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Glenda Brown v. Michael J. Astrue

July 5, 2011

GLENDA BROWN, 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

FINDINGS AND RECOMMENDATION REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Glenda Brown ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for disability insurance benefits and supplemental security income pursuant to Titles II and 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 Magistrate Judge for Findings and Recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed her applications on June 30, 2005, alleging disability since June 16, 2003, due to a back and neck injury and arm and leg pain. AR 76-78, 174-181. After her applications were denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 41, 42, 43, 498, 499, 504. ALJ Michael J. Haubner held a hearing on July 12, 2007, and issued a decision denying benefits on August 24, 2007. AR 15-24, 509-552. The Appeals Council denied review on May 14, 2010. AR 6-9.

Hearing Testimony

ALJ Haubner held a hearing on July 12, 2007, in Fresno, California. Plaintiff appeared with her attorney, Charles Oren. Vocational expert ("VE") Judith Najarian also appeared and testified. AR 509.

Plaintiff testified that she was born in 1950 and completed the twelfth grade. AR 517-518. She alleges that she became disabled on June 16, 2003, the day she last worked, but she also looked for work in January 2004. Plaintiff last worked for seven months in 2003 as an in-home care aide. AR 518. She also worked for three months in 2001as an in-home care aide and nine months in 1998 at a recycling center. Plaintiff also worked as an in-home care aide in 1996 and 1993. AR 519.

Plaintiff lives with her son, who is 37, and her three grandchildren, ages 17, 15 and 8. Plaintiff is home alone with her grandchildren about 10 hours a day while her son works. AR 520. She does not have a driver's license and does not drive. Plaintiff gets a ride or uses the bus to get around. She is able to care for her personal needs and prepares simple meals about once a day. AR 521. She does dishes once a day and last did laundry three years ago. Plaintiff does not go shopping for groceries. AR 522. Plaintiff talks on the phone twice a day and visits with people outside of her home once a day. She does not dust furniture, take out the trash, sweep or vacuum, but cleans the kitchen once a day. AR 523-524. Plaintiff watches television about two hours a day. AR 524-525.

Plaintiff testified that she has constant pain in her back and rated it as a 7 out of 10. AR 525-526. She also has constant pain in her left leg and rated it as a seven. Plaintiff takes medicine to relieve the pain. AR 526. Plaintiff testified that she is fully compliant with her treatment. She continues to smoke cigarettes though doctors told her to quit in 2001. AR 526. Plaintiff weighs 212 pounds and doctors have told her to lose weight. She follows her weight loss diet 100 percent and has lost eight pounds in the last year. Plaintiff was also told to exercise, but she does not do so. AR 527. Plaintiff does not wear glasses all the time and has never seen an eye doctor for glasses, although she has problems seeing. She wears glasses from the drug store to read. AR 527-528.

Plaintiff walks across the street twice a week. She thought that she could walk a half block before needing to rest and stand for 20 minutes. Plaintiff thought that she could sit for 20 to 25 minutes at a time and could pick up about 15 pounds. AR 529-530. Plaintiff also has difficulty concentrating because of pain and thought that she could focus for 15 minutes at a time. She has to lay down three times during the day, for an hour each time, because of pain. AR 530. During an eight hour period, Plaintiff thought she would have to lay down for two hours. AR 531.

When questioned by her attorney, Plaintiff explained that for the past year, she has had problems with her hands cramping up when she does anything. Her hands stay cramped for about an hour before eventually loosening up. She estimated that her hands cramp for a total of three hours during the day and explained that the cramping is worse as she uses her hands more. AR 546-547. The cramping causes her to drop things daily. AR 550. She thought that she could grip or grasp something for about two minutes before needing to rest both hands for about 10 minutes. AR 550-551. Plaintiff has told her doctors about the cramping about five times. AR 548.

Plaintiff also has a problem with pain in her right knee and it hurts when she walks or steps up. AR 549.

Plaintiff takes Zyprexa, which makes her feel suicidal and more depressed. She has been referred to mental health specialist and has an upcoming appointment. AR 548.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and experience. This person could sit for one hour at a time, walk for one block at a time and up to three hours total, and stand for 25 minutes at a time and up to three hours total. This person could occasionally bend, squat, climb and twist and could never kneel or crawl. This person can constantly manipulate and reach and can occasionally lift/carry 11 to 25 pounds. The VE testified that this person could not perform Plaintiff's past relevant work but could perform some light, unskilled work. For example, this person could perform the positions of cashier, counter clerk and sales attendant. AR 536-537.

