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Leticia Ann andrade v. Michael J. Astrue

October 3, 2011

LETICIA ANN ANDRADE,
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

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff LETICIA ANN ANDRADE ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for disability insurance benefits and supplemental security income 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 Magistrate Judge for Findings and Recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed her applications on May 16, 2007, alleging disability since January 7, 2006, due to bipolar disorder, anxiety, fibromyalgia, irritable bowel syndrome ("IBS"), a right eye problem, chronic urinary tract infections and kidney infections. AR 24-27, 28-31, 178-186. After her applications were denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 78-81, 87-91, 93. ALJ William C. Thompson held a hearing on February 10, 2009, and issued a decision denying benefits on October 8, 2009. AR 9-22, 38-62. The Appeals Council denied review on September 17, 2010. AR 1-5.

Hearing Testimony

ALJ Thompson held a hearing on February 10, 2009, in Stockton, California. Plaintiff appeared with her attorney, Sengthiene Bosavanh. Vocational expert ("VE") Thomas Linvil also appeared and testified. AR 38.

Plaintiff testified that she was 42 years old at the time of the hearing. She attended twelfth grade but received her GED. Plaintiff was 5 feet, 2 inches tall and weighed 235 pounds. She is single and has three children, ages 17, 19 and 23. Her 17 year old still lives with her. AR 42. Plaintiff has been on AFDC since December 2004 and last worked in 2006. She stopped working because she had family problems, including a lot of family deaths around the same time, and she couldn't cope. AR 43.

Plaintiff explained that she cannot work now because she has severe fibromyalgia, severe IBS and panic attacks. AR 44. She was diagnosed with fibromyalgia in 1999 and takes medications for it. AR 44. Plaintiff also takes medications for IBS. When she has an IBS attack, she has contractions and has to go to the bathroom, sometimes for up to 30 minutes. When she has an attack, she's down for the day because she needs to be in the bathroom at least every other hour. AR 45. Plaintiff estimated that she could be in the bathroom for up to six hours a day. When she comes out, she's so exhausted that she has to lie down. Plaintiff has this type of attack at least twice a month. AR 49. These attacks could last up to two days each. Stress and food can trigger attacks. AR 50.

Plaintiff testified that she has panic attacks two or three times a day. AR 46. She takes Xanax for the attacks, which helps. AR 46. An attack lasts about 10 minutes. AR 51.

Plaintiff lives in a three bedroom house, which she is able to clean at five minute intervals. AR 46. She thought that she could walk for about 10 to 15 minutes at a time, stand for 10 minutes at a time and sit for two hours. AR 47. She can cook, but not often because she gets fatigued standing in one spot. She goes to the grocery store once in a while but she always has to have someone with her because she could get disoriented. AR 47-48. Plaintiff can dress and bathe herself, though it is difficult because of her weight. AR 48. She has gained 50 pounds in the past six months, which doctors attribute to her medications. AR 48.

Plaintiff explained that she could not return to her accounting job because she blanks out at times in the middle of the sentence and forgets what she's talking about. AR 48.

Plaintiff does not like to be around people because it makes her nervous and uncomfortable. AR 52. Her concentration is not good and after a couple of minutes of conversation, she loses track. AR 53. Plaintiff could answer the questions at the hearing because she was focusing on one question at a time, though she had been lost a little at times. AR 53.

Plaintiff also explained that she has bipolar disorder and when she gets manic, she tries to clean the house all day. The next day, however, she pays for it and is in bed all day due to severe pain all over. AR 53-54. When she is depressed, she doesn't want to get up or take a shower. AR 54. She takes sleeping pills to help her sleep, but still gets up at least twice a night. AR 54. A CPAP machine for sleep apnea has also been ordered. AR 54. Fibromyalgia causes her to wake up in severe pain and she is not well rested. AR 55.

Plaintiff has about three bad days a week when she is in bed. She explained that after the hearing, she would probably go home and go to sleep because the questions fatigue her. AR 55-56.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and experience who could lift 20 pounds occasionally, 10 pounds frequently, stand and walk in combination for at least six hours and sit for at least six hours. This person could not climb ladders, ropes or scaffolding and should not work around heights or hazardous machinery. This person would also be limited to work involving simple instructions. The VE testified that this person could not perform Plaintiff's past work but could perform the job of housekeeper. AR 57-58.

For the second hypothetical, the ALJ asked the VE to assume that this person could lift 10 pounds occasionally and could move small objects throughout the day. This person could stand and walk in combination for periods of not more than 30 minutes, for no more than two hours total, and could sit for the remainder of the day without limitation. This person could not climb ladders, ropes or scaffolding and should not work around heights or hazardous machinery. This person would also be limited to work involving simple instructions. The VE testified that this person could not work because there were not a significant number of jobs that would allow for the standing/walking flexibility. AR 58-59.

