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Mamie L. Shelton v. Michael J. Astrue

March 7, 2011

MAMIE L. SHELTON,
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

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Mamie L. Shelton ("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

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed her application for Supplemental Security Income on May 31, 2007, alleging disability beginning on or around April 18, 2007. AR 22-23. Her application was denied initially on July 31, 2007, and on reconsideration in October 2007. AR 40-50. Thereafter, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 51. ALJ Thomas J. Gaye held a hearing on August 10, 2009, and issued an order denying benefits on September 8, 2009. AR 5-13. Plaintiff requested a review of the decision. AR 4. On October 21, 2009, the Appeals Council denied review. AR 1-3.

Hearing Testimony

ALJ Gaye held a hearing on August 10, 2009, in Bakersfield, California. Plaintiff appeared and testified. She was represented by attorney Rosemary Abarca. AR 14-36.

Plaintiff was fifty-one years old on the date of the hearing. AR 19. She graduated from high school and went on to receive an AA degree in business. AR 19.

Plaintiff lives in Bakersfield, California with her forty-five year old brother who is both mentally and physically disabled. AR 18-19. She is her brother's sole caretaker, typically preparing his meals, making sure his bath water is at the proper temperature, laying out his clothing, and tying his shoes to get him ready for his day school with the Association for Retarded Citizens. AR 19, 31-32. She cares for him in the mornings before school, after school, and evenings. AR 32.

In the past, Plaintiff worked for ten years as a reliability specialist in the oil fields where she tracked oil well performance and production. AR 20. The job consisted of driving to the various sites, checking the wells, packing them, taking them apart, and putting them back together. Id. She chose to leave that job when, as a result of a downturn in the economy, she was required to take on more responsibility. Id. Thereafter, Plaintiff provided in-home care for disabled persons until she resigned to take care of her brother. AR 20-21. Plaintiff also provided childcare full time in her home for about four years. AR 21. Finally, her most recent position was in the concession stand at the Rabobank Arena where she worked for one month. AR 21. Plaintiff has been unemployed since she started experiencing vision problems and dizziness while working at the concessions stand. AR 21.

Plaintiff was seen at Kern Medical Center in April 2007 for vision problems, dizziness and a "spinning" sensation. For example, the symptoms were preventing her from grocery shopping. AR 22-23. She was admitted overnight for observation and testing, and diagnosed with vertigo and multiple sclerosis ("MS"). AR 21-22. She accepted the recommended medications to treat MS when the physicians warned her of the possibility of relapse. Additionally, she was having difficulty standing and walking normally. AR 22. At the time of the hearing, Plaintiff had been on the MS medication for one year and reported her symptoms were "getting better." Id. The nature of her current vision problems consist of some involuntary eye movement and decreased vision in her right eye for which she wears prescription glasses. AR 24. Plaintiff is no longer able to read easily due to problems focusing on the lines and letters, and therefore she is unable to concentrate. She is able to spend a total of about half an hour on the computer, for five to ten minutes at a time. AR 30-31. Plaintiff holds an unrestricted driver's license for which she is retested every two years and does frequently drive. AR 24.

Plaintiff experiences an ailment known as foot drop, and therefore has difficulty walking, balancing, and spinning. AR 24-25. Her foot will often drop to the ground unintended. AR 25. She was prescribed an assistive device by a doctor at Kern Medical Center and uses a cane which she needs to help her walk, especially in the afternoons. Id.

In addition, Plaintiff suffers from right hip pain for which she takes Ibuprofen. AR 26. She is only able to stand for five minutes at a time, and also has difficulty sitting for long periods. Id. She is not sure if she would be able to walk for more than a quarter of a mile and has great difficulty climbing stairs. Id.

Plaintiff indicates that two to three times in a typical day, she must rest for fifteen to twenty minutes when she gets fatigued. AR 27. She also suffers from carpal tunnel syndrome ("CTS") in both hands. AR 28. This causes her difficulty lifting and controlling the motion of her hands. Id. Since she began wearing the arm braces that she was prescribed, the condition has improved and she is able to lift ten pounds at a time. As an example, Plaintiff indicated she can lift and carry a ten-pound bag of sugar from the car into her home. AR 29. Surgical intervention has not been recommended for the CTS. Id.

Medical Record

The entire medical record was reviewed by the Court. Those records relevant to the issues on appeal are summarized below.

Kern Medical Center

In or around February 2007, Plaintiff claims to have started experiencing vision problems, dizziness and a "spinning" sensation. AR 131. She went to the emergency room on April 18, 2007, complaining of chest pain, dizziness, and her right eye "not tracking right." AR 189, 191. Plaintiff was admitted overnight for observation and testing, and was found to be mildly obese with mild hypertension, partial nerve palsy, and mild ataxia, a neurological dysfunction in the body. AR 192. Upon release from the hospital, Plaintiff was diagnosed with vertigo, probably secondary to MS, and high blood pressure. AR 131. She was discharged with recommendations to avoid "heavy walking or not to move swiftly around . . . avoid rapid head movements." AR 132. Regarding Plaintiff's vision problems, the diagnoses involved nystagmus, disconjugate eye movement, and intra ocular opthamoplegia. AR 128, 131.

Shortly after the April 18th visit, a diagnosis of MS was confirmed after testing revealed "abnormal synthesis of the gamma globulins in the central nervous system." AR 161. An MRI of Plaintiff's brain revealed "extensive white matter" abnormality. AR 163. Before she was released from the hospital, it was noted that Plaintiff's ability to balance while sitting and standing was good and her gait was fair. AR 171. The examining physician did note that decreased dynamic balance and visual impairment were likely. AR 172.

On May 9, 2007, Plaintiff was prescribed a walking cane, and a low salt diet was recommended. The assessment includes MS, obesity, and high blood pressure. AR 124-125.

On May 29, 2007, Plaintiff was again seen in the neurology department where she complained of headache, vertigo, dizziness, and "room spinning." AR 126. The attending physician noted that Plaintiff reported that her vision seemed to be getting worse and that her symptoms were exacerbated by heat and activity. Id. The physician referred her to the neurology clinic at the next available date, and prescribed Betaseron injections to counteract the progression of MS. Id.

During Plaintiff's June 2007 follow-up visit to the clinic, she reported that was not having any problems with her daily activities. She did not suffer from headaches or dizziness, but did encounter occasional neck pain and "bumping into people." AR 128. She had not yet started her medical treatments for MS, and was still taking Meclizine as prescribed on her initial visit. Id. She was prescribed Lisinopril for her high blood pressure. Id.

On July 25, 2007, Plaintiff was seen for a follow-up visit. AR 199. She reported zero pain, and no problems with performing daily activities. Id. She denied any neurosymptoms, blurry vision, or weakness. Id. Plaintiff reported occasional hip pain when lying down. Id. She had yet to start the Betaseron injections for MS for fear of side effects, and wanted to try taking it only once per week instead of the ...


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