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Lewis v. Astrue

June 15, 2010

LEE LEWIS, 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

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Catherine Lee Lewis ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income 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 Gary S. Austin, United States Magistrate Judge, for findings and recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

In September 2006, Plaintiff filed an application alleging disability beginning December 31, 2004. AR 87-96. Her application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 26--27, 30, 33-41. ALJ James P. Berry held a hearing on December 11, 2007, and issued an order denying benefits on March 20, 2008. AR 17-23, 308-329. Thereafter, on November 4, 2008, the Appeals Council denied review. AR 6-9.

Hearing Testimony

ALJ Berry held a hearing on December 11, 2007, in Fresno, California. Plaintiff appeared and testified. She was represented by attorney James P. Witherow. Vocational Expert ("VE") Thomas C. Dachelet also testified. AR 308-329.

Plaintiff was born December 5, 1954. She is five feet, nine inches in height, and weighs 185 pounds. She completed twelfth grade and can read and write English. AR 312-313. Plaintiff lives with her husband and son, and the family is supported her husband's receipt of SSI benefits. AR 314.

When asked about her work history, Plaintiff indicated she last worked baby-sitting for her daughter about three years prior to the hearing. Her grandchildren were one year of age when she began baby-sitting them; they are now four years old. AR 313-314. Plaintiff does not have a history of any other regular employment. AR 314.

While Plaintiff does maintain a driver's license, she drives very little, and does not drive every day. She might drive twice a week or so, yet on most occasions, her husband or son do the driving. AR 314-315.

Plaintiff obtains medical treatment at University Medical Center and United Health Center in Kerman. At the latter, she sees Dr. Amati and is primarily treated for diabetes. The doctor also is treating her for "tremors." AR 315. Plaintiff explained that her use of a particular medical facility is directly related to her insurance coverage at the time of treatment. AR 316-317.

With regard to diabetes, Plaintiff has been insulin dependent for fifteen years. Her blood sugar is not stabilized however. AR 317-318. When asked about the medications she is prescribed, Plaintiff noted the Tramadol and Robaxin "help [] a lot." However, side effects include drowsiness and a "rotten" feeling. AR 318-319.

When asked to describe an average day, Plaintiff indicated she gets up at about 10:00 a.m., takes her insulin and gets something to eat and has a cup of coffee. She indicated that most of her day is spent sitting inside or lying down. AR 319. Asked more specifically about her morning, she stated that she spends most of the time sitting on the couch, and indicated that her son Benjamin does "all the housework and cleaning." She "does some laundry, but it's a process of taking a long time to get it done." AR 319. Benjamin mops and sweeps the floors, cleans the bathrooms and does all the grocery shopping. AR 320-321. He also takes care of "the work on the cars and... anything that needs to be done like that...." AR 320. Plaintiff and her husband listen to the radio and talk. Her husband "had a bad heart attack" and so they are "together most of the time." Her husband can get "up and about and mov[e] around." AR 320. She indicated they "eat a lot of microwave food." AR 320. Asked specifically about an average afternoon, Plaintiff indicated she lies on the couch, sleeping or feeling bad. AR 320.

Currently, Plaintiff suffers from pain in her neck and shoulders, pain that "shoots down [her] leg," a rapid heart beat, and a feeling as though her "body is boiling." She also suffers from hot flashes and "just the feeling of feeling terrible." AR 321.

When asked how much weight she could lift and comfortably carry, Plaintiff indicated she could lift and carry a gallon of milk. AR 321. She can walk five minutes before needing to stop and rest, and can stand about fifteen minutes before needing to rest. AR 321-322. Asked to consider a typical eight-hour work day and her ability to "be on [her] feet" during that eight-hour day, Plaintiff indicated she could stand for a total of thirty minutes in an average workday. She estimated she could sit for about an hour at a time, before needing to "get up," could not sit for more than a total of two hours in an eight-hour day. AR 322-323. She reiterated that she spends most of her time lying down. AR 323.

