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Briana L. Holt v. Michael Astrue

October 24, 2012

BRIANA L. HOLT,
PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



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

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Briana L. Holt ("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.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed applications for benefits in May 2008, alleging disability as of January 15, 2007. AR 110-113. Plaintiff's applications were denied initially and on reconsideration; she then requested a hearing before an Administrative Law Judge ("ALJ"). AR 64-67, 74-79. ALJ Regina L. Sleater held a hearing and subsequently issued an order denying benefits on March 23, 2010, finding Plaintiff was not disabled. AR 54-60. On September 12, 2011, the Appeals Council denied review. AR 1-3.

Hearing Testimony

ALJ Sleater held a hearing on February 19, 2010, in Fresno, California. Plaintiff appeared and testified; she was assisted by attorney Robert Christenson. Vocational Expert ("VE") Robin Scher and Medical Expert ("ME") Steven Gerber also testified. AR 7-46.

Plaintiff lives in Porterville with her mother and sisters, one of whom is disabled. AR 10-11. Although Plaintiff's mother is ninety years old, she still does most of the cooking. Plaintiff does some, but has to sit on a chair to cook or do the dishes. AR 11.

Once a month Plaintiff sees her treating physician for refills of medication. AR 11-12. With regard to prescription medications, she takes the following: 750 milligrams of Vicodin, four times a day; 800 milligrams of Ibuprofen, three times a day; 1.25 milligrams of Levothyroxine, once a day; 60 milligrams of Diltiazem, twice a day; 25 to 50 milligrams of Dyazide, once a day; 40 milligrams of Nexium, once a day; and 75 milligrams of Lyrica, twice a day; 0.5 milligrams of Donnatal, twice a day; 0.5 milligrams of Xanax, once a day; and 0.125 milligrams of HyoMax, as needed; Voltaren Gel 1%, topical application twice a day; Fluocinonide Gel, topical application twice a day; 15 milligrams of Buspar, three times a day; 20 milligrams of Citalopran, once a day; 10 milligrams of Flexeril, up to twice a day. AR 12-16. As for over the counter medications, Plaintiff also uses Excedrin migraine and Tylenol PM. AR 16-17.

Plaintiff does not receive psychiatric treatment, other than the prescription medications she uses to treat depression, but stated that it was "another area that [she] need[s] to take care of." AR 17.

When asked to describe a typical day, Plaintiff indicated that she wakes and gets up anywhere between 11 a.m. and 2 to 3 p.m., depending upon her pain level. AR 21. She wakes at about 11 a.m. but stays in bed to take her medications before getting out of bed. AR 22. She does not have any problems sleeping and typically sleeps for about ten hours, sometimes as many as twelve to fourteen hours a night. She is a lot more comfortable sleeping. AR 22.

After getting out of bed, Plaintiff will eat a meal, and then go sit on the couch to watch television. AR 23. She enjoys Oprah, Dr. Phil and the evening news. AR 23. She also enjoys crafts like embroidery, but due to the pain in her hands and fingers she is not certain how long she will be able to continue to enjoy embroidery. AR 24. After watching television, Plaintiff eats dinner. If her stomach is bothering her however, she will skip dinner. AR 25. Sometimes she will fix herself something to eat, and other times she does not "feel like standing there" to do so. AR 26. Her son loves to cook and sometimes her children will bring by food. AR 26. Plaintiff's mother takes care of meal preparation for her sister. AR 26. After dinner, Plaintiff watches television from the couch, although there are times she goes back to bed to lie down. AR 26.

Plaintiff cannot walk for long or walk around the block. She cannot sit on the floor because she cannot bend her knees in order to do so. AR 23-24; see also AR 28 (can walk "[m]aybe a block . . . with pain"]). She can stand between fifteen to forty-five minutes at a time. AR 27. Within an eight-hour day, Plaintiff estimated she could stand for about two to four hours depending on whether it was a good day or a bad day. AR 27. She can sit for a period between forty-five minutes and two hours, for four to six hours total in an eight-hour day. AR 27. Plaintiff can lift about ten pounds. AR 27. She has difficulty concentrating because she is easily distracted, estimating she could focus for about ten to fifteen minutes. AR 28. About four to six days a month, Plaintiff has a "bad day" wherein she is in "so much pain" and is depressed, and thus wants to stay in bed all day. AR 28.

