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Atilano v. Astrue

June 10, 2009

DENISE ATILANO, 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 Denise Atilano ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") and supplemental security income ("SSI") 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 protectively applied for DIB and SSI in April 2005, alleging disability since December 12, 2002, due to depression, arthritis, and severe migraine headaches. AR 22, 60, 79, 182. After being denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 25-29, 31-36, 39, 184, 185. On January 10, 2008, ALJ Peter Valentino held a hearing. AR 186-220. ALJ Valentino denied benefits on January 25, 2008. AR 10-22. On June 5, 2008, the Appeals Council denied review. AR 4-6.

Hearing Testimony

ALJ Valentino held a hearing on January 10, 2008, in Bakersfield, California. Plaintiff appeared with her attorney, Rosemary Abarca. AR 188. Dr. Mary Jesko, vocational expert ("VE"), also testified. AR 212-218.

Plaintiff testified that she is a widow, but now lives with her significant other. AR 189. She was born in 1946, and is 61. AR 189. She is approximately 5'3" and weighs 190-195 pounds. AR 189. She has a valid California driver's license. AR 189. She graduated from high school and attended college off and on for two years. AR 189-90. She does not have an associate of arts degree. AR 190.

From June 1988 through December 2002, Plaintiff worked for a bar association lawyer referral service. AR 190. She had several titles, including referral clerk, mandatory fee arbitration coordinator, program coordinator, Bar Association coordinator, accounts receivable, and "MCLA coordinator." AR 190. She did not have supervisory responsibility. AR 190-91. In her referral clerk work, she took calls from clients wanting an appointment with an attorney, contacted an appropriate attorney and set up an appointment. AR 192. She spent four or four and a half hours doing her referral duties. AR 192-93.

Plaintiff's next major duty was mandatory fee arbitration coordinator. AR 193. This duty consisted of opening up cases when clients submitted a fee dispute with their attorneys. AR 193. A client would call and request a form to submit a complaint. AR 193. Once she received the form, she would open a case and send out letters to the attorneys and the client. AR 193. The process would take from three to five months to complete. AR 193. Plaintiff followed up with correspondence and would assign an attorney to hear the case. AR 193-94.

Plaintiff also did accounts receivable and made bank deposits. AR 194. She used an office computer for accounts receivable. AR 195. In an eight hour day, she would spend almost eight hours on the computer, inputting information. AR 195. It was basically a sit-down job, but she had to lift boxes of files. AR 195.

Plaintiff testified that she stopped working in December 2002 because she started having medical problems. AR 195. She was "stressed out." AR 196. Before she quit, she was being treated by Dr. Burns for stress. AR 196. She saw him regularly when she was working. AR 196. He would give her medication for depression and for sleep. AR 196. He also gave her muscle relaxers and pain pills. AR 196. He was her primary doctor. AR 197. He did not refer her to a psychiatrist. AR 197. She was referred to a neurologist in 1997 when she had paralysis on one side of her face for about three weeks and paralysis on the other side of her face six months later. AR 197. She last saw her neurologist in 1998, because the paralysis went away. AR 198.

Plaintiff testified that she gave notice before she left the referral service. AR 197. She was missing work and they put her on part-time employment for six months. AR 197. She could not make it to work because of migraine headaches, palpitations and anxiety attacks. AR 197.

Plaintiff testified that Dr. Burns was treating her when she was experiencing bad headaches and anxiety attacks. AR 199. He continued to treat her until she moved to Bakersfield in December 2002. AR 199. She moved to be closer to her family. AR 200. Her significant other moved with her. AR 200. He was not working and has been retired. AR 200.

After she moved in December 2002, she was experiencing bad headaches, stress and pain in her shoulders. AR 200. She went to Kern Medical Center for treatment. AR 201. She did not receive treatment between 2003 and 2006 because she did not have insurance. AR 201. Her significant other was not able to help financially because he was not making any money other than his retirement. AR 202. She was taking over-the-counter medication until she could not handle it. AR 202.

She is now taking prescription medication for blood pressure. AR 202-03. She is not taking any other prescribed medication. AR 203. She takes Aleve or Tylenol for her pain. AR 203. At the time of her consultative examination in 2005, she was not taking any medication for high blood pressure. AR 204. She has been on high blood pressure medication since 1998 or 1999. AR 204.

In response to questions from her attorney, Plaintiff testified that she first went to Kern Medical Center in 2005. AR 204. It took a while to get established as a patient. AR 204. She has been there for treatment about five times. AR 205. One time, they kept her for three days in September or October of 2005. AR 205. In addition to Kern Medical Center, she also started to go to Clinic at Sierra Vista about one year prior to the hearing. AR 205. She has been there three or four times because of the headaches, her heart racing and her left knee swelling up. AR 205. They prescribed medication for her pain. AR 205. She took the medication and had it refilled a few times. AR 206. She is not taking it now because she got discouraged. AR 206. She was not feeling good and got overwhelmed with her problems. AR 206.

Plaintiff testified that when they reduced her hours from full-time to part-time at the Lawyers Referral Service, it was their choice. AR 206. They reduced her hours because she was missing too much work due to headaches. AR 206. Once they reduced her hours, she was not able to cope better because her headaches were so extreme and she was always getting anxiety attacks. AR 206. It was either leave or be fired. AR 207.

After she left, Plaintiff filed for unemployment. AR 207. It was approved. AR 207. During that time, she looked for work. AR 207. She got a job as a salesclerk at Gottschalks. AR 207. She only worked a day and a half because her feet were swelling up, her knee was hurting and swelling up and her heart was racing all the time. AR 207. She could not continue. AR 207.

During the time she was experiencing stress at work, the doctor never referred her to a psychiatrist. AR 208. She thought if the doctor did not refer her, "he figured medication would help it." AR 208. Dr. Gannon, the neurologist, told her that her anxiety attacks or panic attacks were somewhat mental. AR 208. She had a brain MRI at Kern Medical Center and in Stockton. AR 208-09. The brain MRI came out okay. AR 209. They thought she might have had a stroke because she had a few episodes where her left eye would turn in and she had double vision. AR 209. She ...


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