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Racette v. Astrue

March 29, 2010

ANGELA RACETTE, 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 Angela Racette ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for disability benefits pursuant to Title II 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 protectively filed an application for disability insurance benefits on September 14, 2004, alleging disability beginning April 27, 2002, as the result of a stroke. AR 118. Her application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 55, 60-64, 66-72. ALJ Michael J. Haubner held a hearing on May 17, 2007, and issued an order regarding benefits on July 11, 2007, finding Plaintiff was disabled for the period between April 27, 2002 and August 4, 2004, but was not disabled for the period thereafter. AR 24-36. On August 29, 2008, the Appeals Council denied review. AR 5-7.

Hearing Testimony

ALJ Haubner held a hearing on May 17, 2007, in Fresno, California. Plaintiff appeared and testified; she was represented by attorney Amy Foster. Vocational Expert ("VE") Judith L. Najarian also testified. AR 593-627.

Plaintiff lives in Stevinson, California, with her boyfriend and his father, both of whom work outside the home, in a single family, single level home. AR 600-602. She was forty-six years old at the time of the hearing. AR 600.

About once a day, Plaintiff will cook or prepare a meal. AR 602. She does dishes three times a day, cleans the kitchen once a week and cleans the bathrooms twice a month. AR 602-603. She sweeps the floors, but does not vacuum, nor does she dust the furniture or take out the trash. AR 604. She makes her bed about three times a week on average, and changes the sheets twice a month. AR 604. Plaintiff does a load of laundry every other day, folding or hanging the laundry; she does not iron. AR 604. She does grocery shopping twice a month. AR 604-605.

Plaintiff can take care of her personal needs such as showering, brushing her teeth and getting dressed. AR 602. She does not attend church, nor does she belong to any clubs or organizations. AR 605, 607. Plaintiff has two dogs and takes care of their feeding. They are not permitted outside and she does not walk or bathe the dogs. AR 606. Additionally, there are two goats, four sheep and fifteen chickens on the property where she resides, but she does not feed or care for the livestock. AR 606-607.

In addition to graduating from high school, Plaintiff received vocational training in 1978 for data entry. AR 600-601. Plaintiff has a valid driver's license and drives a small pickup truck with a manual transmission about once a week. AR 601-602. She estimates she goes out to eat about once a month, and visits with friends or family once a week. AR 605. When in public, Plaintiff generally avoids others. AR 617.

About twice a day, Plaintiff talks to friends and family on the telephone. There is a computer in the home which she uses about once a month. AR 605. She does not play video games. She watches about an hour of television in the evenings. AR 606. She does not read the newspaper or magazines. AR 606.

The ALJ confirmed with Plaintiff that her current health conditions include a history of right-sided hemiparesis, stroke, low back strain, and adjustment disorder with depressed mood, secondary to the stroke. AR 607.

Plaintiff can lift and carry two pounds without hurting herself. She has difficulty gripping or grasping things in her right hand. When asked how long she was able to grip or grasp something with her right hand before she was unable to hold it any longer, she indicated her best estimate was five minutes. AR 607-608. Thereafter, she would need to rest her right hand for twenty to thirty minutes before attempting to grip or grasp another object. AR 609. When asked how long she was able to concentrate on something before she was unable to pay attention any longer, Plaintiff's best estimate was thirty minutes. She would need to rest mentally for a period of twenty to thirty minutes before attempting to concentrate again. AR 609.

In her best estimate, Plaintiff can stand for about thirty minutes before needing to sit down. She indicated she could sit for about an hour at one time before needing to stand up. AR 609. Asked to consider an eight-hour period during the day, and what portion of that time period may require her to lie down due to pain or fatigue, Plaintiff indicated she would need to lie down for about an hour, although the time frame varies from day to day. AR 610.

Asked whether she was fully compliant with the treatment and medications prescribed, Plaintiff indicated that she was. She did admit to smoking about a pack of cigarettes per day. AR 610.

With regard to Plaintiff's past work, VE Najarian testified that Plaintiff's previous work as a computer operator varies from the Dictionary of Occupational Titles ("DOT") in that Plaintiff frequently lifted and carried fifty-pound boxes of paper. Thus, the position typically classified as light and skilled, six, was performed by Plaintiff at a medium rather than light level. AR 614. Additionally, because Plaintiff also performed repairs on the computers, hardware and software, according to the DOT the alternate title for her position is electronics technician, medium and skilled, seven. Asked what skills were obtained in Plaintiff's past relevant work, the VE indicated an extensive knowledge of computers, including operation, installation and usage. The skills are transferable to other computer-related jobs. AR 615-616.

