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Dinwiddie v. Commissioner of Social Security

United States District Court, E.D. California

July 18, 2016




         Plaintiff Roberta Lynn Dinwiddie (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for disability benefits pursuant to the Social Security Act. The action was referred to the magistrate judge pursuant to Local Rule 302(c) and 28 U.S.C. § 636(b). The matter is currently before the Court on the parties’ briefs, which were submitted, without oral argument, to Magistrate Judge Stanley A. Boone.

         Plaintiff suffers from cardiomyopathy, peripheral neuropathy, spine disorders, chronic obstructive pulmonary disease (“COPD”), obesity, hypertension, and anxiety disorder. For the reasons set forth below, it is hereby recommended that Plaintiff’s Social Security appeal be denied.


         Plaintiff protectively filed an application for a period of disability and disability insurance benefits and a Title XVI application for supplemental security income on March 16, 2012; and a Title II application for disabled widow’s benefits on April 26, 2012. (AR 104, 105, 106.) Plaintiff’s applications were initially denied on June 28, 2012, and denied upon reconsideration on February 4, 2013. (AR 149-153, 154-159, 163-167, 168-172.) Plaintiff requested and received a hearing before Administrative Law Judge Susanne Lewald (“the ALJ”). Plaintiff appeared for a video hearing on February 6, 2014. (AR 39-65.) On March 10, 2014, the ALJ found that Plaintiff was not disabled. (AR 9-23.) The Appeals Council denied Plaintiff’s request for review on May 7, 2015. (AR 1-3.)

         A. Hearing Testimony

         Plaintiff testified at the February 6, 2014 hearing. (AR 42-46, 51-57, 58.)

         Plaintiff lives with her daughter. (AR 46.) Plaintiff is about five foot six inches tall and weighed about one hundred ninety pounds the last time she got on the scale. (AR 55.)

         Plaintiff testified that on an average day she gets up and does what housework she can. (AR 43.) Plaintiff can stand for a bit and do dishes. (AR 43.) If she bends down to pick things up off the floor she will get bad back pain. (AR 43.) Plaintiff will sit down when her feet start hurting her really badly, or go and lie down and put her feet up. (AR 43.) Plaintiff will get back up and do more. (AR 43.) This continues throughout the day. (AR 43.) It takes Plaintiff two to three times as long to accomplish tasks because she has to sit down and get off her feet. (AR 43.)

         Plaintiff is able to vacuum, but does not do much sweeping. (AR 43.) Plaintiff is able to do laundry. (AR 43.) Plaintiff is able to carry two gallons of milk, one in each hand. (AR 44.) Plaintiff has two steps that she climbs to get into her house. (AR 44.) When she tries to carry too much she gets short of breath when she climbs the stairs. (AR 44.) Plaintiff has never been hospitalized related to her COPD or difficulty breathing. (AR 55.) Plaintiff is able to walk several blocks. (AR 55.)

         Plaintiff has a sharp pain and numbness in the bottom of her feet. (AR 44.) She feels like a bunch of needles are poking the bottom of her feet. (AR 45.) Plaintiff does not need a cane to walk. (AR 45.) When she has been on her feet more than normal they will bother her at night. (AR 45.) When that happens she shakes her feet until she falls asleep. (AR 45.) For the past four years, Plaintiff has to take four or five rest breaks during the course of an average day if she is up or helping out. (AR 53.) She takes a rest break of thirty to forty-five minutes where she puts her feet up. (AR 53-54.) These breaks are needed due to her feet or problems with her back. (AR 53.) There are no activities that aggravate her symptoms. (AR 53.) If Plaintiff is on her feet too long she starts stumbling around and she gets wobbly at night if she pushes herself. (AR 53.)

         Plaintiff does not receive any treatment for mental health issues because she does not have medical insurance. (AR 55.) Plaintiff has panic attacks that wake her up out of her sleep. (AR 56.) Plaintiff has panic attacks day and night. (AR 56.) She does not know what triggers them, but they happen more often when she is stressed out. (AR 56.) Plaintiff has panic attacks three to five times per week that last about twenty minutes. (AR 57.) Plaintiff has taken medication in the past for anxiety. (AR 56.)

         Plaintiff last worked in February 2009 doing janitorial work. (AR 45.) She stopped because her health was going downhill. (AR 45.) Plaintiff worked five days per week. (AR 45.) On her long days she would travel between businesses. (AR 45.) Plaintiff looked for work after she stopped working in 2009 but was unable to find work. (AR 51.)

