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Flores v. Commissioner of Social Security

United States District Court, E.D. California

June 27, 2017

PATRICIA FLORES, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER GRANTING PLAINTIFF'S SOCIAL SECURITY APPEAL, DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AND REMANDING ACTION FOR FURTHER DEVELOPMENT (ECF NOS. 13, 14, 15)

         I.

         INTRODUCTION

         Plaintiff Patricia Flores (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her applications for disability benefits and supplemental security income 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 lumbar degenerative disc disease, obesity, cervical degenerative disc disease, hypertension, microvascular angina, hyperlipidemia, and anxiety. For the reasons set forth below, Plaintiff's Social Security appeal shall be granted and remanded for further development.

         II.

         FACTUAL AND PROCEDURAL BACKGROUND [2]

         Plaintiff filed a Title II application for a period of disability and disability insurance benefits and a Title XVI application for supplemental security income on August 28, 2012. (AR 249-65.) Plaintiff's applications were initially denied on December 26, 2012, and denied upon reconsideration on June 28, 2013. (AR 163-67, 170-79.) Plaintiff requested and received a hearing before Administrative Law Judge Sharon Madsen (“the ALJ”). Plaintiff appeared for a hearing on November 20, 2014. (AR 27-58.) On January 30, 2015, the ALJ found that Plaintiff was not disabled. (AR 10-20.) The Appeals Council denied Plaintiff's request for review on April 14, 2016. (AR 1-3.)

         A. Hearing Testimony

         Plaintiff testified at the November 20, 2014 hearing.[3] Plaintiff is 5'2'' and weighs 200 pounds. (AR 30.) She lives in an apartment with her daughter and two grandchildren. (AR 31.) She did not have a driver's license at the time of the hearing because she did not renew it. (AR 31.) Usually her daughter takes her to her appointments. (AR 31.) She has received her GED. (AR 31-32.)

         She needs help scrubbing her feet and legs in the shower. (AR 32.) She has problems putting on her shoes and socks. (AR 42.) She does not do any household chores, dishes, cooking, or microwaving. (AR 32.) She does not do any shopping or social activities. (AR 33.) She does not do anything with her grandchildren. (AR 34.)

         On a typical day, she spends most of her time laying down with her legs straight and her head back. (AR 33.) She watches TV while she is laying down. (AR 33.) She takes naps off-and-on during the day. (AR 33.) She never gets up and goes for walks. (AR 33.)

         In 1999, she worked at the Department of Social and Health Services in Washington interviewing clients for the pre-eligibility for welfare. (AR 34.) Starting in 2002, she worked for Fresno County Economics Opportunities Commission interviewing clients for the WIC Program. (AR 34.) She has provided daycare for her grandchildren at different times. (AR 35.) In 2006, she worked a temporary job with a housing authority doing customer service over the phone. (AR 35.) She worked for Milligan scheduling appointments during tax season for three months. (AR 35-36.) In 2005, she worked for United Health in Parlier interviewing clients for WIC Program. (AR 36.) When she worked with the welfare department and WIC, she was usually sitting for most of the day and she spent very little time on her feet. (AR 37.)

         She has constant back pain 24 hours a day, especially if she is sitting up. (AR 37.) She has to switch positions, including possibly standing up. (AR 37.) The best position for her is laying down with both of her legs stretched out. (AR 37.) Sitting is the worst position for her, but standing is also bad. (AR 39.) She is on Soma, methadone, and Norco for the pain, which do help, but she feels drowsy and nauseous and she forgets things. (AR 38.) The last time she saw Dr. Henry Aryan, he was going to do surgery, but her insurance did not cover it, so he said to keep taking the medications and wait a little longer. (AR 38.) He said that her condition would get worse. (AR 38.) She feels that her condition worsened in the month prior to the hearing. (AR 39.) The injections she received as treatment did not help much. (AR 39.) She fell in her bathtub two days before the hearing when her leg gave out causing a concussion and bruising. (AR 50.) She also fell about a month before the hearing when she was trying to get on the bed and her right leg went limp and gave out. (AR 50-51.)

         She has constant neck pain that goes into her arms and causes her fingertips to be numb, tingly, and so that she does not feel them. (AR 39.) She is taking medications and has not been referred to anybody for her neck because it is a recent issue. (AR 39-40.) She tried medication for nerve pain, but she had a seizure so she stopped using it. (AR 43.) She also uses a cream for arthritis which helps a little bit, but the pain then comes back. (AR 40.) She has not been sent for a nerve conduction study for her hands. (AR 41.) She can hold her head in one position, such as looking at a monitor, for three to four minutes before she needs to take a break for about an hour. (AR 47-48.) She is able to move her head side to side so that she touches her chin to her shoulders, but it hurts. (AR 48.) She also has pain moving her head front to back where her chin touches her chest and then she looks up. (AR 48.) She feels like her bones are cracking in the back of her head. (AR 48.)

         She also has chest pain that has improved with medication, but has not gone away. (AR 40.) The doctor told her that the blood is flowing really slowly into the smaller veins, so over time it might improve. (AR 41.) She has high blood pressure and is still taking medication for her cholesterol. (AR 41.)

