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Sparing v. Social Security Administration

United States District Court, D. Nevada

May 5, 2014



GEORGE FOLEY, Jr., Magistrate Judge.

This case involves judicial review of administrative action by the Commissioner of Social Security denying Plaintiff Theresa M. Sparing's ("Plaintiff") claim for disability benefits under Title II of the Social Security Act ("SSA"). The Court granted Plaintiff's Application to Proceed in Forma Pauperis (#1) on September 10, 2012. See Doc. #2. Plaintiff's Complaint (#3) was filed September 10, 2012. Defendant's Answer (#10) was filed on March 11, 2013, as was a Notice of Manual Filing of the Administrative Record (the "A.R.") on March 12, 2013. See Notice #11. This matter has been submitted to the undersigned United States Magistrate Judge for Findings and Recommendations on Plaintiff's Motion for Remand (#18), filed on July 1, 2013; Defendant's Opposition to Plaintiff's Motion to Remand (#19), filed on July 30, 2013; and Plaintiff's Reply (#25), filed on November 7, 2013.


Plaintiff seeks judicial review of Administrative Law Judge Thomas J. Gaye's ("ALJ") decision dated July 23, 2010. (A.R. 16-30). At issue is whether the ALJ provided sufficient support at step three for his finding that Plaintiff did not meet a listing and whether the ALJ improperly rejected the opinion of a treating physician when determining the Plaintiff's RFC at step four of his analysis.

A. Procedural History

On July 28, 2008, Plaintiff protectively filed a Title II and Title XVI application for disability insurance benefits and supplemental security income. (A.R. 19). In both applications, the Plaintiff alleged disability beginning August 1, 2007. Id. These claims were denied initially on January 14, 2009, and upon reconsideration on June 2, 2009. Id. Thereafter, the claimant filed a written request for hearing on June 4, 2009. The Plaintiff appeared and testified at a hearing held on July 13, 2010, in Las Vegas, Nevada, with her non-attorney representative, Noel S. Anschutz. Id. Jack Dymond, an impartial vocational expert, also appeared at the hearing. Id. In a decision dated July 23, 2010, ALJ Thomas J. Gaye found Plaintiff was not disabled within the meaning of the SSA. Id. Plaintiff timely filed a Request for Review, which was denied by the Appeals Council on July 6, 2012. (A.R. 1). When the Appeals Council declined to review the ALJ's decision, the decision became final. Id. Plaintiff then filed this action for judicial review pursuant to 42 U.S.C. 405(g), 1383(c)(3). This matter has been referred to the undersigned for a report of findings and recommendations under 28 U.S.C. ยงยง 636 (b)(1)(B) and (C).

B. Factual History

Plaintiff was 39 years old at the time of the hearing before the ALJ on July 13, 2010. A.R. 37. She is a high school graduate and attended 1-2 semesters of junior college. A.R. 284. In 2005, Plaintiff completed a nine month program in massage, but did not obtain the required license to practice due to her sickness. A.R. 285 and 38. Plaintiff's past work included working as a custodian, customer service, mail pick up servicer, order processor, sales receptionist, and telemarketer. A.R. 156. Plaintiff last worked as a kennel technician in a veterinarian's office for nine months. A.R. 283.

Plaintiff currently resides with her parents in Boulder City, Nevada. A.R. 282. In her neuropsychology exam with Dr. Towle, Plaintiff indicated that she watches television an average of three hours a day and is on the computer an average of eight hours a day. A.R. 287. Regarding household chores, Plaintiff indicated that she changes her bed linens bi-weekly, and mops, dusts, sweeps, and vacuums once a month. Id. Plaintiff also does her own laundry once a week, cleans the bathroom, and washes the dishes by hand. Id. Plaintiff averaged doing household chores thirty minutes a day. Id. Plaintiff also indicated that her regular exercise consists of walking the dog. A.R. 287. She estimated that on a good day she can walk for half an hour, but on average she can only walk approximately 10 to 15 minutes. A.R. 49.

Plaintiff alleges disability beginning August 1, 2007 based on a combination of impairments including multiple sclerosis and obesity. She is 5'4" and weighs 250 pounds. A.R. 39. The medical records in the administrative record reveal the following:

On June 9, 2008, Plaintiff was examined for headaches and loss of vision by Dr. Neubaum in the emergency room at Montrose Memorial Hospital. A.R. 221 and 239. Dr. Neubaum had an MRI/Brain Scan performed on Plaintiff which indicated multiple hyperintense T2 lesions within the subcortical and deep white matter. Id. Dr. Neubaum determined the findings were most consistent with a demyelinating process, such as multiple sclerosis. Id. Dr. Neubaum recommended correlation with a lumbar puncture. Id. In a Medical Source Statement dated September 16, 2008, Dr. Neubaum indicated that Plaintiff had no impairment-related physical limitations, but qualified his finding by stating that he had not seen the patient since June 2008 and that her condition may have changed. A.R. 241-242.

