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Vonberckefeldt v. Astrue

September 27, 2010

MONICA VONBERCKEFELDT, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Monica Vonberckefeldt ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications 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 Dennis L. Beck, United States Magistrate Judge.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed her applications in January 2007, alleging disability since October 25, 2006, due to shoulder problems, stress, chest pain, diabetes, high blood pressure and carpal tunnel syndrome. AR 72-76, 121-128. After her applications were denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 56-57, 58-62, 65-68. ALJ Laura S. Havens held a hearing on October 2, 2008, and issued an order denying benefits on March 4, 2009. AR 19-28, 284-307. On September 3, 2009, the Appeals Council denied review. AR 5-9.

Hearing Testimony

ALJ Havens held a hearing in Stockton, California, on October 2, 2008. Plaintiff attended the hearing with her attorney, Sengthiene Bosavanh. Vocational expert ("VE") George Myers also appeared and testified. AR 284.

Plaintiff testified that she was born in 1962 and has a high school diploma. AR 288. She last worked on October 25, 2006, when her doctor told her to stop working. Plaintiff's last position was an auto parts delivery driver, and prior to that, she worked as a care giver, hotel housekeeper and thrift store worker. AR 289.

Plaintiff lives in an apartment with her boyfriend. She is able to dress herself, do a few chores, cook, rinse dishes and put them into the dishwasher, do laundry and go grocery shopping. AR 290, 298. Plaintiff does not have any hobbies and watches television about three hours per day. She has a driver's license and can drive about an hour. AR 291.

Plaintiff testified that she has problems sleeping, and sleeps about six hours a night. She also has side effects from her medications, including diarrhea and constipation. AR 292. Plaintiff's diabetes medication "moderately" helps controls her blood sugars, though she still has control problems. AR 292.

Plaintiff estimated that she could walk and stand for about 30 minutes and could sit for about an hour. She could not lift more than one pound because of her shoulders. AR 292, 294. Plaintiff has pain in both shoulders and her back, elbows, wrists and knees. She described the pain as an "ache feeling, but burning," and said she has the pain pretty much all the time. AR 292. Plaintiff estimated that her pain, with medication, rated at a seven out of ten. AR 293.

When questioned by her attorney, Plaintiff explained that she also has carpal tunnel syndrome in both hands. Her hands are painful and go numb and tingle. This happens throughout the day and especially at night. AR 293. She cannot use a computer because of her shoulders, though she later stated that she could type for about ten minutes. AR 294. She thought that she could reach for about five minutes before needing a break for an hour or two. AR 265-296.

Plaintiff also experiences fatigue everyday, throughout the day. Her doctor does not know the cause of the fatigue, which Plaintiff usually deals with by sitting down. She could do a job that required sitting all day as long as it didn't involve using her arms. AR 297.

Plaintiff has hypertension that is uncontrolled and chest pain at least five or six times a day. AR 297. The pain is a sharp pain across her chest and lasts for two to three minutes. AR 298.

Plaintiff also has depression for which she takes medication, but does not receive counseling. She also has diarrhea once an hour for six out of seven days. AR 303. She has constipation on the other days when she "can't go." AR 304.

The VE testified that Plaintiff's past work included the medium positions of delivery driver and home attendant, and the light positions of housekeeper and stock checker, retail. AR 300.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff' age, education and past relevant work. This person could sit for six hours, stand for six hours and walk for six hours. This person could occasionally lift and carry 20 pounds, 10 pounds frequently, with no forceful pushing and pulling with the upper extremities. This person could occasionally climb ladders and could occasionally reach overhead with the left upper extremity. This person could not perform forceful grasping or gripping bilaterally. The VE testified that this person could perform Plaintiff's past work as a stock checker, as well as other jobs in the national economy. For example, this person could perform the positions of office helper, cashier and ticket seller. AR 300-301.