For the second hypothetical, the ALJ asked the VE to assume a person who could not lift more than 20 pounds for a third of the day. The VE testified that this person could not perform Plaintiff's past work but could perform the positions of cashier, counter clerk and sales attendant. AR 537.

For the third hypothetical, the ALJ asked the VE to assume a person who could lift and carry 20 pounds occasionally, 10 pounds frequently, and frequently climb ramps and stairs. This person could never climb ladders, ropes or scaffolds. This person could occasionally stoop and crouch but had to avoid repetitive bending, stooping and twisting. This person could not perform Plaintiff's past work but could perform the positions of cashier, counter clerk and sales attendant. AR 537-538.

For the fourth hypothetical, the ALJ asked the VE to assume a person who needed to avoid bending, and lifting, pushing or pulling more than 25 pounds. This person could not perform Plaintiff's past relevant work but could perform sedentary, unskilled work. AR 538.

For the fifth hypothetical, the ALJ asked the VE to assume a person who could lift 50 pounds occasionally, 25 pounds frequently, sit/stand/walk for six hours a day and infrequently squat, kneel and climb stairs. This person could not use the left, nondominant upper extremity above shoulder level and could not lift above shoulder level. This person could not perform repetitive motions above shoulder level with the left upper extremity and could not perform any heavy lifting or strenuous pushing or pulling with the left hand. This person could not perform Plaintiff's past relevant work but could perform medium, unskilled work. For example, this person could perform the positions of grocery bagger, conveyor off-bearer and floor attendant. AR 539-541.

For the sixth hypothetical, the ALJ asked the VE to assume a person who could lift and carry 50 pounds occasionally, 25 pounds frequently and stand and walk for six hours each. This person can sit without restriction but could not perform frequent bending, stooping, crouching or squatting. This person also had slight visual limitations, but could avoid hazards and distinguish smaller objects at arms length. The VE testified that this person could not perform Plaintiff's past work but could perform the medium positions of grocery bagger, conveyor off-bearer and floor attendant. AR 542-543.

For the seventh hypothetical, the ALJ asked the VE to assume a person who could perform full-time medium work. The VE testified that this person could not perform Plaintiff's past work but could perform medium positions of grocery bagger, conveyor off-bearer and floor attendant. AR 544.

For the eighth hypothetical, the ALJ asked the VE to assume a person who lost 50 percent of pre-injury capacity for bending, stooping, lifting, pushing, pulling, climbing and other activities involving comparable physical effort. This person could not perform prolonged stationary positioning, sitting, standing or walking. The VE could not perform Plaintiff's past work but could perform sedentary, unskilled work. AR 544-545.

For the ninth hypothetical, the ALJ asked the VE to assume a person who could lift and carry 15 pounds, walk half a block at a time, stand for 20 minutes at a time and concentrate in 15 minute increments. This person would need to take two one-hour unscheduled breaks. The VE testified that this person could not perform any work. AR 545-546.

If this person could not grip or grasp for more than two minutes at a time before needing to rest her hands for ten minutes, it would preclude work under all hypotheticals. AR 551.

Medical Record

Medical Evidence Prior to Alleged June 2003 Onset Date Plaintiff sustained a work-related back injury on March 6, 1998. She treated at Concentra Medical Centers through June 30, 1998. During that time, Plaintiff was treated with medication and physical therapy and was released for modified work. As of June 30, 1998, Plaintiff could not lift, carry, pull or push more than ten pounds and could not perform repetitive bending at the waist. AR 235-252.

On July 21, 1998, Plaintiff began seeing Robert Mochizuki, M.D. He noted that x-rays revealed mild degenerative changes with narrowing of the L5-S1 disc space. On examination, Plaintiff had palpable tenderness over the lower back and right sciatic notch area. Straight leg raising on the right was minimally uncomfortable but full. He diagnosed lumbosacral strain with degenerative disc disease at L5-S1 with possible sciatica of the right lower extremity. He ordered an MRI and precluded Plaintiff from repetitive bending, stooping, carrying and lifting in excess of 20 pounds repetitively. AR 230-232.

An August 24, 1998, MRI of Plaintiff's lumbar spine revealed a small disc bulge at L5-S1. AR 228-229.

