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Johnson v. Astrue

September 29, 2009



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Income Benefits ("DIB") under Title II the Social Security Act ("Act"). For the reasons discussed below, the court grants plaintiff's motion for remand.


Plaintiff, born May 13, 1960, applied for benefits on February 14, 2005. Administrative Record ("AR") 57-59. Plaintiff stated that she became unable to work on December 12, 2001, due to "fibromyalgia, back and neck problems." AR 57, 72, 79.

At the April 13, 2006 hearing before administrative law judge ("ALJ") Richard D. Wurdeman, plaintiff appeared without counsel. AR 182. Plaintiff's husband was in attendance, but did not testify. AR 198. Plaintiff testified that she finished the tenth grade, then earned certificates in Police Dispatch and typing. She testified that she most recently helped in a tax preparation service in 2004, but left because the job was too pressured since she hadn't obtained adequate training. AR 188. Prior to that, plaintiff ran an Espresso Coffee Cart that she and her husband bought, but plaintiff quit after one summer because "I couldn't do it anymore . . . I had to get out of my truck and then get into the Espresso Cart which I was towing behind my truck and I would serve customers and then I would come back out of the Cart, get back into the truck and then to different businesses. . ." AR 189. She testified that she had to stop "[b]ecause I couldn't get in and out of truck and in and out of the cart constantly." Id.

Her previous job was assembling explosives at BF Goodrich, which involved standing most of the time, but also sitting at a table assembling parts. AR 189-190. She left that job due to stress, and the failure of her supervisor to provide a stepping stool that would permit plaintiff to reach a particular task. AR 190. A stepping stool was not provided, yet the supervisor continued to write plaintiff up for bending materials as a result of the inadequate reach, which increased the level of stress. Id. Plaintiff stated she previously worked at a series of assembler jobs ("Production Assembly, Shipping, Receiving"), and prior to that was self-employed as a ceramics maker. Id.

Plaintiff testified that she has fibromyalgia, which causes her "pain throughout my body, pain and stiffness," including shooting pains. AR 191. She stated that only Prednisone makes her pain-free and able to "get around like a normal person," but her doctors will only prescribe it for two weeks every six months, due to its side effects. AR 191-192. Meanwhile, plaintiff takes Motrin, to reduce inflammation and help her osteoarthritis, but it doesn't help, and Vicodin, which she only takes once or twice a week to help her relax and sleep. AR 196-197.

Plaintiff stated that she first realized she has fibromyalgia after she quit her job with BF Goodrich, when she was diagnosed by her doctor upon physical exam for complaints of flu-like symptoms, severe pain, difficulty getting out of bed and walking. AR 192. Plaintiff stated that she also has independent back and neck pain. AR 192. She indicated that an office wall partition fell on her lower back, and her neck popped when she was washing her hair. AR 183.

In describing her physical symptoms, plaintiff stated there are times when she can walk okay, other times when she can barely walk. AR 192. Plaintiff uses a treadmill at home about twice a week, for five to ten minutes each time, but it wears her out. AR 193. She also tries to walk with her husband once or twice a week around the neighborhood, for about a quarter mile. Id. Plaintiff testified that her pain varies, "every day's different," "[t]omorrow I may be able to sit in a chair for three hours [b]ut I have to constantly move, I can't just sit there." AR 194, 193.

Plaintiff testified that she cooks and can do laundry, although her husband recently took over the laundry "because my hip and my neck, ha[ve] really been bothering me," AR 193. Plaintiff's husband does most of the vacuuming. Id. Plaintiff goes shopping about once a week for groceries, usually with her husband, and can drive her car on short errands (e.g., post office, gas station, grocery store) around her small town (Rio Vista). AR 195-196. Plaintiff stated that she can carry a light bag of groceries. AR 195. However, plaintiff stated, "if I do something today, I know, I'm going to hurt tomorrow." AR 195.

Recreational activities include watching TV, reading, going out for a drive or a walk. AR 193-194. Plaintiff used to go fishing with her husband, and it was okay if she took a pillow and blanket for sitting in the boat, but she hasn't gone fishing in a year. AR 194. The last long trip they took together was two years previous, when her husband drove to Washington and back, but it was not comfortable. AR 195-196.

A vocational expert testified thereafter. The ALJ posed the following hypothetical question: "[L]et's assume we have an individual of Mrs. Johnson's age, vocational, educational background. Let's put her at the . . . sedentary level of exertion, with the freedom to stand on at least a half hourly basis, for a short period . . . how would that erode the sedentary job market?" AR 201. The vocational expert responded that this limitation would erode a job base of "millions" by "maybe fifteen percent," still leaving a job base of "millions." Id.

The ALJ issued a decision on April 27, 2006, finding that plaintiff is not disabled..*fn1 AR 19-22. The ALJ made the following findings:

1. Claimant met the disability insured status requirements of the Act on December 12, 2001, the date she stated she became unable to work.

2. Claimant has not performed SGA [substantial gainful activity] since December 12, 2001.

3. The medical evidence establishes that claimant has the severe impairment of fibromyalgia.

4. Claimant's severe impairment does not meet or equal any listed impairment of Appendix 1, Subpart P of Social Security Administration Regulation No. 4.

5. Claimant has an RFC [residual functional capacity] for employment at the sedentary exertional level with standing every 30 minutes.

6. Claimant's subjective complaints are not fully credible.

7. Claimant does not retain the RFC to perform her past relevant work.

8. Claimant is a younger individual with a limited education and past relevant work as a route truck driver, an explosives operator I, a ceramic maker and demonstrator, a warehouse person, and an assembler.

9. Based upon claimant's RFC and vocational factors, there are jobs existing in significant numbers within the national economy that she can perform.

10. Claimant was not under a "disability" as defined in the Social Security Act, at any time through the date of this decision (20 C.F.R. § 404.1520(f)).

On November 30, 2007, the Appeals Council denied plaintiff's request for review, and the ALJ's decision became the final ...

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