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Robinson v. Astrue

March 31, 2009

VIRGINIA ROBINSON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for Disability Income Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"), respectively. For the reasons discussed below, the court denies plaintiff's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.

I. BACKGROUND

Plaintiff, born January 10, 1947, applied for DIB and SSI on May 2, 2005, alleging she became unable to work on January 1, 1999 due to "loss of use of right arm, rt knee, bone spur in rt foot, HBP [high blood pressure]." Administrative Record ("AR") 44-46, 50. Plaintiff explained, "I get too much pain in my leg, and it swells too much. I also have pain in my arms and my back." AR 50. Plaintiff stated that she "did try to work in 2004 but was laid off because of my condition." AR 51. Plaintiff stated that she previously performed work as a secretary (1984-87, 1989, 1990-94, and 1997-98), cashier/clerk (1992-93), house manager for a recovery house (1995), and taxi driver (1997-98), and most recently trained to be a bus driver (2004). AR 51; see also AR 52, 57-64, 68-74.

At the October 4, 2006 hearing before administrative law judge ("ALJ") Howard K. Treblin, AR 287-306, plaintiff testified, with the assistance of counsel. Initially, plaintiff amended her alleged onset date to April 11, 2004, the date she sustained a fall. AR 290-291. Plaintiff testified that she most recently delivered newspapers for a period of four months. AR 293. She drove a taxi for about five years. TR 293, 294. She performed secretarial work for about twenty years. Id. She was a cashier at one of her jobs and trained as a bus driver. Id.

Plaintiff testified that she is 59 years of age, 5'6" tall and weighs 195 pounds. AR 291-292. She testified that she has gained weight since her fall in 2004, and has weighed as much as 240 pounds. AR 292. Plaintiff stated that she is married, that her husband was disabled, is now retired but battling cancer. AR 292, 302. Plaintiff stated that she gets along all right with others, that the highest grade of school she completed was 14, that she drives, can read and write, and compute numbers. AR 292-293, 292, 299. Plaintiff testified that she can focus and pay attention, but has difficulty doing so because of her pain. AR 299.

Plaintiff testified that she was in a car accident thirty years ago, when her physical problems began. AR 305. Responding to her attorney's observation that plaintiff's x-rays show significant arthritis or spurs, plaintiff stated that her problems have been ongoing, but increased significantly with her 2004 fall. AR 304-305.

Plaintiff testified regarding her fall, "I was helping move a piano, and it fell on me." AR 293. She later explained, "I was moving, helping to move a piano, and it fell on my leg, and my knee was very injured. It was already a bad knee, and then it just totaled it. So, my knee became very bad, my ankle again, and my back. My back hurt really bad, and after that, I just had a lot more pain." AR 304.

Asked about her other medical problems, plaintiff responded, "I have problems with my neck, with my back, with my lower back, with my upper right extremity, with my hands, with my right knee, my right ankle, and I have problems with my left knee and left ankle." AR 294. She stated that she takes Vicodin for pain, and it helps, without side effects. Id. She also takes medication for blood pressure, and Trazidone to sleep. Id. Plaintiff testified that sometimes it's hard to go to sleep, and she wakes up a lot, due to pain, but the medication helps. AR 299. She gets four to eight hours of sleep a night, usually wakes up at 10 am, and feels rested. AR 300.

Plaintiff rated her pain, on an ascending scale of 0 to 10, as a "10" on a "bad" day, and a "7 or 8" on a "good" day, and testified that she probably has more bad days than good and, overall, is probably getting worse. AR 294-295. Resting helps her feel better, laying down and putting her feet up, and she does this six to eight hours a day. AR 295, 303. She feels worse when she walks too much or tries to do too much work around the house. Id. Plaintiff testified that she uses a cane when she feels she needs it, probably daily and just when she goes out; that she uses a walker when she is having a real bad time, about three times a week. AR 296. Plaintiff did not bring a cane to the hearing. Id. Plaintiff stated that she has fallen a few times but takes medication for vertigo which helps. Id.

Plaintiff sees her doctor "periodically probably monthly," who referred plaintiff to a physical therapist April 2004. AR 295-296. Dr. Lindquist, who provided a report, was plaintiff's treating physician "years ago." AR 305.

Plaintiff testified that she was treated for depression, but stopped going for treatment because she was feeling better, and does not assert this as a basis for disability. AR 304.

Plaintiff estimated that she can lift or carry up to ten pounds, but cannot lift over her head. She estimated that she can sit fifteen minutes to a half hour before she needs to get up and move around; that she can stand or walk five or ten minutes before she has to stop. AR 297. Plaintiff testified that she could bend to mid-calf. AR 297-98. Plaintiff testified that she injured her right hand and arm a few years ago, that she gets cramps in both hands when using them to doing something, like wash dishes or write, that she drops things daily from her right hand. AR 298-99. Plaintiff stated that she used to sew, but can't now. AR 301. She gardens a little. Id.

Plaintiff testified she has difficulty getting in and out of the tub or shower, but does not have handrails or handles to help. AR 300. She does not need assistance bathing. Id.

Plaintiff testified that she does light household chores, but her husband does the vacuuming, light cleaning and dusting. AR 300-301. He also "cleans the floors, he cleans the bathroom, he cleans the walls, and he does the dishes and keeps the kitchen clean." AR 302. Plaintiff testified that if she did these things, "I'd just get in a really lot of pain," particularly in her back and knees. AR 302-303. Plaintiff stated that she grocery shops a couple of times a week. AR 301.

The ALJ issued a decision on March 8, 2007, finding that plaintiff is not disabled.*fn1 AR 12-18. The ALJ made the following findings:

1. The claimant met the insured status requirements of the Social Security Act through September 30, 2004.

2. The claimant has not engaged in substantial gainful activity since April 11, 2004, the amended alleged onset date (20 CFR 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.).

3. The claimant has the following severe impairments: polyarticular arthritis, obesity, hypertension (20 CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of impairments that meets or equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light level work activity on a sustained basis. The claimant can stand and or walk 6 hours; sit without limitation; lift and or carry, push and or pull 20 pounds on occasion and 10 pounds frequently; stoop, bend, crouch, frequently, no limitations with manipulative functions; no non-exertional limitations; no environmental limitations.

6. The claimant is capable of performing past relevant work as a clerical/secretary. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565 and 415.965).

7. The claimant has not been under a disability, as defined in the Social Security Act , from April 11, 2004, through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).

Id.

On May 23, 2007, the Appeals Council denied plaintiff's request for review, and the ALJ's decision became the final decision of the Commissioner. AR 4-6.

The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146, n. 5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.

II. ISSUES PRESENTED

Plaintiff contends that the ALJ erred by: (1) failing to develop and properly evaluate the medical record; (2) failing to credit plaintiff's statements regarding her pain and functional limitations; and (3) finding that plaintiff can perform her past relevant work at step four of the sequential analysis.

III. LEGAL STANDARDS

The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).

The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). "'It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).

"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ...


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