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Aguayo v. Commissioner of Social Security

United States District Court, E.D. California

July 2, 2019

VICKY A. AGUAYO, Plaintiff,



         Vicky A. Aguayo (“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 depression, hypertension, subluxation of the temporomandibular joint, obesity, degenerative joint disease of the cervical spine, degenerative joint disease of the right shoulder, obesity, hypertension, and Sjogren's syndrome. For the reasons set forth below, Plaintiff's Social Security appeal shall be granted.



         Plaintiff protectively filed an application for a period of disability and disability insurance benefits and a Title XVI application for supplemental security income on June 2, 2014. (AR 83, 95.) Plaintiff's applications were initially denied on December 6, 2014, and denied upon reconsideration on May 8, 2015. (AR 139-143, 147-151.) Plaintiff requested and received a hearing before Administrative Law Judge Ruxana Meyer (“the ALJ”). Plaintiff appeared for a hearing on August 9, 2017. (AR 41-82.) On September 5, 2017, the ALJ found that Plaintiff was not disabled. (AR 16-29.) The Appeals Council denied Plaintiff's request for review on June 14, 2018. (AR 1-4.)

         A. Hearing Testimony

         Plaintiff testified at the August 9, 2017 hearing with the assistance of counsel. (AR 45-71.) Plaintiff is 5' 11/2” tall and weighs 220 pounds. (AR 47.) She has gained approximately forty pounds in the last three years due to lack of exercise because of her pain. (AR 47.)

         Plaintiff lives with her adult daughter and her grandsons who are 13 and 10. (AR 45.) Plaintiff's daughter is a nurse and works twelve hour days four shifts a week. (AR 45.) The grandchildren go to their father's half-time and they stay at home the days that Plaintiff's daughter is home. (AR 46.) Plaintiff supports herself with general relief and food stamps. (AR 52.)

         Plaintiff had her daughter when she was fifteen years old and went to a school age mother program at continuation school. (AR 52.) She completed ninth grade. (AR 52.) When questioned as to why she had put on her application that she completed the eleventh grade, Plaintiff responded she went to school into the eleventh grade but did not complete it. (AR 52.) Plaintiff tried to get her GED but she could not sit because of pain. (AR 52.) The teacher tried getting her a softer chair and Plaintiff could not sit and stand because her back was hurting too bad so she stopped going. (AR 52.)

         Plaintiff's daughter brought her to the hearing. (AR 50.) Plaintiff has a driver's license and drove two to three times in the previous month. (AR 51.) Plaintiff drives to FoodMax, that is primarily where she uses her back brace. (AR 51.)

         Plaintiff worked as a computer operator at the hospital until the department she worked in was dissolved. (AR 53.) All the operators were laid off. (AR 53.) Plaintiff answered phones, did network backup, transferred tape from facility, and facility computer hardware. (AR 53.) Plaintiff walked, stood, and sat eight hours. (AR 53-54.) Plaintiff did a lot of printing of forms and reports and was mostly walking and standing for six hours. (AR 54.) She would be sitting intermittently. (AR 54.) She did light typing and handling of small objects around eight hours. (AR 53-54.) Plaintiff lifted twenty-five pounds frequently and the heaviest weight that she lifted was fifty pounds. (AR 54.)

         Plaintiff did not look for work after she got laid off because her arthritis, Lupus, and Sjogren's had started to get bad and has exacerbated since she has been off. (AR 55.) Plaintiff has pain through her hands, knees, feet, tailbone, hips, and neck and has a dislocated jaw. (AR 55.) When she opens her mouth wide it pops and the back of her tongue will swell up and she gets an earache. (AR 55.)

         Plaintiff has a cell phone and texts, makes phone calls, and checks her email. (AR 56.) She does not care to play games so she has no games on her phone. (AR 56.)

         Plaintiff is left handed and has DeQuervain's disorder in both hands. (AR 46.) Plaintiff had surgery on both hands around 2010. (AR 46-47.) Now she no longer wears braces and just has pain from arthritis in both hands. (AR 46.) Plaintiff has pain in her back tailbone area and her knees and feet. (AR 47.) Plaintiff gets burning on the top of her feet and the arch. (AR 47, 64.) It is hard to wear shoes or flipflops. (AR 47.) So she does not do much walking. (AR 47.) Plaintiff can walk a half block and it would take her about fifteen minutes. (AR 48.) She walks that every other day if she does not have pain in her feet, knees, or hips. (AR 48.) Plaintiff can sit for twenty minutes at a time and then must stand for about twenty minutes before she sits again. (AR 48.) She can stand for twenty to twenty-five minutes. (AR 48.) The pain in her tailbone and hips feels like she is in labor. (AR 68.)

         Plaintiff's hands are very tender and she has trouble holding onto things, like when writing. (AR 64.) She keeps ice on her hands a lot. (AR 64.) Her left hand, the middle finger, is starting to bother her. (AR 64.) Her index finger on her right hand is the worst. (AR 65.) Her right hand is worse than her left hand. (AR 65.) She has pain in her hands daily. (AR 65.) It is hard for her to use cooking utensils and she does not pick up anything heavy. (AR 65.) She will use a small pan rather than a large pan because it is too heavy. (AR 65.) Plaintiff can lift five to eight pounds with her right hand. (AR 65.) She can hold something for maybe five minutes. (AR 65-66.) Plaintiff's left elbow is bad. (AR 66.) At times she cannot pick up her purse because of the pain. (AR 66.) Plaintiff can only pick up five pounds with her left hand and hold it for only two to three minutes. (AR 66-67.) Plaintiff uses both hands to lift a gallon of milk. (AR 66.) After she rests a couple minutes she gets her strength back. (AR 67.) Her pain is worse when the weather is cold and wet. (AR 67.) She has noticed it has even started to hurt in the heat. (AR 67.)

