United States District Court, E.D. California
ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF
COMMISSIONER OF SOCIAL SECURITY AND AGAINST
S. AUSTIN UNITED STATES MAGISTRATE JUDGE
Susan Laura Erb (“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. See Docs. 13, 17 and 18. 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
November 13, 2014, Plaintiff filed an application for
disability insurance benefits alleging disability beginning
June 28, 2011. AR 17. The Commissioner denied the
application initially on June 3, 2015 and on reconsideration
on September 29, 2015. AR 17, 84-85.
October 13, 2015, the Commissioner issued a targeted denial
review, finding insufficient evidence to accurately assess
Plaintiff's mental impairment(s). AR 304-08. The state
agency was also directed to resolve several inconsistencies
concerning Plaintiff's medical treatment and work
history. AR 304-08. Following the second reconsideration, the
Commissioner again denied the application on December 11,
2015. AR 104-05. Plaintiff's last insured date was
December 31, 2015. AR 19.
January 14, 2016, Plaintiff filed a request for a hearing
before an Administrative Law Judge. AR 17. Administrative Law
Judge Sharon L. Madsen presided over an administrative
hearing on September 5, 2017. AR 34-55. Plaintiff appeared
and was represented by an attorney. AR 34. On April 25, 2018,
the ALJ denied Plaintiff's application. AR 17-26.
Appeals Council denied review on August 6, 2018. AR 3-7. On
October 10, 2018, Plaintiff filed a complaint in this Court.
(born April 29, 1956) lived with her husband, who supported
them both. AR 39-40. Plaintiff was able to drive during the
day. AR 40. She had completed high school and some college
courses. AR 40.
was able to perform her own personal care. AR 40. She did
household chores such as laundry and dishwashing. AR 40. She
shopped for groceries with her husband. AR 41. Because her
husband worked long hours her cooking consisted of making
sandwiches. AR 41. On her good days Plaintiff got up, drank
coffee, watered her flowers and walked to the mailbox. AR 41.
On bad days, Plaintiff's pain was severe and she stayed
in bed. AR 41. In a typical week Plaintiff had four good days
and three bad days. AR 42.
last worked as a real estate sales person. AR 42. She had
also previously worked as the office administrator for the
Interventional Pain Center, and as a medical assistant. AR
42. In 2011, Plaintiff took a second job at Walmart
attempting to earn enough money to save the family's home
from foreclosure. AR 43. After about ten months, Plaintiff
had a stroke and was not allowed to return to Walmart. AR 43.
suffering two strokes Plaintiff had peripheral neuropathy in
her hands and feet, which caused constant tingling and
burning and occasional numbness. AR 44. She had fibromyalgia
“all over.” AR 45. Four or five times daily,
Plaintiff experienced fibromyalgia flares that caused
uncontrollable burning and stabbing pain. AR 46. Her doctor
prescribed Norco, which provided little relief. AR 46. Plaintiff
took Xanax for panic attacks and depression. AR 50-51.
Plaintiff also used cooling sunburn sprays. AR 46.
vision was only good in a dark room; otherwise, she required
glasses. AR 47. She needed a knee replacement but “the
surgeon d[id] not want to do it.” AR 47. Plaintiff also
had right ankle pain and had recently broken a foot bone for
no apparent reason. AR 47. She had suffered daily migraine
headaches since she had a hysterectomy when she was 24 years
old. AR 47-48. Plaintiff had irritable bowel syndrome and
vaginal pain. AR 48. She had constant ringing in her ears
that sometimes triggered severe jaw and neck pain. AR 49.
could lift five pounds, stand for about ten minutes, walk
about one-half block and sit for about ten minutes. AR 50.
She was unable to bend over or squat to pick a dropped object
up from the floor. AR 50. She climbed stairs with difficulty.
Adult Function Report
September 16, 2011
adult function report was generally consistent with her
testimony. Her responses clarified that Plaintiff took the
pain medication to relieve her ear pain and needed to nap
after her flare-ups. AR 248. Her ear pain sometimes awakened
her. AR 249. Her impairments affected her ability to lift,
squat, bend, stand, reach, walk, kneel, talk, hear, climb
stairs, see, remember, complete tasks, concentrate and get
along with others. AR 245.
could make sandwiches or microwavable meals. AR 250. If she
was dizzy or nauseous, however, she did not eat. AR 250. Her
household chores included sweeping, laundry, dusting, and
watering outside plants. AR 250. Plaintiff was able to drive
and go out alone. AR 251. She shopped for groceries and
medicine. AR 251. Plaintiff was afraid of leaving the house
in case she would have a flare-up while she was out. AR 254.
November 1, 2015
reported all-over body pain that rendered her unable to sit,
stand or concentrate. AR 309. She spent most days on the
couch watching television. AR 310. On days when her pain was
somewhat controlled, she washed clothes, watered flowers and
tried to clean. AR 310. She continued to prepare only simple
meals. AR 311. Plaintiff had sold her horse because she could
no longer care for it. AR 313.
now drove only during daylight hours. AR 312. Depending on
her pain, her husband sometimes accompanied her shopping. AR
312. Her impairments now affected her ability to lift, squat,
bend, stand, reach, walk, sit, kneel, talk, hear, climb
stairs, see, remember, complete tasks, concentrate,
understand, follow instructions, use her hands and get along
with others. AR 314. About six months earlier, she had begun
to experience panic attacks. AR 315.
husband, Samuel Erb, submitted Third-Party Adult Function
Reports on July 18, 2011 and again on November 1, 2015. AR
240-47, 318-25. Mr. Erb's responses were generally the
same as those of his wife. On both forms, Mr. Erb opined that
Plaintiff was no longer able to work outside their home. AR
Medical Records 
4, 2009, Plaintiff was treated for headache and possible
cerebrovascular accident in the emergency room of Mercy
Medical Center. AR 394. Magnetic resonance imaging revealed
“subtle changes in the left posterosuperior cerebral
hemisphere, suggestive of an acute or subacute infarct,
” but no hemorrhage or other abnormality. AR 394.
