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Ballin v. Astrue

September 27, 2010

JENNY R. BALLIN, 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 Jenny R. Ballin ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for disability insurance benefits and supplemental security income pursuant to Titles II and 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

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed her application on or about April 13, 2005, alleging disability beginning July 7, 2004. AR 60-62, 225-227. Her application was denied initially (AR 55-59) and on reconsideration (AR 48-52). Plaintiff subsequently requested a hearing before an Administrative Law Judge ("ALJ"). AR 36. ALJ Michael J. Haubner held a hearing on May 3, 2007 (AR 229-265), and issued an order denying benefits on May 16, 2007. AR 16-25. Plaintiff requested a review of the decision (AR 12) and on February 20, 2009, the Appeals Council denied review. AR 7-9.

Hearing Testimony

ALJ Haubner held a hearing on May 3, 2007, in Fresno, California. Plaintiff appeared and testified. She was represented by attorney Melissa Proudian. Vocational Expert ("VE") Judith Najarian also testified. AR 229-265.

Plaintiff was born on April 11, 1956. AR 237. She lives in Fresno, California, with her sister, her sister's daughter-in-law, and her sister's granddaughter. AR 236, 238. She completed the twelfth grade, but has no other education or training. AR 237, 256. She has an outstanding workers' compensation claim, but they have not given her a percentage of disability. AR 237.

Plaintiff suffers from diabetes, diabetic neuropathy, carpal tunnel release, and neck problems. AR 247-248. Her fingers "lock" three to four times per day. Id. She can grasp something for about one minute before she cannot hold it anymore or her fingers lock. AR 248. She then has to rest her hands for two to three minutes. AR 248-249. She has constant pain in her neck, back, right shoulder, hands, and wrists. AR 249. Plaintiff rates her neck and low back pain as an eight out of ten, her hand and wrist pain as a seven or eight out of ten, and her right shoulder pain as a seven out of ten. AR 249-250. She sees a doctor every two months. AR 250. The last time she saw her doctor was April 17, 2007. Id.

Despite these ailments, plaintiff has a driver's license and drives about twice per month. AR 238-240. She also rides the bus about once per month. AR 240-241. She cooks and does dishes twice per day, cleans the kitchen once per day, and dusts the furniture once per day. AR 241, 244-245.

Plaintiff is able to take care of her own personal hygiene. AR 241. She bathes, dresses, and feeds herself. Id. She shops for groceries and other items about three times per week. AR 242. She goes out to eat about once per week. AR 242-243. She visits family, friends, and neighbors about three times per week. AR 244. She watches television one and one half hours per day, and reads about ten minutes per day. AR 245. She talks on the phone once per day. AR 243.

Plaintiff's other daily activities include sitting, standing, laying down, and sleeping. AR 245-246. Plaintiff lays down for about two hours in an eight-hour day. AR 246. She can lift and carry about ten pounds. Id. She can stand for one half hour at a time. AR 246-247. She can sit for about 20 to 30 minutes before she has to get up. AR 247. She can walk about one half block at a time. Id. She can concentrate for twenty minutes at one time, then must stop and take a break for one half hour to an hour. AR 262-263. Plaintiff does not do yard work, take out the trash, clean the bathroom, sweep, vacuum, or mop. AR 244-245.

VE Najarian testified that Plaintiff's previous work as a home companion and as a hotel desk clerk was classified as light, semi-skilled. Plaintiff's previous work as an agricultural sorter was classified as light, unskilled. AR 253. The VE noted that all three positions were consistent with the Dictionary of Occupational Titles (DOT). AR 254.

VE Najarian was asked to consider a hypothetical individual of Plaintiff's age, education, language, background, and experience, who is precluded from heavy lifting or repetitive neck motions. AR 257. The VE indicated that this individual could perform Plaintiff's past work as a hotel clerk and home companion, but could not perform Plaintiff's past work as an agricultural sorter. Id. This person could also do cashiering. There are 113,211 unskilled cashier positions and 120,515 semi-skilled cashier positions in California. AR 257-259. This person could also work as a cafeteria attendant and as a housekeeping cleaner of which there are 17,243 and 56,692 jobs in California respectively. AR 259.

