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Lemus v. Astrue

September 21, 2010


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge



Plaintiff Sandra Lemus ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for disability 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


Plaintiff protectively filed an application for disability insurance benefits on October 11, 2005, alleging disability beginning August 10, 2002, due to lumbar disc syndrome, as well as cervical and sacroilliac dysfunction. (AR 98-99, 105.) Plaintiff's application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 6-9, 82, 89.) ALJ Michael J. Haubner held a hearing on June 1, 2007, and issued an order regarding benefits on July 13, 2007, finding Plaintiff was not disabled. (AR 10-20.) On May 1, 2009, the Appeals Council denied review. (AR 3-5.)

Hearing Testimony

ALJ Haubner held a hearing on June 1, 2007, in Fresno, California. Plaintiff appeared and testified; she was not represented by an attorney. (AR 32-61.) Vocational Expert ("VE") Thomas Dachelet also testified. (AR 61-71.)

Plaintiff resides in Porterville, California, with her husband, their four children ages twelve to twenty, her daughter-in-law, and her eighteen month-old grandson. Their house is a single family, single level home that utilizes a single step upon entry. (AR 42, 46-48.) At the time of the hearing, Plaintiff was thirty-nine years old. (AR 42.) She is a high school graduate and has received vocational training for employment as a psychiatric technician and laboratory technician assistant. (AR 42-43, 45-46.)

Twice a week Plaintiff uses the computer to look for full-time work, and had done so as recently as the week of the June 1, 2007, hearing. (AR 44.) Moreover, as recently as two weeks prior to the hearing she babysat her grandson daily, averaging five to eight hours per day. (AR 48.) She later clarified that her daughter-in-law, who neither works nor goes to school, was also at home during those hours. As a result, Plaintiff actually babysat for about two hours, rather than the five to eight hours previously indicated. (AR 48-49.)

Plaintiff can take care of her personal needs such as showering, getting dressed, brushing her teeth and hair, and using utensils to feed herself. (AR 49-50.) About three times per week, Plaintiff will cook or prepare a meal and also prepares simple meals twice a day. (AR 50.) She does dishes twice per day, cleans the kitchen daily and cleans two bathrooms once a week. (AR 50-51.) She sweeps the floors daily and mops the floors once a week; she also vacuums the house weekly. (AR 51-52.) She does not wash the windows or take out the trash. (AR 50-52.) Plaintiff does a load of laundry daily. She also irons the laundry bi-weekly. (AR 52-53.)

About three to four times per week, Plaintiff drives an automatic SUV. (AR 47.) She goes grocery shopping about every three weeks and does other shopping about every two weeks. (AR 53.) She attends church twice per week during which she sits, stands and kneels. Id. She does not belong to any clubs or organizations, but will visit family and friends once a month, and will eat out about once a month. (AR 53-54.)

Plaintiff uses the telephone three to four times per day. (AR 54.) She reads daily for about an hour and a half. (AR 55.) Plaintiff does not watch television daily because she "[does not] have time for that" because she is otherwise occupied doing household chores "little by little." Id. On days she is able to watch television, she watches for about an hour and a half. Id. She also listens to a radio for approximately twelve hours per day, and uses a home computer about an hour every day. (AR 56.)

The ALJ confirmed with Plaintiff that her current health conditions include a history of lumbar disc syndrome, "some neck and mid back problems," migraine headaches, and high blood pressure. (AR 56-57.) Plaintiff's high blood pressure is controlled with medication. (AR 57.) Since 1992, Plaintiff has endured migraines three times per week, each lasting from four hours to seven days. Id. These migraine headaches cause Plaintiff to become nauseated and light-sensitive, and result in her seeking out a dark room to lie down in order to gain relief. (AR 57-58.) To treat her migraines, Plaintiff's doctor has prescribed the same medication used to treat her back because she states her doctor has told her that there was "really nothing to control" them. (AR 57.) Sometimes the medication will not begin to help until "days after" she takes it. (AR 58.) On average, Plaintiff states that out of thirty days she would miss twelve "[e]asily" due to migraine headaches. (AR 59.)

Plaintiff estimated that she could lift and carry ten pounds using both hands, stand for fifteen to thirty minutes at a time, sit for about an hour if she was permitted to shift in her chair, walk about a quarter of a mile, and needs to lie down daily for about three hours. (AR 59-60.)

