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Ballestero v. Saul

United States District Court, E.D. California

July 1, 2019

DIANA CHRISTINE BALLESTERO, Petitioner,
v.
ANDREW SAUL, [1] Commissioner of Social Security, Respondent.

          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 Diana Christine Ballestero (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for disability insurance benefits pursuant to Title II 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. 13, 14 and 15. 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 9, 2012, Plaintiff filed an application for disability insurance benefits alleging disability beginning January 11, 2012. AR 1409. The Commissioner denied the application initially on January 28, 2013, and upon reconsideration on June 5, 2013. AR 1409. On August 2, 2013, Plaintiff filed a timely request for a hearing before an Administrative Law Judge. AR 1409.

         Administrative Law Judge Edward C. Graham presided over an administrative hearing on July 25, 2014. AR 24-39. Plaintiff appeared and was represented by an attorney. AR 24. Impartial vocational expert Jeanine Metildi (the “VE”) also testified. AR 24.

         On August 22, 2014, the ALJ denied Plaintiff's application. AR 1409-14. The Appeals Council denied review on September 9, 2015. AR 6-9.

         On November 30, 2015, Plaintiff filed a complaint in this Court. Ballestero v. Comm'r, Doc. 1 (E.D. Cal. Nov. 30, 2015) (No. 1:15-cv-01798-SKO). On February 22, 2017, the Court reversed the ALJ's denial of benefits and remanded the case for further proceedings to consider the opinions of the state agency physicians, Drs. Greene and Wilson. Id., Doc. 19 at 6; AR 1507-18.

         On April 27, 2017, the Appeals Council referred the case to an administrative law judge. AR 1521-22. Administrative Law Judge Robin Rosenbluth presided over the remand hearing on January 26, 2018. AR 1436-65. Plaintiff appeared and was represented by an attorney. AR 1436. Impartial vocational expert Dr. Heidi Paul (the “VE”) also testified. AR 1436.

         On April 6, 2018, ALJ Rosenbluth denied Plaintiff's application for benefits. AR 1418-29. On June 12, 2018, Plaintiff filed a complaint in this Court. Doc. 1.

         III. Factual Background [3]

         A. Plaintiff's Testimony

         At the time of the second hearing, Plaintiff (born February 24, 1957) continued to live with her husband. AR 1440. Except for assisting her daughter with after school childcare in 2015, she had not worked since the Bank of the Sierra discharged her for excessive absences in 2012. AR 1441, 1443. Although Plaintiff needed money, she did not “know if she was really looking for a job.” AR 1442. In 2015, Plaintiff ‘s daughter paid her approximately $2800.00 to be present in the daughter's home for approximately two hours from the time Plaintiff's three grandchildren (aged 7, 9 and 11) returned from school until their parents returned from work. AR 1443. Plaintiff stopped watching the children after about six months because the work was too difficult for her. AR 1446.

         Plaintiff testified that when she stands longer than one hour, she is in great pain and becomes “nauseous and sick to my stomach.” AR 1446. She feels dizzy and needs to sit down for 30 to 45 minutes. AR 1446-47. She has severe neck and back pain which has been worsening since Plaintiff was in her thirties. AR 1447. Although recent cervical spine surgery was intended to improve her condition, it caused Plaintiff to develop trigeminal neuralgia, which causes severe pain in Plaintiff's head and neck, and disturbs her balance. AR 1448. Plaintiff also suffered from pain in her hands which caused her to drop things. AR 1452. She needed surgery to replace her thumb joint. AR 1452

         Plaintiff tried a TENS unit, [4] ultrasound treatments, physical therapy and acupuncture, but none of those treatments helped her. AR 1449. She took Percocet which “help[ed] somewhat, ” but was not sufficient on her bad days. AR 1449. Epidural injections were effective but caused a bad reaction that led to having an auto accident. AR 1450.

         Plaintiff stopped using morphine for pain relief because it constipated her and caused emotional problems. AR 1454. Plaintiff tried group therapy but did not like to open up in front of other participants. AR 1454. Plaintiff's insurance did not cover individual therapy. AR 1456. She was taking Celexa and Xanax. AR 1454.

         On a typical day Plaintiff watched television, walked around her house and prepared lunch. AR 1451. She was able to take care of her personal needs. AR 1451. Plaintiff's daughter did the housework for Plaintiff. AR 1451.

         B. Medical Records

         Because this appeal raises no issues concerning the medical evidence, this factual background statement addresses subsequent medical records only briefly to provide an overview of Plaintiff's medical treatment following the earlier decision. Following the prior hearing decision (2015), Plaintiff continued to experience frequent urinary tract ...


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