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Donna Vernon v. Michael J. Astrue

February 20, 2013

DONNA VERNON,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Donna Vernon ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for 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 Barbara A. McAuliffe, for findings and recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

On December 10, 2008, Plaintiff filed her first applications for disability insurance benefits (DIB) and supplemental security income (SSI) under Titles II and XVI, respectively, of the Social Security Act (the Act), alleging disability beginning January 1, 1997. AR 10. Plaintiff's application was denied initially and on reconsideration. AR 1. Subsequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 10. ALJ Phillip Callis held a hearing on October 19, 2010, and issued an order denying benefits on December 7, 2010. AR 10-20. The Appeals Council issued a decision affirming the ALJ's order. AR 1-3. This appeal followed.

Medical Record

The entire medical record was reviewed by the Court. AR 220-465. The medical evidence will be referenced below as necessary to this Court's decision.

Hearing Testimony

ALJ Callis held a hearing on October 19, 2010, in Fresno, California. Plaintiff appeared and testified. She was represented by attorney Jeffrey Milam. Impartial Vocational Expert ("VE") Jeff L. Clark also testified. AR 21.

Plaintiff was born on March 27, 1966 and was forty-four years old at the time of the hearing.

She has a 7th grade education with no additional formal or vocational training. AR 25. Plaintiff cannot read or write English. AR 26. At the time of the hearing, Plaintiff testified that she lives with her friend. She has adult children and grandchildren, none of which live with her. AR 26. Although Plaintiff has been diagnosed with opioid dependence, Plaintiff testified that she no longer uses street drugs and has been clean for about two years. AR 27. She currently treats her addiction with Methadone. AR 26.

Plaintiff has no work history and has not worked since she applied for benefits. In fact, Plaintiff has only held one job in her life. For one week, Plaintiff worked as a line worker in a processing plant. Plaintiff was dismissed from that job for missing work to go out of town. AR 29.

When asked about the onset of her disability, Plaintiff replied that she was diagnosed with carpal tunnel syndrome six months prior to the hearing. AR 30. Plaintiff prepares meals for herself, and does her own washing and cleaning. However, Plaintiff complained that sometimes she is unable to wash dishes because the pain in her hands makes it difficult. AR 29. Plaintiff testified that she is unable to lift anything heavier than a gallon of milk and she can only sit for 45 minutes at a time. AR 32. According to Plaintiff, after sitting for extended periods of time her feet go numb and her legs retain water. AR 32. Plaintiff can stand for ten minutes, walk a city block, but is unable to do her own shopping. AR 33. Plaintiff also suffers from fibromyalgia and chronic pain. AR 34. To relieve her pain symptoms, Plaintiff takes Methadone and Vicodin. AR 35. Plaintiff's x-rays and MRI's do not reveal any abnormalities. AR 35. Asked about her mental health problems, Plaintiff testified that she suffers from panic attacks and anxiety. AR 36. To deal with her anxiety, Plaintiff takes Seroquel and Celexa. AR 37.

Upon questioning by her attorney, Plaintiff testified that she takes water pills that cause her to go to the restroom every hour on the hour. AR 38. Plaintiff's water pills also cause fluid retention in her ankles, feet and hands. AR 40. In order to alleviate the retention, Plaintiff must elevate her legs for six to seven hours a day. AR 40. Plaintiff also clarified that though she had never been employed outside of the home, she was a housewife for many years. Plaintiff also testified that she weighs 285 pounds and her weight causes increased pain in her knees. AR 39.

Thereafter, the ALJ elicited the testimony of vocational expert Jeff Clark. AR 41. VE Clark indicated that Plaintiff has no past relevant work. AR 42. The VE was then asked to consider several hypothetical questions posed by the ALJ. First, VE Clark was asked to assume a hypothetical worker of Plaintiff's age, education, and work experience who can perform medium or light work, limited to simple repetitive tasks with limited public contact; who can only climb ladders, ramps and scaffolds occasionally. AR 43. VE Clark indicated such an individual could perform numerous jobs in the economy-too numerous to enumerate. AR 43.

In a second hypothetical, VE Clark was asked to consider the same worker, who can perform sedentary work with the following abilities and/or limitations: needs a sit/stand option; can perform occasional bilateral use of the upper extremities for fingering, handling and feeling; and is limited to simple repetitive tasks, limited public contact and can climb ladders, scaffolds, and ramps occasionally. AR 44. VE Clark testified that no work would be available for such an individual. AR 44.

Modifying the second hypothetical, the ALJ asked the VE to consider the same individual with an additional limitation that the hypothetical worker has to take bathroom breaks, up to two times an hour for five to ten minutes at a time. The VE indicated that such an individual would be unable to perform any work as it exists in the national economy. AR 57.

ALJ's Findings

Using the Social Security Administration's five-step sequential evaluation process, the ALJ determined that Plaintiff did not meet the disability standard. AR 10-20.

More particularly, the ALJ found that Plaintiff had not engaged in any substantial gainful activity. AR 18. Further, the ALJ identified borderline intellectual functioning, left knee osteoarthritis, history of opioid dependence, and obesity as severe impairments. AR 12. Nonetheless, the ALJ determined that the severity of the Plaintiff's impairments did not meet or exceed any of the listed impairments. AR 13-14.

Based on his review of the entire record, the ALJ determined that Plaintiff has the residual functional capacity ("RFC") to perform medium work, but she can only occasionally climb ladders, ropes, or scaffolds and is limited to simple repetitive tasks with limited public contact. AR 14-15. Given this RFC, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. AR 19-20.

SCOPE OF REVIEW

Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405 (g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The record as a whole must be considered, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner's determination that the claimant is not disabled if the Secretary applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See Sanchez v. Sec'y of Health and Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).

REVIEW

In order to qualify for benefits, a claimant must establish that he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. ยง 1382c (a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such severity that he or she is not only unable to do his or her previous work, but cannot, considering his or her age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. Quang ...


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