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Johnson v. Astrue

August 7, 2009

VEVELYN JOHNSON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

INTRODUCTION

Vevelyn Johnson ("Plaintiff") brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration (hereinafter the "Commissioner" or the "Agency") denying her application for Supplemental Security Income ("SSI"). The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. This matter is before the Court on the parties' Joint Stipulation ("Jt. Stip.") filed on March 6, 2009. For the reasons stated below, the decision of the Commissioner is AFFIRMED.

PROCEDURAL HISTORY

Plaintiff filed applications for SSI and Disability Insurances Benefits ("DIB") on August 8, 2006. (Administrative Record ("AR") 83, 88).*fn1 Plaintiff listed December 31, 1999 as the onset date of her disability.*fn2 (Id.). The Commissioner denied DIB benefits on August 13, 2006, (AR 48), and SSI benefits on September 21, 2006. (AR 52). Plaintiff submitted a request for reconsideration on November 1, 2006.*fn3 (AR 58). On January 11, 2007, the Commissioner denied reconsideration. (AR 60-64). Plaintiff requested a hearing before an administrative law judge ("ALJ") on February 12, 2007. (AR 66).

On November 21, 2007, Plaintiff's hearing proceeded before ALJ Jeffrey A. Hatfield. (AR 16). The ALJ rendered an unfavorable decision on November 29, 2007. (AR 6). On December 20, 2007, Plaintiff requested Appeals Council review. (AR 4). The Appeals Council denied Plaintiff's request for review on July 18, 2008. (AR 1). On August 19, 2008, Plaintiff filed the instant complaint.

FACTUAL HISTORY

A. Generally

Plaintiff was born on March 24, 1959. (AR 83, 88). Plaintiff received a GED and attended "a couple of years of college." (AR 22). Plaintiff's past occupations included work as a bus driver, a cashier, and as a home attendant. (AR 36). Plaintiff claims disability stemming from "degenerate spinal column disease, lumb[a]r spine L5-S1 with allegations of radiculopathy to the right leg[,} . . . some complications . . . with the right hip[,]" and "obesity." (AR 20).

B. Relevant Medical History

1. Treating Physicians

Plaintiff's medical records show that she was seen repeatedly by Universal Care during 2005 and 2006. (AR 144-47, 150-58, 160-67, 173, 175-77). On September 20, 2005, Plaintiff was seen by a member of the nursing staff*fn4 who noted that Plaintiff complained of "back pain" and sought to refill her medication, described as "HTN." (AR 166). On October 18, 2005, Plaintiff was seen by the same member of the nursing staff who again noted that Plaintiff complained of "[b]ack pain," and sought to refill her medication, described as "HTN." (AR 165). On December 13, 2005, Plaintiff was seen by Dr. Phillip Le, M.D. ("Dr. Le") and a member of the nursing staff, Kumudu Mohan, M.A. ("Nurse Mohan"), for "[b]ack [p]ain." (AR 163). On December 19, 2005, Plaintiff was seen by a member of the nursing staff, Victor Nava, M.A., for a "lipid panel." (AR 162). On December 28, 2005, Plaintiff was seen by Dr. Le. (AR 161). On January 3, 2006, Plaintiff was again seen by Dr. Le, who noted that Plaintiff sought refills for her medication. (AR 160). On January 31, 2006, Plaintiff was seen by Dr. Hung Nguyen, M.D., who noted that Plaintiff complained of "[b]ack pain" and sought to refill her medication. (AR 158). On May 4, 2006, Plaintiff was seen by Matt Northern, FNP/PA-C, who noted that Plaintiff complained of "back pain" and had "some lateral swelling" on her right ankle. (AR 154). On June 14, 2006, Plaintiff was seen by Dr. Steve T. Hwang, M.D. (AR 175). On July 11, 2006, Plaintiff was seen by Dr. Jeffrey Kleis, D.P.M. ("Dr. Kleis"). (AR 173). On July 14, 2006, Plaintiff was again seen by Nurse Mohan, who noted that Plaintiff was being seen for a "[c]onsult on [b]ack pain." (AR 150). On August 7, 2006, Plaintiff was fitted for an orthotic by Dr. Kleis. (AR 146).

Plaintiff's medical records further show that she did not attend scheduled medical appointments on August 16, 2005, November 23, 2005, February 6, 2006, May 15, 2006, May 17, 2006, July 31, 2006, August 15, 2006, and August 21, 2006. (AR 144-45, 147, 153, 157, 164, 167, 177). The records further show that Plaintiff missed three additional medical appointments for which the date is not legible. (AR 155-56, 176).

