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Ramirez v. Astrue

September 20, 2010


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge



Plaintiff Lupe Ramirez ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits ("DIB") 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.


Plaintiff filed her application for DIB on December 27, 2005. AR 136-40. She alleged disability since March 31, 2005, due to migraines, depression, and neck and back spasms. AR 136-38, 181. After her application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 74, 82, 91-94, 98-101, 104. ALJ Bert C. Hoffman, Jr., held a hearing on July 8, 2008, and denied benefits on December 1, 2008. AR 6-17, 18-73. The Appeals Council denied review on June 26, 2009. AR 1-4.

Hearing Testimony

ALJ Hoffman held a hearing on July 8, 2008, in Fresno, California. Plaintiff appeared with her attorney, Melissa Proudian. AR 9, 20.

Plaintiff was 50 years old at the time of the hearing. She is 5'2" and weighs 140 pounds. She is right handed. AR 21. She is not married. She has two children, ages 24 and 25. Her 25-year-old daughter and 9-year-old grandson live with her. She has a driver's license and drives about five miles daily. She has limited her driving because of her pain and her health. AR 22-23.

Plaintiff completed the twelfth grade. She never pursued any college units or vocational training. She last worked in 2005 as a receptionist for a box manufacturing company. She worked there 15 years. She had a lot of duties, including filing, copying, answering the phone, typing, computer work, meeting the public, mailing and receiving packages and logging in time cards. The heaviest amount of weight that she had to lift was ten pounds. AR 24-25.

Plaintiff testified that she was terminated from her job due to injury. Her injury was pain in her neck, back and hands, along with stress. She had a Workers' Compensation case, which settled. In terms of settlement, she received $65,000 based on all of her impairments, but did not receive future medical treatment. She has not worked since that time and has not been able to find other work due to her medical issues. She does not feel that she could work at any job eight hours a day, five days a week. She was found permanent and stationary, but did not remember the limitations placed on her. She saw two agreed medical examiners. AR 26-29.

Plaintiff testified about the problems that prevent her from working. She has a lot of pain and tingling in her hands. She has pain in her neck and back. She also has stress, anxiety and headaches. AR 30-31.

She has pain in both of her hands every day. It comes and goes. Sometimes she feels pain, tingling and her hands go numb. She can use both hands together on a repetitive basis. She can use her hands repetitively about 15 minutes before she has to stop for 15 to 30 minutes. AR 31-33.

Plaintiff has wrist braces. She wears them all the time at night. During the day, she wears them about two to three hours. She will wear them three to four days out of the week for four to six hours. She does not have them on all the time. AR 33-34.

She has carpal tunnel in her hands. It is getting worse. Dr. Brubaker, her doctor, mentioned surgery about two years earlier. She has been seeing him for about three years. He did not give her any injections or physical therapy for her hands. The surgery was for her right hand. She feels more pain in that hand because she uses it more. She can lift five pounds with her right hand and five pounds with her left hand for no more than five minutes. After the five minutes, she would have to take a fifteen minute break for her right hand. She probably could turn around and just pick up another five pounds with her left hand and hold it for five minutes. She could keep doing that repeatedly with her left hand for about 15 minutes. After that, she would have to take a break for 15 minutes to a half hour before she could go back to lifting five pounds. AR 34-38.

To relieve the pain in her hands, Plaintiff will rest them or wear her brace. She takes Vicodin and Ibuprofen for pain. The Ibuprofen is 800 milligrams. She has been on Vicodin for about three years. She will take Ibuprofen every four hours. She takes Vicodin at least once a day, every day. The time she takes it varies. AR 38-40.

She has side effects from the Vicodin. Her stomach gets irritated a couple times a week. About an hour after she takes the Vicodin, she starts getting really tired and it makes her nauseous. She has to lie down and rest. She will sometimes sleep for three to four hours. AR 40-41.

In terms of her hands, Plaintiff can pick up a coin off a table, but it is difficult. She cannot grasp because of pain. She can put a key in a lock and turn it. She can turn a door knob, but it is difficult. She can hold a hairbrush and comb her hair. She sometimes has difficulty grasping the brush. She feels tingling every day in her right and left hands. She experiences more pain than tingling. AR 42-44.

She can reach overhead or at shoulder height with her right arm with difficulty. She cannot reach overhead repetitively. She cannot reach out at shoulder height with the right arm repetitively. She can reach overhead or at shoulder height with her left arm with difficulty. She feels pain in her neck and shoulders when she does any type of reaching. AR 44-46.

