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Sullivan v. Commissioner of Social Security

United States District Court, E.D. California

March 21, 2017

CAROLYN SULLIVAN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER GRANTING IN PART PLAINTIFF'S SOCIAL SECURITY APPEAL AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS (ECF Nos. 17, 18, 19)

         I. INTRODUCTION

         Plaintiff Carolyn Sullivan (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for disability benefits and her application for supplemental security income under the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Stanley A. Boone.[1]

         Plaintiff's impairments included lumbar herniated discs, lumbar radiculopathy, sacroiliac joint pain, chronic pain, insomnia, and anxiety.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         On February 28, 2013, Plaintiff filed an application for disability insurance benefits under Title II and an application for supplemental security income under Title XVI of the Social Security Act. (AR 188-95.) In both applications, Plaintiff alleged disability beginning on December 1, 2010. (Id.) Plaintiff's applications were denied initially on August 7, 2013, and on reconsideration on January 6, 2014.[2] (AR 126-29, 131-36.) Plaintiff requested and received a hearing before Administrative Law Judge G. Ross Wheatley (“ALJ”). Plaintiff appeared for a hearing on December 9, 2014. (AR 38-71.) On February 20, 2015, the ALJ issued a decision finding Plaintiff was not disabled. (AR 23-32.) On December 10, 2015, the Appeals Council denied Plaintiff's request for review (AR 1-6.)

         A. Hearing Testimony

         Plaintiff appeared with counsel at the hearing before the ALJ on December 9, 2014. (AR 38-71.) Plaintiff testified as follows:

         Plaintiff was fifty-five years old at the time of the hearing. (AR 42-43.) She attended high school until the eleventh grade. (AR 43.) She went to truck driving school and had a commercial license, but she no longer has it. (AR 43.) She did not receive any specific occupational training for her work as a sterilizer operator and an install technician for a phone company. (AR 43.)

         She last worked in November or December 2010 because of an injury to her back. (AR 44.) She indicated that she is being treated for disc issues with sciatica, carpal tunnel, and anxiety. (AR 44-45.) She feels that the injury in her back and her legs causes her the greatest problems in her daily life. (AR 45.) She has shooting pain in her lower back that shoots down into her legs. (AR 45.) It was only on her right side, but now it also is on the left side. (AR 45.) Her right foot and left toe go numb, she has muscle spasms in her back if she sits or stands too long, and she has trouble and great discomfort from bending over and tying her shoes. (AR 45.) She can sit for approximately 30 minutes before she has to get up because of tingling and numbness in her legs. (AR 57.) She can stand for approximately 40 minutes before pain shoots down her back into her legs. (AR 57.)

         She sees Dr. Meetiner K. Rai in Modesto for her back.[3] (AR 45.) Plaintiff saw her two weeks before the hearing and she did not change Plaintiff's medications or treatment. (AR 46.) Plaintiff takes Norco, which helps for a short period of time. (AR 46.) Dr. Rai has recommended Tramadol, but Dr. Rai has told Plaintiff that she is not sure how much longer Plaintiff will get that. (AR 46.) She last did physical therapy in 2009 and last had steroidal or cortisone injections in her back in 2012. (AR 46.) The shots helped for a couple of weeks, but her doctor had indicated that because of her spinal meningitis, she has scar tissue in her lower back which causes the medication to not be able to get down to the disc, so it does not help for a length of time. (AR 47.) She indicated that she did physical therapy three times, but then her medical discontinued it. (AR 47.) Her doctor had talked about surgery, but then had decided against it and said that she was not a candidate at that time. (AR 47.) She is not currently receiving any other treatment for her back. (AR 47.)

         She had carpal tunnel surgery on both wrists, which helped for a short period of time, but then the strength in her hands decreased and she had numbness and tingling in her hands. (AR 48.) Four weeks before the hearing, Plaintiff's doctor recommended that she get a brace. (AR 48.) “[She] hadn't got one. [Her doctor] told [her she] had to buy that.” (AR 48.) Plaintiff indicated that the braces “seem to help somewhat.” (AR 48.) The last nerve conduction study on her hands was two months before the hearing, but she did not know the results. (AR 48-49.)

