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Husted v. Astrue

June 1, 2010

KAREN HUSTED, 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 Karen Husted ("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

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed her application on or about December 22, 2004, alleging disability beginning December 15, 2004. AR 119-121, 376-378. Her application was denied initially and on reconsideration, thereafter Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 50-54, 57-64. ALJ James P. Berry held a hearing on January 24, 2007, and issued an order denying benefits on March 20, 2007. AR 35-45. Plaintiff requested a review of the hearing and the Appeals Council remanded the matter for further proceedings. AR 87-97. Thereafter, ALJ Berry held a hearing on July 23, 2008, and issued an order denying benefits on September 29, 2008. AR 13-24. On January 9, 2009, the Appeals Council denied review. AR 8-11.

Hearing Testimony*fn3

ALJ Berry held a hearing on January 24, 2007, in Fresno, California. Plaintiff appeared and testified. Plaintiff was represented by attorney Robert Christenson. Vocational Expert ("VE") Cheryl Chandler also testified. AR 400-424.

ALJ Berry held another hearing on July 23, 2008, in Fresno, California. Plaintiff appeared and testified and was again represented by attorney Robert Christenson. VE Thomas Dachelet also testified. AR 425-450.

Plaintiff was born June 18, 1978. She is now 30 years old. AR 428. Plaintiff's height is 5' 4" and her weight is 254 pounds. This is normal weight for her. AR 404. She lives with her husband and two children, ages 10 and 12. AR 442-443. Plaintiff completed the twelfth grade. She can speak and understand English. AR 429.

Plaintiff's was last employed as a cashier at Wal-Mart. The position was seasonal, approximately two to three months for the Christmas holiday. During this time she worked approximately five to six hours per day, five to six days per week. AR 429-430. Prior to the cashier position, Plaintiff worked full-time as a nurse assistant. AR 430. She held one position for four months in 2001 and one position for four months from 2003 to 2004. She has no nursing license or certificate.*fn4 AR 405-406. Prior to the nursing assistant position, Plaintiff did some cashiering and also worked full-time for a "couple" seasons, approximately six months each, at two different packing houses, packing tomatoes. AR 430-431. This is the extent of her work history dating back to 1993. AR 431.

When ALJ Berry inquired about in-home health care earnings that indicate Plaintiff earned wages during 2004 and 2005, Plaintiff indicated that she did not do this work, that another individual used her name, and that the record should have been updated to reflect this information. AR 431-432.

When asked what is keeping Plaintiff from working, she cited back pain, knee pain, and an injury to her left foot. AR 432. The back pain is in her lumbar spine and goes down to her hips. AR 409. X-rays taken approximately six months ago showed degenerative arthritis in her lumbar spine. AR 419. Plaintiff explained that her foot injury occurred when she was four years old, that she has since developed arthritis in her foot, and has had progressively more trouble walking as a result. AR 432. Plaintiff also identified pain in her right shoulder due to a rotator cuff injury. She explained that she cannot lift her right arm above her chest without it hurting. AR 433. Plaintiff's prescribed medications also keep her from working because they make her drowsy. AR 408.

Plaintiff currently goes to the Family Healthcare Network for medical treatment and prescription medication, but Dr. Wadhwani has treated her in the past. AR 434, 444. Plaintiff can lift and carry approximately 10 pounds with her left arm and approximately two pounds with her right. She uses her left hand to perform basic tasks such as eating because it hurts her right shoulder to grip things with her right hand. AR 434-435. There is nothing wrong with Plaintiff's right hand itself.*fn5 AR 435-436.

Plaintiff can stand for approximately 5 to 10 minutes before needing to sit down and can sit for approximately 20 minutes before needing to stand or lie down. She lies down for five to six hours in an eight-hour time period. AR 412. Plaintiff can walk approximately one block, but requires a cane to do so. AR 437. She has been using a cane for approximately one year, at the direction of Dr. Wadhwani. AR 408-409, 432. She must rest approximately every 15 or 20 minutes for approximately 10 minutes. AR 438. Plaintiff does not function very well approximately every other day. AR 439.

Plaintiff is currently taking Vicodin, Soma, Motrin, Albuterol, Advair, and Loratadine. AR 413. She has not participated in physical therapy. AR 419. The medications are giving her some relief from the pain. AR 417. She takes Vicodin three times per day: in the morning, afternoon, and evening. The Vicodin makes her fall asleep for one to two hours, approximately one half hour to an hour after she takes it. AR 440-441. Plaintiff takes Motrin for inflammation and has an inhaler for asthma. She experiences asthma attacks one or two times per week. AR 441.

Plaintiff spends "99 percent" of her time inside the home, and mostly plays board games with her children. AR 442, 444. She does not cook meals, do laundry, or dress herself. Her husband and children perform these tasks. AR 442-444. Plaintiff's mother-in-law buys groceries and school supplies. Plaintiff's husband works as a chemical hauler. AR 445. Plaintiff drives her children to and from school and drives herself to doctor's appointments, but must stop the car often because of back pain.*fn6 AR 412-413, 416. She drove to the hearing on July 23, 2008. AR 443.

