The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT
Plaintiff Leticia Anaya ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for supplemental security income benefits pursuant to Title XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Gary S. Austin, for findings and recommendations to the District Court.
FACTS AND PRIOR PROCEEDINGS*fn1
Plaintiff filed an application for benefits on March 21, 2000, alleging disability as of December 29, 1999. AR 156-159. Plaintiff's application was denied initially and on reconsideration; she then requested a hearing before an Administrative Law Judge ("ALJ"). AR 59-62, 66-70. Thereafter, following two previous unfavorable decisions in 2001 and 2003,*fn2 and two remand orders by the Appeals Council, ALJ Howard K. Treblin held a third hearing and subsequently issued an order denying benefits on February 7, 2008, finding Plaintiff was not disabled. AR 24-34. On July 30, 2010, the Appeals Council denied review of the 2008 decision. AR 8-10.
ALJ Treblin held a hearing on August 24, 2006, in Stockton, California. Plaintiff appeared and testified with the aid of an interpreter; she was assisted by attorney Gina Fazio. Vocational Expert ("VE") George Meyers also testified. AR 700-718.
Born November 1, 1960, Plaintiff was forty-five years old on the date of the hearing. AR 703. She is five feet, two inches tall and weighs 230 pounds. AR 703. She lives with her husband and two children; her husband supports the family. AR 709.
Although Plaintiff has a driver's license, she is unable to drive because she becomes dizzy and unfocused. One of her physician's advised her not to drive, although the Department of Motor Vehicles has not moved to take her license. AR 704. Her husband drove her to the hearing. AR 704. When Plaintiff was asked when she last drove, she indicated she had driven the day prior to the hearing. When asked how often she did so, Plaintiff indicted she drives her children to school only "two blocks away." AR 711.
When asked to identify the last grade in school she completed, Plaintiff indicated that she completed junior high school in Mexico. She can read "very little" English and can write "[a] little" English AR 704. Further, she can speak a "little" English but understands "very little." AR 704-705. She can add, subtract, multiply and divide. AR 705.
Plaintiff last worked in 1999, for about four months, sorting almonds.*fn3 Prior to that position, she worked in a winery. AR 705. Plaintiff stopped working due to headaches, hospitalization, and problems with her chest, arms, back, knees and feet. AR 705.
With specific regard to seizures, Plaintiff reported that she continues to have seizures two to three times per week. AR 705-706. When she was asked to describe the seizures, Plaintiff indicated they "start with strong headaches," then her body trembles, and she becomes tired, weak and nauseous. The seizure itself lasts "seconds," but she is tired and unable to walk for as long as a week thereafter. AR 706. Plaintiff takes medications to treat this condition as prescribed and the medications do help. AR 706. While approximately two years ago Plaintiff's seizure condition had begun to improve, it is now worsening. AR 712. Additionally, Plaintiff suffers from depression; however, she does not take medication related to this condition. AR 706.
Plaintiff sees her doctor twice a month. AR 706. She has more bad days than good days. AR 707. With regard to her complaints of pain, Plaintiff takes Propranolol, Celebrex and Vicodin. She has been taking Vicodin three times a day for the previous six months. AR 707. Aside from an allergic reaction to Tegretol and potential weight gain from Depakote, Plaintiff's side effects from prescription medication include nausea and dizziness. AR 707-708.
When she was asked whether she does anything throughout the day that makes her feel better, Plaintiff indicated she feels better with rest. AR 708. More particularly, Plaintiff will rest for a half hour or an hour, four times a day, for a total of two to four hours per day. AR 708. Cold, heat, odors and light can make her feel worse. AR 708. Dust, cleansers and anxiety negatively affect her breathing. AR 711-712. She believes her condition has worsened rather than improved. AR 708.
Plaintiff can lift and carry five to ten pounds, but her "arms hurt a lot." AR 708. She has difficulty using her hands because "they hurt." AR 709. Plaintiff can sit for about one hour. AR 708-709. She cannot walk much because "when [she] gets agitated, [her] head hurts." Plaintiff estimated she could walk about ten minutes. AR 709. She can stand for about an hour. She has difficulty bending. AR 709. Further, Plaintiff has difficulty with concentration, focus and memory, and also has difficulty getting along with others. AR 709. Plaintiff does not sleep well, getting about four to five hours of sleep per night. She does not wake feeling rested. AR 709-710.
Plaintiff denied any difficulty seeing to her personal needs. AR 710. When she gets up in the morning, she cleans herself up, wakes up the children, and helps them get ready for school. AR 710. She does cook, but her husband helps her with cleaning on the weekends. AR 710. Plaintiff does the laundry and washes the dishes. She cannot grocery shop without assistance. AR 710. After cooking, Plaintiff will watch television with her children and get them ready for the next school day. AR 711.
When asked whether she had any hobbies or activities she used to enjoy but is no longer able to do, Plaintiff indicated that she used to enjoy painting ceramic animal figurines but she can no longer do so. AR 711.
After Plaintiff testified to having "some testing" in June and being advised that she suffered "a stroke [or] malfunction in [her] brain," the ALJ left the record open to ensure Plaintiff's counsel provided any relevant medical records. See AR 712-713, 718; see also AR 613 (May 2008 brain scan).
