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Bernadette A. Rams v. Michael Astrue

January 7, 2013


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



Plaintiff Bernadette A. Rams ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application 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


Plaintiff filed applications for benefits in June 2006, alleging disability as of August 21, 2005. AR 115-125. Plaintiff's applications were denied initially and on reconsideration; she then requested a hearing before an Administrative Law Judge ("ALJ"). AR 29-33, 85-90, 93-101. ALJ Sherwin F. Biesman held a hearing and subsequently issued an order denying benefits on April 16, 2009, finding Plaintiff was not disabled. AR 34-43. On March 15, 2011, the Appeals Council granted review. AR 111-114. On September 3, 2011, the Appeals Council found that Plaintiff was not disabled for any period through her date last insured of March 31, 2006, for purposes of disability insurance benefits. With regard to supplemental security income, the Appeals Council found Plaintiff became disabled on March 1, 2008. AR 9-12.

Hearing Testimony

ALJ Biesman held a hearing on February 19, 2009, in Los Angeles, California.*fn3 Plaintiff appeared and testified; she was assisted by attorney Jon Argenziano. AR 56-77.

Plaintiff was born March 20, 1951, and was fifty-seven years old on the date of the hearing. AR 58. She is single and rents a room in a condominium shared with three others. AR 59. Because she is not working, her friend pays the $415 monthly rent. AR 59-60.

Back pain and cataracts were Plaintiff's main complaints at the time of the hearing. AR 60. When asked whether any MRI or CT scan of her back was performed, Plaintiff replied that an x-ray had been done. AR 60. She does not know why an MRI or CT scan were not done and guessed it may have been "because it cost too much." AR 61. Plaintiff is insured through her previous employer, now known as AT&T, and obtains medical treatment through Kaiser. AR 61. She does not know why she was not referred to an orthopedist. AR 61. Plaintiff then stated that her treating physician "got [her] going to a back specialist, Dr. Peram," but there has been no mention of "an MRI or any of that other stuff." AR 62.

Plaintiff treats her back pain with Tylenol with codeine, number three. AR 63. She takes four tablets a day. AR 68. Plaintiff also takes Ultram, Tramadol and Cyclobenzaprine. The other prescription medications she takes relate to pre-diabetes and thyroid conditions. AR 64. The pain medications do not really help and she cannot take Vicodin as suggested by her doctor because it makes her dizzy. AR 66.

The back pain bothers Plaintiff everyday, "practically all the time." AR 65. She never has good days. AR 66. When asked to assign a number between zero and ten to describe her pain, Plaintiff stated that it depends upon what she is doing. If she is doing one load of laundry, when she has completed the task her pain is a ten. She "can barely do anything in the house" that does not cause pain. AR 67. The pain is "just too much" and, as a result, she cannot bend, nor sit or stand "too long." AR 67.

Plaintiff uses a cane because she is afraid of falling. Either her back pain or the fact she has broken her leg twice - once after being hit by a car, and then less than a year later after slipping in the shower - or both, make her feel as though she is going to fall if she did not use the cane. AR 72.

For thirty years, Plaintiff worked for what is now known as AT&T. She was an operator for twenty years, and then moved into cash management for the last ten years, from 1990 to 2000. AR 67-68, 71. As an operator, the position was largely sedentary; in cash management, however, she was on her feet for seven hours or more. AR 68. More specifically, with regard to the cash management position, Plaintiff worked loading boxes of mail, removing the envelopes from the boxes, placing the mail on a conveyor belt, and ensuring the machine used operated efficiently. She would also sort and separate the checks from the invoices and place them in another box for processing. AR 70. Currently, Plaintiff can sit for about ten to fifteen minutes before she feels "like taking a pill" due to the pain. AR 68.

When she was asked what she did during the day, Plaintiff replied that she cannot "do too much," although she would like to clean the house because she does not work. AR 68-69. She will do a load of laundry or clean the kitchen counters or wash dishes, but not all in the same day. AR 69. If she does too much, she is "near tears" because of the pain. If that happens, she lies on her bed to relax. AR 69. In a typical week - Monday through Friday - Plaintiff is at home and does not go out. AR 69. She shops once a week when her friend Tina takes her shopping. Otherwise, she does not have money or a vehicle and is in pain. AR 70. Although Plaintiff had a pension from AT&T, she elected to take her pension in a lump sum. With those proceeds, she bought a home; however, she then lost the home. AR 71-72, 74.

Medical Record

The entire medical record was reviewed by the Court. AR 185-576. The medical evidence will be referenced below as ...

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