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Amy M. Storrar v. Michael J. Astrue

March 5, 2011

AMY M. STORRAR,
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'SSOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Amy M. Storrar ("Plaintiff"), proceeding pro se and in forma pauperis, 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 August 3, 2007, Plaintiff filed applications for DIB and SSI. AR 138-51, 156-83. She alleged disability since November 27, 2001, due to fibromyalgia, panic attacks, obesity and her right knee. AR 184-87, 188-95. After being denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 96-100, 101-05, 107-08. On June 16, 2009, ALJ Stephen W. Webster held a hearing. AR 20-61. ALJ Webster denied benefits on October 20, 2009. AR 7-19. The Appeals Council denied Plaintiff's request for review on December 4, 2009. AR 3-6.

Hearing Testimony

ALJ Webster held a hearing on June 16, 2009, in Fresno, California. AR 20. Plaintiff appeared with her attorney, Dennis Bromberg. Vocational expert Judith Najarian also appeared and testified. AR 22.

Plaintiff was born in 1976. She is 5'6" and weighs about 230. She is not married. She lives with her two children, ages 15 and 2, in a mobile home. AR 24-25. She has a driver's license, and drives to the doctor, the store and her child's school. She takes care of her personal grooming needs without help, including bathing and getting dressed. She cooks and does laundry. Her son helps her with the laundry. She does not do any yard work. AR 25-26.

Plaintiff testified that she watches TV two to three hours a day. Her attention span is very short. Her 15-year-old son helps her take care of the younger child. Plaintiff does not visit with friends or family. She does not go to movies or attend church. AR 26-27.

Plaintiff has a high school diploma. She also completed a few college credits and received schooling for phlebotomy. She received her "CNA" in 1993 and her phlebotomy license in 1997. Her licenses are current. AR 27-28. She last worked in 2004 at a temporary job registering people to vote. Since 2001, she has not done any other work. AR 28-29.

Plaintiff testified that she has fibromyalgia, depression, and panic disorder. She also has a torn ACL in her right knee, but they cannot perform surgery because of her weight. She recently had gastrointestinal bypass surgery and hernia surgery. AR 29-30.

Plaintiff sees "Dr. Verman" for her physical problems every month. She was taking Ultram and Soma for her fibromyalgia, but had to stop. No one told her that she couldn't drive with the medications and she received a DUI. She is not allowed to take anything for her fibromyalgia pain. Plaintiff also goes to Fresno County Behavioral Health for medication and sees Dr. Kathryn Cannon every week. AR 30-31.

Plaintiff testified that she can sit for 30 minutes, or maybe 15 minutes, for mental reasons. She can stand about 15 minutes because of her knee. She cannot walk much because of her fibromyalgia. She can probably walk about 15 or 20 minutes. AR 31-32. It is hard for her to lift because of fibromyalgia. The fibromyalgia also brings on anxiety and she has to fight herself to go places and to do things. She has a social phobia of what people are going to think of her. She takes Seroquel and Paxil for her psychological problems, but they do not help. AR 32-33.

Plaintiff testified that she tried to commit suicide in 1997. She was afraid to get help because she did not want to lose her son. She still feels like that and fights off the temptation. She has never had a problem with illegal drugs or alcohol. AR 34-35.

In response to questions from her attorney, Plaintiff testified that the heaviest amount of weight she can lift is two pounds. She further testified that she goes grocery shopping and puts items from the shelves into her cart. She can lift a little box of sugar and a half gallon of milk, which is about eight pounds. She doesn't lift anything heavier. AR 36-37.

Plaintiff testified that she weighed 300 pounds before her bypass surgery. At that time, she could walk from inside to outside and back and forth from the restroom. It would take her about three minutes. Before her surgery, she could stand for about three minutes and sitting was a problem because of anxiety and pain. She has pain in her lower back, shoulders, arms and hands. AR 37-39. When she returned home after bypass surgery, she was able to walk, but had severe pain in her incision. AR 39-40. Plaintiff had lost 70 pounds since August and her goal weight is 150 for knee surgery. AR 40-41.

Plaintiff testified that she falls about once a week because of her knee. She loses her balance, her knee buckles inward and she falls. She always has swelling and pain in her right knee. She uses a knee brace and an ace bandage, but there is nothing that helps her pain. She also elevates her right leg every day for three hours at one time. She wears her knee brace almost every day. AR 42-43.

Plaintiff clarified that she received a DUI for prescription drugs. They did not take her license, but there is a pending DUI case. AR 43-44.

Plaintiff had hernia surgery two weeks before the hearing. She has taken Paxil since 2008 and Seroquel for about eight weeks. She has tried different medications, but nothing has worked. AR 44-45.

Plaintiff testified that it is very hard for her to sleep. She goes to bed at 9:30 or 10:00, but will not fall asleep until 6:00 in the morning. She lies in bed from 10:00 to 6:00 about two to three times a week. She has racing thoughts during the day and night. AR 46-47.

Plaintiff testified that it is hard for her to eat, but she forces herself to eat. She also has panic attacks. When she has a panic attack, she sweats a lot and feels nauseated. AR 47-48. She likes to be alone, isolated. She struggles with thoughts of suicide every day. It is impossible for her to stay on task or focus. She watches TV, including news, cartoons and movies with her kids. She cannot follow a movie from the beginning to the end. She has to watch the movie about four or five times before she actually gets any part of it. She can watch for about five minutes before losing focus. AR 50-51.

Plaintiff explained that her 2-year old is at home, not daycare. Her 15-year-old is home for summer. On a typical day, she gets up and feeds her child and herself. She watches her child play for about two hours. She will also play with her child. She does laundry and vacuums once a week. She also washes dishes. The most difficult chore is shopping. Her mom usually goes with her. In the house, her most difficult chore is taking a shower. It is difficult for her because she is no sure if she should be taking a shower or not taking a shower or if she is doing it right. She questions every decision she makes. From a physical standpoint, getting out of bed is the most difficult chore. It is as difficult as vacuuming, sweeping and doing laundry. AR 51-54.

The VE also testified in response to questions. The VE testified that Plaintiff would have transferable skills from her CNA, but not phlebotomy. For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and work history. The ALJ asked the VE to further assume that this person could lift 20 pounds occasionally, 10 pounds frequently, could sit, stand, and/or walk six out of eight hours, occasionally could crouch, squat, and climb, but could not kneel or crawl. This person also would be limited to simple three and four-step job instructions. The VE testified that this person could not do any of Plaintiff's past relevant work, but there would be other jobs in the regional or national economy that this person could perform at the light level. One example is packing line worker, which is light, SVP 2, with 31,574 jobs in California. Other jobs include greeter, with 2,230 jobs in California, and toll collector, with a reduction to 18,990 jobs in California. The VE indicated that her testimony was in conformity with the Dictionary of Occupational Titles. AR 56-58.

For the second hypothetical, the ALJ asked the VE to assume the same factors as in the first hypothetical and also to assume this person would have occasional problems maintaining attention, concentration and pace. The VE testified that this person could not perform Plaintiff's past relevant work or any other work in the economy. AR 58.

For the third hypothetical, Plaintiff's counsel asked the VE to assume the same person as in first hypothetical with concentration that was limited to one hour increments. The VE testified that this person could not do any past relevant work or any other work in the economy. The VE explained that a person needs to be able to do tasks for at least two hours at a time. AR 59.

At the conclusion of the hearing, the ALJ left the record open for two weeks to obtain additional records from "Dr. ...


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