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Jacinta F. Raimundo v. Michael J. Astrue

March 3, 2011


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



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


Plaintiff filed an application for supplemental security income benefits on December 7, 2006, alleging disability beginning in July 2000. AR 99-102. Her application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 64-67, 70-79. ALJ Christopher Larsen held a hearing on January 28, 2009, and issued an order regarding benefits on May 27, 2009, finding Plaintiff was not disabled. AR 9-44. Thereafter, on October 23, 2009, the Appeals Council denied review. AR 1-3.

Hearing Testimony

On January 28, 2009, ALJ Larsen held a hearing in Fresno, California. Plaintiff appeared and testified with the assistance of an interpreter. She was represented by attorney Melissa Proudian. Vocational Expert ("VE") Thomas Dachelet also appeared and testified. AR 18-44.

Plaintiff was born on February 12, 1964, and thus was forty-four years old on the date of the hearing. She is five feet,*fn3 six inches tall and currently weighs 192 pounds. AR 22. She is not married. Plaintiff has three children, ages twenty-one, eighteen and sixteen. The oldest and youngest children currently reside with her in a friends' home. AR 23. Besides she and her two children, five others live in the Hanford, California, home. AR 23-24.

Although Plaintiff has a valid California driver's license, she no longer drives "because of [her] arm." She last drove on November 18, 2008. AR 24. When asked what was the highest grade level she completed in school, Plaintiff initially responded that it was the fourth grade in Portugal. AR 24. She did not earn a GED in the United States, but stated she received "a diploma from the islands." AR 24. She has never received any vocational training. AR 25.

Plaintiff understands and speaks "a little bit" of English. When asked whether she could read or write in English, she replied "[n]ot too good." AR 25. She cannot read the newspaper, but may be able to follow simple directions on a note, if for instance she were lost. She could write a simple note, however, it would be written in Portuguese rather than English. AR 25.

Approximately nine years prior to the hearing, Plaintiff worked as an in home care provider for an older person. AR 25. She tried to work in 2006 for about two months but could not do so. AR 25-26.*fn4 Other than in home care services, in the past twenty years or so, Plaintiff has only worked cleaning homes for cash. AR 26-27.

Plaintiff does not believe she is capable of working eight hours a day, five days a week because everything she does causes her pain. She has pain in the neck, back and right arm, and gets headaches. AR 27. She also suffers from depression and anxiety. AR 27.

With regard to the back pain specifically, Plaintiff indicated that she was injured on July 17, 2000, when she was assisting a client in the shower. The client was holding onto Plaintiff's right arm for support, when the woman pulled Plaintiff forward, causing "something" to happen in her back, resulting in immediate pain. AR 28. Plaintiff sought treatment at a hospital and has a pending workers' compensation case as a result of the injury. AR 28. She continues to suffer low back pain and takes pain medication. On a scale of one to ten, Plaintiff indicated that generally when she is at home the pain is a six or seven. She has gone to the emergency room for treatment and "a shot" when the pain is a ten. AR 28-29. The week previous to the hearing, Plaintiff indicated that she sought treatment at the hospital and received Toradol or morphine. AR 29.

Due to the back pain, Plaintiff's ability to function is significantly affected. She indicated she has difficulty concentrating, and can only do so for a period of about twenty minutes before "crying because of the pain." AR 29. Plaintiff indicated she would have to take a break for two hours before resuming concentration for another twenty-minute period. AR 30. Plaintiff estimated she could sit in a chair for no more than twenty minutes before having to stand up. She could stand for ten to fifteen minutes before needing to sit down. Additionally, Plaintiff could walk for "not even . . . a half a mile." AR 30. Plaintiff indicated that one of her physicians recommended back surgery, however, it was not authorized. AR 32. She indicated that the back pain travels into her legs as well, on the right side more so than the left. AR 32-33.

When she was asked to identify the heaviest weight she is capable of lifting, Plaintiff indicated she could lift not more than a gallon of milk with her right arm. She cannot lift any weight with her left arm. AR 30. Plaintiff can walk up a flight of stairs with the assistance of the railing, but it would cause pain. She cannot walk on uneven ground. AR 33.

With specific regard to Plaintiff's right arm, she cannot reach overhead or out in front of her due to pain. She cannot pick items up off the floor or ground, and her children will pick things up for her if necessary. AR 30-31.

Surgery was performed on Plaintiff's left arm after she fell at home. Prior to that fall, her left arm did not bother her much. AR 34-35.

The pain Plaintiff feels in her neck also travels along the right side down to her arm. She suffers from "lots of headaches." AR 33; see also AR 35. She gets headaches every day that "last a long time" and despite the medication she takes the pain does not resolve completely. AR 35. This pain causes Plaintiff to become "more nervous" and affects her concentration. AR 33. She can slowly move her head front to back and side to side. AR 33-34. When she was asked how long she could hold her head in one position, as if to look at a computer screen, Plaintiff indicated she could not do so for "even 10 minutes." Thereafter, she would need to lie down for "an hour in bed rest." AR 34.

Plaintiff's pain medication does not completely remove her pain. Moreover, the medication makes her drowsy and she will have to lie down "[m]ore than three times" during the course of a day, for an hour or two at a time. AR 31-32. Additionally, Plaintiff has treated her pain with physical therapy and uses a TENS unit. The unit "helps a little bit, not much . . .." Hypodermal pain injections also did not negate her pain completely. AR 32.

With regard to depression, Plaintiff gets very nervous and feels worthless and sad. AR 35-36. She cries "a lot every day" and is never happy. AR 36. She cannot comfort herself and is "always very nervous." AR 36. She does not visit friends at their homes because their lives are happy and hers "is very sad." AR 36. When asked whether she has suicidal thoughts, Plaintiff indicated that she "thought about that lots of times," but was not currently suicidal. AR 36. She last contemplated suicide about seven months ago. AR 36. She has been taking prescription medications to treat these conditions for about a year and a half. AR 36.

Other people make her nervous and thus Plaintiff prefers to be alone. AR 37. She is nervous all day and the nervousness and depression have worsened since she stopped working. AR 37. Plaintiff occasionally goes to church but "they look at" her when she has to stand up during the service. AR 38-39. She does not belong to any social groups. AR 39.

Plaintiff does not cook any longer, and last made soup about three months prior to the hearing. AR 37-38. A "girl" does the cooking because her arm pain prevents Plaintiff from doing so. The girl also does the grocery shopping and laundry. Plaintiff cannot vacuum or sweep. AR 38. She can no longer take a shower like she used to. AR 39.

VE Dachelet opined that Plaintiff could not perform her past relevant work considered to be medium, specific vocational preparation ("SVP") of 3, semi-skilled. AR 40.

VE Dachelet was asked to consider several hypothetical questions posed by the ALJ. First, the VE was asked to assume a hypothetical worker of Plaintiff's age, education, and work experience who can perform light physical exertion as defined by the regulations, limited to simple repetitive tasks. AR 41. The VE indicated that such a worker could not perform Plaintiff's past work, but would be capable of the full world of sedentary and light unskilled work. AR 41.

In a second hypothetical, the VE was asked to consider the same worker, however, in this instance the worker must have, in addition to the customary two breaks and meal period in a work day, additional break periods totaling one or more hours per day. AR 41. The VE indicated there were no jobs for such an individual. AR 41.

Medical Record

The entire medical record was reviewed by the Court (AR 166-654), however, only those medical records relevant to the issues on appeal will be ...

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