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Perez v. Saul

United States District Court, E.D. California

June 24, 2019

ADELINA BARCELOS PEREZ, Plaintiff,
v.
ANDREW SAUL, [1] Commissioner of Social Security, Defendant.

          ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF COMMISSIONER OF SOCIAL SECURITY AND AGAINST PLAINTIFF

          GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff Adelina Barcelos Perez (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for supplemental security income pursuant to Title XVI of the Social Security Act. 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] See Docs. 15, 16 and 17. Having reviewed the record as a whole, the Court finds that the ALJ's decision is supported by substantial evidence and applicable law. Accordingly, Plaintiff's appeal is denied.

         II. Procedural Background

         On August 25, 2008, an Administrative Law Judge denied Plaintiff's prior application for supplemental security income. AR 21, 69-73. The ALJ found that Plaintiff had no severe impairment and was not disabled. AR 71-73.

         On February 28, 2014, Plaintiff filed the pending application for disability insurance benefits alleging disability beginning April 21, 2003. AR 21. The Commissioner denied the application initially on September 4, 2014, and upon reconsideration on March 13, 2015. AR 21. On May 17, 2015, Plaintiff filed a timely request for a hearing before an Administrative Law Judge. AR 21.

         Administrative Law Judge Matilda Suhr presided over an administrative hearing on June 5, 2017. AR 49-128. Plaintiff appeared with the assistance of an attorney and an interpreter. AR 45. Impartial vocational expert Judith Nazarian (the “VE”) also testified. AR 45.

         On July 10, 2017, the ALJ denied Plaintiff's application. AR 21-28. The Appeals Council denied review on May 14, 2018. AR 1-4. On July 9, 2018, Plaintiff filed a complaint in this Court. Doc. 1.

         III. Factual Background

         A. Plaintiff's Testimony and Reports

          Plaintiff (born October 27, 1961) lived in a home with several adult children and a seventeen-year-old daughter. AR 50. Plaintiff completed the eighth grade in Mexico. AR 50. She had not worked since 2003 when she was injured while working at a poultry processing plant. AR 50-51. Plaintiff continues to have muscle pain (7/10) in her mid-back, which she treats with medication. AR 56.

         Because of Plaintiff's back pain, her children did most of the work around the house. AR 51. Plaintiff went to the grocery store and helped the children with cleaning and washing. AR 51-52. Plaintiff could “not lift anything” but could pour milk from a gallon container using two hands. AR 52-53. She was able to perform her own personal care, shop several times weekly, cook, do laundry, iron and drive. AR 52, 54, 277, 278, 279. /// On a typical day, Plaintiff woke at five o'clock, made her daughter's breakfast and drove her daughter to school. AR 54, 277. When she returned home, Plaintiff rested, did light housework or watered her plants. AR 54. Plaintiff enjoyed going out to eat and for walks. AR 280. In November 2014, Plaintiff reported that she was caring for a sick son, including taking him to the doctor, getting his medicine, cleaning and cooking for him. AR 291.

         B. Medical Reports

         Except for a few instances of unusual test results or acute minor illness, Plaintiff saw her primary care physician, Johnny Y. Fong, M.D., approximately monthly from February 1, 2013 through March 17, 2017.[3] AR 404-64, 488-504. Dr. Fong treated Plaintiff for allergic rhinitis, hypertension, arthritis and hyperlipidemia, and frequently instructed Plaintiff to lose weight.

         C. Medical Opinions

         1. Agency Physicians

         On August 7, 2014, agency physician A. Khong, M.D., found no material change in Plaintiff's physical condition since the earlier hearing decision. AR 78. The agency determined that Plaintiff was not disabled. AR 81. On reconsideration, agency physician A. Resnik, M.D., agreed. AR 88.

         2. Consultative Orthopedic Examination

         Orthopedist Dale H. Van Kirk, M.D., conducted a comprehensive orthopedic evaluation of Plaintiff on July 22, 2014. AR 388-92. Lumbar spine x-rays requested by Dr. Van Kirk revealed transitional vertebrae at the ...


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