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Ogundimo v. Astrue

September 26, 2010


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



Plaintiff Carlotta Ogundimo ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for supplemental security income benefits pursuant to Title 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 Gary S. Austin, United States Magistrate Judge.*fn1


Plaintiff protectively filed an application for supplemental security income benefits on September 24, 2004, alleging disability beginning September 24, 2003. AR 425-427. Her application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 400-404, 407-411, 413-415. ALJ Christopher Larsen held a hearing on August 13, 2008, and issued an order regarding benefits on September 15, 2008, finding Plaintiff was not disabled. AR 19-25. On January 9, 2009, the Appeals Council denied review. AR 11-14.

2008 Hearing Testimony

ALJ Larsen held a hearing on August 13, 2008, in Fresno, California. Plaintiff appeared and testified, as did her daughter Fatima Ogundimo. Plaintiff was not represented by counsel. Vocational Expert ("VE") Thomas Dachelet also testified. AR 734-774.

When asked to summarize all of the reasons why Plaintiff believes she is unable to work, she indicated that when she gets up in the morning she is nauseated and feels sick to her stomach. She has shooting pains in her back, down her legs and through her back. AR 748-749. She also suffers from headaches that affect her vision. Additionally, Plaintiff indicated that she falls a lot because she is not stable. AR 749.

Plaintiff uses a wheelchair because she injured her back at work. She indicated that doctors told her that her back was fine and she could return to work, however, her back became swollen and "very hot." Doctors suggested it may be a hairline fracture and recommended muscle relaxers and painkillers. In the nearly nine years since the back injury, Plaintiff's condition has worsened. AR 749-750. Plaintiff later explained that the incident causing her back injury involved her attempting to move a patient who weighed about 450 to 475 pounds, without the assistance of any mechanical equipment. AR 773. Plaintiff indicated it was not common for her to have to move a patient in those circumstances, but when she began her shift the woman was covered in feces, "from her head to her toe," and she was crying. The woman was not Plaintiff's patient, but she felt sorry for the woman so she tried to help. AR 774.

When asked about her comment that she could possibly work from home, Plaintiff explained others have told her perhaps she could work from home via the internet. AR 751. While she cannot use an ordinary desk chair, she believed she could pull her wheelchair up to the desk or kitchen table. AR 752. She does not know what type of specific job one could do on a computer because her previous work involved working in an office or hospital setting. AR 752. Plaintiff indicated she can look up information on the computer and uses it to read the news. She believes that four hours a day, or twenty hours a week, "would probably be a lot for" her because it would become too painful to sit in the chair "after so many hours." AR 752. Her leg and foot would become numb. AR 752-753.

Asked how long she spends in the wheelchair during the day, Plaintiff said that after two hours it becomes painful. If she is at home, she can avoid having to use it altogether because she is "not up on" her feet a lot. AR 753. She began using the wheelchair in 2002 after a neurologist "wrote out an order" and a Dakota Sports evaluation also advised the use of a wheelchair because her "walking gait is . . . dangerous." AR 753-754. Additionally, Dr. Curry advised her following an x-ray that something was causing her "legs to become weak." AR 754.

When she gets up in the morning, Plaintiff tries to take her shower and brush her teeth. Depending upon how her arms feel that day, she may comb her hair. AR 754. She does not eat breakfast every day because she does not feel well enough to cook it every day. She tries to grab something simple, "mostly finger food." She does force herself to fix the children something to eat if they are hungry. AR 754. Plaintiff does try to cook dinner, however, she has "no activities between breakfast and dinner." The majority of her day is spent sitting and resting because she is too tired. She may try to do a load of laundry, however, her daughters do most of the cleaning. AR 754-755. If she tries to clean her own bathroom, she becomes "very exerted" and has to sit on the toilet with a long brush to clean the tub, for example. AR 755.

