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Terri L. Eckard v. Michael J. Astrue

February 28, 2012

TERRI L. ECKARD,
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

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Terri L. Eckard ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income 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 the Honorable Dennis L. Beck, United States Magistrate Judge.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed her application on April 25, 2006, alleging disability since June 19, 1998, due to back problems, severe headaches, memory problems and ADHD. AR 113-119, 125-132. After her application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 61-70, 71-79, 93. ALJ Christopher Larsen held a hearing on August 26, 2008, and issued a decision denying benefits on October 24, 2008. AR 26-60, 16-25.

On December 14, 2010, the Appeals Council granted Plaintiff's request for review. It issued a decision on January 28, 2011, finding Plaintiff not disabled.

Hearing Testimony

ALJ Larsen held a hearing on August 26, 2008, in Fresno, California. Plaintiff appeared with her attorney, Dennis Bromberg. Vocational expert ("VE") Thomas Dachelet also appeared and testified. AR 26.

Plaintiff testified that she was born in 1960. AR 32. Plaintiff graduated high school but was unable to complete a secretarial jobs course because it was too confusing. AR 33. She last worked in 2004 at Wal-Mart restocking shelves in the beauty department. AR 33. Plaintiff was fired after a few months because she missed too many days due to pain and was too slow. AR 35.

Plaintiff has back pain that radiates into both legs, and prolonged walking and sitting make it worse. AR 37-38. Medications help a little. Plaintiff was taking Norco, Tramadol and sleeping pills. AR 38. Plaintiff has been using a prescribed walker since 1999 or 2000. AR 40. She used the walker about 60 percent of the time and used a cane the rest of the time. AR 41.

Plaintiff also has migraines almost every day that cause vomiting, sensitivity to light and severe pain. AR 44. Plaintiff takes Adderall for ADHD and thought that it helped a little bit. She thought that she could concentrate for about 30 minutes. AR 45. Plaintiff has panic attacks and frequently thinks about suicide. AR 46. Her medications make it difficult for her to wake up in the morning. AR 47.

Plaintiff lives alone but has friends come over and help with chores. AR 48. She sleeps a lot during the day if she is in pain and maybe watches some television. AR 48. Plaintiff goes to church three times a month and sometimes goes on a quick trip to the store with friends. AR 48.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and work experience. This person can perform work at the light level of exertion, with occasional climbing, stooping, kneeling, crouching or crawling and frequent balancing. This person could understand, remember and carry out simple one or two step job instructions and could only tolerate limited contact with the general public. The VE testified that this person could perform Plaintiff's past work at Wal-Mart, as performed. AR 53-54

For the second hypothetical, the ALJ asked the VE to assume that this person could lift and carry 10 pounds occasionally and frequently, stand and walk a total of two to four hours and sit for six hours. This person would need a sit/stand option. This person could not repetitively stoop, crouch or crawl and could understand, remember and carry out simple one or two step job instructions. The VE testified that this person could not perform Plaintiff's past work but could perform the positions of ampule sealer and loader of semi-conductor dyes. The VE explained that the number of positions available would be reduced by two-thirds because of the sit/stand option. Based on his experience, the VE identified 650 ampule sealer positions in California and 150 loader of semi-conductor dies positions in California. Nationally, 6,500 ampule sealer positions and 1,500 loader of semi-conductor dies positions would be available. AR 54-55.

If this person could only stand or walk with a cane or walker, she could not perform work. AR 56.

If this person could not complete an eight hour work day without interruption from psychologically-based symptoms, this person could not work. AR 56.

Plaintiff's attorney asked the VE to assume a person who could lift and carry 10 pounds occasionally and frequently, stand and walk for two to four hours and sit for six hours. This person would need frequent rest periods while standing and walking and frequent changes in position, would have difficulty walking long distances and could not perform repetitive stooping, crouching and crawling. The VE testified that this person could not work. AR 56-58.

The ALJ asked the VE if his testimony was consistent with the Dictionary of Occupational Titles ("DOT") and the VE indicated that it ...


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