The ALJ then elicited testimony from VE Dachelet regarding Plaintiff's past work. (AR 61-71.) The VE characterized Plaintiff's past work pursuant to the Dictionary of Occupational Titles ("DOT") as follows: (1) psychiatric technician, a medium exertional level, skilled position; (2) medical assistant, a medium semi-skilled position, four; (3) order filler, a light semi-skilled position, three; and (4) lab tech assistant, a light skilled position, five. (AR 63-64.) Plaintiff's past work as a grape picker and cashier attendant were not considered relevant to the disability analysis by the ALJ. (AR 63.) The VE testified that Plaintiff's past work would have included a "wide range [of skills] that apply in the medical field." (AR 64.) More specifically, this range included: performing medical tests, conducting quantitative and qualitative chemical analyses of body fluids, conducting blood tests for transfusion purposes, administering oral and hypodermic injection, helping patients with personal hygiene, recording and measuring patients' general physical conditions (pulse, temperature, respiration, etc.) observing patients in order to detect behavior patterns, intervening to restrain violent, potentially violent and suicidal people, leading prescribed individual or group therapy sessions, as well as typing, computer operation and general office practices. Id. The VE also testified that there was transferability of past relevant work skills. (AR 64-65.)

VE Dachelet was then asked to consider several hypothetical questions posed by the ALJ. First, the VE was asked to assume a hypothetical worker of Plaintiff's age, education, language and experience background, who is right-handed, could lift and carry twenty pounds occasionally, ten pounds frequently, could stand or walk four hours at a time, could sit for six hours out of eight, could occasionally push and pull with the non-dominant left hand, and could occasionally stoop and crouch. (AR 65.) The VE indicated the hypothetical worker could not perform Plaintiff's past relevant work. (AR 66-67.) As to other work, the VE testified that such an individual would be able to sustain employment at the light, unskilled level with a sit/stand option, such as a bagger (33,371 available jobs nationally; 10,457 available jobs in California), a garment sorter (33,571 jobs available nationally; 11,190 jobs available in California), and a grader (20,575 jobs available nationally; 6,858 jobs available in California). (AR 67-69.)

The ALJ then proposed a second hypothetical based on the medical opinion of Dr. Jamie Lewis. (AR 69-70, 413-414.) This hypothetical assumed the following functional assessment: the individual could stand and walk for approximately four non-continuous hours out of an eight-hour work day; could sit for approximately six non-continuous hours out of an eight hour work day and would benefit from an environment where sitting and standing could be alternated; could bend, balance, climb, kneel, squat, push and pull for a period of less than one-third of the day; does not require an assistive device for mobility; could frequently lift objects up to ten pounds and occasionally carry objects up to twenty pounds; is capable of performing fine and gross motor manipulative tasks with both upper extremities without restrictions; and has no specific environmental restrictions. (AR 69-70, 413-414.) Considering these limitations, the VE testified that the hypothetical worker could not perform Plaintiff's past relevant work, but could, as in hypothetical number one, perform the bagger, garment sorter, and grader positions, allowing for a sit/stand option. The availability of jobs for these positions was identical to that as stated in hypothetical number one. (AR 69-70.)

The third hypothetical proposed by the ALJ was based on the Plaintiff's testimony at the hearing. (AR 70.) In this hypothetical, the VE was asked to assume the individual: could lift and carry ten pounds, could sit one hour at a time, could stand for fifteen to thirty minutes at a time, could walk approximately a quarter of a mile at a time, would need to lie down three hours out of eight, and would miss approximately twelve days out of thirty. Id. In light of these limitations, the VE testified that the hypothetical worker could not perform Plaintiff's past relevant work, nor any other work. (AR 70-71.)

Medical Record

The entire medical record was reviewed by the Court. Those records relevant to the issues on appeal are summarized below. Otherwise, the medical evidence will be referenced as necessary in this Court's decision.

Robert Gazmarian, M.D.

On October 29, 2002, Plaintiff underwent a comprehensive physical medicine and rehabilitation consultation with Robert Gazmarian, M.D., for state workers' compensation purposes concerning her complaints of low back pain. Plaintiff reported to Dr. Gazmarian that on August 10, 2002, she was injured while providing care to a patient. (AR 165.) Dr. Gazmarian's examination revealed the following concerning Plaintiff's lumbosacral spine and lower extremities: a dynamic pain assessment showed pain free motion in extension, lateral bending and rotation, and mild pain with flexion; full range of motion in flexion, extension, right and left lateral bending, and right and left rotation; no lumbar paraspinal muscle spasm, list, or tenderness of the spinous process, facet joints, sacroiliac joint, sciatic notch, or posterior thigh; facet stress test was negative; sitting and supine straight leg raise, heel walking, toe walking, and sensory examination of the lower extremities were all within normal limits; motor examination of the lower extremities revealed no gross muscle atrophy or weakness; and the lumbosacral intersegmental spine motion was "pain free." (AR 166-167.)

Dr. Gazmarian compared two magnetic resonance images (MRI) dated September 14, 2002, and February 19, 2002. (AR 167, see also AR 404-405.) The September MRI impression documented: (1) a central lumbar disc protrusion without significant impingement upon the thecal sac at L5-S1; and (2) a broad-based mild lumbar disc bulge without significant impingement upon the thecal sac at L4-L5. (AR 405.) In comparison, the February MRI revealed: (1) decreased disc space at L4-5 and L5-S1 consistent with degenerative disc disease; (2) a small broad-based disc bulge of one to two millimeters at L4-5; and (3) a three millimeter central lumbar disc protrusion without foraminal narrowing. (AR 167.)

