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Gutierrez v. Astrue

February 27, 2010

DORA GUTIERREZ, 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 Dora Gutierrez ("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 May 26, 2005, alleging disability since June 7, 2002, due to a heart condition, arthritis, anxiety, depression, headaches and a hearing loss. AR 114- 116, 147-156. After Plaintiff's applications were denied initially and on reconsideration, she requested a hearing before an Administrative Law Judge ("ALJ"). AR 24-25, 26-31, 34-38, 39-43. On April 26, 2007, ALJ Christopher Larsen held a hearing. AR 44-85. He denied benefits on May 24, 2007. AR 9-19. The Appeals Council denied review on November 24, 2008.

AR 5-7.

Hearing Testimony

ALJ Larsen held a hearing on April 16, 2007, in Fresno, California. Plaintiff appeared with her attorney, Melissa Proudian. Vocational expert ("VE") Cheryl Chandler also appeared and testified. AR 44.

Plaintiff testified that she was 59 years old at the time of the hearing. She was 5 feet tall and weighed 157 pounds. She has been gaining weight for the past two or three years, when her depression worsened. AR 51. Plaintiff was not married and lived by herself. AR 52. Plaintiff has a driver's license and drives about once or twice a week. AR 52-53. She completed the eighth grade. AR 53.

Plaintiff last worked in 2001 or 2002 as an assistant cook. AR 55. She stopped working after she began having problems with her legs and heart. AR 57-58. Plaintiff testified that she cannot work now because she can't take care of herself and could not attend work regularly. AR 58.

Plaintiff explained that she still has pain in her legs from arthritis and an arrhythmia in her heart. AR 59. She also has arthritis in her hands, arms, feet and neck. She has constant pain in her back, which she rated at a 7 or 8 out of 10, without medication. AR 62. She rated the pain in her legs as a 10, without medication. AR 63. Plaintiff just started pain medication the week before the hearing and it seems to help her sleep. AR 63. With medication, she rated the pain in her back at a 4 or 5 and the pain in her legs at a 3. AR 64.

Her medications make her tired and lose interest and also cause dizziness and an upset stomach. AR 64. Plaintiff lays down to rest everyday. She explained that she could "go with the pain" for about an hour before needing to relax and sit or lay down for at least two hours. AR 65. Sometimes she can't even lay down and rest because the pain makes it difficult. AR 70. She tries to get up and do things for about three or four hours total during the day. AR 66. Plaintiff thought she could sit for about 45 minutes at one time and could stand for about 25 minutes at one time. AR 67. She estimated that she could walk about two or three blocks and lift less than 10 pounds. AR 68.

Plaintiff testified that she feels depressed and hopeless everyday and sometimes feels like she'd rather die. Going to church makes her feel better, though it is hard for her to motivate herself to go. AR 71. She often doesn't feel like doing anything because she hurts and doesn't feel well. AR 72. Plaintiff used to enjoy sewing and playing with her grandchildren, but she can no longer tolerate "kids' noises." AR 73. She no longer drinks alcohol to numb herself because she has found other things to do since going to church, such as meditating and reading the Bible. AR 74. Plaintiff testified that she stopped drinking towards the end of 2005. AR 74.

Plaintiff also has symptoms related to her heart, including chest pain, pain and numbness in the left side of her body and tingling in her arm. AR 75. She experiences these symptoms every day, sometimes for the entire day. AR 76, 77. Plaintiff takes medication and tries to lay down and relax when she experiences these symptoms. AR 76. She has been trying to see a cardiologist but cannot pay for it. AR 77.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and work experience. In addition to regular breaks, this person would require at least one additional break of one hour. The VE testified that this person could not perform any work. AR 80.

For the second hypothetical, the ALJ asked the VE to assume a person who could stand and walk for two hours total and could sit for a total of four hours. The VE testified that this person could not perform any work. AR 80.

For the third hypothetical, the ALJ asked the VE to assume a person who was limited to understanding, remembering and carrying out simple, repetitive tasks. This person could not perform Plaintiff's past work, but could perform the full range of unskilled work. AR 81.

Plaintiff's attorney asked the VE to assume a person who would have difficulty accepting instruction of supervisors and interacting with co-workers and the public, performing work activities on a consistent basis and being able to maintain regular attendance in the workplace and complete a normal workday without interruptions from a psychiatric condition and dealing with the usual stressors encountered in competitive work. The VE testified that this person could not perform any work. AR 81-82.

Medical Record*fn2

On May 14, 2004, Plaintiff told her physician at Visalia Family Practice that she was anxious and depressed. She complained of headaches, mood swings, prolonged sleeping, trouble coping and a poor memory. Plaintiff was emotional when she discussed her divorce. She was instructed to switch her medication to Zoloft. The progress note indicated that she was "certified unable to work." AR 276.

On September 15, 2004, Plaintiff saw Zaky Moussa, M.D., for a consultive examination. Her chief complaint was depression and she reported palpations and chest pains triggered by anxiety. Plaintiff denied alcohol intake. Plaintiff's physical examination was normal. On mental status examination, Plaintiff was alert and oriented times three. Her speech was normal and her memory was intact. Dr. Moussa diagnosed anxiety and a history of depression. Plaintiff had no physical abnormalities and Dr. Moussa opined that Plaintiff could work full time with normal breaks. AR 281-284.

On October 7, 2004, Plaintiff saw Mary K. McDonald, Ph.D., for a consultive psychiatric evaluation. Plaintiff reported stress and depression associated with her marriage and eventual divorce, and anxiety and fear over cardiovascular difficulties. Dr. McDonald noted that Plaintiff had been off work three years and had no mental health history. Plaintiff reported "occasion[al]" abuse by an uncle at ages 7 and 8 and denied using any substances. AR 287-288.

On mental status examination, her cognitive abilities appeared average. Plaintiff was oriented to person and place but seemed to have difficulty with time, asking if it was 1999 as opposed to 2004. Plaintiff was very anxious and her anxiety was affecting her ability to remember short and long term events, though she was able to recall time and place more accurately after calming down. Plaintiff was anxious and nervous throughout the examination. She denied suicidal ideations but reported that she is useless and alone, fearful of dying, and frightened about her future. Plaintiff's mood was disrupted despite taking Prozac. AR 289-290.

Dr. McDonald noted that Plaintiff appeared to be significantly depressed, with no history of substance abuse. Her depression was evidenced by appetite and sleep disruption, lethargy, hopelessness and bouts of tearfulness. Dr. McDonald diagnosed major depressive disorder, recurrent, severe, without psychotic features, and a learning disorder (in terms of reading), not otherwise specified. AR 290. She indicated that Plaintiff's prognosis was poor. Dr. McDonald opined that Plaintiff would have difficulty working, even in simple and repetitive labor. Her social functioning, concentration and persistence was disrupted and she would have difficulty arriving and ...


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