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Maldonado v. Astrue

September 30, 2009

DIANA M. MALDONADO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



ORDER

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

I. BACKGROUND

Plaintiff, born April 14, 1971, applied for SSI on February 5, 2003,*fn1 alleging disability since November 1, 1999, due to "[F]ybromyalgia, [G]raves [disease], [C]ushings [disease], asthma, [and] acid reflux, depression." Administrative Record ("AR") 93, 98. Plaintiff stated in her application that she is unable to work because "I can not stand, sit for long periods of time, [] can not lift and sometimes I have no use of body parts because of pain or because of numbness." Id. at 98.

Three administrative hearings were held to consider plaintiff's applications. AR at 806-898. Pursuant to the first hearing, held August 13, 2004, the administrative law judge ("ALJ") Antonio Acevedo-Torres issued a decision on December 20, 2004, finding that plaintiff is not disabled. Id. at 806-831, 53-59. On April 1, 2005, the Appeals Council remanded the case to the ALJ with instructions to give further consideration to the medical opinions, explain the weight given to each, and to further consider plaintiff's residual functional capacity. Id. at 85-86. A supplemental hearing was held on November 23, 2005, pursuant to which ALJ Acevedo-Torres issued a new decision on February 27, 2006, again finding plaintiff not disabled. Id. at 832-855, 41-48. On April 28, 2006, the Appeals Council again remanded the case, directing the ALJ to assess plaintiff's mental impairment pursuant to 20 C.F.R. § 416.920a, to give more thorough consideration to the medical opinions, explain the weight given to each, to consider whether to obtain medical expert and vocational expert evidence, and to reassess plaintiff's residual functional capacity. Id. at 88-91. Another supplemental hearing was held on November 30, 2006, before ALJ Stanley Hogg, who, on February 21, 2007, issued the decision presently under review, again finding plaintiff not disabled.*fn2 Id. at 856-898, 9-22.

Plaintiff was born April 14, 1971, AR 93, has three minor daughters, AR 811, attended high school until tenth grade, and thereafter took some college classes. AR 809. She previously worked as a medical office assistant, from 1998 to 2001, and as a customer service assistant for a teleservice company, for six months in 2002, while at the same time working as a cashier at a Taco Bell. AR 99, 114, 123-130. Previous to these jobs, plaintiff worked for a few months in 2001 as a cashier at a Jimboy's Tacos; then as a customer service assistant at Pacific Bell for 21/2 months, where she was let go because she failed part of the training test. AR 115. Plaintiff stated that she "tried to do 2 jobs but too much work, not enough sleep & she [her supervisor at Taco Bell] was already talking about letting me go because I hurt all the time and couldn't perform as well as some of the others." AR 114. Plaintiff thereafter left her job at Pacific Bell because "I couldn't move my hip therefore I couldn't sit or walk or stand without severe pain." Id.

At the first administrative hearing in 2004, plaintiff testified that she is unable to work because of back pain, depression and panic attacks. "The back pain is what started keeping me from working. And the depression and panic attacks now are adding to it. It's kind of like a, cyclical, my back hurts so I get depressed and I get depressed because my back hurts . . ." AR 813. Her back pain involves her "whole lower back. And it goes into my hips and my legs and my feet." AR 813-814. Plaintiff described the pain as constant. AR 815. She stated that her back pain "started after [she] had a miscarriage about four or five years ago and [it] just got really, really bad the last couple of years." AR 814. Plaintiff is sometimes unable to move her hip. AR 809, 828. She testified that she was receiving sacroiliac "SI" joint injections approximately every 6 to 8 weeks; she was also going to physical therapy, pool therapy, and taking different medications and natural therapies. AR 809. Plaintiff had physical therapy for about year, and pool therapy twice. AR 815-816. The day before the hearing, plaintiff had her first medial branch pain block. AR 810. At home, plaintiff tries to reduce her pain with Vicodin, hot baths, Epsom salts, hot showers, and heating pads. AR 814. Plaintiff has been told by medical providers that she is not a candidate for surgery because "there's not anything to operate on." AR 811.

Plaintiff testified that she has bipolar disorder, but the manic phases have disappeared with medication. AR 823. She has crying spells two or three times a month, lasting for a couple of days. AR 824. Plaintiff said that she has panic attacks sometimes when she is out by herself, like at the bank, or a grocery store, or at the doctor's office, or a church, particularly if she is with only strangers. AR 820-822, 827. Plaintiff testified that she has been receiving mental health treatment for about a year and a half.

Plaintiff also noted problems of numbness and edema in her hands. AR 817. She also has asthma, but it has been better the last few years since plaintiff began taking Singular. AR 818. Plaintiff typically uses an inhaler two or three times a day and, in the spring, uses her "pulmonary thing, the machine" three or four times a day for three or four months. AR 819.

Plaintiff testified that she takes 10 or 12 medications, to treat "bipolar, pain control, reflex, asthma, allergies" and for birth control.

Plaintiff testified that she is 5'1" tall, and weighed 218 pounds. AR 822. She estimated that she could walk half a block, stand for 15 minutes, sit for 20 to 30 minutes, and lift five pounds. AR 811. She testified that on a typical day she gets up about 10 a.m., takes a shower to relax her muscles, makes something to eat, then sits or lays in bed and watches TV. She described her activities as follows from noon to 10 p.m.: "Lay in bed and watch TV. I don't really do anything. If I need to take one of the kids somewhere I take them or if I need to go to the store or whatever I, we, go." AR 812. Plaintiff stated that she has a car but she doesn't drive much, explaining "I don't go anywhere unless I have to go like to the grocery store or to take them [her children] to school [three miles away] or whatever." AR 812-813. "During the school year I leave [the house] twice a day to go take, pick my kids up and take them to school. [] And during the summer I haven't really gone anywhere. I just, just recently put my daughter in a daycare [] because they were bored. . ." AR 820. Plaintiff testified that she has difficulty dressing, and gets dressed only two to three times a week. AR 828-829.

