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Patricia Mendez v. Michael J. Astrue

February 17, 2011

PATRICIA MENDEZ,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Patricia Mendez ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for supplemental security income 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 Gary S. Austin, United States Magistrate Judge.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed an application for supplemental Disability Insurance Benefits alleging disability beginning October 4, 2006. AR 114; 129. The application was denied initially and on reconsideration. (76-80; 84-89). Subsequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 7. ALJ Michael Haubner held a hearing on March 19, 2009, and issued an order denying benefits on August 12, 2009. AR 12-65. On February 27, 2009, the Appeals Council denied review. AR 2-4.

Hearing Testimony

The hearing before ALJ Haubner on March 19, 2009 was held in Fresno, California. AR 27-65. Plaintiff was represented by attorney Robert Ishikawa. Vocational Expert ("VE") Thomas C. Dachelet also testified. AR 49-66.

Plaintiff testified she has a General Education Diploma ("GED") and completed truck driving school. She obtained a class A commercial driving license in 2000, and previously worked as a truck driver. Plaintiff still drives an automatic shift van approximately one to two times per month. AR 33-35. She has also worked as a vinter (a wine sampler) and a clerk. AR50.

Plaintiff lives in a house with her twenty-nine year old daughter who works part-time. AR 34. Plaintiff does some household chores including making her bed two times per week and changing the sheets on her bed twice a month. AR 36. While Plaintiff is not able to take out the trash or clean the house, she is able to do her own laundry once every two weeks, and water flowers in her yard once every three months. AR 37; 43. Plaintiff does not dust, wash the windows, mop the floors, or iron. AR 41-42.

For the most part, Plaintiff is able to take care of her daily needs. She prepares three simple meals a per day, feeds herself, and goes grocery shopping one time per month. AR 38-40. She washes dishes one time per day and goes out to eat approximately one time per month. AR40. She is able to take a shower and dress herself, but she needs assistance putting on her shoes approximately two to four times per month.*fn3 AR 38; 60-61.

For enjoyment, Plaintiff paints watercolors and listens to music approximately one time per week. AR 42. For the remaining time, Plaintiff watches television one hour two times per week and reads for one and a half hours, three times per week. AR 43-44. Plaintiff does not leave the house to visit friends, however, family comes over to her house approximately three times per week. AR 40. She does not attend church regularly because she does not have a ride. AR 39, 47. When Plaintiff does go out of the house, she keeps to herself. AR 47. However, she generally gets along with others and does not get into fights. AR 46-47.

Plaintiff slipped and fell in July 2006 and suffers from a neck and back sprain/strain, degenerative joint disease, cervical, thoracic, and lumbar discectomies, as well as neuropathy of the upper and lower extremities. She also has a history of depression, diabetes, and obesity. Plaintiff is five feet six inches tall and weighs 210 pounds. AR 44. She has been trying to lose weight by dieting and exercising. AR 48. She performs exercises her doctor recommended about five times per day for fifteen minutes. AR 48. To date, Plaintiff has lost approximately 42 pounds. AR 49.

After her fall, Plaintiff had surgery in December 2008 which helped control the pain in her wrists and neck, however, she continues to have numbness in her left index finger and the thumb which extends all the way up to her elbow. AR 57. As a result, she is unable to grasp items with her left hand. AR 61. She also still suffers from constant pain in the lower portions of her back and hips that extends down her left leg resulting in her left foot getting hot and swollen. AR 57-58. She takes showers and lays with a pillow between her legs to help her feel better. AR 58. Prior to the surgery, Plaintiff participated in physical therapy and had trigger point injections which helped to relieve the pain. AR 58. She has also participated in acupuncture about once every two months, and had treatments using an electrical stimulus ("TENS") unit. The electrical stimulus treatments however were not effective over time. AR 58-59.

Plaintiff is able to lift and carry five pounds, can stand for twenty minutes, and can walk for thirty feet. Plaintiff has difficulty paying attention and can only stay focused for one hour at a time. She spends approximately five hours a day laying down and can only sleep for four to six hours a night. The four to six hours she spends sleeping are interrupted sleep as she is unable to sleep for long periods at a time. AR 45-48.

VE Dachelet testified at the hearing. The VE indicated that Plaintiff's past job as a truck driver is classified as medium work as defined by the Dictionary of Occupational Titles, but was heavy as performed. Plaintiff's work as a clerk was categorized as light and unskilled; her work as a delivery driver was classified as medium physical semiskilled; and her work as a wine sampler was classified as light unskilled. AR 49-50.

ALJ Haubner asked the VE to consider a hypothetical worker of Plaintiff's age, education, and past relevant work who is able to relate and interact with co-workers, supervisors and the general public. This worker is also able to maintain attention, concentration, and carry out simple and complex and/or technical job instructions. VE Dachelet opined that this worker could perform her past relevant work as a wine sampler and as a clerk. VE Dachelet also opined that this worker could perform other sedentary to very heavy unskilled work as defined under the Medical-Vocational Rules ("the Grids"). AR 53-54.

In a second hypothetical, the VE was asked to assume a worker who could lift and carry twenty pounds occasionally and ten pounds frequently, who could stand and walk about six out of eight hours, who could sit for six out of eight hours, and who could occasionally climb, balance, stoop, kneel, crouch, and crawl, without any reaching limitations. When asked whether this worker could perform the Plaintiff's past relevant work, VE Dachelet stated that this worker could perform all sedentary and light unskilled work as defined by the Grids.

