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Margaret Lopez v. Michael J. Astrue

August 12, 2011

MARGARET LOPEZ,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Margaret Lopez ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her applications for disability insurance benefits pursuant to Title II of the Social Security Act and Supplemental Income disability benefits pursuant to Title XIV. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Magistrate Judge Gary S. Austin for findings and recommendations to the District Court.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed concurrent applications for Title II Social Security Disability Insurance Benefits and Title XVI Supplemental Security Income Disability Benefits on April 13, 2001, alleging disability beginning October 2000. AR 52, 77. Plaintiff's applications were denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 49-51. ALJ Lyons held a hearing and on May 15, 2003, and issued an order denying benefits finding Plaintiff was not disabled. AR 52-57. Plaintiff did not appeal this decision so the decision became final on May 15, 2003. 20 C.F.R. §§ 404.955 and 404.987.

Plaintiffapplied for Security Disability Insurance Benefits and Title XVI Supplemental Security Income Disability Benefits a second time on December 8, 2004, alleging disability beginning January 17, 2003. AR 98-100. Plaintiff's applications were denied initially and on reconsideration. AR 63, 70, 75. Plaintiff requested a hearing before an ALJ. AR 77. ALJ John Wojciechowski held a hearing on June 25, 2008, and issued a decision denying benefits on August 7, 2008. AR 15-22.

Hearing Testimony

ALJ Wojciechowski held a video hearing in Phoenix, Arizona, on June 25, 2008. Plaintiff personally appeared in Fresno, California, and was assisted by attorney Sengthiene Bosavanh. Vocational Expert ("VE") Ms. Cheryl Chandler also testified. AR 23-46.

Plaintiff was sixty-one years old at the time of the hearing. AR 29. She is a widow and lives with her nineteen year old grandson. AR 23. She currently receives her husband's social security benefits and a Veteran's pension as income. AR 30. She completed the eighth grade. AR 30. She is able to read and write but she cannot spell very well. AR 30. She does not have a driver's license. AR 30.

Plaintiff last worked in 2000 as a cashier. AR 31. She stopped working at that time because she fell at work and broke her wrist in October 2000. Although the wrist healed, she still suffers from pain. AR 31.

Plaintiff has received medical treatment in University Medical Center in Fresno, California since 2006 for bulging discs in her back. AR 33. Plaintiff has not received any treatments for pain because she is unable to afford it. AR 33. She takes Ibuprofen and Ben Gay to treat her symptoms. She also uses a heating pad at night on her back. AR 38.

In addition to back pain, Plaintiff suffers from neuropathy and arthritis in her arms, wrists, and both of her hands. She also has fibromayalgia, as well as a torn ligament in her left shoulder. AR 36-37. Plaintiff never received treatment for the torn ligament due to the expense of medical care. AR 37. As a result of these ailments, Plaintiff is only able to lift five pounds at a time and she is unable to grasp objects. AR 37-38.

Plaintiff does not go out often because she does not know how to drive. AR 34. She goes to the grocery store about once every two weeks. AR 34 When doing so, she either gets a ride from a friend or takes the bus. AR 34. She is unable to do any housework due to pain in her knees and lower back. AR 34. Plaintiff is on her feet about four hours a day while she is at home. AR 35. She lies down about for fifteen or twenty minutes, five times a day. AR 42. She is unable to sit for long periods due to pain. AR 36. However, she sits with her legs elevated for fifteen to twenty minutes, six or seven times at day. AR 43.

VE Cheryl Chandler characterized Plaintif's past work as a cashier as SVP*fn3 of 3, semi-skilled and light. AR 41. The VE also testified that Plaintiff had no other transferable skills and the cashier job was the only job listed. AR 41.

The VE was asked to consider a hypothetical worker of Plaintiff's age, education and work history who could lift twenty pounds occasionally and ten pounds regularly, who could stand, sit, and walk for six hours in an eight-hour work day, and who could perform above the shoulder reaching occasionally. AR 34, 44. The VE indicated such an individual could not perform Plaintiff's past relevant work as performed. AR 34. However, there are 114,900 cashiering jobs at the unskilled light level in California that Plaintiff could perform. AR 42.

Plaintiff's attorney asked the VE to consider the above hypothetical with the additional restrictions of limited lifting with the left hand to five pounds, as well as permitting the worker to lie down approximately five times a day, and allowing her to elevate her feet six times per day. AR. 43-44. The VE indicated that this worker would be unable to perform any past relevant work.

Medical Record

The entire medical record was reviewed by this Court. A summary of the relevant medical records are set forth below.

University Medical Center Records

Between March 2003 and November 2004, Plaintiff was seen several times at the University Medical Center for complaints of depression, low back pain, degenerative joint disease, and fibromyalgia. AR 169-176. On April 4, 2005, a physician's note was written and references an MRI revealing a rotator cuff tear. AR 219. The plan was to refer Plaintiff for surgery. AR 219. Plaintiff was also referred for physical therapy and was assessed with multiple pain complaints, degenerative disc disease with joint dysfunction, and soft tissue involvement. AR 226. From March 28, 2005 until May 5, 2005, Plaintiff attended nine out of ten physical therapy sessions for treatment of neck and left shoulder pain, bilateral knee pain, and low back pain. AR 221-38. At the end of her sessions, she was referred back to her doctor for reassessment secondary to lack of progress. AR 221.

Dr. Rustom Damania

On April 19, 2005, Plaintiff was evaluated by Rustom Damania, M.D., a state agency physician. AR 179-184. The examination revealed normal joints in the upper and lower extremities except for the left shoulder, wrist, and knee. AR 181. Dr. Damania reviewed medical records which he noted indicated the following:

MRI of the left shoulder done 3/30/05 suggests a high grade probability f[ull]-thickness tear at the distal anterior aspect of the supraspinatus tendon measuring approximately 1 cm in the anterior posterior and medial lateral dimension. No definite labral tear is appreciated although a ...


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