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Miller v. Astrue

July 22, 2010

DONNA S. MILLER, 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 Donna S. Miller ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits pursuant to Title II 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 application on June 30, 2006, alleging disability since May 24, 2006, due to obesity and asthma. AR 133-135, 151-158. After Plaintiff's application was denied initially and on reconsideration, she requested a hearing before an Administrative Law Judge ("ALJ"). AR 65-69, 71-75, 76. On August 4, 2008, ALJ James Berry held a hearing. AR 25-51. He denied benefits on September 29, 2008. AR 11-20. The Appeals Council denied review on May 7, 2009. AR 1-3.

Hearing Testimony

On August 4, 2008, ALJ Berry held a hearing in Fresno, California. Plaintiff appeared without an attorney. Vocational expert ("VE") Cheryl Chandler also appeared and testified. AR 25.

At the beginning of the hearing, Plaintiff testified that she wanted to proceed without a representative. AR 27. Plaintiff indicated that she had records that she wanted to add to her file, but that she did not have them with her. She explained that after she filed her application, she was diagnosed with excessive anxiety and depression. Plaintiff also indicated that she had a "paper" from her doctor stating that she could not work. AR 28. She asked to include records from Community Hospital and Sierra Clinic in her file. AR 29. Plaintiff further stated that she had someone her to testify on her behalf, but she was not allowed in because of inadequate identification. AR 30.

Plaintiff testified that she was 48 years old at the time of the hearing. She completed the twelfth grade and had additional training as a medical assistant, level one. AR 31-32. She last worked for pay about five months ago, when she watched her grandson Tuesdays through Fridays, for about six hours a day. Her neighbor helped her watch him. AR 32. Prior to that, she worked for an in-home provider in 2006 for about six months, when she was let go because of her asthma. AR 33. She also worked as a cashier and a nurse's aide. AR 33-34. Plaintiff currently supports herself with General Relief and Food Stamps. AR 36.

Plaintiff believed that she could not work because her asthma has worsened to the point where she can't do anything. She also testified that her weight and anxiety keep her from working. She felt that her excessive anxiety was the main reason she could not work. AR 37.

Plaintiff testified that she has had asthma since she was 13 and has a "couple" asthma attacks a week. When she has an asthma attack, her chest is tight and she cannot catch her breath. If she can get to her medicine in time, her attacks last 10 minutes. If not, she needs to go to the hospital for steroids. AR 37-38. Plaintiff uses an inhaler and nebulizer and estimated that about 70 percent of the time, she can catch her breath and doesn't need to go to the hospital.

AR 38. She believed that her medication was helpful as long as she did not perform any activities.

AR 43.

Plaintiff testified that she weighed 460 pounds and has been at this weight for about two years. She believed that her asthma caused her to weigh so much because she cannot exercise or walk. AR 40. She has tried dieting and was seeing a nutritionist but she has not been able to lose weight. AR 40. Plaintiff also takes medication for high blood pressure. AR 41.

As to her anxiety, Plaintiff testified that if she is around people, she feels closed in, her stomach starts to hurt and she can't breath. It takes about 10 minutes for her medication to kick in, and then she's fine for a while. This happens everyday. AR 42-43. Plaintiff tried to see a mental health professional but could not because she did not have insurance. AR 43.

Plaintiff did not know how to describe her depression, for which she takes medication. AR 43. Her depression and anxiety started about a year ago, when she was in a car accident. AR 43. She did not think that any of her medications caused side effects. AR 44.

Plaintiff believed that she could stand for about 30 minutes in an eight hour period and sit for about 30 minutes. She did not think she could lift over three pounds but she could carry three pounds. Plaintiff testified that she spends most of her day in bed. AR 45. She explained that she takes a tranquilizer for anxiety in the morning and afternoon and is "out of it most of the day." Her neighbor comes over to help her get dressed, cook and clean. The depression medication also makes her tired and she can't really do anything. AR 46. She does not leave home often, though her daughter sometimes takes Plaintiff to her house or to doctor's visits. AR 46. Her daughter picks up all of her medications. AR 46. Plaintiff does not watch her grandson anymore and when he's over now, her daughter stays. AR 46.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and experience. This person could lift and carry 20 pounds occasionally, 10 pounds frequently, and stand, walk or sit six hours each. This person must avoid concentrated exposure to pulmonary irritants. The VE testified that this person could perform Plaintiff's past work as a medical assistant and cashier. AR 48-49.

For the second hypothetical, the ALJ asked the VE to assume that this person could lift and carry three pounds maximum, stand and walk for 30 minutes and sit for 1.5 hours maximum. This person would have difficulty relating to and interacting with others. This person would also have to avoid pulmonary irritants. The VE testified that this person could not perform any work. AR 49.

