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Nancy Lynn Berrigan v. Michael J. Astrue

October 3, 2011


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



Plaintiff Nancy Lynn Berrigan ("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 December 2006, Plaintiff filed an application for disability insurance and supplemental security income benefits, alleging disability as of November 30, 2005. AR 113--116. Plaintiff's application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 72-76, 80-86. ALJ James P. Berry held a hearing on May 11, 2009, and issued an order denying benefits on July 22, 2009, finding Plaintiff was not disabled. AR 11-17, 94-98. Thereafter, on September 2, 2009, the Appeals Council denied review. AR 2-5.

Hearing Testimony

ALJ Berry held a hearing on May 11, 2009, in Bakersfield, California. Plaintiff appeared and testified; she was represented by attorney James Yoro. Vocational Expert ("VE") Kenneth Ferra also testified. AR 18-42.

Plaintiff was born on August 23, 1965; she was forty-three years old on the date of the hearing. AR 21. After graduating high school, Plaintiff attended college for two years studying to become a paralegal, however, she did not complete the course or obtain a certificate. AR 21-22.

Plaintiff last worked in July 2005 as an in home care provider, taking care of her bedridden mother. AR 22-23. Within the last fifteen years, Plaintiff has also worked providing care to her brother's children. AR 23. Additionally, Plaintiff worked for Kern County, and more specifically, "work[ed] for Judge Willis in the Fast Track program." AR 23-24, 121-122. The position was essentially a file clerk position; she worked for the county from 1985 to 1995. AR 24. Plaintiff has not worked since 2005. AR 25.

Following her mother's death, Plaintiff's own health deteriorated. Congestive heart failure keeps her from "doing pretty much anything." AR 25. She also suffers from diabetes, for which she is insulin dependent. AR 25. In response to an inquiry about her blood sugars, Plaintiff indicated they were not good, despite eating right. AR 26. She has been taking insulin injections for a few years and also takes the oral medication, Metformin. AR 26.

With regard to the treatment of congestive heart failure, Plaintiff takes "Lasix," and another medication for hypertension. AR 27. Medication, diet and "walk[ing] a little bit every day" were suggested by her doctor to treat congestive heart failure. AR 36. With regard to her respiratory condition, Plaintiff uses a nebulizer three to four times a day on average, and also uses an inhaler. AR 28-29. Each nebulizer treatment takes about ten minutes. AR 29. Plaintiff uses the Albuterol inhaler "four or five, six times a day." AR 29. Walking will aggravate her breathing problem. AR 29.

Plaintiff's hands "crack and [] bleed," but the doctor has not yet diagnosed the condition. AR 27-28. She also suffers from numbness in her arms and legs. AR 30. When asked to describe the sensation in her arms, Plaintiff replied that her arms are "just numb, can't hardly squeeze my hands, real weak." AR 31. It feels like a "heaviness" that travels to her chest. The weakness affects her ability to use her hands and arms, and she has to take breaks. AR 31. Plaintiff does not "even try to lift anything," and estimated she could not lift more than five pounds without "great chest pain." AR 31.

When she was asked to estimate how long she could stand or walk, Plaintiff indicated she takes pain medication for her hip, that she believes to be "disintegrating." AR 32. She estimated she could walk through the grocery store, but indicated it was sometimes too much. AR 32. Asked what length of time or distance was entailed, Plaintiff indicated she could stand or walk "five minutes at the most." AR 32. More particularly, when asked to estimate the total amount of time she could stand or walk during an eight-hour day, Plaintiff indicated "maybe 30 minutes." AR 32-33. She cannot tolerate sitting for more than two hours because she gets drowsy from the pain medication or gets "kind of fidgety." AR 33.

Currently Plaintiff weighs about 280 pounds; she is five feet seven inches tall. AR 29. At its high point, Plaintiff's weight was 324 pounds. She attributes her weight loss to dieting and thyroid medication. AR 30.