Asked who does the housework, plaintiff answered, "The kids do most everything. And the stuff that they don't do my mom does or other friends or family members will come and help. And my boyfriend . . . . [who] just recently quit, or, lost his job." AR 813. Asked what happens if she tries to do chores, plaintiff answered:

I get, like in the bathroom I'll wipe the sink out and wipe the top of the, the back of the toilet off and do the mirror and then I'll sit down because my feet hurt or my back hurts. And then I'll go back in later and try to do something else. So it takes me like probably three or four hours to clean just the bathroom . . . I can't do the bathtub or the shower. And sometimes I have trouble bending just to clean the toilet too because it is kind of low. So my kids usually do most of that or my mom or my boyfriend or whoever.

AR 825-826. Asked how long a typical break would be if she was doing chores, plaintiff answered: "Well, I usually break for like, probably 20 minutes because I'll watch something in the middle, you know, like lay down and watch TV and then I get interested in it and then get back up, you know, on a commercial or whatever." AR 826. Plaintiff testified that she helps her 12-year-old daughter cook three or four times a week. AR 826-827. Her daughter also does most of the shopping. AR 827. A friend takes plaintiff's children to church. AR 812.

Plaintiff testified that she has "lost all my friends. And I just close myself off. Close myself in my room and don't talk to anybody." AR 824. She stated that she never visits family members, and doesn't have any friends anymore. Id.

At the November 2005 hearing, plaintiff testified that her main problems were depression and panic attacks. AR 854. She stated that she had been seeing a psychologist at UC Davis for almost three years. Id. Plaintiff stated that her "bipolar depression" was better since she stopped taking Lithium about a year before, and that she is trying to get better through counseling rather than medication. AR 841. Plaintiff testified, "I'm trying to work with counseling instead of taking medication. I don't want to be reliant on the pills. And the panic attacks is the same thing. I want to learn how to deal with them, you know, like, like kind of like a school, try to teach myself how to deal with them or have the counselor teach me how to deal with them. I don't want a pill." AR 841. Asked if this new strategy was plaintiff's idea or that of her counselor, plaintiff stated "Mine," but added "It's just beginning." Id.

However, plaintiff testified that at least two days a week, she cries all day. AR 840. She testified that she gets panic attacks "whenever I go out" unless she can stay in the car, e.g., when she is picking up a child from school. AR 838, 840, 842. It helps to have someone come along, so she will take her mom or take her daughter, now age 15, out of school and take her to her medical appointments. AR 839. Asked how her daughter's school attendance was, plaintiff stated, "So far this year, I don't have an exact number but, I've gotten letters sent home from the school for her attendance they're going to start legal action." AR 840.

Plaintiff testified that she continued to have significant pain in her lower back, but had good days about once a week, and bad days two to three times a week. AR 843-844. She takes Vicodin and Motrin, continues to get SI joint injections, and had received two radio frequency ablations of her nerves at L3, 4, and 5. AR 845. These treatments help anywhere from 10 to 70 percent. AR 836. Physical therapy made the pain worse, stretching exercises didn't really help, and heat helps about 50% but is temporary. AR 844. Plaintiff testified that she now has constant neck pain that began two months previous. AR 846. The pain includes her head and the middle of her back. AR 846-847. Plaintiff testified that her doctors have told her she has fibromyalgia. AR 851.

Plaintiff also has pain in her left hip, which "aches and burns" and is "constantly hurting" and "tingles" if plaintiff stands too long or moves the wrong way, and she gets cramps in the hip. AR 847. The pain is so bad three or four times a month that plaintiff won't go anywhere. Id. Activities that aggravate her hip include trying to walk more than two blocks to the store, or trying to pick up or clean her home. AR 848. Plaintiff can't sweep or mop or vacuum because the repetitive motion hurts her shoulder and neck. AR 848-849. However, the numbness and swelling in plaintiff's hands has decreased. AR 850-851.

Plaintiff testified that she spends a typical day "sleeping and watching TV." AR 837, 836-838. She testified that she regularly does her own laundry, and her children do their own laundry. AR 851. The grocery shopping is generally done by "my parents and my kids and my daughter's dad." AR 852. She stated that she hasn't needed help getting dressed in a couple of months, noting that "[I]t's not very often . . . it was pretty constant at first when all this started." AR 852. However, plaintiff said she doesn't really get dressed everyday, "sweat pants and a t-shirt, you know, and house slippers." AR 853. Plaintiff testified that her older two children take the bus to and from school, while the youngest is transported by "[m]y daughter's dad or my parents or my friends drive us or I borrow their car if I need to." AR 836-837. Plaintiff no longer owns a car. AR 837. Plaintiff stated that she doesn't see her normal friends, that she doesn't want to go anywhere with them, that a couple of them had trouble with plaintiff's illness and had their own troubles to deal with. AR 842.

Plaintiff estimated that she can walk "a couple of blocks maybe on a good day if I just had my shot and I have taken my medication." She stated that she could stand about 15 or 20 minutes, and sit for 20 to 30 minutes. She was not sure how much she could lift. AR 837. She ...


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