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Mary Pacheco v. Michael J. Astrue

January 13, 2011

MARY PACHECO,
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 Mary Pacheco ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits ("DIB") and supplemental security income ("SSI") 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

On January 6, 2004, Plaintiff filed an application for DIB. After being denied initially and on reconsideration, an Administrative Law Judge ("ALJ") held a hearing and denied benefits on October 28, 2005. AR 89-97. Plaintiff did not appeal the decision.

On December 19, 2005, Plaintiff filed a new application for DIB and an application for SSI, alleging disability since April 1, 2005, due to Hepatitis C and cirrhosis of the liver. AR 174-78, 179-83, 202-210. After being denied initially and on reconsideration, Plaintiff requested a hearing before an ALJ. AR 101-05, 107-11, 120-26. ALJ Daniel G. Heely held a hearing and subsequently denied benefits on May 23, 2008. AR 70-82. The Appeals Council vacated the decision and remanded the case because the hearing record could not be located. AR 86-88. Following a de novo hearing, ALJ Heely denied benefits on May 29, 2009. AR 14-29. The Appeals Council denied review on September 6, 2009. AR 1-4.

Hearing Testimony

ALJ Heely held a supplemental hearing on December 23, 2008, in Stockton, California. Plaintiff appeared with her attorney, Jeffrey Milam. Vocational expert ("VE") George Meyers also appeared and testified. AR 17, 32.

Plaintiff testified that she finished her GED. After that, she went to job corp and studied clerical work for the railroad. She also received a certificate of medical assistance from junior college. Additionally, she had 240 hours of phlebotomist training at the VA hospital. She was no longer in school or working. AR 33-35.

Plaintiff last worked about a year or two before the hearing. She worked for RHI Staffing in 2005 and in 2006, doing clerical temp jobs. From April or May to September 2006, she worked as a temporary medical records file clerk at a hospital in Turlock, California. She was paid $9.00 an hour and averaged 40 hours per week. AR 36-38. When the job ended, she received unemployment until March 2007. She did not have to do job searches in order to qualify for unemployment. AR 38-39.

In April 2005, Plaintiff was having health issues with her liver and she was let go from her job. She got sick and started going to the hospital. She did not work for the remainder of 2005. In 2006, she worked for two different companies. AR 39-40.

Plaintiff claimed that she could not work full-time now because her legs and ankles swell up due to hepatitis C and she might have kidney stones. She does not smoke, drink or use illegal drugs. She takes prescription medications, which cause cramps. She is not receiving any mental health treatment and she has not been referred for any treatment. AR 41-43.

Plaintiff lives with her husband and 15-year-old son. Her husband works during the day. When he is at work, her son is at school and she is home alone. During the day, she watches TV or reads a book. She also plays computer games. AR 43-44. She also is "on the go" with her pastor. She attends services on Thursday evenings from 7:00 to 9:00 and on Sunday mornings from 10:00 to 11:30. AR 45.

In response to questions from her attorney, Plaintiff reported that her condition requires her to lie down most of the time. She explained that if she is on her feet too much, then her legs and ankles will get swollen. Although her energy level is low, she feels rested after sleep. At the church services, she has to sit in the back and prop up her feet. AR 46-47.

Plaintiff confirmed that she was hospitalized in 2003 for cirrhosis. She had Interferon treatment, which stopped in the middle of 2004. She still had swelling in her legs at least through early 2005. She could not have worked while getting Interferon, but her disease got better "[t]o a point" and she returned to work. At her last job, she was standing about two hours and sitting about six hours. She had to elevate her feet and they had a little slope for her about a foot high. AR 48-49.

Plaintiff testified that she could do that same job today if they let her slope her feet. She further testified that she would be working today if allowed that kind of accommodation, even if she was taking Interferon. AR 49-50. In the past, her Interferon treatments were every two days and she was sick the whole day after treatments. She would not have been able to go to work then, but she is not currently on Interferon. She only takes medication to help her liver and to release water tension in her legs. AR 50-52.

Plaintiff also reported that she has back pain. The pain bothers her if she is sitting or standing more than 20 minutes. AR 52-53.

Plaintiff indicated that "Dr. Plotsker" is her specialist liver surgeon. He told her that she had end-stage liver disease and would need a transplant. His opinion that she could not be at a workplace three or four hours a day was not wrong. Plaintiff explained that she could be at the workplace if she was in need of money. She did not think that she could work an eight-hour day job five days a week because her feet would "really be swollen" and she would have to "really push" herself if she was going to go to work. When she pushes herself, she gets weaker because her legs, feet and ankles get more swollen. AR 53-54.

