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Perez v. Saul

United States District Court, E.D. California

November 21, 2019

TRACIE DANETTE 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

          ARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff 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.[2] 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.

         II. Procedural Background

         On 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.

         Administrative 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.

         On November 17, 2016, Plaintiff filed an application for supplemental security income again alleging disability beginning March 31, 2011. AR 67.

         Administrative 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.

         On 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. AR 81.

         The Appeals Council denied review on June 22, 2018. AR 1-4. On August 1, 2018, Plaintiff filed a complaint in this Court. Doc. 1.

         III. Factual Background

         A. Plaintiff's Testimony

         1. Agency Hearing

         Plaintiff (born May 10, 1966) completed high school. AR 107. She managed a dry-cleaning shop for about eight years beginning in about 2000.[3] 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. AR 115.

         In 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.

         Plaintiff 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.

         Although 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.

         Plaintiff 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.

         Imaging 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.

         2. Pain Questionnaire

         In a 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, [4] Gabapentin[5] and Mirapex.[6] AR 341.

         3. Adult Function Report

         Plaintiff 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.

         Plaintiff tried to care for her daughters and grandchildren but sometimes was unable to do so.[7] 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.

         4. Third-Party Adult Function Report

         Plaintiff's 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.

         Plaintiff 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.

         B. Medical Records

         In May 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. AR 690.

         In 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.

         Dr. 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.

         When 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.

         At the Family Healthcare Clinic in January 2012, Marcus Darius, PA-C, treated Plaintiff for severe (9/10) back pain and sciatica, prescribing Toradol[8] and Phenergan.[9] 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 Vicodin[10] 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.

         In June 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.[11] AR 662-63.

         Magnetic 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.

         On 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 Soma.[12] AR 642.

         On 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 Valium.[13] AR 677-78. The doctor recommended warm and cold packs, moist heat, home back strengthening exercises and weight loss. AR 677.

         On 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.

         Plaintiff 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.

         On 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 Viibryd.[14] AR 685-86.

         In 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.

         X-rays 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. AR 698-99.

         In 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.

         Also in 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 Hydroxyzine[15]a ...


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