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Jennifer Teran v. Michael J. Astrue

February 3, 2011

JENNIFER TERAN,
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

BACKGROUND

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

Plaintiff Jennifer Teran ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits ("DIB") pursuant to Title II 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 December 28, 2006, Plaintiff filed an application for DIB. AR 122-24. She alleged disability since April 28, 2005, due to degenerative disc disease and bad left ankle. AR 138-46. After being denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 87-91, 93-97, 98. On January 21, 2009, ALJ Michael J.

Kopicki held a hearing. ALJ Kopicki denied benefits on May 13, 2009. AR 70-82. The Appeals Council denied Plaintiff's request for review on August 8, 2009. AR 7-9.

On August 25, 2009, Plaintiff requested that the Appeals Council reopen the decision. AR 5. The Appeals Council denied Plaintiff's reopening request on November 25, 2009. AR 1-2.

Hearing Testimony ALJ Kopicki held a hearing on January 21, 2009, in Fresno, California. AR 28. Plaintiff appeared with her attorney. Vocational expert Thomas Dachelet also appeared. AR 15, 28.

Plaintiff lives with her husband and with her three children, ages 3, 9, and 11.

Plaintiff was born in 1979. She has a twelfth grade education, but does not have any vocational training or military service. She is 5'1" and weighs about 200 pounds. Her normal weight is about 160 to 180, but she gained weight "just not being as active." She is left handed. AR 30-31.

Plaintiff's alleged onset date is April 28, 2005, and she has not worked since that date. Prior to that, she worked in collections for nearly three years. The job entailed using a telephone and computer at a call center. She did some data entry. She had a quota, which was an 80% recovery rate. When calling someone, she had to notify them who she was, why she was calling and for what bill. She had to be firm without being impolite. AR 31-32.

Before that job, she worked at a health insurance company in a customer call center. She took calls from people seeking pharmacy overrides. She would take their information and either submit it to a "higher up" or call the pharmacy. AR 33-34.

Before that, she worked for a short period at Mr. Rooter Plumbing. She answered the phone, taking service calls and dispatching plumbers. Prior to that, she worked in fast food service. AR 34.

Plaintiff felt that pain kept her from working. In April 2005, she was pregnant and started experiencing back pain. Her OB/GYN took her off work because she had severe hyperemesis, which may have been from fibromyalgia. Plaintiff explained that the pain is mainly in her right lower back. She described it as constant aching, sometimes sharp or stabbing. The pain travels to her neck, her shoulders and sometimes to her right knee, hands, arms and legs. She also has neck pain and recently had a nerve conduction study to confirm a pinched nerve. She has no other pain. AR 34-36.

Plaintiff testified that she takes 750 mg of Vicodin four times a day. It helps relieve some of the pain, but she cannot "totally clearly" function on the Vicodin. It causes side effects of fatigue and sometimes nausea. She tries to time the medication around driving her children to and from school. AR 36-37.

Plaintiff also testified that she takes 350 mg of Soma twice a day. It helps her relax, but causes dizziness, sometimes drowsiness or an altered mental state. She takes medication for high blood pressure, too. She didn't think her high blood pressure was controlled. AR 37-38.

She also takes Wellbutrin four times daily for depression/pain. It makes her whole overall well-being better. When she stopped taking it for a period of time, she felt depressed. When she is taking it, she feels a little bit better. She is not undergoing any counseling or therapy. In the past, she had therapy for about six months through a pain program. When the program ended, she stopped seeing the doctor. She didn't feel it was helping her "a whole lot." AR 38-39.

Plaintiff testified that she has tried physical therapy, a TENS unit, and heating pads, but the only thing that temporarily relieved her pain was warm pool therapy. Her doctor discontinued the therapy, but she didn't know why. He told her that she could continue on her own. At one point, she joined the gym to do pool therapy, but it was too hard to do on her own. She worked out at the gym, but stopped because it was too painful. It helped "a little bit" with weight loss. AR 39-41.

Plaintiff testified that pretty much everything makes the pain worse, including sitting, standing, walking, bending, lifting and reaching. Sometimes she has to lie down to alleviate the pain and sometimes she has to get up to alleviate it. AR 41.

