United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING
PLAINTIFF’S SOCIAL SECURITY APPEAL (ECF NOS. 14, 15,
16) OBJECTIONS DUE WITHIN FOURTEEN DAYS
I.
INTRODUCTION
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.
II.
FACTUAL AND PROCEDURAL BACKGROUND
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 ...