United States District Court, E.D. California
ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF
COMMISSIONER OF SOCIAL SECURITY AND AGAINST
AUSTIN UNITED STATES MAGISTRATE JUDGE
Tracie Danette Perez (“Plaintiff”) seeks judicial
review of a final decision of the Commissioner of Social
Security (“Commissioner” or
“Defendant”) denying in part and granting in part
her application for disability insurance benefits pursuant to
Title II and 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. See Docs. 17, 18
and 19. 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.
January 6, 2014, Plaintiff filed an application for
disability insurance benefits alleging disability beginning
March 31, 2011. AR 67. The Commissioner denied the
application initially on August 21, 2014, and upon
reconsideration on December 23, 2014. AR 7. On February 2,
2015, Plaintiff filed a request for a hearing before an
Administrative Law Judge. AR 67.
Law Judge Nancy M. Stewart presided over an administrative
hearing on October 13, 2016. AR 90-103. Plaintiff appeared
without an attorney. AR 92. Following a brief colloquy
concerning Plaintiff's right to an attorney and
questioning to ensure that the agency secured all of
Plaintiff's medical records, the ALJ adjourned the matter
to allow Plaintiff to retain counsel.
November 17, 2016, Plaintiff filed an application for
supplemental security income again alleging disability
beginning March 31, 2011. AR 67.
Law Judge Stewart presided over a second administrative
hearing on January 3, 2017. AR 104-34. Plaintiff appeared and
was represented by an attorney. AR 104. Impartial vocational
expert Judith Najarian testified. AR 104.
March 29, 2017, the ALJ granted Plaintiff's application
but determined that the onset date of disability was May 9,
2016. AR 67-81. As a result, Plaintiff was entitled to
supplemental security income beginning May 9, 2016, but was
not entitled to disability insurance benefits since she was
not disabled before her last insured date of March 31, 2014.
Appeals Council denied review on June 22, 2018. AR 1-4. On
August 1, 2018, Plaintiff filed a complaint in this Court.
(born May 10, 1966) completed high school. AR 107. She
managed a dry-cleaning shop for about eight years beginning
in about 2000. AR 114. In that job, Plaintiff trained and
supervised employees as well as performing various tasks such
as inventory, spotting, pressing, cleaning, cashiering,
tagging and bagging clothing. AR 114-15. She spent most of
the day on her feet and lifted items up to 50 or 60 pounds.
about 2009, Plaintiff's cervical spine was fused. AR 116.
She still experienced sensory loss and numbness in both arms.
AR 116-17. She unsuccessfully attempted to return to work in
another dry-cleaning shop for three months in 2010. AR 113.
had a long history of right knee impairment, beginning with
knee surgery following a motor vehicle accident in 1988. AR
108. Shortly thereafter, Plaintiff underwent two further
surgeries: first, to remove hardware that had been inserted
to stabilize the injured knee and second, to clear cartilage
from the knee joint. AR 108-09. In September 2016, Plaintiff
required surgery to replace her kneecap. AR 109.
Plaintiff used a walker or a cane, she continued to fall
about twice a month because she did not lift her feet while
walking. AR 109, 119. She could walk about 15 or 20 minutes
before she needed to rest for a half an hour. AR 119-20.
Plaintiff could sit about 20 to 30 minutes, but needed to
move in her seat during that time period to relieve
discomfort. AR 121.
experienced migraine headaches and vision problems. AR 118.
She had a loss of feeling in her feet and elevated her feet
twice daily. AR 121-22.
studies indicated that Plaintiff was experiencing spinal
degeneration. AR 120. Although her doctors recommended
surgery Plaintiff was reluctant to undergo the procedure,
which had poor results for her husband. AR 120.
pain questionnaire dated July 26, 2013, Plaintiff reported
chronic back and leg pain. AR 341. She was able to stand for
five to ten minutes, sit for one hour and walk about one-half
block. AR 344. If she lay flat, Plaintiff had no pain for two
to three hours. AR 344. Her medications included Norco,
Adult Function Report
reported that she was unable to walk because her legs felt
like “Jell-O” and she had no feeling in them. AR
385. She fell frequently. AR 385. When she sat too long,
Plaintiff experienced back and hip pain. AR 385. Plaintiff
was afraid of hurting herself in a fall. AR 388. Her
impairments affected lifting, bending, standing, walking,
sitting, kneeling, remembering, climbing stairs, completing
tasks and concentrating. AR 390.
tried to care for her daughters and grandchildren but
sometimes was unable to do so. AR 386. She had difficulty getting her
legs over the side of the bathtub and needed assistance to
put on her pants and shoes. AR 386. Her husband handled the
shopping, and her teen-aged daughter helped with cooking. AR
387, 388. Plaintiff could help prepare some foods, and folded
laundry while sitting. AR 387. She tried to clean house,
taking breaks as needed. AR 387.
