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Allen v. Colvin

United States District Court, C.D. California, Eastern Division

April 1, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


STEPHEN J. HILLMAN, Magistrate Judge.

This matter is before the Court for review of the decision by the Commissioner of Social Security denying plaintiff's applications for Disability Insurance Benefits. Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C. § 405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The plaintiff and the defendant have filed their pleadings (Brief with Points and Authorities in Support of Plaintiff's Complaint ["Plaintiff's Brief"]; Defendant's Brief); and the defendant has filed the certified transcript of record. After reviewing the matter, the Court concludes that the decision of the Commissioner should be reversed and remanded.

On October 13, 2009, plaintiff Kelly Ann Allen filed an application for a period of disability or Disability Insurance Benefits, alleging an inability to work since November 27, 2008 due to lower back pain and right and left knee pain. (See Administrative Record ["AR"] 123-25, 143-44). On December 16, 2011 (following a hearing on October 11, 2011, see AR 24-54), an Administrative Law Judge ("ALJ") issued a decision. The ALJ determined that plaintiff had severe impairments - "status post lumbar fusion; bilateral patellofemoral dysfunction and right shoulder impingement syndrome" - but found that plaintiff was not disabled within the meaning of the Social Security Act. (See AR 10-18).

Following the Appeals Council's denial of plaintiff's request for a review of the hearing decision (see AR 1-3), plaintiff filed this action in this Court.

Plaintiff makes two challenges to the 2012 Decision. Plaintiff alleges the ALJ erred in (1) failing to properly consider plaintiff's testimony and make proper credibility findings, and (2) failing to properly consider lay witness testimony.



Plaintiff asserts that the ALJ failed to provide clear and convincing reasons for finding not fully credible plaintiff's testimony about her functional limitations and her excess pain.[1] Defendant argues that the ALJ reasonably discounted plaintiff's allegations of physical dysfunction and significant pain.

In a Disability Report, plaintiff complained of lower back pain and right and left knee pain. Plaintiff stated she could not stand, sit or walk for any period of time, and she could not lift, stoop or bend. (See AR 143-44).

In a Function Report, dated October 27, 2009, plaintiff stated her daily activities consisted of showering, making breakfast for her children when able to, feeding the pets (with the help of her two children), helping out at school (classroom, P.T.A.) for an hour or so when able to, trying to do chores (dishes, laundry), picking up dinner from a store, picking up her children at school, making dinner when able to, and watching television. She cleaned the dishes, did laundry (but rarely completed it), and wiped countertops a couple of times a week. She drove a car daily and went shopping for groceries and household items four times a week. She engaged in social activities, including watching sports on television and going out to dinner one to two times a month, talking on the computer twice a week, and going to Church once a week. She stated she can not clean the house and had difficulty putting on socks and shoes, shaving her legs and clipping her toenails. She claimed she could lift only 15 pounds, could walk for only 10 minutes, and could stand, kneel, bend, squat, reach, sit and climb stairs for only 10 to 15 minutes. She stated had been prescribed orthotics and wore a brace. (See AR 152-59).

At the administrative hearing, plaintiff testified that she had worked at Vons, primarily as a supervisor (bakery, deli). Vons attempted to accommodate her by changing her job duties - hanging tags with the use of a chair with wheels, serving as a checker with the use of a special stool - but she was not able to do them because sitting for long periods caused her too much pain. She earned a little money when she tried to go back to work in 2009 and 2010. Pain was the main reason she was not able to work. (See AR 29-31).

Plaintiff testified that she sees her orthopedist (Dr. Shaw) every month or two and last saw him two months earlier, but only for her left knee (and not for back or right knee which were injured in a car accident in 2001). She was in the process of finding an orthopedist who would also treat her for her back and right knee pain. Dr. Shaw did not want her to lift, bend, stoop, kneel, jump or stand (she was not aware of any limitation regarding how long she could stand). She has had three surgeries on her right knee, and one back surgery, a L4-L5 disc fusion, which relieved the pain a little. She was not prescribed a cane. Cortisone shots did not relieve the back pain. Physical therapy and pain management were not helpful. She had not worn the brace for a couple of years, and she did not still wear orthotics because they were making it worse. (See AR 31-37).

Plaintiff testified that every day she has a sharp and stabbing pain all day long in her lower back and both knees. The pain radiates to her hips and down her legs. Standing, walking, bending, sitting, kneeling and squatting all made her pain worse. For pain she takes Motrin and Vicodin as needed (she tries not to take them too often) and uses medical marijuana (prescribed by Dr. Patel). Both the Motrin and marijuana (which she ingests while eating food) relieve the pain, and she does not suffer any side effects. An Epsom salt bath helps but does not relieve the pain, and elevating her legs relieves her back pain. She has trouble going to sleep and waking up; she sleeps only six hours before taking her children to school, and then goes home and sleeps another three or four hours. She does not take antidepressants (she last took one a year and a half ago and it was not effective). (See AR 32-33, 37-40, 45-46).

Plaintiff testified she had received treatment (a cortisone injection) for her shoulders about two years earlier, but no longer had any problems except for when they ache a little on a cold ...

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