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Susan Kose v. Commissioner of Social Security

October 5, 2011


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 25) and defendant's cross-motion for summary judgment (Doc. 26).


Plaintiff applied for social security benefits on June 23, 2005.*fn1 In the application, plaintiff claims that disability began on January 1, 2004. Plaintiff claims that disability is caused by a combination of obesity, osteoarthritis, the need for daily naps, bilateral hand arthritis, and an inability to handle stress. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on May 21, 2007, before Administrative Law Judge ("ALJ") Stanley R. Hogg. In a February 13, 2008, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairments: obesity, migraine headache syndrome, asthma, osteoarthritis of the right knee with chondromalacia, and degenerative disc disease;

2. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the impairments listed in the regulations;

3. The claimant has the residual functional capacity to perform light work involving 4 hours of standing/walking per 8-hour day, lifting 20 pounds, sitting for 6 hours per 8-hour day, and no frequent concentrated exposure to dust, fumes, odors, and similar irritants; and

4. Considering the claimant's age, education, work experience, and residual functional capacity, and based on application of the Medical-Vocational Guidelines, there are jobs that exist in significant numbers in the national economy that the claimant can perform.

After the Appeals Council declined review on April 6, 2010, this appeal followed.


The certified administrative record ("CAR") contains the following evidence, summarized chronologically below:

December 4, 1987 -- Plaintiff was admitted to the hospital with acute asthma exacerbation and streptococcal pneumonia. Plaintiff was treated with "vigorous inhalation bronchodilator therapy" for the asthma and a seven-day course of penicillin for the pneumonia and released.

March 12, 1988 -- Discharge notes reflect that plaintiff was admitted to the hospital due to acute shortness of breath. Plaintiff was treated with intravenous medication and her condition cleared within two days. She was then provided oral medication.

November 9, 1988 -- Emergency room records from Mercy Medical Center indicate that plaintiff was admitted for an acute asthma attack. She had run out of medication the previous morning and was experiencing increasing shortness of breath and wheezing. Plaintiff was given medication and "she became relatively asymptomatic." Chest x-rays were normal.

January 14, 1989 -- Chest x-rays revealed minimal prominence of the interstitial markings consistent with a history of asthma. There was, however, no focal consolidation, pleural effusion, or evidence of pulmonary edema. The heart and bony structures were normal.

January 15, 1989 -- Plaintiff was admitted to the University of California Medical Center in Sacramento for "asthma exacerbation." On physical examination, plaintiff was noted to be "slightly obese." Plaintiff was provided medication with follow-up scheduled for the next day.

May 12, 1995 -- Agency examining psychiatrist Michael Joyce, M.D., performed a psychiatric evaluation incident to a prior application for social security benefits. Plaintiff's chief complaint at the time was that she was "stressed out" and "can't get along with people." Plaintiff reported that, as of that time, her only job had been answering phones for just over two weeks in January 1990, but she quit. Based on an unremarkable mental status examination, Dr. Joyce was unable to provide any Axis I psychiatric diagnosis. The doctor assigned a global assessment of functioning ("GAF") score of 70 on a 100-point scale. As to plaintiff's functional capabilities, Dr. Joyce stated:

This claimant is able to manage funds, identify coins, and make exact change. At this time, she is able to follow simple instructions. She is able to maintain concentration and attention through the twenty-five minute interview. She appears capable of maintaining attendance and performing within a schedule with punctuality and tolerance. Today, she is able to work in coordination with this physician without distractibility. Currently, she appears capable of completing a work day and work week without interruption from psychologically-based symptoms.

At this time, the claimant is able to interact with others appropriately, ask simple questions, request assistance when needed, and adhere to socially appropriate behavior which does not distract others. At this time, she is capable of identifying hazards and taking appropriate precautions.

May 13, 1995 -- Agency examining physician Dale Ando, M.D., conducted an internal medicine examination incident to a prior application for benefits. In addition to her asthma, plaintiff reported chronic low back pain as follows:

. . . The patient has had chronic low back pain since 1987. The pain is in the middle of her back with radiation down to the right leg. Maneuvers that make the pain worse include prolonged sitting, standing, repetitive bending, or lifting. Maneuvers that make the pain go away include Vicodin. She does not use any assistive device in ambulation. . . .

On physical examination, the doctor expressed the following impressions relating to plaintiff's low back pain:

. . . Physical exam shows a moderate decrease in range of motion of the lumbosacral spine, tenderness along the lower lumbosacral junction, increased pain with right straight-leg raising, and no evidence of focal neurologic deficits. In addition, the patient's obesity with a height of 5 feet 3 inches and weight of 220 pounds is a significant etiologic and exacerbating symptomatic factor.

As to plaintiff's functional capabilities, Dr. Ando opined as follows:

Limitations for lifting, carrying, pushing, and pulling: Total weight limitation up to 20 pounds on an occasional basis only. There are no limitations for sitting, walking, or standing. Physical activities that the patient should perform on an occasional basis only include crawling or stooping. Physical findings to suggest these limitations include the findings of: 1) reactive airway disease with mild chronic obstructive pulmonary disease; 2) moderately severe chronic mechanical low back pain.

December 10, 1996 -- Agency consultative physician Scott J. Rose, M.D., completed a psychiatric review technique form incident to a prior application for benefits. Dr. Rose stated that there was no evidence of any psychological history or treatment and concluded that no diagnosis was possible.

February 6, 1997 -- The record contains a report of a psychiatric evaluation performed by agency examining psychiatrist Stephen M. Greenleaf, M.D. Plaintiff's chief complaint at the time was depression. Plaintiff reported that her only job had been for a short time in 1990 as a clerical worker and that she had not worked since then. Following his evaluation, the doctor diagnosed mood disorder secondary to plaintiff's physical problems and assigned a GAF score of 65. Dr. Greenleaf opined that plaintiff has affective and neurovegetative signs of a mild, irritable depression. He concluded that plaintiff could understand, carry out, and remember ...

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