Third-Party Adult Function Report
sister-in-law Cathy Vale reported that Plaintiff lacked
strength in her extremities, tired easily and had no energy.
AR 398. Plaintiff sometimes needed help dressing and bathing.
AR 399. She had memory problems. AR 400. Plaintiff fell
frequently and had difficulty getting up. AR 398.
could cook things that were quick and easy to prepare. AR
400. She experienced pain while housecleaning. AR 400.
Plaintiff's illness affected lifting, squatting, bending,
standing, reaching, walking, kneeling, climbing stairs,
memory, completing tasks, concentrating, understanding,
following instructions and sometimes using her hands. AR 403.
Ms. Vale strongly emphasized Plaintiff's inability to
handle stress. AR 404.
2010, magnetic resonance imaging of Plaintiff's head
revealed improving sinusitis and a single focus of ischemia
or demyelination in the left parietal lobe of Plaintiff's
brain. AR 688. Magnetic resonance imaging of Plaintiff's
lumbar spine revealed mild degenerative disk disease and a 5
mm. posterior disk protrusion at ¶ 4-5 with mild
impingement of the right L5 root at the right lateral recess.
August 2010, neurosurgeon Henry F. Aryan, M.D., conducted a
consultation examination of Plaintiff at Dr. Nagavalli's
request. AR 488-90. Plaintiff had experienced back problems
“for some years, ” receiving conservative care
including physical therapy and an epidural steroid injection.
AR 488. Her back problems were now becoming progressively
worse, and her leg problems were severe. AR 488.
Aryan's examination revealed diminished sensation in the
L5 distribution on Plaintiff's right side. AR 489. She
exhibited 4/5 weakness on right dorsiflexion and plantar
flexion, but 5/5 strength on left dorsiflexion and plantar
flexion and 5/5 strength for iliopsoas, quadriceps and
hamstrings. AR 489. Dr. Aryan observed no atrophy, swelling,
tenderness or lymphadenopathy. AR 489. The doctor diagnosed
degenerative disc disease, worse at ¶ 4-L5. AR 489.
There was slight spondylolisthesis of L5 on S1, facet
arthropathy at ¶ 4-L5 and L5-S1, and foraminal stenosis,
worse at ¶ 4-L5 on the right. AR 489. Dr. Aryan
recommended spinal fusion at ¶ 4-S1. AR 490.
Plaintiff saw Jacqueline De Castro, M.D., for medication
refills in December 2010, Plaintiff was having second
thoughts about back surgery. AR 664. Dr. De Castro found
Plaintiff to be in a good mood and doing well. AR 664. In
February 2012, Plaintiff returned to Dr. De Castro for
continuing treatment of her chronic back pain, peripheral
neuropathy and anemia. AR 681.
Family Healthcare Clinic in January 2012, Marcus Darius,
PA-C, treated Plaintiff for severe (9/10) back pain and
sciatica, prescribing Toradol and Phenergan. AR 718-20. Mr. Darius noted that
Plaintiff needed to see Paramvir Sidhu, M.D., for a Norco
evaluation. AR 720. Plaintiff saw Dr. Sidhu two days later
and explained that she had been seeing Dr. Nagavalli, who had
prescribed Norco. AR 715. Because of difficulty getting
appointments with Dr. Nagavalli, Plaintiff had gone to the
Family Healthcare Clinic after moving heavy furniture which
injured her back. AR 715. Dr. Sidhu prescribed
and told Plaintiff that he would not continue treatment until
he had received and reviewed records of Plaintiff's
treatment by Dr. Nagavalli. AR 717.
2012, Plaintiff saw Dr. De Castro for treatment of anxiety
and depression. AR 662. Plaintiff was feeling overwhelmed
after she was assaulted by her mentally ill teen-aged
daughter. AR 662. Following a discussion with Plaintiff
concerning possible drug interactions and side effects, Dr.
