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Margarita Llamas v. Michael J. Astrue

December 17, 2010


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


Plaintiff Margarita Llamas ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for supplemental security income under 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 on November 13, 2006, alleging disability beginning July 18, 2006, as the result sprains, strains and muscle disorders in her lower back, knee, neck and shoulders. (AR 123-124). Her application was denied initially and on reconsideration, and subsequently Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 129-132,137-141, 143). ALJ Michael J. Haubner held a hearing on October 2, 2008, and issued an order denying benefits on December 6, 2008. (AR 14-20). On June 26 2009, the Appeals Council denied review. (AR 1-5).

Hearing Testimony

On October 2, 2008, in Fresno, California, ALJ Haubner held a disability hearing during which Plaintiff, represented by attorney Melissa Proudian, appeared and testified with the assistance of an interpreter, Jacqueline Flores. (AR 23-41). Vocational Expert ("VE") Judith Najarian*fn3 also testified. (AR 41-51).

At the time of the hearing, Plaintiff was a forty-three year-old female living in Fresno, California with her twenty-six year-old son, daughter-in-law, and their two children, ages three and eight. (AR 27-28). She completed the twelfth grade in Mexico. (AR 27, 39). Both her son and daughter-in-law work outside the home. (AR 28).

Currently, Plaintiff's daily activities include watching television for about an hour, reading occasionally, and conversing with her grandchildren for about an hour a day. (AR 34). She is able to brush her teeth, comb her hair, bathe herself, prepare simple meals twice a day and wash the soiled dishes used during those simple meals. (AR 31). She also talks on the telephone once a week, attends church services every two months, and visits people outside the home every three months. (AR 32-33). Plaintiff has no hobbies, does not make her own bed, change her own linens, take out the trash, clean the kitchen or bathrooms, do yard work, sweep, vacuum, mop floors, wash windows, or do the laundry. (AR 30-33). She does not have a driver's license, and must depend on others for rides. (AR 29). Plaintiff's last shopping trip was about a year ago, as her daughter-in-law or sister currently do the household shopping. (AR 33). Plaintiff does not care for her grandchildren while their parents are at work, nor does she help her eight-year-old grandson with his homework or attend any of her grandchildren's school functions. (AR 29, 34).

Plaintiff's impairments include neck and low back problems, a history of fibromyalgia that has gotten progressively worse over the past three years, as well as mild depression -- although she has not been evaluated or treated by either a psychologist or psychiatrist. (AR 36-37, 39). When asked to compare the severity of her symptoms to how she felt at the hearing of February 2, 2006, Plaintiff said that she feels worse, and can sit, stand, and walk for a shorter period of time. (AR 40). Her current medications include Tramadol, taken four times a day, and Fluoxetine, taken three times a day. (AR 35, 39). She was also recently prescribed Ambien. (AR 35, 39). Plaintiff's medications cause dizziness and drowsiness, although when she informed her doctors about these side effects her medications were not altered, and she was instructed to simply rest. (AR 35).

Plaintiff explained that she is currently capable of: lifting/carrying ten pounds; sitting/standing for ten minutes; walking for ten minutes before requiring rest; and paying attention or concentrating for fifteen minutes. (AR 37-38). She states that her impairments and the resulting fatigue or pain require her to lie down an average of six and one-half hours per day. (AR 38).

The ALJ also elicited testimony from VE Najarian, who testified that Plaintiff was previously employed as a tortilla packer, which the VE classified pursuant to the Dictionary of Occupational Titles ("DOT") as 2, medium exertional level and unskilled. (AR 42). Plaintiff also worked previously as a turkey de-beaker, which the VE classified as DOT 3, light exertional level and semi-skilled. (AR 42). Neither of these two positions imparted transferable work skills to Plaintiff. (AR 42-43).

