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Carolyn V. Pearson v. Michael Astrue

October 4, 2012


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge



Plaintiff Carolyn V. Pearson ("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 Gary S. Austin. *fn1


Plaintiff filed an application for benefits in September 2008, alleging disability as of April 15, 2000. AR 178-184. Plaintiff's application was denied initially and on reconsideration; she then requested a hearing before an Administrative Law Judge ("ALJ"). AR 99-110. ALJ James P. Berry held a hearing and subsequently issued an order denying benefits on December 21, 2010, finding Plaintiff was not disabled. AR 40-47. On August 3, 2011, the Appeals Council denied review. AR 4-6.

Hearing Testimony

ALJ Berry held a hearing on November 18, 2010, in Bakersfield, California. Plaintiff appeared and testified; she was assisted by attorney James P. Shea. Vocational Expert ("VE") Kenneth P. Ferra also testified. AR 53-85.

Plaintiff was born January 16, 1951, and thus was fifty-nine years old on the date of the hearing. AR 55. She lives with her disabled husband and forty-one year old son. AR 56. Plaintiff graduated high school and took a six-month nursing course in the early seventies. AR 56.

When she was asked what caused her to stop working in 2000, Plaintiff indicated she fell onto her hands and knees, injuring her back and shoulder. AR 56-57. She had been working in the jewelry department and fitting rooms in Target, but the work was too difficult. AR 57-58. Her work at Target also involved cashiering. AR 58. She was required to lift twenty to forty pounds and would stand for eight to ten hours at a time. AR 58, Prior to working at Target between 1996 and 2000, Plaintiff was "a landlord" at an apartment complex, handling rental applications and verifying backgrounds. Her husband handled the maintenance as he is an electrician by trade. She did that type of work for twenty years. AR 59.

Plaintiff "live[s] in pain." AR 59. She feels pain in her hands, wrists, left shoulder, hips, knees, feet and back. AR 59. The pain first became a problem in her lower spine, then in her shoulder, then in her left knee, then "a hernia in her stomach," then to her hands, back down to her legs and into the bottoms of her feet. AR 59-60. When she stopped working in April 2000, she was afflicted by pain in her knees, shoulder and back. AR 60. Her hands began to bother her in 2006. AR 60-61. Her left hip began to bother her in July of this year. AR 61.

Cortisone injections would help, but the pain did not go away. AR 61. She had surgery on her shoulder and had physical therapy as well. The physical therapy did not relieve the pain. AR 62. The prescription pain medications she was taking at the time relieved her pain temporarily. AR 62. The cortisone injections in 2000 provided relief for the pain in her lower back for a period of five years. AR 62-63, 74. During that period however, other problems kept her from returning to work. AR 63.

Prior to having surgery on her left shoulder, Plaintiff was not able to lift her hand up beyond table top level. AR 64. The surgery relieved some of the pain and the mobility got "just a little bit better." AR 64. With regard to her left shoulder however, cortisone injections did not help. Further, despite following a home exercise program and receiving physical therapy for her left shoulder, neither helped. AR 63. Presently, Plaintiff cannot lift or carry a load of laundry due to her shoulder pain. Reaching and grasping are problems at the level of her shoulder or above. AR 65.

Plaintiff began getting shooting pains in her hands in 2006; it began in two fingers of her left hand. Her doctor thought she had pinched a nerve and it was part of her sciatic nerve. She experienced "real severe pain" in both hands. AR 66. The pain would wake her in the middle of the night. AR 67. She could hold a cup of coffee, eat and feed herself with her hands. AR 67. She could still dress herself and drive. AR 68. However, she can only lift two to five pounds at most using both hands. AR 68. In 2007 or 2008, Plaintiff underwent surgery on both "hands." AR 68. Following surgery, her ability to use her hands and fingers improved. AR 68.

With regard to her knees, her left bothered her more than her right. Bending and squatting made the pain worse, and the pain also affected her ability to stand and walk. AR 69-70. After she stopped working in 2000, she could stand for about a half an hour. AR 70. She had surgery on the left knee, and it improved the pain somewhat. Her ability to stand was extended to about an hour. AR 71. Today she can stand for about an hour before needing to get off of her feet for a half an hour to an hour. AR 71. When she was asked to consider an eight-hour work day and the amount of time she could stand during that period, Plaintiff indicated she could stand for about three hours total. AR 71-72.

The number one problem is Plaintiff's spine. Bending, reaching, sitting and standing are all affected by her spinal pain. AR 72. After she stopped working, Plaintiff could sit for twenty to twenty-five minutes. AR 73. After receiving cortisone injections and physical therapy, she could sit for longer periods of time, about forty-five minutes at most. Prior to the cortisone injections, she could not get out of bed. AR 73-74. Although she experienced improvement from the cortisone injections she received in 2000, the pain came back in January 2010. AR 74. She is once again only able to sit for about twenty to twenty-five minutes at a time. AR 74. When she was asked to consider an eight-hour work day and the amount of time she could sit during that period, Plaintiff indicated she could sit for a total of three hours if she had received cortisone injections beforehand. AR 75-76.

When asked about an average day in 2006, Plaintiff indicated she would cook and clean, grocery shop with the assistance of her son, drive short distances to attend doctor's appointments, and attend church. AR 78-80. Her son was around to help her with laundry or vacuuming. AR 79.

VE Ferra described Plaintiff's past work to include the following: a retail cashier, DOT *fn3 211.462-014 *fn4 , light and semi-skilled with an SVP *fn5 of three, performed on occasion at the medium level; and, property manager, DOT 186.167-046 *fn6 , light and skilled with an SVP of seven. AR 81-82. *fn7

In a hypothetical question posed by the ALJ, the VE was asked to assume a hypothetical person of fifty-five years of age, with a twelfth grade education and past relevant work experience as described, who had the RFC to lift and carry twenty pounds occasionally and ten pounds frequently, with the ability to sit, stand and walk for six hours each in an eight-hour day, who could occasionally kneel, crawl, and climb ramps or stairs, but who cannot climb ropes, ladders, or scaffolds. AR 81. VE Ferra indicated that such an individual could perform Plaintiff's past work as a cashier and a property manager. AR 81-82.

In a second hypothetical, the VE was asked to consider the same individual, with the following RFC: the ability to lift and carry a maximum of five pounds, stand, sit and walk for three hours total in an eight hour day, with the inability to lift the left extremity above shoulder level, and who would experience difficulty gripping or grasping bilaterally. AR 82. VE Ferra testified that such an individual would be precluded from performing Plaintiff's past work, and could not perform any other work in the national economy. AR 82.

Finally, VE Ferra testified that Plaintiff's past work did not provide transferable skills to the full range of sedentary work. AR 83.

Medical Record

The entire medical record was reviewed by the Court. AR 269-517. The medical evidence will be referenced below as ...

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