Plaintiff explained that she broke her ankles in May 2006. She got tangled in a diaper bag, tripped and fell out of her minivan. She had surgery on her left ankle, which she broke in three places. She occasionally gets pain in both ankles. She does not have any difficulty walking, but has arthritis type pain in her left ankle when it is cold. AR 41-42.

Plaintiff confirmed that she has a diagnosis of fibromyalgia and has been seeing a rheumatologist. She takes medication for fibromyalgia. AR 43-44.

In a typical day she gets up, supervises her older children getting ready for school, drops them off at school, comes back home, takes her medication, makes her three-year-old something to eat, sits and reads with him and watches TV. She picks her children up at three, comes back home, takes her medication and waits for her husband to get home to help her. She can attend to her personal needs, but does very little housework and prepares only simple meals. She does not bathe her three-year-old because she cannot lift him out of the tub. She does not do laundry. She can put clothes in the washer, but cannot carry the laundry baskets. Her children or husband help. She goes grocery shopping with her husband, but does not do dishes, vacuuming, yard work or gardening. She feeds her fish and watches TV about four hours a day. She has a personal computer for paying bills and can work on a keyboard for a few minutes. She is not a member of any clubs or organizations, does not attend religious services and socializes very little. She doesn't go to the movies or to the water park. She has a mother and sister in the area, but doesn't see them very often. AR 44-48.

In response to questions from her attorney, Plaintiff testified that she could stand or walk up to five minutes and then her back starts hurting. She can sit about five minutes without pain. She testified that she had pain at the hearing and was very uncomfortable. When it was pointed out that she had been sitting for longer than five minutes, Plaintiff said she had been moving around in the chair, but didn't think she could sit much longer and needed to stand. AR 48-50.

Plaintiff reported that she could lift a gallon of milk, but not without pain in her right lower back. It would hurt her right hand if she lifted more than milk. She uses two hands to lift the milk. AR 50-51.

Plaintiff testified that she began seeing Dr. Watrous in January 2007. Although she stopped working at her old job when she was pregnant, the pain persisted after her last pregnancy. In 2006, she had lidocaine injections in her right shoulder for pain. She still has problems with both of her shoulders, including pain and muscle spasm. She stopped the injections because they didn't help. She now treats her shoulders with Soma or heat. AR 51-52.

Plaintiff clarified that she watches TV for about 4 hours total in a day, not 4 hours straight. She takes breaks between watching shows and anything that she does. She has difficulty doing chores, such as dusting. Her husband helps her cook because she can't stir very much, she can't lift the pots and pans and she can't stand long enough. AR 53.

Plaintiff testified that she has migraines, but they are under control with medication. She also has chronic pain syndrome and sleeping problems. It takes her "quite awhile to fall asleep" and she wakes up several times from pain. She rests during the day and sometimes naps. AR 53-54.

Plaintiff further testified that she had her gallbladder removed and has one kidney. The kidney is congenital and she sometimes gets urinary tract infections. She also gets nausea and vomiting, but the cause is unknown. She has a "very sensitive stomach." AR 55-56.

The Vocational Expert ("VE") also testified. He reported that Plaintiff's past work as a collector is sedentary, skilled. Her work in customer service with health insurance is light, SVP 4, semi-skilled. The VE indicated that the fast food restaurant could be one of three possibilities. AR 56-57.

The ALJ asked Plaintiff clarifying questions regarding her fast food work. Plaintiff worked at McDonald's in 1997 and 1998, and eventually was a shift manager. She worked forty hours a week as a shift manager. Before that, she worked around 30 hours a week. As a shift manager, she did not hire or fire people. She kept track of inventory, supervised shifts and trained people. In 2001, she was no longer doing fast food, but worked in check cashing. AR 58-60.

The VE clarified that Plaintiff's general fast food work is light, unskilled. The VE equated the shift manager work with a clerk, general, which is light, 4, and semi-skilled. AR 61.

Plaintiff further testified about her work in check cashing. She would check a customer's references, examine checks and cash them. The store also did payday loans.. AR 61-62.

The VE testified that Plaintiff's work with the plumbing company as a general clerk is light, SVP 4, semi-skilled work. He again reported that her health insurance work is customer service, light, SVP 4. The collections job is sedentary, SVP 5, skilled. AR 62.