VE Najarian was asked to consider a second hypothetical individual of Plaintiff's age, education, language, background, and experience, who could lift and carry 20 pounds occasionally and 10 pounds frequently, could sit about six hours in an eight-hour workday, and could stand and walk about six hours in an eight-hour workday. AR 259-260. This person could never climb ropes, ladders, or scaffolding, but could frequently climb ramps and stairs. AR 260. This person could occasionally crouch and crawl, and "do above shoulder handling," could frequently balance, stoop, and kneel, and has unlimited ability to push and pull. Id. This person should avoid concentrated exposure to unprotected heights. Id. VE Najarian indicated that this individual could perform Plaintiff's past work as a hotel clerk, home companion, and agricultural sorter, and could perform work as a cashier and cafeteria attendant. Id.

VE Najarian was asked to consider a third hypothetical individual of Plaintiff's age, education, language, background, and experience, who is unable to do work which requires repetitive neck flexion or extension. AR 260-261. This person could lift and carry 10 pounds frequently, sit, stand, and walk without restriction. AR 261. An assistive device is not necessary, there are no postural limitations on stooping, crouching, or crawling, and there are no environmental, communicative, or visual limitations. Id. Bending, reaching above the waist, and repetitive handling, feeling, grasping, and fingering should be avoided. Id. VE Najarian indicated that this individual could not perform any of Plaintiff's past work and could not perform any other work using past relevant work skills. AR 261-262.

VE Najarian was asked to consider a fourth hypothetical individual of Plaintiff's age, education, language, background, and experience, who could lift and carry 2 to 11 pounds, could stand for one half hour at a time, could sit for 20 to 30 minutes at a time, must lay down for two hours in an eight-hour workday, and could grip and grasp for one minute at a time before having to rest for two to three minutes. AR 262. VE Najarian indicated that this individual could not perform any of Plaintiff's past work and could not perform "any other generally appearing work."

Id. If the limitation that Plaintiff could not concentrate for more than 20 minutes at a time was added to this hypothetical, there would still be no work available. AR 263.

Medical Record

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

Paul C. Norwood, M.D.

On February 12, 2003, Plaintiff was seen by her treating physician, endocrinologist Paul C. Norwood, M.D., at Valley Endocrine, for a follow-up visit. AR 145-146. Dr. Norwood diagnosed Plaintiff with diabetes mellitus and prescribed insulin and glyburide. AR 146.

On November 12, 2003, Plaintiff was seen by Dr. Norwood for complaints of leg pain. AR 143. She was diagnosed with diabetic neuropathy and prescribed vicodin. Id.

On March 24, 2004, Plaintiff was seen by Dr. Norwood for complaints of itching skin and lesions on her arms and legs. AR 141. Keflex and triamcinolone cream were prescribed. Id.

On July 16, 2004, Plaintiff was seen by Dr. Norwood for complaints of neck pain. AR 138-139. Plaintiff stated that she fell off the stairs at work on January 17, 2004. AR 138. The workers' compensation doctor diagnosed cervical spine strain based on x-rays, and prescribed physical therapy. Id. Subsequently, her neck pain became worse. Id. Dr. Norwoood diagnosed Plaintiff with two herniated discs and recommended a neurosurgery consultation. AR 138-139. Vicodin was prescribed. AR 139.

On October 11, 2004, Plaintiff was seen by Dr. Norwood for complaints of back pain. AR 135-136. Dr. Norwood noted that Plaintiff had an appointment at USC for her back, and prescribed Norco for her pain. Id.

On December 15, 2004, Plaintiff was seen by Dr. Norwood for complaints of back pain. AR 132-133. The doctor noted that Plaintiff did not have a neurosurgery appointment for her back yet. AR 132. He also noted that she was not aggressive enough in taking care of her diabetes and she was non-compliant with her diet by drinking Coca-Cola. AR 132.

On January 25, 2005, Plaintiff was seen by Dr. Norwood for a follow-up visit. AR 129. Dr. Norwood noted that Plaintiff's diabetes control was not as good as it should be. Id. He also noted that she was scheduled for an MRI of her neck. Id. On that same day, Dr. Norwood prepared a note stating that, "[Plaintiff] continues with back pain and is unable to work. She has an MRI of the back tomorrow. Return to work in 3 months." AR 130.

On May 2, 2005, Plaintiff was seen by Dr. Norwood for a follow-up visit. AR 188-189. Dr. Norwood noted that Plaintiff had pain when leaning backwards and needed to be hunched forward. AR ...


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