         Plaintiff has previously worked as a cashier, janitorial, in-home care, dispatching, and babysitting. (AR 51.) Plaintiff worked as a dispatcher for U-Haul. (AR 51.) She worked from five in the evening until seven or eight in the morning. (AR 51-52.) Plaintiff would receive calls regarding customers who had rented a U-Haul which had broken down. (AR 52.) She would call the customer and confirm the information received was correct and then dispatch a mechanic, tow truck, or have the customer put up for the night. (AR 52.) Plaintiff worked out of her home and did not use a computer on the job. (AR 52, 58.) All communication was by telephone. (AR 58.) Plaintiff was paid by the number of breakdowns that she handled. (AR 52.) Plaintiff worked at this job part time for five years making more than $500.00 per month. (AR 52-53.)

         Plaintiff worked as in-home support cleaning the house, cooking meals, taking out the garbage, administering medication, and taking the client to doctor appointments. (AR 54-55.) Plaintiff would do whatever needed to be done: mop the floor, vacuum, dust. (AR 54-55.)

         Plaintiff is most bothered by her shortness of breath because her chest will start to hurt a little bit. (AR 45-46.) Plaintiff takes medication for cholesterol. (AR 46.) Plaintiff used to take medication for her peripheral neuropathy, but does not currently because she has to save money for her medication. (AR 46.) Plaintiff last used methamphetamines in 2001. (AR 55.)

         Based on the testimony at the hearing and his review of the medical record, Dr. Wallach determined that Plaintiff had two medically determinable physical impairments: peripheral neuropathy and diastolic heart failure. (AR 46-47.) Plaintiff’s diastolic heart failure does not meet the listing because she does not meet the left ventricular wall size of 2.5 centimeters, but she does have symptoms with would make her class II heart failure. (AR 47.) Dr. Wallach opined that Plaintiff would equal the listing for 4.02. (AR 47.) Dr. Wallach relied on exhibit 3-F for neuropathy, back pain, and below knee. (AR 47.)

         The ALJ questioned Dr. Wallach because the records described sensory neuropathy, but nothing that interferes with motor function. (AR 47.) The record showed abnormal sensation in the toes but normal muscle bulk and tone and motor strength in bilateral upper and lower extremities which would be a medium residual functional capacity. (AR 47.) Dr. Wallach reviewed the record and opined that Plaintiff did not meet the listing. (AR 48.) Dr. Wallach opined that Plaintiff stated she can lift ten pounds, but that she could not climb ladders and should not work around machinery. (AR 48.) Plaintiff should not crouch, stoop, or kneel. (AR 48.) Plaintiff would need to get up every hour for five to ten minutes when sitting. (AR 48.) Plaintiff would be able to stand or walk two hours combined out of an eight hour period. (AR 48.)

         The ALJ questioned Dr. Wallach on the November 2013 hospital records which indicate minor severity of illness. (AR 49.) Dr. Wallach stated that Plaintiff is on two medications for heart failure and class II heart disease is symptoms on moderate exercise. (AR 49.) The first mention of heart failure is January 10, 2012. (AR 49.) The limitation to sedentary work would be due to Plaintiffs heart failure and the residual functional capacity opined by Dr. Wallach would not be prior to January 10, 2012. (AR 50.) Prior to that date she would have been able to do work a full day with rest breaks. (AR 50.) When she was having difficulty she would have had to get up five to ten minutes every hour. (AR 50.)

         A vocational expert, Marilyn Kinnier, also testified at the hearing. (AR 57-64.)

         B. ALJ Findings

         The ALJ made the following findings of fact and conclusions of law.

• Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2013.
• Plaintiff has been previously found to be an unmarried widow of a deceased insured worker and has attained the age of 50. Plaintiff met the non-disability requirements for disabled widow benefits.
• The prescribed period ends on August 31, 2014.
• Plaintiff has not engaged in substantial gainful activity since the alleged date of onset of September 11, 2010.
• Plaintiff has the following severe impairments: COPD, tobacco addiction, obesity with a BMI over 35, peripheral neuropathy of unknown etiology, and angina pectoris.
• Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments.
• Plaintiff has the residual functional capacity to perform light work except that she is limited to stand and/or walking short distances up to six hours out of an eight hour day; can never climb ladders, ropes, or scaffolds; can occasionally climb ramps or stairs, and perform other postural activities; and have no exposure to concentrated dust, fumes, smoke, or similar respiratory irritants.
• Plaintiff has no past relevant work.
• Plaintiff was born on September 11, 1960, and was 51 years old on the alleged disability onset date, which is defined as an ...

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