United States District Court, E.D. California
ORDER GRANTING IN PART PLAINTIFF'S SOCIAL
SECURITY APPEAL (ECF NOS. 16, 19, 20)
Michelle Moreno (“Plaintiff”) seeks judicial
review of a final decision of the Commissioner of Social
Security (“Commissioner” or
“Defendant”) denying her application for
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.
suffers from chronic plantar fasciitis; chest pain; pain in
her right shoulder post-surgery; neck pain due to whiplash;
hepatitis C; diabetes; and obesity. For the reasons set forth
below, Plaintiff's Social Security appeal shall be
granted in part.
AND PROCEDURAL BACKGROUND
filed an application for supplemental security income on July
8, 2013, alleging disability beginning September 24,
2004. (AR.) Plaintiff's applications were
initially denied on November 18, 2013, and on reconsideration
on March 19, 2014. (AR 141-146, 149-154.) Plaintiff requested
and received a hearing before Administrative Law Judge
Brenton L. Rogozen (“the ALJ”). Plaintiff
appeared for a hearing on December 30, 2015. (AR 76-102.) On
January 21, 2016, the ALJ found that Plaintiff was not
disabled. (AR 15-26.) The Appeals Council denied
Plaintiff's request for review on February 10, 2017. (AR
testified at the hearing on December 30, 2015. She lives with
her daughter and grandson. (AR 79.) She completed the
eleventh grade. (AR 81.) She has a certification as a
dietician which is no longer current and a certification in
money management. (AR 81-82.) She does not have a
driver's license. (AR 82.) If she is going somewhere, she
gets a ride from her fiancée or her daughter. (AR 82.)
unable to work because of her feet. (AR 86.) She sees a foot
doctor because her arch has collapsed. (AR 86.) She also is
not getting circulation in her feet anymore and she cannot
put pressure on her feet because of her diabetes. (AR 86.)
She also has high blood pressure and she gets chest pains on
her left side. (AR 86.) She had surgery for tendonitis in her
right shoulder, but it is coming back again and she has
whiplash pain in her neck. (AR 86-87.)
problems in her feet started about 4 years ago. (AR 87.) She
feels like she is walking on glass and she has no circulation
in her feet. (AR 87.) Her feet are ice cold sometimes and she
has chronic pain up to her knees. (AR 87.) Dr. Ross Nishijima
told her that the pain is from lifting so much all her life.
(AR 87-88.) She has been seeing Dr. Nishijima, a foot doctor,
for 3 years. (AR 88.) Dr. Nishijima checks her feet and he
gave her orthotic shoes and built her some arches. (AR 88.)
She wears her orthotic shoes as much as she can, especially
when she goes shopping. (AR 88.) Dr. Nishijima said that
surgery on her feet would help and asked her if she wanted
surgery. (AR 90-91.) Plaintiff decided to wait, but she does
not have an explanation for her decision. (AR 91.) She has
not had injections or physical therapy for her feet and
doctors have not suggested physical therapy. (AR 91.) She has
not had any other treatment. (AR 92.) She cannot take pain
medication because of her hepatitis C, so she takes
ibuprofen. (AR 92.) She rests and elevates her feet for 10
hours during the daytime, and she sleeps 5 hours of that
time. (AR 92.) She also wraps a hot cloth around her feet.
(AR 92.) However, resting her feet does not really help. (AR
92.) The pain gets worse with standing and walking. (AR
92-93.) She cannot walk on gravel and she has a hard time
climbing stairs. (AR 93.) Cold and hot weather also make her
pain worse. (AR 93.)
received treatment for her hepatitis C in 1980 and she has
not received any treatment in the past 3 years. (AR 93.) Dr.
Meenakshi Dhingra is supposed to send her to the liver
doctor. (AR 93-94.) She has liver disease and her enzymes are
very high so she is going to have a liver biopsy. (AR 94.)
She saw Dr. Min Win regarding a liver biopsy, but he could
not do the biopsy due to her high blood pressure. (AR 94.)
Now that her blood pressure is better with medication, they
are going to recommend she go back for a liver biopsy. (AR
94-95.) The blood pressure medication causes her to be
sleepy. (AR 95.)
gets chest pain at least twice a week both when she is moving
around and sitting down. (AR 95.) When she gets chest pain,
she sits down and takes Nitroglycerine which makes the chest
pain go away. (AR 95-96.) The Nitroglycerine gives her a
headache which her doctor says is normal, but the headache
goes away. (AR 96.) She sees a heart doctor, Dr. Harcharn
Chann, twice a year for an EKG just to make sure she is okay.
found out she has diabetes 3 to 4 years ago. (AR 96.) She
takes insulin once a day at night. (AR 86, 96-97.) She is on
a diabetic diet and she tests her blood sugar. (AR 97.) The
night before the hearing her blood sugar was 325, but it
averages 198 to 200. (AR 97.) Her doctor tells her not to eat
so much fruit. (AR 97.) Her diabetes causes blurry vision for
a few hours and jitteriness when her sugar gets too high. (AR
stand at one time for 5 to 8 minutes without a walker before
she has to sit down (AR 88, 90.) She has a walker that was
not prescribed, but Dr. Dhingra told her a couple years ago
that she should get one. (AR 88-89.) She uses the walker
every time she goes outside, but she does not use it in the
house. (AR 89.) She uses the walker to keep pressure off her
feet and help her walk. (AR 89.) She can walk less than half
a block with her walker before having to stop. (AR 89.)
sit for 15 to 20 minutes at a time before she has to lie down
due to fatigue and feeling like she is going to pass out. (AR
90.) She is fatigued because of her hepatitis C and high
blood pressure. (AR 90.) Also, her feet are always in pain.
(AR 90.) She can lift 3 lbs., but not for very long. (AR 90.)
fix a bowl of cereal, but she does not cook. (AR 98.) She
does not do any cleaning because of the pain. (AR 98-99.) Her
daughter does the cleaning and sometimes cooks. (AR 98.) She
does not do anything socially because she cannot stand on her
feet and she wants to lie down. (AR 99.) She can bathe
herself and she sits down to put her pants on. (AR 99.) She
goes grocery shopping once a week and uses a cart. (AR 99.)
She goes to the store when she needs things, but in general,
she just goes once a week. (AR 99.) She spends time with her
grandchildren. (AR 100.) She is not able to concentrate well.
(AR 100.) She can concentrate for two hours before she gets
fatigued and needs to lay down. (AR 100.)
Expert (“VE”) Jose Chaparro also testified at the
hearing. (AR 100-101.) The only substantive question that the
ALJ asked the VE was whether Plaintiff performed her
caregiver work at a level of substantial gainful activity.
(AR 101.) The VE did not get the earning record, so he did
not have an opinion on that. (AR 101.)
• Plaintiff has not engaged in substantial gainful
activity since July 3, 2013, the alleged onset date.
• Plaintiff has the following severe impairments: type
II diabetes mellitus 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.
• After careful consideration of the entire record,
Plaintiff has the residual functional capacity
(“RFC”) to perform the full range of light work.
• Plaintiff has no past relevant work.
• Plaintiff was born on August 17, 1965, and was 47
years old, which is defined a younger individual age 18-49,
on the date the application was filed. Plaintiff subsequently
changed age categories to closely approaching advanced age.
• Plaintiff has a limited education and is able to
communicate in English.
• Transferability of job skills is not an issue because
Plaintiff does not have past relevant work.
• Considering Plaintiff's age, education, work
experience, and RFC, there are jobs that exist in significant
numbers in the national ...