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Darla Tyler v. Michael Astrue

June 25, 2012

DARLA TYLER,
PLAINTIFF,
v.
MICHAEL 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 Darla Tyler ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her applications for disability insurance and supplemental security income benefits pursuant to Titles II and 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 applications for benefits in April 2007, alleging disability as of January 31, 2004. AR 89-100. Plaintiff's applications were denied initially and on reconsideration; she then requested a hearing before an Administrative Law Judge ("ALJ"). AR 43-47, 50-55, 57. ALJ Laura Speck Havens held a hearing and subsequently issued an order denying benefits on October 13, 2009, finding Plaintiff was not disabled. AR 9-16. On March 14, 2011, the Appeals Council denied review. AR 1-3.

Hearing Testimony

ALJ Havens held a hearing on May 7, 2009, in Stockton, California. Plaintiff appeared and testified; she was assisted by attorney Gina Fazio. Vocational Expert ("VE") George Meyers also testified. AR 17-35.

Plaintiff was born March 6, 1966, and thus was forty-three years old on the date of the hearing. AR 22. She lives in an apartment with her boyfriend and her children, two of whom live at home. They are eighteen and fourteen years old. AR 23-24.

She completed the eleventh grade, but did not earn a diploma or receive any vocational training. AR 22. Plaintiff can read the newspaper and perform simple mathematical calculations. AR 22. She does not have a driver's license nor has she ever had one. She depends upon her boyfriend for transportation. AR 25.

While her application indicated she became disabled as of January 31, 2004, Plaintiff could not remember why she selected that date; she has not worked since that date. AR 23. From 2000 to 2004, Plaintiff worked on an assembly line. She did not work between 1994 and 2000. AR 23.

Asked about her day, Plaintiff indicated she gets up about 5 a.m. She is able to bathe and dress without assistance. She does chores around the apartment, cooks, washes dishes, mops and sweeps, does laundry and shopping. AR 24. She watches a couple hours of television a day. AR 25. She used to enjoy puzzles, but she no longer does them. AR 25. Because her hands and wrists bother her, she also no longer enjoys doing macrame or "plastic canvasses." AR 30.

Plaintiff suffers from Crohn's Disease, colitis, knee pain and carpal tunnel syndrome. AR 23. She feels pain in her stomach and wrists. AR 27. Plaintiff has problems eating because there are certain foods she cannot eat. AR 25. Spicy foods hurt her stomach. AR 28. Additionally, she only sleeps about four hours a night. AR 25-26. Plaintiff estimated she could walk or stand for about thirty minutes at one time; she can sit for about thirty minutes as well. AR 27. After walking for about thirty minutes, her legs and back begin to hurt. AR 29. Her back also bothers her when she is sitting. AR 30. She can lift about ten pounds. AR 27.

On average, Plaintiff sees her primary care physician, Danielle Myers, every three months or so. AR 26-27. Regarding her wrists, Plaintiff mainly feels pain in her right wrist; she is right-handed. AR 27. She is able to pick up a book or a cup, can move her fingers on a keyboard, and can feel hot and cold. AR 27-28. She has not had any testing done on her hands however. AR 30. The stomach pain she feels every day, constantly. It is a "raw, sharp pain." On a scale of one to ten, Plaintiff rated that pain as an eight. AR 28.

Plaintiff has undergone two surgeries and "three-fourths of [her] large intestine" were removed. AR 28. She did feel better after the surgeries, the last of which was performed a couple years ago, but her stomach does still hurt. AR 28-29. She is not scheduled to undergo any further surgery at this time. AR 29.

Because of the surgeries, Plaintiff has to use the restroom about fifteen times a day, for about five minutes at a time. This is an increase over pre-surgery restroom usage. AR 29. When she was asked what kept her from working, Plaintiff indicated her stomach pain and the need to use the bathroom frequently. AR 30.

VE Meyers identified Plaintiff's past work as a bottle line attendant, DOT*fn2 920.687-042, light and unskilled, with an SVP*fn3 of one, although Plaintiff performed the work at the medium level. AR 31.

In the first hypothetical question, the VE was asked to consider an individual of Plaintiff's age, education and experience, who can sit eight hours in an eight-hour day, can stand for three hours in an eight-hour day, can walk for three hours in an eight-hour day, with a sit/stand option, can occasionally lift and carry twenty pounds, can frequently lift and carry ten pounds, and can occasionally climb, balance, stoop, kneel, crouch and crawl, and finally, who must avoid concentrated exposure to temperature extremes, vibration, heights and moving machinery. AR 31. VE Meyers indicated such an individual could not perform Plaintiff's past work. AR 31-32. However, such an individual could perform the following work: (1) storage rental clerk, DOT 295.367-026, light and unskilled, SVP of 2, with a twenty percent erosion to account for the sit/stand option, leaving 9,000 jobs in California; (2) officer helper, DOT 239.567-010, light and unskilled, SVP of 2, with a twenty-five percent erosion to account for the sit/stand option, leaving 25,000 jobs in California; and (3) order clerk, DOT 209.567-014, sedentary and unskilled, SVP of 2, with a forty percent erosion to account for the sit/stand option, leaving 6,000 jobs in California. AR 32.

VE Meyers was asked by Plaintiff's counsel to consider a further limitation where an individual such as Plaintiff must use the restroom about fifteen times a day for about five minutes at a time. The VE indicated such an individual would be unable to maintain employment on a sustained basis. AR 32-33. When asked by counsel whether a sedentary RFC with the limitations of never climbing, stooping, kneeling, crouching and crawling, would change his opinion about the individual's ability to do other work, VE Meyers indicated such an individual could still perform the work of an order clerk without the need for erosion, leaving 10,000 jobs in California. AR 33.

Medical Record

The entire medical record was reviewed by the Court. AR 155-737. 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 9-16.

More particularly, the ALJ found that Plaintiff had not engaged in substantial gainful activity since January 31, 2004. AR 11. Further, the ALJ identified Crohn's disease, colitis, and knee pain as severe impairments. AR 11. Nonetheless, the ALJ determined that the severity of the Plaintiff's impairments or ...


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