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Anna Marie Phillips v. Michael Astrue

November 19, 2012


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



Plaintiff Anna Marie Phillips ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for disability income 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 July 2005, alleging disability as of January 1, 2003. AR 133-139. Plaintiff's application was denied initially and on reconsideration; she then requested a hearing before an Administrative Law Judge ("ALJ"). AR 92-7. ALJ David Marcus held hearings in May and October 2009, and subsequently issued an order denying benefits on December 15, 2009, finding Plaintiff was not disabled. AR 17-26. On September 21, 2011, the Appeals Council denied review. AR 1-3.

Hearing Testimony

May 2009

ALJ Marcus held a hearing on May 26, 2009, in Downey, California. Plaintiff appeared and testified; she was assisted by attorney Lawrence Rohlfing. Vocational Expert ("VE") Frank Corso also testified. AR 30-61.

Plaintiff lives in a home with her boyfriend Chris. He works outside the home, and so she is home alone during the day. AR 37-38. She reads and rests. She is able to cook, but does not do so every day. Further, Plaintiff indicated that her meal preparation was akin to "heat and eat" versus actual cooking. AR 38. She will occasionally iron. AR 38. Plaintiff does not vacuum, mop, sweep or do laundry. AR 39. She cannot bend or stoop because it pulls on her back too severely; she uses a back brace everyday. AR 38-39. After initially indicating she did not do anything outside the home, Plaintiff indicated she will occasionally use the hose or water plants. AR 39.

Plaintiff last worked August 30, 2008, providing in home care services to senior citizens, having commenced that type of work in 2007. She stopped working in that capacity because it became too difficult for her to bear the weight of assisting the individuals in and out of vehicles. Additionally, the gentleman she worked for passed away on that date. AR 35. Other job duties of an in home care provider included dispensing medication and driving. AR 35. She tried not to lift more than ten pounds during the course of the position. AR 35. The working hours varied and typically involved working a three to four hour day; she did not work any eight-hour days as an in home care provider. AR 48. Additionally, she typically worked three or four days a week. AR 49.

In 2005, Plaintiff also worked as in home care provider, and prior to that she worked for a security company, dispatching the guards and preparing paperwork. AR 36. Years ago Plaintiff suffered a back injury while working in the construction field. AR 36.

When she was asked why she could not perform the work of a dispatcher today, Plaintiff indicated that when she held the position, she and her ex-husband owned the company. Plaintiff had the ability to lie down during the workday if necessary, and would also delegate duties to field supervisors or her older children. AR 37. She could not perform that type of work now due to the medications she takes to treat her condition; she stated she could not "function properly." AR 37. More specifically, she is on a number of prescription medications, including morphine. She began taking morphine after July 2008 and has attended pain management at Kaiser. AR 43. She did not find pain management to be effective. AR 43-44. The side effects of the medications she takes include sleepiness and fuzziness. AR 44. Her level of alertness is affected because she cannot remember what she had read nor can she retain information. AR 44-45. Relatedly, when she indicated earlier that she read while at home during the day, she typically reads her bible, starting "anywhere" and then reading until she falls asleep. AR 45.

When asked how far she could walk, Plaintiff responded that she thought she could walk several blocks. AR 39. She can stand in one spot for an hour or two. AR 40. After either walking the equivalent of a couple blocks or standing in place for an hour or two, Plaintiff would need to lie down for three or four hours, with her knees up on a pillow. AR 40. In a typical day, Plaintiff lies down with her knees up for about five hours total. AR 40. She could sit in a chair for about an hour or an hour and a half if she sits on the chair's edge. AR 40-41. Plaintiff rests her forearms on the table in front of her when she is seated in order to take pressure off of her back and to protect herself. AR 41.

Plaintiff estimated the heaviest weight she could lift is equivalent to a gallon of milk. AR 42. When she picks up around the house, she is unable to bend over to pick the item up; rather, she uses her "feet in a curtsy type of position" to "go straight down, grab [the item] and come straight back up." AR 42. She does not bend over, forward or backward. AR 42. Doing so will cause her to throw her back. AR 42. Plaintiff can no longer exercise or work out, fish, or work with non-profits to solicit donations. AR 45. Four or five years ago, Plaintiff worked out with free weights. AR 46.

When asked to consider a typical day, not her best day or her worst day, Plaintiff estimated she could be active both physically and mentally for about four hours. AR 46.

Plaintiff feels pain in the lower back, going down her left leg and into her calf. The pain also wraps around her pelvis. AR 47. When asked how often that occurs, Plaintiff indicated that it happens in the middle of the night often, but then said it happens when she is "up moving around." AR 47-48. This type of pain is precipitated by leaning over, and sweeping or mopping. AR 48. Plaintiff uses a TENS*fn3 unit and ice packs to treat her back pain. She uses the TENS unit about three or four times a week, and ice packs about every other day. AR 49.

She has not had a surgical consultation at Kaiser, and it is her understanding that her doctors have tried everything to treat her pain. AR 46-47. Plaintiff understands her medical condition to be spinal stenosis in the lower back with arthritis and scoliosis, and noted the "majority of [her] discs are either bulged or herniated." AR 47.