         If Plaintiff dropped something she would be able to bend over to pick it up once. (AR 68.) Plaintiff cannot kneel or squat because of her knees. (AR 68.) She does not walk on uneven surfaces because she is afraid. (AR 68.) Plaintiff can walk up a flight of stairs if she has to. (AR 68.)

         Plaintiff has a cane, a back brace, and a walker. (AR 48.) She has a prescription from Dr. Ky for the back brace. (AR 49.) Plaintiff was not wearing the back brace at the hearing but does wear it when she is going to mop or going for a walk longer than fifteen minutes or is going to be bending over. (AR 49.) Plaintiff does not have a prescription for the cane or the walker. (AR 50.) She uses the walker when she is going to walk for longer than fifteen minutes so that she has a place to sit. (AR 50.) She used her cane about three times in the previous month. (AR 50.) She used the walker once in the previous month because she usually does not go out for long periods of time. (AR 50.) She used it when she went to the doctor because she had to go up the elevator and then stand in line. (AR 50.)

         Plaintiff has a regimen of medication she takes every day. (AR 56.) She does not drive when she takes narcotics because she does not feel safe. (AR 56.) She takes the narcotics as needed and believes that she takes them every day. (AR 56.) Plaintiff took Cymbalta and Xanax when she got up. (AR 57.) They make her loopy. (AR 57.) Plaintiff cannot have childproof bottles and makes sure her medications have screw on lids. (AR 57.)

         Plaintiff uses ice packs and a heating pad for her pain. (AR 58.) She uses the ice packs about every other day and it will take the pain away for a little while. (AR 58.) She uses the heating pad about every other day for her ear. (AR 58.) It will take the edge off for 20 minutes to a half an hour. (AR 58.) Plaintiff will get up and stand and walk around the house, move her legs to alleviate her pain. (AR 59.) She will put on her back brace if her tailbone or hips are hurting. (AR 59.)

         Plaintiff cooks herself breakfast, but her daughter does all the heavy cooking. (AR 59.) She will cook for about fifteen minutes and then take a break. (AR 59.) Plaintiff is usually on the recliner or lying on her bed. (AR 59.) Plaintiff tries to do as much cleaning as she can. (AR 59.) She will do a little mopping and sweeping. (AR 59.) She will not do it very long and then will be in pain the next day. (AR 60.) She mops or sweeps once a week. (AR 60.) Plaintiff will do it for fifteen minutes and then take a break and sit down for fifteen to twenty minutes. (AR 60.) Plaintiff spends her day watching television on the couch or lying in bed. (AR 60.)

         Some days she is depressed and does not want to get out of bed. (AR 60-61.) There are times where she will not get dressed for a couple of days. (AR 61.) She will feel depressed three days a week. (AR 61.) She has been having this depression for four years. (AR 61.) Plaintiff takes medication for her depression that makes her groggy and sleepy. (AR 61.) The medication does take the edge off her depression. (AR 61.) Plaintiff sees a therapist and a psychiatrist for her depression. (AR 61.) It has helped and has lessened the number of days that she feels this way. (AR 61.) In the past, she was in bed five to seven days a week with her depression. (AR 62.) It has been a year since that happened. (AR 62.) She did not want to get up or open her curtains. (AR 62.) She would not associate with her friends and stopped going to her faith group. (AR 62.) She was not getting treatment at that time. (AR 62.)

         Due to her depression, Plaintiff does not want to associate with people and does not like being around too many people. (AR 62.) She will stay in her room when the family gets together. (AR 62.) Plaintiff has difficulty concentrating and can only concentrate for ten to fifteen minutes before having to take a twenty minute break. (AR 63.) Her depression is associated with her weight. (AR 63.) When she is depressed, she wants to eat or snack. (AR 63.) She has nothing to do so she eats. (AR 63.)

         Plaintiff does not keep up with her hygiene. (AR 63.) It is hard for her to brush her hair and her daughters will do her hair for her. (AR 63.) She washes her hair once every other week. (AR 63.) Her daughter will wash her hair for her and braid it or put it up in a ponytail. (AR 63.) Her daughter said they were going to have to cut her hair but she does not want to. (AR 63.) Plaintiff cannot do her hair because she has trouble reaching above her head. (AR 64.)

         Plaintiff received shots in her neck and it has been popping the last couple days. (AR 69.) She is going to get shots in her tailbone the following week. (AR 69.) She has been having the injections for a couple years. (AR 69.) They take the pain away completely for a little while, like two weeks and then it starts coming back. (AR 69.) Plaintiff's knees also swell a couple times a month. (AR 69.) They hurt her on a regular basis. (AR 69.) She will have excessive pain in her knees, feet, hips, or elbows a couple times a month. (AR 69-70.) She will have a flare up when she is stressed or due to the weather. (AR 70.) The flareups will last a day or two. (AR 70.) She has times when she has to have help getting up out of bed or off the couch. (AR 70.) She will have her grandsons help her. (AR 70.) She does not shower, bathe, or get dressed during a flareup. (AR 70.) She also will not drive because it is hard to keep her foot on the gas and her whole leg will shake. (AR 70.) She rests more during the day. (AR 70-71.) The back of her knees feel like sandpaper rubbing against it. (AR 71.) That is why she will not sit long on a hard surface because it hurts her legs. (AR 71.)

         Plaintiff previously had a medical marijuana card but it is expired. (AR 71.) She was using marijuana before she went to pain management, but she is not ...

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