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Villafana v. Astrue

March 29, 2010


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



Plaintiff Maria M. Villafana ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application 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 Gary S. Austin, United States Magistrate Judge.*fn1


Plaintiff filed her application on or about January 18, 2006, alleging disability beginning January 1, 2000, due to back and knee pain, asthma, bronchitis and depression. AR 113, 124-126, 132, 456-63. Her application was denied initially and on reconsideration. AR 113-16, 119-23, 454-55. Thereafter, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 45. ALJ Christopher Larsen held a hearing on March 13, 2008, and issued an order denying benefits on June 25, 2008. AR 15-21, 47-96. On September 25, 2008, the Appeals Council denied review.AR 6-8. On December 4, 2008, the Appeals Council granted Plaintiff's request for an extension of time to file a civil action. AR 4-5.

Hearing Testimony

ALJ Larsen held a hearing on March 13, 2008, in Fresno, California. Plaintiff appeared and was represented by attorney Melissa Proudian. Vocational Expert ("VE") Judith Najarian also testified. AR 47-96.

Plaintiff was born on November 15, 1976. AR 54. She is five feet one inch tall and weighs 177 pounds. AR 54. She is married and currently lives in a home with her husband and her five children who are twelve, ten, eight, six and four years old. AR 55.

Plaintiff has a valid California driver's license and drives approximately two days a week. AR 56. On the other days, Plaintiff gets around by taking the bus. AR 56. She used to drive three times a week, but has limited her driving since February, 2008 due to her dizziness. AR 56-57.

Plaintiff's highest grade completed in school was the ninth grade. AR 56. She does not have a GED or a diploma. AR 56. She also does not have any vocational training. AR 57. Plaintiff can read in English, but writes "very little" English. AR 57. When asked if she were home, could she take a note or message for somebody on the phone and write the message down in English, Plaintiff answered that she could not. AR 58. Plaintiff can read and write in Spanish. AR 58.

Plaintiff has held several jobs in the last fifteen years. Plaintiff currently works part-time as a noon-time assistant at an elementary school. AR 58. She started that job in February 7, 2007 and works two hours a day, approximately three to four days a week. AR 58-59. She currently makes eight dollars an hour. AR 59. Her paychecks range from $184.00 per month to $300.00 per month. AR 59. Plaintiff is not required to lift anything at her job. AR 59. Her duties include walking around the school during lunchtime. AR 59. When asked if the school offered her more hours could she or would she be able to do the work, Plaintiff responded "no" due to her back and knee problems. AR 60.

From 2004 to 2005, Plaintiff worked full-time on an assembly line for Foster Farms for approximately seven months. AR 60-61. When asked about the heaviest amount of weight she had to lift, Plaintiff answered ten pounds. AR 60-61. She was responsible for cutting the breasts off the chickens before they were packed. AR 61. Plaintiff stopped working for Foster Farms because her supervisor had told her that she "needed to be more at work instead of taking more days off." AR 61. Plaintiff testified that her doctor always "put [her] off [work] because of [her] back pain." AR 61.

From 2000 to 2001, Plaintiff worked full-time for Mission Foods packing tortillas. AR 61. When asked about the heaviest amount of weight she had to lift, Plaintiff answered approximately twelve pounds. AR 61. She was laid off from Mission Foods because "they didn't want to give [her] maternity leave." AR 61-62.

In 2000, Plaintiff worked as an assembler for approximately three months. AR 62. Prior to the assembler job, Plaintiff worked full-time as a cashier in a fast food restaurant in Rowland Heights, California for a little over three months. AR 62. As a cashier, Plaintiff did not have to lift anything. AR 62. Plaintiff stopped working as a cashier because she moved. AR 63. Prior to the cashier job, Plaintiff worked for McDonald's for less than three months. AR 63.

In 1998, Plaintiff worked as a seasonal farm laborer for approximately two years. AR 63. She worked "two seasons," approximately four months during each year. AR 63. As a farm laborer, Plaintiff sorted walnuts. AR 63.

When asked if she could work at any job eight hours a day, five days a week, and not just at her noontime assistant job, but any jobs, Plaintiff responded "no" because her back and right knee hurt. AR 64. Plaintiff also testified that there were other problems that would prevent her from work including asthma, seizures, thyroid problems, and urination problems. AR 64.

With regard to her asthma, Plaintiff testified that it affects her the most. AR 64. She experiences shortness of breath four to five days a week and it typically occurs when she "mov[es] around a lot." AR 65. Her breathing problems are triggered by many irritants including Clorox bleach, dust, pollen, detergents, ammonia, and extreme hot temperatures. AR 68-69. Although she cannot be exposed to Clorox or pollen, she can be exposed to a minimal amount of dust. AR 68.

Plaintiff treats her shortness of breath by using an inhaler and when that doesn't alleviate it, she uses a Nebulizer. AR 65. Plaintiff has a prescription for three inhalers with a Nebulizer, two inhalers and a breathing machine. AR 65-67. She also treats her shortness of breath by sitting down for approximately fifteen to thirty minutes. AR 66. Plaintiff will use a Nebulizer every time she experiences shortness of breath. AR 66. When asked how often she uses a Nebulizer out of a typical seven-day week, Plaintiff responded five days. AR 66. She has used a Nebulizer for approximately a year and a half. AR 66. She also has a low energy level and has to take frequent rests during the day. AR 69-70. She testified that she needs to rest approximately ten hours a week. AR 70.

Plaintiff has had to seek emergency treatment for her shortness of breath. AR 67. The last time she went to the emergency room when she experienced shortness of breath was in September of 2007. AR 67. However, Plaintiff was not admitted over night. AR 67. In addition, Plaintiff also sought treatment on an emergency basis at her doctor's office in 2007 for shortness of breath when her doctor changed her inhaler. AR 67-68.

Plaintiff suffers from back pain daily. AR 72. She first started to have back pain in 2000 after she sustained an injury when she fell while washing her car and landed on the cement. AR 72-73. Plaintiff currently takes liquid Ibuprofen and receives morphine injections to treat her back pain. AR 73-74. However, the last morphine injection she received was approximately four to five months ago. AR 73. Plaintiff has undergone physical therapy for her back pain, but claims it has not helped. AR 74.

Plaintiff's back pain affects her ability to function. AR 74. She has trouble bending, lifting and bathing her children. AR 75. She also has difficulty sitting in a chair; the maximum amount of time she can sit is approximately twenty minutes before her back starts to hurt. AR 75. In addition, Plaintiff can only stand for thirty minutes at a time due to her back pain. AR 75. Plaintiff claims the heaviest amount of weight she can lift is five pounds. AR 75. When asked about walking, Plaintiff claimed that she could only walk approximately ten to fifteen minutes and then she would have to stop. AR 75. Plaintiff also has difficulties reaching overhead with either arm, however, she does not have any difficulty reaching out in front of her at shoulder height. AR 76. She cannot use her arms on a repetitive basis because "things tend to fall off [her] hand" due to limited strength. AR 76. However, the use of her hands affect her back pain "very little." AR 76. When asked while standing, could she bend over and pick something off the ground and get back up, Plaintiff answered that she could, but it would be very slow and painful. AR 77. She has no scheduled future treatment for her back pain. AR 77.

Plaintiff has problems with her right knee; she experiences knee pain daily. AR 77-78. She testified that her knee pain triggers her back pain. AR 78. She treats her pain by taking the liquid Ibuprofen, however, it does not alleviate the pain. AR 78. The knee pain also affects her ability ...

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