10, 2011, Plaintiff saw Donald Carter, M.D., an ear, nose and
throat specialist, reporting five months of ear pain. AR 393.
Dr. Carter cleaned Plaintiff's left ear and recommended a
low salt diet with no caffeine, and cessation of smoking. AR
13, 2011, Plaintiff reported ear fullness and dizziness even
though she had begun a low salt diet and stopped consuming
caffeine. AR 389. Suspecting Meniere's Disease, Dr.
Carter sent Plaintiff for magnetic resonance imaging to rule
out other possible causes of hearing and balance problems. AR
5, 2011, Dr. Carter treated Plaintiff following an episode of
vertigo. AR 384. Dr. Carter's examination revealed that
Plaintiff's ears, nose and throat were normal except for
slightly enlarged tonsils. AR 384. Her temporomandibular
joint “seem[ed] OK.” AR 384. Hearing was fairly
stable bilaterally. AR 384.
September 21, 2011, Joann Garcia, FNPC, examined Plaintiff,
who was experiencing right ankle pain described as constant,
severe, sharp, dull, throbbing, aching and hurting. AR 396.
Plaintiff previously had right tarsal tunnel surgery in July
2010 with post-operative wound complications. AR 396.
Plaintiff stated that her current pain was different in that
her ankle sometimes became warm and she could not tolerate
closed shoes or contact. AR 396. Following discussion of
treatment options with Plaintiff, Ms. Garcia prescribed
Lyrica and physical therapy. AR 399.
November 26, 2013, Plaintiff saw otolaryngologist Mark S.
Spitzer, D.O., for left ear pain, previously diagnosed as
Meniere's disease. AR 413. Plaintiff reported
intermittent pressure, ringing, dizziness and nausea lasting
hours to days. AR 413.
resonance imaging on January 2, 2014, revealed (1)
encephalomalacia left parieto-occipital lobes as noted in
previous studies; (2) abnormalities of the frontal, ethmoid,
sphenoid and maxillary sinuses; and, (3) no IAC neoplasm or
acoustic neuroma. AR 407. Dr. Spitz diagnosed chronic
maxillary sinusitis (473.0); chronic ethmoidal sinusitis
(473.2); other upper respiratory tract disease (478),
vertiginous syndrome and labyrinthine disorder (386.9) and
possible eustachian tube disorder (381.8). AR 406. The doctor
opined that Plaintiff would benefit from sinus surgery. AR
February and March 2014, Plaintiff was treated by Thomas B.
Bryan, M.D. AR 417-18. Dr. Bryan's records include
notes only for the March 2014 examination, which are not
fully legible, but indicated that Plaintiff reported
“hurting all over” with tender target areas,
especially on the right. AR 418. The doctor noted that
Plaintiff had been tested for lupus and rheumatoid arthritis.
AR 416. Dr Bryan ordered lab tests for sedimentation rate
(ESR) and C-reactive protein, both of which subsequently
tested in the normal range. AR 416, 418.
March 2015, optometrist Neil R. Nedeker, O.D., F.A.A.O.,
examined Plaintiff's vision as a new patient. AR 427-29.
Plaintiff reported a decline in vision without glasses,
particularly in reading and distance vision. AR 427. Visual
examination indicated a healthy macula but OPTOS Retinal
Imaging indicated a macular defect. AR 428. Dr. Nedeker
diagnosed age-related macular degeneration, hyperopia,
astigmatism and presbyopia. AR 428. He directed Plaintiff to
take AREDS II eye vitamins, consume leafy green vegetables,
wear sunwear/UV protection and regular professional vision
monitoring. AR 428. She was to return in one year. AR 428.
7, 2015, Plaintiff scheduled an emergency appointment with
Dr. Nedeker, reporting vision loss and blurring occurring two
to three times weekly for one-half to three or four hours. AR
441. Noting transient obscurations and vascular
insufficiency, Dr. Nedeker referred Plaintiff to a
cardiologist. AR 442.
12, 2015, Plaintiff had multiple tests including an
echocardiogram. AR 467-71. A carotid ultrasound examination
was negative. AR 467. A CT scan of Plaintiff's brain was
negative except for a small area of low density within the
pituitary gland, possibly a small pituitary cyst or small
microadenoma. AR 468.
6, 2015, Mark A. Wagner, D.O., reported a normal stress test.
AR 464. On the same day, Plaintiff's primary care
physician Satnam S. Uppal, M.D., reported a normal
electrocardiogram with no evidence of ischemic heart disease.
record includes notes from twelve of Plaintiff's
appointments with Dr. Uppal, all but one of which (January
2015) are undated. AR 452-63. Plaintiff's diagnoses
included fibromyalgia, GERD, rash and high blood
pressure. Plaintiff consistently reported
fibromyalgia and other body pain, and twice reported having
visited a hospital emergency room for treatment of pain.
continued treatment with Dr. Nebeker on September 17, 2015.
AR 487-94. She complained of blurred vision; dry, ...