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De La Cruz v. Astrue

August 4, 2010

OFELIA DE LA CRUZ, 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 Ofelia De La Cruz ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits ("DIB") and supplemental security income ("SSI") 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 Dennis L. Beck, United States Magistrate Judge.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed her applications for DIB and SSI in April 2006. She alleged disability since August 15, 2001, due to a lower back injury and pain throughout the body. AR 145-52. After Plaintiff's applications were denied initially and on reconsideration, she requested a hearing before an Administrative Law Judge ("ALJ"). AR 78-82, 86-90, 92. On February 26, 2008, ALJ Christopher Larsen held a hearing. AR 25-55. He denied benefits on June 21, 2008. AR 11-24. The Appeals Council denied review on May 13, 2009. AR 1-5.

Hearing Testimony

ALJ Larsen held a hearing in Fresno, California, on February 26, 2008. Plaintiff appeared with her attorney, Melissa Proudian, and a Spanish interpreter. Vocational expert ("VE") Jose L. Chaparro also appeared and testified. AR 17, 27.

Plaintiff was born in 1969. She is five feet tall and weighs 142. She recently lost over 100 pounds. The doctor requested that she lose weight for back and neck surgery. AR 30-31.

Plaintiff is married. She has four children, ages 17, 13, 9 and 7. She drives them to school in the morning and they come back on the bus. AR 31-32.

Plaintiff completed the sixth grade in Mexico. She did not get a GED or diploma in the United States. She cannot read or write in English. She can hardly speak or understand any English. If she was lost, she could not ask for, or understand, directions in English. She can read and write in Spanish. She has not had vocational training. AR 33-34.

Plaintiff testified that she last worked on August 16, 2001. She was sorting tomatoes. It was a three-month seasonal job. She worked full-time during the season for more than 10 years. The heaviest weight she lifted was 20 pounds. She was injured on the job, falling and hurting her back, neck and legs. She went to work the following day, but did not continue after that. She has been in medical treatment since August 17, 2001, and has an ongoing Workers' Compensation case. AR 34-37.

Plaintiff does not feel that she could do any job eight hours a day, five days a week because she has a lot of pain in her lower back, neck and legs, both of her knees hurt and she has pain in the bones of her legs. She has pain in her back radiating down to her legs. Her pain is an 8 on a scale of 1 to 10. Cold or movement aggravate it. AR 36-38.

Plaintiff testified that the longest she can sit is an hour. She can stand around an hour. She has a cane. Dr. Fontana, a physical therapist, prescribed it in 2001. She can walk about a block with the cane. AR 38-41.

Plaintiff testified that since she got hurt, she has not picked up anything heavy. The heaviest thing she lifts is her purse, which is less than 10 pounds. She never lifts anything over 10 pounds. AR 41-42.

Plaintiff's pain medication takes away the pain in her back completely, but it causes her to feel dizzy and sleepy enough to lie down. She lies down once or twice a day for one to three hours. She has been doing that since 2006. AR 42-43. Plaintiff takes Vicodin. She wears a Lidoderm patch everyday, either in the daytime or the nighttime. She has had physical therapy, but it did not help. A doctor wanted to give her injections for pain, but her insurance said no. She has been seen for possible surgery of her back. A doctor in Fresno told her that he did not recommend surgery and she would be worse off. The weight loss helped her for the leg pain, but not her lower back. She is going to see a surgeon in Los Angeles, but has not made an appointment. AR 43-45.

Plaintiff testified that she can reach overhead with either arm to get something out of a cupboard. She can reach at shoulder height with either arm, but every movement bothers her lower back. She did not know if she could bend over and pick something up off the ground. She has not done it. AR 45.

Plaintiff testified that her daughter or husband help her put on clothes. She can bathe herself, but tries not to make too much movement. She can keep her mind on something for 5 or 10 minutes. She would have to take an hour break before she could go back to concentrating for another 5 to 10 minutes. With all the pills, she gets a lot of depression. AR 45-46.

Plaintiff says she hardly eats anymore. She goes to Weight Watchers and doesn't eat as much or make food. Her daughter does the cleaning. Plaintiff always has pain in her legs. She has pain in her neck three or four days a week. AR 46-47.

The VE also responded to questions from the ALJ. The VE testified that Plaintiff's past job as an agricultural produce sorter is light, unskilled work. As performed, it was medium work. Plaintiff's work as a fruit harvest worker is medium and unskilled. AR 47-49.

For the first hypothetical, the ALJ asked the VE to assume a worker of Plaintiff's age, education and work experience. This person could stand and walk a total of two hours in an eight hour day, but must have a cane. This person could sit a total of four hours in eight hour day. The VE testified that this person could not perform Plaintiff's past relevant work or any other work. AR 50.

For the second hypothetical, the ALJ asked the VE to assume a worker of Plaintiff's age, education and work experience. This person could lift and carry 10 pounds occasionally, less than 10 pounds frequently, could stand and walk a total of 2 hours with a cane and could sit a total of 6 hours in an 8 hour day. This person could never climb ladders, ropes or scaffolds. She could occasionally stoop, balance, kneel, crouch, crawl and climb ramps or stairs. She must avoid concentrated exposure to hazards. She occasionally could work overhead with bilateral arms and hands. The VE testified that with these limitations, the hypothetical worker could not perform Plaintiff's past relevant work. AR 50.

Assuming no English, the VE believed there were other jobs she could perform in the regional or national economy. There were several classifications. Each one of the jobs was probably a low number, but in combination, there were about 4,000 jobs in California and about 39,800 jobs nationally. For example, one job is bench hand, which is sedentary, unskilled with 100 to 200 jobs in California and 1,200 nationally. Another job is crystal attacher, which is sedentary, unskilled with 100 to 200 jobs in California and 1,200 nationally. There is nut sorter, which is sedentary, unskilled with 100 to 200 jobs in California and 1,100 nationally. AR 50-51.

Plaintiff's attorney asked the VE to assume the second hypothetical and add the need for breaks during the day of a one hour maximum and concentration in increments of 5 to 10 minutes with an hour break in between. The VE testified that all jobs would be eliminated by either of the limitations. The VE's testimony was consistent with the ...


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