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Thompson v. Saul

United States District Court, E.D. California

July 23, 2019

ANDREW M. SAUL, [1] Commissioner of Social Security, Defendant.




         Plaintiff Tracy D. Thompson (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her applications for disability insurance benefits under Title II of the Social Security Act and supplemental security income under 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 Magistrate Judge Barbara A. McAuliffe.[2]

         Having considered the briefing and record in this matter, 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.


         Plaintiff filed applications for supplemental security income and disability insurance benefits on November 7, 2013. AR 194-98, 202-07.[3] Plaintiff alleged that she became disabled on July 29, 2011, due to post-laminectomy, sciatica, major depressive disorder, back pain, herniation, and hypothyroidism. AR 132, 221, 225. Plaintiff's applications were denied initially and on reconsideration. AR 132-36, 140-44. Subsequently, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). ALJ Judith A. Kopec held a hearing on June 10, 2016, and issued an order denying benefits on September 6, 2016. AR 18-31, 37-76. Plaintiff sought review of the ALJ's decision, which the Appeals Council denied, making the ALJ's decision the Commissioner's final decision. AR 1-6. This appeal followed.

         Hearing Testimony

          The ALJ held a hearing on June 10, 2016, in Stockton, California. Plaintiff appeared with her attorney, Nicole Franco. Impartial Vocational Expert (“VE”) Mary Jesko also appeared. AR 39-40.

         In response to questioning by the ALJ, Plaintiff testified that she lives with her husband and stepson. She drives half of the time, when she is alone, because her husband thinks her perception is not good. She drove to the hearing. AR 43-44. She attended some years of college after high school, and she is comfortable reading and writing English for her daily activities. She had vocational training in medical coding. AR 44-45.

         When asked about her work history, Plaintiff confirmed that she had two major types of jobs- one as a medical coder and one in car sales. AR 45-46. Her work at the car dealerships was primarily the same. She last worked on July 29, 2011, when she was laid off after her surgery. When she returned to work, she was given less to do and then laid off. She could not say that her lay off was connected to her medical conditions. AR 47. Prior to being laid off, and after surgery, she was no longer able to do filing and carrying. After she was laid off, she spent two years searching for work. AR 48. She was never offered any positions. AR 49.

         When asked about her pain, Plaintiff testified that she was currently in pain, with pressure in her tailbone down to her leg. The pain periodically goes down both legs. Plaintiff reported that she had fibromyalgia, which was discovered because she had aching pain in her leg and thigh. An orthopedic surgeon diagnosed her within the year prior to the hearing. AR 49-51. She rated her current pain as a seven out of ten. On good days, her pain is a four and on bad days an eight. In an average month, she probably has eight to ten bad days. Plaintiff reported that she improved after her first back surgery, but then began having bad pain again after a year, when another bulge was discovered. She had surgery and it improved, but she was starting to hurt again. She takes stronger narcotic medication now. AR 52-54.

         In response to questions from her attorney, Plaintiff testified that she sleeps a lot. She has sleep apnea and uses a CPAP machine, which helps. She sleeps during the day, taking two to four-hour naps. She does not do any household chores, such as cooking, cleaning or laundry. Her medications make her sleepy, she also has headaches, a little vision disturbance and forgetfulness. She has headaches at least once a week. They will usually last until the next day or sometimes will be three days in a row. On a bad day, she will wake up, try to eat and then go back to bed. Her pain comes and goes, but depends on how much she does, like going to the grocery store, to dinner, or to church. AR 54-56.

         When asked about her surgeries, Plaintiff reported that she had some relief from her symptoms after the surgeries, but she started hurting again. She returned to the surgeons at Stanford, but they told her that unless she could not walk, then she was to see her regular physician. AR 56.

         When asked about her fibromyalgia, Plaintiff reported that she has not tried any specific treatments for it. She takes Wellbutrin. She also reported that she is being treated for depression and anxiety. When asked how those conditions affected her ability to return to the workforce, Plaintiff testified that she is forgetful and feels like people are talking about her because of her conditions. She feels ashamed. She has difficulty concentrating. She could probably do an activity for 10 to 15 minutes before being distracted. Plaintiff also reported that she avoids people because she feels unattractive and embarrassed of her condition, even with her neighbors who have seen her go out in an ambulance. She no longer has friends that she does activities with. AR 57-58.

         Plaintiff also testified that she has a condition under her foot, which makes it painful to walk. She can walk about fifteen minutes at one time before she has to stop due to pain or fatigue. She can stand for about 15 minutes before she gets pain in her back. Her most comfortable position is in a rocker or in her bed. Between 9:00 a.m. and 6:00 p.m., she spends about six hours either reclined or in bed. AR 58-59.

         When asked about her weight, Plaintiff testified that her weight of about 230 has made it worse in terms of her symptoms and getting around. If she's heavier, it hurts her back more when she stands. However, even if she lost all her weight, she would still have sleep apnea. AR 59-60.

         When asked about her day, Plaintiff testified that she watches a lot of TV. She watches the news, but dozes off while watching. She does not read because she cannot focus. She dropped out of Bible study because she could not remember what she was reading. She no longer receives any ongoing mental health treatment like counseling. Her doctor continues to prescribe her medication. She still has some anxiety. AR 60-63.

         Following Plaintiff's testimony, the ALJ elicited testimony from VE Mary Jesko. The VE reported that she did not have any changes to the case analysis that she submitted as an exhibit. She confirmed that in her case analysis, transferable skills for medical coder included clerical, billing, and invoices. The reasoning, math and language level were listed as 3. Under care sales, the VE listed ...

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