         As to Plaintiff's anxiety, she is not seeing a psychiatrist and has never seen a counselor. (AR 49.) She takes medication that is prescribed by Dr. Rai. (AR 49.) The medications cause her to be tired. (AR 49.)

         Plaintiff testified that her doctor prescribed a cane about four months before the hearing. (AR 49.) Plaintiff uses it when she goes to the doctor, out to church, and when she leaves her house. (AR 49.)

         She lives with her sister and several of her sister's family members and sleeps on the couch. (AR 50-52.) She has good days and bad days. (AR 50.) When she wakes up, she takes her medication and either sits down or moves around to get the muscles in her back released. (AR 50.) She then takes a shower and tries to help with dishes. (AR 50.) She has problems doing the dishes if she is standing too long, if there are too many people, or if she has a muscle spasm in her hands because of gripping. (AR 57.) Sometimes when she is washing dishes or drinking coffee, she loses feeling in her hand and drops what she is holding. (AR 57.)

         She does stretching and home exercise that her doctor recommended almost on a daily basis. (AR 50-51.) That gives her relief for a little while, but it does not stop her symptoms. (AR 50-51.) She has a little bit of trouble brushing her hair because of using her hands over her head. (AR 51.) Tying her shoes and bending over cause a strain in her back and shooting pain down into her legs. (AR 51.) She does not cook, but she microwaves and can make herself a sandwich. (AR 51.) She does her own laundry. (AR 51.) She tries to read the Bible daily and usually reads it for ten minutes. (AR 52.) She does not watch TV programs and does not watch movies. (AR 52.) When she sits too long, her legs feel numb and tingle. (AR 52.) She does not have a home computer or access to one, but she has used a computer minimally at work before. (AR 52.) She does not have an email account, but she does have a Facebook account that she uses on her daughter's phone. (AR 52-53.) She does not know how to text. (AR 53.)

         Her daughter usually goes shopping with her. (AR 53.) She has a driver's license, but she does not have a car, so she drives sometimes, but not all the time. (AR 53.) She drives to the doctor, which is about two-and-a-half miles there and back. (AR 53.) She drives sometimes to a little store around the corner. (AR 53.) The longest distance that she drove in the year before the hearing was seven miles when she went to church and back. (AR 53-54.) Her daughter drove her to the hearing. (AR 54.)

         She went to her son's house, which is about five miles from her, for Thanksgiving and there were about 30 to 32 people there. (AR 54.) She does not spend time with friends. (AR 54.) She tries to attend church on Thursdays and Sundays. (AR 54.) There are days she cannot go to church because of muscle spasms in her back that cause her to not be able to sit or stand in the services for too long. (AR 54, 56.) She sometimes has to skip church twice a month. (AR 56.) If the service goes a little longer, she has to get up and go into the back or outside, because she cannot sit for too long. (AR 56.) Sometimes during the day, such as some Sunday mornings when she comes home from church, she has shooting pain into her back and muscle spasms, so she lies down for at least an hour and takes her medication. (AR 58.) She takes pain medication and she tries to take her anxiety medication because it helps her relax more. (AR 58.) Sometimes she uses a heating pad. (AR 58.)

         Vocational Expert (“VE”) George Myers testified at the hearing. (AR 59-67.) The VE testified that his testimony would be consistent with the DOT, and if not, he would let the ALJ know. (AR 60.) He later testified that his testimony was consistent with the DOT. (AR 65.) He had the opportunity to review the file and familiarize himself with Plaintiff's vocational background. (AR 60.) He indicated that he was familiar with Plaintiff's past work and that he had submitted a summary of Plaintiff's past work for the past 15 years. (AR 61.) He testified that Plaintiff's past work for the past 15 years was as a sterilization operator and a cable splicer. (AR 61.) Plaintiff's counsel inquired about the choice for cable splicer instead of installation tech, which the state agency found. (AR 61.) The VE indicated that he does not see what the state agency does and that he determined cable splicer by finding the closest DOT to the job description of what Plaintiff was doing based on the work history summary. (AR 61-62.) The VE testified that the records indicated that Plaintiff performed the job at the light exertional level. (AR 62.) Plaintiff's counsel and the ALJ noted that the job description looked a little above light or borderline, respectively. The VE indicated that the DOT code is 829.361-010 and the job is performed at light. (AR 63.)

