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Duke v. Commissioner of Social Security

United States District Court, E.D. California

April 19, 2017





         Plaintiff Lorna Lynn Duke (“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 matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Stanley A. Boone.[1]

         Plaintiff suffers from depression, lumbar degenerative disc disease, status-post minimally invasive left-sided transforaminal interbody fusion at ¶ 5-S1 with segmental pedicle screw fixation and possible pseudo-arthrosis across interspace; and obesity. For the reasons set forth below, Plaintiff's Social Security appeal shall be denied.



         Plaintiff protectively filed an application for a period of disability and disability insurance benefits on February 28, 2012, alleging a disability onset date of January 10, 2011. (AR 76-77.) Plaintiff's application was initially denied on September 5, 2102, and denied upon reconsideration on February 25, 2013. (AR 112-116, 118-122.) Plaintiff requested and received a hearing before Administrative Law Judge Cynthia Floyd (“the ALJ”). Plaintiff appeared for a hearing on June 24, 2014. (AR 36-75.) On July 21, 2014, the ALJ found that Plaintiff was not disabled. (AR 19-32.) The Appeals Council denied Plaintiff's request for review on January 11, 2016. (AR 3-5.)

         A. Hearing Testimony

         Plaintiff testified at the June 24, 2014 hearing. (AR 40-64.) Plaintiff was born on July 24, 1964, and would be 50 on her upcoming birthday. (AR 40-41.) Plaintiff lives with her husband and two sons, ages 19 and 17. (AR 41.) Plaintiff has two small dogs. (AR 41.) Plaintiff was 5 foot 3 inches tall and weighed 190 on the date of the hearing. (AR 41.) Plaintiff had gained about 30 pounds in the previous year and a half due to being sedentary. (AR 42.)

         Plaintiff completed twelfth grade and does not have any vocational training, certifications, or licenses. (AR 44.) Plaintiff worked as an office technician for the Porterville Developmental Center, State of California, for 29 years. (AR 45.) Plaintiff started as a student assistant while she was attending college. (AR 47.) Plaintiff did not finish the first year of college. (AR 47.) After working as a student assistant three times, she was hired as an office assistant. (AR 47.) She took tests and was promoted to the position of office technician. (AR 47.) From 1999, Plaintiff was an office technician for two different departments. (AR 48.)

         Plaintiff did clerical work, such as typing and filing. (AR 45, 48.) Her last position was scanning documents and indexing them. (AR 45.) As an office technician, Plaintiff would lift not more than 5 to 10 pounds. (AR 45.) She stopped working because she could not sit, stand, or walk for any period of time due to pain. (AR 45.) Plaintiff was able to do her job for 5 to 6 hours a day, but got to the point where she was not able to work more than 6 to 10 days a month. (AR 45.) In 2010, there were several months where Plaintiff only got paid between 6 and 10 days out of 22 work days. (AR 61.) Plaintiff wanted to continue working, but her attendance was so poor that she was forced to retire. (AR 60.)

         Plaintiff's back pain started in 2003 and that year she had her first and only MRI. (AR 45, 48.) The MRI showed L4-5 posterior ligamentous hypertrophy. (AR 48.) They did not diagnose her condition until 2006 and she had a back surgery - fusion, L4 in 2006. (AR 45-46.) After her surgery, Plaintiff returned to work half-time for six months, and then full-time after a year. (AR 46.) Plaintiff did pretty well, but after about a year her pain returned. (AR 46.) Between 2008 and 2011, Plaintiff worked less and less. (AR 46.) Her employer attempted to accommodate her by making adjustments to her work station and allowing her extra breaks. (AR 46.) By the end, Plaintiff was lying down in the employee breakroom every break with her legs elevated and a heating pad to make it through a couple hours a day. (AR 46-47.)

         Plaintiff quit working in February of 2011. (AR 43.) Plaintiff received worker's compensation benefits for approximately a year prior to her disability retirement. (AR 42.) Plaintiff received about $300.00 every two weeks. (AR 42.) Plaintiff's disability retirement started on December 23, 2011. (AR 43.) Plaintiff receives approximately $1, 100.00 per month in retirement benefits. (AR 43.)

         Plaintiff has a driver's license and drives once a week about 15 miles to the store. (AR 44.) Plaintiff has been completely sedentary since she retired in 2011. (AR 48.) If she does any kind of activity - very limited household chores - she has to do a tiny bit at a time and lay down with her feet elevated. (AR 48.) On a typical day, Plaintiff gets up about 8:00. (AR 49.) She has a cup of coffee and will make a sandwich for lunch. (AR 49.) Plaintiff might do a load of laundry in the morning, but really does nothing. (AR 49.) She lies on the couch and watches television with her legs up. (AR 49.) Plaintiff likes to read mysteries and romance. (AR 53.) She spends time on the computer. (AR 64.) She has a lap top that she use on a lap tray so she can lie down. (AR 64.) Plaintiff's family helps with everything. (AR 49.) If Plaintiff helps make dinner they do the dishes. (AR 49.) It is not that Plaintiff is unable to do things, but that she is always in pain and the only way to get relief is to lie down and elevate her legs. (AR 49.) Plaintiff spends a lot of time on the heating pad. (AR 49.)

