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Barrett v. Astrue

March 31, 2009



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Income Benefits ("DIB") under Title II of the Social Security Act ("Act"). The parties filed cross-motions for summary judgment. For the reasons discussed below, the court remands this matter for further consideration.


Plaintiff, born February 25, 1959, applied for Disability Insurance Benefits onNovember 13, 2003, alleging she became unable to work on January 1, 2002, due to "Lupus with severe arthritic pain in hands, hips, etc. -- weak & extreme fatigue." Administrative Record ("AR") 60-62, 64. Plaintiff's initial application for DIB indicated that plaintiff worked in sales at a personnel agency from January 1980 to April 1988, and in customer service at a printing shop from August 1992 to July 2001.*fn1 AR 65. An administrative hearing was held on December 14, 2004, AR 361-79, before administrative law judge ("ALJ") Laura Speck Havens, and an unfavorable decision by ALJ Havens on March 8, 2005, AR 212-19, who found that plaintiff had severe impairments but remained capable of performing sedentary work without non-exertional limitations and therefore not disabled. The Appeals Council, on December 22, 2005, vacated that decision on substantial evidence grounds. The Appeals Council remanded the case and directed the ALJ to obtain additional medical evidence, obtain further testimony of a vocational expert, and issue a new decision.*fn2 AR 235-37.

Pursuant to a supplemental administrative hearing on August 23, 2006, AR 380-98, including further testimony of a vocational expert, ALJ Havens issued a new decision on January 25, 2007, again finding that plaintiff is not disabled.*fn3 AR 18-26. The ALJ made the following specific findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2007.

2. The claimant has not engaged in substantial gainful activity since January 1, 2002, the alleged onset date (20 CFR 404.1520(b) and 404.1571 et seq.).

3. The claimant has the following severe impairments: systemic lupus erythematosus, arthritis and chronic obstructive pulmonary disease (20 CFR 404. 15020(c)).

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

5. . . . [T]he claimant has the residual functional capacity to sit, stand and/or walk for six hours each in an eight hour workday. She can push, pull, lift and/or carry ten pounds frequently and twenty pounds occasionally. The claimant should avoid very forceful pulling or pushing activities with the bilateral arms and be limited to no more than ten pounds of overhead lifting occasionally. She should not engage in power gripping activities with the bilateral hands and should perform activities involving fine, continuous finger and wrist movements only occasionally. The claimant can use the bilateral hands for light, crude gripping and grasping functions.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565). 7. The claimant was born on February 25, 1959 and was forty-two years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563). The claimant is now forty-six years old, which is defined as a younger individual age 45-49.

8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564).

9. Transferability of job skills is not an issue in this case due to the claimant's age (20 CFR 404.1568).

10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1560(c) and 404.1566).

11. The claimant has not been under a "disability," as defined in the Social Security Act, from January 1, 2002 through the date of this decision (20 CFR 404.1520(g)).

AR 20-25.

On July 13, 2007, the Appeals Council denied plaintiff's request for review, and the ALJ's decision became the final decision of the Commissioner. AR 7-10.


Plaintiff contends that (1) substantial evidence does not support the ALJ's finding that plaintiff can perform the exertional demands of light work; (2) the ALJ failed to comply with the remand order of the Appeals Council; (3) the ALJ improperly evaluated the severity of plaintiff's depression; and (4) the ALJ's hypothetical questions posed to the vocational expert failed to include all of plaintiff's supported limitations.


Plaintiff testified, with the assistance of counsel, that she completed the 11th grade and nearly one year of college. AR 366. Plaintiff testified that she left her employment of nine years in 2001 because she had so many absences. AR 367. Plaintiff lives with her son and daughter; her son, who is 21, supports everyone; her daughter is homeschooled and achieving honors. AR 368, 369.

Plaintiff testified that she has lupus, arthritis and chronic obstructive pulmonary disease ("COPD"). AR 368. She stated that she needs help dressing due to swelling and arthritis in her shoulder. AR 368-369. Plaintiff testified that her children do most of the housework, that plaintiff will do small things, like fold towels. AR 369. Plaintiff loves to cook but hasn't been able to do much, and she hasn't played golf in four years. She mostly watches TV. AR 369. Plaintiff stated that she smokes half a pack of cigarettes a day, that she "has to" quit, and hadn't realized that "lupus was taking away my lungs." AR 370. Plaintiff drives, but her children do most of the driving. AR 370-371. Plaintiff generally sleeps four hours, sometimes up to eight hours, and uses sleeping medication. AR 371.

Plaintiff testified that it has been difficult to obtain adequate medical care as a lupus patient with MediCal. AR 371- 372. Plaintiff stated that she went to mental health two weeks previous, and would have to wait until the beginning of the year to see a therapist; plaintiff stated that she intended to pursue both medication and therapy. AR 372.

Plaintiff testified that she takes the following medications: Tylenol codeine, Motrin 800 mg, Naprosyn, Advant inhaler, and over-the-counter ("OTC") sleeping medication. AR 373. Plaintiff testified that she takes the Tylenol codeine at night. Id. Plaintiff testified that she easily becomes short of breath, "just getting up and walking to the refrigerator." She stated that she could sit for up to an hour and a half, but has joint pain. Plaintiff testified that she has pain in all of her joints, especially her hands and shoulders. AR 374. Asked what the pain feels like, plaintiff stated, "[M]y skin turns really read and hot, it swells. Maybe like a vice tightening."

Id. Plaintiff testified that the pain "comes and goes, [b]ut it's there more than it's not there," with an average pain level of "7" on an ascending scale from 0 to 10. AR 375.


This hearing followed two significant events: plaintiff's reported suicide attempt in August 2005, and plaintiff's myocardial infarction in February 2006, both discussed infra.

Plaintiff testified, with the assistance of counsel, that her condition had worsened: she has greater shortness of breath associated with COPD, and had a heart attack with stent implacement in February 2006. AR 384-385. Plaintiff testified that she can walk about 10 to 20 steps before she's "wheezing pretty good." AR 390. Plaintiff stated that her heart "feels fine," that "[i]t always did. I was real surprised to have a heart attack but there's been a lot, under a lot of stress." AR 385.

Plaintiff testified that she and her son were renting two rooms in a house. The landlady and plaintiff's son do the cleaning and cooking. AR 386. Plaintiff stated that she can dress herself, but can't bathe herself. She watches about two hours of TV a day; the news. AR 386-387. She has not driven in three or four years; she does not own a car, and she gets rides to her appointments; she stated that it would be "really hard" to drive due to "all the pain in my ankles, my hips, it's hard for me to sit for long periods." AR 387. Plaintiff stated that she goes to church occasionally. Id.

She can sit for about an hour comfortably. She can lift about five to six pounds, the weight of her dog. AR 390. Plaintiff testified that she has pain in her fingers, wrist[s], shoulders, hips, knees, ankles. AR 390. Asked what the pain feels like, plaintiff answered, "It's a throbbing, like something squeezing on your bones, like the vise kind of grabbing, you know, it's tightening. There's a lot of heat." AR 390-391. Plaintiff testified that the pain comes and goes, that the average pain level, with medication, is probably a "6." AR 391. Plaintiff testified that she has problems with both hands and, in response to questions, stated that she could pick up a cup but not use a keyboard. Id.

Plaintiff stated that she usually sleeps about four hours at night, but wakes up shaking. AR 388. Plaintiff testified that she's been ...

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