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Morphew v. Astrue

August 18, 2009


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge



Plaintiff Constance M. Morphew ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits and supplemental security income 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 Gary S. Austin, United States Magistrate Judge.*fn1


On or about January 5, 2006, Plaintiff filed applications alleging disability since January 3, 2006, due primarily to an ankle injury. AR 68-70. Her application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 51-61. ALJ Michael J. Haubner held a hearing on October 4, 2007, and issued an order denying benefits on January 9, 2008. AR 18-27, 353-385. On April 24, 2008, the Appeals Council denied review. AR 4-7.

Hearing Testimony

ALJ Haubner held a hearing on October 4, 2007, in Fresno, California. Plaintiff appeared and was represented by Richard Hundal. Vocational Expert ("VE") Thomas C. Dachelet also provided testimony. AR 353.*fn3

Plaintiff was born September 3, 1965. AR 361. Concerning her educational background, Plaintiff possesses a GED. AR 361. She became disabled on January 3, 2006. AR 361.

Plaintiff lives with her husband of twenty-five years and their four children. AR 362. Two of her children, ages nineteen and twenty, are disabled. She drives them to their special needs school and to doctor visits, and ensures they bathe themselves and take their medication. AR 362. The children dress themselves, but require reminders about brushing their teeth. AR 363.

Plaintiff can attend to her own personal needs, including brushing her teeth, dressing, bathing and hygiene. AR 363. She cooks and does so on a nightly basis. AR 363. She also does simple meal preparation, such as making a sandwich or heating something in the microwave, and will do so two or three times a day. AR 364. Plaintiff does the grocery shopping twice a week, and shops for other necessities once a month. AR 367.

Plaintiff may wash dishes twice a week or so, otherwise that chore is handled by her children. AR 364-365. She does laundry twice a day, and makes the bed about once a week.

She will change the sheets on the bed "probably twice a week." AR 365-366. Plaintiff dusts every day, and vacuums or sweeps once a week. AR 366. She does not take out the trash, mop the floors or wash the windows. AR 367.

Plaintiff testified that she does not have any pets*fn4 or livestock to care for, nor does she perform any yard work. AR 367.

Plaintiff does not attend church*fn5 or other club or group based activities on a regular basis. AR 367. She visits with family or friends about three times a month, but speaks to them on the telephone everyday. AR 367.

About three times a week, Plaintiff drives her SUV to take the children places. She does not drive them to school on a regular basis however as a bus will pick them up. AR 368.

With regard to medical treatment, Plaintiff testified that she is fully compliant and follows all treatment recommendations and takes all medications as prescribed. AR 369. Plaintiff's condition has worsened in the last five years. AR 369. She sees a psychiatrist every three months and is taking Zoloft to treat depression. AR 369-370. Plaintiff sees her orthopedist about three times annually, and did so about three months prior to the date of the hearing. On that occasion, the doctor advised she was permanent and stationary. AR 383-384.

Plaintiff testified that she can lift about twenty pounds, could stand and sit for about ten minutes, and can walk about four blocks before needing to rest. AR 370. She indicated that out of an eight hour period, she would need to elevate her feet for about four of the eight hours. AR 370-371. She has difficulty concentrating or paying attention and testified that she can concentrate for about fifteen minutes at the most. She wakes frequently during the night. AR 371.

When asked how she got along with strangers while shopping, for example, Plaintiff replied that she was "okay." AR 371. She reads every day for about thirty minutes, watches about an hour of television a day, and walks the dogs for about fifteen minutes around the perimeter of the family home. AR 371-372. She also uses the computer for about two hours a day, at fifteen minutes intervals. AR 372-373.

In response to questioning by her attorney, Plaintiff testified that she has been wearing ankle braces for five years, and does so for "eight hours a day at least." She removes the brace when she goes to bed at night. AR 383.

VE Dachelet testified that Plaintiff's past relevant work was classified as sedentary, semi-skilled. AR 374-375. The associated skills were bookkeeping, telephone, oral and written communication, hospital records keeping system, and simple computer skills. AR 375. The skills are transferable within the sedentary, semi-skilled, light clerical classification. AR 375.

The VE was asked to assume a worker of Plaintiff's education and work experience, who can stand and walk four hours in an eight-hour day, without an assistive device, can lift five pounds frequently and fifteen pounds occasionally, and postural activities would be limited if weight bearing on the ankle were required. The VE testified that this person could perform Plaintiff's past relevant work. AR 376. Alternatively, the hypothetical worker could also perform unskilled sedentary work, and semi-skilled sedentary clerical work. There are 68,305 positions in the general clerical class within California. AR 377.