Finally, Plaintiff was seen by two doctors outside of Universal Care. On December 19, 2005, Plaintiff was seen by Dr. C. Mark Mehringer, M.D., who noted that Plaintiff had "[d]egenerative changes" in her lumbosacral spine, but that no significant changes had occurred since her last examination on February 7, 2005. (AR 172). On May 4, 2006, Plaintiff was seen by Dr. Martin W. Weiler, M.D., who noted that Plaintiff had a "Plantar spur" in her right ankle. (AR 171).

2. State Agency Physician

Medical consultant E. Cooper ("Cooper") reviewed Plaintiff's medical records for the Disability Determination Service ("DDS") and issued a Physical Residual Functional Capacity Assessment on September 19, 2006. (AR 185-89). Dr. Cooper diagnosed Plaintiff with "hypertension" and "chronic back pain." (AR 185). Dr. Cooper indicated that Plaintiff could occasionally lift and/or carry 50 pounds, frequently lift and/or carry 25 pounds, stand or walk about 6 hours in an 8-hour workday, and sit about 6 hours in an 8-hour workday. (AR 186). Dr. Cooper found that Plaintiff could push and/or pull without limitations. (Id.). Dr. Cooper further found that Plaintiff could occasionally climb, balance, stoop, kneel, crouch, and crawl. (AR 187). Finally, Dr. Cooper determined that Plaintiff had no manipulative limitations, visual limitations, communicative limitations, or environmental limitations. (AR 187-88).

3. Plaintiff's Testimony

Plaintiff testified at her hearing in response to questions from both the ALJ and her counsel. (AR 21-38). Plaintiff testified that she was 5'8" tall and 315 pounds. (AR 21). Plaintiff testified that she has a valid driver's license, but that she does not drive anymore because of her "back injury." (AR 23). Plaintiff described her back injury as "degenerative," but was "not . . . sure how [it] operates." (Id.). Plaintiff explained that she last worked in 2000 as a bus driver, but that she left the job after having "issues with standing and bending." (AR 24). Plaintiff "decided to go to school to see if [she] could possibly do something else," (AR 24), and attended college courses at Long Beach City College "for two years." (AR 25, 29). Plaintiff was in a program that would give her a certification in "drug rehabilitation." (AR 22). Plaintiff testified that she attended school full time between 2003 and 2005. (AR 37).

Plaintiff testified that she bathes, gets dressed, and prepares meals without assistance. (AR 25). Plaintiff explained that she sometimes uses an umbrella to assist her in walking, but that her doctors had not prescribed any assistive device. (AR 25-26). Plaintiff testified that she leaves the house to go grocery shopping, but "[n]ot very often." Plaintiff explained that she is able to walk up and down the aisles "[f]or a short time," but that she always has the help of one of her sons. (AR 26)

Plaintiff described her pain as located in the "lower part of the spine around to the leg area, all the way down to the ankle" on the right side. (AR 27-28). Plaintiff further testified that she had pain in her left leg in the "toe area." (AR 28). Plaintiff explained that the mobility in her left leg was worse than in her right leg. (Id.). Plaintiff testified that she first noticed the pain in her left leg while she was taking college classes in 2005. (AR 29). Plaintiff further testified that she had pain in her "right hip area" and that "[a]t times it feels dislocated" causing her to walk "crooked." (AR 29).

Plaintiff testified that she is "consistently" trying to lose weight but that "it's very difficult." (AR 30). One of Plaintiff's doctors suggested that she might have a gastric bypass, but did not recommend it. (Id.). Her doctors have also said that surgery on her back would be a "last resort." (Id.). Plaintiff explained that she tries to treat her back with "Hydrocodone" and "Soma," but that the medication is no longer effective because her body is "used to it." (AR 31).

When asked how far she could walk "in minutes," Plaintiff testified that she could only walk "maybe two yards." (AR 31). However, Plaintiff then admitted that she had walked "a block" from her car to get to the hearing and that she was capable of walking "a couple of blocks." (AR 31-32). Plaintiff next testified that she never leaves her home, but then conceded that she sometimes goes grocery shopping. (AR 31-32).

Finally, Plaintiff testified that she did not think she could do a job eight hours a day. (AR 34). Plaintiff explained that she did not think she "could last" because "standing is very painful" and "[s]itting is painful." (Id.). Plaintiff testified that she lays down during the day for "four hours periodically" and stays "in bed for days." (AR 35). Plaintiff explained ...


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