It is difficult for Plaintiff to hold a pen or pencil to write a message or a letter. She can write about 15, 20 minutes and then she has to rest her hands about 20, 25 minutes. She does not use a computer at home. She could computer key about a half hour and then she would have to rest her hands about 20 minutes. AR 46-48.

Plaintiff has neck pain throughout the day that comes and goes. Movement triggers the pain. She can move her head side to side, but has difficulty at times because of stiffness. She can move her head front to back without difficulty. Her neck pain radiates into her back. She takes Vicodin and Ibuprofen to treat the pain. She also takes Flexeril two to three times a day, every four hours. She sometimes feels nauseated from the Flexeril. The Flexeril, in combination with Vicodin and Ibuprofen, takes the neck pain away completely. She has not had any injections for the pain. She had physical therapy for her neck in 2005 or 2006. They stopped her therapy, so she never had a chance to improve. Dr. Brubaker treats her for neck pain. Her attorney sent her to a specialist, Dr. Kucera. AR 48-52.

Plaintiff has pain in her upper back on a daily basis. It sometimes lasts eight hours. The pain affects her ability to function. She cannot do anything. She either lies down or sits down. She takes the Vicodin, Ibuprofen and Flexeril to treat the pain. She has not had physical therapy or injections for the pain. They have not talked about any surgery. The pain does not radiate into any other party of her body, just her neck and upper back. She feels the pain throughout her neck and whole back. AR 53-55.

Plaintiff can sit in a chair for a half hour. She can stand about 30 minutes before she has to rest and sit. She will sit for 20 minutes and then get back up. She can walk about 3 minutes before she has to stop. She can walk a half hour and then she has to rest. She sometimes feels weakness and loses her balance when walking. A few times, she dropped to her knees. It happens maybe once every two months. If she drops something, she can bend down and pick it up with no difficulty. She can squat, but has a hard time getting back up. She can kneel without difficulty. AR 55-57.

Plaintiff testified that she has a lot of difficulty focusing or concentrating. The longest she can focus is under an hour. At that point, she just stops and takes a break. She would have to take a break for two to three hours before she could return to concentrating. AR 57-58.

The medication that Dr. Brubaker has given her for stress has helped. From time to time she will go into a deep depression. She can go into a depression two times a week. Sometimes it will last all day. When she is depressed, she cannot complete tasks.

Plaintiff underwent an eight-week counseling session in 2006 for her depression. She told Dr. Brubaker that she is still experiencing depression. They changed her medication. She has not asked him to recommend counseling or therapy. The newer medications help and make the depression less frequent. She no longer experiences the depression once or twice a week. It is maybe twice a month. On the days she has depression, it sometimes lasts throughout the day. She has been depressed once or twice a month for the last six months. AR 58-62.

Plaintiff sometimes has headaches daily and sometimes every other day. A few months earlier, she had a headache for about seven days and went to Community Hospital. They injected her with some pain medication that helped. Sometimes her headaches will last for an hour or two. She will treat them with Ibuprofen or over-the-counter medication. It takes the headache away completely. She does not have side effects from the over-the-counter medication. AR 63-64.

Plaintiff cooks about three days a week. She sometimes watches her grandson. She does not do much outside of the home. She will go for a walk, but cannot do a lot of walking. AR 65-66. Her best girlfriend will get her out of the house and take her to town. They visit each other. They will go have dinner or lunch at a restaurant, but that doesn't happen often. AR 67. She goes back to Mendota once a year. She has a brother in Kerman that she visits from time to time. She will go for walks with her grandson. They will watch a movie at home. She will walk to his football games and stay as long as she can. She does not have any kind of church life. AR 68-69.

In terms of cleaning, she will pick up and dust when she can. She will vacuum about ten minutes. She can't do windows. She will do some grocery shopping twice a week. AR 70.

Medical Record

Plaintiff received treatment from Daniel B. Brubaker, D.O., between January 2005 and January 2008. AR 369-466, 528-64.

On January 16, 2005, Dr. Brubaker reviewed a MRI, which showed an annular disc tear at C5 and 6, along with facet arthropathy. Plaintiff reportedly was very anxious about her condition and had significant financial problems. Dr. Brubaker opined that she was not malingering or "faking it." She had a "definite objective finding" that would probably require surgery at some later date. He planned to get her onto antidepressants, sleep medication, anti-inflammatories, pain medication, analgesics and muscle relaxants. He also planned to continue with medication for high blood pressure, Relpax for migraines and Valium for severe muscle contraction headaches. AR 464-66.

On February 15, 2005, Karen Hansen-Smith, M.D., prepared a note to excuse Plaintiff from work because of severe muscle spasm in her neck. Dr. Hansen-Smith also wrote a prescription for a telephone headset to ...

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