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Lisa Hansen v. Michael J. Astrue

June 8, 2011

LISA HANSEN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
DEFENDANT.



The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

I. INTRODUCTION

Plaintiff Lisa Hansen ("Plaintiff") brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration (hereinafter the "Commissioner" or the "Agency") denying her application for Social Security Income benefits ("SSI"). The parties consented to the jurisdiction of the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the decision of the Agency is AFFIRMED.

II. PROCEDURAL HISTORY

Plaintiff filed an application for SSI on July 30, 2007, alleging a disability onset of January 30, 2007, due to bilateral knee pain and related limitations, diabetes, obesity, and hypertension. (Administrative Record ("AR") 28, 92-96, 110-118, 122-133, 139-147). The Agency denied Plaintiff's claim on October 12, 2007, as well as at the reconsideration level on January 8, 2008 Plaintiff requested a hearing before an Administrative Law Judge. (AR 44-55).

Plaintiff's hearing was held on July 21, 2009 before Administrative Law Judge Mary L. Everstine (the "ALJ"). (AR 24-42). On August 26, 2009, the ALJ issued an unfavorable decision. (AR 12-22, 343). Plaintiff appealed. (AR 343-45). The Appeals Council denied her request for review in a notice dated February 26, 2010.*fn1 (AR 4-11, 343). Plaintiff requested an extension for filing a civil action in federal court. (AR 3). On June 23, 2010, the Appeals Council granted a thirty-day extension. (AR 1-2). Plaintiff commenced the instant civil action on July 13, 2010. //

III. FACTUAL BACKGROUND

Plaintiff was born on April 21, 1962, has a twelfth--grade education, and speaks English. (AR 28-29, 117, 119, 343). Prior to onset of the alleged impairments, Plaintiff worked as a forklift operator and industrial electrician. (AR 40-41, 102). Plaintiff asserts that she is disabled due to insulin dependent diabetes mellitus, moderate to morbid obesity and bilateral knee arthritis. (AR 111, 139-47, 343-45).

A. Plaintiff's Medical History

Plaintiff fractured her right ankle on January 29, 2007 while walking her horse.*fn2 (AR 111, 172).*fn3 Plaintiff alleges that as a result of the fracture, her "[k]nees became further injured and inflamed from the jarring of walking in crutches." (AR 111). In May and June 2007, Plaintiff underwent a series of injections to her knees. (AR 184-86).

In June 2007, Plaintiff was found to be overweight (Class III obesity) and bariatric surgery was scheduled. (AR 173, 181). In September 2007, diabetes Type 2 and hypertension were reported. (AR 173-74). On November 8, 2007, Plaintiff underwent gastric bypass surgery. (AR 37, 164). Even though Plaintiff lost ninety pounds following her successful gastric bypass surgery, she asserted that she still suffered from knee pain. (Id.).

B. Examining Sources

1. Martin Bean, P.A.

On January 30, 2007, Plaintiff visited Martin Bean, P.A. ("Dr. Bean"), for treatment for her fractured right ankle. (AR 193). Dr. Bean's Progress Note states: "Right ankle lateral malleolus fracture with medical clear space changes." (Id.). Dr. Bean noted that Plaintiff's fracture had some swelling and tenderness and that Plaintiff experienced mild discomfort. (Id.). Dr. Bean placed Plaintiff in a short-leg cast and kept her "nonweight bearing." (Id.).

In an February 7, 2007 Progress Note, Dr. Bean reported that Plaintiff "presents today for follow-up x-rays of her right ankle lateral malleolus fracture with some medical clear space changes." (AR 192). In a February 15, 2007 Progress Note, Dr. Bean reported that x-rays of Plaintiff's fracture showed that it was in an excellent position and that "she has full neocirculatory function and good cast fit." (AR 191).

In a March 12, 2007 Progress Note, Dr. Bean reported that Plaintiff's right ankle was "nearly fully healed, but [did] still have some mild residual discomfort." (AR 190). In a March 13, 2007 Progress Note, Dr. Bean reported that Plaintiff's right ankle had "healed in excellent position." (AR 189). In a March 29, 2007 Progress Note, Dr. Bean reported that "[Plaintiff] has residual swelling and stiffness." (AR 188). In a April 26, 2007 Progress Note, Dr. Bean reported that Plaintiff had experienced significant improvement in terms of discomfort. (AR 187). Dr. Bean reported: "The fracture is stable and nontender. [Plaintiff] is able to bear weight and walk more comfortably." (Id.).