Plaintiff requires assistance with personal care, bathing and dressing. For instance, her husband helps her get into and out of the bathtub. AR 323. A neurologist she previously received treatment from indicated she had neuropathy, however that was years ago. AR 323. Plaintiff explained the neuropathy was a numbness in her feet and stated she was putting on her socks a few days prior to the hearing and found there was "an M&M stuck to the bottom of [her] toe" that she did not realize was there. AR 324.

When asked if there were any other physical problems that affect her ability to work, Plaintiff consulted her list of prescribed medications and indicated there were no additional problems. AR 323-324.

ALJ Berry asked Plaintiff about three prescribed medications for hypoglycemia: Novalin R, Novolog, and Lantus. Plaintiff explained that she takes the Lantus and Novolog everyday, and uses the Novalin R if her blood sugar does not respond to the other two medications. AR 324.

When asked if she attended college, Plaintiff indicated that she took three college courses over the summer about forty years ago. More particularly, she recalled taking African history and a math course. AR 325.

VE Dachelet indicated that Plaintiff's previous baby-sitting work was considered a medium physical demand, SVP 3, semi-skilled. The skills are not transferable. AR 326. When asked to consider a hypothetical worker of Plaintiff's age, education and work experience, with the ability to lift and carry twenty pounds occasionally and ten pounds frequently, who can stand, walk and sit for six hours each in an eight-hour workday, who can occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl, but cannot climb ropes, ladders or scaffolds, VE Dachelet indicated that the hypothetical worker could not perform Plaintiff's past relevant work. Nevertheless, such an individual could perform other work in the national economy. AR 326-327. VE Dachelet stated such a worker could perform the "full world of light unskilled" work. AR 327. Three examples of such work include: bagger - census code 964; garment sorter - census code 896; and grader - census code 880. In California, there are 31,833, 34,065 and 20,878 persons, respectively, performing similar work; national figures are obtained by multiplying the state figures by ten. AR 327.

When asked to consider a second hypothetical scenario involving a hypothetical worker of Plaintiff's age, education and work experience, with the ability to lift and carry a gallon or approximately eight pounds, who can sit a maximum of two hours, stand for a maximum of one-half hour and walk for five minutes at a time, and who experiences drowsiness after consuming medications, VE Dachelet indicated such a hypothetical worker could not perform Plaintiff's past relevant work, nor could such an individual perform any other jobs as they exist in the national economy. AR 327-328.

Medical Record

The entire medical record maintained in the administrative record lodged on August 24, 2009, 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.

In March 2001, Plaintiff presented to University Medical Center claiming to have Tularemia*fn2 after having been referred by the county public health agency. Chest x-rays taken revealed no significant abnormality and all toxicology reports were normal. Tularemia was ruled out. Plaintiff was advised to follow up with her primary physician regarding control of her diabetes.*fn3 AR 261-275.

In a report dated November 18, 2004, internist Kumar R. Mohan, M.D., performed an esophagogastroduodenoscopy with biopsies. His post operative diagnoses included upper endoscopy to second part of the duodenum; no ulcerations, tumor or gastric outlet obstruction; and low grade gastritis, proximal body, most likely secondary to stasis, otherwise negative. AR 201. The pathology report following biopsy included a final diagnosis of moderate chronic gastritis, no evidence of dysplasia or malignancy, and focal Helicobacter like organisms confirmed on the Giemsa stain. AR 205.

In a follow up report dated November 19, 2004, Dr. Mohan noted his impression of moderate chronic gastritis, H. pylori positive, probable gastroparesis secondary to diabetes mellitus, hypertension and insulin dependent diabetes mellitus. Medications were prescribed to treat her symptoms. AR 199.

A March 23, 2006, cardiology study revealed that Plaintiff had mild reversibility in the anterior and inferior walls, however, the finding notes that the condition was "felt to more likely ...


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