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Sylvia Melgoza v. Michael J. Astrue

July 25, 2011


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge



Plaintiff Sylvia Melgoza ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for supplemental security income benefits 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 Gary S. Austin, United States Magistrate Judge.*fn1


On September 29, 2006, Plaintiff filed an application for supplemental security income benefits, alleging disability as of August 29, 2006. AR 51-53. Plaintiff's application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 36, 41-50. ALJ Stephen W. Webster held a hearing on April 11, 2008, and issued an order denying benefits on June 17, 2008, finding Plaintiff was not disabled. AR 16-25. On March 25, 2010, the Appeals Council denied review. AR 5-8.

Hearing Testimony

ALJ Webster held a hearing on April 11, 2008, in Fresno, California. Plaintiff appeared and testified; she was represented by attorney Melissa Proudian. Vocational Expert ("VE") Cheryl Chandler also testified. AR 335-359.

Plaintiff was thirty-one years old on the date of the hearing. AR 338. She did not graduate from high school or obtain a GED.*fn3 The highest grade she completed was the ninth or tenth grade. AR 339. Following a workers' compensation claim, Plaintiff attended a computer school where she earned a certificate in administrative assistance. AR 339-340. She does hold a valid driver's license and drives "less than daily." AR 338-339.

When she was asked about her last job, Plaintiff indicated it was with the Ninety-Nine Cent Store, but she could not recall a date. AR 340. When asked about her employment within the last fifteen years, Plaintiff indicated she had been employed by Wal Mart, Taco Bell and Dairy Delight. AR 340-341. While employed at Wal Mart, Plaintiff performed the duties of a "stocker" and estimated the heaviest weight she lifted was approximately fifty to sixty pounds. AR 341. While employed at Wal Mart, Plaintiff kept to herself and did not associate with her co-workers, and was never reprimanded for her job performance. AR 342. However, she began to suffer from depression and stress, and she did not want to go to work any longer. She did not quit or get terminated however, rather, she was injured on the job. AR 341. Plaintiff suffered from carpal tunnel in the wrist, and while she could not recall the date of injury or the date of settlement of the resulting workers' compensation action, she did recall that "medical [care remained] open for five years." AR 341-342.

Plaintiff does not believe she could work any job for eight hours a day, five days a week, as a result of her depression and stress. AR 342. Additionally, she identified suicidal tendencies, anxiety and auditory hallucinations as problems that would prevent her from employment. AR 342.

With specific regard to depression, Plaintiff indicated she is depressed every day and it affects her ability to function at home. AR 343. She takes medication for depression, however, it does not help. She feels as though she is getting worse everyday. As a result of her depression, she has gained ten to fifteen pounds. AR 343. Plaintiff currently stands five feet, two inches tall, and weighs about 250 pounds. AR 340. Dr. David Cardona is her treating physician, whom she sees about once a month. AR 344, 353. Plaintiff has also been treated by psychiatrists at Fresno County Mental Health, however, none of them helped her. AR 344-345.

The auditory hallucinations Plaintiff hears everyday are a man's voice, telling her that she is ugly and fat, and to hurt herself and others. AR 345. She has tried to block the voices by using earphones or keeping busy by cleaning, however, the voices just continue. AR 345. Plaintiff also suffers from visual hallucinations because she sees a shadow of a person everyday; no one else can see the shadow. AR 348. The shadow makes her angry and upset and causes her to cry and shake with nervousness. AR 348, 355.

Plaintiff sees her therapist one or twice per week. AR 345-346. Plaintiff believes her therapist understands her and she has made "a little bit, [but] not too much" progress, yet she continues to work on it. AR 350. Plaintiff continues to feel suicidal about three or four times a week, and has acted upon the impulse on three or four occasions. AR 346. The last time she attempted suicide was 2006. On that occasion, she "saw a shadow which was the person in [her] past [and heard] voices at the same time." AR 346. She locked herself in her room and began breaking items. When she broke a large mirror, the mirror shattered and she used a piece of glass to cut her arms. AR 346. Her roommate called 911 and Plaintiff was admitted to the PACT*fn4 unit. Plaintiff admitted using drugs about five or six years ago, but she is currently clean and sober. AR 353-354.

When she was asked about hobbies or interests, Plaintiff indicated that she "lost all that" and does not "believe in friends" because they have betrayed her. She does however have a boyfriend with whom she gets along. AR 348-349. Plaintiff does cook and clean, but only on those days she is able to get out of bed. She estimated she cooks and cleans about twice and week and stays in bed the other four to five days for six to eight hours or more. AR 349. That had been the case even prior to August of 2006. AR 350. Plaintiff's sister does the grocery shopping for her.*fn5 AR 353. She does not read, go to the movies, attend church or visit with friends and family. AR 353. While the television may be on, Plaintiff is not listening and is "just spaced out." AR 353.

Plaintiff can concentrate for about an hour before "get[ting] spaced out." AR 350. Once that occurs, she would need to take a break of about thirty minutes before resuming any task. AR 351. Even once she resumes the task, Plaintiff can only concentrate for another thirty minutes or so. AR 351. She is able to bathe and dress herself, and while she takes Motrin for back pain, it does not affect her ability to function. AR 352.

Currently, Plaintiff's only source of income is Aid to Families with Dependent Children ("AFDC") as she has two boys at home, ages thirteen and sixteen. AR 351; see also AR 352-353. She is able to care for them with the assistance of her mother, her sister and her boyfriend. AR 351. Occasionally her cousin will also help. AR 351-352.

VE Cheryl Chandler was asked to consider a hypothetical worker of Plaintiff's age, education and work history, with no exertional or postural limitation, who was limited to simple, routine and repetitive work. The VE indicated such an individual could perform Plaintiff's past relevant work as a fast food worker, but not the stock work. AR 355.

Next, in a second hypothetical, the VE was asked to assume a hypothetical worker of Plaintiff's age, education and work history, without exertional or postural limitation, who could have only occasional contact with supervisors, co-workers, and the public. AR 355-356. The VE indicated such an individual could not perform Plaintiff's past relevant work, but that there were jobs in the regional or national economy that such a worker could perform. AR 356. Specifically, after reducing the available jobs by fifty percent, the VE indicated that such a worker could perform custodial duties, DOT*fn6 381.687-018, medium and unskilled, with 60,000 available positions in California and nine to ten times that number available nationwide. AR 356. The VE also identified unskilled and medium cleaning occupations, representative DOT of 301.687-014, with 30,000 available jobs, and a grounds maintenance worker, unskilled and medium, DOT 403.667-010, with approximately 15,000 such jobs available. The VE verified that her testimony was in conformity with the DOT and that she had applied the fifty percent reduction to all three of the positions discussed.

In a third hypothetical, the VE was asked to assume the same factors as those present in second hypothetical question, with the additional limitation that the worker would have occasional problems maintaining attention, concentration and pace. AR 357. VE Chandler testified that such an individual could neither perform Plaintiff's past relevant work nor any other work. AR 357.

Finally, counsel for Plaintiff posed a hypothetical question as well, asking the VE to consider the same factors as those present in the ALJ's third hypothetical, with the additional limitation of an inability to show up to work at least one to two days out of a typical work week as the result of severe depression. The ...

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