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Cottrill v. Astrue

October 14, 2009


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



Plaintiff Vicki Cottrill ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income pursuant to Title 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.*fn1


Plaintiff filed her application on December 3, 2004, alleging disability since December 1, 1989, due to mental illness, neuropathy and degenerative disc disease. AR 63, 139-144. After being denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 25-29, 31-35, 37. On June 19, 2007, ALJ Peter Valentino held a hearing. AR 418-465. He denied benefits on August 25, 2007. AR 10-19. The Appeals Council denied review on December 12, 2007. AR 3-6.

Hearing Testimony

ALJ Valentino held a hearing on June 19, 2007, in Bakersfield, California. Plaintiff appeared with her attorney, Geoffrey Hayden. Vocational expert ("VE") Mary Jesko and Medical Expert George Weilepp also appeared and testified. AR 418.

Plaintiff testified that she was 53 years old at the time of the hearing and completed vocational school. AR 442. She testified that she was currently living with her parents and had not worked for "quite a long time." AR 424. She stopped working in 2001 because the doctors she worked for could not tolerate her crying. AR 431. Later in the hearing, Plaintiff testified that she last worked in 1989 and that she wasn't sure how she selected an onset date in 2001. AR 450.

Plaintiff has been using a walker since 1989, when she was in a convalescent home for three or four months to learn how to walk again. AR 420, 443. Plaintiff helps her disabled parents "straighten up stuff" and takes care of her dog and birds. AR 426-427. She has a driver's license and drives to her doctor appointments and sometimes takes her mother shopping. AR 428. Since 2005, Plaintiff's treatment has consisted of receiving medication for her back and depression. AR 421.

Medical Expert Dr. Weilepp testified that Plaintiff had a pain disorder with chronic back symptoms, was not overweight, had no known trauma and has no neurological findings. In terms of functioning, her pain disorder was the major issue. Although he initially thought that the disorder was mild, he determined it was more than mild because Plaintiff was taking narcotics. This is especially true given her remote history of alcoholism, under some control, and anxiety symptoms. AR 434. He did not see any objective evidence of a mental deficiency, though her medications could cause such a problem. AR 436. Despite this, Dr. Weilepp testified that he would encourage Plaintiff to try and find a job and decrease her medications. AR 434. He determined that Plaintiff was capable of restricted light work. She would be marginally restricted in sitting, standing and walking and could not continuously kneel, crawl, squat, bend or lift. Plaintiff could not climb ladders and had to avoid heights, industrial driving and extremes of cold and vibration. AR 435.

When questioned by the ALJ, Plaintiff testified that when she was not doing light housework for her parents, she was out in the back yard with her animals. AR 437. She collects cans and bottles for recycling by tying a bag to her walker, though she has to have someone help her load the cans into the truck. AR 438, 443. Plaintiff also visits friends and family. AR 447.

Plaintiff has constant tingling in her hands and feet and has headaches every day. AR 444-445. She is also in pain everyday, with the worst pain in her lower back. The pain shoots down to her legs, and Plaintiff rated her pain as an eight out of ten because she has a high tolerance and "fight[s] it." Her medications do not cause side effects, though she lays down during the day. AR 444. Psychologically, Plaintiff testified that she gets very depressed and cries a lot, and then cannot function. AR 447.

Plaintiff thought she could lift about two or three pounds and walk about a block. AR 445. Her ability to stand depends on the day. Some days, she could stand for 45 minutes at a time. Bending at the waist hurts her back and she could not kneel, stoop or squat without pain. AR 446. When she grocery shops, she uses the cart for support and her father loads the groceries. AR 446.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age and education, with no past relevant work. This person could not perform continuous kneeling or bending, could not climb ladders, ropes or scaffolds and could not tolerate exposure to extreme cold and heat, unprotected heights or vibrations. This person could not lift or carry more than 10 pounds frequently, 20 pounds occasionally. The VE testified that this person could perform light jobs such as small parts assembler and gluer. AR 452-453. Even if this person could lift 10 pounds maximum, these positions would be available because the jobs are classified as light work due to the repetitive use of the upper extremities, not the weight level. AR 456-462.

If this person was limited to unskilled sedentary work, she would be disabled under the Medical Vocational Guidelines ("Grids"). AR 454.

Medical Record

A January 8, 2004, MRI of Plaintiff's lumbar spine revealed degenerative disc narrowing and spondylosis at L5-S1. AR 282.

On March 19, 2004, Plaintiff saw Son T. Dinh, M.D., for complaints of radiating low back pain. Palpation revealed tenderness over the lumbar and sacral areas, as well as over the bilateral sciatic notches. Straight leg testing was negative and sensation was intact. Muscle strength was five out of five in both lower extremities. Dr. Dinh diagnosed lumbar degenerative disc disease, depression and hepatitis C. He recommended that Plaintiff have a trial of lumbar epidural injections. AR 283-284.

On May 20, 2004, Plaintiff was seen at the Kern County Medical Center. She reported no problems with activities of daily living or ambulating. She complained of chronic low back pain with radiation into her left leg, though she reported that naprosyn and neurontin helped. AR 200-203. Plaintiff continued to receive medication refills through October 4, 2004. AR 308.

On April 6, 2005, Plaintiff saw John K. Zhang, Psy.D., for a psychological evaluation. Plaintiff reported that she has been unable to work for the past three years because of mental and physical problems. She further reported that she spends most of her afternoons conducting housekeeping chores in exchange for rent. She also stated that she has a few friends, socializes regularly and sleeps adequately. On examination, her mood and affect were unremarkable and her speech and psychomotor activity were within normal limits. Plaintiff appeared to be functioning at slightly below average, though she had adequate memory and concentration. Plaintiff was alert and oriented and showed no signs of a thought disorder. Dr. Zhang diagnosed Plaintiff with dysthymic disorder and opined that her primary impairment was medical in nature.

Psychiatrically, he noted that Plaintiff was suffering from "rather mild but chronic symptoms of depression," though her mental status did not suggest any functional limitations. AR 222-224.

Plaintiff returned to Kern County Medical Center on April 7, 2005, for refills of Zoloft, Prevacid and naprosyn. She had no new complaints. AR 226-227.

On April 10, 2005, Plaintiff saw Min-Ning Huang, M.D., for a comprehensive orthopedic examination. Plaintiff reported constant, radiating back pain. She rated it as a ten out of ten, but felt that pain medication helped. She also complained of numbness in both hands and both feet. Plaintiff stated that she could walk one block and stand for about 30 minutes, though she does all daily activities herself. Plaintiff is able to wash dishes and do laundry but can no longer mop or vacuum. AR 243-244.

On examination, Plaintiff was in no acute distress even though she rated her pain as a ten. She could get on and off the examination table without difficulty, sit comfortably and take her shoes on and off. Plaintiff had normal gait and coordination and did not use an assistive device. She had pain in all lumbar ranges of motion and straight leg raising caused pain in both sides of her lower back. Plaintiff had lower back pain starting at the L4 level all the way down to the sacral area, but no paraspinal muscle spasms. Strength was five out of five throughout and sensation was intact. Dr. Huang diagnosed chronic low back pain most likely due to discogenic pain. Other than local tenderness, Dr. Huang noted that the examination was unremarkable, and even though she rated her pain as a ten, she completed the examination without difficulty and was in no distress. However, because her x-ray revealed markedly reduced disc space between L5-S1, Dr. Huang believed that Plaintiff could walk for four to six hours and sit for four to ...

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