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Lira v. Commissioner of Social Security

United States District Court, E.D. California

June 29, 2017

JESSIE S. LIRA, Plaintiff,




         Plaintiff Jessie S. Lira (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for a period of disability and 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 major depressive disorder and panic disorder with agoraphobia. For the reasons set forth below, Plaintiff's Social Security appeal shall be denied.



         Plaintiff filed a Title II application for a period of disability and disability insurance benefits on June 21, 2012. (AR 174-77.) Plaintiff's applications were initially denied on October 22, 2012, and denied upon reconsideration on June 20, 2013. (AR 73-115.) Plaintiff requested and received a hearing before Administrative Law Judge Cynthia Floyd (“the ALJ”). Plaintiff appeared for a hearing on October 14, 2014. (AR 28-71.) On January 30, 2015, the ALJ found that Plaintiff was not disabled. (AR 9-23.) The Appeals Council denied Plaintiff's request for review on May 16, 2016. (AR 1-5.)

         A. Hearing Testimony

         Plaintiff testified at the October 14, 2014 hearing. She was 58 years old at the time of the hearing. (AR 34.) She was living with her daughter, her daughter's boyfriend, and her granddaughter in a duplex in Fresno. (AR 34-36.) She sometimes goes to the apartment she has with her husband when he is not there, but then she goes back to her daughter's place. (AR 36.) One of the reasons that Plaintiff and her husband are separated is that she cannot remember things. (AR 39.) She does not have any pets. (AR 36.) She completed high school and has not had any vocational training. (AR 40-41.)

         She does not have any sources of income and the only public benefits she receives are food stamps. (AR 36.) She has bills to pay, but she is unable to pay them because she does not have any money. (AR 37.) Plaintiff's daughter's boyfriend supports the household. (AR 37.) Plaintiff's husband also works. (AR 37.) Plaintiff received state disability benefits approximately three to four years prior to the hearing because she could not go back to work due to her depression. (AR 38.) She indicated that she was not sure if the disability benefits were the same as unemployment. (AR 39.) She had applied for and received unemployment benefits after she received state disability benefits. (AR 47.) She did not receive worker's compensation. (AR 38.) She has not received any money from a private disability insurance policy or a retirement plan. (AR 39.) She was looking for work while she was receiving unemployment benefits because she had to in order to receive the benefits. (AR 47-48.) She applied for sales jobs, but she could not make it to the interview process. (AR 48.) She would not have accepted a job offer if it would have been extended because she could not go into a store alone and she would get emotionally upset. (AR 48.) Her daughter would take her to town so she could get used to being in crowds and around people, but she could not do it. (AR 48.)

         She last worked on March 23, 2010, as a branch manager at JP Morgan Chase Bank. (AR 42.) She had been the branch manager there for ten years. (AR 42.) She had supervised staff and did some lending and sales, but she was not doing loans at the time she left the bank. (AR 42-43.) She lifted, carried, pushed, or pulled between ten and twenty pounds. (AR 43-44.) She had previously worked at Washington Mutual Bank as a branch manager. (AR 44.) She supervised the employees, did sales, and processed loans. (AR 44.) She lifted and carried about five to ten pounds. (AR 44-45.) She worked at Nationwide Credit in 2000 as a collection manager overseeing staff to make sure they were properly collecting and using proper phone etiquette. (AR 45.) She worked for Wells Fargo Bank from 1976 to 1999. (AR 45-46.)

         During a typical day, she wakes up around 10:00 a.m. or 11:00 a.m. (AR 57.) She sits in the house in the dark because the dark makes her feel protected. (AR 57-58, 68.) However, when Plaintiff's daughter gets home or stops by the house that Plaintiff has with her husband, Plaintiff's daughter opens the curtains and windows. (AR 69.) Plaintiff cannot cook alone anymore because there were two times she almost caused a fire when she forgot that she was cooking. (AR 58.) However, she sometimes cooks with her daughter. (AR 68.) She used to do all the cleaning and vacuuming, but now she does not do it. (AR 59.) She does not watch TV or listen to the radio because she likes silence. (AR 59-60, 67.) She uses an iPad to play a game and go on Facebook. (AR 60.) She prays a lot and she goes to the cemetery to visit her mother's grave. (AR 60-61.) She does not see her friends anymore. (AR 61.) She plays with her two year old granddaughter and takes her on walks in the parking lot of the complex. (AR 59.) She gives her granddaughter crackers and juice. (AR 59.)

         She currently has a valid driver's license with no restrictions on it, but it was suspended or revoked a year before the hearing because she did not have the money to pay the insurance or she forgot to pay it. (AR 39-40.) She drives back and forth between her daughter's place and the apartment that her husband is living in approximately four times a week. (AR 40.) Plaintiff only goes out of the house alone when she goes to her other house or to her daughter's house. (AR 67.) Plaintiff's daughter takes Plaintiff to see Plaintiff's sister in Columbus, to the grocery store, and to Plaintiff's doctors' appointments. (AR 40.) Whenever Plaintiff goes to stores and places in town, she feels like she cannot breathe and she starts sweating. (AR 55-56.) She estimates that she goes out two times a week. (AR 56.) When Plaintiff went with her daughter and sister to her sister's dentist appointment, she felt like she was going to pass out in the waiting room because there were three people there and she went to the car. (AR 54.) Her stomach was upset all day and she was sweating and crying. (AR 55.) When she went to restaurants, she asked to be sat her away from other people and near the restroom. (AR 68-69.) She has had four accidents where she could not make it to the restroom. (AR 69.)