         The first hypothetical that the ALJ gave the VE was for an individual of Plaintiff's age, education, and work experience who is capable of performing at the medium level with sitting, standing, and walking for 6 hours in an 8 hour day and frequent stooping and crouching. (AR 63-64.) That individual could perform all of Plaintiff's past work. (AR 64.)

         The second hypothetical that the ALJ gave the VE was for an individual who was capable of performing at the light level with the same limitations, only frequent stooping and crouching. (AR 64.) That individual would be able to perform both jobs according to the DOT, but may not be able to perform the cable splicer job as described by Plaintiff. (AR 64.) The cable splicer job could be light or could be construed as medium. (AR 64.)

         The third hypothetical the ALJ asked the VE was based on the first and second hypotheticals, but added that the individual would likely have 3 or more unexcused or unscheduled breaks or absences per month. (AR 64-65.) That individual would not be able to perform the jobs. (AR 65.)

         The fourth hypothetical that the ALJ asked the VE was based on the first and second hypotheticals, but added that the individual would require additional breaks every 2 hours for 15 minute stretches. (AR 65.) That individual would not be able to perform the jobs. (AR 65.)

         Plaintiff's counsel then asked the VE a hypothetical that was based on the ALJ's second hypothetical, but the individual would need a handheld device for extended distances. (AR 65-66.) That individual would not be able to perform either one of these jobs with a handheld device. (AR 66.) Plaintiff's counsel asked a second hypothetical that did not have the cane limitation, but the individual was limited to frequent on all the manipulatives. (AR 66.) That individual would be able to perform past work. (AR 66.) If the individual was limited to occasional on all the manipulatives, then that would eliminate past work. (AR 66.)

         If Plaintiff had to use a cane, there would be no transferable skills at either the medium or the light level. (AR 67.) Plaintiff then testified that she did not work in the sterilizer room on a steady basis, and that she worked warehouse doing bending, lifting, and jacking the trains. (AR 68.) She indicated that she was a sterilizer relief operator only when the sterilizer operators went on vacation, so she would go in there maybe a week at a time each month unless they were sick. (AR 67.) The rest of the time she was in the warehouse driving the forklift, lifting pallets, going up and down stairs, standing on the railing, and having to bend over to lift up pallet tops. (AR 67-68.)[4] She pointed out that Dr. Nigel and Dr. Lewis, the two doctors she saw for worker's compensation, only saw her for 30 minutes.[5] (AR 69.) Plaintiff testified that she disagreed with Dr. Nigel's finding that she could lift 30 pounds, because she was not able to do that. (AR 69.)

         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 March 31, 2016;
• Plaintiff has not engaged in substantial gainful activity (“SGA”) since December 1, 2010, the alleged onset date;
• Plaintiff has the following severe impairment: lower back pain due to degenerative disc disease (“ DDD”) of the lumbar spine;
• Plaintiff did 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 (“RFC”) to perform a wide range of light work as defined in 20 CFR 404.1567(b) and 416.967(b), except Plaintiff can frequently stoop and crouch;
• Plaintiff was capable of performing past relevant work as a sterilizer operator (DOT code 523.685-124, light, and SVP 3) and cable splicer (DOT code 829.361-010, light, and SVP 6). This work does not require the performance of work-related activities precluded by Plaintiffs RFC; and
• Plaintiff has not been under a disability as defined in the Social Security Act, from December 1, 2010, through the date of the decision.

(AR 23-32.)

         III. LEGAL STANDARD

         To qualify for disability insurance benefits under the Social Security Act, the claimant must show that she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Regulations set out a five step sequential evaluation process to be used in determining if a claimant is disabled. 20 C.F.R. § 404.1520; Batson v. Commissioner of Social Sec. Admin, 359 F.3d 1190, 1194 (9th Cir. 2004). The five steps in the sequential evaluation in assessing whether the claimant is disabled are:

Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If ...

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