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Erb v. Saul

United States District Court, E.D. California

December 5, 2019

SUSAN LAURA ERB, 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

          GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff 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.[2] 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 denied.

         II. Procedural Background

         On November 13, 2014, Plaintiff filed an application for disability insurance benefits alleging disability beginning June 28, 2011.[3] AR 17. The Commissioner denied the application initially on June 3, 2015 and on reconsideration on September 29, 2015. AR 17, 84-85.

         On 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.

         On 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.

         The Appeals Council denied review on August 6, 2018. AR 3-7. On October 10, 2018, Plaintiff filed a complaint in this Court. Doc. 1.

         III. Factual Background

         A. Plaintiff's Testimony

         1. Agency Hearing

         Plaintiff (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.

         Plaintiff 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.

         Plaintiff 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.

         After 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.[4] AR 46. Plaintiff took Xanax for panic attacks and depression. AR 50-51. Plaintiff also used cooling sunburn sprays. AR 46.

         Plaintiff's 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.

         Plaintiff 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. AR 50.

         2. Adult Function Report

         a. September 16, 2011

         Plaintiff's 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.

         Plaintiff 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.

         b. November 1, 2015

         Plaintiff 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.

         Plaintiff 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.

         B. Third-Party Evidence

         Plaintiff's 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 241, 318.

         C. Medical Records [5]

         On July 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.

         On May 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 393.

         On June 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 389.

         On July 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.

         On 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.

         On 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.

         Magnetic 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 406.

         In February and March 2014, Plaintiff was treated by Thomas B. Bryan, M.D.[6] 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.

         In 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.

         On May 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.

         On May 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.

         On July 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. AR 466.

         The 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.[7] Plaintiff consistently reported fibromyalgia and other body pain, and twice reported having visited a hospital emergency room for treatment of pain.

         Plaintiff continued treatment with Dr. Nebeker on September 17, 2015. AR 487-94. She complained of blurred vision; dry, ...


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