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CLAYDON v. BARNHART

December 27, 2005.

MARSHA L. CLAYDON, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: LOUISA PORTER, Magistrate Judge

REPORT AND RECOMMENDATION DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. Introduction
Marsha L. Claydon ("Plaintiff") brought this action under 42 U.S.C. §§ 138(c)(3)*fn1 and 405 (g)*fn2 to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") in a claim for Supplemental Security Income ("SSI") benefits under Title XVI of the Social Security Act ("Act"). The Commissioner denied Plaintiff's claim for SSI after the Administrative Law Judge ("ALJ") determined that Plaintiff was not "disabled" as defined in the Act. Plaintiff contends that the Commissioner's decision should be reversed because: (1) the ALJ erred in determining that Plaintiff's past work as an office secretary, of less than three months duration, constituted past relevant work; (2) the ALJ failed to evaluate Plaintiff's ability to perform all of the duties of her former work as an office secretary; (3) the ALJ erred when he determined that Plaintiff possessed transferrable skills from her position as an office secretary because he failed to elicit specific testimony from the vocational expert; and (4) the ALJ improperly relied upon vocational expert testimony based on an incomplete hypothetical question. (Docket No. 8 at 4, 7, 11-12, 14.)

In reply, the Commissioner asserted that the ALJ's decision should be affirmed because: (1) substantial evidence supports the ALJ's finding that Plaintiff's work as an office secretary constituted past relevant work; (2) the ALJ properly determined that Plaintiff could return to her former work as generally performed; (3) Plaintiff possessed transferable skills and was able to perform other work; and (4) the vocational expert's testimony relied upon by the ALJ was sufficient.*fn3 (Docket No. 12 at 7-10.) After careful consideration of the pleadings, the administrative record and the law, the Court recommends that Plaintiff's motion for summary judgment be DENIED and that Defendant's cross-motion for summary judgment be GRANTED.

  II. Procedural History

  Plaintiff filed an application for SSI with the Social Security Administration on July 19, 2002. (Court Transcript at 204-05.) Her application was denied on August 9, 2002. (CT at 3, 206.) Plaintiff subsequently filed a Request for Reconsideration that was denied on October 24, 2002. (CT at 3, 207.) On December 27, 2002, Plaintiff requested an administrative hearing before an ALJ to consider her application a third time. (CT at 15.) An ALJ held a hearing on October 24, 2003. (CT at 15.) On November 26, 2003, the ALJ issued a written decision denying Plaintiff's application. (CT at 15-22.) On December 17, 2003, Plaintiff sought review by the Appeals Council. (CT at 11.) On January 26, 2005, the Appeals Council denied Plaintiff's request for review. (CT at 5.) The ALJ's decision then became the final decision of the Commissioner of Social Security. On March 30, 2005, after exhausting all administrative remedies, Plaintiff filed a civil complaint in this Court to obtain judicial review of the Commissioner's final decision. (Docket No. 1.) District Judge Roger T. Benitez referred the matter to Magistrate Judge Louisa S Porter for a Report and Recommendation. The Commissioner filed an answer on May 26, 2005. (Docket No. 4.) On July 26, 2005, Plaintiff filed a motion for summary judgment. (Docket No. 7.) On September 13, 2005, the Commissioner filed a cross motion for summary judgment. (Docket No. 11.)

  III. Factual Background

  A. Plaintiff's Background and Testimony

  Plaintiff was born on January 28, 1951. (CT at 16.) She finished high school and obtained a certified nurse assistance certificate. (CT at 16.) Plaintiff alleges disability as the result of a left knee injury that she suffered after a fall in her kitchen on December 12, 2001. (CT at 185.) She claims that the her injury renders her unable to stoop, kneel, or bend the left knee. (CT at 27.) Additionally, Plaintiff claims that she is unable to stand for long periods of time because of swelling and pain in her left knee. (CT at 27.)

  Plaintiff testified at the administrative hearing on October 24, 2003. (CT at 27.) She related the history of her injury and stated that she has not worked since her injury occurred. (CT at 29.) She was living with her fiancé at the time of the hearing. (CT at 31.)