         She cannot work because she gets anxious, she cannot breathe, and she starts sweating so much that her whole back gets wet. (AR 48.) The anxiety causes her to get sick to her stomach to the point that she has to go to the bathroom four or five times. (AR 48-49.) She cannot concentrate and follow simple directions. (AR 50.) Her anxiety has caused her to have a rash all over her body in the heat. (AR 69.) She has received medication for the rash, but it is not working, and she has been told to see a dermatologist. (AR 69-70.)

         Her mental problems are the result of her supervisor at Chase humiliating and demeaning her in front of staff and customers. (AR 50-51.) Plaintiff went to Human Resources, but her supervisor denied saying anything demeaning and humiliating about Plaintiff. (AR 52-53.) Plaintiff went on sick leave and eventually was laid off because they had to place someone in her position. (AR 53.)

         She receives treatment for her anxiety and mental status from Dr. Sana[3], who evaluates her and gives her Effexor. (AR 49.) She had previously received mental healthcare from Ms. Etrum, Dr. George, Dr. Alimasuya, Dr. Sandler, Dr. Rowell, and Arlena Couston. (AR 54.) The medication helps her because it keeps her a bit calmer and allows her to get out of bed. (AR 49-50.) Going to sleep is very hard for her. (AR 50.) She used to go to sleep at 5:00 a.m., but now with the medication she goes to sleep around 1:00 a.m. or 2:00 a.m. (AR 50.) Her daughter and husband want her to be the person that she used to be. (AR 56.) Plaintiff is unable to hug her daughter and husband. (AR 56.) She does not want her grandchildren who are 18 and 20 to know what is wrong with her, but they know that she is not the same anymore. (AR 58.)

         Vocational Expert (“VE”) Jose Shapiro also testified at the hearing. (AR 61-67, 70-71.) The VE testified that Plaintiff's work in the past 15 years is a financial institution manager, DOT code 186.167-086, sedentary, skilled, and SVP 8, and credit and collection manager, DOT code 169-167-086, sedentary, skilled, and SVP 8. (AR 62.) Both of these jobs were light as performed. (AR 62.) The ALJ gave the VE a series of hypothetical questions based on an individual with the same vocational profile as Plaintiff.

         The ALJ's first hypothetical was for an individual who could perform no more than simple, routine tasks without any contact with the general public and only occasional interaction with coworkers and supervisors. (AR 63.) The individual could not do Plaintiff's past relevant work, but could work as a hand packager, DOT code 920.587-018, medium, unskilled, SVP 2, and 51, 000 jobs nationally and 7, 200 jobs in California; industrial cleaner, DOT code 381.687-018, medium, unskilled, SVP 2, and 17, 600 jobs nationally and 1, 800 jobs in California; and stores laborer, DOT code 922.687-058, medium, unskilled, SVP 2, and 27, 900 jobs nationally and 2, 900 jobs in California. (AR 63-64.) There are no transferrable skills. (AR 64.)

         The ALJ's second hypothetical was based on the first hypothetical, but this individual could lift and carry up to 50 pounds occasionally and 25 pounds frequently, and stand and walk for 6 hours, sit for 6 hours. (AR 64-65.) This individual could not do any of Plaintiff's past relevant work, but could do the three jobs that the VE gave for the first hypothetical. (AR 65.)

         The ALJ's third hypothetical was based on the second hypothetical, but this individual also would be off task 5 percent of the work day one to two times a week and could lift and carry 20 pounds occasionally and 10 pounds frequently. (AR 65.) This individual could not do any of Plaintiffs past relevant work, but could work as a bottle packer, DOT code 920.685-026, light, unskilled, SVP 2, and 10, 300 jobs nationally and 1, 200 jobs in California; housekeeping cleaner, DOT code 323.687-014, light, unskilled, SVP 2, and 228, 000 jobs nationally and 25, 000 jobs in California, and can filling and closing machine tender (cannery job), DOT code 529.685-282, light, unskilled, SVP 2, and 27, 800 jobs nationally and 3, 200 jobs in California. (AR 65-66.) There are no transferable skills. (AR 70-71.)

         The ALJ's fourth hypothetical was based on the first and second hypotheticals, but with the restriction of being off task 5 percent of the time 1 to 2 times a week. (AR 66.) The VE testified that the response to the first and second hypotheticals would still be the same. (AR 66.)

         The ALJ's fifth hypothetical was based on the third hypothetical, but with the restriction of being off task 10 percent of the work day. (AR 66-67.) There is no work that this individual could perform. (AR 67.)

         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 December 31, 2015.
• Plaintiff has not engaged in substantial gainful activity since March 23, 2010, ...

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