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Tweedy v. Astrue

August 25, 2010

DEANNA M. TWEEDY, 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 Deanna M. Tweedy ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") 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 Gary S. Austin, United States Magistrate Judge.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed her application on or about November 17, 2006, alleging disability beginning December 1, 2004. AR 71-73. Her application was denied initially on February 1, 2007 (AR 47-50), and upon reconsideration on April 16, 2007. AR 52-56. Thereafter, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 59. ALJ William C. Thompson, Jr. held a hearing on November 20, 2007 (AR 28-44) and issued an order denying benefits on May 22, 2008. AR 7-18. Plaintiff requested a review of the hearing (AR 5) and the Appeals Council denied review. AR 1-3.

Hearing Testimony

ALJ Thompson held a hearing on November 20, 2007, in Stockton, California. Plaintiff appeared and testified. She was represented by attorney Ben Kuykendall. Vocational Expert ("VE") David M. Dettmer also testified. AR 28-44.

Plaintiff was born on September 21, 1957. AR 33. She was 50 years old on the date of the hearing. AR 32. She is five feet, eight inches tall, weighs 185 pounds, and is right handed. AR 33. She completed twelfth grade. Id. She lives in a house with her husband and 16-year old daughter. AR 33, 38. Their income consists of her husband's Social Security disability insurance benefits and his other disability benefits. AR 33.

When asked about the last time she worked, Plaintiff stated it was probably 2002 or 2003. AR 34. The last job she had was as a substitute teacher's aide for a grammar school. Id. She worked there part-time for five years, "off and on." Id. She typically worked four hours per day, three to five days per week. Id. She filled in for an employee on medical leave and other employees on vacation or taking time off. Id. The work consisted of copying papers for teachers and working with the children "once in a while." AR 35. She was laid off because the employee she filled in for returned from chemotherapy. Id. She also cleaned hospital rooms from 1974 to 1990. Id.

Plaintiff cannot work because of arthritis in both hands. AR 35. She sees Dr. Anderson for treatment for arthritis every two months. Id. She takes Tylenol Arthritis, but no prescription medications because she also has gastroesophageal reflux disease (GERD). AR 35, 39. She also has pain in her neck, lower back, and hips, for which she takes half of a Vicodin in the morning and half at night. AR 35-36. She has been seeing Dr. Duclair for treatment every four months for almost one year, but the pain has been present for 20 years. AR 36. According to Dr. Duclair, surgery is not an option. Id. She has had injections in her neck and back, which helped with the pain for about one week. AR 36-37. She tried physical therapy for two days, but "it hurt so much that [she couldn't] do it." AR 37. She was "sick for the next three days." Id.

A diagnosis of GERD was made in 2000. AR 37. Dr. Anderson has been treating her every two months and prescribing Aciphex. Id. The GERD bothers her every day, three to four times per day, especially in the mornings. Id. She gets a "burning, nauseous feeling" and has to stop everything and lay down. AR 37-38. She went to the hospital for it in 2002. AR 38. She has to restrict her diet and avoid certain foods. Id.

Plaintiff tries to clean her house, but she has to stop after a short time because her hand hurts. AR 38. She does dishes because the hot water relaxes her hands. Id. Her daughter does a lot of the cleaning. Id. During the day, Plaintiff reads and walks around outside. AR 39. She can walk about 500 yards before she has to stop because of pain in her lower back and hips. Id. She does not need a cane or crutch. Id. She can stand for 10 to 15 minutes before her back starts hurting. Id. She sometimes has difficulty sitting because of her lower back and hip. Id. She can take care of her personal hygiene. Id. She goes grocery shopping, but she takes her daughter with her. AR 40. Her daughter usually drives because she does not like to drive and because of the price of gas. Id.