In the second hypothetical, the VE was asked about a worker with Plaintiff's education and work experience, who: can lift and carry twenty pounds occasionally, less than ten pounds frequently; can stand and walk for two hours in an eight-hour period; sit for six hours in an eight-hour period; push or pull lower extremities, yet only occasionally with the right ankle; cannot use ladders, ropes, or scaffolds; can occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl; and should avoid even moderate exposure to vibration and hazards such as machinery and heights. AR 377-378. VE Dachelet testified that this worker could perform the same past relevant work as the previous hypothetical worker. AR 378.

In the third hypothetical, the VE was asked about a person who was able to maintain attention and concentration, relate appropriately to others, can handle funds, carry out, remember and understand simple instructions, is able to respond appropriately to usual work situations, and changes in routine. The VE testified that these restrictions would allow semi-skilled work, and thus past relevant work is available. AR 378-379. This hypothetical worker could also perform all other unskilled, sedentary work. AR 379.

In the fourth hypothetical, the VE was asked about an individual with limitations involving sitting for two hours of an eight-hour day, and standing or walking for four hours of an eight-hour day. There is no past relevant work for this hypothetical worker because the limitations permit only six hours of work in an eight-hour workday. AR 379-380.

In the fifth hypothetical, the VE was asked about an individual with limitations involving frequent interference with attention and concentration, capable of low stress, who can walk four blocks, sit for thirty minutes at a time, stand for twenty minutes at a time, can sit about two hours of an eight-hour day and stand and walk about four hours in an eight-hour day. Those limitations, the VE testified, would "close the world of work" to the hypothetical worker. No past relevant work would apply. AR 380.

In the sixth hypothetical, the worker is moderately limited in the ability to remember locations and workplace procedures, to understand and remember short, simple one or two-step instructions, to understand detailed instructions, to maintain attention and concentration. These limitations would also "close the world of work," including past relevant work, to the hypothetical worker. AR 380-381.

In the final hypothetical, the VE was asked about a worker with Plaintiff's education and work experience, who could concentrate in fifteen-minute increments, lift and carry twenty pounds, stand and sit for ten minutes at a time each, walk four blocks, and must elevate his or her feet for four hours in an eight-hour workday. The VE testified that such a worker could not perform Plaintiff's past relevant work, nor could this person perform other generally occurring work. AR 381.

Medical Record

The entire record was reviewed by the Court, however, only those portions relevant to the instant proceedings are briefly summarized below.

1. Claude M. Schutz

On February 9, 2004, Claude M. Schutz, D.P.M., completed a Summary Progress Report regarding Plaintiff's injury. AR 233-235. Plaintiff was referred to Dr. Schutz on March 14, 2002. That examination was negative for "push-pull and for inversion-eversion stress," and Plaintiff was provided an ankle brace. Subsequent CT scan and MRI "revealed a cystic mass in the sinus tarsi calcaneus area just under the joint." AR 233. Following pain management treatment, and continued complaints of pain, Plaintiff underwent surgical intervention on May 6, 2003. AR 234. The cyst, located "very close to the subtalar joint" was removed. AR 234. Plaintiff improved and felt about forty percent better than she had prior to surgery. Continued improvement brought post-surgical improvement of "approximately 65-70%" as compared to prior to surgery. AR 234. Orthotics were ordered and pain management continued. Dr. Schutz noted "the patient feels definitely improved since the injury and since the surgery, although she still has difficulty getting through a day without some symptoms, sometimes lasting all day." AR 234. Dr. Schutz found Plaintiff permanent and stationary at that time. AR 235.

On April 16, 2006, Dr. Schutz completed a "Residual Functional Capacity Questionnaire." AR 319-322. He diagnosed neuralgia and regional complex pain syndrome and indicated Plaintiff's prognosis was guarded. He indicated she "can't stand, can't sit too long," and feels pain everyday. The doctor noted emotional factors of "depression" and increased crying, mood swings and sleep disturbance. AR 319. Dr. Schutz believed Plaintiff was capable of low stress job because she was "frustrated with pain hurting her ability to things - takes much longer as breaks are required." AR 320. The doctor indicated Plaintiff: could walk four blocks without rest or severe pain, could sit for thirty minutes at one time, stand for twenty minutes at one time, sit about two hours total in an eight-hour day, stand or walk about four hours in an eight-hour day, take numerous breaks, and would need to elevate her leg waist-high about forty percent of an eight-hour work day. AR 320-321. Plaintiff could occasionally lift less than ten pounds, rarely lift more than ten pounds and never lift twenty or fifty pounds. AR 321. She could occasionally twist and stoop, rarely crouch and climb stairs, and never climb ladders. AR 322. Plaintiff was likely to be absent about four days per month as a result of her impairments. AR 322.