VE George Meyers described Plaintiff's past work as that of a sorter, DOT*fn4 529.687-186, light and unskilled with an SVP*fn5 of 2, and bottle line attendant, DOT 920.687-042, light and unskilled with an SVP of 1. AR 714.
The VE was asked to consider a hypothetical worker of Plaintiff's age, education and work history, who is able to lift and/or carry, push and/or pull, ten pounds frequently and twenty pounds occasionally, who can sit, stand, and/or walk for six hours in an eight-hour day with normal breaks, but must avoid ladders, ropes, scaffolds, and avoid exposure to hazards such as machinery and heights, and high concentration to fumes, odors, dusts, gases and poor ventilation, and who may perform unskilled work on a regular and continuous basis, with the ability to interact appropriately with supervisors, co-workers and the public, and could withstand routine changes in work situations. AR 714-715.
VE Meyers indicated the hypothetical worker could not perform Plaintiff's past work as a result of the necessity of avoiding high concentrations of odors and gases. AR 715. Nevertheless, the VE indicated such an individual could perform the following work: housekeeper, DOT 323.687-014, light and unskilled with an SVP of 2, with 16,000 available positions in California and 272,000 positions available nationwide; laundry worker, DOT 920.687-018, light and unskilled with an SVP of 1, with 22,000 available positions in California and 374,000 positions available nationwide; and cashier, DOT 211.462-010, light and unskilled with an SVP of 2, with about 45,000 positions available in California after a fifty-percent erosion to accommodate the educational restriction, and 725,000 positions available nationwide. AR 716.
In a second hypothetical question, the VE was asked to consider a hypothetical worker of Plaintiff's age, education and work history, who is able to lift and/or carry twenty pounds frequently and fifty pounds occasionally, has no limitations regarding standing, walking or sitting, and who should never perform balancing, climbing ladders or stairs, and should avoid unprotected heights, with a limitation to simple unskilled tasks with an ability to maintain an acceptable persistence in pace during a forty-hour work week, and who could interact appropriately with co-workers, supervisors and the public, and could withstand changes and deal with routine work situations. AR 716. VE Meyers indicated this individual could perform Plaintiff's past work as a bottle line attendant. AR 716. That individual could also perform other work, including that of a: warehouse worker, DOT 922.687-058, medium and unskilled with an SVP of 2, with 25,000 positions available in California and 425,000 positions available nationwide; hand packer, DOT 920.587-018, medium and unskilled with an SVP of 2, with 12,000 positions available in California and 204,000 positions available nationwide; and hospital cleaner, DOT 920.687-010, medium and unskilled with an SVP of 2, eroding the base by fifty-percent to accommodate language and educational concerns, for approximately 80,000 positions available in California and 1.4 million positions nationwide. AR 716-717.
Finally, the VE was asked to consider the following hypothetical worker who is able to lift and/or carry five pounds frequently, 10 pounds on occasion, same with pushing and pulling, with no overhead activity, sitting for one hour at a time, standing for less than one hour at a time, walking about ten minutes at a time, occasional bending at best. Use of the hands in intact, marked limitations in understanding and remembering, carrying out even simple tasks, marked limitations in dealing with others, environmental limitations of avoiding unprotected heights, dangerous moving machinery, extreme heat which would be in excess of 90 degrees, extremely cold temperatures below 50, would need to avoid odors, dusts, environmental pollutants, avoid loud noises, the full seizure precautions and we'd also have a limitation of no 40-hour week on a regular continuous basis due to the need to take recumbent rest breaks.
AR 717. VE Meyers indicated such an individual would be unable to perform Plaintiff's past work or any other work. AR 717.
The entire medical record was reviewed by the Court. AR 210-627. The medical evidence will be referenced below as necessary to this Court's decision.
Using the Social Security Administration's five-step sequential evaluation process the ALJ determined that Plaintiff did not meet the disability standard. AR 24-34.
More particularly, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the March 2000 application date. AR 27. Further, the ALJ identified proven nonepileptogenic seizures, possible epileptic seizures due to neurocysticercosis, and migraine headaches as severe impairments. AR 27. Nonetheless, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments. AR 28-29.
Based on his review of the entire record, the ALJ determined that Plaintiff has the residual functional capacity ("RFC") to perform simple tasks at the unskilled level, and can sit, stand and walk for six hours each in an eight-hour workday with normal breaks, can lift ten pounds frequently and twenty pounds occasionally, but should avoid climbing ladders, ropes, and scaffolds, and avoid exposure to hazards such as moving machinery and unprotected heights, as well as high concentrations of fumes, odors, dusts, gases, and poor ventilation. AR 29-33.
Next, the ALJ determined that Plaintiff could not perform her past relevant work. AR 33. Nevertheless, based upon Plaintiff's age, education, work experience and RFC, the ALJ determined there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. Specifically, the ALJ found Plaintiff could perform the work of a housekeeper, laundry worker, or cashier. AR 33-34. Therefore, the ALJ determined Plaintiff was not disabled. AR 34.
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 ...