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Harvey v. Astrue

September 30, 2009

YOLANDA L. HARVEY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Yolanda L. Harvey ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications 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 Dennis L. Beck, United States Magistrate Judge.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed her applications on January 19, 2006, alleging disability since May 1, 2003, due to torn ligaments in her knee and ankle. AR 97-98, 124-130. Her applications were denied initially and on reconsideration, and Plaintiff requested a hearing before an administrative law judge. AR 55-58, 60-64, 66-70, 72. On May 20, 2008, Administrative Law Judge ("ALJ") Christopher Larsen held hearing. AR 14-36. He denied benefits on July 24, 2008. AR 5-13. On September 26, 2008, the Appeals Council denied review. AR 1-4.

Hearing Testimony

On May 20, 2008, ALJ Larson held a hearing in Bakersfield, California. Plaintiff appeared with her attorney, Geoffrey Hayden. Vocational expert ("VE") Linda Ferra also appeared and testified. AR 14.

Plaintiff testified that she was 35 years old at the time of the hearing. She completed the tenth grade and can read and write. Plaintiff is 5 feet, 4 inches tall and weighs 260 pounds. She does not have a driver's license and does not drive a car. AR 21. Plaintiff tried to drive, but could not because her knee hurt too much. AR 32. She lives with her mother and her three children and receives AFDC. AR 27.

Plaintiff last worked in 2002 operating a bench press. AR 21. She worked in that position for 11 months, but left when she injured her knee after a trip and fall. AR 22. Prior to that position, she also worked in a security position and as an assembler. AR 23. Plaintiff testified that she could not work now because of her right knee, which causes constant pain. Plaintiff had surgery on the knee but did not believe it was successful. Plaintiff thought she could walk for 20 minutes before needing to stop and sit. AR 23. She could lift and carry less than 10 pounds without pain. Plaintiff thought that she could sit for 20-30 minutes before needing to stand. Her most comfortable position was laying down. AR 24. Plaintiff uses a cane and braces for her ankle and knee. AR 27.

Plaintiff also testified that she gets tingling sensations in her hands and wrists. She has been diagnosed with carpal tunnel syndrome ("CTS") and wears braces on her wrists. AR 24. Plaintiff has problems with headaches, as well, and estimated that she got them three times a week. AR 25.

Plaintiff also fractured her right ankle when her knee gave out as she was stepping down. The ankle has not healed completely and causes a constant, throbbing pain. AR 25. Plaintiff rated her daily pain as an eight to nine, on a scale of one to ten. AR 26. She takes 800 milligrams of ibuprofen and Aleve. She has had physical therapy and believed that it helped. AR 26.

During the day, Plaintiff testified that she lays down and elevates her leg for a couple of hours. She could not kneel, stoop or squat to the ground. AR 28. Plaintiff does not do housework, and does not cook or grocery shop. AR 29. She also has trouble putting her shoes on and cannot stay in the shower very long. Her hands and feet get numb about three times a week. AR 29.

Plaintiff does not have a social life and does not exercise. She did not feel that she was getting any better. AR 29. Two doctors have told her that she needs a knee replacement, but that she is too young. AR 30.

For the first hypothetical question, the ALJ asked the VE to assume a person of Plaintiff's age, education and work experience. This person could lift and carry 20 pounds occasionally, 10 pounds frequently, stand and walk for a total of six hours and sit for a total of six hours. This person could not perform any forceful pushing or pulling with her right leg, and could not climb ladders, ropes or scaffolds. This person could occasionally kneel, crouch, crawl and climb ramps or stairs. She could frequently balance and stoop, but had to avoid concentrated exposure to hazards. The VE testified that this person could perform Plaintiff's past job as a security guard. AR 33.

For the second hypothetical, the ALJ asked the VE to assume that this person can lift and carry 10 pounds occasionally, less than 10 pounds frequently. This person could stand and walk for a total of two hours and sit for a total of six hours. She could never climb ladders, ropes or scaffolds and could never kneel or crouch. This person must avoid concentrated exposure to hazards. The VE testified that this person could not perform Plaintiff's past jobs and could not perform any other jobs in the national economy. AR 33-34.

If a limitation to occasional handling, fingering or feeling with bilateral hands was added, this person could not perform any work. AR 34.

Similarly, if this person could stand and walk for less than two hours and sit for less than six, this person ...


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