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Farias v. Astrue

March 4, 2010

ANA FARIAS, 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 Ana Farias ("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 in October 2002, alleging disability since September 20, 2002, due to carpal tunnel syndrome in both hands and depression. AR 94-96, 1140123. After her applications were denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 72-75, 78-82, 83. ALJ James E. Ross held a hearing on July 4, 2004, and denied benefits on September 24, 2004. AR 449-462, 54-62. The Appeals Council vacated the ALJ's decision and remanded the action on May 12, 2005. AR 67-70.

ALJ Ross held a second hearing on January 5, 2006. AR 463-488. He denied benefits on March 13, 2006. AR 12-21. The Appeals Council denied review on December 12, 2008. AR 6-8.

Hearing Testimony ALJ Ross held a hearing on January 5, 2006, in Fresno, California. Plaintiff appeared with her attorney, Melissa Proudian, and an interpreter. Vocational expert ("VE") Cheryl Chandler also appeared and testified. AR 463.

Plaintiff explained that both of her hands hurt all the time and the pain has increased since the last hearing. AR 467. The swelling has also increased, more in the left hand, and she cannot move her fingers much. She explained that her hands become badly swollen about once every three months, for about a week. When her hands are swollen, she cannot do housework, pick up anything or cook. AR 468. She was last treated for carpal tunnel syndrome in September 2005, when her hands swelled and she had to take an anti-inflammatory for ten days. AR 473. She has had problems since that time, but no swelling. AR 474.

Plaintiff further testified that sometimes the pain is so bad that it feels like it goes up her neck and she has to take Ibuprofen to sleep. For the past month, she has had continuous pain on the right side of her neck. AR 469. Plaintiff believed that she could wash dishes for five minutes before needing to stop and rest for about five minutes. AR 470. She thought she could lift about 10 pounds. AR 472.

Plaintiff testified that her depression has stayed the same. AR 471. She explained that it is very difficult because she cannot support her three children. AR 472. Plaintiff attempted to work in August 2005, though she could not remember where. AR 473. She was taking Effexor for her depression and anxiety. AR 475-476.

Plaintiff believed that she could not perform her past job cleaning apartments because it was "very tiring to have to reach up to clean." AR 476.

Plaintiff testified that she attended the English language school at the Chavez School in 2004 and she was now in a different program. Plaintiff could read "some" in English and could understand about 50 percent of the newspaper. She attended school through the ninth grade in Mexico. AR 477.

For all hypothetical questions posed to the VE, the ALJ asked the VE to assume that Plaintiff was illiterate. AR 477.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and past experience. This person could lift 20 pounds occasionally, 10 pounds frequently, and sit, stand or walk for six of eight hours. This person could not perform forceful, repetitive grasping or twisting with the right upper extremity. This person would also be limited to simple, repetitive work. AR 478.

The VE testified that such a person could not perform Plaintiff's past cleaning work because it requires too much repetitive force. Nor could this person perform some of Plaintiff's past packing work, which was classified at the medium exertional level. AR 479. This person could perform Plaintiff's past work as a grape packer and/or apple and peach sorter, however. AR 480. The VE indicated that these were light positions, and because Plaintiff was working with delicate fruit, she did not have to lift more than 10 pounds or perform forceful lifting, grasping or pulling. AR 478, 480-481. The VE explained that as generally performed, packing jobs are medium exertional level positions because they require lifting boxes.

The VE further testified that Plaintiff's past work sorting fruit would not require forceful movements and she could therefore perform that past work. AR 480-481. Plaintiff could also perform the positions of cafeteria attendant and assembler. AR 481.

Plaintiff's attorney asked the VE to assume one additional limitation- no right wrist twisting. The VE testified that his person could not perform the previously identified jobs, though she explained that she would need the doctor's clarification before answering further. AR 483-484.

Plaintiff's attorney next asked the VE to assume a person who could lift 20 pounds occasionally, 10 pounds frequently, and sit, stand or walk for six of eight hours. This person could not perform repetitive heavy lifting, pushing, pulling, gripping, and grasping. This person could not perform vigorous twisting with the left wrist. The VE testified that this person could perform Plaintiff's past work as well as the other positions identified. AR 486.

If this person was limited to lifting 10 pounds, sitting, standing and walking six hours each and using their hands for five to ten minutes before needing a 15 minute break, the VE testified that ...


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