Plaintiff used to work at Wal-Mart as a cashier, but she had problems with her back and knees. AR 29. Plaintiff indicated she was moved to a seated position "on the door," but she was ultimately terminated for "under stocking." AR 29-30. Her last day was December 16, 2006. AR 33.

ME Gerber is board certified in both internal medicine and cardiovascular disease. He reviewed all medical records provided and thus was prepared to testify concerning his opinion of Plaintiff's physical conditions. AR 18-19. The doctor indicated Plaintiff suffers from the medically determinable impairments of fibromyalgia, hypothyroidism, hypertension, mild degenerative disk disease of the lumbar spine, mild degenerative joint disease of both knees, and obesity. AR 19. In his opinion, these conditions, alone or in combination, do not meet or equal a listed impairment. AR 19. More particularly, ME Gerber explained that the physical findings throughout the record were "not highly significant," the objective studies, including x-ray and laboratory findings, do not demonstrate severe abnormalities, and the doctor noted there was "an extraordinary disparity between the subjective complaints and the objective findings" in the medical record evidence. AR 19.

With regard to Plaintiff's ability to perform work, ME Gerber opined that she is capable of "at least sedentary" work, with a limitation to "occasional in all postural[]" categories, but no climbing of ladders or scaffolds. AR 20.

VE Scher described Plaintiff's past work as a cashier/checker, DOT*fn3 211.462-014 with an SVP*fn4 of three, light but performed at the medium level; and greeter or information clerk, DOT 249.262-010, unskilled and sedentary. AR 37, 39, 44. There are no transferable skills. AR 38.

In a hypothetical question posed by the ALJ, the VE was asked to assume a hypothetical person of the same age, education, language and work experience, who had the residual functional capacity ("RFC") to lift and carry no more than ten pounds, with the ability to stand and walk for two hours in an eight-hour day and to sit for at least six hours in an eight-hour day, who may only walk on even terrain, with a limitation to occasionally climbing ramps or stairs, balancing, stooping, kneeling, crouching, or crawling, and never climbing ladders or scaffolds. AR 38. VE Scher indicated that such an individual could perform Plaintiff's past work as a greeter or information clerk at the sedentary level. AR 39.

In a second hypothetical, the VE was asked to consider the same individual, with the following RFC: the ability to lift and carry no more than ten pounds, to stand and walk no more than two hours in an eight-hour day for no more than fifteen minutes at one time, and the ability to sit for twenty minutes at a time, for a total of two hours in an eight-hour day, with constant disruption to focus and concentration, at will breaks, low stress, no repetitive movements of the hands and arms, and only occasional head movements. AR 40. VE Scher 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 40.

In a third hypothetical, VE Scher was asked to assume the same individual, with the following RFC: the ability to lift and carry ten pounds, to stand and walk for a total of two hours in an eight-hour day in fifteen to forty-five minutes increments, with walking limited to never more than the equivalent of a block, to sit for a total of four to six hours in an eight-day for forty-five minutes to two hours at one time, who could focus on simple tasks for fifteen minutes at a time, and who can occasionally stoop and crouch, but who must never crawl, kneel or climb. AR 41. The VE indicated such an individual could perform Plaintiff's past work as a greeter; however, if a further limitation of three or more absences per month were added, work would be unavailable. AR 41.

Plaintiff's counsel questioned his client further with regard to the nature of the greeter position, whether it was performed sitting or standing. AR 41. Plaintiff testified that as a greeter she was required to stand the entire time; she was not permitted to sit. AR 42; but see AR 29-30 (moved to seated position at the door). From March to October 2006, Plaintiff acted as a greeter. AR 42.

Based upon the aforementioned testimony, Plaintiff's counsel posed questions of the VE. AR 43. With regard to the ALJ's first hypothetical question, when VE Scher considered a greeter position that required constant standing, she indicated the individual could not perform Plaintiff's past work as a greeter as Plaintiff herself performed it. AR 43. Nonetheless, the individual could still perform the work of a greeter as that position is generally performed. AR 43.

Finally, in a hypothetical question posed by Plaintiff's counsel, the VE was asked to consider an individual of the same age, education and work experience, who could stand and walk for less than two hours in an eight-hour day, could sit for four to six hours in an eight-hour day, with the ability to lift and carry less than ten pounds frequently or occasionally. AR 44. The VE explained that such an individual could perform Plaintiff's past work as a greeter as ...


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