Medical Record

Plaintiff went to the emergency room ("ER") on March 30, 2005, because she was having trouble breathing. Her breathing did not improve after using albuterol at home. A chest x-ray showed interstitial pneumonia in the left lung. She was given a breathing treatment and was discharged feeling better. AR 296-302.

Plaintiff was seen in the ER on April 19, 2005, for breathing problems. She was coughing and had pain with deep breaths. Her oxygen saturation level was 96 percent. Chest x-rays suggested acute bronchitis. Plaintiff was diagnosed with pneumonia in her left lung and discharged with medication. AR 286-295.

Plaintiff returned to the ER on October 8, 2005, because her asthma was "acting up." Her oxygen saturation level was 96 percent. She was diagnosed with an upper respiratory infection and discharged with medication. AR 280-285.

On October 22, 2005, Plaintiff was seen in the ER in the early morning after she awoke in the middle of the night and could not breath. Her oxygen saturation level was 96 percent and her blood pressure was 162/99. She had decreased breath sounds and was noted to be morbidly obese. A chest x-ray and ECG were normal. She was treated with medication and discharged in good condition. AR 265-272.

Plaintiff returned to the ER later that night, complaining of stomach acid and difficulty breathing. After a breathing treatment, Plaintiff reported that she felt 100 percent better. She was diagnosed with GERD and anxiety and discharged with medication. AR 273-279.

Plaintiff was seen in the ER again on October 29, 2005. She complained that her asthma was worse and that she didn't feel right. She also thought the steroid medication was making her swell and that her albuterol was not working. On examination, Plaintiff was tearful and anxious. She had decreased breath sounds in all fields. Chest x-rays were negative for acute cardiopulmonary disease. Plaintiff was treated with medication and diagnosed with bronchitis and early right lower lobe infiltrate. AR 257-264.

On November 5, 2005, Plaintiff returned to the ER, complaining of upper back pain, weakness and fatigue. Upon examination, her breathing was labored and rapid and she was wheezing. Plaintiff was given medication, diagnosed with asthma and bronchitis and discharged in better condition. AR 251-256.

Plaintiff was seen again in the ER on November 8, 2005, for shortness of breath. She reported that her inhaler and breathing treatment provided little relief. Plaintiff refused oxygen and did not want to sit on an ER cot. She denied any pain. Plaintiff was given a breathing treatment and discharged after she reported that she was breathing better and easier. AR 245-250.

Plaintiff returned to the ER on November 9, 2005, for asthma and back pain. Plaintiff was short of breath. A chest x-ray was negative for acute cardiopulmonary disease. AR 243. Plaintiff was diagnosed with pneumonia, asthma and pleuritic right chest pain. She was given medication and discharged. AR 233-242.

Plaintiff was seen in the ER on November 16, 2005, complaining of edema in her legs. Plaintiff was described as tearful, anxious and "depressed appearing." Her edema was treated and she was discharged. AR 222-232.

Plaintiff was seen in the ER again on November 18, 2005, for edema in her lower legs and feet. She rated her pain at a 10 out of 10 and said it was constant and burning. Her work up was negative for heart or renal failure. She was given ointment and medication and discharged. AR 207-212.

Plaintiff returned to the ER on November 20, 2005, for complaints of redness and swelling in her lower legs. She also complained of wheezing. She was diagnosed with edema and morbid obesity and discharged. AR 213-221.

On November 22, 2005, Plaintiff was seen in the ER for abdominal pain, back pain and leg cramps. Plaintiff had edema in her lower legs. She was given medication and discharged. AR 199-204.

On February 12, 2006, Plaintiff sought ER treatment for shortness of breath, despite using her inhaler. She was not in any acute distress and spoke in full sentences. She was given a breathing treatment and discharged. AR 333-340.

On March 17, 2006, Plaintiff returned to the ER for mild shortness of breath, after using her inhaler without relief. A chest x-ray showed no acute cardiopulmonary disease. She was diagnosed with an acute exacerbation of her asthma and acute bronchitis, given a breathing treatment and discharged. AR 374-380.

On May 10, 2006, Plaintiff returned to the ER with complaints of shortness of breath and pain in her legs. She had a rash on her legs, coarse breath sounds and scattered wheezing. Plaintiff was diagnosed with dermatitis, an upper respiratory infection and a history of asthma. She was given a medicated cream for her rash. AR 413-414.

On May 31, 2006, Plaintiff was seen in the ER for shortness of breath, a sore throat and a cough. She was diagnosed with a viral respiratory infection, given a breathing treatment and discharged. AR 359-362.

Plaintiff returned to the ER on June 14, 2006, for shortness of breath and cold symptoms. She was given a breathing treatment and discharged. AR 345-353.

On June 21, 2006, Plaintiff returned to the ER with shortness of breath. A chest x-ray was normal. AR 425. She was diagnosed with asthma ...


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