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Roberts v. Astrue

October 1, 2010

KATHRYN ROBERTS, 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 Kathryn Roberts ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income ("SSI") 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 Dennis L. Beck, United States Magistrate Judge.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed her application for SSI on March 28, 2006. AR 108-14. She alleged disability since August 1, 2002, due to diverticulitis, fibromyalgia, valley fever and back/neck problems. AR 136-37. After being denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 70-73, 75-79, 82. On September 30, 2008, ALJ James P. Berry held a hearing. AR 15-57. ALJ Berry denied benefits on March 2, 2009. AR 5-14. On July 10, 2009, the Appeals Council denied review. AR 1-4.

Hearing Testimony

ALJ Berry held a hearing on September 30, 2008, in Fresno, California. Plaintiff appeared with her attorney, Jeffrey Milam. AR 8, 17. Vocational expert ("VE") Judith Najarian also appeared and testified. AR 8, 17, 47-52.

At the time of the hearing, Plaintiff was 54 with a twelfth-grade education. She testified that she lives with her mother and ex-husband. She has a driver's license. She drives to the grocery store twice a week, but her mother drives her to the doctor. AR 19-20.

Plaintiff is 5'5" and weighs 173. She reported gaining 50 pounds in the last year because she did not exercise due to pain. AR 21.

At the hearing, Plaintiff had a long wooden staff with a handle. Although Dr. Owens prescribed a cane, Plaintiff claimed that the staff helps more. Plaintiff also had an ace bandage loosely wrapped around her left wrist. She pulled it off, showing a band of seven popsicle sticks tied together to hold her wrist straight. Plaintiff said that she has never been prescribed braces for her wrist. Although she has told or shown her doctor, he has never said why he did not prescribe something more formal. AR 21-22.

Plaintiff testified that she last worked at Kaweah Delta Lifestyles in 2002 as a housekeeper. She stopped working because of pain in her upper stomach. In 2006, she tried operating a computer business at home, but her computer broke. Plaintiff characterized the business as online sales of drop-shipping. In that business, she would take orders, send them to a company and the company would send them on to the person. Money would be sent to PayPal. Plaintiff would collect her part of the money and PayPal would "collect their part of the money." Although she worked three hours a day for a whole year, she never received any money from her computer-related work. She has not worked since then. AR 22-25.

Plaintiff testified that she cannot sit at a computer because of stomach problems, back pain and neck pain. She explained that she has fibromyalgia, diverticulitis and constant pain in her neck, back, legs and hands, along with fatigue and tiredness. AR 25-27.

Plaintiff also has problems with her bowels, having bowel movements eight times a day. Despite having surgery in 2006 and taking Prilosec, Immodium and Metamucil, she still has to go to the bathroom eight times a day. At the hearing, Plaintiff was leaning on her crutch handle to relieve pain in her stomach, which feels like a "rototiller." She said it feels like that constantly, with some days worse than others. AR 27-29.

As part of her medical problems, Plaintiff testified that she has had Valley Fever since 1992. Although she thought that she was well, it appeared in a new blood test. Plaintiff claimed that it had worsened since 1992, with symptoms of coughing, weakness and aching. AR 29-30.

Plaintiff also reported that she has menopause and is taking Premarin. She said it affects her ability to work because of profuse sweating, anxiety, and shaking. She also cannot think straight and has an aching back. Her inability to think is a concentration problem, which she attributes to menopause and to pain. She can concentrate 15 minutes at a time. AR 30-31.

In addition, Plaintiff has thyroid disease and takes medicine for it. She has extreme tiredness because of the disease. She does not sleep well at night and does not wake up refreshed. Plaintiff said that pain primarily keeps her from sleeping well at night. To relieve the pain, she props herself on pillows and takes pain medication. Plaintiff affirmed that she has bad side effects from her medicine. The antibiotics she takes for her stomach make her nauseous. After taking the medicine, she will be nauseated for two hours. AR 31-33.

In response to questions about her day, Plaintiff testified that she lies down six to eight hours in an eight-hour day. She is on her feet standing or walking about two hours a day. She cannot sit in a chair and eat dinner. Typically, she can sit 15 minutes before she has to get up. The heaviest thing that she can lift is a box of Kleenex with her left hand and a gallon of milk with her right hand. She can use her hands to type or write for 10 minutes. She can grasp and handle things for three minutes. AR 33-36.

During a normal day, Plaintiff watches TV and tries to read. It hurts her hands to hold books. She is able to dress and bathe herself after she takes pain medication. She can make a bowl of soup, but cannot make a full dinner because it takes too long. She carries her clothes to the laundry. It takes her all day to do laundry because she lies down and forgets. She attributes the forgetfulness to her medical condition. AR 36-37.

Plaintiff testified that she has two dogs and a horse. Her mom helps her feed the horse because she can't carry the food. She used to ride a couple times a week, but it has been two years since she last rode. She also has stopped or cut back on her sewing. AR 37-39.

Six months before the hearing, Plaintiff went bank fishing. They parked right against the water and all they had to do was throw the line in. She fished about three hours, but not without breaks. It was a one time thing. AR 39-40.