VE Dettmer testified that Plaintiff's previous work as a part-time teacher's aide is considered light work and her previous work as a hospital housekeeper is considered medium work. AR 41. He was asked to consider a hypothetical worker of Plaintiff's age, education, and work experience, who is capable of lifting 10 pounds frequently, can stand and walk in combination for at least six hours in a workday, and can sit without limit when not required to stand or walk. Id. This individual can occasionally bend, stoop, twist, squat, kneel, crawl, and climb stairs, but cannot climb ladders or scaffolding and would be limited bilaterally to only occasional overhead reaching. Id. VE Dettmer indicated that these limitations do not appear to preclude Plaintiff's work as a teacher's aide. Id. Furthermore, he indicated that an individual with these limitations could also perform light work such as office helper and cashier, with 16,000 and 110,000 jobs in California, respectively. Id. The number of cashier jobs would be subject to a 25 percent erosion due to lifting and overhead reaching. AR 41-42. VE Dettmer indicated that sedentary work is also available for this individual. AR 42. An example is small parts assembly, with 17,000 jobs in California. AR 42.

VE Dettmer was asked to consider a second hypothetical worker, as posed by Plaintiff's counsel, of Plaintiff's age, education, and work experience, who could occasionally lift and carry ten pounds, could sit for a total of one hour per day, and could stand or walk less than one hour per day. This individual could occasionally handle, but could never climb, balance, stoop, crouch, kneel or crawl, and should never reach, push, or pull. AR 42-43. VE Dettmer indicated that this hypothetical worker could not do Plaintiff's job as a teacher's aide and could not do any jobs he previously identified. AR 43.

Medical Record

The entire medical record was reviewed by the Court. Summaries of the reports and treatment notes are provided below.

Danny M. Anderson, M.D.

On August 20, 2004, Plaintiff was seen by her treating physician, Danny M. Anderson, M.D., for complaints of swollen, stiff, and painful finger joints, painful ankle and toe joints, low back pain, and irritable bowel syndrome. AR 186.

On February 4, 2005, Plaintiff was seen for complaints of left ear pain and a white coating on her tongue. AR 184. Treatment notes indicate a diagnosis of degenerative disc disease (DDD)/degenerative joint disease (DJD) of the thoracic spine. Id.

On March 2, 2005, Plaintiff was seen for complaints of chronic gastric problems. AR 183.

On August 12, 2005, Plaintiff was seen for complaints of GERD, right elbow pain, and right shoulder pain. AR 179.

On September 29, 2005, Plaintiff was seen for complaints of mid-back pain and sciatic pain. AR 177.

On January 5, 2006, Plaintiff was seen for complaints of GERD, herniated disc, and pain in her hands and right shoulder. AR 171. The pain increased with extension and range of motion. Id. The Dr. Anderson's diagnosis included DJD of the hand, DDD of the lumbar spine, and chronic GERD. Id.

On November 9, 2006, treatment notes indicated increased DJD of the hand, GERD, and hip pain when walking one half mile. AR 166.

On May 31, 2007, Dr. Anderson prepared a complete medical report of Plaintiff's physical and mental work-related impairments. AR 200-204. His diagnoses included DDD/DJD and arthritis. This diagnosis was based on an epidurography done on January 5, 2007, and March, 30, 2007, with Dr. Duclaire,*fn3 a bilateral hip x-ray done on November 14, 2006, MRIs done on December 19, 2006 and February 26, 2007, and x-rays of the thoracic spine done on September 8, 1997*fn4 and March 3, 2005. AR 200. Plaintiff was being treated with Norco. Id. Past treatments included anti-inflammatories and epidural blocks done in January 2007 and on April 29, 2007. Id. Physical therapy and chiropractic treatment had been done in the "distant past." Id. Dr. Anderson noted that Plaintiff's response to the treatment was "temporary" and that her prognosis was "guarded." Id.

Dr. Anderson opined that Plaintiff could occasionally lift and carry up to ten pounds, could sit for one hour total in an eight hour work day, and could not stand or walk for any length of time. AR 201. She could occasionally use her hands for simple grasping and fine manipulation, could occasionally use her feet, but could never climb, balance, stoop, crouch, kneel, or crawl. AR 202. She could frequently feel and occasionally handle, but never reach, push, or pull. Id. He cited an "abnormal MRI" as the medical finding that supports all of these limitations. AR 201-202.

