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Wendy Aminzadeh v. Commissioner of Social Security

August 2, 2011


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



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


In June 2007, Plaintiff filed applications for disability insurance and supplemental security income benefits, alleging disability as of July 1, 1993. AR 119-129. Plaintiff's applications were denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 79-89. ALJ Christopher Larsen held a hearing on October 21, 2009, and issued an order denying benefits on December 4, 2009, finding Plaintiff was not disabled. AR 12-21. On February 26, 2010, the Appeals Council denied review. AR 3-5.

Hearing Testimony ALJ Larsen held a hearing on October 21, 2009, in Fresno, California. Plaintiff appeared and testified; she was represented by attorney Melissa Proudian. Plaintiff's mother Suzanne Everitt also testified, as did Vocational Expert ("VE") Cheryl R. Chandler. AR 23-57.

Plaintiff's Testimony

Plaintiff was thirty-three years old on the date of the hearing. She is not married and has no children. Plaintiff estimated she was five feet, seven inches tall and weighed between 241 and 245 pounds. AR 28. She lives in Fresno with her mother and stepfather. AR 29.

When Plaintiff was asked whether she drove, she indicated that she did not. She does not have a California Driver's License because she has not read the handbook nor taken the licensing exam. AR 29-30. She was not sure whether she had ever taken the licensing exam. AR 30. Plaintiff does have a California Identification card. AR 30.

Although she graduated from high school, Plaintiff was in special education classes, believing she took such classes for at least four periods per day. AR 30. Plaintiff also attended Fresno City College in the WAVE program - a program for disabled students to assist with job placement. AR 30-31. She recalls taking classes in child development, janitorial duties and food preparation. Plaintiff believes she earned a certificate of completion for the WAVE program in 1999. AR 31-32.

Plaintiff received job placement assistance through a Department of Rehabilitation program as well. That assistance includes help from job coaches. Plaintiff obtained a position at the Save Mart Center with Ovations through the program. AR 32-33. She maintains that position in food service, preparing condiments such as jalapenos, onions, relish and salsa during events held at the center. AR 33, 35. She works three to six times per month, for about five to six hours each, depending upon the number of events held. AR 33-34. She has had the position for about five years. AR 36. Plaintiff was not sure whether the heaviest weight she lifted was under or over ten pounds. AR 34-35.

Prior to working at the Save Mart Center, Plaintiff worked at Von's, bagging groceries and collecting shopping carts. However, she "got in trouble" with her boss for telling a customer "to go to Save Mart." AR 36. She also had trouble getting along with other employees at Von's because when she became upset she "wouldn't control [her] mouth." AR 37-38. Plaintiff could not explain what she meant, but did indicate that after she became upset it was difficult for her to focus on her task. AR 38-39. Plaintiff also worked for eight days at a McDonald's. AR 39.

When asked specifically about high school, Plaintiff indicated that she attended special education classes as a result of her inability to understand things well. She often has to have instructions repeated on multiple occasions, and must be shown a demonstration. AR 40. When asked, for example, if she would need to be told or shown how to perform a task if the task was changed slightly, Plaintiff indicated that if the task to be performed at the Save Mart Center changes a little, the job coach or other staff assist her to incorporate the change. AR 41.

At home, Plaintiff has chores to perform, such as vacuuming, washing windows, emptying the dishwasher and taking care of her pets. AR 28, 42. Sometimes her mother has to remind her about her chores. AR 42. She has never lived on her own because she is unable to support herself. AR 42. When asked about spending money, Plaintiff indicated that her mother gives her about $22 a month for pet sitting. AR 42. She can keep track of her money and add and subtract, but she cannot maintain a budget. AR 42. Plaintiff has a checking, saving and money market account. She uses the checking account because her earnings are deposited directly into that account, although she does not use the checks. She prefers to use cash. AR 43.

When she was asked whether she could read the newspaper, Plaintiff replied that she could but does not do so. She can write a note or leave a message for her mother if someone were to call the house and leave a message. AR 43. When asked what she did when she was home, Plaintiff indicated that she watches television, and cares for and plays with her pets. AR 43. She occasionally sees friends when they are not busy, and goes out to eat with her cousin. Plaintiff enjoys going out with friends, but does not do so often. AR 44.

Suzanne Everitt's Testimony

Plaintiff's mother Suzanne Everitt testified outside of her daughter's presence. AR 45. Plaintiff's mother indicated that Plaintiff has never lived on her own. AR 46. Plaintiff was identified as mildly retarded during as examination prepared while she was in grammar school. She was placed in special education classes throughout her primary education. AR 46.

With specific regard to the WAVE program that Plaintiff attended through Fresno City College, Ms. Everitt indicated her daughter received training in janitorial skills and food service. AR 46-47. Plaintiff currently works about two to three, four-to-six hour shifts per month with the assistance of a job coach. AR 47.

Ms. Everitt testified that Plaintiff gets frustrated or upset everyday. AR 47-48. This is the result of Plaintiff's inability to understand certain things. It causes her to get angry, and can also cause her to be extremely rude. More specifically, Ms. Everitt indicated that Plaintiff "can go from being perfectly great to very rude and frustrated in a couple minutes." Plaintiff will calm down over time and with assistance. AR 48. Ms. Everitt is aware that this behavior has affected Plaintiff's ability to maintain employment. In particular, she is aware of the difficulties that Plaintiff encountered while employed at Von's. AR 48. She believes there were younger employees who would tease Plaintiff. AR 48-49. Ms. Everitt believes Von's staff were aware of Plaintiff's limitation and learning disabilities because Ms. Everitt herself had mentioned it to a manager as she regularly shopped in the store. AR 49. She was also aware that there were a number of managers or assistant managers who would help Plaintiff by being very kind and patient. AR 49-50.

When Ms. Everitt was asked whether her daughter could work for eight hours, five days a week at a regular job without the assistance of a job coach or extra help, she replied in the negative. Ms. Everitt explained that while Plaintiff may have the skills to handle a particular job, she does not always understand things correctly or she misinterprets things said or done. When Plaintiff misinterprets an action to involve another person "being mean to her," she responds by getting "angry and [she] can be extremely rude." AR 50. Therefore, Ms. Everitt believes it would be extremely difficult for Plaintiff to maintain a job without assistance or intervention on a regular basis. AR 50. She believes Plaintiff's frustration and anger would cause her to lose a regular job. AR 50-51.

VE Chandler's Testimony

VE Cheryl Chandler was asked to classify Plaintiff's past work. The VE indicated that Plaintiff's work at both Von's and Ovations can be best described as food sales clerk, unskilled, with an SVP*fn3 of two, and a medium exertion level, or, as a hand packager, also unskilled, medium exertion work. AR 52-53.
The VE was asked to assume a hypothetical worker of Plaintiff's age, education and work experience, who can perform work at the medium exertion level with a limitation to simple, repetitive tasks. The VE testified that such an individual could perform Plaintiff's past relevant work. AR 53. Additionally, the VE testified that this worker could perform other jobs such as: a dishwasher, DOT*fn4 318.687-010, unskilled and medium, with 31,900 position in the state; cafeteria attendant, DOT 312.687-010, unskilled and medium, with 34,000 positions available; and general food preparation, DOT 317.687-010, unskilled and medium, with 20,400 positions available in the state. Approximately nine times that number of positions are available nationwide. AR 53-54.

Next, in a second hypothetical, the VE was asked to assume a hypothetical worker of Plaintiff's age, education and work history, with the ability to perform medium exertion work, and a limitation to simple, repetitive tasks requiring additional supervision, as well as an inability to maintain a competitive pace throughout an eight-hour day. ...

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