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Alma Hernandez v. Michael J. Astrue

January 3, 2011

ALMA HERNANDEZ,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Alma Hernandez ("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 on December 19, 2005, alleging disability since November 10, 2005, due to a hip injury with arthritis, depression and chronic pain in her left hip and knee. AR 1140120, 127-133. After her application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 60, 69, 95. ALJ Michael J. Kopicki held a hearing on August 26, 2008, and issued an order denying benefits on January 22, 2009. AR 5-15, 16-59. On October 30, 2009, the Appeals Council denied review. AR 103.

Hearing Testimony

ALJ Kopicki held a hearing in Fresno, California on April 24, 2007. Plaintiff appeared with her attorney, Melissa Proudian. Vocational expert ("VE") Jose Chaparro also appeared and testified. AR 16.

Plaintiff testified that she was 34 years old at the time of the hearing. Plaintiff was 5 feet, 2 inches tall and weighed 220 pounds, which was her usual weight. She has 5 children, ages 6 through 14. She lives with her 10 and 12 year old daughters. AR 20-21. Plaintiff has a driver's license but was not currently driving. AR 21. She graduated from high school and has vocational training as an office assistant. AR 48-49.

Plaintiff believed that she could not work because she has had chronic pain in her left leg since her hip replacement and her legs "tend to give up" when she is walking. Plaintiff broke her hip in 1997 when her leg got stuck in a gopher hole. AR 22. She also has Perthe's disease, which causes degeneration of the hip joint. Plaintiff tried to work after breaking her hip but had difficulty with standing and lifting. AR 23. She worked at a gas station in 1999 and as a caregiver in 2003. AR 25.

Plaintiff's hip worsened and she eventually underwent a hip replacement in April 2006. She had a second surgery in May 2006 to fix a dislocation of the hip. AR 26. Her left leg is now shorter than the right. AR 26. She has chronic pain in her left hip and she sometimes feels that if she doesn't lay down and elevate her leg, it will pop out of place. AR 27. Plaintiff described the pain as a burning sensation that sometimes gets so intense that she breaks into a cold sweat and becomes dizzy. AR 27. She takes Vicodin, but it just "numbs" the pain and doesn't take it away. It also makes her drowsy and sleepy. AR 28. Plaintiff has had injections but didn't think they helped. She has also tried physical therapy but she was no longer allowed to go after missing two appointments. Plaintiff explained that she was going to court with the father of her children at the time. AR 29. When she tried to get another referral, her doctor told her to wait because he wanted to perform surgery from the knee to her foot. AR 29.

Plaintiff has to change position often so that her hip doesn't lock. If she's been walking for more than 30 minutes, her hip might lose strength and cause her to trip. AR 30. She has fallen many times and has even broken her cane "a little bit." AR 30. Plaintiff thought that she could walk 1.5 to 2 blocks, with her cane, before taking a rest. She thought that she could stand for 20 minutes, though she would have to be bending her knee during that time so that it doesn't lock. She thought that she could sit for 20 to 30 minutes, though she has to constantly move around in the chair. AR 33. Plaintiff thought that she could lift 10 to 15 pounds. AR 33. She did not think she could perform a sit down job because her leg would lock. AR 55.

On a typical day, she gets up when her daughters get up, though she doesn't help them get ready for school much. She prepares meals but does not do much housecleaning. Plaintiff sometimes washes dishes. She also does laundry and shops, though she uses the "little cars" at the store. Plaintiff explained that her daughters help with most of the cleaning. AR 34. Plaintiff doesn't socialize and usually just stays home and reads or watches television. AR 35. She sometimes helps her daughters with homework when it doesn't require too much concentration. AR 35.

Plaintiff is also depressed because of her pain. She takes Prozac, which doesn't always help. AR 36. It's been almost one year since Plaintiff has seen a doctor for her hip because she is scared of more surgery. AR 36, 44.

When questioned by her attorney, Plaintiff explained that she lays down and elevates her legs about 3 or 4 times a day, for about 15 to 20 minutes. This takes the pain away "a little bit." Plaintiff has also been wearing stockings that help with circulation for about 20 years. AR 37-38. She has trouble climbing stairs and has to stop and balance herself as she goes up. AR 39. Plaintiff also tends to lose her balance when she walks over uneven surfaces. AR 40.

Plaintiff's daughters don't like her to help because they think she is too slow. They only allow her to brush their hair. AR 40. Plaintiff also thought it took her about twice the amount of time to do activities because she has to be cautious not to fall. AR 41. Plaintiff thought that she could concentrate for about 30 minutes before needing to change positions so her neck won't lock or her pain won't come back. AR 42. After about 5 minutes, she tries to continue concentrating. AR 42.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and experience. This person could lift 20 pounds occasionally, 10 pounds frequently, and stand and/or walk 4 hours in an 8 hours day, with 5 minute breaks every 30 minutes. This person could sit without restriction but needs to use a cane when walking long distances or over uneven terrain. This person is limited to occasional kneeling, squatting and climbing stairs. The VE testified that this person could not perform Plaintiff's past relevant work but could perform the positions of ticket seller, outside deliverer and button sewing machine operator. AR 49-51.

For the second hypothetical, the ALJ asked the VE to assume that this person could lift 20 pounds occasionally, 10 pounds frequently and stand and/or walk for 2 hours total. This person needed a cane for prolonged ambulation or walking on uneven terrain. This person could sit for 6 hours and could occasionally squat, stoop, kneel, crawl, crouch and climb. The VE testified that this person could perform the positions of ticket seller and sewing machine operator. AR 51-52.

For the third hypothetical, the ALJ asked the VE to assume a person who could lift 10 pounds occasionally, 5 pounds frequently, stand and/or walk for 2 hours, for no more than 30 minutes at a time before needing to alternate positions for at least 5 minutes. This person could occasionally stoop, kneel, squat, crouch, crawl and climb stairs. This person would also need a cane for ambulation. The VE testified that this person could perform the position of ticket seller and sewing machine operator. AR 51-52.

For the fourth hypothetical, the ALJ asked the VE to assume that the person in the third hypothetical needed to alternate positions every 30 minutes, for a minimum of 5 minutes, before resuming sitting, standing or walking. The VE testified that ...


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