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Bemisdarfer v. Berryhill

United States District Court, C.D. California

May 3, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.





         Carman Bemisdarfer (“Plaintiff”) brings this action seeking to overturn the decision of the Acting Commissioner of Social Security (the “Commissioner” or “Agency”) denying her application for Supplemental Security Income. The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. (Dkt. Nos. 11, 12, 14). For the reasons stated below, the Court AFFIRMS the Commissioner's decision.



         On June 21, 2013, Plaintiff filed an application for Supplemental Security Income (“SSI”), pursuant to Title XVI of the Social Security Act, alleging a disability onset date of October 2, 2012. (AR 134, 213-34). The Commissioner denied Plaintiff's application initially and on reconsideration. (AR 120-49). Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which took place on September 4, 2015. (AR 40-91, 165-66). The ALJ issued an adverse decision on March 11, 2016, finding that Plaintiff was not disabled because there are jobs that exist in significant numbers in the national economy that she can perform. (AR 20-34). On May 9, 2017, the Appeals Council denied Plaintiff's request for review. (AR 1-6). This action followed on July 3, 2017.



         Plaintiff was born on December 21, 1976. (AR 213). She was thirty-eight (38) years old when she appeared before the ALJ on September 4, 2015. (AR 40). Plaintiff has a tenth-grade education and a medical assisting certificate. (AR 48, 125). She is single and lives by herself. (AR 46). Plaintiff last worked in October 2012 as a certified nursing assistant (CNA). (AR 260-62). She alleges disability due to hepatitis C, bipolar disorder, and cirrhosis. (AR 260).

         A. Plaintiff's Statements And Testimony

         On August 8, 2013, Plaintiff submitted an Adult Function Report. (AR 282-90). She is able to take care of personal grooming and prepare simple meals without assistance. (AR 284). She is unable to perform household chores except laundry twice weekly. (AR 284). Plaintiff maintained that she cannot leave the house alone but acknowledged shopping for groceries. (AR 285). She engages in social activities with her boyfriend. (AR 286).

         Plaintiff testified that she is unable to work due to chronic joint pain, hepatitis C, cirrhosis of the liver, and a mood disorder. (AR 47, 59-62). She acknowledged that her hepatitis C has been in remission for a year. (AR 60-61). She has pain in her hips and knees related to her degenerative joint disease. (AR 59, 66, 73). Plaintiff has abdominal pain from her cirrhosis. (AR 77-78). She reported being able to stand and walk for an hour before needing to lie down and rest. (AR 69). She denied using any assistive devices to ambulate. (AR 74). She has difficulty performing daily activities due to her pain. (AR 66-68). Plaintiff uses oral medications as well as patches to manage her pain. (AR 75-76). She alleged that her medications cause drowsiness. (AR 63).

         Plaintiff acknowledged a history of drug abuse. (AR 65). She relapsed with methamphetamine in June 2013. (AR 65). She asserted that she checked into a rehabilitation center and has been sober ever since. (AR 65-66).

         Plaintiff testified that she has difficulty maintaining focus and concentration. (AR 47, 50, 68-69). Her last psychiatric hospitalization was in August 2015. (AR 80).

         The ALJ found Plaintiff “less than fully credible.” (AR 26). The ALJ concluded that the objective medical evidence does not fully corroborate Plaintiff's allegations of disabling pain. (AR 26, 27). Further, Plaintiff has not received the type of treatment one would expect based on her subjective statements. (AR 26). Finally, the ALJ noted that Plaintiff has provided conflicting statements regarding her drug use. (AR 27). While she testified at the September 2015 hearing that she has been sober since June 2013, in July 2015 she admitted drinking on a daily basis and using methamphetamine.[1] (AR 27; see Id. 1141).