  Plaintiff stated she could stand for no more than half an hour because her knee would start to swell up. (CT at 33.) She also stated that she could not sit for more than half an hour without having to elevate her leg because of the swelling. (CT at 33.) In addition to swelling, Plaintiff complained of discoloration, numbness, and tingling in her left knee. (CT at 34.) Plaintiff expressed that she was able to perform some chores, but that her fiancé did most of the work around the house. (CT at 35, 37.) Plaintiff also claimed that she could perform limited grocery shopping, but that she mostly relied upon her fiancé to buy her groceries. (CT at 37.) Plaintiff was uncertain how much weight she could lift, but stated that her purse was the heaviest thing that she carried and that it was very hard for her to lift a plastic gallon of milk. (CT at 38.) Additionally, she stated that she could not drive a car with a standard transmission. (CT at 36.) However, Plaintiff also discussed the medications that she was taking, including Vicodin, and said that they helped her condition and that she suffered no adverse reactions as a result of the medication. (CT at 30-31.)

  B. Medical Evidence Presented

  1. Palomar Hospital

  Plaintiff visited Palomar Hospital on December 12, 2001, the day that she injured her left knee. (CT at 133.) Plaintiff was able to walk, but reported significant pain to her left knee with ambulation. (CT at 133.) During examination, Plaintiff complained of some pain with flexion, but was able to fully flex her knee. (CT at 135.) An x-ray of the knee was done and was interpreted as negative, with no evidence of fracture, discoloration, or effusion. (CT at 135.) Plaintiff was prescribed the drug Vicodin, which provided excellent pain relief, and was placed in a knee immobilizer and given crutches. (CT at 135.)

  2. Kaiser Permanente Hospital

  Plaintiff began receiving treatment at a Kaiser facility on December 21, 2001. (CT at 171.) Plaintiff requested a letter from her treating physician, Rick Pantarotto, M.D., to summarize her left knee injury, subsequent evaluation, diagnosis, and prognosis. (CT at 176.) Dr. Pantarotto noted that since her injury, Plaintiff had "developed a painful inability to flex the knee along with a mottled appearance and decreased sensation to light touch along the knee and anterior distal thigh." (CT at 176.) The department of orthopedics diagnosed Plaintiff with arthrofibrosis and reflex sympathetic dystrophy. (CT at 176.)

  Plaintiff was sent to physical therapy, which proved unsuccessful. (CT at 176.) Subsequently, Plaintiff underwent a lumbosacral MRI which was "effectively negative," and a bone scan showed "only mild degenerative joint disease of the left knee." (CT at 176.) At that time, Plaintiff was using a crutch and was approved for light duty work. (CT at 176.) Further tests were not conducted because Plaintiff lost her Kaiser insurance. (CT at 176.) Dr. Pantarotto indicated that although a permanent disability might be the long-term prognosis, he was unable to comment on Plaintiff's present condition. (CT at 177.) Additionally, Plaintiff stated to Dr. Pantarotto that she had been looking for work, albeit unsuccessfully. (CT at 176.) 3. Paul C. Milling, M.D.

  Plaintiff visited Dr. Milling on April 30, 2003, for treatment of her left knee. (CT at 185.) Plaintiff complained of pain, swelling and a cold and clammy feeling in her knee. (CT at 185.) Plaintiff stated that her knee was totally stiff and that she could not move it. (CT at 184.) However, on May 28, 2003, Dr. Milling examined Plaintiff while Plaintiff was under anesthesia and was able to manipulate and fully flex Plaintiff's knee without any stress being applied to it. (CT at 184.) Dr. Milling noted that there was "no crackling of adhesions or any sign of resistance" when he flexed the knee. (CT at 184.)

  Dr. Milling also performed diagnostic arthroscopy on Plaintiff's left knee. (CT at 184.) The arthroscope revealed that the "patella, medial and lateral femoral condyle, medial and lateral tibial plateau, medial and lateral meniscus and anterior cruciate ligament were all normal." (CT at 184.) Additionally, there was no sign of synovitis or scar tissue. (CT at 184.) On June 23, 2003, after receiving a Social Security ...


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