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Jackie Walker v. Michael Astrue

July 12, 2012

JACKIE WALKER,
PLAINTIFF,
v.
MICHAEL 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 Jackie Walker ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") 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 Magistrate Judge Barbara A. McAuliffe, for findings and recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed an application for benefits on December 26, 2007, alleging disability beginning September 25, 2007, due to mental impairments. AR 37, 101. Plaintiff's application was denied initially and on reconsideration, and she requested a hearing before an Administrative Law Judge ("ALJ"). AR 71-72. ALJ Daniel Heely held a hearing and subsequently issued an order denying benefits on December 3, 2009, finding Plaintiff was not disabled. AR 14-30. This appeal followed.

Medical Record

The entire medical record was reviewed by the Court. AR 112-255. The medical evidence will be referenced below as necessary to this Court's decision.

Hearing Testimony

ALJ Heely held a hearing on August 4, 2009. Plaintiff appeared and testified; she was assisted by attorney Gina Fazio. Vocational Expert ("VE") George Meyers also testified. AR 31.

At the time of the hearing, Plaintiff was fifty-four-years old and living in California, with her husband and her 37-year-old son, both of whom worked. AR 40-41. Plaintiff testified that she graduated from high school, completed CNA and EMT programs [Certified Nursing Assistant and Emergency Medical Technician, respectively], and was licensed as a CNA and EMT. AR 35. Plaintiff's most recent past work includes work as a security officer dispatcher. AR 36, 117.

With regard to her previous employment, Plaintiff stated that she was let go from her job as a security dispatch in September 2007 due to leaving early and having problems with other employees. AR 36. Thereafter, she filed an unemployment claim and a state workers' compensation claim. AR 36. Plaintiff stated that her unemployment claim was denied and she had not received a response regarding her workers' compensation claim. AR 36.

At the hearing, Plaintiff testified she suffers primarily from mental health challenges. AR 36. Plaintiff experiences depression, paranoia, and panic attacks. AR 37, 47-48. She is not on any prescription pain medications, but does take medication for her symptoms. AR 38.

When asked about her general health, Plaintiff stated that she was a smoker and had smoked two packs per day for about fifteen years (AR 38); she stated that at the time of the hearing she was smoking a quarter to half a pack of cigarettes per day. AR 38. Plaintiff said that her doctors had asked her to stop smoking, but that she had not been diagnosed with any breathing problems, asthma, or emphysema. AR 38. Plaintiff testified that she smoked marijuana about 12 times per day, and that a doctor in Oakland, whose name she could not remember, had prescribed it for her. AR 39. She said she had been using marijuana for about 5 years. AR 40.

When asked about her typical day, Plaintiff stated that during the day, she does household activities such as making the bed, planning for dinner, doing laundry, vacuuming, and checking the mail. AR 41. She reads about 6 hours per day. AR 41. Plaintiff also gardens, raising zucchini, eggplant, tomatoes, cucumbers, jalapenos, bell peppers, and green beans. AR 43. Plaintiff said that she has a driver's license and drove a truck about 3 times per week. AR 44-45.

Thereafter, the ALJ elicited the testimony of vocational expert George Meyers. AR 51. The expert stated that Plaintiff's past work was classified as nurse assistant, dispatcher, and security guard. AR 51. The VE was asked to consider several hypothetical questions posed by the ALJ. First, VE Meyers was asked to assume a hypothetical worker of Plaintiff's age, education, and work experience with no exertional limits; but such a person would require numerous unscheduled rest breaks, more frequently and more often than normally allowed. AR 52. Further the person could not maintain simple routine task concentration and would need less than occasional contact with the public, co-worker, or supervisors. AR 52. VE Meyers indicated such an individual could not perform Plaintiff's past relevant work or any other work. AR 52.

In a second hypothetical, VE Meyers was asked to consider the same non-exertional limits but the individual could work at simple routine task jobs with occasional public contact. VE Meyers indicated such an individual could perform work as a warehouse worker, housekeeper, and hand packer. AR 53.

Plaintiff's counsel asked the VE to consider jobs a hypothetical person could complete, assuming a person of Plaintiff's age, education level, and work experience, with a fair ability to manage changes in routine work situations; fair ability to understand, remember, and follow very short, simple instructions; fair ability to maintain appropriate levels of concentration, persistence, and pace necessary to perform simple, one to two step repetitive tasks; and, fair to poor ability to tolerate the usual stresses and pressures associated with day-to-day work activities. AR 54. The VE testified that, if that hypothetical Plaintiff were unable to maintain attendance due to her limitations, then the jobs identified would be affected. AR 54.

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 18-19. See 20 C.F.R. § 404.1520 (2011). At Step 1, the ALJ found that Plaintiff had not worked since the alleged onset date. AR 19. At Step 2, the ALJ found that Plaintiff had a "severe impairment" of bipolar disorder AR 19. The ALJ found however that her bipolar disorder did not meet or equal a listing at Step 3. AR 19-21.

Based on his review of the entire record, the ALJ determined that Plaintiff retained the residual functional capacity (RFC) to perform a full range of work at all physical exertional levels, with the limitation to jobs involving simple, routine tasks and only occasional public contact. AR 21. At Step 4, the ALJ subsequently found that Plaintiff could not perform her past relevant work. AR 25.

At Step 5, the ALJ utilized the vocational expert's testimony and found that Plaintiff could perform jobs that existed in significant numbers in the national economy, such as warehouse worker, hand packer, and housekeeper. AR 25-26. The ALJ therefore found ...


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