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Swicegood v. Astrue

September 23, 2010

NICOLE SWICEGOOD, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

(Doc. 1)

BACKGROUND

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying her application for disability insurance benefits ("DIB") pursuant to Title II of the Social Security Act. 42 U.S.C. § 405(g). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1

FACTUAL BACKGROUND

Plaintiff was born in 1972 and previously worked as an alarm dispatcher and real estate agent. (Administrative Record ("AR") 25, 97.) Plaintiff stopped working after she was no longer able to walk up and down stairs because of problems with her right knee. (AR 26.)

Plaintiff remained insured for DIB through June 30, 2006 (the "date last insured"). (AR 8.) On June 1, 2006, Plaintiff filed an application for DIB, alleging disability beginning on December 1, 2005, due to knee and neck problems. (AR 83-85, 96.)

On September 25, 2006, L.V. Bobba, M.D., a state agency medical consultant, assessed Plaintiff's physical residual functional capacity ("RFC"). (AR 178-82.) Dr. Bobba opined that Plaintiff could (1) occasionally lift and/or carry up to 20 pounds and frequently up to 10 pounds; (2) stand and/or walk for a total of at least two hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; and (4) perform unlimited pushing and/or pulling with the upper and lower extremities. (AR 179.) Plaintiff could occasionally climb, balance, stoop, kneel, crouch, and crawl. (AR 180.) Plaintiff's ability to reach was limited, but she had no visual, communicative, or environmental limitations. (AR 180-81.)

On September 29, 2006, A.R. Garcia, M.D., a state agency psychiatric consultant, completed a psychiatric review technique form ("PRTF"), finding that Plaintiff had no medically determinable mental impairment. (AR 183.)

On November 21, 2007, Frank Fine, D.C., M.D., performed a consultative physical examination of Plaintiff. (AR 263-66.) Dr. Fine opined as follows:

With regards to work restrictions as it relates to her neck she needs to avoid sustained positions of upward and downward gaze. No repetitive rotation movements of her neck. She cannot push, pull, or lift more than ten pound[s] at or above shoulder height without aggravating neck pain and neck tension type headaches. Regarding her right hand she needs to avoid repetitive gripping, grasping, torquing, pushing, pulling, or lifting more than 10 pounds with the right upper extremity. Avoid fine fingering maneuvers of the right hand as well. Regarding her right lower extremity she cannot walk over uneven ground, climb stairs or ladders. She cannot repetitively kneel or squat on the right knee. She cannot prolong stand [sic] for more than 15 to 20 minutes and needs a five to ten minute interval rest. Regarding her lower back she should avoid repetitive bending and stooping and lifting more than ten pounds from the waist up. It is my opinion these are all permanent restrictions for her.

(AR 266.)

On that same day, Dr. Fine also completed a form on which he assessed Plaintiff's physical ability to do work-related activities. (AR 259-62.) Dr. Fine opined that Plaintiff could occasionally lift and carry only up to 10 pounds, and sit, stand, and walk for a total of one hour in an eight-hour workday. (AR 259-60.) Plaintiff could continuously use her feet but only occasionally use her hands for simple grasping and fine manipulation. (AR 260.) Plaintiff could frequently balance and occasionally climb, stoop, crouch, kneel, and crawl. (AR 261.) Plaintiff could also occasionally reach, handle, feel, and push or pull. (AR 261.) Finally, Plaintiff had no environmental limitations. (AR 262.)

On November 26, 2007, Amos Hobby, Jr., Ph.D., a psychotherapist, completed a PRTF and mental impairment questionnaire. (AR 267-85.) On the PRTF, Dr. Hobby opined that Plaintiff's mental impairments met the listed impairments for affective and anxiety-related disorders in 20 C.F.R. Part 404, Subpart P, Appendix 1, §§ 12.04 and 12.06. (AR 267.) In assessing Plaintiff's functional limitations, Dr. Hobby opined that Plaintiff's restriction of activities of daily living was mild, she had mild difficulties in maintaining social functioning, and she had no difficulties in maintaining concentration, persistence, or pace. Plaintiff had no episodes of decompensation of extended duration. (AR 277.) Dr. Hobby noted that Plaintiff "expresses anxiety and stress and depression but they are not severely debilitating." (AR 278.) In assessing Plaintiff's functional limitations on the questionnaire, Dr. Hobby opined that Plaintiff's restriction of activities of daily living was none or mild, her difficulties in maintaining social functioning were none or mild, and her difficulties in maintaining concentration, persistence, or pace were moderate. Plaintiff did not experience episodes of decompensation. (AR 283.) Plaintiff would be "seriously limited" in maintaining regularly attendance, but Plaintiff's impairments would cause her to be absent from work one day a month. (AR 282, 285.)

On November 29, 2007, Dr. Hobby diagnosed Plaintiff with (1) adjustment disorder with mixed anxiety and depression and (2) pain disorder related to psychological and general medical conditions. (AR 287.) Dr. Hobby opined that "Plaintiff would benefit from psychotherapy but her financial situation would preclude this." (AR 287.)

The Commissioner denied Plaintiff's application initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 43-46, 50-54.)

On January 8, 2008, ALJ Sandra K. Rogers held a hearing in which Plaintiff testified that she could only walk for 20 feet, stand for ten minutes, and lift ten pounds without problem. (AR 27, 29.) Plaintiff described the pain in her right knee as a "stabbing" pain. (AR 27.) Plaintiff could not lift anything "very heavy" because of the crushed disc in her neck that occurred in 2000 or 2001. (AR 27, 28.) Further, Plaintiff was unable to grip with her right hand because carpal tunnel syndrome in that hand caused numbness. (AR 31.) Plaintiff sought treatment from Central Valley Pain Management once a month for her knee, neck, and lower back pain. (AR 28-29.) Plaintiff's neck problems affected her ability to perform household chores such as vacuuming and mopping, and her pain caused stress. (AR 29-30.) Plaintiff did not seek treatment for her stress, however, because she was unable to afford it, although she had received treatment at the Modesto Psychiatric Center. (AR 32.)

A vocational expert testified that Plaintiff's past work as an alarm dispatcher was sedentary, and her past work as a real estate agent was light.*fn2 (AR 33.) A hypothetical person of the same age, education, and work experience as Plaintiff could perform Plaintiff's past relevant work as an alarm dispatcher and a real estate agent if that person could perform at least light work with no forceful gripping, grasping, or torquing with the right hand. (AR 34.) If such a person could only perform sedentary work, that person would still be able to perform Plaintiff's past work as an alarm dispatcher. (AR 34.) Mild restrictions of activities of daily living and mild difficulties in maintaining social functioning would preclude the performance of Plaintiff's ...


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