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Jenny J. Jantz v. Michael J. Astrue

November 18, 2011

JENNY J. JANTZ,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANTS.



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

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Jenny J. Jantz ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for disability insurance benefits pursuant to Title II 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

FACTS AND PRIOR PROCEEDINGS*fn2

In August 2007, Plaintiff filed an application for disability insurance benefits, alleging disability as of May 16, 2006. AR 109-111. Plaintiff's application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 69-77, 82-83. Thereafter, ALJ Michael J. Kopicki held a hearing, and issued an order denying benefits on August 28, 2009, finding Plaintiff was not disabled. AR 14-25. On May 7, 2010, the Appeals Council denied review. AR 6-8.

Hearing Testimony

ALJ Kopicki held a hearing on June 4, 2009, in Fresno, California. Plaintiff appeared and testified; she was represented by attorney Jeffrey Milam. Vocational Expert ("VE") Cheryl R. Chandler also testified. AR 26-56.

At the time of the hearing, Plaintiff was forty-three years old. She lived with her husband and three children in Livingston, California. AR 30-31. Her children were nineteen, seventeen and ten years of age, all of whom were attending school. AR 31. Her husband worked as a carpentry estimator. AR 30-31.

Plaintiff graduated high school and has received vocational training in real estate and computer skills. AR 31-32. She is five feet, nine inches tall, weighs one hundred eighty-five pounds, and is left-handed. AR 32.

Other than sharing information about a nutritional supplement with others that permitted her access to the same supplement at no cost, Plaintiff has not worked since the onset of her disability. AR 32-33. She maintains a real estate license, but has not sold real estate. AR 33. She last worked for a mortgage company, but left the job because she "just wasn't feeling good," was "always stressed out," and was in pain. AR 33.

When asked what affected her ability to work most significantly, Plaintiff responded "[p]ain." AR 33-34. The pain is in her back, neck, arms and legs. AR 34. She was diagnosed with fibromyalgia back in 1994 or 1996, but then she could manage working. AR 34. The condition worsened in 2006, but Plaintiff could not explain how. AR 36. When asked whether she takes medication to treat the fibromyalgia, Plaintiff testified that she had been prescribed the following medications: Oxycontin, Hydrocodone, Cymbalta, and Impremine. AR 36. She indicated that the medications help "sometimes," but when she is in excruciating pain the medications do not help. AR 37. The side effects of the medications make her feel "drugged." AR 37, 47.

Plaintiff also treats her fibromyalgia by using ice once a week. AR 47. Difficulty concentrating is an issue as well. Plaintiff can read for about ten minutes before having to reread the passage. AR 48. Additionally, she does not remember what people tell her. AR 55. Plaintiff attributes her occasional inability to get out of bed and stand or walk to fibromyalgia. Plaintiff estimated that she is unable to get herself out of bed about two days a week. AR 54-55. That inability is caused by pain and fatigue. AR 54. She occasionally has difficulty sleeping, but even on good days does not awaken feeling refreshed. AR 54. Other than the pain and fatigue, Plaintiff indicated she cannot be touched due to the tenderness she feels. AR 55.

Plaintiff has had arthroscopic surgery on her left knee. AR 34-35. The surgery did not alleviate the pain, nor did injections or physical therapy. AR 35. When asked where the pain was located on the knee, Plaintiff indicated it was a sharp pain on the inside part of the knee. Walking worsens the condition and elevating the knee relieves the pain. AR 35. The left knee is worse than the right knee. AR 35. Swelling in the knees has always been a problem. AR 46-47. Plaintiff does not wear a brace, but will occasionally ice her left knee. AR 47.

A Dr. Winkler is Plaintiff's primary care physician and she sees Lauren Anderson for psychological therapy. AR 37-38. When she was asked whether she had symptoms of anxiety or depression, Plaintiff described feeling hopeless because she is "in pain all the time" and is unable to do what she wishes to do. AR 38. She felt anxiety and depression prior to filing her claim. AR 39. Plaintiff replied "I don't know" in response to whether the medications prescribed to her help her and whether there are any side effects from those medications. AR 38. Plaintiff no longer attends mental health counseling because Dr. Anderson "closed her practice." AR 38.