         It is hard for her to sleep because of the pain and she is also very forgetful. (AR 41.) She can lift two to three pounds, such as a bag of sugar. (AR 41.) She can sit for five to ten minutes before she has to stand up and she can stand for five minutes before she has to sit or lay down. (AR 41-42.) She can walk half a block. (AR 42.) She cannot walk on uneven surfaces like grass or gravel because of the pain in her leg and her right leg feels like it is going to give out. (AR 48-49.) She cannot bend over and squat down to pick something up off the floor. (AR 42.) She has problems climbing stairs. (AR 43, 49.) She has to hold onto her daughter when she goes up or down a curb because she feels unbalanced. (AR 49.) She has problems lifting her arms over her head, picking up small things, and holding onto objects. (AR 43-44.) The rain and cold cause her bones to hurt and her pain to increase. (AR 47.)

         She is scared to go anywhere and it is a struggle for her to leave her room because she feels like something bad is going to happen to her. (AR 44.) Her anxiety is worse when she is around a crowd of people, including when she is around her friends and family. (AR 44.) She feels embarrassed and as if she has to run away when she is around friends and family. (AR 44.) She is constantly depressed and crying. (AR 51.) She does not have suicidal thoughts, but she feels worthless. (AR 51.) The depression and anxiety cause her to hardly eat and she mainly likes to eat sweets. (AR 51-52.) She is taking Citalopram and Amitriptyline for her anxiety and depression and they help her relax and sometimes help her anxiety. (AR 45.) She feels that she needs different medication because she feels like it is not helping her anymore. (AR 45.) She saw Ms. Townsend three or four times for her mental health, but then insurance would not cover it anymore, so she stopped going. (AR 45-46.) She had not seen Ms. Townsend in the eight months prior to the hearing. (AR 46.) She told Ms. Townsend that she is scared to be around people and to go outside. (AR 46.) She had an appointment with Mental Health for the day after the hearing. (AR 46.) She had rescheduled previous appointments with Mental Health because she did not want to go out. (AR 46.) She thinks that getting help with her mental issues will help her be able to function. (AR 51.)

         She cannot pay attention to what's happening on TV because she dozes on and off. (AR 45.) She can stay focused for five minutes before she has to take a break for two or three hours. (AR 49.) When she is taking a break, she lays down with her head back on a pillow. (AR 49-50.) Her daughter manages the finances in the family. (AR 45.)

         Stephen Schmidt, a vocational expert (“VE”), also testified. The VE testified that Plaintiff's past work was babysitter, DOT code 301.677-010, medium, SVP 3; receptionist, DOT code 237.367-038, sedentary, SVP 4, but performed at medium; social service aide, DOT code 195.367-034, light, SVP 6, but performed at sedentary, and customer clerk, DOT code 241.367-014, sedentary, SVP 5. (AR 53.) The ALJ gave the VE hypothetical questions regarding an individual of the same age, education and work background as Plaintiff. (AR 53.)

         The ALJ's first hypothetical was for an individual who could lift and carry 20 pounds occasionally and 10 pounds frequently; sit, stand, or walk 6 to 8 hours a day; occasionally climb ladders, ropes, and scaffolds, stoop, and crouch; and frequently climb stairs, crawl, kneel, and balance. (AR 53.) The VE testified that the individual could do all of Plaintiff's past work except the babysitter job. (AR 53.) The receptionist job would be as performed in the national economy, but not as actually performed. (AR 53.)

         The second hypothetical was for an individual who could lift and carry 20 pounds occasionally and 10 pounds frequently; sit 6 to 8 hours; stand or walk 4 hours; cannot climb ladders, ropes, or scaffolds; and occasionally climb stairs, stoop, crouch, crawl, kneel, and balance. (AR 53-54.) The VE testified that the individual could perform the customer clerk job, the receptionist job as performed in the national economy, and social service aide as actually performed. (AR 54.)

         The third hypothetical was based on the second hypothetical with the addition of occasional overhead reaching, occasional forceful gripping and grasping, and no static neck positioning like keyboarding. (AR 54.) The VE testified that the individual could not perform Plaintiffs past relevant work, but could perform other jobs. (AR 54.) The individual could perform jobs such as parking attendant, DOT code 915.473-010, light, SVP 2, which has 12, 000 jobs in California and 68, 000 jobs nationally; information clerk, DOT code 237.367-018, light, SVP 2, which has 18, 000 jobs in California and 140, 000 jobs nationally; and office helper, DOT code 239.567-010, light, SVP 2, which has 37, 000 jobs in California and 255, 000 jobs nationally. (AR 54.)

         The fourth hypothetical was based on the third hypothetical with the addition of simple, routine tasks and only occasional public contact. (AR 54.) The VE testified that the hypothetical eliminated work. (AR 55.)

         The fifth hypothetical was based on prior hypotheticals, except decreasing to the sedentary exertional level, lifting and carrying 10 pounds occasionally and frequently, sitting 6 to 8 hours, standing or walking 2 hours, and occasional fingering, feeling, gripping, and grasping. (AR 55.) The VE testified that the hypothetical eliminated work. (AR 55.)

         Plaintiffs counsel asked a hypothetical based on the ALJ's first hypothetical, but with an additional unscheduled break of at least an hour. (AR 55.) The VE testified that the individual could not do any of Plaintiff s past work or any other work. (AR 55.) Plaintiffs counsel then asked a hypothetical based on the ALJ's second hypothetical, but the individual would be off task approximately 15% of the time. (AR 55.) The VE testified that the individual could not do any of Plaintiff s past work or any other work. (AR 55.)

         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 ...

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