De Castro prescribed Alprazolam. AR 662-63.
resonance imagery of Plaintiff's lumbar spine in July
2012 showed mild degenerative disk disease. AR 692. The
posterior disk protrusion at ¶ 4-L5 had
“increased” to 3 mm. but no impingement of the
nerve roots was observed. AR 692.
January 8, 2013, Ken Zelsdorf, F.N.P., treated Plaintiff for
lumbar strain in the urgent care clinic of Adventist Health.
AR 641. Plaintiff had injured her back three days earlier
while lifting, turning and bending, and was now experiencing
moderate pain. AR 641. Mr. Zelsdorf prescribed Norco and
January 11, 2013, Plaintiff saw Dr. De Castro for a follow up
appointment to address her lumbar strain. AR 677. Plaintiff
reminded the doctor that Dr. Aryan had recommended back
surgery about four years earlier. AR 677. Plaintiff had
deferred surgery, and subsequent prescriptions of Norco and a
muscle relaxer had helped her. AR 677. Plaintiff told Dr. De
Castro that she had made an appointment to see Dr. Aryan in
about ten days. AR 677. The doctor observed tenderness and
tightness of the left paravertebral muscles at the
lumbosacral level. AR 677. Plaintiff was limping and favoring
her right side. AR 677. After discussing with Plaintiff the
difference between her previous back condition and muscle
strain, Dr. De Castro prescribed Norco and
677-78. The doctor recommended warm and cold packs, moist
heat, home back strengthening exercises and weight loss. AR
January 18, 2013, the Emergency Department of Adventist
Medical Center-Hanford treated Plaintiff for severe flank and
back pain. AR 613. Examination and imaging identified no
acute illness or lumbar spine injury. AR 619, 621, 623.
returned to see Dr. De Castro on January 25, 2013 and
complained of back pain so severe that she had gone to the
emergency room. AR 679. Plaintiff had been taking four doses
of Norco daily and needed another prescription. AR 679.
Flexeril had not helped at all so Plaintiff requested Soma,
which had been effective in the past. AR 679. Because Valium
was making Plaintiff very sleepy, Dr. De Castro substituted a
prescription for Alprazolam. AR 679. Dr. De Castro observed
that Plaintiff was still limping and the paravertebral
muscles in Plaintiff's lumbosacral area remained tender
and tight. AR 679.
March 28, 2013, Plaintiff's daughter attempted suicide.
AR 685. Because Plaintiff had to reschedule her appointment
with Dr. Aryan, she saw Dr. De Castro on April 11, 2013,
complaining of stress and seeking refills of Alprazolam and
Soma. AR 685. Dr. De Castro added a prescription for
April 2013, magnetic resonance imagery of Plaintiff's
head showed mild bilateral sinusitis. AR 695. A small cystic
lesion in the anterior portion of the right temporal lobe was
unchanged since April 2009. AR 695. In addition, the
radiologist observed an interval increase of foci with
increased FLAIR signal, which possibly indicated small vessel
ischemic disease or migraine headaches. AR 695.
of Plaintiff's left hip in August 2013 were normal except
for some narrowing of the joint space, a nonspecific
indication of mild arthritic changes. AR 697. Magnetic
resonance imaging of Plaintiff's lumbar spine revealed
hyperlordosis; mild degenerative disk disease; a posterior
disk bulge and left posterolateral fissure of the annulus
fibrosus at L1-L2; a mild posterior disc bulge and posterior
central fissure of the annulus fibrosus at L2-L3; and, a 3
mm. disk protrusion and fissure of annulus fibrosus at L4-L5.
September 2013, Plaintiff was treated for severe knee pain
and a puncture wound at the Emergency Department of Adventist
Medical Center-Hanford. AR 605. X-rays revealed a 2 cm.
metallic wire lodged in soft tissues adjacent to
Plaintiff's knee cap. AR 608.
September 2013, Plaintiff saw Katelyn Schuck, PA-C, in the
Family Health Clinic, seeking help for anxiety. AR 712-13.
Plaintiff, who appeared anxious and teary, explained that she
had separated from her husband because of disagreements
arising from differences in parenting their bipolar daughter.
AR 712. Ms. Schuck prescribed Hydroxyzinea ...