The ALJ also asked the VE a series of hypothetical questions. For each hypothetical, the ALJ asked the VE to assume an individual between 26 to 29 years old, with a high school education and Plaintiff's work history. For the first hypothetical, the ALJ also asked the VE to assume an individual who could lift and/or carry 20 pounds occasionally, 10 pounds frequently, could stand and/or walk two hours out of an eight-hour workday, could sit six hours out of an eight-hour workday, and occasionally could climb and stoop. The VE testified that such an individual could perform Plaintiff's past relevant work with the collection agency. AR 63.

For the next hypothetical, the ALJ asked the VE to assume the same individual who, because of depression and medication side effects, was limited to simple, routine tasks. The VE testified that this person could not perform the sedentary, skilled position at the collection agency or any other past relevant work. However, this person could perform other jobs in the national economy and the "whole world" of sedentary, unskilled work would be available. AR 63-64.

For the third hypothetical, the ALJ asked the VE to assume an individual who could lift ten to fifteen pounds occasionally, five pounds frequently, could sit less than one hour and could stand/walk twenty to thirty minutes. Out of an eight-hour day, this person also could reach five percent of the time, handle ten percent of the time, feel thirty percent of the time, push/pull less than five percent of the time and grasp five percent of the time. At one time, this person could reach one to two minutes, handle two to three minutes, feel ten minutes, push/pull two to three minutes and grasp two to three minutes. The VE testified that this person could not do any past relevant work or any other work. AR 64-65.

For the fourth hypothetical, the ALJ asked the VE to assume an individual who could lift about eight pounds, could walk for five minutes, could stand for five minutes, could sit a maximum of thirty minutes with discomfort and would need thirty minutes rest between shifting position. The VE testified that work would be eliminated. AR 65.

Plaintiff also testified in response to additional questions from the ALJ. She reported that she was referred to a pain management clinic. She still goes for management of her pain medication. She did not remember why she said in September 2006 that she opted not to participate because she needed to take care of her children. She did participate at a later time. Plaintiff also clarified that she left the collections job because she was pregnant, she started having increasing back pain and had severe hyperemesis. She ended up having her gallbladder out and she was very sick. She was not having any issues with the supervision and they let her start working part time. AR 66.

The ALJ noted that Greg Hirokawa, the consultative evaluator, wrote that she reported being fired for insubordination. Plaintiff confirmed that she was fired in 1996 for insubordination at Carl's Junior. She had disciplinary actions at the collections jobs for absences. She said it was possible that they were confused when the history was taken because she was confused. She affirmed that she never got fired from the collections job, clarifying that she was let go because her medical time ran out, not for insubordination. AR 67-68.

Medical Record

On November 15, 2005, Plaintiff complained of worsening migraines since delivering her baby three weeks earlier. She was prescribed medications. AR 243-44.

On December 16, 2005, Plaintiff saw Dr. William Holvik for follow-up of her migraines. She reported 5-6 headaches per month with 2 severe spells. She was prescribed medication, including skelaxin and Norco. AR 239-40.

On January 10, 2006, Plaintiff sought treatment from Dr. Holvik after an emergency room visit. Plaintiff had pain in her lower back that became increasingly severe. On examination, she had adequate range of motion, stable gait, and normal muscle strength and tone. She had no joint tenderness or effusion. Her back was tender to pressure along L1-L4 and she had mild tenderness along the right CVA region. Dr. Holvik assessed low back pain and made a referral for physical therapy. He also reviewed lifestyle changes, including weight loss needs. AR 237-38.

Magnetic Resonance Imaging ("MRI") of the lumbar spine completed in January 2006 showed mild degenerative disc disease at L4-5 and moderate degenerative disc disease at L5-S1. AR 204. A subsequent MRI in March 2006 revealed slightly left-sided central disc protrusion at L4/5 with suspected impingement on the left neural foraminal recess and associated left-sided L5 and S1 roots. AR 205.

Plaintiff attended physical therapy on January 18 and 20, 2006. AR 367-68.

On February 2, 2006, Plaintiff sought follow up for her low back pain. She reported that the pain became increasingly severe with physical therapy and traveled along her posterior thigh. Her legs felt weak and she was concerned about taking too much pain medication. Dr. Holvik ...


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