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Deborah Randall v. Michael J. Astrue

July 30, 2012

DEBORAH RANDALL, 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

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Deborah Randall ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for disability insurance benefits and supplemental security income 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 the Magistrate Judge for Findings and Recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS

Plaintiff filed her applications in April 2007, alleging disability since March 20, 2006, due to back problems, carpal tunnel syndrome (CTS"), tendinitis, fibromyalgia and endometriosis. AR 146-153, 154-161, 174-180. After the applications were denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 60-68, 69, 70, 94-95. On November 17, 2009, ALJ James Berry held a hearing in Fresno, California. AR 30-59. He issued a decision denying benefits on January 8, 2010. AR 15-23. On June 22, 2011, the Appeals Council denied review. AR 1-7.

Hearing Testimony

ALJ Berry held a hearing on November 17, 2009, in Fresno, California. Plaintiff appeared with her attorney, Jeffrey Milam. Vocational expert ("VE") Thomas Dachelet also appeared and testified. AR 30.

Plaintiff testified that she was 39 years old at the time of the hearing. She lives with her husband and has two children that live outside of the home. Plaintiff has a driver's license and drives about once a month. AR 35-36. Plaintiff graduated from high school and completed two years of college, but did not receive a degree. She received an administrative certification to work in a residential care facility. AR 36-37. Plaintiff worked in two residential care facilities but stopped in 2007 after she had a hysterectomy and back surgery, and began suffering from fibromyalgia and carpal tunnel. AR 37-38.

Plaintiff testified that she was 5'3" tall and weighed about 179. She has gained weight because of her fibromyalgia and depression. AR 37-38. She explained that fibromyalgia causes pain in her entire body, dizziness, nausea and "memory fog." AR 38-39. She also suffers from fatigue and can no longer go on trips or do anything with her husband. AR 39. CTS causes numbness and weakness in both hands. AR 41-42. Plaintiff drops things and has to rest after using her hands for 15 minutes. AR42.

Plaintiff has also suffered from depression for the past two years, brought on by back pain and fibromyalgia. AR 42. She testified that her depression has gotten worse and that she's now having auditory and visual hallucinations. AR 43. She also cries a lot more. AR 44.

Plaintiff cannot keep up with her husband when they're outside of the house, which is making her depressed and causing marital problems. AR 45. Plaintiff mostly stays at home and no longer socializes with friends. She has trouble concentrating and thought that she could concentrate for about 15 minutes before losing track. AR 45-46.

Plaintiff thought that she could stand for one hour and sit for one hour. She lies down most of the day. When she gets up to try and do little things around the house, she has to go lie down after 15 minutes. She estimated that she lies down about four hours in an eight hour day. AR 47. Plaintiff thought that she could walk for 15 minutes at a time and could lift a gallon of milk. AR 47, 51.

Even without the physical problems, Plaintiff thought that her mental problems would keep her from working. She is able to take care of herself around the house, but sometimes needs her husband to help because of dizziness. AR 47. She tries to do things around the house, and estimated that she spends about an hour a day doing chores. AR 49.

Plaintiff was taking pain medications and medications for depression. AR 51. She testified that the pain medication really only works when she's lying down and wears off quickly when she performs activities. Her medications cause dizziness and headaches. AR 52.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and experience. This person could lift and carry 20 pounds occasionally, 10 pounds occasionally, stand, walk and sit for six hours each, and occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl. This person could not climb ropes, ladders or scaffolds, but could frequently handle and finger with the dominant right upper extremity. This person could perform simple, repetitive tasks, maintain attention, concentration, persistence and pace, relate to and interact with others, adapt to usual changes in the work setting, and adhere to safety rules. The VE testified that this person could not perform Plaintiff's past work but could perform the positions of bagger, garment sorter and grader. AR 53-55.

