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Tracie Still v. Michael J. Astrue

January 11, 2012

TRACIE STILL,
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 Tracie Still ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") 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 for Findings and Recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed her application on November 8, 2006, alleging disability since June 1, 2006, due to neurofibromatosis. AR 96-98, 107-113. After the application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 58-61, 64-68, 70. On June 17, 2008, ALJ William C. Thompson held a hearing in Stockton, California. AR 28-52. He issued a decision denying benefits on April 28, 2009. AR 9-27. On February 10, 2011, the Appeals Council denied review. AR 1-4.

Hearing Testimony

ALJ Thompson held a hearing on June 17, 2008, in Stockton, California. Plaintiff appeared with her attorney, Sengthiene Bosavanh. Vocational expert ("VE") Susan Creighton-Clavel also appeared and testified. AR 28.

Plaintiff testified that she was 43 years old at the time of the hearing. She completed the eighth grade and can read and write. AR 31-32. Plaintiff was 5 feet, 8 inches tall and weighed 155 pounds. She is married with two children, ages 24 and 23. AR 32. Plaintiff lives with her husband, who works in restaurant maintenance. AR 33.

Plaintiff last worked over 2 years ago, for one week, and has not tried to work since June 2006. AR 33-34. She explained that she could not work now because of her back, knees and depression. AR 36. Plaintiff recently started seeing a doctor for depression and was told that she's been depressed her whole life. AR 36. Plaintiff is taking medication for her depression but isn't sure yet if it's working. AR 36-37. Her depression bothers her all day, every day. AR 37.

Plaintiff also explained that her back hurts a lot, though she is not receiving medical treatment for it. She has been taking medication for inflammation. The pain is across the lower part of her back and goes into her legs. Her back hurts 4 or 5 times a day, mostly when she's sitting down and then stands. AR 38. Plaintiff was referred to the University of San Francisco. AR 38. Plaintiff has arthritis in both knees and doctors don't know how to help because of the neurofibroma. AR 38. She received left-knee injections in the past but they did not help. AR 42, 44.

During a typical day, Plaintiff gets up, lets her dogs out, lays back down and then tries to clean up a little. She basically lays on the couch and watches television. She dusts, sweeps and vacuums only once a week because she doesn't have the strength or motivation to do it more often. Plaintiff can vacuum for 10 minutes and then has to stop because it hurts to bend over. Plaintiff doesn't do much cooking but uses the microwave. AR 39. She does not participate in activities away from home because she doesn't want to go outside or be with other people. AR 40.

Plaintiff thought that she could only walk from the hearing room to the parking lot because of pain in her knees. She does not use a cane, but thought that she should probably have one. She could stand for 10 to 15 minutes at most before needing to stop because of pain in her back and left leg, and dizziness. Plaintiff could sit for 10 to 15 minutes before needing to get up. AR 40. She could take care of her personal hygiene and dress herself. AR 41.

Plaintiff can only sleep after taking over-the-counter sleeping pills. AR 40-41.

When questioned by her attorney, Plaintiff testified that she has very bad varicose veins in her left leg that have burst 3 times in the last 8 months. Her veins cause constant pain and tingling and she can't scratch them for fear that they will burst. AR 42-43.

Plaintiff also has trouble concentrating and forgets everything she reads. She thought she could read for about 10 minutes. AR 45. Plaintiff also forgets to do things and has problems with stress and anxiety. Little things frustrate her. AR 45. Plaintiff told her attorney that she thought she could lift 5 or 6 pounds and sit for 30 minutes at one time. Plaintiff's smoking has increased because she is scared of what's going on. AR 46.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and experience. This person could lift 20 pounds occasionally, 10 pounds frequently, stand and walk in combination for 2 hours a day and sit for 6 hours a day. This person could occasionally bend, stoop, twist, squat, kneel, crawl and climb stairs but could not climb ladders or scaffolding. This person could not work at heights and could not operate foot controls. The VE testified that this person could not perform Plaintiff's past relevant work but could perform the light positions of parking lot attendant, office helper and storage facility clerk. This person could also perform the sedentary positions of telephone clerk, charge account clerk and electronics assembler. AR 48-49.

Plaintiff's attorney asked the VE to assume a person who could sit for 4 hours, stand and walk a total of 1 hour and could not run, jump, climb, kneel or crouch. The VE testified that this person could perform the positions previously identified, but the ALJ would need to "look at substantial gainful employment because it's only six hours." AR 49.

If this person could only concentrate for 10 minutes at a time, all positions except electronics assembler would be available. AR 50.

The ALJ asked the VE if all jobs would remain if the person could stand and walk for 2 hours total and sit for 8 hours total. The VE testified that all jobs previously identified would be available. AR 50.