Plaintiff returned to Dr. Mochizuki on August 27, 1998, and complained of pain in her back and left thigh. Treatment notes indicate that Plaintiff had not resumed working and was laid off from work. Plaintiff had limited truncal flexion and palpable tenderness over the lower back and left sciatic notch. Dr. Mochizuki diagnosed lumbar strain and recommended physical therapy and continuation of Flexeril, Dayro and Tylenol with codeine. Plaintiff was precluded from repetitive bending, stooping, carrying and lifting more than 20 pounds repetitively. AR 226.

Plaintiff saw Dr. Mochizuki again on September 10, 1998, and reported improvement in her back pain. There was palpable tenderness over the lower lumbar spine. Straight leg raising was negative and her neurological examination was normal. Dr. Mochizuki diagnosed a lumbosacral strain and degenerative disc disease at L5-S1. He recommended that Plaintiff resume her customary and usual work activities. AR 223.

Plaintiff began treating with P. James Nugent, M.D., in November 1998. AR 254-293. He declared Plaintiff permanent and stationary in March 1999. Plaintiff would be precluded from repetitive bending and no lifting, pushing or pulling more than 25 pounds. AR 280. He also opined that Plaintiff could sit for three to six hours, for one hour at a time, walk for up to three hours, one block at a time, and stand for up to three hours, for 25 minutes at a time. She could never kneel or crawl and could occasionally twist at the waist. Plaintiff could occasionally lift up to 25 pounds. AR 282-232.

Dr. Nugent's notes from May 21, 1999, indicate that Plaintiff was to begin vocational training in June. AR 260.

When Plaintiff returned to Dr. Nugent in July 1999, she complained of increasing discomfort to her right lower lumbar area. On examination, Plaintiff's gait was slightly angulated to the right and range of motion was limited. She had generalized tenderness to the lumbar spine area and sensation was slightly decreased to the L3 dermatome at the anterior thigh. He diagnosed lumbar pain, degenerative disc disease of the lumbar spine, spinal stenosis of the lumbar spine and a herniated disc in the lumbar spine. Plaintiff was taking Daypro as ordered and was taking Soma on a less frequent basis. She received a month's refill for Vicodin and Dr. Nugent noted that she should not receive further medication without examination. AR 254-255.

On September 16, 1999, Plaintiff saw Jacqueline Frainie, M.D., for a consultive physical examination. She complained of sharp low back pain that radiated from side to side and down her right leg. On examination, there was tenderness to palpation over the lumbar spine bilaterally, with no muscle spasm or increased tone. Range of motion of the back was decreased but range of motion of the extremities was within normal limits. Pulses were normal and Plaintiff had good tone bilaterally. Hand grip was normal. Strength was 4/5 in the lower extremities bilaterally and 5/5 in the upper extremities. Sensory was equal throughout and reflexes were normal. Plaintiff had an antalgic gait. Dr. Frainie diagnosed back pain and noted that Plaintiff did have decreased muscle strength in her bilateral lower extremities. She believed that Plaintiff should be precluded from lifting more than 20 pounds for more than a third of the workday. AR 294-298.

Also on September 16, 1999, Mathew L. Nickels, M.D., reviewed x-rays of Plaintiff's lumbar spine. The x-rays showed moderate dextroscoliosis, osteoarthritis and vascular calcification. AR 299.

On December 1, 1999, State Agency physician Michael F. Escobar, M.D., completed a Physical Residual Functional Capacity Assessment form. He opined that Plaintiff could occasionally lift 20 pounds, ten pounds frequently, stand and/or walk for about six hours and sit for about six hours. Plaintiff could frequently climb ramps and stairs but could never climb ladders, ropes or scaffolds. She could frequently balance, kneel and crawl and occasionally stoop and crouch. Plaintiff had to avoid repetitive bending, stooping and twisting. AR 300-309.

Plaintiff returned to Dr. Nugent on April 20, 2000, and complained of severe to moderate constant pain in her lumbar spine, as well as numbness and tingling in her legs. Plaintiff was currently employed and temporarily partially disabled. Range of motion was reduced and straight leg raising was positive on the right. Plaintiff had decreased sensation in the right leg and foot and decreased motor strength in the left hip, knee, ankle and toe. Plaintiff was ordered to continue with Daypro for inflammation, Soma for muscle spasms and Vicodin for pain. He also recommended that Plaintiff attend six weeks of ...


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