Dr. Anderson further opined that Plaintiff must avoid all exposure to heights, moving machinery, vibrations, noise, dust, fumes, odors, smoke, chemicals, wetness, dryness, and temperature extremes, but he did not identify any medical/clinical findings that support this assessment. AR 203. He indicated that the earliest date that this physical assessment accurately described Plaintiff's work-related limitations was December, 2006. Id.

In an assessment of Plaintiff's mental ability to do work-related activities, Dr. Anderson indicated that Plaintiff's abilities to follow work rules, relate to co-workers, use judgment, function independently, interact with supervisors, as well as maintain attention and concentration were fair or better. AR 203. Her abilities to deal with the public and with work stress were poor. Id. Her abilities to make performance adjustments and personal/social adjustments were fair or better. AR 204. Dr. Anderson indicated that the earliest date that this mental assessment accurately described Plaintiff's work-related limitations was December, 2006. Id.

Miguel Hernandez, M.D.

On January 17, 2007, family practitioner Miguel Hernandez, M.D., at MDSI Physician Services, performed a comprehensive internal medicine evaluation. AR 125-128. Plaintiff's chief complaints were arthritis of the hands and GERD. AR 125. Dr. Hernandez reviewed Plaintiff's medical records and noted that a x-ray of the bilateral hips on November 14, 2004, was negative. Id. He further noted that a x-ray of the thoracic spine on March 4, 2005, showed mild thoracic scoliosis and diffuse degenerative changes, but was otherwise unremarkable. Id.

Dr. Hernandez noted that Plaintiff's arthritis had been diagnosed two years ago, with no specific injuries and no surgeries to her hands. AR 125. She was taking over-the-counter Tylenol because other medications "hurt her stomach." Id. Plaintiff had GERD for four years, and was prescribed Aciphex to suppress the symptoms. Id. Plaintiff stated that she could not hold heavy objects with her hands due to pain, could not open jars, and dropped things easily. Id. She could not hold spoons, glasses, or vacuum because she was unable to hold the vacuum cleaner. Id. She could not do house work or yard work because of her weak hand grip. AR 125-126. She could dress and bathe herself, and sitting, standing, and walking were generally not a problem. Id.

Dr. Hernandez noted that Plaintiff walked into the room with no discomfort and sat on the examination table with no problem. AR 126. She had no assistive device. Id. Examination of her hands revealed no deformities and no tenderness to palpation over the wrist or any fingers. AR 127. Her hand grip strength was good. Id. Dr. Hernandez diagnosed Plaintiff with generalized osteoarthritis of the hands and opined that it "appears to be clinically stable." AR 128. He also diagnosed GERD. Id.

Dr. Hernandez opined that Plaintiff could stand, walk, and sit for six hours in an eight hour work day with routine breaks. AR 128. She needed no assistive device. Id. She could lift and carry ten pounds frequently. Id. Dr. Hernandez attributed manipulative limitations to reaching, handling, feeling, grasping, and fingering, especially in a repetitive manner, due to arthritis of both hands. Id. He found no postural or environmental limitations. Id.

Cesar P. Duclair, M.D.

On December 6, 2006, Cesar P. Duclair, M.D., at the Northern California Spine Institute, performed a physical examination of Plaintiff at the request of Dr. Anderson. AR 132-133. Plaintiff complained of lower back pain, extending into her lower extremities, for more than 20 years. AR 132. She stated that the worst position for her is standing, which she can do for ten minutes at a time, and that lying down eases her pain. Id. She also stated that she can walk one to two city blocks. Id.

The examination revealed no atrophy and full range of motion in her extremities, and normal sensation and reflexes in her lower extremities. AR 132-133. Plaintiff had decreased strength secondary to pain in her lower extremities, with some mild radicular component. AR 133. Straight leg raising was slightly positive bilaterally and hyperextension of the lumbar spine was somewhat difficult. Id. Dr. Duclair diagnosed axial low back pain with mild ...


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