With regard to side effects from medication, Plaintiff explained the Lasix makes her urinate frequently, and also causes drowsiness throughout the day. AR 34. The drowsiness then causes her difficulties in focus and concentration. AR 34. Additionally, Plaintiff naps everyday for at least two hours. AR 35.

Plaintiff lives with her eleven year old disabled daughter. AR 36-37. When asked how she spends her day, Plaintiff indicated that after getting her daughter ready to walk to the bus stop, she naps and tries to keep the apartment clean, doing a little work then taking a break, until it is time to meet her daughter at the bus stop. AR 37. She cleans her shower using her shower chair. AR 37. Plaintiff indicated that her breathing is so labored that after showering she must take a break before getting dressed. AR 37. She does the grocery shopping, occasionally shops for clothes or other necessities, and once in while will see a movie with her daughter. AR 38.

VE Ferra classified Plaintiff's past work as follows: home attendant, medium and semi-skilled with an SVP*fn3 of three; child care monitor, medium and semi-skilled with an SVP of three; and file clerk, light and semi-skilled with an SVP of three. AR 39.

The VE was asked to consider a hypothetical worker of Plaintiff's age, education and work history, who could lift and carry twenty pounds occasionally and ten pounds frequently, who could sit, stand or walk for six hours in an eight-hour day, and could occasionally balance, stoop, kneel, crouch and crawl, but whom was to avoid concentrated exposure to pulmonary irritants. AR 39-40. The VE indicated such an individual could perform Plaintiff's past relevant work as a file clerk. AR 40.

In a second hypothetical, the VE was asked to assume a hypothetical worker "with the same vocational parameters" as previously noted, whom could lift and carry five pounds maximum, sit for two hours total, and stand or walk for thirty minutes total, who must avoid exposure to pulmonary irritants, must use the restroom fifteen to twenty times per day, must nap or take a rest break for approximately two hours a day, and whose medication will cause drowsiness and affect concentration. AR 40. VE Ferra testified that this hypothetical worker could not perform any of Plaintiff's past work, nor could the individual perform any work as it exists in the national economy. AR 40-41.

Plaintiff's counsel asked the VE to consider the same individual as posed in first hypothetical with an additional limitation to three unscheduled ten-minute breaks to accommodate breathing treatments; the VE indicated that such an individual would be unable to perform Plaintiff's past work or any work as it exists in the national economy. AR 41.

Medical Record

The entire medical record was reviewed by the Court. Relevant medical evidence will be referenced below if necessary in this Court's decision.

ALJ's Findings

Using the Social Security Administration's five-step sequential evaluation process, the ALJ determined that Plaintiff did not meet the disability standard. AR 11-17.

More particularly, the ALJ found that Plaintiff had not engaged in substantial gainful activity since November 30, 2005. AR 13. Further, the ALJ identified asthma, obesity, diabetes mellitus, and hypertension as severe impairments. AR 13-14. Nonetheless, the ALJ determined that the severity of the Plaintiff's impairments do not, individually or in combination, meet or exceed any of the listed impairments. AR 14.

Based on his review of the entire record, the ALJ determined that Plaintiff has the residual functional capacity ("RFC") to lift and carry twenty pounds occasionally and ten pounds frequently, to sit, stand, and walk for six hours in an eight-hour work day, and to occasionally balance, stoop, kneel, crouch and crawl; she was to avoid exposure to pulmonary irritants. AR 14-16.

Next, the ALJ determined that Plaintiff could perform her past relevant work as a file clerk. AR 16. Therefore, the ALJ determined Plaintiff was not disabled. AR 16-17.


Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405 (g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The record as a whole must be considered, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner's determination that the claimant is not disabled if the Secretary applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See Sanchez v. Sec'y of Health and Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).


In order to qualify for benefits, a claimant must establish that he is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. ยง 1382c (a)(3)(A). A claimant must show that he has a physical or mental impairment of such severity that he is not only unable to do her previous work, but cannot, considering his age, education, and work experience, engage in any ...

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