         Plaintiff goes to the grocery store once a week in the evening when her family is there to help her unload the groceries. (AR 50.) Plaintiff rarely unloads groceries by herself and if she does then she has to take pain medication and lie down afterwards. (AR 50.) Plaintiff takes hydrocodone for pain three or four times per day as needed and celexa for depression. (AR 50-51.) But Plaintiff does not take the hydrocodone every day. (AR 53.) She does not need it if she is sedentary. (AR 53.) She does not like taking the hydrocodone and is afraid of becoming addicted. (AR 53.) It makes her feel horrible, lethargic, and she does not like the feeling. (AR 54.)

         Plaintiff is not disabled due to her depression because it is controlled with medication. (AR 51.) She has normal ups and downs, but her depression is controlled. (AR 58-59.) Plaintiff had physical therapy for her back on and off from 2003 until 2010. (AR 52.) She did not receive any benefit from the physical therapy. (AR 52.) Plaintiff recently asked her doctor if there was some medication she could take daily to control the pain rather than as needed. (AR 52.) She wants to become more active and cannot even take a short walk for exercise without pain. (AR 52.) The doctors considered removing the screws and hardware in her back but determined that with her propensity for developing scar tissue it was not a good idea. (AR 55.) There would only be a fifty percent chance that additional surgery would alleviate her pain. (AR 55.)

         Plaintiff is supposed to be going to a pain management doctor in Bakersfield. (AR 52.) Plaintiff had injections in the past when the pain was radiating down her leg. (AR 53.) She had injections a couple of times that did not help, but with the last injection the leg pain went away and never came back. (AR 53.) Plaintiff's back pain is aching, burning, sharp, and feels like constant pressure, always tight. (AR 53.) When she gets up in the morning her back pain is a dull ache, about four out of ten. (AR 54.) If she does a few chores then it will be a seven out of ten immediately. (AR 54.) If she goes to the grocery store or Target without assistance then the back pain will be a nine out of ten and she needs to take something. (AR 54.) Even if it is not hurting she will lie down so it will not hurt. (AR 55.) When Plaintiff lies down her pain is a three or four out of ten. (AR 56.) Her level of pain all the time is similar to menstrual cramps. (AR 56.)

         Plaintiff walked two blocks to get to the hearing and her back felt different when she got out of the car than it did after she walked the two blocks. (AR 56.) It took her three to four minutes to walk the distance. (AR 56.) Plaintiff is able to do quite a bit with help. (AR 57.) But everything she does, such as unloading the dishwasher, causes pain. (AR 57.) Plaintiff always waits until the pain level is high before she takes medication. (AR 57.) She will first lie down and use heat because she is terrified of getting addicted. (AR 57.) Plaintiff has to take the pain medication maybe three days per week. (AR 57.)

         Plaintiff has to take the medication on a full stomach and even then it sometimes makes her nauseous. (AR 58.) On occasion the medications make her sleep. (AR 58.) She is very affected by medications and when she has surgery she is easily sedated. (AR 58.) Plaintiff is in the least amount of pain when she is lying down with her legs elevated. (AR 58.) Plaintiff spends all day, every day elevating her feet. (AR 58.) She does very little. (AR 58.) The pain is also worse during her menstrual cycle because of the pressure on her back. (AR 59.) That will put her completely down for a couple days. (AR 59.) If Plaintiff goes on a trip with her family and has to drive more than two and a half to three hours she will need to take something for pain. (AR 59.) If she is in a situation where she is unable to lie down and elevate her legs than she will have to take pain medication the entire time that she is away from home. (AR 59.)

         Plaintiff last travelled out of state in 2002. (AR 61.) When she stopped working her oldest son was in high school and played water polo. (AR 62.) She went to a couple of tournaments that were two to two and a half hours away. (AR 62.) Plaintiff's youngest son plays golf and she did attend a couple of his tournaments the past year. (AR 62.) The tournament lasts about an hour and a half and she rode in a golf cart. (AR 62-63.) She went to a fund raiser dinner at the fair a few months ago with a friend. (AR 62.) When she goes to any event she will sit for a while, stand, walk around a bit, and then sit back down. (AR 62.)

         A vocational expert, Thomas Dachelet, also testified at the hearing. (AR 65-71.)

         B. ALJ Findings

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

• Plaintiff met the insured status requirements of the Social Security Act through June 30, 2016.
• Plaintiff has not engaged in substantial gainful activity since January 10, 2011, the alleged onset date.
• Plaintiff has the following severe impairments: lumbar degenerative disc disease, status-post minimally invasive left-sided transforaminal interbody fusion at ¶ 5-S1 with segmental pedicle screw fixation and possible pseudo-arthrosis across interspace; and obesity.
• 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 as defined in 20 CFR 404.1567(b) and 416.967(b), including lifting up to 20 pounds occasionally and 10 pounds frequently; standing and walking up to 6 hours in an 8-hour workday; and sitting up to 6 hours in an 8-hour workday, with the following restrictions: she can occasionally climb stairs and ramps, but can never climb ladders, ropes, or scaffolds. She can occasionally stoop, kneel, crouch, crawl, and balance. She must avoid concentrated exposure to extreme cold and wetness; and avoid hazards such as unprotected heights, fast moving machinery, and traversing uneven or slippery terrain.
• Plaintiff is capable of performing her past relevant work as an administrative clerk. This work does not require the performance of work-related activities precluded by Plaintiffs residual functional capacity.
• Plaintiff had not been under a disability, as defined in the Social Security Act, from January 10, 2011, through the date of the decision.

         C. Medical Record

         On February 8, 2010, Plaintiff saw Dr. Pagulayan-Sy complaining of worsening back pain for a few days. (AR 294.) Plaintiff had tenderness in the ...

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