         B. Treatment History

         In August 2011, Plaintiff complained of bilateral knee pain, which sometimes radiates to her lower legs. (AR 380). An orthopedic evaluation found only tenderness to palpitation in the knees and positive McMurray's testing.[2] (AR 380). There was no evidence of erythema, edema, clicking with internal rotation, numbness, or tingling. (AR 380). An x-ray of the bilateral knees found “no significant joint effusion, indicating only “minimal arthritic change.” (AR 379). In December 2012, an x-ray of the cervical spine found minimal disc space narrowing at ¶ 5-6 with minimal osteophyte formation. (AR 1010). In April 2013, a liver biopsy confirmed hepatic cirrhosis. (AR 370, 900). In August 2013, Plaintiff presented to the emergency room with symptoms of upper abdominal pain, fatigue, and weakness. (AR 689). An abdominal ultrasound revealed enlarged fatty liver, enlarged spleen, and small ascites.[3] (AR 687-88, 1013). A physical examination was largely unremarkable, with normal range of motion. (AR 691-92). Plaintiff was diagnosed with chronic liver disease, cirrhosis, and hyperbilirubinemia. (AR 696). She was prescribed several medications to manage her pain, including Norco. (AR 658).

         On October 3, 2013, Sohail K. Afra, M.D., performed a complete internal medicine consultative examination on behalf of the Agency. (AR 657-62). No medical records were made available to Dr. Afra, who instead obtained a medical history from Plaintiff. (AR 657). Plaintiff's chief physical complaints were hepatitis C and degenerative joint disease. (AR 658). A physical examination was unremarkable. Plaintiff ambulated without difficulties and without the need for an assistive device. (AR 661). Plaintiff had normal range of motion in the cervical and lumbar spine. (AR 659-60).

         She had pain in her knees with normal range of motion bilaterally. (AR 660). Plaintiff had full motor strength in her upper and lower extremities bilaterally. (AR 661). A sensory examination and Plaintiff's reflexes were within normal limits. (AR 661). Dr. Afra diagnosed a history of hepatitis C, mechanical-type back pain, and a history of arthritis. (AR 661).

         In March 2014, Plaintiff complained of chronic pain in her knees and hips. (AR 793). A physical examination was unremarkable. (AR 794). She was diagnosed with generalized osteoarthritis, low back pain, chronic hepatitis C, cirrhosis of the liver, anxiety, and depressive disorder. (AR 794). In August 2014, Plaintiff was treated at the emergency room, complaining of “severe” low back pain, which radiates to her abdomen. (AR 1113). An abdominal CT scan revealed dilated veins of the abdominal wall, findings suggestive of cirrhosis and portal hypertension.[4] (AR 892-93, 1015-16, 1130). In November 2014, Plaintiff complained of severe pain in her right hip. (AR 817). A physical examination was unremarkable. (AR 818). Plaintiff's treating physician assessed generalized osteoarthritis, low back pain, chronic hepatitis C, cirrhosis of the liver, anxiety, depression, bipolar disorder, and chronic obstructive pulmonary disease. (AR 818-19). A right hip x-ray was ordered and pain medications prescribed. (AR 819). In January 2015, a CT of Plaintiff's lumbar spine indicated mild disc degeneration and right L5 spondylolysis and right L5-S1 face arthropathy. (AR 896). A CT of her right hip found mild osteoarthritis. (AR 901).

         On March 16, 2015, Jeffrey D. Seip, M.D., an orthopedic specialist, evaluated Plaintiff for complaints of hip pain. (AR 903-05). Plaintiff reported “sharp pain that pops” and stated that she has been falling lately. (AR 903). She takes Norco for her pain, which she described as 9-10/10 currently and usually 7-8/10 with activity. (AR 903). Plaintiff also complained of fatigue, hearing loss, ringing in the ears, earache, swollen glands, swelling of feet and ankles, frequent urination, varicose veins, dizziness, numbness, tremors, excessive thirst, and heat and cold intolerance. (AR 904). On examination, Plaintiff ambulated independently without an assistive device. (AR 904). She had painful palpation over her right hip. (AR 904). While Plaintiff had painful range of motion with rotation, she had full range ...

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