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Draper v. Colvin

United States District Court, E.D. California

August 13, 2014



SANDRA M. SNYDER, Magistrate Judge.

Plaintiff Janice Draper, by her attorneys, Law Offices of Lawrence D. Rohlfing, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income ("SSI") pursuant to Title XVI of the Social Security Act ("the Act"). See 42 U.S.C. § 301 et seq. This action was initially referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(15), and both parties voluntarily consented to proceed before a United States Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c). The matter is before the Court on the parties' cross-briefs, which were submitted without oral argument to the Honorable Sandra M. Snyder, U.S. Magistrate Judge. Following a review of the complete record and applicable law, the Court finds the decision of the Administrative Law Judge ("ALJ") to be supported by substantial evidence.


I. Procedural History

On December 16, 2009, Plaintiff applied for supplemental security income. Plaintiff alleges onset of disability on January 1, 1995. The Commissioner initially denied the claims on May 11, 2010, and upon reconsideration again denied the claims on October 20, 2010. Plaintiff filed a timely request for a hearing on November 9, 2010.

On January 26, 2012, and represented by counsel, Plaintiff appeared and testified at a video hearing presided over by Michael Blume, Administrative Law Judge ("the ALJ"). See 20 C.F.R. 404.929 et seq. An impartial vocational expert, Gerald Belchick, Ph.D., also appeared and testified.

On February 6, 2012, the ALJ denied Plaintiff's application. The Appeals Council denied review on May 1, 2013. On July 5, 2013, Plaintiff filed a complaint seeking this Court's review.

II. Administrative Record

A. Plaintiff's Testimony (January 26, 2012)

Plaintiff, born December 9, 1964, lived in an upper floor apartment with her disabled nephew (age 11 at the time of the hearing). Plaintiff completed high school, attended some college, and is able to communicate in English. Plaintiff testified that she last worked in 2008 as a home health care provider caring for her mother, had prior work as a telemarketer in 2007-08, and as a telephone secretary in 1998. Plaintiff testified that she had not worked since 2008.

Plaintiff alleged onset of disability in January 1995, and testified that she has pain in her hip, knees, lower back, and upper shoulders. She testified that her doctors tell her that "there's nothing they can really do." Plaintiff described her typical daily activities as follows:

I get up, get my nephew ready for school, and then I might lay back down for a little while and then I'll get up and wash some clothes or do a little cleaning the house and then I might sit down for a minute. And then I'll maybe start my dinner or something. I just take breaks throughout the day - just normal household chores or I might go outside and visit with my neighbors.

Plaintiff testified that due to her previous hip surgery where her doctors "had to reconnect and put bolts and screws and stuff up in my leg, " her right leg is shorter causing her to "wobble" and "sometimes fall." She estimated that she bumps herself "every day" and falls "at least maybe once a month." Plaintiff testified that she managed her self-care, but has difficulty washing her right foot and tying her shoes, gets out of breath while dressing, and sometimes needs assistance to get out of the bathtub. Plaintiff reported that she was able to grocery shop and use public transportation without assistance. Plaintiff stated that although her medication made her sleepy, she did "not really" sleep during the day. Instead, she testified that she rested "maybe two hours at the most" every day. Plaintiff testified that she did not drive, but used the bus and "got rides."

To manage her pain, Plaintiff reported taking over-the-counter medications as well as having prescriptions for Oxycodone, Soma, Norco, and Vicodin. She reported taking Soma daily, and using Oxycodone, Norco, and Vicodin "according to the pain." She stated she also had a prescription "like arthritis pills, " which she used to treat inflammation. She testified that she experienced side effects from her medications, such that she has stomach problems, drowsiness, and sluggishness. Describing the effects of Oxycodone, she stated that it "knocks her out, " and that Norco permitted her to concentrate for only five or ten minutes at a time. Plaintiff testified that her pain management physician, Dr. Jose Flores, recommended that she exercise, climb the stairs to her apartment, suggested that she "ride a bike, " and encouraged her to "walk, walk." Plaintiff estimated that she could stand for five to ten minutes before she had to rest for rest, sit for twenty minutes, walk "about four blocks, " and could lift approximately ten pounds. She testified that she sometimes used a cane, but disliked doing so. She testified that she cannot climb a ladder or kneel, and has problems when reaching overhead. Plaintiff testified she was five foot three inches tall and weighed 185 pounds.

B. Medical Evidence

The ALJ properly considered the following medical records and opinions. As the ALJ noted, the medical findings in this case are sparse; no treating or examining physician rendered an opinion as to the Plaintiff's abilities. The objective medical evidence confirmed the diagnosis of status post open reduction internal fixation of the right femur, healed, with residual chronic lumbar strain/sprain; obesity; and depressive disorder not otherwise specified. There are minimal treatment records.

In medical records from December 2009, treating physician Hing Luong, M.D., diagnosed Plaintiff with right hip bursitis. X-rays of the right femur and right hip from April 2010, showed evidence of an internal fixation plate and screws within the femur for an old healed fracture, but no other acute abnormalities, with the hip joints maintained bilaterally. In July 2010, when Plaintiff complained of increasing intermittent aching pain in the right hip and increased pain with certain hip movements, Dr. Luong confirmed his previous diagnosis of hip bursitis.

At the request of the state agency, consultative orthopedist Dale Van Kirk, M.D., examined the Plaintiff in February 2010. He observed that Plaintiff sat comfortably in her chair, had no problems getting out of the chair, walking around the examination room, or getting on and off the examination table. Dr. Van Kirk further observed that she had no limp, her Romberg testing was normal, her tandem walking with one foot in front of the other was satisfactory, and she was able to get up on her toes and heels. Dr. Van Kirk noted that Plaintiff exhibited minimal pain in the mid-lumbar spine area, had an exaggerated lordotic posture of the lower back, slight pain in the right paralumbar soft tissues, and 70° out of 90° back flexion. The doctor noted that Plaintiff had no motion limitation in the knees, ankles, shoulders, elbows, or wrists, had a normal range of motion in the left hip, but a limited range of motion in the right hip. Her straight leg raising test was 90°-90° bilaterally in the sitting and supine positions; her motor strength was normal; and sensory exam was normal, except she had slight hypoesthesia around the knee scar on the right thigh. Dr. Van Kirk diagnosed right femur fracture status post ORIF, healed, with residuals, and chronic lumbosacral musculoligamentous strain-sprain.

In August 2010, Plaintiff began treatment with Pain Management & Family Medicine. At that time, Plaintiff reported bilateral knee and right hip pain. In September 2010, Jose Flores, M.D., noted a history of femur fracture with ORIF in the hip and femur. In November 2010, when Plaintiff reported right leg pain, Dr. Flores observed that Plaintiff had a leg length discrepancy. At a follow-up examination in December 2010, Plaintiff reported continuing hip pain, and Dr. Flores diagnosed osteoarthritis of the hips and fibromyalgia. In ...

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