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Jordis Dotson v. Michael J. Astrue

May 16, 2011

JORDIS DOTSON,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT (Doc. 2)

BACKGROUND

Plaintiff Jordis Dotson ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying her application for Supplemental Security Income ("SSI") pursuant to Title XVI of the Social Security Act. 42 U.S.C. § 1383(c)(3). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1

FACTUAL BACKGROUND

Plaintiff was born in 1969, has either a 10th or 12th grade education, and has never worked. (Administrative Record ("AR") 116, 22, 171.) Plaintiff filed a prior SSI application on March 20, 2006, alleging disability due to an oversized foot and glaucoma; the application was denied on July 28, 2006, and Plaintiff did not appeal. (AR 39-50, 55-58.) Plaintiff filed the current application for SSI benefits on June 6, 2007, alleging disability beginning January 1, 2002, for the same ailments. (AR 116-21, 47-54.)

A. Medical Evidence

There are no treating physician records. There are records from two consultative examining physicians and four reviewing physicians. (AR 14, 209-13, 214-18, 219-20, 230-36, 237-43, 244-45.)

On June 10, 2006, in support of Plaintiff's prior SSI application, Plaintiff was seen by Steven Stoltz, M.D. (AR 209-13.) Dr. Stoltz diagnosed Plaintiff with left foot edema/swelling, obesity, and bilateral glaucoma, and indicated the Plaintiff's "main medical issue" centered around "the edema that she has focally in the left foot." (AR 213.) Dr. Stoltz was "unclear" as to the "etiology of the swelling and edema" but nonetheless concluded that Plaintiff "would have no restrictions on sitting activities" and that "[s]tanding for two to four hours in a normal eight hour work day would probably be tolerable but she would need more frequent rest breaks for evaluation*fn2 [sic] of her left leg." (AR 213.) Dr. Stoltz further indicated that Plaintiff "could walk short distances but probably would require the use of her cane" and that "[l]ifting and carrying should be tolerable at ten pounds." (AR 213.)

On July 22, 2006, E.A. Fonte, M.D., reviewed Plaintiff's records and determined that Plaintiff could lift and carry 10 pounds frequently and 20 pounds occasionally, could stand and walk for at least two hours in an eight hour workday, and could sit for about six hours in that same time period. (AR 215.) Plaintiff had no push/pull limitations and was limited to occasional climbing, balancing, stooping, and crawling. (AR 215-16.) No other environmental limitations were assessed.

(AR 214-18.) On February 23, 2007, state agency physician James V. Glaser, M.D. affirmed Dr. Fonte's findings and further determined that Plaintiff had "no severe work restrictions." (AR 228-29.)

On August 15, 2007, Plaintiff was examined by Rustom F. Damania, M.D. in connection with the current SSI application. (AR 231-36.) Dr. Damania diagnosed Plaintiff with obesity, hypertension, bronchial asthma, and bilateral lymphedema. (AR 235.) Dr. Damania determined that Plaintiff could lift 20 pounds occasionally and 10 pounds frequently, could stand and walk two to four hours in an eight-hour day, and could sit for six hours. (AR 236.) He further noted that "[n]o assistive device is necessary for ambulation." (AR 236.) Dr. Damania found no postural or manipulative limitations but noted that due to her edema Plaintiff would have unspecified "workplace limitations." (AR 236.)

On August 27, 2007, R.D. Fast, M.D. reviewed Plaintiff's medical records and opined that Plaintiff could lift and carry 10 pounds, could stand and walk for at least two hours, and could sit for about six hours in an eight-hour work day. (AR 238.) Plaintiff had no other limitations. (AR 237-41.) On March 17, 2008, state agency physician Brian J. Ginsburg, M.D. affirmed the sedentary limitations and noted that Plaintiff had not reported any worsening of her condition. (AR 244-45.)

B. Administrative Hearing

For the current application, the Commissioner denied Plaintiff's application initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 65-68, 72-77, 78.) On July 21, 2009, ALJ Sharon L. Madsen held a hearing in which Plaintiff and a vocational expert ("VE") testified. (AR 17-38.)

1. Plaintiff's Testimony

At the hearing, Plaintiff testified that she had one adult child and lived with a friend who would take her to run errands and to her appointments. (AR 21-22.) Plaintiff did not have a driver's license and did not take the bus. (AR 22.) She stated that she had a 10th grade education, although a prior Medical/Vocational Decision Guide indicated that she had completed high school. (AR 22, 171.) Plaintiff further testified that she could not read or spell but had previously stated on a Disability Report that she could read, write, and understand English. (AR 27, 165.)

Plaintiff testified that she needs help preparing food, getting in and out of the bathtub, getting dressed on some days, and combing her hair. (AR 23.) Plaintiff said she needs help preparing food and was unable to use a microwave, make a sandwich, or pour a bowl of cereal. (AR 23.) Plaintiff did not do any chores or any shopping, had no hobbies, and did not engage in any regular social activity, although she did socialize at a friend's house "every now and then." (AR 23.) Plaintiff described her typical day as either lying in bed or sitting with her feet elevated, trying to watch television. (AR 24.)

Plaintiff testified that her left foot would swell up to "three times the size that it should be" and that "it swells up even more by the day." (AR 24.) Additionally, in the two months prior to the hearing, the swelling had been "transferring" to her right foot. (AR 25.) However, Plaintiff was not receiving any medical care because she had no insurance and was treating her condition by elevating her foot. (AR 25.) Her left foot had been swollen for "like 11 years, maybe more" and she had seen a physician when the problem first started. (AR 25.) Plaintiff testified that the physician told her that the swelling was due to "tissue" not fluid, and that there was "nothing that they can do about it." (AR 25.) Plaintiff's feet were in constant "stabbing pain." (AR 26.) Plaintiff indicated that she also has glaucoma, asthma, and a learning disability. (AR 26-28, 30.) Plaintiff said that she believed she could carry "about a pound," that she could only sit for "[n]o more than five [to] ten seconds at the most," and that she could stand for "five to ten minutes." (AR 28.) Plaintiff said she was able to only walk approximately ten feet. (AR 28.)

2. VE Testimony

VE Judith Najarian testified at the hearing. (AR 32-35.) The ALJ hypothecated to the VE a person of claimant's age, education, and work background who could lift and carry 20 pounds occasionally and 10 pounds frequently; sit, stand, or walk six hours a day; and who required a sit/stand option. (AR 32.) The VE testified that there were positions such as the cashier II, facility rental clerk, and food and beverage order clerk which could accommodate Plaintiff's limitations. (AR 32-33.) The ALJ then hypothecated a person with the same characteristics but who could stand or walk for two to four hours and sit for six hours, without a sit/stand option. The VE testified that there were jobs which would accommodate Plaintiff, including hand packers such as an ampoule sealer and assemblers such as fishing reel assembler. (AR 33-34.) The same positions existed when the ALJ hypothecated a person who had the same limitations but required an assistive device for ambulation. (AR 34.) When the ALJ hypothecated a person with those limitations but with no fine visual acuity, the VE testified that there were no jobs available. (AR 34.)

Plaintiff's counsel questioned the VE and hypothecated a person who could lift and carry 20 pounds occasionally and 10 pounds frequently, and who could sit, stand, or walk six hours a day but required more frequent rest breaks in addition to a break of at least an hour or two a day to elevate her feet. (AR 35.) The VE testified that there were no jobs ...


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