Dr. Gazmarian diagnosed Plaintiff with: (1) left lumbosacral strain (August 10, 2002); (2) a history of lumbosacral strain; (3) a history of lumbar spine injury in 1998 that was unrelated to the above; and (4) lumbar degenerative disc disease at L4-5 and L5-S1. (AR 167.) The doctor further opined that while Plaintiff did have a history of back injury in the past, Plaintiff stated that her pains had resolved, and she had not had any continuing pain or discomfort that resulted in physical impairment or a loss of work. (AR 167-168.) Dr. Gazmarian further opined that the lumbosacral pain experienced by Plaintiff was "muscular in nature," and while the February 19, 2002, MRI did reveal degenerative changes at L4-5 and L5-S1, "those [degenerative changes] are a progression . . . unrelated to her current symptomatology. (AR 168.) Additionally, the Dr. Gazmarian pointed out that "[Plaintiff] is feeling much better, which is consistent with muscular pain and discomfort." (AR 168.)

Gregory Johnson, D.C.

Plaintiff was under the care of her treating chiropractor Gregory Johnson, D.C., from February 1, 2003, to November 31, 2003. (AR 174-374.) Initially, Dr. Johnson diagnosed Plaintiff with: (1) lumbar disc syndrome with mylopathy; (2) radiculitis; (3) sacroiliac segmental dysfunction; (4) thoracic segmental dysfunction; (5) cervical segmental dysfunction; and (6) myofascitis. AR 350. On March 20, 2003, Dr. Johnson amended his diagnoses to also include:

(7) left hip bursitis; (8) cerviobrachial/cerviocranial syndrome; and (9) parathesia S1. (AR 365.) On April 4, 2003, Plaintiff underwent an MRI of her lumbosacral spine pursuant to Dr. Johnson's referral. AR 315-316. Mario Deuchi, M.D., conducted the MRI study and found that "[t]he conus medullaris terminates at the level of L1 and appears unremarkable. Desiccation of the intervertebral discs is visible from L4 to S1 levels. Minimal osteophytes are noted. These findings are consistent with minimal degenerative disc disease." (AR 315.) His impression of the MRI study was that the MRI revealed an L4/L5 posterior disc protrusion and L5/S1 posterior disc protrusion. (AR 316.)

On April 14, 2003, Plaintiff underwent an electromyogram and nerve conduction study. (AR 307-309.) This study was ordered to evaluate Plaintiff's complaints of low back pain. (AR 307.) The electrodiagnostic findings revealed normal operation in all five areas tested. (AR 309.) The impression of the doctor conducting the study was as follows: (1) there is no evidence of a peripheral neuropathy; (2) there is no evidence of a left lumbar motor radiculopathy; and (3) this does not rule out a sensory radiculopathy. Id.

Tomas Rios, M.D.

On July 14, 2003, internist Tomas Rios examined Plaintiff at Dr. Johnson's request to determine if Plaintiff would benefit from medications. (AR 280.) Dr. Rios' examination of Plaintiff's neck revealed: a supple neck; full range of motion with mild pain at the end ranges; mild tenderness in the para-cervical musculature; and no palpable masses or bruits. His examination of Plaintiff's back revealed: the spine was midline with straightening of the lumbar lordosis; knots and exquisite soreness in the left lumbosacral area; straight leg raises elicited low back pain, but failed to identify any dural sheath irritation; an awkward gait due to back and left lower extremity pain; and no sensation to pinprick at the base, nor in the left second and third toes. (AR 279.) Dr. Rios diagnosed Plaintiff with: (1) lumbar disc syndrome, possibly herniated disc at L4-5; and (2) myofascitis, cervical and thoracic spine. Id. Based on this diagnosis, Dr. Rios prescribed Bextra, Soma, and Ultram. (AR 280.)

On July 28, 2003, Plaintiff returned to Dr. Rios stating that she was experiencing "good relief with the medications in combination with treatment being provided by . . . Dr. Johnson. She was instructed to continue with the medications as directed." (AR 270-271.)

On August 25, 2003, Plaintiff was again seen by Dr. Rios for medication refills due to flared back pain, caused by recent repetitive bending and resulting in moderate discomfort. (AR 257.) Dr. Rios noted on his supplemental report that "[Plaintiff] reports that she is much improved today. She reports that generally she has no severe back pain or sciatica throughout the day. She states that she learned from Dr. Johnson how to avoid injuries and how to prep her back for each days usual routine." (AR 256.) His examination revealed: minimal paravertebral muscle spasms; no sciatica; straight leg raising was negative; the range of motion of the lumbosacral spine was minimally restricted ...

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