VE Corso described Plaintiff's past work as a companion, light and semi-skilled, with an SVP*fn4 of three, DOT 309.677-010; teacher's aide, light and semi-skilled with an SVP of three, DOT 249.367-074; and security guard dispatcher, light and skilled, with an SVP of six, DOT 372.167-010. AR 52. As a result of the dispatcher position, Plaintiff attained transferable skills including the ability to obtain and relay information, record keeping and office skills. AR 52-53. Those skills would transfer to sedentary jobs such as taxi cab starter, receptionist, and customer service representative. AR 53. Significant numbers of those positions exist in the economy. For example, a receptionist position is sedentary, semi-skilled with an SVP of four, DOT 237.367-038. There are 623,000 positions available nationally, and 29,000 positions available in the Los Angeles/Santa Ana/Long Beach area. AR 53. Additionally, a taxi cab starter is a sedentary, semi-skilled position with an SVP of three, DOT 913.367-010. There are 79,000 such positions available nationally, and 3,500 positions in the local area. AR 53.

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 fifty pounds occasionally and twenty-five pounds frequently, with the ability to stand and walk or sit for six hours in an eight-hour day. AR 53-54. VE Corso indicated that such an individual could perform all three of the positions previously identified. AR 54.

In a second hypothetical, the VE was asked to consider the same individual, with the following RFC: the ability to lift and carry ten pounds occasionally and five pounds frequently, to stand and walk for four hours in an eight-hour day and no more than two hours at a time with the opportunity to be seated for up to fifteen minutes at a time, to sit for four hours in an eight-hour day and no longer than an hour and a half at a time without the opportunity to stand for up to fifteen minutes at a time to change positions, and only occasional stooping, kneeling, crouching and crawling. AR 54. VE Corso indicated the individual could not perform Plaintiff's past work. AR 54. Nevertheless, the VE indicated that such an individual could perform a limited range of light work, including the following: cashier II, light and unskilled with an SVP of two, DOT 211.462-010, with 1,021,000 such positions available nationally and 44,000 positions available locally. AR 54-55. The individual could also perform the work of a counter clerk, light and unskilled with an SVP of two, DOT 249.366-010, with 59,000 positions available nationally and 2,100 positions locally. AR 55. The foregoing figures would then be eroded by twenty-five percent to allow for the lifting requirement, and further eroded by an additional twenty-five percent to accommodate the sit-stand option, for an overall fifty percent erosion. AR 55.

In a third hypothetical, the VE was asked to consider the same individual, with the ability to work five hours a day, secondary to a reaction to medication and the need to lie down. VE Corso indicated that such an individual would be unable to perform any work. AR 56.

In response to an inquiry posed by Plaintiff's attorney about whether an individual who was limited to simple one and two step instructions could perform the occupations identified, VE Corso indicated that such an individual could perform some work but "not in numbers sufficient for employability." AR 58.

October 2009

ALJ Marcus held a second hearing on October 13, 2009, in Downey, California. Plaintiff appeared and was assisted by Mr. Rohlfing. Medical Expert ("ME") William Temple testified and VE Randi Langford-Hetrick was present yet did not testify. AR 62-85.

ME Temple testified that he had reviewed the entire medical record provided. AR 65. The ME indicated that an x-ray in June 2008 revealed mild scoliosis extending from T-9 through L4, convex to the right at twenty-five degrees. The x-ray also revealed mild degenerative disc disease at L2-3 and L4 through S1. AR 66-67. ME Temple indicated that a twenty-five degree curve is neither significant nor severe, and therefore would cause little impairment. AR 67.

The MRI studies of November 2004 do not mention scoliosis, but indicate disc bulges at L3-4 and L4-5 with a moderate degree of spinal stenosis, and the previously noted degenerative disc disease. AR 68. The doctor indicated that stenosis has to be quite significant in order to cause symptoms, the most common of which is pain with ambulation. ME Temple noted that there is nothing in the record to indicate Plaintiff suffers pain with ambulation; rather, most of Plaintiff's complaints relate to chronic back pain. AR 68. Further, a September 2007 MRI study was unremarkable; it did not mention scoliosis either. AR 68. It does note "some degree" of degenerative disc disease at L2-3, L4-5 and L5-S1. AR 68. With specific regard to the report's findings of "degenerative end plate changes," ME Temple explained that this notation signifies narrowing of the disc space with some compensatory or "arthritic lipping." AR 68-69. Additionally, the report's reference to a "broad based disc bulge described at L4-L5 causing mild bilateral neural foraminal narrowing," is not significant. It does not involve nerve compression; that would be significant. AR 69.

With regard to the orthopedic consultative examination report, ME Temple explained that "small anterolateral osteophytes at L5 and L3" refers to some narrowing of the disc space and arthritic changes. It may cause discomfort in the back, but it is not serious. AR 70.

ME Temple noted that six neurological examination resulted in normal findings regarding the lower extremities; motor function was normal as well. Two examiners noted some muscle weakness in the lower extremities and feet, yet did not quantify or otherwise characterize the weakness. In four examinations, straight leg raising was negative; two examinations revealed no atrophy. These findings suggest no significant root compression. Notably too, where the range of motion varied widely between examiners, those noting a limited range of motion did not qualify the limitation. Most examiners found Plaintiff's gait to be normal, whereas two noted it was antalgic. AR 71-72.

Next, ME Temple testified as follows:

[ME Temple]: Now I know, Your Honor, that at least in the records that I was able to review there's no claim of a psychological or psychiatric problem and certainly it's not my job to comment on that but I might note that this lady on innumerable - - in numerable records is always presenting - - requesting pain medication. A fairly classic narcotics dependent behavior.

One doctor notes that she's on chronic narcotics. One that she keeps demanding opiates. Another one she came in to get pain medication because her pain medication was stolen. That's one comment that's very often seen in somebody who's seeking narcotics. Other times they'll ...

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