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Moreno v. Commissioner of Social Security

United States District Court, E.D. California

April 3, 2018





         Plaintiff 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.[1]

         Plaintiff 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.



         Plaintiff filed an application for supplemental security income on July 8, 2013, alleging disability beginning September 24, 2004.[2] (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 1-4.)

         A. Hearing Testimony

         Plaintiff 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 She has a certification as a dietician which is no longer current and a certification in money management.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.)

         She is 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.)

         The 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.)

         She 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.)

         She 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. (AR 96.)

         She 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 97-98.)

         She can 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.)

         She can 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.)

         She can 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.)

         Vocational 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.)

         B. ALJ Findings

• 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 ...

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