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Martinez v. Commissioner of Social Security

United States District Court, E.D. California

July 10, 2019





         Deborah Martinez (“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 chest pain, asthma, diabetes, carpal tunnel syndrome, degenerative disc disease of the lumbar spine, left shoulder and hip arthritis, migraine headaches, and left wrist pain. 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 on May 29, 2014, and a Title XVI application for supplemental security income on May 30, 2014. (AR 95, 96.) Plaintiff's applications were initially denied on October 9, 2014, and denied upon reconsideration on March 6, 2015. (AR 133-137, 141-146.) Plaintiff requested and received a hearing before Administrative Law Judge Vincent A. Misenti (“the ALJ”). Plaintiff appeared for a hearing on January 20, 2017. (AR 33-68.) On April 10, 2017, the ALJ found that Plaintiff was not disabled. (AR 12-27.) The Appeals Council denied Plaintiff's request for review on April 16, 2018. (AR 1-3.)

         A. Hearing Testimony

         Plaintiff appeared and testified at a video hearing on January 20, 2017 with the assistance of counsel. (AR 36-57.) At the hearing, Plaintiff moved to amend her alleged onset date to April 22, 2014. (AR 36.) Plaintiff received her GED. (AR 39.) She is divorced. (AR 37.) Plaintiff lives with her daughter and son-in-law; her son and his three children, ages 13, 11 and age unknown; and three grandchildren, ages 14, 9, and 6. (AR 37-38.) Plaintiff has guardianship of her grandsons who are 9 and 6 and her 14 year old granddaughter is in foster-care. (AR 37-38.)

         Plaintiff is 5' 3” tall and weighs 170 pounds. (AR 36.) Her weight generally fluctuates between 160 to 170 pounds. (AR 37.) Plaintiff is right handed. (AR 37.) She has her driver's license and takes her granddaughter to school in Easton which is a fifteen minute drive there and back. (AR 39.) Plaintiff drives about forty-five minutes five days a week. (AR 39.)

         Plaintiff worked after her alleged onset date taking care of her grandchildren over the summer while they were out of school. (AR 39.) She would pick them up and keep them until her daughter got off work. (AR 39.) The state paid her $300 to $400 per month. (AR 40.)

         Plaintiff is unable to work due to her left shoulder, back, left hip, and right knee. (AR 40.) Plaintiff's left shoulder has gotten a little better but she is not able to raise it up. (AR 41.) Moving her arm up or down sends shooting pains through her arm. (AR 41.) Her arm will go numb like it is asleep and she cannot move it. (AR 41.) She has no strength in her left arm and hand. (AR 41.) She cannot put her arm behind her back without it hurting. (AR 41.) She has to have someone help her to lift and carry things, like a laundry basket. (AR 41.) Plaintiff takes Norco and Tramadol for her pain. (AR 41.) She was recently prescribed Meloxicam. (AR 41.) She takes her medication daily. (AR 42.) When she takes her medication her pain is about 4/10. (AR 42.)

         Plaintiff did have physical therapy for her shoulder which helped a little bit. (AR 42.) She got some mobility back. (AR 42.) The physical therapist gave her some exercises to do to keep her arm from going back to where it was. (AR 42.) Plaintiff did not have any injections in her shoulder. (AR 42.)

         Plaintiff has arthritis down to where her bones connect to her hip. (AR 43.) The pain shoots from her back down into her legs. (AR 43.) Plaintiff can only sit for a while and then she has to move and shift positions. (AR 43.) Plaintiff had injections in June or July of the prior year. (AR 43.) They cauterized the nerves in her back. (AR 43.) The injections did not really help. (AR 43.) They reduced her pain to a six but she still has pain in her back. (AR 43.) She received more injections and an epidural. (AR 43.) At the time that she received the epidural, her pain was about an 8 or 9 and it was brought down to a 7. (AR 44.) She had the epidural in October or November of 2016. (AR 44.) On a bad day, Plaintiff's pain medication will bring her pain down to a 5. (AR 44.) Plaintiff had physical therapy for her back. (AR 44.) The physical therapy did not help but increased her pain. (AR 44-45.) They told her it would initially increase her pain but would help in the long run. (AR 45.) She only did one session. (AR 45.) Plaintiff thinks her left hip condition is related to her back. (AR 45.) Her hip will give out on her and she has tingling down her legs. (AR 45.) Plaintiff falls a lot from walking. (AR 45.) If she is walking a long time, her hip will give out and she will fall. (AR 45.) She gets fidgety if she sits too much to keep the pain minimal. (AR 46.) Plaintiff uses a walker to make sure she does not fall and hurt herself. (AR 45.) She used the walker to come to the hearing. (AR 45.) It was prescribed in November and she got it in December 2016. (AR 45-46.) Plaintiff has also been prescribed a brace for her left and right knees and a back brace. (AR 46.) She will also get muscle spasms and cramps in her legs, more in the calves. (AR 54.) She has neuropathy in her feet and legs. (AR 55.)