On June 10, 2008, Dr. Hehmann, a board certified neurologist, examined Plaintiff and found that she had mild to moderate optic nerve edema on the left optic disk. A.R. 239. Dr. Hehmann diagnosed Plaintiff with optic neuritis for which he prescribed Solu Medrol followed by an oral prednisone. A.R. 239-240. Dr. Hehmann stated that Plaintiff would fall into a category of possible MS with optic neuritis. A.R. 240. Dr. Hehmann recommended a spinal tap to look for oligoclonal bands. Id. Dr. Hehmann indicated the need for a neurologic follow-up and referred Plaintiff to the University of Nevada School of Medicine ("UMC") where she met with Dr. Ginsburg on July 16, 2008. A.R. 231.

In his initial consult, Dr. Ginsburg examined Plaintiff for optic neuritis. A.R. 231. Dr. Ginsburg's impression was that Plaintiff's left optic neuritis improved following a course of steroids. A.R. 233. Dr. Ginsburg noted that Plaintiff's cognitive function was normal, her motor strength was 5/5 in all muscle groups with normal tone and bulk and no presence of tremors or fasciculations. A.R. 232. Plaintiff's sensory examination was intact, her gait was normal and her cerebral finger to nose and rapid alternating movements were normal. A.R. 233. Dr. Ginsburg indicated that Plaintiff's brain MRI revealed findings suggestive of demyelinating disease and noted the finding may be compatible with Plaintiff's reported transient symptoms. A.R. 233. Dr. Ginsburg recommended an MRI of the cervical spine, a lumbar puncture, brainstem evoked potentials of the bilateral median and posttibial nerves, and a neuroophthalmology evaluation. Id. Plaintiff was to return on completion of these studies. Id. There is no evidence, however, Plaintiff was seen in Dr. Ginsburg's office for a follow-up examination. A.R. 306 at entry 3/24/09.

On August 13, 2008, Plaintiff entered a clinical trial for MS. She started on a study medication dimethly furnarate or a placebo on September 2, 2008. A.R. 319. Plaintiff states that Dr. Glyman, an associate of Dr. Ginsburg's, recommended the clinical research trial to her when diagnosed with MS in July 2008. A.R. 40. Plaintiff ceased participation in the trial when it ended in December of 2009. A.R. 41. Plaintiff testified that the clinical trials helped with her MS symptoms "a little bit." A.R. 41.

On December 11, 2008, Simon J. Farrow, a neurologist, examined Plaintiff at the request of the Social Security Administration. A.R. 253. Dr. Farrow noted that Plaintiff's general appearance was unremarkable. Her arms and legs were normal on inspection. Her affect appeared normal and her visual fields were full to confrontation. A.R. 254. Dr. Farrow noted that Plaintiff's motor patterns, strength, dexterity, repetitive movements, tone, somatic sensation, deep tendon reflexes, plantar responses, gait and station appeared unremarkable. Id. In particular, Plaintiff had no difficulty with finger to thumb, finger to nose, other fine hand movements, rapid repetitive movements, rapid alternating movements, walking, walking on her toes, balancing on each leg, or bending and squatting. Id. Dr. Farrow stated that Plaintiff's history and available medical information was strongly consistent with the diagnosis of multiple sclerosis. Id. Her major reported problems at that time were easy fatigue and some difficulty thinking, which Dr. Farrow stated he had no reason to disbelieve. Id.

On February 25, 2009, Dr. Gupta conducted a nephrology consultation of Plaintiff for proteinuria. A.R. 319 and 321. Dr. Gupta noted that Plaintiff was sitting comfortably in no obvious distress. Her extraocular movements were intact, her neck was supple, her cardiovascular S1 and S2 systems were normal, and there was no edema in her extremities. A.R. 322. Dr. Gupta states that Plaintiff had a degree of proteinuria, but he did not suspect it was nephrotic range proteinuria and could be monitored over time. Id. Dr. Gupta also found that Plaintiff's multiple sclerosis was currently under good control. A.R. 323.

On February 25, 2009, Dr. Glyman completed a Multiple Sclerosis Residual Functional Capacity Questionnaire on behalf of Plaintiff. A.R. 275. Dr. Glyman referenced the initial consult of Plaintiff with Dr. Ginsburg on July 16, 2008. Dr. Glyman stated that Plaintiff was not a malingerer and she suffered exacerbations of multiple sclerosis on December 28, 2008 and June 01, 2008. A.R. 275-76. He also indicated that Plaintiff had "significant reproducible fatigue of motor function with substantial muscle weakness on repetitive activity, demonstrated on physical examination, resulting from neurological dysfunction in areas of the central nervous system known to be pathologically involved by the multiple sclerosis process." A.R. 276. Dr. ...

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