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Dorothy Denise Murray v. Michael J. Astrue

May 16, 2011

DOROTHY DENISE MURRAY,
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 Dorothy Denise Murray ("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 August 1, 2006, alleging disability since December 1, 1991, due to scoliosis, right leg pain and back problems. AR 140-147, 153. After her application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 87, 96, 118. ALJ Christopher Larsen held a hearing on April 17, 2009, and issued a decision denying benefits on June 10, 2009. AR 8-19, 37-69. The Appeals Council denied review on June 4, 2010. AR 3-5.

Hearing Testimony

ALJ Larsen held a hearing on April 17, 2009, in Fresno, California. Plaintiff appeared with her attorney, Melissa Proudian. Vocational expert ("VE") Thomas Dachelet also appeared and testified. AR 37.

Plaintiff testified that she was 39 years old at the time of the hearing. She was five feet, five inches tall and weighed 270 pounds. AR 41-42. Plaintiff lives with her eleven year old daughter. AR 42. She has never had a driver's license and if she needs to go somewhere, she either gets a ride or uses public transportation. Plaintiff completed the tenth grade and received her GED in 1989. AR 43.

Plaintiff last worked in 1991, when she worked at Parks and Recreation for the summer. AR 44. Plaintiff believed that she could not work because she gets depressed when she sees other people doing things that she cannot. She also has scoliosis and rheumatoid arthritis and cannot sit or stand too long. She is always in pain. AR 45. Plaintiff also has problems with asthma, carpal tunnel syndrome and anxiety. AR 45.

Plaintiff explained that the pain is primarily in her lower back. She also has rods and pins in her right leg for injuries sustained in a 1992 car accident. AR 46. Plaintiff's back pain is like "flames" and it is constant. Plaintiff rated her pain at a ten out of ten, with a ten defined as needing to go to the emergency room. She receives shots and medication from her doctor, and last had a shot in her back last month. AR 47-48. The shots do not help. AR 48. She also tried physical therapy and a TENS unit, but they did not help. AR 53. Plaintiff was taking Vicodin, Soma and Neurontin, though the medications only help for about an hour. AR 48. Plaintiff thought that Neurontin makes her short of breath, but it could be from her asthma. AR 49.

Plaintiff estimated that she could sit in a chair for about ten minutes at a time and stand for about ten minutes at a time. AR 50. She did not think that she could walk a quarter of a block and could lift less than ten pounds. Plaintiff also testified that she can't think straight, and she did not know if this was the result of the pain or her medications. AR 51. She could not focus for more than ten minutes. AR 51. She can sometimes bend over, but then she gets stuck. Plaintiff can put on her shirts and her daughter helps her with her pants. AR 52. Plaintiff also has trouble getting in and out of the bathtub, getting off the toilet and getting out of bed. AR 52. She goes up stairs slowly because of the rod in her leg. AR 54.

During the day, Plaintiff lays down for eight to nine hours because she doesn't sleep at night. She tries to take sleeping pills at night, but she just gets right back up. AR 54-55.

Plaintiff's right ankle turns in and is numb. Every other day, she has no feeling in her toes. Plaintiff has to elevate her leg all day while she lays down. AR 55. She also gets short of breath daily if she moves around too much or smells chemicals or cigarettes. AR 56. She uses a nebulizer and inhalers three times a day. AR 56.

Plaintiff also has carpal tunnel syndrome in both hands, but mainly in the right. The area from her thumb to her wrist is constantly numb and she cannot hold things. AR 58-59. The numbness also travels up her right arm. Plaintiff cannot hold anything with her right hand and can lift things with the help of her left hand. AR 60. Plaintiff can hold a toothbrush with her right hand and can zipper a zipper, but she has a numb, painful feeling. AR 61.

Plaintiff has pain in her arms and legs, as well as headaches every other day. AR 61. The headaches last about an hour and Plaintiff takes Extra Strength Tylenol to treat them. AR 61. Plaintiff also suffers from anxiety and depression daily. Plaintiff was receiving mental health treatment, but it did not help. She now only takes the medication from her doctor. The medications makes her feel much better. AR 62-63.

Plaintiff does not cook or clean and she shops using the "buggy." During the day, she just watches television and stays on the telephone. She also goes to church. AR 63.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and work experience. This person could perform light physical exertion, but only if she is allowed to sit or stand at will throughout the workday. This person could never climb ladders, ropes or scaffolds, can occasionally stoop, crouch and climb ramps or stairs and can frequently balance, kneel or crawl. This person must avoid concentrated exposure to fumes, odors, dusts, gases and poor ventilation. The VE testified that this person could perform the full world of unskilled, sedentary work and a diminished world of light work with a sit/stand option. For example, this person could perform the positions of bagger, garment sorter and grader. AR 65-66.

For the second hypothetical, the ALJ asked the VE to assume that in addition to the customary two breaks and a meal period, this person needed additional unscheduled breaks of three to four hours per day. The ALJ testified that this person could not work. AR 66-67.

Medical Record

X-rays of Plaintiff's chest taken on January 30, 2003, revealed a "marked S-type rotoscoliosis of the visualized spine with the upper convexity to the right and the lower convexity to the left." AR 248.

X-rays of Plaintiff's chest taken on November 18, 2003, after Plaintiff complained of chest pain, were negative. AR 473.

From January 2003 through February 2006, Plaintiff was seen by doctors at San Joaquin Medical Center for chest pain, back pain, numbness, headaches, anxiety and depression. AR 233-249.

X-rays of Plaintiff's right leg taken on May 24, 2005, showed a healed fracture in the mid- shaft of the tibia and fibula. There were mild hypertrophic changes of the articular margins. AR 249.

On October 17, 2005, Carlos L. Cordoba, M.D., completed a Verification of Physical/Mental Incapacity for General Assistance. He opined that Plaintiff could not perform work. She had a partial capacity to lift up to ten pounds and continuously sit and stand. He opined that this disability was permanent. AR 241.

Plaintiff began treating with Nicholas Orme, M.D., on October 27, 2006. AR 446. During the examination, Plaintiff had decreased range of motion in her back, pain and swelling in her bones/joints and rhonci sounds in her lungs. She was prescribed Vicodin and Soma, as well as other medications for other ailments. AR 446.

On November 30, 2006, Plaintiff saw Rustom F. Damania, M.D., for a consultive physical examination. Plaintiff complained of constant back pain because of scoliosis and a 1979 car accident, as well as right leg pain after a fracture in 1992. She also complained that all of her joints hurt and ...


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