Between breakfast and dinner, Plaintiff sleeps on and off due to the pain because "the pain exerts" her and if she takes pain medication it makes her tired. She falls asleep about three times during that time period. AR 755.

Plaintiff is currently seeing Dr. Conanan about every three months or so. She misses winter appointments because it is too cold for her, and she has missed a summer appointment due to the heat. In the winter, her legs become cold and she "got frostbitten" so she does not go out for the appointments. AR 755-756.

Asked about a Social Security referral to a psychologist for an examination that Plaintiff failed to attend, she explained that someone sent her a letter that told her not to go. She was told to see Dr. Damania, and "went there several times." A week or so later, she received a letter advising her not to attend the appointment. She believes that letter was sent by a "Mr. Edamons." AR 756-757.

In 1993, Plaintiff worked in the childcare field and as a certified nurse assistant. In the previous fifteen years, she also worked in an office performing accounts payable and receivable type work. Asked the name of the company she worked for, Plaintiff indicated it was "a mother company," or "base company." She explained it was "like TruValue," with " a hundred million different TruValues" but one mother company. She worked for "the mother company in accounting." She believes the name of the company was "Carter and Company." AR 758-759. The position involved dealing with clients, using an adding machine, and answering questions about client accounts. AR 759-761. She did that for about four years. AR 761. Despite the office work, Plaintiff's heart was in nursing. Before she hurt her back, Plaintiff was in a registered nursing program, and hoped to eventually earn a master's degree. AR 761.

Plaintiff is a high school graduate with a couple years of college education. AR 762. She has a "license to do hair," and certificates in accounting and switch boarding. The accounting certificate was earned from Peters Cortez Business School, when she was about eighteen years old. AR762-763. Neither her cosmetology license nor any other license is current because no one "will let [her] work in [her] condition." AR 763. For example, were she dressing hair, the type of hair she works with is mostly African-American hair that has to be heated to style.

Because she suffers from carpal tunnel syndrome, she "would drop a curling iron on" a client. AR 763.

Fatima Ogundimo, Plaintiff's fifteen year old daughter, also testified. AR 766. Fatima indicated that her mother gets "really sick sometimes." She can only walk for a little while before she has to lie down. She cooks occasionally and cleans a little bit. Asked what a "little while" means, Fatima explained her mother can walk for "probably five, ten minutes" at a time. If she is standing up cooking, Plaintiff can stand for the length of time "it takes to cook," before she needs to rest. AR 767. Fatima believes her mother started using the wheelchair in 2001, and she always uses the wheelchair when she leaves the house. AR 767-768.

Plaintiff and Fatima indicated that staff from the Department of Health and Human Services previously indicated to Plaintiff that she did not need in-home care services, and that her children - who were then as young as two and as old as twelve - could help her. AR 768-769.

Plaintiff asked her daughter to tell the judge what she (Fatima) does on a weekly basis in the household. Fatima replied as follows:

WTN: Let's see, every day you got to clean the bathroom, the kitchen, our rooms, sweep and mop the dining room, let's see, clean the mirrors in the bathroom, the tub, the toilet, the floors, polish, clean up the walls, the cabinets, what it's called, baseboards, walk to the store, do that about three or four times a day, I mean, a week, three or four times a week.

CLMT: What do you, do the store for grocery shopping.

WTN: Yeah, and, and you know, you got to run errands. Sometimes you got to get on the bus to go pay our bills. Let's see.

ALJ: Okay.

CLMT: And laundry.

WTN: Laundry too.

ALJ: Okay.

AR 769-770.

With regard to Plaintiff's past work, VE Dachelet testified that Plaintiff's previous work as a certified nursing assistant, according to the Dictionary of Occupational Titles ("DOT"), is medium with an specific vocational preparation ("SVP") of four, semiskilled. AR 771. The childcare as an employee is light, with an SVP of four, semiskilled. Childcare in a management capacity is a light, skilled position; however, Plaintiff ...

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