VE Najarian was asked to consider several hypothetical questions posed by the ALJ. First, the VE was asked to assume a hypothetical worker of Plaintiff's age, education, language and work history, who is able to understand and learn, but may have difficulty recognizing facts and remembering verbally-presented information, who has limited abilities regarding social interaction and in handling stress. AR 616-617. VE Najarian indicated the hypothetical worker could not perform Plaintiff's past relevant work. AR 617-618. The VE was unable to determine whether other work would be available to this hypothetical worker because the limitations referenced are "too nebulous." AR 618.

In a second hypothetical, the following additional limitations were to be considered: moderate limitation in ability to understand, remember and carry out detailed instructions; moderate limitation in ability to maintain attention and concentration for extended periods of time; moderate limitation regarding the ability to interact with the general public and respond appropriately to changes in the work setting. Considering these additional limitations, VE Najarian testified the hypothetical worker could not perform Plaintiff's past relevant work, nor any other work. AR 618-619.

In a third hypothetical, the following additional limitations were to be considered: moderate limitation in the ability to do the activities of daily living; moderate limitation in the ability to maintain social functioning; and moderate limitation in the ability to maintain attention and concentration. VE Najarian indicated such a worker could not perform Plaintiff's past relevant work, nor any other work. AR 619.

In a fourth hypothetical, the VE was asked to consider a hypothetical worker who could lift and carry twenty pounds occasionally and ten pounds frequently, who could stand and walk about six hours in an eight-hour day, could sit about six hours in an eight-hour day, could occasionally climb, balance, stoop, kneel, crouch or crawl, with limited ability for fingering or fine manipulation with the right upper extremity, but without gross manipulation limits of that same extremity, who should avoid concentrated exposure to hazards, including sharp objects. AR 619. The VE indicated such a person could not do Plaintiff's past relevant work, particularly in light of the limitation regarding fingering. AR 619-620. This worker could however perform other jobs available in the national economy in the light or sedentary, unskilled categories. Examples of available work include: office messenger, DOT 239.667-010, with 12,413 jobs available in California after a forty percent reduction is applied; information clerk, DOT 237.367-018, with 9,511 available jobs in California; and cafeteria attendant, DOT 311.677-010, with 17,243 available jobs in California. AR 621-623.

Asked whether combining hypothetical scenarios one and four would result in no ability to perform Plaintiff's past relevant work, the VE responded in the affirmative. Other work could not be determined because hypothetical one is too nebulous. AR 623. Asked about combining hypothetical scenarios two and four, and combining hypothetical scenarios three and four, the VE indicated those combinations would result in an inability to perform Plaintiff's past relevant work or any other work. AR 623.

In a fifth hypothetical, the VE was asked to consider a worker who could handle her own funds, understand, carry out and remember simple instructions, with the ability to respond appropriately to usual work situations and changes in routine, without substantial restriction in the activities of daily living. VE Najarian indicated this person could not perform Plaintiff's past relevant work, but could perform the full range of unskilled work such that the Grids would apply. AR 624. The other work previously identified in hypothetical four would be available to this worker as well. AR 624.

Asked whether combining hypothetical scenarios one and five would result in no ability to perform Plaintiff's past relevant work, the VE responded in the affirmative. Again, other work could not be determined because hypothetical one is too nebulous. AR 624. Asked about combining hypothetical scenarios two and five, and hypothetical scenarios three and five, the VE indicated those combinations would result in an inability to perform Plaintiff's past relevant work or any other work. Asked about combining hypothetical scenarios four and five, the VE indicated that combination would result in an inability to perform Plaintiff's past relevant work, but would allow for the other work identified in hypothetical four to be performed. AR 625.

In a final and sixth hypothetical, the VE was asked to assume the hypothetical worker could lift and carry two pounds, can grip or grasp something for five minutes with the dominant right upper extremity before requiring rest, can concentrate for thirty minutes before requiring mental rest, can stand for thirty minutes at one time and can sit for one hour at a time, with the need for a one-hour unscheduled break per day. VE Najarian indicated this hypothetical worker could not perform Plaintiff's past relevant work, nor any other work. AR 625.

