The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT
Plaintiff Joyce E. Walters ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income ("SSI") pursuant to Title 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.*fn1
FACTS AND PRIOR PROCEEDINGS*fn2
On February 18, 2005, Plaintiff protectively filed an application for SSI. AR 106, 107-09. She alleged disability since January 6, 2005, due to pain in the lower neck and top of spine and a blood clot in the left leg. AR 107-09, 110-16. After Plaintiff's application was denied initially and on reconsideration, she requested a hearing before an Administrative Law Judge ("ALJ"). AR 60-67, 69-74, 75. On June 29, 2007, ALJ Eve B. Godfrey held a hearing. AR 27-59. ALJ Godfrey denied benefits on August 27, 2007. AR 16-26. The Appeals Council denied review on October 29, 2008. AR 5-8.
ALJ Godfrey held a hearing on June 29, 2007, in Bakersfield, California. AR 27-59. Plaintiff appeared with her non-attorney representative, Diana Wade. John Kilcher, a vocational expert, and Dr. Justin Renaudin, a medical expert, also appeared and testified. AR 29.
Plaintiff was 41 at the time of the hearing. She has a 9th grade education. AR 31. She last worked in January 2005 doing in home services. Before that, she worked as a housekeeper and a cashier. AR 32.
After the date of alleged disability, Plaintiff had back and neck surgery. AR 32-33. She had neck surgery in August 2005, but did not really have a good result from it. The surgery made her lower back "hurt real bad" and pinched off a nerve, but improved some of her neck problems. She had a second surgery in October 2006. The surgery unpinched the nerve, but she gets muscle spasms in her leg if she sits or stands too long. They said that it will get better. AR 33. The muscle spasms just happen in her left leg two or three times a day. It is her whole leg, from the back of her buttocks to her foot. It usually happens when she sits for more than an hour, but occasionally it can happen after 20 minutes. AR 33-34.
Plaintiff feels she cannot work because she is not able to sit for very long. She takes a lot of painkillers and spends most of her time in bed. She gets up in the morning for a few minutes and then usually goes back to bed for a couple hours. If it is a good day, she gets up and does the dishes or starts them and her boyfriend finishes them. When she hurts, she gets "real mad." AR 34-35.
Plaintiff takes Norcos, Somas, Robaxin and Lyrica. The Norco is 10 vicodin, 325 milligrams acetaminophen. She takes three a day. She tries to take the Soma in the evening. She tries not to take them in the day because they knock her out cold and she has to take care of her 14-year-old son. She lives with her son and her boyfriend. Her boyfriend is the father of her son. AR 35-36. She takes Robaxin when she cannot take the Soma. It is a light, lower dosage and has less effect. She sometimes takes them three times a day. She takes Lyrica if she can afford it. AR 36.
Plaintiff testified that she does not take care of her 14-year-old son. His dad "takes care of him mostly." She helps out. She starts the dishes or the laundry. Her son takes care of himself now. She disciplines and supports him. She does not help him with his homework. His father is self-employed, doing maintenance and yard work. He does not have a company or employees. He does not work full time. AR 37.
Plaintiff does not drive. She never has. She smokes about half a pack a day. She is 5'5" and weights about 186. AR 37.
Plaintiff testified that she left a hospital when she was complaining of abdominal and urinary problems without getting a certain procedure. She said she might have had kidney stones that day and could not handle just sitting there and went home. She thought she went back the next day. She has been to the hospital many times for kidney stones. AR 38.
Plaintiff testified that she was never sent to vocational rehabilitation counseling or training of any nature. She did not have job training. She went to a parenting class at College Health to deal with her son because he has ADHD. She went to the doctor and got a note saying that she could not make it to class so it was an excused absence. AR 39-40.
In response to questions from her representative, Plaintiff testified that she has cramping in her legs and numbness in the left leg. Before she had her neck surgery, she was complaining of very bad headaches. The headaches were getting better after the neck surgery, but they got worse after she had her lower back surgery. The doctor said it was probably from the nerves in there. He wanted to give her some kind of shots, where they put three in your neck. She wanted to wait and they changed her doctor to Tim Mensi. The doctor said her leg takes a while to heal. It has gotten a little bit better in the last few months. She can sit for a little bit longer. She still spends a lot of time in bed, probably 16 hours a day. AR 41. While in bed, she sleeps, lies there, and tosses and turns. She does not "really have much problem sleeping." AR 41.
