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Leon v. Commissioner of Social Security

United States District Court, E.D. California

April 26, 2017

JOY LEON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S SOCIAL SECURITY APPEAL AND REMANDING ACTION (ECF NO. 16, 21)

         I. INTRODUCTION

         Plaintiff Joy Leon (“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 incontinence, pelvic and vaginal pain disorder, with history of surgeries; and obesity. For the reasons set forth below, Plaintiff's Social Security appeal shall be granted in part and denied in part.

         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 February 27, 2012. (AR 81, 90.) Plaintiff's applications were initially denied on July 18, 2012, and denied upon reconsideration on December 31, 2012. (AR 127-130, 136-140.) Plaintiff requested and received a hearing before Administrative Law Judge Catherine R. Lazuran (“the ALJ”). Plaintiff appeared for a hearing on January 16, 2014. (AR 45-80.) On March 28, 2014, the ALJ found that Plaintiff was not disabled. (AR 17-28.) The Appeals Council denied Plaintiff's request for review on August 11, 2015. (AR 3-5.)

         A. Hearing Testimony

         Plaintiff testified at the January 16, 2014 hearing. (AR 49-67, 68-69, 76-77.) Plaintiff was born on February 18, 1977, and was 36 years old on the date of the hearing. (AR 49.) Plaintiff was 5 feet tall and weighed 183 pounds. (AR 49.) Plaintiff is right handed. (AR 49.)

         Plaintiff is married and her husband does not work. (AR 49.) He got fired when he had to stay home and take care of their son when Plaintiff had surgery. (AR 67.) Plaintiff lives with her six children ages 17, 15, 13, 10, 9, and 7. (AR 49-50.)

         Two of Plaintiff's children receive disability benefits and she receives welfare and food stamps. (AR 56.) Plaintiff's son is mentally and physically disabled and her daughter has ADHD with behavioral modifications. (AR 56.) Plaintiff's 15 year old son has “septal optic dysplasia; a lobar hallo prolosepheli (PHONETIC) with spastic CP; and diabetes insipidus and hyperpituitarism” and is unable to walk or talk. (AR 51, 56, 67.)

         Plaintiff has a driver's license. (AR 50.) Plaintiff graduated from high school and attended nine months of vocational training. (AR 50.) Plaintiff's training was as a medical office specialist and she finished in 2007. (AR 51.) Plaintiff's husband spends time with her son and before he was off work her 17 year old son spent time with him. (AR 67.) Her 17 year old son has been on independent studies for two years. (AR 67.)

         Plaintiff is currently working as in-home supportive services caring for her disabled son three hours per day seven days a week. (AR 51.) She makes about $900.00 per month. (AR 52.) Plaintiff lifts about five pounds. (AR 51.) She prepares her sons' meals, which are mostly microwavable meals, washes his face, makes his bed, and gives him sponge baths. (AR 51.) She has been caring for him in this capacity since 1996. (AR 51.) Previously she was paid for fewer hours per month. (AR 52.)

         In 2009, Plaintiff worked for Kaiser Permanente as an eligibility clerk through a temp agency. (AR 52, 55.) She was working 40 hours per week. (AR 52.) In that position, she would lift files. (AR 2.) The position was the same as a secretary. (AR 68.) Plaintiff would answer phones, input data into the computer, file, and talk to clients on the phone. (AR 68-69.) She left when she started to get ill, when she had her hysterectomy. (AR 52.) She did not get a permanent job before she left. (AR 55.)

         Plaintiff worked as a ticket and ramp agent for Continental Airlines. (AR 52.) As a ticket agent, Plaintiff would check passengers in through the computer system, tag their bags, put them on the belt and send them to the baggage room. (AR 69.) Plaintiff would lift 70 pound bags onto the tarmac, putting them into and out of the plane, flag planes in, and check in passengers. (AR 52.) She worked for three different airlines over a period of ten years from 1998 to 2008. (AR 52-53.) The jobs were all fulltime and she performed similar duties at each job. (AR 53.) Plaintiff left the last job because it was getting hard for her to lift the bags in and out of the airplanes and she wanted a better education so she went to work for a department store for a year while she went back to school. (AR 53.)

         In the department store, Plaintiff worked in the cash office keeping track of all the money and accounting. (AR 53.) She worked forty hours per week in this job. (AR 54.) She was a cash office attendant. (AR 53.) Plaintiff left after she finished school to go to an externship. (AR 54.) In 2009, Plaintiff worked at Mercy Hospital as an environmental specialist, which entailed cleaning the hospital rooms. (AR 54.) Plaintiff was working 32 to 40 hours a week and lifting about 40 pounds. (AR 54.)

         Plaintiff left Mercy Hospital because she was offered a better paying job as a security guard. (AR 54.) Plaintiff worked full time as a security guard at the airport for about six months. (AR 54-55.) In this position she lifted the passenger's suitcases, which were about 70 pounds, onto the belt to scan them. (AR 55.)

