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Roxanne M. Rosales v. Michael J. Astrue

December 1, 2011

ROXANNE M. ROSALES,
PLAINTIFF,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Roxanne Rosales ("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 Magistrate Judge Gary S. Austin for findings and recommendations to the District Court.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed an application for Social Security Disability Insurance Benefits on April 16, 2007, alleging disability beginning August 8, 2006. AR101-107. Plaintiff's applications were denied initially and on reconsideration. AR 47-60, 63-67, 69-75. Subsequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 75. ALJ Sharon L. Madsen held a hearing on March 5, 2009, and issued an order denying benefits on July 15, 2009. AR 8-19. The Appeals Council issued a decision affirming the ALJ's order. AR 1-3.

Hearing Testimony

ALJ held a hearing on April 28, 2009. Plaintiff personally appeared and was assisted by attorney Mr. Myland.*fn3 AR 20-46. Vocational Expert ("VE") Ms. Cheryl Chandler also testified.

Plaintiff was thirty-two years old at the time of the hearing. AR 24. She is married and lives in a condominium with her husband AR 25. Plaintiff receives food stamps. AR 25. Her husband was going to start a new job the day after the hearing. AR 25. Plaintiff attended college and has a bachelor's degree. AR 25-26 She also has a drivers license. AR 25.

Plaintiff does all of the household chores including cooking, cleaning the dishes, making the beds, and shopping. AR 26. She does not belong to any social groups but speaks with her family on the phone. AR 26. During a typical day, Plaintiff showers, eats breakfast, cleans the cat's litter box and gets the mail. AR 27. During the rest of the day she plays on the computer, sews, watches television, and does household cleaning as needed. These tasks usually include vacuuming, sweeping, mopping, and taking out the garbage. AR 27. Although Plaintiff is able to do household chores, she is not able to do them all at once. For example, she is only able to vacuum one level of the house in a day, she in unable to carry the grocery bags in from the car, and she must take frequent breaks in between tasks. AR 37.

At the age of sixteen Plaintiff began working in retail sales. AR 27. She worked in that field for approximately four years. AR 28. She also worked for a company called Pack Bill in 2007 but was let go in exchange for her vacation time. She subsequently worked for the Internal Revenue Service doing seasonal data entry work from February through June 2008. AR 28. Most recently, she was employed by AT&T as a customer service representative. This position entailed answering telephones, working on the computer, and sitting at the desk most of the time. AR 27.

Plaintiff believes that she is unable to work full-time even doing data entry because she has low back problems due to her weight and is she unable to sit for long periods. AR 29. She also suffers from depression, anxiety, and irritable bowel syndrome. AR 29-30. The irritable bowel syndrome is stress related which is currently exacerbated because she does not have any income. AR 30. When the irritable bowel syndrome flares up she has to go to the bathroom ten to twelve times in an eight hour period. AR 30. Plaintiff has been prescribed medication to treat the condition but it has not been effective at reducing the number of times she needs to use the bathroom. AR 30. Each visit to the bathroom lasts from five to ten minutes. AR 30. Plaintiff has never had an accident because she is always near a bathroom. AR 31.

In addition to the irritable bowel syndrome, Plaintiff suffers from constant lower back pain. AR 32. The pain feels like tightness that shoots down her leg to her foot. AR 32. She also suffers from pain in her feet from plantar fascitis As a result, Plaintiff is only able to lift ten to fifteen pounds, stand for approximately fifteen minutes at a time, and sit for approximately thirty to forty five minutes. AR 32-33. Plaintiff also suffers from edema in her knee which causes her pain two or three times a week. She currently receives pain injections to address this condition. AR 34. To treat her back and leg pain, Plaintiff stretches, gets messages, takes showers, and uses a hearing pad and ices packs. AR 35. She also elevates her legs approximately two to three hours a day. AR 35.

In addition to these physical ailments, Plaintiff also suffers from psychological difficulties. AR 35. She attempted suicide by taking a full bottle of Xanax. AR 36. She does not remember much about the incident other than she attempted to walk up the stairs and fell after taking the pills. The next thing she remembers is that she was at the emergency room with her mother. AR 36.

Plaintiff has limited her contact with friends and family because "she doesn't like to bring them down." AR 38. She will occasionally send short e-mails to family members but has difficulty concentrating. The longest she can concentrate is approximately thirty minutes. AR

39. She also has difficulty with her voice when under stress. AR 38. Plaintiff indicated that she would like to return to school but is unsure how she will do so with the status of the economy. She is currently waiting to be called back by the IRS for additional seasonal work. AR 39.

Ms. Chandler also testified at the hearing. AR 41-46. The VE classified Plaintiff's work as a customer service representative in communications as skilled sedentary work. Additionally, it was noted that this work was similar to a cashier/sales clerk which is classified as semiskilled and light. AR 41. Finally, the data entry work is classified as sedentary work. AR 41.

The VE was asked to consider a hypothetical in which an individual could lift twenty pounds on occasion and ten pounds frequently, who could sit, stand, and walk for six hours, and who could occasionally stoop, crouch, crawl, kneel, and climb. AR 36. The person could not perform jobs where frequent or loud communication is required. The VE indicated this person would be unable to perform Plaintiff's past work as a customer service representative and sales clerk. AR 42. However, some data entry jobs would be available. AR 42.

The VE was asked to consider a second hypothetical in which the factors were the same as the first hypothetical but that this person would need a sit and stand option. The VE indicated that this person would still be able to do Plaintiff's past work performing data entry , however, there would be some erosion in the job base. AR 43. There would be approximately 33,700 jobs available in data entry at the sedentary level. AR 43. There would also be approximately 2,600 jobs available in production work with a sit and stand option. AR 43. These jobs include material handler at 2,200 jobs and 1,000 hand packaging positions. AR 43.

The VE was asked to consider a third hypothetical in which an individual would be required to lift ten pounds on occasion and ten pounds frequently, who could sit, stand, and walk for two hours, who could occasionally stoop, crouch, crawl, kneel, and climb without a stand sit option. The VE testified that production worker and material handler jobs would still be available. AR 43.

When asked to consider a fourth hypothetical that included the same restrictions as hypothetical three, and also added an inability to concentrate for more than thirty minutes at a time, the VE indicated that no jobs would be available. AR 44.

Finally, Plaintiff's attorney asked whether any jobs would be available using the hypotheticals above if an individual would need access to the bathroom ten to twelve times a day with each trip lasting ten minutes, approximately fifty percent of the time. AR 44. The VE indicated that no jobs would be available under these circumstances. AR 44.

Medical Record

The entire medical record was reviewed by the Court (AR196-434), however, only those medical records relevant to the issues on appeal will be addressed below as needed in this opinion.

ALJ Decision

Using the Social Security Administration's five-step sequential evaluation process, the ALJ determined that Plaintiff did not meet the disability standard. AR 18. More particularly, the ALJ found that Plaintiff may have engaged in substantial gainful activity from her alleged disability onset date of August 8, 2006. AR 13. Further, the ALJ identified obesity, degenerative disc disease, muscle tension dysphonia, and right knee osteoarthritis as severe impairments. AR 13. Nonetheless, the ALJ determined the severity of Plaintiff's impairments did not meet or exceed any of the listed impairments. AR 15.

Based on her 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/or walk for six hours out of an eight hour day, and occasionally stoop crouch, crawl, kneel, and climb except that she cannot perform jobs where frequent or loud communication is required. *fn4 AR 15. After noting that Plaintiff is waiting for a call back from the IRS, the ALJ determined that Plaintiff was able to perform her past work as a data entry clerk. AR 18. Moreover, using the ...


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