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Lira-Iniguez v. Astrue

March 24, 2009

THERESA LIRA-INIGUEZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

(Document 24)

BACKGROUND

Plaintiff Theresa Lira-Iniguez ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits and Supplemental Security Income ("SSI") pursuant to Titles II and XVI of the Social Security Act. The matter was before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Gary S. Austin, United States Magistrate Judge, for findings and recommendations to the District Court.

On September 22, 2008, the undersigned issued findings and recommendations to the District Court, which recommended that Plaintiff's appeal from the administrative decision of the Commissioner of Social Security be reversed and that the case be remanded to the ALJ for further proceedings. On September 22, 2008, the Commissioner of Social Security filed objections to the findings and recommendations. After further consideration, the Court vacated the findings and recommendations issued on September 22, 2008. Based on its review, the Court submits the instant findings and recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed for disability insurance benefits and SSI on March 22, 2004. AR 66-69, 374-377. She alleged disability since October 21, 2001, due to back pain. AR 66, 74, 83. Plaintiff previously was granted a favorable closed period of disability from October 20, 2001 through September 26, 2003. AR 11; Plaintiff's Opening Brief, at p. 2. After being denied both initially and upon reconsideration on her March 2004 applications, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 17, 24, 30-34, 36-41, 42. On June 6, 2006, ALJ James Berry held a hearing. AR 383-406. ALJ Berry denied benefits on August 7, 2006. AR 9-16. On May 22, 2007, the Appeals Council denied review. AR 5-8.

Hearing Testimony

On June 6, 2006, ALJ Berry held a hearing in Fresno, California. AR 383-406. Plaintiff appeared with her attorney, Robert Ishikawa. AR 385. Vocational expert ("VE") Jose Chaparro also appeared and testified. AR 385, 401-406.

Plaintiff testified that she was 43 years old at the time of the hearing. AR 386. She completed the twelfth grade and has a high school diploma. AR 387. She can read a newspaper and write a simple letter. AR 387. She received vocational training through workman's comp in business technology. AR 387. She last worked in October 2001 doing in home supportive services, which is based on cleaning house. AR 387. She also worked for Kentucky Fried Chicken as a stock person. AR 387-388. She did both jobs at the same time, working more than 40 hours a week for Kentucky Fried Chicken and less than 20 hours a week for in home supportive services. AR 388.

Plaintiff did stock at Kentucky Fried Chicken. AR 388. She prepared the hot food, such as mashed potatoes, gravy, potato wedges, hot wings and biscuits. AR 388. She also unloaded the freight when orders came in for the store. AR 388. She had to arrange everything in the freezer. AR 388. The heaviest thing she lifted was 50 pounds. AR 388.

For in home supportive services, the heaviest thing she lifted was a bucket for mopping filled with two gallons of water. AR 389. She was cleaning, dusting, sweeping and mopping. AR 389. She also would take the patient to the doctor and administer medication. AR 389.

Plaintiff testified that she has an industrial injury. AR 389. Her lower back was injured at Kentucky Fried Chicken. AR 389-90. Her current treating doctor is "Strovopolis." AR 390. She has seen him since 2002. AR 390. He gives her medication for back pain. AR 390. She had surgery on her back in June 2003, which was performed by Dr. Simons. AR 390. The surgery did not relieve her pain. AR 390. It only took some of the numbness out of her right leg. AR 390. She still has back pain on the lower right side of her back below the waist. AR 390-91. The pain travels down her right leg all the way down to her foot. AR 391. She also has a little bit of numbness. AR 391.

Plaintiff testified that she was taking Darvocet, Naprosyn and Flexeril, but the doctor changed her to "Ansape, Darvan and Soma." AR 391. The prior medication was not helping her and did not cut down the pain at all. AR 391. She planned to get the new medication on the day of the hearing. AR 391. She did not think she was having any side effects from the medication she was taking. AR 391. She had something "high" in her liver that might have been caused by the medication. AR 391-92.

Plaintiff testified that she has not worked since October 21, 2001. AR 392. She was going to vocational training for an hour at the end because her back was hurting too much. AR 392. The course usually takes nine months. AR 392. She was not able to complete it because of her back. AR 392. She was not going to sit there and struggle with the pain. AR 392. Typing was one of the requirements. AR 392. She was not able to meet the requirements in typing because her carpal tunnel started to come back. AR 392. Her fingers are all stiff and she has pain all the way up her arms. AR 392. She had problems sitting in class. AR 393. She was able to purchase a special chair. AR 393. She was not able to concentrate and attend her classes. AR 393. She had to drink her medication at school just to finish out the day. AR 393. It would affect her ability to concentrate. AR 393.

