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Carolina Cardenas v. Michael J. Astrue

June 18, 2012

CAROLINA CARDENAS,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Carolina Cardenas ("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 Barbara A. McAuliffe, for findings and recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

On December 13, 2006, Plaintiff filed her first application for disability insurance benefits (DIB) under Title XVI, of the Social Security Act (the Act), alleging disability beginning August 1, 2002. AR 228. Plaintiff's application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge (ALJ). AR 30-43. ALJ Sandra K. Rogers, held a hearing and issued an order denying benefits on May 26, 2009, finding Plaintiff was not disabled. AR 72-84. On September 24, 2009, however, the Appeals Council remanded the case for further proceedings. AR 86-89. On April 28, 2010, the ALJ conducted a second hearing, at which Plaintiff testified. AR 44-62. Following the hearing, ALJ Rogers, issued a July 2010 decision finding Plaintiff not disabled. AR 12-29. This appeal followed.

2009 Hearing Testimony

ALJ Sandra K. Rogers held a hearing on February 10, 2009, in Stockton, California. Plaintiff appeared and testified. She was represented by attorney Poson. Vocational Expert ("VE") Stephen B. Schmidt also testified. AR 32. At the 2009 hearing, Plaintiff testified regarding her back pain and mental health issues. Plaintiff stated that she had "severe lumbar pain" that "radiates down [her] legs," as well as "[s]evere hip pain with arthritis." AR 32-33. She testified that her pain was caused by a car accident in 2002. AR 33. Plaintiff stated that she experiences back pain everyday but her pain medication helped and caused no side effects. AR 33-34. She testified that she previously worked as a cashier at Wal-Mart and K-Mart, but had not worked since her accident in 2002. AR 34. Plaintiff stated she had very low energy, low self-esteem, and did not like to be around other people. AR 35-37. She gets anxious in crowds and prefers to isolate herself. AR 35.

When asked about her recent weight loss, Plaintiff stated that she had formerly weighed 330 pounds. AR 39. She underwent gastric bypass surgery, which resulted in a 140 pound weight loss and she currently weighed 220 pounds. AR 39. She has no friends, and her main motivation is her children.

2010 Hearing Testimony

ALJ Sandra K. Rogers held second a hearing on April 28, 2010, in Stockton, California. Plaintiff appeared and testified. She was represented by attorney Terri Issac. Vocational Expert ("VE") Michael L. Stinson also testified. AR 15.

At the time of the 2010 hearing, Plaintiff was twenty-five years old and weighed 319 pounds.*fn2 Plaintiff lives with her parents, her brother and her three children. She has an 11th grade education and went to school to obtain a medical assistant certification, but never completed the program. AR 47. Plaintiff said that she previously worked as a cashier at Wal-Mart and K-Mart. AR 48.

Plaintiff stated that she suffers from depression, panic attacks, and anxiety. AR 48. With respect to the frequency of her symptoms, Plaintiff stated that she has panic attacks three to four times per week and she takes Klonopin whenever she feels a panic attack starting. AR 48. Although Plaintiff only suffers from panic attacks three to four times a week, she takes two Klonipin twice a day. AR 49.

Asked to describe a typical day, Plaintiff said she generally goes to bed at night around 10:00pm and gets up around 7:00am to get her daughter ready for school. AR 49. She then goes back to bed and wakes an hour later to get her sons up so that she can feed them and watch tv with them. AR 49. Every day, Plaintiff relies on her oldest daughter (8 years old) to bathe and feed her younger sons, ages 4 and 3 because she is too depressed to do so. AR 49-50. She spends about 8 hours in bed during the day, but plays with her kids outside in the morning and cooks meals about two to three times a week. AR 51. Plaintiff stated she is, however, unable to do chores, due to her back pain. AR 51.

With respect to her back pain, Plaintiff stated she suffers from lower back pain about three times a week. AR 51. The pain goes down to her left knee. AR 52. To help with her back pain, Plaintiff takes Methadone. AR 52. With the use of her medication, Plaintiff can bend over, tie her shoes, and dress herself. She cannot lift her three year old son, who weighs 30 pounds, but she can lift 15 to 20 pounds. AR 52. Plaintiff also suffers from arthritis in her hands and knees, which she also treats with Methadone. AR 53. In addition to Methadone, Plaintiff also takes Lithium, Abilify, Trazadone, Effexor, and Klonopin. The side effects from these medications include sleepiness, vertigo, and fatigue. AR 53.

With respect to Plaintiff's drug use, Plaintiff testified that she was attending rehabilitation for her addiction at Aegis, but no longer attends. According to Plaintiff, she has been clean and sober for over four years. AR 56.

Thereafter, the ALJ elicited the testimony of vocational expert Stinson. AR 59.

The VE was asked to consider a hypothetical question posed by the ALJ. First, VE Stinson was asked to consider a hypothetical worker of Plaintiff's age, education, and work experience who is capable of performing medium work that does not involve contact with the public and requires only minimal interaction with co-workers and supervisors, and which involves only simple, repetitive tasks. AR 59. VE Stinson indicated such an individual could perform work as a janitor at the medium level. VE Stinson explained, that work would involve night shift work with only occasional contact with a co-worker or supervisor.

According to the VE, Plaintiff could also perform a number of light, unskilled jobs including housekeeping cleaner and sewing machine operator.

Plaintiff's counsel asked the VE to consider the same individual as posed in the first hypothetical, with an additional limitation that the hypothetical worker has marked difficulties in maintaining social functioning, concentration, persistence and pace; the VE indicated that such an individual could still perform work as a janitor and housekeeping cleaner. AR 61.

Plaintiff's counsel then asked the VE to consider an individual who had a poor ability to deal with work stress, a poor ability to function independently, a poor ability to maintain attention and concentration; the VE indicated that those factors would erode Plaintiff's base to perform work. AR 60.

Medical Record

The entire medical record was reviewed by the Court. AR 282-618. The medical evidence will be referenced below as 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 15-29.

More particularly, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her application date of December 13, 2006. AR 18. Further, the ALJ identified several severe mental and physical impairments including drug abuse, bipolar disorder, arthralgias, obesity, and status post gastric bypass surgery. The ALJ determined that the severity of Plaintiff's impairments met Listing 12.09 (substance abuse addiction) and Listing 12.04 (affective disorder). AR 18. The ALJ found Plaintiff is disabled when her Drug Addiction and Alcoholism ("DAA") is included.

Based on finding Plaintiff disabled and DAA present, the ALJ conducted the required second sequential evaluation to determine whether DAA is material to the disability determination. The ALJ found that if Plaintiff's substance abuse were eliminated, her remaining impairments would not meet or equal a Listing. AR 19. See 20 C.F.R. § 416.935 (noting that if the Commissioner finds an individual disabled, and that evidence shows drug addiction or alcoholism, the Commissioner must determine whether the drug addiction or alcoholism is material to the finding of disability). According to the ALJ, if Plaintiff stopped abusing drugs, she would have the residual functional capacity (RFC) to perform medium work, but could not interact with the public, could interact with co-workers and supervisors only minimally, and could perform only simple, repetitive tasks. AR 19.

Next, the ALJ found that Plaintiff had no past relevant work (AR 26), but when DAA is excluded, she could perform other jobs that existed in significant numbers in the national economy, including sewing machine operator, janitor, and housekeeping cleaner. AR 27-28. Plaintiff would not be disabled if she stopped abusing substances, and therefore, DAA is a contributing factor material to the disability determination. The ALJ ...


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