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Susan Delgado v. Michael J. Astrue

February 27, 2013

SUSAN DELGADO,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THE COURT AFFIRM DENIAL OF BENEFITS AND ORDER JUDGMENT FOR COMMISSIONER

Plaintiff Susan Delgado, by her attorney, Sengthiene Bosavanh, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income ("SSI") under Title XVI of the Social Security Act (42 U.S.C. § 301 et seq.). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge. Following a review of the complete record and applicable law, the undersigned recommends that the Court affirm the Commissioner's denial of benefits.

I. Administrative Record

A. Procedural History

Plaintiff has filed numerous prior applications for SSI, and has taken four of them to hearing. The first application resulted in an unfavorable decision in 1995. Plaintiff was subsequently granted benefits, which were later terminated by another ALJ in 2004. Plaintiff's third application, filed in 2005, resulted in an unfavorable decision in 2007. The ALJ in that case found that Plaintiff had the "severe" impairments of arthritis, degenerative disc disease, and obesity, but found that these impairments were not disabling.

On July 10, 2007, Plaintiff filed the present application. She alleged disability beginning January 1, 2007. Her claim was denied initially on September 25, 2007, and upon reconsideration on February 7, 2008. Plaintiff filed a written request for a hearing on March 27, 2008. The hearing was held on July 20, 2009. Plaintiff appeared and testified. She was represented by attorney Gina Fazio. During and after the hearing, Plaintiff submitted additional evidence which became part of the record.

B. Factual Record

1. Plaintiff's Testimony

At the time of the hearing, in July 2009, Plaintiff was 48 years old. She had a tenth grade education, without any additional GED or vocational training. She had performed no past relevant work within the previous 15 years. She stood 5'2" tall and weighed 234 pounds.

She stated that she experienced pain in her back, shoulders, thighs, knees, wrists, and fingers. AR 25-28. She had a burning sensation in her left knee, which began five years prior to the hearing. The pain in her shoulders made reaching overhead and in front problematic; her shoulders went numb and burned. Her fingers swelled; she could use buttons, but not pick up small items, hold items longer than 30 seconds, or even brush her teeth. Her hands would go numb driving more than 20 minutes. She had been told that she had carpal tunnel syndrome and fibromyalgia. Pain medication helped, but faded over time and caused side effects of fatigue and nausea. She slept three hours a day. She did not identify a symptom that caused this sleep pattern.

Due to pain in her lower back, she could sit for 30 minutes, stand for 30 minutes, and walk two blocks. She could lift a half gallon of milk. Eighteen months earlier, Plaintiff had told an ALJ that she could lift a full gallon of milk; Plaintiff acknowledged that this represented a change. AR 31, 46.

She lived by herself in an apartment. She drove to visit her parents and to medical appointments. When driving, she had difficulty holding the steering wheel, and her back bothered her. Her activities included watching TV, reading the Bible, and visiting with her parents about once a month. She did not go to church, the movies, or visit with friends. Her daughter helped her with laundry and other household chores. However, Plaintiff washed dishes, cooked a little, and vacuumed without assistance. Her daughter assisted her with grocery shopping, but Plaintiff could do light grocery shopping without assistance.

Plaintiff was on medication for depression, but other than that she was not getting mental health treatment. Her depression had good days and bad days. She had five bad days a week. On a bad day, she would not want to do anything, and would spend the day sleeping, walking around the apartment, or praying.

2. Disability and Functional Reports

In July 2007 and again in October 2007, both Plaintiff and her daughter completed functional reports describing Plaintiff's abilities.

In July 2007, Plaintiff described various activities that she performed routinely. She would make tea, lightly make her bed, brush her teeth, take a shower, make simple meals, vacuum the carpet, wash dishes, watch television, and mop the floor. She would to go outside up to two or three times a week, usually for medical appointments. To get around she would drive or be driven.

She also described activities that she no longer performed due to her conditions. She no longer would shop in stores, walk ten blocks, or go skating. She could no longer shop or go to the movies with her daughter for more than an hour, nor could she rent movies, as she could not sit still for the full movie. Due to changes to her social habits, she would no longer bake for her parents or visit them frequently; instead she would see them briefly once a week. Her back pain would keep her awake at night.

In describing her functional abilities, she stated that her conditions affected her ability to lift (she could not lift more than a gallon of milk), walk (after a half-hour, her back would burn and she would need to sit), climb stairs (she felt a burning feeling in her knees), squat (impossible due to back pain), sit, bend (impossible due to back pain), kneel (she felt a burning feeling in her knees), use her hands, stand (after a half-hour, her back would burn and she would need to sit), and reach. Her conditions did not affect her ability to talk, hear, see, recall, complete tasks, concentrate, understand, follow instructions, or get along with others. She could hold attention for 25 to 35 minutes, did not finish what she started, and did not handle stress well.

Plaintiff's October 2007 report was virtually identical, except that she now indicated that she could only walk "one block" before needing to sit. (In her July 2007 report, she indicated that she could walk for thirty minutes.) She also noted that Dr. Bird had diagnosed her with fibromyalgia in August 2007.

On the same days as Plaintiff completed these two reports, her daughter, Brigetta Delgado, completed third-party functional reports. Plaintiff's daughter noted that she and Plaintiff only spent one day a week together, such that she "really [did not] know" what Plaintiff did during a typical day because she was "not there." AR 115, 144. Both her reports closely correspond to Plaintiff's reports, with only a few noticeable differences: She noted that, before the onset of her illnesses, Plaintiff was more cheerful and energetic. Also, in describing Plaintiff's limitations, she checked the box for "getting along with others" and wrote next to the box, "sometimes." She added: "when her back hurts she turns the phone off."

3. Testimony of Vocational Expert

Thomas Dachelet testified as the vocational expert. The ALJ assumed that Plaintiff had no past relevant work. AR 37.

The ALJ assumed a person of the same age, education, and work background as Plaintiff, who could do light physical exertion. For the first hypothetical, the ALJ added that this person could only occasionally handle and finger. For the second hypothetical, this person instead needed unscheduled work breaks totaling an hour or more per workday. The vocational expert testified that, as to both hypotheticals, the person would be disabled.

4. Medical Record

i. Physical Impairments

Plaintiff stated that her back pain started in 1977, after she had surgery for a pilonidal cyst. AR 195.

On March 23, 2007, Plaintiff completed an intake form to begin physical therapy at Community Outpatient Rehabilitation Center. AR 171. She complained of neck and lower back pain. She also mentioned depression, anxiety, panic attacks, carpal tunnel syndrome, and arthritis. On April 17, 2007, at her third physical therapy session, Plaintiff discharged herself from the program, stating that she "doesn't see any improvement." AR 167. Her physical therapist noted that Plaintiff demonstrated poor compliance with her treatment ...


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