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Nancy Ortiz v. Michael Astrue

March 4, 2013

NANCY ORTIZ,
PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



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

FINDINGS AND RECOMMENDATIONS ON PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Nancy Ortiz ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for supplemental security income ("SSI") benefits pursuant to Title 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 September 21, 2005, Plaintiff filed her first applications for supplemental security income benefits pursuant to Titles II and XVI of the Social Security Act alleging disability beginning January 15, 2003. AR 20, 71. These applications were ultimately denied by an Administrative Law Judge (ALJ), who issued a September 27, 2007 decision finding Plaintiff not disabled. AR 78. Plaintiff did not appeal this ALJ decision.

On April 17, 2008, Plaintiff filed another application for supplemental social security income benefits, alleging disability beginning January 15, 2003. AR 150. Plaintiff's application was denied initially and on reconsideration, and Plaintiff requested a hearing before an ALJ. AR 90, 98. ALJ Sandra K. Rogers held a hearing on March 22, 2010, and issued an order denying benefits on May 28, 2010, finding Plaintiff was not disabled. The Appeals Council denied Plaintiff's request for review, making the May 28, 2010 decision the final decision of the Commissioner. 42 U.S.C. §§ 405(g), 1383(C); 20 C.F.R. § 416.1481. This appeal followed.

Relevant Mental Impairment Evidence

The entire medical record was reviewed by the Court. AR 224-739. The medical evidence will be referenced below as necessary to this Court's decision.

Hearing Testimony

ALJ Rogers held a hearing on March 22, 2010. AR 34. Plaintiff appeared and testified; she was assisted by attorney Jeffrey Milam. Vocational Expert ("VE") George Meyers also testified. AR 35.

At the time of the hearing, Plaintiff was forty-two years old and living with the youngest of her two daughters in Stockton, California. AR 37. Plaintiff testified that she dropped out of high school in her senior year but later obtained a GED. AR 39. Plaintiff previously worked as a nurse's aide and cashier. AR 56. She explained that she stopped working because of general joint pain, which was most severe in her neck, right arm, right hip, knee, and ankle, and on and off in the low back. AR 39-40. She also described having memory problems and confusion. AR 43. Plaintiff testified she was 4 feet, 9 inches tall, weighed 250 pounds, and had gained 150 pounds since her joint pain began. AR 38. She explained that the weight gain made her pain and depression worse. AR 47.

Plaintiff reported that she had to alternate between sitting, standing, and lying down during the day, usually for no more than an hour at a time because of numbness and pain. AR 40-41, 44,

47. She also stated she could only use her hands for 30 minutes at a time before resting them. AR 47. Plaintiff testified that because of her right-side pain, her daughters helped her bathe and clean the house. AR 46. Plaintiff reported that physical therapy and hot baths helped her pain, though she also took medication. AR 48.

When asked about her mental impairments, Plaintiff testified that she had recently been diagnosed with bipolar disorder, her depressive symptoms had grown worse with time, and that her mental health medication helped "somewhat" but prevented her from operating any machinery. AR 44-45, 48. Plaintiff testified that she drove her daughter to school every morning, but not in the afternoon after taking medications. AR 37. She described having "a little" problem communicating with people (AR 45), and her daughters helped her pay her bills. AR 46.

After Plaintiff testified, the ALJ elicited testimony from Plaintiff's lay witness. Maribel Vargas, Plaintiff's social worker, testified that she saw Plaintiff weekly for approximately 30 minutes, and worked with her when she recently began attending a weekly group meeting. AR 50-52, 55. She explained that she was at the hearing in order to offer information on behalf of Plaintiff's treatment team in lieu of a document that had been completed but not yet signed. AR 51. She testified that Plaintiff's ability to concentrate depended on the issues they were addressing and her mood; that is, when Plaintiff was having problems at home, she tended to isolate herself, not engage with the mental health treatment staff, and not open the door or answer her telephone. AR 53. Ms. Vargas also testified that sometimes Plaintiff could fully focus on a task and "she'll get it done with whatever it takes," (e.g., preparing for the ALJ hearing), but other times "she is not willing to put any effort." AR 53-54. She also described Plaintiff as usually either "a little bit [] disoriented, or not able to focus at the particular time." AR 54. Ms. Vargas testified that Plaintiff was "pretty much on task with the group meetings once a week for one hour," but based on her observations, did not think Plaintiff was capable of "interacting in a job position." AR 55.

Thereafter, the ALJ elicited the testimony of vocational expert George Meyers. AR 56. VE Meyers indicated that Plaintiff's past relevant work includes: a cashier, light and unskilled; and a nurse assistant, medium and semiskilled. Plaintiff performed her work as a nurse assistant at the heavy work category. AR 56. VE Meyers opined that Plaintiff could not perform her past relevant work as a cashier or nurse assistant.

VE Meyers was asked to assume a hypothetical worker of Plaintiff's age, education, and work history with a moderate inability to interact appropriately with the general public, and an inability to complete a normal workday or work week without interruption from psychologically-based symptoms. AR 57. VE Meyers indicated such an individual could complete jobs at the sedentary, unskilled level, including order clerk, ticket counter, and charge account clerk.

Plaintiff's counsel asked the VE to consider the same hypothetical individual with the following abilities and/or limitations: can lift and/or carry ten pounds frequently and occasionally; handle and finger objects frequently, and who was moderately limited in the ability to interact appropriately with the general public and to complete a normal workday or workweek. The VE indicated that such an individual could perform the ...


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