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Leaym v. Astrue

October 20, 2010

LISA LEAYM, 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 Lisa Leaym ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income 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 in June 2006, alleging disability since January 30, 2003, due to congenital bone disease, an ulcer, poor speech and back, hip, head and elbow pain. AR 83, 124-137. After her application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 83-86, 92, 95-99. ALJ Patricia Flierl held a hearing on May 14, 2008, and denied benefits on September 11, 2008. AR 10-20, 22- 58. The Appeals Council denied review on September 24, 2009. AR 1-3.

Hearing Testimony

ALJ Flierl held a hearing on May 14, 2008, in Fresno, California. Plaintiff appeared with her attorney, Melissa Proudian. Vocational expert ("VE") Cheryl Chandler also appeared and testified. AR 22.

Plaintiff testified that she was 46 years old at the time of the hearing. She was 5 feet, 10 inches tall and weighed about 230 pounds. AR 25. Plaintiff is not married and has four children that do not live with her. She lives with her friend, Bob. AR 26. Plaintiff has a driver's license but does not drive much because of gas prices. AR 27. She drives back and forth to Fresno City College, from Chowchilla, daily, though Bob has to drive when her arms or legs get tired. AR 28.

Plaintiff graduated high school and has college units. She cannot get her two year degree in accounting because her anxiety causes problems with test taking and her pain causes problems with concentration and memory. Plaintiff has been unable to pass the final exams for the past eight years. AR 30. Plaintiff is currently taking classes but will be unable to continue because of a lack of financial aide. AR 31. Plaintiff is in the Disabled Student Program at Fresno City College, and even though she gets additional time on tests, she is still unable to pass them. AR 32.

Plaintiff last worked as a cashier at Burlington Coat Factory from 1996 to 1999. AR 33. Plaintiff had to quit the position because of swelling in her legs and a varicose ulcer. AR 34. She did not believe that she could perform any full-time work because of restless legs and constant pain in her head. AR 35. Plaintiff has had the head pain for the past five years and the pain medication does not "totally" relieve it. AR 37-38. She also testified that she has pain in her hands and wrists that prevents her from typing or writing for more than 5 or 10 minutes at a time. AR 35. Plaintiff has an anxiety disorder and ADHD. AR 35-36. She gets drowsy at about two or three in the afternoon, though she wasn't sure if this was a side effect of the medication or because she is tired from not sleeping well. AR 39. About 4 or 5 times during the day, for 20 minutes, she leans back in a chair so that her legs "can go out flat." AR 39.

Plaintiff thought that she could focus for about 15 minutes on something before needing to take a break for 20 to 30 minutes. AR 41

Plaintiff explained that the swelling in her legs is worse and that she also has back and hip pain. Plaintiff also has problems with frequent urination and stomach pain. AR 36. She is also being treated for anxiety and sees a doctor as well as a school counselor. AR 42. She also has "nervous shaking" everyday. AR 42. Plaintiff has not sought out specific psychiatric or mental health treatment. AR 46.

When questioned by her attorney, Plaintiff testified that she also takes medication for high blood pressure, though her blood pressure continues to fluctuate. AR 47. She thought that she could stand for about 5 minutes and could walk less than a block. Plaintiff has a permanent disabled parking permit. AR 49. She thought that she could lift 5 pounds or less and could sit for 30 minutes to an hour. AR 50. She does not cook, though she could get a bowl of cereal. Plaintiff can wipe off a shelf, but does not do any heavy cleaning. AR 52-53. She can put clothes in the washer and can go grocery shopping if she doesn't have to carry anything and can stay on one side of the store. AR 53.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and work history. This person would be limited to light work and simple, repetitive tasks with no public contact. The VE testified that this person could not perform Plaintiff's past relevant work but could perform roughly 13,000 jobs in California at the unskilled level. AR 54-55.

For the second hypothetical, the ALJ asked the VE to assume that this person was limited to sedentary work and simple, repetitive tasks with no public contact. The VE testified that this person could not perform Plaintiff's past relevant work but could perform about 2,000 in California at the unskilled level. AR 55.

For the third hypothetical, the ALJ asked the VE to assume that this person could perform simple, repetitive tasks with no public contact. This person could not concentrate in two-hour increments. The VE testified that this person could not perform any work. AR 56.

Medical Record

An MRI of Plaintiff's brain performed on November 10, 2003, revealed diffuse generalized cerebral atrophy with prominent cerebellar atrophy and nonspecific white matter changes. AR 303.

On September 15, 2005, Plaintiff saw Scott Ahles, M.D., a psychiatrist at California State University, Fresno. AR 206. Plaintiff reported that her summer was uneventful and that she did not do well last semester. Plaintiff explained that she had a lot of problems with exams because of anxiety and because she just cannot remember the material. She also reported that she had testing performed over the summer to see if she had a learning disability. Ritalin did not help Plaintiff's ADD and Fluoxetine did not help her anxiety. Dr. Ahles was not sure where to go in terms of medication intervention and decided to hold off on medication for the present time. He was also going to find out the ...


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