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Whitaker v. Astrue

April 9, 2010

TERESA L. WHITAKER, 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 Teresa L. Whitaker ("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 January 2006, alleging disability since February 9, 2004, due to severe depression, anxiety attacks and being suicidal. AR 73-75, 90-97, 611-614. After her applications were denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 26, 42-46, 49, 609, 610. ALJ Patricia Flierl held a hearing on March 5, 2008, and denied benefits on March 20, 2008. AR 13-25, 615-657. The Appeals Council denied review on April 10, 2009. AR 5-7.

Hearing Testimony

ALJ Flierl held a hearing on March 5, 2008, in Fresno, California. Plaintiff appeared with her attorney, Melissa Proudian. Vocational expert ("VE") Jose Chaparro and witness Tracy Harrison also appeared and testified. AR 615.

Plaintiff testified that she was 44 years old at the time of the hearing. She is not married and has two sons, ages 8 and 12. Plaintiff lives with her mother and nephew, though her sons do not live with her. AR 619-620. Plaintiff has a driver's license and drives about three times per week. AR 620. She graduated high school and took college-credit classes for three months. AR 621.

Plaintiff last worked two years ago at McDonald's. She has also worked at Wal-Mart, a gas station/convenience store, a uniform store, Taco Bell and K-Mart. AR 622-627. Plaintiff testified that she could not work because of back pain caused by standing and problems with her hands. AR 628.

Plaintiff also explained that she has severe depression and has attempted suicide three times in two years. AR 629. She last attempted suicide in 2004 when she took sleeping pills and was hospitalized at Community Behavioral Center for 10 or 11 days. AR 629. Plaintiff estimated that she is severely depressed for four days out of the week. During these times, she always wants to cry and locks herself in her room and tries to sleep all day. Although she gets dressed on these days, she only gets up to go to the restroom. AR 630. It is sometimes a "little bit difficult" for her to concentrate, though she could watch an entire movie when she was not feeling depressed. AR 633. She thought she could concentrate for about 30 minutes during the days when she is depressed. Plaintiff has suicidal thoughts about once a month, but is able to stop herself. Plaintiff continues to receive treatment from a physician at Fresno County Mental Health about once a month, mainly for medication refills. AR 634. She also sees a counselor once every two to three weeks and believes that this helped her. Plaintiff was currently taking Zoloft, Seroquel and Visceral. AR 635. She did not have any side effects and thought that he medication helped her "some." She doesn't take her medication once or twice a week because her brain tells her it doesn't work. AR 636.

When she is not depressed, Plaintiff estimated that she spends about 5 or 6 hours a day watching television with her mother. AR 642. She sometimes helps out with cooking and goes to the grocery store about three times a week. AR 643.

Plaintiff further explained that she has constant back pain and takes Tylenol or prescription strength naproxen. She underwent physical therapy last year but does not have a treating doctor because she cannot afford it. AR 639. She thought she could sit for about 30 minutes before getting a shooting pain in her back, and thought she could stand for about 20 minutes before needing to sit down. AR 640-641. She estimated that she could walk a little over a block and lift about five pounds. AR 641. Plaintiff also testified that she has trouble using her hands and thought that she could use them on a repetitive basis for about five or ten minutes. AR 641-642.

Plaintiff's sister, Tracy Harrison, testified that Plaintiff suffered from extreme depression and once tried to commit suicide by walking into oncoming traffic. She estimated that Plaintiff is depressed 50 percent of the time. AR 648.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and experience, who was limited to light, unskilled work and who needed to avoid dust, fumes and chemical odors. The VE testified that this person could perform Plaintiff's past work in fast food and as a cashier. AR 652. This person could also perform the positions of airline security representative, office helper and sales ...


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