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Garrett v. Astrue

February 9, 2010

SHARON MARIE GARRETT, 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 Sharon Marie Garrett ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications 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

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed her initial application in March 2003, alleging disability since March 1, 2003, due to cervical disc disease, carpal tunnel syndrome, migraines and depression.*fn3 AR 69-72, 97-103. Plaintiff's application was denied initially, on reconsideration and after a hearing by an Administrative Law Judge ("ALJ"). AR 33, 44, 11-16. In June 2005, the Appeals Council denied review. AR 4-6.

Plaintiff sought review of the decision in this Court in Case Number 1:05cv821 DLB. On January 23, 2006, the Court granted the parties' stipulation to remand the action for further administrative proceedings. AR 954-955.

While her appeal was pending, Plaintiff filed a subsequent application for benefits on April 28, 2005, alleging disability since January 29, 2005, due to fibromyalgia, high blood pressure, a thyroid issue, sclerosis, arthritis and disc disease. AR 679-691. After the Court remanded Plaintiff's prior application, the Appeals Council directed the ALJ to consolidate both cases. AR 957.

Pursuant to the Appeals Council order of remand vacating the prior decision, ALJ Patricia Flierl held a hearing on January 31, 2007. AR 1037-1072. On May 23, 2007, the ALJ issued a decision denying benefits. AR 346-355. The Appeals Council denied review on September 5, 2008. AR 338-341.

Hearing Testimony

ALJ Flierl held a hearing on January 31, 2007, in Fresno, California. Plaintiff appeared with her attorney, Melissa Proudian. Vocational expert ("VE") Cheryl Chandler also appeared and testified. AR 1037.

Plaintiff testified that she was 46 years old at the time of the hearing. Plaintiff was 5'3" and was above her normal weight because of issues with her metabolism and an underactive thyroid. She is divorced and lives with her daughter, who is 21. AR 1040.

Plaintiff has a driver's license and drives once a week. She does not drive more often because she is on pain medications and doesn't want to get in trouble for driving while taking them. AR 1041. The medications cause problems with concentration and focus, and make her sleepy and groggy. AR 1042.

Plaintiff completed the 11th grade and received her GED. She received certifications as a phlebotomist and a certified nurse assistant, though the certifications have expired. She also has training as a front medical office clerk and was also an administrative specialist in the Army. AR 1042-1043.

Plaintiff last worked in 2002 or 2003 as a part-time in-home worker. AR 1043. She stopped working because of physical problems. AR 1044. She explained that she cannot work because she has so much pain all the time that she can hardly get out of bed. She has arthritis in her lower back, hands, elbows and knees, as well as fibromyalgia. Plaintiff also has high blood pressure that isn't under control, scoliosis of the sacroiliac joints in her hips, three ruptured vertebrae in her neck, sleep apnea and a prior laceration to the palm of her left hand. AR 1046. Part of her left hand is numb and she cannot use it to pick up anything heavy (more than five pounds) or hold onto anything for more than five minutes. AR 1046-1047. She thought she could use her left hand continuously for about 15 minutes. AR 1048. She drops things all the time. AR 1050. Plaintiff also has depression and anxiety. AR 1047.

In discussing her pain, Plaintiff testified that she has the most pain in her lower back. AR 1050. The pain is constant and she rated it as an 8 out of 10, with medication. AR 1051. Plaintiff takes pain medication every four to six hours, every day. AR 1052. The medication makes her drowsy about 20 to 30 minutes after she takes it and she has to take a couple of naps, about an hour to an hour and a half each, during the day. AR 1053. Sometimes the medication helps the pain, but not always. She cannot bend over to pick something up off the ground. AR 1054. Plaintiff thought that she could sit for 45 minutes to an hour and could stand and/or walk for about 15 to 20 minutes before her left leg goes numb. AR 1055. Plaintiff thought that she could lift about 10 pounds with her right hand, five pounds with her left. AR 1056.

Plaintiff's back pain radiates into her hips and knees and she also has pain in her neck and shoulders. The severity of the pain depends a lot on the weather. AR 1056. Plaintiff also has difficulty sleeping and can't sleep on her back or stomach. AR 1056-1057.

In addition to pain medication, Plaintiff has tried physical therapy twice. She has not tried injections or had a surgical consultation. AR 1057.

Plaintiff further testified that she has had problems with depression since she was a little girl, and currently is depressed about six months throughout the year. AR 1057. Her pain and lack of abilities triggers the depression. When she is depressed, she cannot take a bath, walks around in a daze, cries all the time and sleeps more. AR 1058. She often doesn't get out of bed unless she needs to go to the bathroom or get something to eat. AR 1059. She takes medication for depression "on and off, not all the time," because she sometimes feels like she doesn't need it. AR 1059. She also has anxiety attacks a few times a month. When she has one, it takes her a couple of hours to calm down. AR 1060. Although she used to take medication for the attacks, she only takes medication now if she goes to the emergency room. She testified that the medication helped, but that Dr. Castro is strict about certain medications. As long as she can get her pain medication, Plaintiff didn't want to "push anything." AR 1064.

Plaintiff also has an overactive bladder and has to wear pads all the time. AR 1061. During the night, she goes to the bathroom about seven times. During the day, she goes almost every hour and it sometimes takes her five minutes. Her doctors know about the problem but Plaintiff did not want to take more medicine. AR 1062. She also testified that she will eventually need dialysis. AR 1071.

Plaintiff thought that she could concentrate for about half an hour before needing to get up and walk around for about 20 minutes. AR 1062-1063.

Plaintiff can dress herself most of the time, but her daughter has to help her with everything because of the fibromyalgia. She can mostly bathe by herself but often cannot do her hair because she cannot reach. AR 1063.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and work experience. This person could perform light work. She could occasionally climb ropes, ladders and scaffolds and could occasionally crawl. This person could not perform forceful pushing or pulling of arm controls on the left non-dominant side. She could only occasionally handle, finger and feel with the left upper extremity. This person is also moderately limited in her ability to understand, remember and carry out detailed instructions. The VE testified that this person could not perform Plaintiff's past work, but could perform the positions of usher, recreational attendant and transportation attendance passenger service attendant. AR 1066-1067.

For the second hypothetical, the ALJ asked the VE to assume the same person as in the first hypothetical, but one that could perform simple grasping and handling with the left non-dominant hand. This person would also be limited to simple, repetitive tasks. AR 1068. This person could not perform Plaintiff's past relevant work but could perform the positions identified in response to the first hypothetical. AR 1067-1068.

For the third hypothetical, the ALJ asked the VE to assume that this person was limited to occasional climbing, stooping and above shoulder reaching bilaterally. This person could not perform forceful gripping or grasping or repetitive fine manipulation with the left non-dominant hand. This person could not perform Plaintiff's past relevant work but could perform the positions identified in response to the first hypothetical. AR 1068.

If this person was also limited to simple, repetitive tasks, the same positions would be available. AR 1069.

For the next hypothetical, the ALJ asked the VE to assume a person that was limited to sedentary work with occasional climbing, balancing, kneeling, crouching, crawling, stooping and above shoulder reaching bilaterally. This person could not perform forceful gripping, grasping or repetitive fine manipulation with the left non-dominant hand. This person would also be limited to simple, repetitive tasks. The VE testified that this person could not perform any work. AR 1069.

For the last hypothetical, the ALJ asked the VE to assume the same person, but without the limitation to simple, repetitive tasks. This person ...


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