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Dunn v. Astrue

June 19, 2009

EMMA DUNN, 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 Emma Dunn ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits pursuant to Title II 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 on June 6, 2006, alleging disability since March 1, 2005, due to pain in the left side of her body, vision problems and mental problems. AR 66-68, 71-81. After her application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 47-48, 49, 58-62. ALJ Christopher Larsen held a hearing on December 14, 2007, and denied benefits on February 27, 2008. AR 13-23, 375-426. On June 26, 2008, the Appeals Council denied review. AR 6-10.

Hearing Testimony

ALJ Larsen held a hearing on December 14, 2007, in Fresno, California. Plaintiff appeared with her attorney, Dennis Bromberg. Vocational expert ("VE") Jose Chaparro also appeared and testified. AR 375.

Plaintiff testified that she was 47 years old at the time of the hearing. She was 4'11" tall and weighed 165 pounds. AR 381. She completed the tenth grade and attended vocational school in 1996 and 1997. AR 381. Plaintiff last worked in March 2005 as a customer service representative for a mortgage company. AR 382.

Plaintiff lives with her 23 year old daughter and 13 year old son. AR 412. She is home alone during the days and knits and watches television. AR 412. She is able to dust the furniture, make her bed, do some cooking and sweep a bit. She only shops for groceries about once a month because "it's too long" and "hurts." Her daughter does the laundry. She also sits and watches her son play and tries to walk twice a week. AR 413. She goes to church once a week, though she cannot make it through the 45 minute service because of pain in her back or leg. AR 414-415.

When questioned by her attorney, Plaintiff testified that she could not work because of daily stabbing pain in her lower back. AR 389. Her pain increases with sitting or standing too long and with reaching. Medication helps but does not take away the pain completely. Moving around a little also helps. AR 391. She uses heating pads and ice packs, and has been using a cane for about two months. AR 392.

Plaintiff also has problems with her left leg, between her knee and calf, including shooting pain and numbness. AR 394. The numbness happens about once a day and lasts for about 20 minutes. When she gets pain in her back, it usually shoots down into her leg. This happens about three times a day, usually when she's been sitting or standing too long, or after she reaches. AR 395-396. Medication helps a little and she also uses a heating pad. AR 397. Plaintiff recently received a permanent disabled parking placard because of the limitations in her lower extremities. AR 403.

Before Plaintiff used the cane, she estimated that she could walk about three blocks before needing to stop and sit. She could stand for about 20 minutes, twice a day. AR 398, 416. Since she's used the cane, she thought she could walk for about 2 blocks and stand for 20 minutes. AR 399. Plaintiff thought that she could sit for about 40 minutes. AR 416.

Plaintiff also testified that she has problems with carpal tunnel syndrome ("CTS") in her left arm, which causes a stabbing, shooting pain in her palm about four times a day. AR 400. Plaintiff also explained that the pain shoots up her arm to her elbow. She has been dropping things with her left hand for the past year. AR 402.

Plaintiff testified that her mental problems began when her father died in 2004. She takes sleep medication, which helps her sleep, and antidepressants. AR 404. Her energy level is low and she cannot focus or pay attention to things. AR 406. Plaintiff enjoys knitting and testified that she could knit for about 20 minutes before needing to stop for lack of focus. AR 409. Six months after her father died, Plaintiff began hearing voices. At that time, she was hearing the voices three times a day, but now that she is getting treatment, she only hears them once or twice a week. AR 407-408. She testified that since her father's death, she thinks about suicide twice a day and cries everyday, for about 30 minutes, because she is sad. AR 410-411.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and work experience. This person could not maintain sufficient concentration and attention to understand, remember and carry out even simple one or two step job instructions. With just this limitation, the VE testified that Plaintiff could not perform any work. AR 420.

For the second hypothetical, the ALJ asked the VE to assume that this person could lift 20 pounds occasionally, 10 pounds frequently, stand and walk a total of six hours and sit for a total of six hours. This person could not climb ladders, ropes or scaffolds and could occasionally stoop and bend. This person could understand, remember and carry out simple one or two step job instructions. The VE testified that this person could not perform Plaintiff's past work, but could perform light work jobs such as house cleaner or agricultural produce sorter. AR 420-421.

If this person could only stand and walk for a total of two hours, with a cane, she could perform sedentary work, of which there were about 3,900 positions in California. AR 423.

Plaintiff's attorney asked the VE to add a limitation that this person could not use the non-dominant upper extremity for two hour increments. The VE testified that the number of positions that this person could perform, if any, would be extremely limited. AR 424.

Medical Record

Evidence Before the ALJ On January 24, 2005, Plaintiff presented to the emergency room at St. Agnes Medical Center. She indicated that she had been in a motor vehicle accident on January 21, 2005, and had left arm pain. X-rays of her left forearm were negative, though she had limited range of motion in her shoulder. Plaintiff was told to use a heating pad and hot compresses and to see her doctor as needed. AR 365-371.

On May 18, 2005, Plaintiff went to the emergency room at St. Agnes Medical Center. She complained of back and hip pain after being assaulted. Plaintiff reported that she thought she blacked out for a while, but remembered being "beaten up." X-rays of her cervical spine showed degenerative changes, but the study was limited by Plaintiff's "body habitus." X-rays of her left knee were normal. ...


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