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Lang v. Commissioner of Social Security

United States District Court, E.D. California

April 8, 2014

STEPHANIE LYNN LANG, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S SOCIAL SECURITY APPEAL AND REMANDING FOR FURTHER DEVELOPMENT OF THE RECORD

STANTEY A. BOONE, District Judge.

Plaintiff Stephanie Lynn Lang ("Plaintiff") filed this action seeking judicial review of the final decision of Defendant Commissioner of Social Security ("Defendant" or "Commissioner") denying Plaintiff's application for benefits under the Social Security Act. (ECF No. 1.) All parties have consented to the jurisdiction of a United States Magistrate Judge for all purposes. (ECF Nos. 9, 10.)

Plaintiff applied for Social Security benefits due to impairments stemming from her degenerative disc disease. For the reasons set forth below, Plaintiff's appeal from the final decision of the Commissioner is granted in part and denied in part and the Court remands this action back to the Commissioner for further administrative proceedings to inquire into any possible conflicts between the testimony of the vocational expert and the information in the Dictionary of Occupational Titles.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff applied for Supplemental Security Income benefits on August 7, 2007. (AR 198.) Plaintiff's application was denied on February 25, 2008. (AR 110.) Plaintiff requested reconsideration of the denial on March 31, 2008. (AR 116.) Plaintiff's application was denied after reconsideration on May 27, 2008. (AR 118.) On June 26, 2008, Plaintiff requested a hearing. (AR 125.)

On April 21, 2010, a hearing took place before Administrative Law Judge John Heyer ("the ALJ"). (AR 54.) On May 14, 2010, the ALJ issued a written decision and found that Plaintiff was not disabled. (AR 97.)

On October 15, 2010, the Appeals Council reversed the May 14, 2010 decision of the ALJ and remanded this case for further consideration of issues pertaining to Plaintiff's need for a walker, the medical opinions, and the possible effect of Plaintiff's obesity on her ability to work. (AR 102-104.)

On April 4, 2012 a second hearing took place before the ALJ. (AR 82.) On April 11, 2012, the ALJ issued a second written decision and found that Plaintiff was not disabled. (AR 21.) The Appeals Council denied Plaintiff's request for review on February 22, 2013. (ECF No. 1.)

A. Hearing Testimony

At the first hearing on April 21, 2010, the ALJ solicited testimony from Plaintiff as well as vocational expert Kenneth Ferra ("the VE"). (AR 30.) At the second hearing on April 4, 2012, the ALJ solicited testimony from Plaintiff as well as vocational expert Alina Sala.[1] (AR 56.)

Plaintiff testified that she was born on August 26, 1971. (AR 33.) Plaintiff can drive a car. (AR 33.) Plaintiff last worked in August 2006 as "an order filler." (AR 33.) Previously, Plaintiff was a cashier at a grocery store, a cashier at a gas station, a cook, and worked at Bosselman Travel Center. (AR 33-34.)

Plaintiff alleges that her disability began in August 2006. (AR 35.) Plaintiff contends that she is disabled because she has to use a walker and has issues with her legs and arms. (AR 40.) Plaintiff also has back pain. (AR 41.)

Plaintiff testified that she could probably lift ten pounds and can lift a gallon of milk. (AR 41, 61.) Plaintiff can walk 20-30 steps without her walker before her knees start to hurt and she has to sit down. (AR 41.) Plaintiff can walk 40-50 steps with her walker. (AR 41.) Plaintiff can stand for 10-20 minutes. (AR 41, 61.) Plaintiff can sit for about thirty minutes. (AR 41-42.)

In a typical day, Plaintiff will have coffee for breakfast, wash her cup, and go into the living room to watch television on her recliner. (AR 42.) Plaintiff will use the restroom on her own throughout the day. (AR 42.) At the first hearing, Plaintiff stated that she sometimes watches TV from her bed and uses the computer. (AR 42.) However, at the second hearing, Plaintiff stated that most of her time is spent watching TV in bed and that she does not use the computer. (AR 62.) If she needs anything, Plaintiff's kids will get it for her. (AR 42.) Plaintiff can make her own sandwiches. (AR 42.) Plaintiff no longer vacuums the house or does the laundry. (AR 42-43.) At the first hearing, Plaintiff testified that she can go to the store but cannot walk there very long, with grocery trips generally taking 20-25 minutes. (AR 42-43.) However, at the second hearing, Plaintiff testified that she does not go grocery shopping. (AR 62.)

Plaintiff also has problems with vertigo and falls down. (AR 44.) Plaintiff has braces on both legs and on her arm. (AR 44.) Plaintiff has pain in the lower part of her fingers in her dominant hand, and will sometimes drop things. (AR 44-45.) Plaintiff has problems with incontinence. (AR 45.) Plaintiff has trouble moving her head to the left. (AR 48.) Plaintiff suffers from depression. (AR 48.) At the second hearing, Plaintiff testified that she recently suffered from severe epicondylitis in both elbows. (AR 65.) Plaintiff requires help dressing and taking a shower. (AR 70-71.)

Plaintiff takes Vicodin, Lasix, Pepcid, Soma, Prozac, Klor-Con, lovastatin and Ambien. (AR 45.) Plaintiff has been seen by treating doctor Dr. Awadalla since July 2007. (AR 45.)

Plaintiff completed school through the twelfth grade. (AR 46.) Plaintiff is 5'4" and weighed 248 pounds at the time of the first hearing, but her normal weight is 180 pounds. (AR 46.) At the time of the second hearing, Plaintiff's weight was 229 pounds. (AR 68.)

B. VE Testimony

At the first hearing on April 21, 2010, the VE testified that Plaintiff's prior work could be classified as various cashier positions (light, semi-skilled), order puller (medium, unskilled), home attendant (medium, semi-skilled) and cook (medium, skilled). (AR 51.) The ALJ presented the VE with the following first hypothetical:

• Can lift 10 pounds;
• Can sit for six hours in an eight hour day; and
• Can stand and walk for two hours in an eight hour day.

(AR 51.) The VE testified that a person with such hypothetical limitations could perform work as an assembler, order clerk and nut sorter. (AR 51.)

The ALJ provided the VE with a second hypothetical with the same limitations set forth in the first hypothetical, with the additional limitation that such person requires the use of a walker. (AR 52.) The VE testified that the additional limitation would not affect her ability to perform the jobs described in response to the first hypothetical. (AR 52.) The VE further testified that those jobs are sedentary and that a limitation in the ability to move one's head from side to side might affect the nut sorter job, but would have no effect on the ability to perform the order clerk or assembler jobs. (AR 52.)

Plaintiff's attorney presented the VE with the following third hypothetical:

• Can stand and walk less than two hours;
• Can sit less than two hours;
• Restricted from no heat or cold extremes;
• Restricted from using the feet repetitively;
• No hand use repetitively;
• Cannot climb, balance, stoop, or ...

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