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Carreon v. Astrue

September 11, 2008

ELVIA CARREON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Elvia Carreon ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for disability insurance benefits and supplemental security income pursuant to Titles II and 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 Dennis L. Beck, United States Magistrate Judge.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed her initial application in April 2001, alleging disability since 1994 due to severe back pain. AR 91-94, 100-109, 282. Her application was denied at the administrative level and Plaintiff brought an action in this Court. On September 24, 2004, pursuant to the parties' stipulation, the Court remanded the action for additional proceedings. AR 317-318, 322-325.

Pursuant to the remand order, Administrative Law Judge ("ALJ") Bert Hoffman held a hearing on October 25, 2005. AR 710-745. ALJ Hoffman denied benefits on December 14, 2005.*fn3 AR 275-289. On November 5, 2007, the Appeals Council denied review. AR 269-271.

Hearing Testimony

March 25, 2003 Hearing ALJ Hoffman held a hearing on March 25, 2003, in Fresno, California. Plaintiff appeared with her attorney, Robert Christenson. AR 45.

Plaintiff testified that she was born in 1969 and completed the third grade in Mexico. She cannot read, write or communicate in English. AR 48-49.

Plaintiff performed farm labor jobs for the past 15 years and last worked in September 2000. AR 51. She has two disabled children and gets paid $84 every two weeks to take care of her 14 year old boy. Plaintiff explained that he's "like a baby" and needs everything done for him because "his brain didn't develop." AR 53-55. He goes to school every day from 8:30 am to 2:00 pm, although he sometimes misses school because he doesn't feel well or has seizures. AR 56. Plaintiff dresses him and spoon feeds him. Plaintiff also changes his diapers when she is alone, although her husband helps when he is home. AR 56-57. Her other child is 15 years old and takes medication that calms him down so he can go to school. AR 55.

Plaintiff also has two younger daughters, ages 11 and 12. They are not disabled. AR 57.

Plaintiff testified that she could not work because of pain in her back and hand, especially her right hand. AR 57. Her hands hurt a lot and go numb and she also has trouble lifting. AR 58. She is able to care for her son because she takes pills for the pain and they help for a little while. AR 58. Plaintiff thought that she could lift 10 pounds with her right hand, but no more because her hand feels tired and numb and has no strength. AR 59.

Plaintiff also has seizures, but has been on medication for one year and has not had any since. AR 60. Prior to medication, she had about five seizures in five months. AR 60-61. She still gets dizzy twice a day, for about 15 minutes a time, and needs to sit down. AR 61.

Plaintiff testified that she takes medication for an ulcer, but it still causes pain everyday. When she lifts something heavy, it feels like something is going to "burst" inside her stomach. AR 63. Plaintiff also has back pain and foot pain, as well as problems with her neck. AR 64. Bending or twisting her head causes pain. AR 65.

Plaintiff does not have a driver's license and does not drive. AR 65.

During the day, Plaintiff stays home and takes care of her children. When her husband is home, he helps her. Plaintiff fixes meals and does the laundry. AR 66. She also mops, sweeps and vacuums, but has to take her pills beforehand. AR 67.

October 25, 2005

Pursuant to the remand order, ALJ Hoffman held a second hearing on October 25, 2005, in Fresno, California. Plaintiff appeared with Mr. Christenson. Vocational expert ("VE") Thomas Dachelet also appeared and testified. AR 710.

Plaintiff testified that both of her disabled children still live with her and she cares for the younger one more than the older one. She takes care of the younger one "completely." AR 717. She changes him and feeds him, and although he is not in a wheelchair, he needs help walking sometimes. AR 718. One of her daughters is also disabled, but is mostly able to care for herself. AR 719. All of her children go to school during the day and Plaintiff stays home alone. AR 720. Her daughter helps her with the cooking. AR 721.

Plaintiff believed that since her last hearing, she has gotten worse. Her arms swell and her hands and fingers are numb. She has problems holding and grasping things because her hands are stiff, and thought that she could hold something for five to ten minutes. AR 729. She thought she could lift a gallon of milk, but could not lift 10 pounds for two or three hours a day. She uses a can opener to open jars and can open doors. AR 726-727. When she goes to the store, she sometimes drives. AR 728.

Plaintiff also has a lot of pain in her back that prevents her from sitting for more than 10 to 20 minutes. She thought she could stand for 10 to 15 minutes. AR 729-730. She takes rest breaks about every 20 to 30 minutes and has to sit down and take pain pills. AR 730. Her pills sometimes make her feel weak, but only a "little bit." AR 730.

For the first hypothetical, the VE confirmed that a person who could only sit for 10 minutes and stand for 20 minutes, and who would then require a 20 to 30 minute rest break, could not perform work. AR 732.

For the second hypothetical, the ALJ asked the VE to assume a person with an unskilled work background who could lift 50 pounds occasionally, 25 pounds frequently, and stand, walk and sit for approximately six hours in an eight hour day. This person must avoid repetitive and forceful gripping with the dominant right arm, must avoid unprotected heights and dangerous machinery and cannot operate vehicles or other moving machinery. This RFC precluded all of Plaintiff's past medium work, as well as all other medium work. AR 732-733. This person could perform some light, unskilled work, such as a flagger. AR 733. However, the flagger position was subject to a 90 percent erosion for hand limitations. AR 733-734. Given the erosion for the hand limitation, there were approximately 81,000 light positions available. AR 735.

Plaintiff's attorney also asked the VE to assume a person who could lift and carry 10 pounds frequently, 20 pounds occasionally, but who was limited to occasional reaching, handling, feeling, grasping and fingering with the right wrist. This person could not perform Plaintiff's past relevant work, or any other work. AR 738-741.

The VE testified that only one-third of unskilled medium jobs exist for someone who could occasionally lift and carry 50 pounds, 25 pounds frequently, who could stand, walk and sit for six hours a day with a sit/stand option, but had to avoid repetitive and forceful grasping with the right dominant hand. AR 741-742.

Medical Record

A May 2001 lumbar x-ray revealed angular scoliosis centered at L4-5, with no disc space narrowing or destructive lesions. The radiologist noted that the scoliosis may be due to ...


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