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Jeannie . Mann v. Michael J. Astrue

March 18, 2011

JEANNIE . MANN,
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'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Jeannie L. Mann ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits 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

Plaintiff filed her application on March 16, 2007, alleging disability since June 26, 2005, due to chronic muscle pain in her upper and lower back, arthritis and degenerative disc disease. AR 125-127, 140-147. After her application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 55-62, 63-68, 82. ALJ Michael Haubner held a hearing on September 2, 2008, and issued a decision denying benefits on December 5, 2008. AR 13-21, 22-54. The Appeals Council denied review on February 19, 2010. AR 1-4.

Hearing Testimony

ALJ Haubner held a hearing on September 2, 2008, in Fresno, California. Plaintiff appeared with her attorney, Charles Orn. Vocational expert ("VE") Jose Chaparro also appeared and testified. AR 22.

Plaintiff testified that she was born in 1955 and received her GED. She was trained to drive a school bus in 1997. AR 29. Plaintiff stated that she last worked around June 26, 2005, and that she has not looked for work since that time. AR 30.

Plaintiff lives with her husband, who is not working and receiving workers' compensation, and her son, 17, and daughter, 20. AR 30. Plaintiff is able to care for her personal needs, prepare simple meals once a day and do dishes once a day. She cooks twice a week and goes grocery shopping once a week. AR 31. She tries to sweep, but it hurts too much. Plaintiff does not take out the trash, vacuum, or mop. She dusts once a week and does laundry every day. AR 32-33. Plaintiff has ten cats and four dogs and does not take care of them. AR 34.

Plaintiff cleans her kitchen every other day, and thought that she cleaned the bathrooms once every six months. She talks on the phone every day and visits people outside of her house every day. AR 35. Plaintiff likes to crochet and knit and does it for about an hour, once a week. AR 36. She watches television for about two hours a day and reads about 20 minutes, twice a week. AR 36.

Plaintiff testified that in addition to multiple level degenerative joint disease in her lumbar spine, facette arthropathy and lumbar radiculopathy, she has a problem with her right neck, shoulder and arm. AR 36-37. She had surgery on her right arm in 1979 and now has arthritis. AR 37.

Plaintiff has constant pain in her back, her right leg and foot, her right arm and the right side of her foot. AR 41. She rated her leg pain at a six out of ten, her back pain at a seven or eight, her right arm pain at a fix or six, her right foot pain at a seven and her right-sided neck pain at a seven. To relieve the pain, her husband rubs her back, arm and shoulder and this sometimes helps. AR 41-42. She also takes medication for pain and uses ice. AR 42. She testified that she could only concentrate for 30 minutes because of the pain. AR 42.

Plaintiff testified that she follows all treatment recommendations and takes all medications. AR 38. She is 5 feet, 7 inches tall and weighs 245 pounds. Doctors have told her to lose weight and she watches what she eats to try and lose weight. She also does stretching exercises for 20 minutes a day. AR 38. Plaintiff indicated that she was about 70 percent compliant with her weight loss diet, though she has lost weight. AR 38-39.

Plaintiff estimated that she could carry about five pounds, stand for 20 minutes before needing to sit, and sit for about 20 minutes before needing to stand. Plaintiff could walk a few blocks before needing to rest. She also has trouble reaching, but combs her own hair and brushes her teeth. Plaintiff thought that she could reach over her right shoulder with her right arm occasionally. AR 39-40. She lays down for one hour every day. AR 40.

When questioned by her attorney, Plaintiff testified that she also gets headaches four times a week, each lasting for about four hours. AR 50-51. Her husband rubs her neck and shoulders and she takes Tylenol, which helps a little bit. The pain in her shoulder goes into her right hand and her little finger cramps if she tries to do too much with her hand. AR 51-52. For example, if she peels peaches, the two middle fingers on her right hand go numb. They also go numb when she sleeps. Plaintiff also had to stand up during the hearing because she was having a hard time with her lower back. AR 52. The drive to the hearing was about 90 minutes and Plaintiff had difficulty sitting for that long. AR 53.

For the first hypothetical question, the ALJ asked the VE to assume a person of Plaintiff's age, education and experience. This person could lift 50 pounds occasionally, 25 pounds frequently, and had no further limitations. The VE testified that this person could perform both of Plaintiff's past positions as a school bus driver, both as she performed it and as it is generally performed, and landfill operator, as generally performed. AR 45. This person could also perform the world of unskilled medium, light and sedentary work. AR 46.

For the second hypothetical, the ALJ asked the VE to assume that this person could lift and carry 20 pounds occasionally, 10 pounds frequently, stand and/or walk about six hours and sit for about six hours. This person could occasionally climb ramps and stairs, ladders, ropes and scaffolds, occasionally crouch and crawl and frequently balance, stoop and kneel. The VE testified that this person could not perform Plaintiff's past work but could perform a majority of sedentary and light unskilled work. AR 46-47. Using Plaintiff's transferable skills, this person could perform the light jobs of mobile lounge driver and three occupations within the chauffer driver title. AR 47.