Asked to describe a typical day, Plaintiff indicated that she gets up at 7 a.m. to wake her children. If she feels well enough, she makes her youngest breakfast and takes him to school. If she does not feel well, she goes back to bed and her two oldest children see to the youngest's breakfast and get him to school. AR 39. Assuming she takes her youngest to school, she returns home and cleans up the kitchen or lies down. AR 39. Plaintiff delegates the vacuuming, sweeping and mopping to her children. She does do laundry. AR 40. She enjoys working in the yard, but does only "a little." AR 40. When asked about television, Plaintiff indicated the television is not on during the day, but she typically watches about two hours in the evening. AR 40. She reads the bible and self help books. AR 40-41. She spends about a half an hour every day on the computer, checking email. AR 41. She watches her children play school sports, but does not make it to all the games. AR 41, 46. She is no longer a member of any clubs or organizations. AR 41-45. Plaintiff attends religious services occasionally or about once a month. AR 41, 45. She seldom socializes with friends because she does not physically feel well enough to do so. AR 42, 45.

Plaintiff estimated she could walk for about thirty minutes, stand for about an hour and sit for about an hour. She can lift about fifteen pounds. AR 42. After the onset of disability in mid 2006, it became necessary for Plaintiff to lie down about six times a day, for about twenty minutes at a time, in an eight-hour time period. AR 43. If she were to be on her feet for thirty to sixty minutes, her legs would give out. AR 43. The pain worsens with either walking or standing. AR 46.

With regard to her upper extremities, Plaintiff indicated that on a good day she could handle, write and reach for about thirty minutes before needing to rest, and then could resume the activity after about fifteen minutes. However, it would get progressively more difficult throughout a day. AR 43-44.

VE Chandler classified Plaintiff's past work as: grocery clerk, medium as performed and semi-skilled with an SVP*fn3 of three; and loan officer, sedentary and skilled with an SVP of 6. AR 49-50.

The VE was asked to consider a hypothetical worker of Plaintiff's age, education and work history, whom could lift and carry twenty pounds occasionally and ten pounds frequently, whom could stand or walk for two hours in an eight-hour day, sit for six hours in an eight-hour day, and could occasionally climb, balance, stoop, kneel, crouch and crawl, but whom was to avoid concentrated exposure to heights and dangerous machinery. AR 51. The VE indicated such an individual could perform Plaintiff's past relevant work as a loan officer. AR 51.

In a second hypothetical, the VE was asked to assume the same hypothetical worker with the additional limitations of depression and anxiety, and the ability to perform simple, routine work activities. AR 51. VE Chandler indicated the individual would be unable to perform Plaintiff's past relevant work, but could perform other sedentary, unskilled work. AR 51-52.

In a third hypothetical, the VE was asked to consider a hypothetical worker of Plaintiff's age, education and work history, whom could lift and carry five pounds, and whom could sit for two hours and stand or walk for one hour each in an eight-hour day. AR 52. The VE indicated that such an individual could not perform Plaintiff's past relevant work nor any other work in the national economy. AR 52.

Plaintiff's counsel asked the VE to consider the same individual as posed in the second hypothetical with an additional limitation to no more than occasional use of the upper extremities. The VE indicated that the sedentary, unskilled work would be unavailable to such a worker. AR 52.

Medical Record

The entire medical record was reviewed by the Court. AR 139-267. Relevant medical evidence will be referenced below if necessary to 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 14-25.

More particularly, the ALJ found that Plaintiff last met the insured status requirements on March 31, 2007,*fn4 and had not engaged in substantial gainful activity since May 15, 2006. AR 16. Further, the ALJ identified arthritis of the knees and fibromyalgia as severe impairments. AR 16-18. 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 18-19.

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 stand and/or walk for two hours in an eight-hour work day, to sit for six hours in an eight-hour workday with normal breaks, with unlimited pushing and pulling, and occasional climbing, balancing, stooping, kneeling, crouching or crawling; she was to avoid concentrated exposure to hazardous machinery and heights, and uneven terrain. AR 19-24.

Next, the ALJ determined that Plaintiff could perform her past relevant work as a loan officer. AR 24-25. Therefore, the ALJ determined Plaintiff was not disabled. AR 25.

SCOPE OF REVIEW

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).

REVIEW

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. § 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 other kind of substantial gainful work which exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

Here, Plaintiff argues the ALJ failed to properly evaluate her impairment pursuant to Listing 1.02A, failed to properly evaluate her mental impairment, and failed to articulate specific and legitimate reasons for rejecting ...


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