VE Dachelet testified that Plaintiff's previous work as a cashier was considered a light physical demand, unskilled. Nursing assistant is medium, semi-skilled. Packing house work is light, semi-skilled. AR 446. VE Dachelet was asked to consider a hypothetical individual of Plaintiff's age, education, vocational training, and relevant work experience, who has a combination of severe impairments and retains the residual functional capacity ("RFC") to lift and carry 20 pounds occasionally and 10 pounds frequently, stand and walk two hours each per day, sit six hours per day, and occasionally climb. He indicated that this hypothetical individual could not perform any of Plaintiff's past work. AR 447.

VE Dachelet indicated that this same hypothetical individual could perform other jobs that exist in the national economy, specifically all sedentary, unskilled jobs. AR 447. He offered examples including: ampule sealer, 1,933 jobs in California; semiconductor dye loader, 5,406 jobs in California; and weight tester, 1,800 jobs in California. A total of 82,287 sedentary unskilled jobs exist in California. Approximately 10 times this number of jobs exist in the national economy. AR 447-448.

VE Dachelet was asked to consider a second hypothetical individual, of Plaintiff's age, education, vocational training, and relevant work experience, who has a combination of severe impairments and retains the RFC to lift and carry 10 pounds maximum, stand, walk, and sit less than four hours, must use a cane to walk, must take 10-minute rest breaks every 15 to 20 minutes, and would miss approximately three days per week of work. VE Dachelet indicated that such an individual could not perform any of Plaintiff's past work. AR 448.

VE Dachelet was asked to consider a third hypothetical worker, as posed by Plaintiff's counsel, of Plaintiff's age, education, vocational training, and relevant work experience, who has a combination of severe impairments and retains the RFC to lift and carry 10 pounds maximum, sit less than two hours, stand and walk less than two hours, must use a cane to walk, must take 10-minute rest breaks every 15 to 20 minutes, would miss approximately three days per week of work, and that frequently experiences pain, fatigue, or other symptoms severe enough to interfere with attention and concentration. VE Dachelet indicated that such an individual could not perform any work that is normally found in the world of work. AR 448-449.

Medical Record

The entire medical record was reviewed by the Court. A summary of the reports and treatment notes is provided below.

Dr. Hefflebower

Plaintiff was treated by J.R. Hefflebower, D.P.M., from March 26, 1998 to May 13, 1999. On four occasions Plaintiff was seen for injury, discomfort, or muscle cramping in her left foot. None of the injuries were serious. Dr. Hefflebower noted evidence of a prior surgery, which Plaintiff indicated occurred following a lawnmower accident at the age of four. AR 260-263.

San Joaquin Prime Care Medical

Plaintiff was treated at San Joaquin Prime Care Medical from December 13, 2004 to May 22, 2006. Stefan Pentschev, M.D. was her treating physician. Plaintiff was routinely prescribed medication for asthma, advised to lose weight and stop smoking, and was treated for routine health complaints. These records also document Plaintiff's complaints of pain in her left foot and prescriptions for medication to treat her symptoms. AR 206-218.

On March 12, 2005, Plaintiff was seen for a sore left knee. The treating clinician determined that Plaintiff had tendonitis in her left knee and also noted that Plaintiff's Body Mass Index ("BMI") was 42. AR 214.

After March 2005, Plaintiff also began complaining of pain in her neck, shoulders, lower back, hips, and whole body. She also complained of headaches. AR 219-259.

On March 28, 2006, Plaintiff was seen for pain in her lower back and right hip after washing her van. AR 227.

Sequoia Foot Care Group

On December 21, 2004, Plaintiff was seen by Michael Boyd, D.P.M., at the Sequoia Foot Care Group for pain in her left foot. Dr. Boyd reported moderate discomfort, evidence of prior scarring, and irregular X-rays indicating hypertrophic bones in the left foot. Dr. Boyd diagnosed the condition as pain possibly due to scar tissue entrapment of nerve and/or osseous injury, and prescribed no treatment. AR 187-191.

Dr. Frederick R. Young

On March 25, 2005, Plaintiff was evaluated by Frederick R. Young, M.D., an orthopedist, for pain in her left foot. Dr. Young noted that Plaintiff's left foot had significant scarring and limited range of motion. He noted that Plaintiff had normal range of motion at her neck, upper extremities, back, hips, knees, and ankles, and that her gait showed equal stance and no appreciable limp. No spasm was noted in Plaintiff's neck, upper extremities, or back. Dr. Young also noted morbid obesity. He stated that Plaintiff would be restricted in her ability to stand and walk for prolonged periods of time and a "desk type" job would be medically appropriate. AR 192-193.

Dr. Boota S. Chahil

On December 7, 2005, Plaintiff saw Boota S. Chahil, M.D., neurologist, for hand numbness and pain. Dr. Chahil performed an examination of both upper extremities, including motor and sensory nerve conduction studies. All results were normal and there was no evidence of ...


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