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Her v. Astrue

August 3, 2010

GE HER, 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 Ge Her ("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 Dennis L. Beck, United States Magistrate Judge.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed her application on April 17, 2006, alleging disability since January 1, 2005, due to chest, head, neck and back pain, severe food allergies and an ulcer. AR 97-100, 109-115. After her application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 47-55, 56-63, 76. ALJ Sharon L. Madsen held a hearing on July 17, 2008, and denied benefits on September 3, 2008. AR 11-21, 22-46. The Appeals Council denied review on June 26, 2009. AR 1-3.

Hearing Testimony

ALJ Madsen held a hearing on July 17, 2008, in Fresno, California. Plaintiff appeared with her attorney, Melissa Proudian, and an interpreter. Vocational expert ("VE") Cheryl Chandler also appeared and testified. AR 11, 22.

Plaintiff testified that she was 41 years old at the time of the hearing. She lives with her husband and five of her 10 children AR 26-27. She has a driver's permit and used to drive with someone in the car. She now relies on others for transportation, but can use the bus. AR 28, 30. Plaintiff does not do any housework or cooking. AR 28-29. She shops with her children. AR 29. Plaintiff's pain prevents her from watching television. She does not go to church and does not visit friends, though friends may visit her. AR 29-30.

During an average day, Plaintiff doesn't do anything because of pain and weakness in her arms. AR 30. She cannot read or write in any language and has not worked since she came to the United States. AR 30-31.

Plaintiff explained that the pain in her arms is caused by her muscles and that she has constant weakness and pain. Her right arm is worse. She takes medicine for the pain. Plaintiff saw a doctor for massage, but it did not help. She also uses heat and ice. AR 31-32.

Plaintiff also has pain from a stomach ulcer and pain in the back of her neck that "comes through the chest." She feels "tight in her body, pain in my leg, my neck, headaches." She believes her pain is getting worse and that nothing can cure it. AR 32-33.

Plaintiff testified that she no longer goes to Mental Health because "they told [her] to stop going there." She is still depressed and has trouble sleeping because of pain. AR 33. Her pain also causes trouble with concentration and memory. AR 33-34. Plaintiff takes medication for her depression at night so she can sleep. AR 34. She lays down about three times per day but cannot lay down for long because of pain. AR 36.

Plaintiff estimated that she could lift a small container of milk with her left hand, but not with her right hand. She thought that she could sit 20 to 30 minutes and could stand for 20 minutes. AR 34-35. Plaintiff thought that she could walk for about a half block. She cannot bend to touch her toes, but could touch her knees. AR 35. She cannot reach overhead with her right arm and cannot climb stairs. AR 36.

For the first hypothetical question, the ALJ asked the VE to assume a person of the same "age, education, language," and experience (no prior jobs) as Plaintiff. This person could lift 50 pounds occasionally, 25 pounds frequently, sit, stand and walk for six hours per day and perform simple, routine tasks. The VE testified that this person could perform jobs at the unskilled medium, light and sedentary levels "limited only by the language factor." The VE testified that positions for such an individual would include the medium positions of vehicle/equipment cleaning, material handler and hand packager. AR 40-41. The ALJ asked how ...


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