Plaintiff testified that the pain in her back is constant, sharp pain. AR 393. If she moves wrong, then there is pain all down her back and leg. AR 393. It feels like they are sticking needles in her. AR 393. Sometimes it is so bad it feels like she has "been hit by a train." AR 393. It bothers her to lift. AR 393. She cannot even lift an eight-pound baby and a ten-pound sack of potatoes hurts her back. AR 393. It bothers her to stand. AR 393. She can stand about an hour during an eight-hour day. AR 394. She would be in a lot of pain after that. AR 394. Sitting bothers her. AR 394. She can sit about an hour or a little more in an eight-hour day. AR 394. She could sit and stand about two hours during an eight-hour day. AR 394. She lies down during the day when she is at home. AR 394. She lies down 20 or more times when she is at home for about 20 to 30 minutes. AR 394-95. It also bothers her to bend from the waist. AR 395. She can bend from the waist a little bit, but cannot get very far down. AR 395. She cannot crouch. AR 395. She cannot sweep and mop because stooping over a little bit gives her pain all down her back. AR 395. She does not have any problems reaching in front of her. AR 395. She can reach over her head, but she has problems handling things since her carpal tunnel is starting to come back. AR 395. She cannot even hold the phone for two minutes. AR 395. Her hand "goes completely numb." AR 395. She has to drive with one hand because the other hand goes numb. AR 396. She had been treated before for carpal tunnel. AR 396.

Plaintiff testified that she has problems climbing stairs. AR 396. She cannot "just climb the steps." AR 396. She usually tries to use elevators. AR 396. If not, she will "go down one step at a time real slow." AR 396.

Plaintiff lives in a house with her three children who are 15, 13, and 12. AR 396. Her daughters are the ones that do the housework for her. AR 396. She will help them out. AR 396. She will sweep even though it hurts her a lot, but her daughters will pick up the dirt off the ground. AR 396. She does not do laundry. AR 396-97. Her children will give it to her and she will put it in the washer. AR 397. She will not bend down to get things on the ground. AR 397.

Plaintiff testified that she does the driving. AR 397. She will take her children to school in the morning and pick them up in the evening. AR 397. She tries not to go to the store until her children get home so they can carry the groceries for her. AR 397. If she goes to the store, the boys that work in the store will put the groceries in the vehicle and she will leave them there until her children get home. AR 397.

Plaintiff testified that she does not have any social activity. AR 397. She tries to go to her children's school or sports events. AR 397. She will not sit on the bleachers. AR 397. She will sit in the vehicle because the seat is more comfortable. AR 397. She will have to get in and out of the vehicle when sitting too long. AR 397. She tried to go to a function two days prior to the hearing, but "paid the price" when she came back home. AR 397-98. It was an awards ceremony that lasted about an hour-and-a-half. AR 398. After the ceremony, her back was hurting. AR 398. She went home and drank all kinds of medication. AR 398. It did not work. AR 398. She was still in a lot of pain. AR 398. She goes to see Dr. Strovopolis every two or three months when her medication runs out. AR 398.

Plaintiff testified that ever since her back injury, she is losing out on a lot because she can no longer do anything with her kids. AR 398. She cannot help them out with their sports. AR 398. She cannot take them to a movie or bowling, they cannot bike ride and she cannot go shopping with them. AR 398. She also cannot sit up close and watch their sports. AR 398.

In response to questions from the ALJ, Plaintiff testified that she started her vocational training through worker's comp at the end of August 2005. AR 399. She stopped going in April 2006. AR 399. She completed math, English, reading and spelling. AR 399. As far as computer skills they wanted her learn, she got as far as Word. AR 399. She could not type more than 20-21 words a minute. AR 399. She received a certificate. AR 399. She was going to school from eight in the morning until 3:30, five days a week. AR 399-400.

Plaintiff testified that she has been trying to see another pain doctor. AR 400. Either Dr. Strovopolis will refer her or her other attorney will get something from him. AR 400.

Plaintiff testified that her worker's comp claim is finished. AR 400. They were paying her $296 every two weeks. AR 400. It was something like $13,000. AR 400.

The VE also testified. At the outset, he described Plaintiff's past relevant work. AR 402. The Kentucky Fried Chicken job appeared to be closest to cook helper, which is medium, unskilled work. AR 402. The other job as home attendant is medium and semi-skilled. AR 402. However, as Plaintiff did it, the duties were a limited description of the DOTand were unskilled and light. AR 402.

For the first hypothetical, the ALJ asked the VE to consider an individual of Plaintiff's age, education and vocational training with Plaintiff's past relevant work experience. AR 402. This individual also had a combination of severe impairments with a residual functional capacity to lift and carry 20 pounds occasionally, 10 pounds frequently, to stand, walk and sit six hours each, and to occasionally stoop. AR 402. Given those limitations, the VE testified that the individual could not do the cook helper job. AR 402. The individual also could not do home provider as defined by the DOT, but could do it as performed. AR 402.