In a "Podiatry Progress Note" dated May 7, 2007, Dr. Schutz advises that Plaintiff is permanent and stationary and "that what can be done to this patient has been done." The doctor handwrote "[patient] is unable to work and will not return to the work force due to the chronicity of her symptoms." AR 294.

On August 3, 2007, Dr. Schutz completed a "Multiple Impairment Questionnaire." AR 311-318. Referring to Plaintiff's appointment on May 7, 2007, Dr. Schutz indicated his diagnosis was "neuralgia & regional complex pain syndrome" with a prognosis of "poor to fair." AR 311. Due to pain and burning sensations in her right foot, the doctor indicated his patient could not "stand or sit too long." AR 311. He indicated Plaintiff's pain was "constant" and assigned her pain a seven on a scale of one-to-ten. He assigned fatigue a four on the same scale. AR 313. Considering a five day work environment, Dr. Schutz indicated Plaintiff could sit for two hours, and stand or walk for four hours. The doctor indicated it would be necessary or medically recommended that Plaintiff not sit continuously, and that she must get up and move around every thirty minutes. AR 313. Plaintiff could occasionally lift and carry up to ten pounds, but she could never lift or carry more than ten pounds. AR 314. Dr. Schutz indicated that Plaintiff's symptoms would "likely increase if he/she were placed in a competitive work environment." AR 315. The doctor indicated that Plaintiff experienced "pain, fatigue or other symptoms severe enough to interfere with attention and concentration" on a frequent basis. AR 316. He indicated that emotional factors contribute, and that the condition will last twelve months or more. AR 316. In response to "[t]o what degree can your patient tolerate work stress," Dr. Schutz wrote "do not know." AR 316. He believed Plaintiff would likely be absent "[m]ore than three times a month" from work as a result of her impairment. AR 317. Asked what other limitations would affect his patient, Dr. Schutz indicated "psychological limitations" in addition to prohibiting pushing, pulling, kneeling, or bending. AR 317.

2. Roy O. Kroeker

On May 19, 2004, Roy O. Kroeker, D.P.M., performed a comprehensive medical/legal podiatric orthopedic evaluation of Plaintiff. AR 141-153.

Plaintiff related that she fell on January 30, 2002, as she left the billing department at John C. Fremont Hospital where she was employed as a billing clerk. She slipped on ice and fell, injuring her right ankle. A strain was diagnosed in the hospital's emergency room. A splint was applied and Plaintiff was off of work for five days, before returning to work on a modified schedule.

A subsequent provider ordered a CT scan and a bone cyst was found in the right calcaneus. Plaintiff was treated for pain by Dr. Ramnanan, who presumed reflex sympathetic dystrophy and administered two injections. Various pain medications were prescribed, yet Plaintiff indicated the medication did not provide significant relief. The cyst was excised in surgery and initially Plaintiff said she experienced some relief, but after returning to work, the pain worsened. AR 142.

Plaintiff advised Dr. Kroeker of a significant popping noise that occurs ten to fifteen times a day, causing immediate pain. She was using a fracture equalizer walker for stability. AR 142. Plaintiff complained of constant, throbbing pain. Walking increases her discomfort. She can walk a quarter block without the walker, but then the pain is so bad she almost has to stop. AR 143. Plaintiff was observed with a noticeable limp on the right side and had difficulty moving on and off the examination table. AR 144.

Dr. Kroeker's examination noted decreased motor strength on the right side due to pain, yet the doctor could not completely able to evaluate the strength or lack thereof. AR 144. Plaintiff's ankle exhibited no edema, laxity or instability. The doctor noted that "[j]ust about anywhere [he] touched or held her right foot caused significant pain and she jumped and/or withdrew." AR 144. Asked to walk a thirty foot runway, Plaintiff had to balance with both hands against the walls. She guardedly placed her right foot and heel down and would not swing her arms even when asked to try. She could not walk on her toes or heels. AR 145.

Dr. Kroeker's impression was status post slip and fall injury, i.e., strain/sprain syndrome, right lateral ankle, status post incision, drainage and packing of calcaneal cyst via subtalar joint, and chronic persistent pain. AR 149.

The doctor found Plaintiff had a "mild component of reflect sympathetic dystrophy," but the injections had been beneficial. Dr. Kroeker offered no treatment recommendation at that time. He concurred with Dr. Schutz that Plaintiff was permanent and stationary, noting that Plaintiff has only "mild atrophy" with an unquantifiable decrease in strength. The doctor found Plaintiff capable of ...

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