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Kimberly Loring v. Michael J. Astrue

September 1, 2011

KIMBERLY LORING,
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

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Kimberly Loring ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income 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 Dennis L. Beck, United States Magistrate Judge.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed her application on August 10, 2007, alleging disability since March 6, 2007, due to low back pain and high blood pressure. AR 126-131, 143-151. After her application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 69, 81, 98. ALJ Michael Haubner held a hearing on September 9, 2009, and issued a decision denying benefits on November 18, 2009. AR 36-68, 22-32. The Appeals Council denied review on July 8, 2010. AR 7-9.

Hearing Testimony

ALJ Haubner held a hearing on September 9, 2009, in Fresno, California. Plaintiff appeared with her representative, Gina Fazio. Vocational expert ("VE") Kathy Magering also appeared and testified. AR 36.

Plaintiff was born in August 1963 and completed the eleventh grade. AR 43. Plaintiff has a culinary certificate from Cesar Chavez Adult Education and a Certified Nursing Assistant certificate. She also went to City College but did not finish because of medical problems. AR 44. She worked for six months in 1995 as a nursing assistant, for two months in 1997 packing fruit, for four to six months with in-home health care services in 2002 and for four months clearing tables at Hometown Buffet in 2006-2007. AR 45-46.

Plaintiff lives with her daughter and her daughter's husband, and her three grandchildren. Her driver's license expired in August 2009 and she has not driven since then. AR 49.

Plaintiff sat in a wheelchair at the hearing and testified that it was prescribed by her doctor last year. AR 50. She mostly uses her walker inside the house, however. AR 51. She has had the walker since 2007. AR 52.

Plaintiff has her own room but does not make her bed or do any chores around the house. She can make herself a simple meal once a day but does not do dishes, sweep, vacuum, dust or take out the trash. AR 52-53. She goes grocery shopping maybe once a month. AR 53. Plaintiff goes to church once a week. AR 53. Plaintiff used to sew, but has not since 2007 because of pain in her lower back, arms and legs. AR 54-55, 66. She watches television, listens to music and reads about four to five hours a day. AR 54-55. Plaintiff does not watch, or play with, her grandchildren because she cannot lift them. AR 55.

Plaintiff thought that she could stand without a walker for two or three minutes and could walk without a walker about 10 feet. With her walker, Plaintiff could also walk about 10 feet. She could sit for an hour. Plaintiff lies down and elevates her feet for about six hours a day. AR 57. She thought that she could concentrate on one thing for about 10 to 15 minutes. AR 57. Plaintiff estimated that she could lift and carry five pounds. AR 59.

Plaintiff testified that she was compliant with her treatment. She was 5 feet, 10 inches tall and weighed 280 pounds. Doctors have told her to try and lose weight and she is trying to watch what she eats. She estimated that she followed her diet about 90 percent of the time. She also still smokes cigarettes, even though the doctors have told her to stop. AR 58.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and experience. This person could lift and carry 100 pounds occasionally, 50 pounds frequently, stand and walk for six hours with normal breaks and sit without restriction. The VE testified that this person could perform Plaintiff's past relevant work as a packer and nurse assistant, both as performed and as set forth in the Dictionary of Occupational Titles ("DOT"). This person could also perform the entire world of sedentary through heavy work. AR 62-63.

For the second hypothetical, the ALJ asked the VE to assume that this person could lift and carry 50 pounds occasionally, 25 pounds frequently, stand and walk about six hours and sit for about six hours. This person needed to avoid concentrated exposure to odors, dust, fumes, gases, poor ventilation, etc. The VE testified that this person could perform the packer position as performed and as described in the DOT. This person could perform the nurse assistant position as described in the DOT, but not as performed. This person could also perform the medium positions of transporter of patients, sandwich maker and linen room attendant. AR 63-64.

For the third hypothetical, the ALJ asked the VE to assume a person who could stand for two to three minutes, walk for 10 feet with or without a walker, sit for one hour at a time, lift and carry five pounds and concentrate for 10 to 15 minutes at a time. This person would also need to lie down for six hours out of eight. The VE testified that this person cannot perform any work. AR 65.

Medical Record

Plaintiff was seen at University Medical Center on October 26, 2006, in follow up for low back pain and hypertension. She complained of wheezing, low back pain and a 20 pound weight gain over the past year. She was diagnosed with hypertension, low back pain, asthma and fibroids. Plaintiff was using Vicodin and requested a TENS unit. AR 202-203.

On June 5, 2007, Plaintiff was seen at Community Medical Center in follow up for back pain. She requested a TENS unit and reported that she could not get one after her last prescription was lost or stolen. She denied any other complaints. On examination, there was no edema in her extremities, pulses were normal and straight leg raising was negative. Plaintiff was diagnosed with high blood pressure, under good control, chronic back pain and stable ...


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