On May 24 and 31, 2007, Plaintiff visited Dr. Bean for bilateral knee Hyalgan injections. (AR 185-86). On May 24, 2007, Dr. Bean noted that Plaintiff's right ankle is "healing with decreased pain and increased range of motion." (AR 185). Dr. Bean reported: "The right ankle is improved dramatically and is no longer a significant issue." (Id.). Thereafter, on May 24, 2007, "a solution of Hyalgan was instilled in [Plaintiff's] bilateral knees without complication or difficulty with post injection teaching given." (Id.). On May 31, 2007, Dr. Bean reported that Plaintiff had responded well to the first injection and seemed to tolerate the second injection, administered on that day, as well. (AR 186).

On June 7, 2007, Plaintiff visited Dr. Bean for her third bilateral knee Hyalgan injection for her chondromalacia patella and osteoarthritis of the knees. (AR 184). In a June 7, 2007 Progress Note, Dr. Bean reported: "a solution of Hyalgan was instilled in the bilateral knees without complication or difficulty." (Id.)

2. Christopher Ryan, M.D.

On May 21, 2007, Plaintiff's treating physician, Christopher Ryan, M.D. ("Dr. Ryan"), from the Sansum Santa Barbara Medical Clinic, reported in a Progress Note that Plaintiff had severe arthritis of her knees. (AR 171). Even though she had steroid injections, Dr. Ryan noted: "[Plaintiff] is still having significant pain and limitations, unable to do her job as an electrician." (Id.). Dr. Ryan also stated that "[Plaintiff] is alert, in no acute distress. Remainder of exam is deferred." (Id.).

On May 14, 2008, Dr. Ryan conducted a "Form: Diabetes Mellitus Residual Functional Capacity Questionnaire." (AR 218-221). In that form, Dr. Ryan reported that he had seen Plaintiff since June 2003, and that her diagnoses was "IDDM, [without] morbid obesity, [and] severe arthritis [to both] knees." (AR 218). Dr. Ryan noted that Plaintiff would likely be absent from work for more than four days per month. (AR 221). In an accompanying Progress Note, Dr. Ryan reported that Plaintiff "occasionally has some sharp pain on the left [knee] consistent with her previous meniscal tear. She is considering a scope with Dr. Gainor." (AR 332). Dr. Ryan also reported that Plaintiff suffered from arthritis of multiple joints and morbid obesity in contrast to his finding that she was not morbidly obese. (AR 333).

On March 3, 2009, Dr. Ryan reported that the severity of Plaintiff's impairments met the requirements of Section 1.02 of the Listing of Impairments (the "Listing"), set forth at 20 C.F.R. Part 404, Subpart P, Appendix 1, due to severe bilateral knee chondromalacia. (AR 300-01). Dr. Ryan stated that Plaintiff has a major dysfunction of joints, as well as chronic pain. (AR 300). Further, Dr. Ryan noted that Plaintiff's knee problems preclude her from ambulating well. (Id.).

3. Daniel Berger, M.D.

On February 19, 2007, May 21, 2007, June 12, 2007, and July 31, 2007, Plaintiff visited Daniel Berger, M.D. ("Dr. Berger"), for treatment for her Type 2 diabetes mellitus. (AR 175-80, 181-83). On February 19, 2007, Dr. Berger reported that Plaintiff had "recently sustained a right ankle fracture approximately three weeks ago after falling." (AR 179). On May 21, 2007, Dr. Berger reported that Plaintiff was interested in gastric bypass surgery. (AR 177). On June 12, 2007, Dr. Berger and Plaintiff discussed the drug Avandia. (AR 182). On July 31, 2007, Dr. Berger reported that Plaintiff's condition had improved. (AR 175).

On January 6, 2009, March 10, 2009 and April 28, 2009, Plaintiff visited Dr. Berger. (AR 302, 312, 316). On January 6, 2009, Dr. Berger noted that Plaintiff had undergone the gastric bypass surgery, lost ninety pounds and was "overall doing well." (AR 316). However, Plaintiff's blood sugar control remained poor. (Id.). On January 15, 2009, Dr. Berger again observed that Plaintiff lost ninety pounds following the gastric bypass surgery, and that her weight was now stable. (AR 314). On March 10, 2009, Dr. Berger reported that despite the gastric bypass surgery, Plaintiff's diabetes was not resolved, and he recommended that she transition to insulin pump therapy. (AR 312).

4. John W. Gainor, M.D.

On June 19, 2007, before her gastric bypass surgery, Plaintiff visited John W. Gainor, M.D. ("Dr. Gainor"). (AR 181, 290). Dr. Gainor diagnosed Plaintiff with chrondromalacia knee, bilateral. (Id.).