For the third hypothetical, the ALJ asked the VE to assume that this person could occasionally carry zero to ten pounds and would have "significant limitations" in repetitive reaching, handling, fingering and lifting. This person should avoid temperature extremes, heights, pulling, pushing, stooping, kneeling and bending. This person could perform a low stress job but would be absent more than three times per month. The VE testified that this person could not perform Plaintiff's past relevant work or any other work in the national economy. AR 47-48.

For the fourth hypothetical, the ALJ asked the VE to assume that this person could lift less than ten pounds, sit for 20 to 30 minutes, stand for 15 to 30 minutes and walk for 5 to 15 minutes. This person could not perform bending or squatting and would be limited to four hours of work per day. The VE testified that this person could not perform any work. AR 48-49.

For the fifth hypothetical, the ALJ asked the VE to assume that this person could not lift, could sit for 15 to 30 minutes, stand for 15 to 30 minutes and walk for 15 to 30 minutes. This person could not bend or squat and needs to change position frequently. The VE testified that this person could not work. AR 50.

For the sixth hypothetical, the ALJ asked the VE to assume that this person could lift and carry less than 10 pounds, stand and walk for less than two hours and sit for less than six hours with periodic alternation of sitting and standing. AR 49. This person has limited pushing and pulling abilities in the lower extremities, can occasionally climb ladders, ropes, scaffolds, ramps and stairs and can occasionally balance. This person could never kneel, crouch, crawl or stoop. This person could perform occasional reaching, frequent handling, constant fingering and constant feeling. The VE testified that this person could not perform any work. AR 49-50.

For the final hypothetical, the ALJ asked the VE to assume that this person could lift and carry five pounds, stand for 20 minutes, sit for 20 minutes and walk two blocks. This person could occasionally reach above shoulder level with the right dominant, upper extremity. This person can concentrate in 30 minute increments and needs a one-hour unscheduled break per day. The VE testified that this person could not work. AR 50.

Medical Record

An MRI of Plaintiff's lumbar spine performed on February 23, 2005, showed multilevel moderate degenerative disc disease associated with disc protrusion at L3-4, L4-5 and L5-S1. There was no disc herniation or significant bony spinal stenosis. AR 197.

On July 2, 2005, Plaintiff saw Joerg Schuller, M.D., for lower back pain. She also complained of intermittent right leg numbness. Her pain had been increasing for the past three weeks, starting on June 6. Plaintiff could not perform modified duty. On examination, deep tendon reflexes were absent and straight leg raising was negative. He prescribed Soma and Mobic and referred Plaintiff to physical therapy. AR 254.

Plaintiff saw Dr. Schuller on July 20, 2005 and stated that she wanted to go back to work and that her pain had decreased. Prolonged sitting/driving (for more than two hours) increased her pain. Dr. Schuller released Plaintiff for modified work, with no lifting, sitting for no more than 15-30 minutes per hour, standing no more than 15-30 minutes per hour and ambulating for no more than 15-30 minutes per hour. Plaintiff could not bend or squat and needed to change positions frequently. AR 253.

On July 25, 2005, Plaintiff was seen for a physical therapy initial evaluation. Her date of injury was listed as March 23, 2004, but Plaintiff stated that she first experienced pain on March 1, 2004. She attempted physical therapy last year but could not continue because of intolerable pain. Plaintiff reported that she could not stand for more than 15 minutes and could not walk for more than 500 feet. She was using pain medication. Plaintiff entered the clinic in moderate visible distress and her movement patterns and gait were slow and cautious. She displayed a limp, with increased stance time on the left lower extremity. Examination revealed weakness of the L5 and S1 dermatomes and generalized weakness of the bilateral lower extremities. She had tenderness with palpation over the entire lumbar spine and straight leg raising was positive on the right beyond 30 degrees. The therapist noted that Plaintiff's subjective information and the objective findings were consistent with the stated diagnosis of chronic low back pain and recommended therapy three times per week, for four weeks. AR 191-192.

On August 5, 2005, Plaintiff returned to Dr. Schuller and complained of fluctuating back pain. Plaintiff was released to modified work, with lifting no more than 10 pounds, no driving, no climbing, and no working over four hours a day. AR 252.

On August 23, 2005, Plaintiff saw neurosurgeon David Bybee, M.D., for a workers' compensation examination. She complained of low back pain radiating into the right leg and numbness in the right leg. Plaintiff reported that she was injured at work on March 13, 2004, when she was climbing and pulling equipment. On examination, she was in no acute distress and walked without a gait disturbance. Straight leg raising was negative bilaterally, lumbar flexion was to 90 degrees and extension was to 15 degrees with pain. Plaintiff had diminished pin sensation in the right medial thigh and foreleg and right anterior thigh. Right knee reflex was absent. Dr. Bybee reviewed Plaintiff's February 2005 x-ray and diagnosed right lumbar radiculopathy secondary to possible herniation at L3-4. AR 201.

On September 12, 2005, Dr. Schuller noted that Dr. Bybee recommended "no work."

Plaintiff also complained of an increase in pain and right leg weakness. AR 251.

On October 4, 2005, a lumbar myelogram showed small-to-moderate central disc protrusion at L3-4, L4-5 and L5-S1 that caused minimal ...


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