For the second hypothetical, the ALJ asked the VE to consider a hypothetical individual with the same vocational parameters with a combination of severe impairments. AR 403. The ALJ also asked the VE to assume that this individual retained the residual functional capacity to stand and walk two hours total, sit two hours total and lift five pounds. AR 403. Given these limitations, the VE testified that this individual could not perform either of the Plaintiff's past jobs and could not perform any other jobs in the national economy. AR 403.

For the third hypothetical, the ALJ asked the VE to assume an individual with the same vocational parameters with a combination of severe impairments. AR 403. This person also retained the residual functional capacity to lift and carry five pounds maximum, stand two hours total, walk two hours total and sit two hours total. AR 403. This individual could not climb, stoop, crouch or crawl, but could kneel and balance occasionally. AR 403. This individual might "frequently--effective in the ability to reach, handle, finger and feel." AR 403. This individual also should avoid unprotected heights, moving machinery, temperature extremes, vibrations and pulmonary irritants. AR 403. Given these limitations, the VE testified that such an individual could not perform any of the Plaintiff's past work and could not perform any other jobs in the national economy. AR 403-04.

For the fourth hypothetical, Plaintiff's counsel asked the VE to assume a person with the same vocational background. AR 404. This person also would have difficulty repetitively bending or working in a bent over position, could be on her feet for 30 to 60 minutes at a time three to four hours out of an eight-hour day, sit for 60 to 90 minutes at a time for four to six hours in eight-hour day and could lift 15 to 20 pounds occasionally and five pounds more frequently. AR 404. She also could lift 15 to 20 pounds occasionally, five to ten pounds frequently, especially from table level. AR 404. With these restrictions, the VE testified that this person could not do the cook helper job. AR 404. She also could not do the home provider as defined by DOT, but could do it as performed. AR 404. As performed, she would have to be on her feet for more than three to four hours in an eight-hour day. AR 404. Given that factor, she could not do the home provider work as she performed it either because she was on her feet all eight hours. AR 405.

Medical Evidence

On October 25, 2001, Michael Houston, D.C., examined Plaintiff and completed a Doctor's First Report of Occupational Injury or Illness form. AR 102. Dr. Houston reported that Plaintiff was injured at Kentucky Fried Chicken on October 11, 2001, while lifting and putting away heavy boxes. AR 102. She was diagnosed with lumbar strain (acute) and prescribed Vioxx and vicodin. AR 102. She also received a back brace. AR 102. Dr. Houston opined that Plaintiff was not able to perform her usual work and he placed her on full temporary disability. AR 102.

On October 25, 2001, Plaintiff underwent an x-ray of her lumbar spine. AR 103. The xray revealed evidence of lumbar muscle spasm and disc narrowing at L2-3, rule out herniation versus degeneration of the disc material. AR 103.

From November 1, 2001 through December 17, 2001, Plaintiff continued to receive treatment from Dr. Houston for her back. AR 113-19, 121-22. She remained off work during this time. Plaintiff also received physical therapy for her back from November 5, 2001 through December 12, 2001. AR 104-106.

On November 20, 2001, Plaintiff underwent Magnetic Resonance Imaging ("MRI") of the lumbosacral spine. AR 111-12. The MRI revealed degenerative disc disease, degenerative joint disease, soft tissue lesion of uncertain etiology at the posterosuperior corner of L3 vertebral body, anterior disc protrusions with osteophytes from T10 to T12 levels and at L2/L3 level and L5/S1 right posteromedial disc protrusion measuring approximately 11mm, moderate spinal stenosis, impingement of the right S1 nerve root at the right lateral recess and probable impingement of L5 nerve roots at the neural canals. AR 112.

On December 19, 2001, Robert M. Mochizuki, M.D., of Orthopaedic Associates Medical Clinic, Inc., completed an evaluation of Plaintiff. AR 107-10. Plaintiff complained of pain in her lower back and right lower extremity, paresthesias from the gluteal area to the posterior knee and sensory loss of the lateral aspect of her leg and right foot. AR 107. On physical examination, Plaintiff walked with a slight limp, favoring her right lower extremity. AR 109. She had a cane. AR 109. Examination of her back showed no evidence of muscle spasm, atrophy or swelling. AR 109. Lasegue test was positive on the right side. AR 109. Her range of motion on lateral bending, lateral rotation and extension were normal. AR 109. Dr. Mochizuki assessed Plaintiff with lumbar disk herniation of L5-S1 with S1 radiculopathy of right ...


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