In a third hypothetical, the VE was asked to consider a worker who could carry less than 10 pounds "occasionally and frequently," who could stand and walk for two to four hours out of an eight hour day, who can sit for six hours in an eight hour day, and had exertional limitations including kneeling, balancing, crouching, and crawling. The VE testified that this person could not perform Plaintiff's past relevant work but could perform sedentary work.*fn4 AR 55-56.

In the fourth hypothetical, the VE was asked to consider a worker who could lift and carry five pounds, who could stand for twenty minutes at a time, who could sit for fifteen to twenty minutes, who could walk about thirty feet, and who needs to lie down five out of eight hours a day. This worker also tries to isolate themselves from the general public. The VE opined that this worker could not perform the Plaintiff's past relevant work nor any other work. AR 56.

Medical Record

On July 21, 2006, Plaintiff slipped and fell in a convenience store. As a result, she experienced pain in her lower and mid-back, hip, as well as numbness in her left leg, foot, and toes. Plaintiff was referred to Dr. Thomas Dosumu-Johnson, M.D., after receiving chiropractic/physical therapy. AR 190-191. On December 4, 2006, Dr. Dosumu-Johnson saw Plaintiff for a consultation and diagnosed her with lumbar spine strain/sprain with radiation to the lower extremities, status post slip and fall. AR 192-194; 289- 297.

Dr. Todd Spencer, M.D., a radiologist at the MRI Imaging Center in Fresno, performed a magnetic resonance imaging (MRI) on January 12, 2007. This test revealed mild central spinal stenosis at L3-L4 and L4-L5 and small disc protrusions at T11-T12, L1- L2, with the most significant appearing at L5-S1. Dr. Spencer also noted there was an 8 mm left foraminal disc protrusion which is narrowing the left neural foramen and encroaching upon the left L5 nerve root. AR 200-201; 286-287.

On March 5, 2007, Plaintiff was evaluated by John C. Chiu, M.D., a neurologist at the California Back Specialist Medical Group in Newbury Park, California, for a neurospinal evaluation. AR 355-360. Dr. Chiu diagnosed Plaintiff with post-traumatic lumbar disc herniation with stenosis and lumbar radiculopathy; post-traumatic cervical disc herniation with cervical radiculopathy; post-traumatic thoracic strain/disc disease; post-traumatic left shoulder strain and left hip sprain/strain. AR 254. Dr. Chiu recommended x-rays, an MRI scan of the thoracolumbar spine with and without weight bearing, and an EMG of bilateral upper and lower extremities. He also prescribed Celebrex and Darvocet for pain, and recommended trial bilateral trapezius trigger point injections, bilateral paralumbar vertebral nerve blocks, and a physical therapy program including flexion exercises. AR 255.

In March 2007, an MRI scan of the lumbar spine with weight bearing performed by the Medical Imaging Group at the California Spine Institute*fn5 revealed 5-6 mm disc protrusions at L5-S1 and L2-3; a 4 mm disc protrusion at T12-L1; and a 2 mm broad-based disc protrusion which increased to 3 mm with weight bearing images. The disc protrusions along with thickening of ligamentum flava resulted in mild-to-moderate central canal stenosis at L4-5, and a 2 mm disc bulge at T11-12. AR 366; 514-515

In March 2007, x-rays of the cervical spine showed osteophyte formation with disc space narrowing at C5-6. X-rays of the thoracic spine revealed anterior wedging, loss of vertical height, and degenerative changes. AR 368-369. March 2007 x-rays of the sacrum and coccyx showed acute angulation of the coccyx without definite fracture or subluxation. The angulation at the disc might be due to injury and was associated with soft tissue swelling. AR 367. March 2007 x-rays of the left shoulder showed calcific tendinitis and osteoarthritic changes of the acromioclavicular joint. AR 370.

Similarly, a March 2007 nerve conduction study/electromyography study revealed right and left median motor neuropathy, right ulnar neuropathy, right peroneal motor neuropathy, left posterior tibial motor neuropathy, prolonged right and left H-reflexes, and chronic denervation of all muscles tested in both the uppers and lower extremities. AR 372; 518. It was noted that these abnormalities are seen in patients with C5 and C6 radiculopathy and L5 and S1 radiculopathy on both sides. AR 371-372; 518.

After these tests, Plaintiff was assessed by Dr. Mehdi, M.D., a consultative examiner, at the request of the Social Security Administration on June 9, 2007. AR 310- 313. Dr. Mehdi noted that Plaintiff was not on any medication, walked with a slightly wide-based "antalgic gait" that was stable, and had a weakly positive Romberg.*fn6 AR 310-312. He assessed a normal cervical spine range of motion with normal curvature, alignment with no spasms, and a reduced lumbar spine range of motion with diffuse spasms. AR 312. Dr. Mehdi diagnosed Plaintiff with lumbar spine disc disease and lumbar spine radiculopathy. AR 313. Dr. Mehdi opined that Plaintiff could lift and carry less than ten pounds occasionally and frequently, could stand and walk two to four hours out of an ...

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