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Buchanan v. Astrue

February 18, 2010

ELMA ANN BUCHANAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Elma Ann Buchanan ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") 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 Gary S. Austin, United States Magistrate Judge.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed her application on or about March 10, 2005, alleging disability since October 1, 2002. AR 57-65 . Her application was denied initially and on reconsideration. AR 28-32; 34. Thereafter, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 44. ALJ Laura Havens held a hearing on September 13, 2006, and issued an order denying benefits on March 8, 2007. AR 260-268; 310-331. On August 9, 2007, the Appeals Council vacated the decision and remanded for further proceedings. AR 269-270. On November 8, 2007, ALJ Havens held another hearing in Stockton, California. Plaintiff appeared and testified and was represented by counsel. AR 332-354. On March 10, 2008, ALJ Havens issued an order denying benefits. AR 15-25. On November 4, 2008, the Appeals Council denied review. AR 6-9.

Hearing Testimony*fn3

ALJ Havens held a hearing on November 8, 2007, in Fresno, California. Plaintiff appeared and was represented by attorney Joel Roberts. Vocational Expert ("VE") George Meyers also testified. AR 332-354.

Plaintiff was born on December 18, 1955. AR 337. She completed high school and three years of college. AR 337. She is five feet three inches tall and weighs 226 pounds. AR 345. She is able to read the newspaper and do simple adding and subtracting. AR 313, 345. She suffers from chronic neck pain, neuralgia and cervialgia. Plaintiff's past relevant work does not amount to substantial gainful activity so there is no past relevant work. AR 337.

Plaintiff currently lives in an apartment with her two children who are fifteen and seventeen years old. AR 315; 339. Plaintiff wakes up at about 5:00 a.m. and dresses and bathes herself without assistance. AR 339. However, she suffers from depression and sometimes will stay in her pajamas all day. AR 349-350. She does not do cooking, mopping, vacuuming, or laundry. AR 316, 339. At times, Plaintiff goes grocery shopping at Safeway with her neighbor. AR 339, 348. However, she is unable to go most public places because she doesn't like closed doors and she is afraid that something will happen to her. AR 347-349.

Plaintiff does not exercise but she has a driver's license and currently drives. AR 316; 340. However, she is only able to drive short distances because she gets worried that something will happen and she will not be able to make it home. AR 347. She is unable to ride in a car as a passenger because she feels locked in. AR 347. She also cannot take public transportation. AR 347.

Plaintiff testified that she suffered a stroke in 2006 or 2007. AR 338. As a result, her face is twisted and her mouth draws back on the right side down toward her back. AR 344. She is unable to remember things and is unable to recall words during conversations. AR 345.

Plaintiff has difficulty eating due to pain in her jaw and her teeth. AR 341. She is unable to sleep through the night and gets up frequently. AR 341. On average, she is able to sleep three to four hours a night. AR 341. She frequently takes naps throughout the day. AR 347-348.

Plaintiff goes to her doctor, Dr. Krishnamoorthi, approximately two times a month. AR 341-342. She was also going to the Women's Haven Center and seeing Miranda Palmer for mental health issues. AR 341-342. She has depression and suffers from frequent crying spells. AR 350. She was told by her psychiatrist that there is nothing that can be done for her condition other than to take medication and she has not gone back to him since that time. AR 350.

Plaintiff takes Baclofen for muscle spasms, Loratadine for allergic reactions, and Meclazine for nausea. AR 19; 302; 342. The Baclofen helps with facial pain but bothers her stomach and makes her tired so that she cannot do anything. AR 232; 342. She also has taken Tylenol for pain but often no medications help. AR 322-324. Plaintiff has had allergic reactions to some medications, but did not report any allergic reaction to her current medication regimen. AR 318-319; 342. Plaintiff is able to walk for about five minutes but suffers from dizziness. AR 343. She can only sit for one hour due to problems with her knees. AR 343. She is not able to lift five pounds. AR 343.