Medical Record

On January 29, 2007, Plaintiff saw Michael Bass, M.D., for a consultive neurologic examination. Plaintiff complained of left leg pain and reported a 20-year history of skin lesions from neurofibromatosis. Plaintiff also complained of low back pain and she believed that one leg was longer than the other. Plaintiff told Dr. Bass that she quit her job at a dry cleaner on June 1, 2006, because she could not take the leg pain anymore. In the last five days, Plaintiff developed right upper quadrant pain, which made her miserable during the interview. Plaintiff reported that she takes care of her daughter and cleans the house, but doesn't stay on her leg very long. AR 178.

On examination, range of motion testing was normal and straight leg testing was negative. AR 180. Plaintiff's left leg was 3 mm shorter than the right, and her left hip was held higher as a result. Plaintiff's skin had several cafe au lait spots and there were numerous scattered lesions which seemed to be fibroma molluscum (papules typical of neurofibromatosis). Plaintiff's left knee bulged from the top of the knee down to the mid-tibial region anteriorly with soft subcutaneous tissue that felt lipmatous and was moderately tender. The region was covered with superficial varicose veins and Plaintiff reported that the entire region was somewhat numb to the touch. AR 180-181. Plaintiff also had exquisite tenderness over the lower right rib cage anteriorly, with no abdominal tenderness. Plaintiff's neurologic examination was normal, with normal muscle strength, bulk and tone. AR 181.

Dr. Bass diagnosed neurofibromatosis with painful deformed left*fn2 leg from tumor activity and a probable small fracture or neoplastic involvement of the right lower anterior rib cage. He opined that Plaintiff could stand or walk for 30 minutes at a time, for a total of 4 to 6 hours, and sit for 30 minutes at a time, for a total of 6 hours. She did not need an assistive device for ambulation. Plaintiff could not kneel, crouch, crawl or climb. Plaintiff could push, pull, grasp, manipulate, finger and feel with her hands and arms without limitation. AR 181-182.

On April 20, 2007, State Agency physician S. V. Reddy, M.D., completed a Physical Residual Functional Capacity Assessment form. Dr. Reddy opined that Plaintiff could lift and carry 20 pounds occasionally, 10 pounds frequently, stand and/or walk for at least 2 hours in an 8 hour day and sit for about 6 hours in an 8 hour day. Plaintiff could not frequently push or pull with the left lower extremity and needed to be allowed to change position from sit to stand, or vice versa, for a minute every hour as needed to relieve discomfort. Plaintiff could occasionally climb ramps and stairs but could never climb ladders, ropes or scaffolds. She could occasionally balance, stoop, kneel, crouch and crawl. Plaintiff had to avoid concentrated exposure to hazards. AR 183-188. This opinion was affirmed on June 26, 2007. AR 196.

On April 26, 2007, Plaintiff began seeing Pamela Cushenberry, M.D. She complained of pain in her left knee for over a year and swelling. Plaintiff explained that it sometimes felt like her knee was going to give out. On examination, her gait was normal. Sensation was normal and she had no motor or sensory deficits. There was no atrophy and motor strength was 5/5 in all extremities. Plaintiff had no edema in any extremity and peripheral pulses were intact. There was pain with full extension of the knee and positive "Mcmurrays" with external movement. Dr. Cushenberry assessed joint pain in the left leg and prescribed naprosyn. She also ordered x-rays and referred Plaintiff to an orthopedist for further evaluation. AR 192-194.

On June 6, 2007, Plaintiff began treating with Jerome M. Weiss, M.D., for left knee pain. She reported difficulty with both knees, with the left significantly more symptomatic. Plaintiff reported that her knees were also weak and ranked her pain at an 8 out of 10. Walking and bending worsened her symptoms. Plaintiff had 4 prior surgeries to her left knee and leg, as well as surgery at the Mayo Clinic for neurofibromatosis. On examination, Plaintiff was in no acute distress and ambulated without a limp into the examination room. Range of motion of the left knee was 0 to 100 degrees, with pain and crepitus on patellofemoral manipulation. Soft tissue swelling was present over the lower leg, with a mass effect present to palpation. Plaintiff also had various nodules of skin on various parts of her body. Dr. Weiss diagnosed neurofibromatosis of the left leg, chondromalacia patella and osteoarthritis in the left knee, rule out recurrence neurofibromatosis or other. He ordered an MRI and x-rays. AR 300-301.

June 6, 2007, x-rays of her left leg revealed findings suggesting prior fracture of the left tibial diaphysis and possibly the left fibular diaphysis as well. If she had no history of prior trauma, a nuclear bone scan was recommended. AR 302.

Plaintiff underwent an MRI of her left knee on July 14, 2007. The test revealed (1) a fairly large soft tissue mass involving the left knee joints, consistent with Plaintiff's history of neurofibroma; (2) severe chondromalacia and chondral delamination injury involving the medial knee compartment and medial patellar facet; and (3) a moderate-sized popliteal cyst. AR 296-297.

Plaintiff returned to Dr. Weiss on July 26, 2007, and still had persistent pain in her left knee. An MRI was consistent with neurofibroma. The MRI also revealed chondromalacia and articular demyelination involving the medial compartment and medial patellar facet. Plaintiff ...


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