         Plaintiff has had surgery since 2012 but does not remember when. (AR 57.) Plaintiff was hospitalized for one night in July 2012, and August 2012. (AR 57-58.) Plaintiff is currently receiving pain management treatment from Dr. Parmer. (AR 58.) Dr. Parmer prescribed medication and wants Plaintiff to go to physical therapy. (AR 58.) Plaintiff is going to have another MRI of her back. (AR 58.) Plaintiff was going to have another surgery on Thursday to lift her rectum and she will be in the hospital three to four days. (AR 58.)

         Plaintiff was referred to pain management back in 2012 but did not go because her insurance would not pay for it. (AR 59.) Plaintiff has been able to carry five to ten pounds since February 2012. (AR 59.) Plaintiff gets about four hours of sleep per night. (AR 59.) When she goes to sleep she wakes up because of the pain. (AR 59.) Plaintiff will get a heating pad or take more medication if it is time. (AR 59.) Plaintiff uses laxatives but they do not really help, they just make her stool softer. (AR 59.) Plaintiff's pain is 9 out of 10 on an average day. (AR 59.)

         Plaintiff is currently unable to work because she cannot stand or sit for long periods of time and has to rest quite frequently. (AR 56.) When Plaintiff is in too much pain she has to lie down. (AR 56.) She became unable to work about three years prior to the hearing. (AR 56.) Her health has gotten worse since then. (AR 56.) Plaintiff takes Percocet, Celebrex, gabapentin, nortriptyline and a fentanyl patch. (AR 57.) The medications put her to sleep. (AR 57.) She told her doctor and he told her she needed to rest. (AR 57.)

         Plaintiff rests as much as she can during the day and tries not to do anything unless she has to. (AR 60.) But she is the primary caretaker for her son and takes care of him. (AR 60.) Plaintiff has not received any counseling or psychological treatment since 2012. (AR 60.) Plaintiff does not do any household chores. (AR 60.) Her husband and children do them or her mother comes over and helps. (AR 60.) Plaintiff only cooks for her disabled son; her husband does the rest of the cooking. (AR 60.) Plaintiff's husband does all the grocery shopping because it is too painful for her to walk around the store. (AR 60-61.) Plaintiff does not shop for clothing, exercise, go to church, or travel. (AR 61.) She did go to USC for medical treatment twice in 2013. (AR 61.) Her sister drove her there. (AR 61.)

         Plaintiff has no hobbies. (AR 62.) Plaintiff plays games on her iPad in the middle of the night when she is in pain and cannot sleep. (AR 62.) Plaintiff does not use e-mail, go to movies, read, use public transport, or do laundry. (AR 62.) Plaintiff does drive, but very seldom. (AR 62.) Plaintiff has two dogs but it is her sons' job to take care of them. (AR 62.) Plaintiff does not help her children with their homework, the older children help the younger children or her husband helps them. (AR 62.)

         Plaintiff went to her son's award ceremony at school but had to leave because she was in too much pain. (AR 62-63.) Plaintiff does not pay the bills or help her children get ready for school in the morning. (AR 63.) Plaintiff cannot do any of her past work because she cannot stand or sit for long periods of time and has to have periods of rest due to pain. (AR 63-64.) Plaintiff has to go to the bathroom 12 to 13 times a day. (AR 64-65.) Plaintiff only has 30 seconds to one minute notice before she has to go to the bathroom. (AR 65.) Plaintiff wears a pad and has had accidents in public. (AR 65.) The last time that happened was about three months ago at Dr. Park's office. (AR 65.) When Plaintiff has to go somewhere she uses a pad and then does not drink anything so she will not have to go the bathroom while she is out. (AR 65.)

         Plaintiff is able to sit for 10 to 15 minutes before she has to move or stand up to alleviate the pain. (AR 65.) Plaintiff lays down 4 to 6 hours per day. (AR 66.) During the middle of the night, Plaintiff is able to focus on her video games for about thirty minutes. (AR 66.) Plaintiff spends thirty minutes in the morning taking care of her son. (AR 66.) Then she will spend an hour preparing his meal. (AR 66.) She stands to microwave his food and then can sit while she feeds him. (AR 66.) Then she uses the remaining hour and one half to get him ready for bed. (AR 66.)

         A vocational expert (“VE”), Robin Scher, also testified at the hearing. (AR 68-80.) The VE characterized Plaintiff's past work history as a guard, security, Dictionary of Occupational Titles (“DOT”) 372.667-034, customarily performed as light with an SVP: 3 however, performed as heavy; home attendant, DOT 354.377-014, customarily performed as medium with an SVP: 3, however performed as light; eligibility worker, DOT 195.267-010, sedentary strength level with an SVP: 6; ticket agent, DOT 238.367-026, customarily light with an SVP: 5, however performed at heavy; administrative clerk, DOT 219.362-010, light SVP: 4; and hospital cleaner, DOT 323.687-010, medium with an SVP: 2. (AR 69-70.) Plaintiff has transferrable job skills. (AR 70.)