Plaintiff suffers from chronic headaches and the pain travels to her face, neck, shoulders, and down to her right arm, leg, and foot. AR 320; 326; 343. When these episodes occur, it feels as if someone is shocking or zapping her. Later, the sensation feels as if someone is stabbing her resulting excruciating pain. AR 322. This pain occurs all of the time and will be triggered by talking on the telephone, by someone touching her face, or by air conditioning. AR 321; 322; 346. The episodes occur at least once a week and they can last for hours or sometimes for three to four days. AR 327-328.

In addition, Plaintiff's right foot feels like it is broken. AR 344. She also experiences pain in both of her knees which prevents her from walking up the stairs. AR 344. On a scale of one to ten, Plaintiff reported that her pain is a ten. AR 328; 344. She experiences pain everyday including a sharp pain in her temples. AR 322; 345. When this occurs she in unable to lay down so she sits in a chair shaking and is unable to talk. AR 321; 346. On a good day Plaintiff is able to lay down in her room and talk on the phone with her friends. AR 346. She has three "good" days a month. The rest of the days are bad. AR 346.

The VE was asked to consider hypothetical questions posed by the ALJ. First, the VE was asked to assume a forty-seven year old individual with a high school diploma and three years of college with no past relevant work. AR 351. This individual has the ability to sit, walk, and stand for six hours out of an eight hour day, can occasionally lift and carry twenty pounds, and can frequently carry ten pounds. AR 351. However, this person is not able to perform overhead or over the shoulder reaching. AR 351. The VE opined that such an individual would be able to perform work in the national economy including 1) an assembler of small parts which is light unskilled work, 2) office help, which is light unskilled work, and 3) a charge account clerk which is sedentary, unskilled work. AR 351. There are 51,000, 18,000, and 4,000 of those jobs available in California respectively. AR 352.

Next, the VE was asked to consider the same individual with the ability to sit for two hours out of an eight hour day, stand for four hours out of an eight hour day, and walk for four hours out of an eight hour day. AR 352. This individual can occasionally lift and carry twenty pounds, frequently lift and carry ten pounds, and can only occasionally climb stairs. AR 352.

The VE opined that such an individual would be able to perform work in the national economy including:1) a storage rental clerk, which is light unskilled work, 2) office help which is light unskilled work, and 3) a survey clerk, which is light unskilled work. AR 351. There are 10,000, 26,000, and 8,000 of those jobs available in California respectively. AR 352. The VE noted that he was deviating from the Dictionary of Occupational Titles ("DOT") based on his twenty years of experience and numbers from the U.S. Census Bureau. AR 352.

When the VE was asked by Plaintiff's attorney to assume a hypothetical in which the individual could sit, stand, and walk six hours out of an eight hour day but suffers from facial pain and/or headaches and/or cervical pain that would result in absences at least three days a month, the VE reported that no jobs exist. AR 352, 353. Finally, when Plaintiff's attorney asked the VE to assume a hypothetical in which the individual could sit, stand, and walk six hours out of an eight hour day but would have to take naps twice a day for at least thirty minutes an hour due to lack of sleep, facial pain, or depression, the VE reported that there would be no jobs available. AR 353.

Medical Record

Beginning approximately January 2003, Plaintiff was seen at Sutter Gold Medical Center for complaints of facial and neck pain. AR 182, 198. She was diagnosed with trigeminal neuralgia in October 2003, obesity in December 2004, and dizziness and giddiness as of June 2002. AR 175,185.

Plaintiff sought a second opinion from Dr. James Smith, M.D. at the Gould Medical Foundation in January 2004, AR 178-179. Plaintiff complained of excruciating pain in her face that lasted for seventeen hours after the wind brushed her face. AR 178. Dr. Smith found "a complex constellation of symptoms" and concluded that Plaintiff probably had atypical trigeminal neuralgia. AR 179.

In March 2005, Plaintiff was assessed by Dr. Lee, M.D. when she complained of chest pain. AR 150-151. She was diagnosed with anxiety and prescribed medication. AR 15-155. On April 25, 2005, Plaintiff was seen again by Dr. Lee and complained that she had difficulty coming up with ...


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