5. Keith Quint, M.D.

On October 3, 2007, State agency medical consultant, Keith Quint, M.D. ("Dr. Quint") examined Plaintiff. (AR 194-198). Dr. Quint reported that Plaintiff was limited to lifting and carrying ten pounds frequently and twenty pounds occasionally. (AR 195). Dr. Quint also reported that Plaintiff would be limited to occasionally kneeling, crouching, crawling, and climbing ramps/stairs, and was precluded from climbing ladders/ropes/scaffolding. (AR 196). Dr. Quint found that Plaintiff should avoid concentrated exposure to heights and uneven terrain. (AR 197).

6. Chantal Gariepy, R.D., C.D.E.

On June 15, 2007, Chantal Gariepy, R.D., C.D.E. ("Gariepy") evaluated Plaintiff for gastric bypass weight loss surgery. (AR 257). Gariepy noted that Plaintiff "rides her horse [three to six] times per week." (AR 258).

7. Gerri French, M.S., R.D., C.D.E.

On October 7, 2008, Gerri French, M.S., R.D., C.D.E. (" French") evaluated Plaintiff. (AR 278). French reported that Plaintiff's activities were "[l]imited because she needs knee replacements. She does ride horses a bit and tries to do the best she can, but she does have some limitations. Surgery is pending." (Id.).

C. Consultative Evaluation

1. Juliane Tran, M.D.

On December 16, 2007, consultative examiner Juliane Tran, M.D. ("Dr. Tran") conducted a comprehensive orthopedic evaluation of Plaintiff. (AR 205). Dr. Tran found:

[Plaintiff] is mildly to moderate[ly] obese. She ambulates to the exam room with slow gait. She used a cane. She seems to be comfortable with sitting. She is able to get on and off the exam table but slowly. General mobility is slow and guarded. It is uncertain if she has painful behavior during the knee exam.

(AR 206). Dr. Tran found that Plaintiff probably has "degenerative joint disease," but that there was "[n]o evidence of knee instability." (AR 208). Dr. Tran further reported:

[Plaintiff] has restriction of knee range of motion. It is unclear whether she has low pain threshold or not. It is unclear if she has maximum effort during the examination. She does have restriction with knee range of motion. Her gait is mildly antalgic. She has knee joint pain.

(Id.).

Based on this examination, Dr. Tran concluded that Plaintiff "would be restricted with standing, walking no more than six hours a day or activities involving frequent bending, stooping, kneeling or crouching." (AR 208). Dr. Tran also explained that Plaintiff "may be restricted with frequent negotiating steps, stairs or uneven terrain or activities involving frequent climbing or balancing activities but not occasional." (Id.). Finally, Dr. Tran reported that Plaintiff "would be restricted with lifting no more than [twenty-five] pounds occasionally or [ten] pounds frequently." (Id.).

D. Vocational Expert's Testimony

Elizabeth Cerezo-Donnelly, an impartial vocational expert ("VE"), testified on July 21, 2009. (AR 15, 40-42). The ALJ provided the following hypothetical question to the VE:

Assume a hypothetical individual who's a younger individual with a high school education, the same past work experience, who retains the residual functional capacity for sedentary exertional work as defined in the Dictionary of Occupational Titles and Social Security regulations, but should avoid any working at heights or unprotected, unprotected heights, excuse me, or operation of hazardous machinery and when walking or standing requires a cane for balance. That precludes the past work.

(AR 41). The ALJ then posed the following question to the VE: "Are there jobs that could accommodate those limitations that are sedentary with no heights, hazardous machinery and a cane when standing or walking?" (AR 41). The VE responded:

Yes. For example, a final assembler in the optical goods industry. It's an unskilled, sedentary job. The DOT code is 713.687-018. In California there are approximately 30,000 positions and in the United States there are approximately 328,000. Another example is a telephone order clerk, with the beverage industry, such as at a hotel or restaurant.

It's unskilled and sedentary. The DOT code is 209.567-014. In California there are 19,450 jobs, in the U.S., there are approximately 232,000.

(AR 41). The VE confirmed that the jobs would not accommodate absenteeism more than one day per month. (AR 41-42). The VE also concluded that these job would be ruled out "[i]f a person was unable to sit for prolonged periods of time without raising their legs to waist level." (AR 42).

E. Lay Witness Testimony

1. Tom Hansen

On September 15, 2009, Tom Hansen ("Hansen"), Plaintiff's husband, submitted a letter. (AR 341). Hansen explained that "[t]he purpose of [his] letter is to dispute some of the conclusions found in the decision made by the [ALJ]." (Id.). Hansen stated: "It seems that there is an issue on whether or not my wife still rides horses and her credibility surrounding that issue." (Id.). Hansen explained that Plaintiff "was able to enjoy her hobbies riding horses on a regular basis, with some discomfort, until around January 2006." (Id.). Hansen claimed that starting in January 2006, Plaintiff's riding "started to tail off because of severe pain in her knees." (Id.). Hansen further alleged that "[i]n January ...


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