         The ALJ presented a hypothetical of an individual of Plaintiff's age, education, and past work experience, who is able to lift 50 pounds occasionally and 25 pounds frequently; can stand and walk 6 of 8 hours; and sit 6 of 8 hours. (AR 71.) The VE opined that this individual would be able to perform all jobs Plaintiff previously performed as they are customarily performed. (AR 71.)

         The ALJ presented a second hypothetical of this same individual who is able to lift 20 pounds occasionally and 10 pounds frequently; can stand and walk 6 of 8 hours and sit 6 of 8 hours; and can occasionally bend, squat, climb, crawl and reach above the shoulder; should avoid exposure to hazards such as moving machinery and avoid moderate exposure to dust, fumes, gases, poor ventilation and is able to occasionally drive. (AR 71.) The VE opined that this individual would be able to perform Plaintiff's past relevant work as a security guard as it is customarily performed, the home attendant as performed by Plaintiff, the ticket agent as it is customarily performed, and the administrative clerk. (AR 72.)

         The ALJ then added that the individual needs a sit or stand option and can do each for 15 to 30 minutes at a time. (AR 72.) The VE opined that this individual would be able to work as a security guard, eligibility worker and administrative clerk. (AR 72-73.) The security guard position would need to be eroded by 50 to 60 percent to account for the inability to stand; there are approximately 43, 000 jobs in California and 330, 000 nationally. (AR 73-74.) If there was an addition of avoiding moderate exposure to extreme temperatures, it would not affect the jobs available in California. (AR 74.)

         Counsel proffered a hypothetical of the same person in the second hypothetical who was likely to miss four days in a typical month. (AR 74.) The VE opined that this individual would be able to perform Plaintiff's past relevant work but if they consistently missed four days a month they would not be able to maintain a job. (AR 74-75.)

         Counsel proffered a second hypothetical of this same individual who would have to take restroom breaks which would remove her from the workstation for eight minutes every hour apart from normal breaks. (AR 75.) The ALJ objected that there was no evidence that Plaintiff needed eight minutes to take a restroom break. (AR 75.) The VE opined that it is required that someone who needs to be allowed to use the restroom be able to do so. (AR 75.) Especially in the office position, however, eight minutes seems like an excessive amount of time to urinate. (AR 75-76.) Counsel objected to the VE's opinion on the length of the restroom break. (AR 76.) Plaintiff clarified that if she is up from 4:00 a.m. to 6:00 p.m. she would go to the bathroom 12 to 13 times. (AR 77.) She gets her son ready for bed at 5:00 p.m. and then she is laid up due to pain by 6:00 p.m. (AR 77.) It takes Plaintiff two to three minutes to go to the bathroom. (AR 77.)

         The ALJ asked if an individual needed a restroom break once every 60 to 90 minutes, for 2 to 3 minutes, if that would be a problem in the workplace. (AR 78.) The VE opined that it would not be a problem, especially in the office situation. (AR 78.) This individual would be able to work as an office helper, DOT 239.57-010, light with an SVP: 2, there are approximately 8, 200 jobs in California and 75, 000 nationally. (AR 78-79.)

         Counsel asked if there would be any erosion for the sit stand option and the VE opined there would not be. (AR 79.) Counsel then inquired how the regulations define light. (AR 79.) The VE responded that if a person might need to stand more than two hours in an eight hour day the job would be classified as light. (AR 79.) There is quite a range within the categories and a person may not have to do any lifting at all. (AR 79.) Counsel then inquired as to whether all 95, 000 jobs would allow for a sit stand option. (AR 80.) The VE opined that the jobs are generally in an office and an individual would be able to have a stool. (AR 80.)

         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 September 30, 2013.
• Plaintiff has not engaged in substantial gainful activity since February 21, 2012, the alleged onset date.
• Plaintiff has the following severe impairments: pelvic and vaginal pain disorder, with history of surgeries; 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) except she can lift 10 pounds frequently and 20 pounds occasionally; stand and walk in increments of 15 minutes and for a total of 4 hours out of an 8-hour workday; sit in increments of 15 to 30 minutes and for a total of 4 hours out of an 8-hour workday; and can do occasional bending, squatting, climbing, crawling and reaching above shoulder height. She should avoid moderate exposure to workplace hazards, and unprotected heights and to marked changes in temperature; and can do no more than occasional driving.
• Plaintiff is capable of performing past relevant work as a security guard; office helper and copy machine operator. This work does not require the performance of work-related activities precluded by Plaintiffs residual functional capacity.
• Plaintiff has not been under a disability, as defined in the Social Security Act, from February 21, 2012, through the date of this decision.

(AR 22-27.)

         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 Security Administration, 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 not, proceed to step two.
Step two: Is the claimant's alleged impairment sufficiently severe to limit his or her ability to work? If so, proceed to step three. If not, the claimant is not disabled.
Step three: Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not, proceed to step four.
Step four: Does the claimant possess the residual functional capacity (“RFC”) to perform his or her past relevant work? If so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant's RFC, when considered with the claimant's age, education, and work experience, allow him or her to adjust to other work that exists in significant numbers in the national economy? If so, the ...

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