The VE was then presented with several hypothetical questions posed by the ALJ. (AR 43-51). First, the VE was asked to assume a hypothetical worker of Plaintiff's age, education, experience, and background, who could lift and/or carry fifty pounds occasionally, twenty-five pounds frequently, and stand and/or walk for about six hours out of eight. Moreover, the hypothetical worker would be unable to stoop, bend, engage in overhead activity that required hyperextension of the neck, as well as be unable to keep her neck in one position for periods longer than twenty minutes. (AR 43-44). The VE determined that this hypothetical worker could perform Plaintiff's past relevant work as either a tortilla packer or poultry de-beaker. (AR 44-45). Additionally, the person would be able to work as a production helper, cleaner II, and a production worker (e.g., box bender). (AR 47-50). Each position is medium, unskilled employment with 25,000, 25,244, and 12,974 jobs available in California*fn4 respectively. (AR 19).

The functional limitations used in the second hypothetical included: the ability to lift and/or carry fifty pounds occasionally, twenty-five pounds frequently, stand and/or walk for about six hours out of eight, unlimited ability to push and pull, occasional ability to stoop, the ability to frequently climb, balance, kneel, crouch and crawl, and the ability to occasionally reach overhead. (AR 50). The VE determined that this hypothetical worker would be able to perform all the jobs identified in hypothetical one. (AR 51).

Finally, in the third hypothetical, which was based on Plaintiff's testimony, the VE was asked to consider functional limitations that included: the ability to lift and carry ten pounds, sit, stand and/or walk for ten minutes at a time, concentrate for fifteen-minute increments, and the requirement to lie down and rest for six and one-half hours out of eight. (AR 51). Given these limitations, the VE indicated that no work was available for such a worker. (AR 51).

Medical Record

The entire medical record was reviewed by the Court. Those records relevant to the issues on appeal are summarized below. Otherwise, the medical evidence will be referenced as necessary in this Court's decision.

Sequoia Community Health Center

The medical records from this facility consist of two pages of progress notes spanning from September 12, 2005, through April 17, 2006. (AR 217-218). The only relevant entry is November 10, 2005, wherein it is noted that Plaintiff was "not seen due to patient wanting to be seen for back and neck pain due to [motor vehicle accident]." (AR 217).

Community Medical Centers

The medical records from this facility consist primarily of physician progress notes, but also include a single x-ray of Plaintiff's thoracic spine and a hematology report. (AR 226-245, 248-255).

On February 7, 2006, the physician's notes indicate that Plaintiff suffered a slip and fall in 2000 and a motor vehicle accident in 2001, and sought treatment as a result, primarily for her back pain. (AR 225). Her complaints included "pain all the time . . . pain better with lying [or] sitting . . . cramping to hands and legs [no] numbness . . . has to walk slow, difficulty with combing hair . . . has to use arm of chair to stand." The physician's examination revealed tender points spanning from Plaintiff's cervical spine to her lumbar spine, and pain with straight leg raises. (AR 225). Other than what is noted above, the physician's notes do not equate Plaintiff's pain to any workplace functional limitations. The treatment plan included a six-week course of medications, and a follow-up appointment in one month. (AR 244).

On February 8, 2006, an x-ray of Plaintiff's lumbar and thoracic spine was completed. (AR 242-243). The lumbar spine x-ray revealed preserved lumbar lordosis, well aligned vertebrae, intact vertebral bodies and neural arches, no osteolytic or osteoblastic lesions, and normal appearance in the discs, facet joints, and sacroiliac joints. (AR 243). The thoracic spine x-ray revealed normal curvature of the thoracic spine, intact vertebral bodies and neural arches, no osteolytic or osteoblastic lesions, normal appearance in the discs, and the paraspinal soft tissues were unremarkable. (AR 242). The physician's interpretation of the lumbar and thoracic spines concluded that "no significant abnormalities [were] noted." (AR 242-243).

On March 9, 2006, Plaintiff denied any changes in her symptoms, and the physician's treatment plan recommended continuing her medications, but modified the previous treatment plan by also including a recommendation for physical therapy. (AR 239).

On June 6, 2006, during a follow-up appointment for her complaints of fibromyalgia and back pain, Plaintiff told the treating physicians that she was feeling better, which she attributed to physical therapy, but she also requested additional pain medications. (AR 238). She denied being depressed. (AR 238). Upon examination, ...

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