Plaintiff's attorney asked the VE to assume a person with moderate difficulties in maintaining concentration, persistence or pace, in addition to the other limitations in the first hypothetical. The VE testified that the housekeeper position would still be available because it is a very basic job. AR 59-60.

If this person was markedly limited in activities of daily living, maintaining social functioning and maintaining concentration, persistence or pace, there would be no work available. AR 60.

If this person, because of IBS, had to be out of work for at least four random days per month, she could not work. AR 61.

Medical Record

In August 2006, Plaintiff underwent surgery to correct urinary incontinence. AR 245-247.

Beginning in July 2006, Plaintiff attended depression group therapy at Stanislaus County Behavioral Health. She often reported feelings of hopelessness and guilt, as well as family problems. AR 257-268.

On March 1, 2007, Plaintiff reported that she was off her medications for a week while on a trip to Las Vegas for her daughter's 21st birthday, but that she started taking them again when she returned. Plaintiff also reported memory problems, which may be related to her medication or her anxiety issues. AR 273, 274. On March 22, 2007, she reported that she was sleeping "pretty good" and felt like she was getting stronger. AR 270.

In May 2007, Plaintiff was tearful when discussing recent losses and family issues. AR 302 In June 2007, Plaintiff reported numerous falls and she was referred to her primary care physician. AR 297. She was tearful at times when discussing issues with her children. AR 300.

On July 9, 2007, Plaintiff's attendance at group therapy was noted as "inconsistent." AR 294.

In 2007, Plaintiff treated with Soma Krishnamoorthi, M.D., for constipation, pain, fibromyalgia, depressed mood and medication refills AR 211-217.

On September 5, 2007, Plaintiff saw Miguel Hernandez, M.D., for a consultive examination. She complained of bipolar disorder, which was diagnosed about a year ago and not helped with medication. She also reported anxiety disorder, fibromyalgia, IBS, chronic urinary tract infections and memory impairment. Plaintiff stated that she was very depressed and chronically tired, with no desire to do anything. She needed help doing things around the house because of lack of energy and should could not stand, walk or sit for very long. AR 318-319.

On examination, Plaintiff was in no apparent distress and walked into the room without difficulty. She had a somewhat flat affect with minimal eye contact. Coordination was intact and her gait was normal. Plaintiff had several areas of tenderness to points of palpation in the para lumbar and para thoracic musculature, though range of motion testing was unremarkable. Plaintiff had decent generalized muscle tone throughout both her upper and lower extremities bilaterally and motor strength was 5/5 throughout. Sensation was intact and grip strength was about 50 pounds of pressure bilaterally. AR 320-321.

Dr. Hernandez diagnosed bipolar disorder type 2, anxiety disorder, fibromyalgia, IBS, chronic urinary tract infections and memory impairment. He opined that Plaintiff could stand and/or walk for six hours and sit for six hours. She could lift and carry 20 pounds occasionally, 10 pounds frequently and had no postural or manipulative limitations. Dr. Hernandez noted that environmental limitations would be attributable to her bipolar and anxiety disorder though he did not specify any limitations. AR 319-321.

On September 21, 2007, State Agency physician G.W. Bugg, M.D., reviewed Plaintiff's medical records. He noted that her mental health treatment notes indicate that she has continued to improve, despite a couple of troublesome times related to family deaths. Her mental status examinations during her treatment with Stanislaus County showed normal cognition/orientation, intact insight and judgment and no hopelessness. Dr. Bugg believed that she had improved enough to return to work and opined that Plaintiff could perform simple, repetitive tasks with no contact with the general public. As for her physical limitations, Dr. Bugg believed that Dr. Hernandez's light RFC was not supported by objective evidence as his examination was unremarkable. He suggested that Plaintiff's physical impairments were non-severe. AR 322-323.

On October 5, 2007, State Agency physician S. Bortner, M.D., completed a Psychiatric Review Technique form. Dr. Bortner opined that Plaintiff had mild restrictions in activities of daily living, mild difficulties in maintaining social functioning and moderate difficulties in maintaining concentration, persistence or pace. AR 326-339.

Dr. Bortner also completed a Mental Residual Functional Capacity Assessment. Dr. Bortner opined that Plaintiff was moderately limited in her ability to understand, remember and carry out detailed instructions, complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number of breaks. He noted that Plaintiff suffers from bipolar disorder but has achieved a stable level of improvement. Limitations in activities of daily living were primarily due to her pain condition. Plaintiff could understand and ...


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