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Sheila D. Montgomery v. Michael J. Astrue

May 6, 2011

SHEILA D. MONTGOMERY,
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 Sheila D. Montgomery ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income 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 Dennis L. Beck, United States Magistrate Judge.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed her application on February 9, 2006, alleging disability since December 12, 2000, due to back problems, diabetes, high blood pressure, leg and foot pain, arthritis and sleeplessness. AR 109-113, 126-133. After her application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 57-64, 65-69, 86. ALJ Michael J. Haubner held a hearing on January 8, 2008, and issued a decision denying benefits on April 23, 2008. AR 12-21, 22-55. The Appeals Council denied review on June 25, 2010. AR 2-4.

Hearing Testimony

ALJ Haubner held a hearing on January 8, 2008, in Fresno, California. Plaintiff appeared with her attorney, Jeffrey Milam. Vocational expert ("VE") Cheryl Chandler also appeared and testified. AR 22.

Plaintiff testified that she was born in 1959 and completed the seventh grade. She did not get her GED and had no further training. AR 28. In 1995 and 1996, Plaintiff worked with mentally handicapped adults and in 1999, she provided home health care for her father. AR 29. She last looked for work in 2000. AR 30.

Plaintiff lives with her husband, who receives disability for both a physical and mental impairment. AR 30. Plaintiff has a driver's license without restrictions and she drives about once a week. AR 30-31. Plaintiff can brush her teeth, bathe herself and put on make-up, but cannot get dressed without help. AR 31-32. Her husband helps her put her bra and shirt on. AR 32. Plaintiff also prepares meals three times a week and does simple meal preparation two to three times a day. AR 32. She cleans up after herself or does dishes once a day, though she has to sit down while she clean them. AR 32, 50. Plaintiff feeds her three dogs, lets them outside and gives them water. AR 33. She does not do yard work or take out the trash. AR 33. Plaintiff does not make her bed but changes the sheets once every couple of weeks. AR 33. She does laundry once a day and has been grocery shopping twice in the last six months. AR 34. Plaintiff talks on the phone three times a day and leaves her house maybe twice a week. AR 35. She is able to balance her checking account. Plaintiff estimated that she watches television one to two hours a day. AR 36.

Plaintiff has stopped swimming, walking, playing with her grandchildren and cleaning her house because of her condition. AR 49-50.

Plaintiff testified that she has a history of low back pain, diabetes, high blood pressure, neuropathy and degenerative disc disease. She has pain and tingling in both legs. AR 37. Plaintiff's neuropathy affects her legs and hands, though she hasn't had any treatment or testing for her hands. AR 50-51. She also gets cramps in her legs everyday that come and go, with an average of two a day lasting for five minutes. AR 51, 53.

Plaintiff thought that she could lift and carry five to ten pounds, stand for ten minutes at a time and sit for ten minutes at a time. AR 37. She thought that she could walk for about five minutes. AR 38. Plaintiff uses a cane every time she walks, even in the house. AR 40. During the day, she needs to lay down one to two hours. Plaintiff also has trouble concentrating and thought that she could focus on one thing for about ten minutes. AR 38. She thought that she could occasionally bend. AR 39.

Plaintiff is five feet, eight inches tall and weighs 240 pounds. She is fully compliant with her treatment and medications. Her doctors have told her to lose weight and put her on a specific diet, though she follows the diet only eighty percent of the time. AR 39-40. She also explained that even though she told her doctor that she needs to lay down, her doctor told her to keep active because of her diabetes. AR 49.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and experience. This person could lift and carry ten pounds occasionally and ten pounds frequently. The VE testified that this person could perform Plaintiff's past work as a case aide or group home worker. This person could also perform the world of light and sedentary unskilled work. AR 42-43.

For the second hypothetical, the ALJ asked the VE to assume that this person could lift twenty pounds occasionally and ten pounds frequently, and needed to avoid concentrated exposure to heights and uneven terrain. The VE testified that this person could perform Plaintiff's past work as a case aid, and slightly less than the full world of light and unskilled sedentary work. Such positions included food prep worker, cafeteria attendant and cashier. AR 43-44.

For the third hypothetical, the ALJ asked the VE to assume that this person could sit for eight hours at a time and stand and walk for two to four hours at a time. This person could not perform Plaintiff's past work but could perform the world of unskilled sedentary work. AR 44-45.

For the final hypothetical, the ALJ asked the VE to assume that this person could lift and carry five to ten pounds, stand for ten minutes at a time, sit for ten minutes at a time, and walk for five minutes at a time. This person would have to lay down for one to two hours during the day and could concentrate in ten minute increments. This person can occasionally stoop and needs a cane to ambulate. The VE testified that this person could not perform any work. AR 45.

Plaintiff's attorney asked the VE to add the need for a cane to the third hypothetical. The VE testified that this would not ...


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