Plaintiff also has stopped or cut back on playing her guitar and leading music at church. She used to go to church three times a week, twice on Sunday. Now, she doesn't go to church or play the guitar because of pain. AR 40-41.

In response to questions from the ALJ, Plaintiff testified that she could sit for one hour and 15 minutes total in an eight hour period. AR 42. She testified about her past work. In 1993, she worked as a housekeeper. She did not lift more than 50 or 20 pounds. From 1992 to 1995, she also worked at home as a bookkeeper for her mother's trucking company. It was a sit down job. In 1997, she worked as a cashier for J. C. Penney. She stood up most of the time. Before that, she worked at a packing house for oranges. She had to pull boxes down, pack the oranges into patterns and slide the box. She did not lift boxes. AR 44-46.

The VE also testified. In response to questions from the ALJ, the VE provided information regarding Plaintiff's past work. The VE reported that the housekeeping job is in the DOT as cleaner, housekeeping, and is classified as light and two, which is unskilled. The sales clerk is in the DOT as light and three, first level semi-skilled. The orange packer job is in the DOT as packer, ag produce, and is classified as medium and two, which is unskilled. It was likely performed at the light level because Plaintiff testified that she would not lift the box. AR 47-48.

With regard to the bookkeeper job, the VE picked account clerk because of the duties described in the exhibit. It is sedentary and five, which is first level skilled. Plaintiff would have had office skills, writing skills and written and verbal communication skills that would transfer to other clerical types of positions at the sedentary or light level. AR 48. For example, Plaintiff's skills would be transferable to a general clerk occupation, which is light, SVP three, with 23,533 jobs in California and about nine times that in the United States. Another example is mail clerk, which is light, SVP four, with 8,063 jobs in California and about nine times that in the United States. The VE testified that a third example is file clerk, which is light, SVP three, with 34,657 jobs in California and about nine times that in the United States. AR 48-49.

For sedentary positions, the VE testified that Plaintiff's skills would be transferable to order clerk, which is sedentary, SVP four and semi-skilled, with 10,903 jobs in California and about nine times that in the United States. Another example would be receptionist, which is sedentary, SVP four with 79,771 jobs in California. AR 49-50.

For the first hypothetical, the ALJ asked the VE to assume an individual 54 years of age with a twelfth grade education and Plaintiff's past relevant work experience. This individual has a combination of severe impairments and retains the residual functional capacity to lift and carry 20 pounds occasionally, 10 pounds frequently, and to stand, walk and sit six hours each. This individual occasionally can climb, stoop, crouch and crawl. With these limitations, the VE testified that this person could perform Plaintiff's past work as account clerk. This person could do the packer work as performed, but not as it is in the DOT at the medium level. This person also could do the sales clerk job, but should not do the housekeeping work. AR 50.

For the second hypothetical, the ALJ asked the VE to assume an individual with the same vocational parameters and a combination of severe impairments. The ALJ asked the VE to further assume that this individual retains the residual functional capacity to lift and carry a gallon, or approximately eight pounds. This individual also retains the ability to stand two hours maximum, walk two hours maximum and sit one hour and 15 minutes. This individual could engage in fine manipulation for 10 minutes at a time and would have difficulty concentrating more than 15 minutes at a time. This individual also would need to take a restroom or bathroom break approximately eight times per day during a work shift. Given these limitations, the VE testified that such an individual could not perform Plaintiff's past work or any other jobs that exist in the national economy. AR 50-51.

For the third hypothetical, Plaintiff's counsel asked the VE to add to the first hypothetical that the individual needs bathroom breaks approximately eight times a day. The VE testified that if she had to take a break each hour on the job, she would likely be fired. AR 51.

For the fourth hypothetical, Plaintiff's counsel asked the VE to take hypothetical one and add that she can reach, feel and grasp 10 percent of the day, can handle 20 percent of the day and can push/pull 5 percent of the day. With those upper extremity restrictions, the VE testified that an individual would not be able to do work that exists in the national economy. AR 51-52.

In response to questions from Plaintiff's counsel, the VE testified that she did not have any information about how much income was received in Plaintiff's bookkeeping position other than what was in the work history report, which stated that she earned $8 an hour, 5 to 7 hours per day, 5 days per week. AR 52.

Plaintiff responded to additional questions from the ALJ. She testified that her mother bought feed for her horse, paid her electricity bill, gave her a roof over head, paid for her truck and bought food for her in exchange for help with straightening out and paying taxes for the trucking company. In response to questioning from her attorney, Plaintiff testified that she did not receive over $500 gross benefit. During the three year period, there were more months that she was not working than months she was working. She did not do bookkeeping work every month because she was trying to have another job and was raising her daughter. She thought that she worked four months a year during tax season. AR 53-55.

Medical Record

A June 23, 2005, abdominal sonographic survey was normal. AR 402.

On February 2, 2006, Plaintiff saw Dr. R. Douglas Owen, D.O., for her fibromyalgia and follow-up of her hepatitis. With regard to her hepatitis, Plaintiff reported feeling better with decreased ...


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