Plaintiff steadily has been gaining weight. She believed it was from inactivity. She thought gaining weight also was side effect from Lyrica. She spends a lot of time in bed and was sure that had something to do with it. There is not really any type of activity that she does for enjoyment. AR 42.
In response to additional questions from the ALJ, Plaintiff testified that her son is not on benefits. He takes medication that she has to monitor. She makes sure that he takes it. AR 43.
Medical expert, Dr. Renaudin, also responded to questions from the ALJ. Dr. Renaudin testified that he had the opportunity to review all of Plaintiff's records. In his opinion, she did not meet or equal a listing. Dr. Renaudin thought she had two significant problems in the last couple of years. She had cervical spondylosis operated on in August of '05 and she had an anterior cervical disc infusion. She had a large lumbar disc on the left at L5-S1 operated on in October of '06. She also has electrical evidence of mild bilateral or carpal tunnel syndrome. She has headaches of an unclear genesis. AR 44.
It appeared to Dr. Renaudin that Plaintiff had a successful result from the neck issue. She still had some residual from the lumbar surgery, but it was quite a large disc. Dr. Renaudin thought that she could continue to improve, but it was unsettling that the leg cramping and spasms had been going on for seven, almost eight months. He would not rule out that they would improve. Looking at the records, this was the kind of lumbar disc where clearly she needed surgery. It customarily does reasonably well at a 80 percent confidence level. He thought it was unsettling that she still had the spasms, but he did not think that it necessarily was going to be permanent. AR 45.
Dr. Renaudin testified that in the two years and four months since February '05, there was no 12 month period when she was restricted to less than sedentary work. She had two significant surgeries, but he did not think that she would be restricted to less than sedentary for 12 months. AR 45-46. He thought she would be able to do light work. Based on the most recent RFC evaluation, she could stand up to six hours a day and/or walk up to six hours. AR 46. She was just examined 30, 40 days ago. AR 47.
Dr. Renaudin also answered questions from Plaintiff's representative. Dr. Renaudin testified that it was unsettling that the cramping had gone on for six, seven months post op speaking from the standpoint of a surgeon having done the procedure. He did not feel that it meant "incontestably that she's doomed to having spasms for the rest of her life." AR 47. It was something that does not happen often, but happens occasionally. AR 47. Assuming Plaintiff's testimony was credible and she was having cramping and spasms, it would have some restriction on her ability to sit. AR 47. It would require getting up periodically or taking muscle relaxants. AR 47-48. During an eight-hour day, she would have to get up every hour for approximately five to ten minutes. AR 48.
Dr. Renaudin testified that the muscle relaxers that Plaintiff takes can cause the type of sedation that she describes. AR 48-49. He would recommend the Robaxin. He thought that her treating physician's opinion was accurate when he gave it. AR 50.
In response to additional questions from the ALJ, Dr. Renaudin testified that Dr. Mensi listed bilateral occipital nerve block scheduled to rule out occipital neuralgia. Dr. Renaudin indicated that what he was saying is if one injects the occipital nerves and gets relief of the pain, maybe occipital neuralgia is the correct diagnosis. AR 51. Plaintiff testified it was never done. AR 51. Dr. Renaudin also reported that there was no functional significance to the absence of a left ankle jerk. AR 52.
The VE, John Kilcher, also testified. He categorized Plaintiff's past relevant work as a housekeeper, DOT code 301.474-010, as medium level, semi-skilled, SVP of 3. AR 52-53. Her work as a maid, DOT code 323.687-014, was classified as light, unskilled, SVP of 2. Her job as a Cashier II, DOT code 211.461-010, also was classified at light, unskilled, SVP of 2. AR 53.
For the first hypothetical, the ALJ asked the VE to assume an individual who could sit for up to 20 minutes at a time, stand for 15 minutes at a time, walk for a quarter mile and when the person changes positions, for walking, has to be three minutes. The individual also needs a position in which she can change, including standing and walking, and take an unscheduled break. The VE testified that this individual would not be able to do any of the past relevant work or any other work. AR 53.