For the second hypothetical, the ALJ asked the VE to assume that this person could carry a gallon of milk, or approximately eight pounds, stand and sit for one hour and walk for one and a half to two hours. This person would have difficulty maintaining concentration and attention and could only use the upper extremities 15 minutes at a time. This person would need rest breaks totaling four hours per day. The VE testified that this person could not work. AR 55-56.

Plaintiff's attorney asked the VE to assume the limitations in the first hypothetical and add an inability to perform simple, repetitive tasks. The VE testified that the person could not work. AR 56-57.

Referring to the first hypothetical again, Plaintiff's attorney asked the VE to assume that there would be even less than occasional use of the hands for reaching, handling, fingering, pushing, pulling and grasping. The VE testified that this person could not work. AR 57.

Finally, Plaintiff's attorney asked the VE to add a need to lie down for over two hours per day to the first hypothetical. The VE testified that this person could not work. AR 57.

Medical Record

In March 2006, Plaintiff underwent a partial hysterectomy. Treatment notes from Jill Mason, M.D., indicate that she had further surgery in August 2006 and complained of lower abdominal pain in September 2006. Plaintiff has a history of severe endometriosis. AR 234.

On December 9, 2006, Plaintiff saw Soad Khalifa, M.D., for a psychiatric evaluation. She complained of physical impairments and related depressive symptoms, including nervousness and anxiety. Plaintiff was taking Prozac and Valium. AR 241-242.

On examination, Plaintiff walked slowly, with a cane, and seemed to be in mild pain because of her back. Thought content was mainly about her pain, nervousness and depressive symptoms. Her mood was dysphoric and her affect was sometimes tearful. Plaintiff's immediate memory was intact, but recent memory and remote memory were impaired. Her fund of knowledge was poor and concentration was impaired. Plaintiff's abstract thinking was also impaired but judgment and insight were intact. Persistence and pace were good. AR 242-243.

Plaintiff reported that she could not do any house work because of pain and just watches television. She reported no social activities or hobbies. Dr. Khalifa diagnosed major depressive disorder, recurrent and noted a GAF of 55. He believed that her condition would be the same in 12 months. Dr. Khalifa opined that Plaintiff would have difficulty remembering and carrying out simple instructions and would have restrictions of daily activities and social functioning because of pain, weakness, numbness, depressive symptoms, nervousness, anger, low energy and difficulty walking. Dr. Khalifa believed that Plaintiff would benefit by increasing, or changing, her antidepressant and from pain management and supportive therapy. AR 243-244.

An MRI of Plaintiff's lumbar spine taken on December 7, 2006, revealed early degenerative disc disease at L4-5 with associated disc bulging. AR 532.

On January 30, 2007, Plaintiff was seen by Mitchell F. Fung, M.D., for evaluation of diffuse joint pain. On examination, she had 14 out of 18 tender points. Dr. Fung diagnosed fibromyalgia and referred Plaintiff to chronic pain management. He encouraged her to minimize use of dependence-producing medications and exercise daily. AR 526-527.

On February 6, 2007, Dr. Mason completed a Questionnaire and explained that Plaintiff could not work due to chronic pelvic pain. Dr. Mason listed Plaintiff's other impairments as CTS and low back pain. During an eight hour day, Dr. Mason opined that Plaintiff could sit for 30 minutes and stand/walk for 10 minutes. She needed to lie down for six hours after any activity and could not use her right hand due to CTS. Plaintiff could lift five pounds frequently and occasionally, but could not use her hands for reaching, handling, feeling, pushing or pulling. Dr. Mason believed that Plaintiff has had these limitations since March 20, 2006. AR 563-564.

On February 22, 2007, Plaintiff saw Physical Therapist Andrea Farber-Dezubiria for a physical therapy evaluation. Plaintiff complained of pain all over except her right arm, with intermittent finger numbness in all fingers. She reported that this began five to six years ago, but worsened in the past year. Signs and symptoms were consistent with fibromyalgia with deconditioning, ...


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