In response to clarifying questions from the ALJ, Plaintiff testified that she had to get up and walk around about three hours at her last job. The other five hours she was seated with her legs elevated. AR 55.

The VE also responded to questions from the ALJ and agreed to identify any testimony that differed from the Dictionary of Occupational Titles ("DOT"). The VE testified that Plaintiff had past work as an administrative clerk, DOT 219.362-010, which is light, semi-skilled, SVP. Her past work as a house mother is in the DOT as household manager, DOT 301.137-010, which is light, skilled SVP 6. She also worked as a medical assistant, 079.362-010, which is light, skilled, SVP; a phlebotomist, 079.364-022, which is light, semi-skilled SVP 3; and a file clerk, 206.367-014, which is light, semi-skilled, SVP 3. From her past work, she had transferable skills that included familiarity with office equipment, directing and coordinating work completion, overseeing people, familiarity with medical terminology and medical procedures, and doing blood draws. AR 56-57.

For the hypothetical questions, the ALJ asked the VE to assume a person of the same age, education and work history as Plaintiff. For the first hypothetical, the ALJ also asked the VE to assume an individual that could sit, stand, and walk less than two hours each in a normal workday, could lift and/or carry less than 10 pounds even occasionally, could never climb, balance, stoop, kneel, crouch, crawl or work around hazards and who would need numerous unscheduled rest breaks throughout the workday. The VE testified that there would not be any past-relevant or other full-time jobs that could be done. AR 57.

For the second hypothetical, the ALJ asked the VE to assume an individual that could work at jobs involving sitting, standing, and walking six out of eight hours each with normal breaks, and could lift and/or carry 20 pounds occasionally and 10 pounds frequently. The VE testified that a person with those limitations could perform all of Plaintiff's past jobs. There also would be other jobs in California, including receptionist, DOT 237.367-038, which is sedentary, semi-skilled, SVP 4, with 10,900 jobs in California; appointment clerk, 237.367-010, which is sedentary, semi-skilled, SVP 3, with 6,000 jobs in California; and cashier, 211.462-010, which is light, unskilled, SVP 2, with 81,000 jobs in California. The VE confirmed that his testimony did not differ from the DOT. AR 57-58.

Medical Record

Plaintiff began Interferon treatment for her hepatitis-C cirrhosis in July 2003 through UCSF Medical Center. AR 296, 299. She reportedly stopped interferon/ribavirin therapy in or around October 2004, "although her response had not been optimal." AR 286-87.

On March 21, 2005, Plaintiff underwent an abdominal ultrasound for cirrhosis. The ultrasound showed a hepatic cyst and a questionable hepatic mass. AR 273.

At UCSF Medical Center, Plaintiff underwent a CT of the abdomen on April 15, 2005. The CT showed a cirrhotic liver with a simple cyst in the right hepatic lobe, but no hepatic lesions. AR 285.

In November 2005, Plaintiff complained of right side pain for two weeks. AR 259. A CT scan of her abdomen and pelvis on November 29, 2005, revealed no identifiable mass. AR 257.

On March 8, 2006, Plaintiff's physician noted that Plaintiff missed her last appointment due to a "birthday." AR 318.

An abdominal ultrasound on April 25, 2006, revealed a hepatic cyst. AR 313.

In May 2006, Plaintiff reported increased swelling of her lower extremities. AR 308. On June 19, 2006, Plaintiff reported edema and decreased memory at times. On examination, she had lower extremity edema, improved with medication. Her mood and affect were normal. AR 325.

In July 2006, Plaintiff again had lower extremity edema on examination. Her memory, mood and affect were normal. AR 322.

On October 2, 2006, Plaintiff was noted to have a flat affect. AR 320.

On October 10, 2006, Plaintiff had a 20 pound weight gain along with increased fluid retention. Her mood was euthymic. AR 319.

On November 3, 2006, Plaintiff was noted to have less swelling in her legs. Her memory, mood and affect were normal. She was euthymic. AR 379.

On November 16, 2006, Plaintiff's lower extremity swelling was noted to be improved. Her memory, mood and affect were normal. She was euthymic. AR 375.

On November 29, 2006, Mark Robinson, M.D., completed a consultative internal medicine evaluation. Plaintiff's chief complaint was swollen feet due to her liver. She reported increased swelling with standing or prolonged sitting. She denied any issues with her activities of daily living except for fatigue, which generally affected her pace. She admitted a ...


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