For the second hypothetical, the ALJ asked the VE to assume that this person could sit for eight hours, stand for one hour and walk for one hour. This person could lift and carry 10 pounds occasionally, 5 pounds frequently. The VE testified that this person could not perform Plaintiff's past work, but could perform the positions of order clerk, ticket counter and charge account clerk. AR 300-301.

The VE testified that the answers to the first hypothetical were consistent with the Dictionary of Occupational Titles ("DOT"). As for the answers for the second hypothetical, sedentary work generally requires the ability to stand or walk for up to two hours. For the positions identified, however, one hour walking and one hour standing would be more than sufficient. AR 302.

The ALJ also asked the VE what impact a limitation to occasional use of the upper extremities would have on the identified positions. The VE testified that it would affect all positions identified, as would a requirement that the person be allowed to use the restroom once every hour. AR 305.

Medical Evidence

In December 2005, Plaintiff complained of chest pain. Diagnostic tests were normal. AR 174-187.

An MRI of Plaintiff's left shoulder taken on December 27, 2006, revealed severe supraspinatus and subscapularis tendinopathy with findings consistent with intrasubstance partial tendon tearing but no evidence of full-thickness rotator cuff tear. It also showed markedly attenuated anterior labrum suggesting a labral tear. AR 143.

Plaintiff began physical therapy in January 2007. AR 159. On January 23, 2007, Plaintiff saw Kenneth Honsik, M.D., and reported improvement with physical therapy. Plaintiff had been off work for eight weeks and wanted to return, if possible. Plaintiff had excellent internal and external rotation of the left shoulder. Strength was 5/5. Dr. Honsik indicated that Plaintiff could return to modified light duty, with no lifting more than 10 pounds and no overhead lifting. AR 164.

A stress test performed on May 4, 2007, was negative for ischemia and Plaintiff did not have chest pain during the test. AR 220.

On May 15, 2007, State Agency physician B. J. Ginsburg, M.D., completed a Physical Residual Functional Capacity form. He opined that Plaintiff could lift and carry 20 pounds occasionally, 10 pounds frequently, stand and/or walk about 6 hours and sit for about 6 hours. Plaintiff could not perform forceful pushing or pulling with either upper extremity and could, at best, perform light non-forceful pushing and pulling with her upper extremities. Plaintiff could occasionally climb ladders, ropes and scaffolds and could frequently climb ramps or stairs, balance, stoop, kneel, crouch and crawl. Plaintiff could not perform frequent overhead work with her left upper extremity and could, at best, perform occasional overhead work with the left upper extremity. She could not perform forceful grasping, torquing or gripping with both hands, but could perform non-forceful routine light frequent grasping with both hands. AR 135-139.

On May 29, 2007, Plaintiff returned to Dr. Honsik, for persistent left shoulder pain. Plaintiff reported that she had "somewhat improved" by doing her physical therapy exercises. Rang of motion testing of the left shoulder was limited and there was tenderness to palpation at the left subacromial space. Dr. Honsik diagnosed left rotator cuff syndrome and a labral tear. Dr. Honsik explained that Plaintiff could continue her current treatment and recommended that she return to work with no repetitive overhead lifting or any heavy lifting. Plaintiff could also undergo a cortisone injection or arthroscopic surgery. Plaintiff indicated that the mechanical symptoms are infrequent and she did not want to undergo surgery. Plaintiff chose to continue with her home exercises and medication. AR 153-154.

On June 19, 2007, Plaintiff told Kathleen Kearns, M.D., that she was having trouble sleeping, possibly because of her pain medication. She was also "very stressed" over finances. Plaintiff was seeing another doctor for left shoulder pain and would "consider return to work" and a cortisone shot. AR 146.

Plaintiff returned to Dr. Kearns on July 17, 2007, and complained of insomnia, fatigue and left shoulder pain. She reported, however, that her left shoulder pain was improved and Dr. Kearns noted that her diabetes was "suboptimal, but ...


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