or 70 pounds. The job was mostly standing. When asked why she could not work, Plaintiff testified that she cannot see well enough and she is scared to be around people. AR 42-44.

         When asked about her vision, Plaintiff testified that she still experiences floaters and gets bright lights flashing in her eyes. She has no vision in her right eye, and it is completely dark. In her left eye, she sees floaters and bright lights every once in a while. She also has headaches every day if she keeps her eyes open very long. Plaintiff reportedly had corrective surgery for the right eye in 2008 or 2009. After the surgery, she could see a little bit, but went totally blind again. Between 2008 and 2012, Plaintiff asked for a referral to an ophthalmologist, but never received one because of an insurance issue. AR 45-49. She does not use an assistive device, and does not need anyone to help her walk. AR 55.

         When asked about her anxiety, Plaintiff testified that it has been worsening in the last two years, which she attributes to her inability to see. She does not like riding in cars or being around people. She also experiences depression, feeling hopeless and like she wants to cry. She has not had any treatment for depression, and first felt she needed treatment for anxiety about two months before the hearing. AR 49-52.

         When asked about her asthma, Plaintiff testified that she uses an albuterol inhaler, sometimes every day, and certain kinds of sprays bother her. If her anxiety gets bad, she will have an asthma attack, which happened three times in the last month. She takes Myland for anxiety, which seems to help. AR 52-54.

         When asked about her past drug and alcohol abuse, Plaintiff testified that she has been sober since 2002, and last used methamphetamine in 2002. AR 54.

         When asked about a typical day, Plaintiff testified that she usually spends the day playing with her grandkids, ages 8, 4 and 2. Her daughter does not let her babysit because she cannot see. Plaintiff tries to help with the cooking every night. She will make her bed, but not do any other cleaning because she cannot see well enough. She is able to shower and dress without assistance. She will go shopping with her daughter once a month, but cannot shop for groceries on her own. She will walk on her own to a friend's house about four or five blocks away. AR 55-59.

         When asked about her abilities, Plaintiff testified that she could probably lift 50 pounds and possibly walk longer than six blocks. She does not have a problem standing, but cannot sit very long due to poor circulation. She thought she could sit five or ten minutes. AR 59-60.

         In response to questions from her attorney, Plaintiff testified that she cannot see screens, monitors or TVs. She has astigmatism that makes the lights blur together, and she is not able to see even if it is close. Sha also has bad depth perception. AR 60, 63.

         Following Plaintiff's testimony, the ALJ elicited testimony from VE Stephen Schmidt. The VE identified Plaintiff's past work as home attendant. AR 66-67. The ALJ also asked the VE hypothetical questions. For the first hypothetical, the ALJ asked the VE to assume an individual of Plaintiff's age, education and past work. This individual had no exertional limitations, but could not drive, and would have difficulty reading normal-size print and working with small objects, but would be able to read large print and work with large objects. This individual also would need to avoid exposure to hazards, such as unprotected heights and moving machinery, and would need to avoid concentrated exposure to fumes, odors, dust, gases, poor ventilation and other similar pulmonary irritants. The VE testified that this individual could not perform Plaintiff's past work, but there would be other work in the national economy that the individual could perform, such as hand packer, cleaner II, and laborer, stores. AR 67.

         For the second hypothetical, the ALJ asked the VE to assume all of the prior limitations, but that the individual's limited depth perception would preclude the individual from making any accurate judgments of distance or speed, and the individual would not be able to perform any duties requiring reading of any kind or manipulation of a computer screen. The individual also would be limited to simple, routine tasks commensurate with a SVP level of 2 or less. The VE testified that the individual could perform the previous jobs of cleaner II and laborer, stores, but not hand packer due to the speed and production required. However, a third position would be packer, machine operator. The VE did not believe there would be any erosion in numbers from the laborer, stores or cleaner II positions. AR 67-68.

         For the third hypothetical, the ALJ asked the VE to assume all the prior limitations, but this individual would need to take a break after every 30 minutes of work for five to ten minutes in order to rest the eyes. The VE testified that there would not be any other work in the national economy that the hypothetical individual could perform. AR 68.

         Following the ALJ's questioning, Plaintiff's counsel asked the VE to assume an individual with the same factors as the first hypothetical, but this individual was limited to occasional quick near point visual refocus and occasional periphery of a fixed point. AR 69. The VE testified that this hypothetical individual ...


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