For the second hypothetical, the ALJ asked the VE to assume a person who could sit two hours at a time, stand up to two hours at a time, walk one hour at a time, sit for a total of six out of eight hours, stand for between four and five hours out of eight, walk four out of eight, walk 1/4 to 1/2 mile, and only use the left foot frequently. This person occasionally could climb, but frequently could do other postural activities, occasionally could be exposed to unprotected heights and vibrations, could frequently be exposed to moving mechanical parts, and could continuously be exposed to humidity and wetness. AR 54. The VE testified that these restrictions would rule out past work, but there would be a little bit less than a full range of light work available. There would be jobs as a Small Products Assembler, DOT code 706.684-022, which is light, unskilled, SVP of 2. Taking into consideration the total time to sit and stand, the VE reduced the number of jobs, with approximately 70,000 jobs in the U.S. economy. AR 54-55. The VE also testified that there would be jobs as Hand Packagers. An example would be Nut and Bolt Packer, DOT code 929.587-010, which is light, unskilled, SVP of 2. By reducing it, there would be approximately 145,000 jobs in the U.S. economy. AR 55.
For the third hypothetical, the individual could sit for six out of eight hours in a day. After an hour, the individual would need to be able to get up, stretch and walk around for no more than five minutes. The individual would be able to stand and walk four out of eight hours, but only 30 minutes. The VE testified that this individual could not do any of the past relevant jobs, but there would be other jobs. The jobs that the VE had given for the previous hypothetical would be appropriate, but the VE would reduce them a "little more." AR 55.
The VE also testified that there would be sedentary jobs classified as assemblers. For example, there would be a Final Assembler, DOT code 713.687-018, which is classified as sedentary, unskilled, SVP of 2. There would be approximately 500,000 jobs in the U.S. economy. There would be jobs classified as Production Inspectors. An example would be a Table Worker, DOT code 739.687-182, which is sedentary, unskilled, SVP of 2. There would be approximately 200,000 jobs nationally. The VE's testimony was consistent with the DOT. AR 56.
In response to questions from Plaintiff's representative, the VE testified that if the person in hypothetical three would have to move around up to 10 minutes it would be "kind of iffy" if the person could do the two sedentary jobs. AR 56. The VE explained that normally with those type of jobs you don't have to be seated all the time. In the assembler's job, after you get things assembled you usually move around and take them to another location, so it would give you the latitude to do that. AR 56-57.
The VE indicated that these are unskilled jobs and are not high requirements for precision. In assembly jobs, you have to work at a sustained pace. If the person could not maintain expected production, then the person would be excluded. The VE indicated that any time a person cannot keep up the standards of the company, then they would look on that unfavorably. AR 57. The VE testified that he uses one day a month as the employer tolerance for absenteeism per month for unskilled, non-professional work. AR 58. More than one day a month, the employee would not last very long. AR 58.
X-rays of the cervical spine taken on November 9, 2004, revealed marked narrowing of the right C2-3, 3-4 and 5-6 intervertebral foramina and moderate narrowing of the right C4-5 intervertebral foramen. There was decreased flexion in the mid cervical spine. AR 204.
A January 13, 2005, MRI scan of the cervical spine showed straightening of the normal cervical lordosis and sclerosis in the facet joints on the left side at C4-5, mild-to-moderate bilateral foraminal stenosis at C5-6 and left sided foraminal stenosis at C4-5, mild canal stenosis with no cord compression and bilateral foraminal stenosis at C6-7. AR 202.
On January 31, 2005, Plaintiff saw Robert Cross, PA-C, for complaints of hand and arm pain. On examination, she had 4/5 strength in her upper extremities. She was referred for a neurosurgery consult and prescribed Norco for pain. AR 197.
On February 14, 2005, Plaintiff saw PA Cross for complaints of posterior C-spine pain radiating to the right side of her shoulder, lateral neck and chest. She denied any weakness. On examination, she had 4/5 strength in the upper extremities, with decreased range of motion secondary to pain in the C-spine. PA Cross assessed her with cervical spine foraminal stenosis, as seen on CT, posterior cervical spine pain and right upper anterior shoulder pain (burning). She was given a trial of ...