Medical Record

The entire medical record was reviewed by the Court. Those records relevant to the issues on appeal are summarized below. Otherwise, the medical evidence will be referenced as necessary in this Court's decision.

Mary Butcher, M.D.

On April 29, 2002, Plaintiff was seen by Dr. Butcher after a fall on the previous Saturday. She was not able to get up for two hours, and she reported her right side had not functioned normally since the fall. Objective findings include notations that Plaintiff's gait was "very unsteady," that she was dragging her right foot and facial droop was present. AR 264; see also AR 447.

In an April 29, 2002, admission report, Dr. Butcher indicated Plaintiff was admitted for treatment at Valley Medical Center in Washington after being seen in her office two days after waking up with acute right-sided weakness. A subsequent MRI of Plaintiff's brain indicated she had suffered two small infarcts on the left side of her brain. Significant testing was performed. In the absence of a history of hypertension, it was noted that Plaintiff's sole risk factor for stroke was her tobacco use. A prior problem with alcohol was resolved, following abnormal liver test results, when Plaintiff stopped drinking. Improvement was noted in the left facial droop and vision, she was able to walk with a four-prong cane, and the dense hemiparesis in her right arm had "improved somewhat." Plaintiff was to undergo inpatient rehabilitation. AR 236. On examination, Plaintiff was in no acute distress, but was unable to stand without assistance. Mouth droop on the left side was obvious, weakness was present in her right arm and leg, and she could not walk without "falling to the right or left." Plaintiff's ability to perform heel-to-shin and finger-to-note tests on the right side was "not good." Reflexes were decreased on the right side. AR 237. Dr. Butcher assessed acute onset of cerebrovascular accident with "what seems like left middle cerebral artery distribution." AR 238; see also AR 455-456.

In a neurology consultation of April 30, 2002, Dr. Butcher noted "a significant neurologic history" for Plaintiff, including a 1998 MRI that "demonstrated some signs of a possible old hemorrhage in the left thalamic region." It was noted that Plaintiff quit smoking in December 2001 after smoking a pack a day for twenty years. She quit drinking alcohol three months prior. AR 241. Physical examination revealed right central facial weakness. Vision findings were normal, and speech was clear. It was noted that muscle testing revealed a right hemiparesis involving the upper extremity over the proximal and distal lower extremity. Significant right upper extremity dysmetria was noted with finger-to-nose and right leg heel/shin testing. Dr. Butcher's interpretation of the MRI results in a finding of "[e]vidence of an old, left thalamic hemosiderin deposition[,] acute left mid-brain/cerebral peduncle ischemic infarct, acute left punctate region of infarct in the left cerebellar region, again ischemic in nature." AR 242; see also AR 452-454.

In a May 1, 2002, rehabilitation consultation, Dr. Butcher's physical examination revealed Plaintiff was in no acute distress. Her speech was minimally dysarthric, facial weakness was present in the cranial nerves on the right side, reflexes were normal for the biceps, triceps, knee and ankle. Grip and flexion were 4-/5, hip flexion and knee extension were 3/5, and ankle dorsiflexion was 2-/5. AR 239. The doctor's impression was cerebrovascular accident in cerebrobasilar territory. Physical therapy, occupational therapy and a social services consult were planned. AR 240; see also AR 449-451.

On October 10, 2002, Dr. Butcher completed a single-page UnumProvident disability claim form. Dr. Butcher diagnosed Plaintiff with cerebral vascular accident or stroke, and listed objective findings of weakness in right hand and decreased cognitive function. Noted symptoms included an inability to grasp, pick up or type with the right hand, and "memory." The form asks the following question, "When should the patient be able to return to work?" Dr. Butcher's response was "never." AR 431.

On December 30, 2002, Dr. Butcher completed a Physical Evaluation form for the Department of Social and Health Services. Objective findings were recorded as weakness in the right arm, fingers and wrist, fine and gross "motor skills severely impaired on the right." Cognitive function was "impaired" and memory was "altered." AR 434. Dr. Butcher found Plaintiff severely limited, or "[u]nable to lift at least 2 pounds or unable to stand and/or walk." Asked how Plaintiff's medical condition affected her ability to care for children, Dr. Butcher wrote "she would not be able to care for young children [zero] lifting." Dr. ...


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