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Gomar v. Astrue

September 11, 2009


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



Plaintiff Marcie R. Gomar ("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 February 22, 2006, Plaintiff filed applications for disability insurance benefits and supplemental security income, alleging disability since February 18, 2005, due to arthritis, nerve damage, sciatica, pain in shoulders, and back and leg problems. AR 51, 58. The applications were denied initially and upon reconsideration. AR 9. Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"). AR 9. ALJ David E. Flierl held a hearing on November 6, 2007, and issued an order denying benefits on January 22, 2008. AR 6, 9-14. On March 14, 2008, the Appeals Council denied review. AR 1-3.

Hearing Testimony

ALJ Flierl held a hearing on November 6, 2007, in Fresno, California. Plaintiff appeared and testified. She was represented by Robert A. Ishikawa. AR 17. Vocational Expert ("VE") Jose Chaparro also testified. AR 21, 35-36.

Plaintiff testified that she was thirty-six years old at the time of the hearing. She held a valid California driver's license, and her source of income at that time was child support. AR 18.

Plaintiff completed high school, had no problems reading or writing, and had worked as a phlebotomist and a transcriber at a hospital within the last fifteen years. AR 19-20. As a phlebotomist, Plaintiff was sometimes required to lift biohazard containers weighing twenty pounds or more. AR 19. She would do so every evening, at the end of her shift. AR 19. When her license expired, Plaintiff transferred from a laboratory assistant to a ward clerk transcriber. AR 19-20.

Plaintiff testified that she had last worked on February 18, 2005. When asked why, she said that she had sustained an injury to her back while helping her husband tile their house. Shortly thereafter, Plaintiff could no longer bend, or move. AR 22.

Although Kaiser had asked her to return to work, they could not extend Plaintiff's doctor's note past fourteen months, because they had to fill her position. AR 22. At the time, Plaintiff was experiencing severe pain. She could not stand for prolonged periods of time, and therefore had to give up her position at Kaiser. AR 22.

Plaintiff testified that she was still experiencing severe pain from the waist down. The pain extended from the right knee, up to her waist and lower back. AR 23. Plaintiff described a sporadic tingling, numbness, and fiery sensation in her right leg, and testified that her knee had often gone out from under her, causing her to collapse. AR 23. On her left side, the pain extended from her buttocks to the heel of her left foot. Plaintiff testified that the pain was constant on the left side, and rarely subsided. AR 23. In addition, the pain in the left leg was often exacerbated by sciatica. AR 23.

When asked how the pain had affected her, Plaintiff testified that the pain was severely debilitating. She stated that she could not stand for long periods of time, and that the numbness in her leg was especially terrifying since she had fallen over on several occasions. AR 24. She also testified that the pain had affected her household, since she was precluded from performing many of her previous chores. AR 24. Plaintiff stated that the financial impact was also significant, since receipt of child support had made her ineligible for any other benefits, and she no longer had a steady stream of income. AR 25.

Plaintiff indicated she could not stand for more than fifteen minutes at a time. Cumulatively, she could not stand longer than an hour in an eight-hour day. AR 25. Plaintiff testified that she could sit for thirty to forty minutes at a stretch, but could not sit for more than two hours in an eight-hour day. AR 25. When asked what might happen if she exceeded the two hours, Plaintiff said that she would grow restless trying to find a comfortable position. AR 25.

Plaintiff habitually lays down for fifteen to twenty minutes each day and testified that she had trouble sleeping because the lingering pain would keep her awake. As a result, she would try to nap whenever the pain was tolerable. AR 26.

Plaintiff testified that she could lift up to fifteen pounds, but generally refrained from doing so. She only carried a few light bags of groceries, leaving the rest to her children. AR 27. She also testified that the pain affected her concentration, which in turn affected her ability to read or watch television. AR 27.

Plaintiff claimed that she had been prescribed Extra Strength Vicodin, and when not on Vicodin, she relied on Darvocet. She had also been prescribed Motrin 800 for the recent pain in her shoulders and arms. AR 28. Plaintiff claimed that the Vicodin would tend to keep her up at night, and that although it would ameliorate the pain, it would not eliminate it. Plaintiff also testified that the Vicodin was often alternated with Toradol. AR 28.

According to Plaintiff, she lived in a house with her three teenage children, aged sixteen, fifteen and fourteen respectively. Due to her inability to do household work, Plaintiff had a sister from church come in once a week. In the interim, Plaintiff's children did most of the house work. AR 30. Plaintiff was barely able to cook, and relied heavily on her rice cooker and crock pot. AR 30. She did her own laundry two times a week, while the children did their own laundry. AR 30. Plaintiff testified that she attended church Tuesday and Wednesday nights, and also attended church twice on Sundays. AR 31. She went out for groceries once a week, and visited her doctor occasionally. AR 31. Plaintiff visited Dr. Nguyen at the Hillman Clinic every few months after her insurance had terminated. AR 31, Plaintiff testified that she avoided bending, or stooping at all costs. AR 32. She had received four cortisol injections in her spine. AR 33. Although Plaintiff had been sent for an MRI, two different places were unable to conduct the procedure because Plaintiff would not fit in their machine. AR 22. Plaintiff claimed that her previous doctor, a specialist at Bellflower, had told her that she was not a spinal surgery candidate. AR 22-23.

Plaintiff also testified that her previous doctor had recommended acupuncture, but she no longer had her insurance with Kaiser and could not afford it otherwise. AR 34. She claimed to have undergone physical therapy in regard to a past incident in which she had fallen in her tub, and also attended three to four sessions with a chiropractor. AR 34.

Finally, when asked whether Plaintiff knew that many of her problems were the result of her excessive weight, Plaintiff stated that Dr. Nguyen had, on occasion, advised that she lose some weight and she added that she would willingly undergo gastric bypass if only her insurance would cover it. AR 35.

During the hearing, VE Chaparro also testified. When asked to classify Plaintiff's past work as to skill and exertion level, the VE indicated that her work as a phlebotomist is classified as light semi-skilled, and her work as a ward clerk transcriber is classified as light semi-skilled as well. AR 21. For the first hypothetical, the VE was asked to consider a person, thirty-three years of age at the alleged onset date, education and past relevant work as discussed earlier. He was asked to assume that such a person was limited to light level of exertion, was occasionally limited regarding balancing, stooping, kneeling, crouching and crawling, and was similarly limited with regard to ramps, stairs and climbing. The VE was asked whether a person with the above limitations could perform any of his or her past relevant work. AR 35. According to the VE, such a person would be able to perform Plaintiff's past relevant work. AR 35.

The VE was then asked to consider, in addition to the above hypothetical, a person who would be unable to maintain attention and concentration for one hour increments because of severe pain syndrome. When asked whether this would affect the occupational base, the VE replied that this would ...

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