         Plaintiff's right knee will pop when she is walking. (AR 46.) It will swell and she will wrap it in an ace bandage to get the swelling down. (AR 46.) Her right knee has been acting up for two to three years. (AR 47.) She told her doctors about it and they told her to ice it for the swelling. (AR 47.) Her right knee is really weak when she walks and she will limp on it. (AR 47.)

         Plaintiff runs out of her medication for her diabetes and then she will have to wait for the doctor to fill the prescription again. (AR 55.) Her blood sugar levels run between 200 to 250. (AR 55.) Plaintiff stays on the diet the doctor's prescribed but she will eat a piece of cake or ice cream once in a while for a birthday. (AR 55.)

         Plaintiff was hospitalized for a few days the prior year with a heart issue. (AR 56.) She was having palpations. (AR 56.) They gave her Metoprolol for her heart and she has taken Nitroglycerin one time since she was released from the hospital. (AR 56.)

         Plaintiff will get migraine headaches about once a week. (AR 57.) They last anywhere between an hour and twenty-four hours. (AR 57.) She has had one headache in the last year that lasted twenty-four hours. (AR 57.) The majority of her headaches last about two hours. (AR 57.) When she has a headache, she will go to her room, turn everything off, and lay there until it eases. (AR 57.) She also takes her medicine for the migraines. (AR 58.)

         Quite a few years ago, Plaintiff had carpal tunnel with her hands. (AR 52.) She has trigger-finger and her hands lock up and she cannot open them. (AR 52.) Her hands are both about the same. (AR 52.) All four of her fingers will lock up. (AR 52.) In the morning her fingers are moveable, but by noon they are hurting badly. (AR 52.) The doctor told her they will do injections for the trigger finger. (AR 52.) She got injections from her primary care doctor but they did not help. (AR 53.) Her knuckles and wrist hurt and have numbness. (AR 53.) Her hand pain is about a 5. (AR 53.) If she tries to hold or carry things her hands will go numb. (AR 53.) When she puts her hand in a fist her fingers go numb. (AR 54.) Plaintiff is able to use her hands for thirty minutes before she has to take a break. (AR 54.) She will take a break for twenty to thirty minutes before using them again. (AR 54.)

         Plaintiff can sit for 15, 30, to 40 minutes. (AR 47.) She can walk at least twenty minutes. (AR 47.) She cannot walk a whole block before her leg gives out. (AR 47.) She can walk two blocks with the walker. (AR 47.) Plaintiff can lift a gallon of milk and a maximum of twenty pounds. (AR 47-48.) Plaintiff cannot reach up or out too far with her left arm. (AR 48.)

         Plaintiff cooks for her grandchildren with help. (AR 48.) They take the laundry to the washer and dryer and she folds the clothes but has to pause in between. (AR 48.) Her daughter helps her cook and sometimes her son will help. (AR 48.) Her daughter and son-in-law do most of the housecleaning. (AR 48.)

         Plaintiff helps her grandchildren with their homework and picks out their clothing. (AR 48.) She reads them books and then she has to lay down for a while. (AR 48.) After about an hour or so she will get up and do something else with them, whether it is homework or something they need for school. (AR 49.)

         Plaintiff is teaching her daughter and son how to cook so she is cooking on a daily basis. (AR 49.) While the food is cooking, Plaintiff will go lay down. (AR 49.) They cook on their own if it is something simple like hamburgers. (AR 49.) Plaintiff will cook hamburger helper or pork chops. (AR 49.) The grandchildren do the dishes. (AR 50.) Plaintiff's daughter has been working but just turned in her thirty day notice. (AR 50.) She was working five hours a day in management. (AR 50.)

         Plaintiff does the grocery shopping. (AR 50.) His son will help her push the cart. (AR 50.) She uses her walker and will sit down to figure out what they need. (AR 50.) Plaintiff did the shopping before she got her walker but it was difficult. (AR 50.) They did not get a lot of groceries. (AR 50.) They would only buy a few things and then Plaintiff would go home and lay down for an hour or so because her back pain would be really bad. (AR 51.)

         On the weekends, Plaintiff will watch television and the grandkids play video games. (AR 51.) On Sundays, Plaintiff has to supervise the visits with their mother so she will sit in with them. (AR 51.) They plan activities for the weekends, like taking them to John's Incredible Pizza. (AR 51.) Her daughter and son-in-law will go with them since she cannot follow the kids around. (AR 51.) They will take them to play video games or to the zoo. (AR 51.) She has a pass to the zoo but she does not take them. (AR 51.) Most of the time she will go but does not follow them around. (AR 51.) She will sit down while they go and watch the animals. (AR 51.) She walks through the bird cage and will wait at the end so they can go through. (AR 51.)

         A vocational expert (“VE”), Susan D. Green, also testified at the hearing. (AR 58-67.) The VE categorized Plaintiff's past work as a billing clerk, Dictionary of Occupational Titles (“DOT”) 214.362-042, SVP 4, sedentary.

         The VE gave a hypothetical of an individual with Plaintiff's past job who possessed a high school equivalent education; and can perform a light range of work except is limited to frequent reaching and handling with the left, non-dominant, extremity; occasional climbing of stairs, and ramps; no climbing of ropes, ladders and scaffolds; frequent balancing, stooping, kneeling, and crouching; occasional crawling; no working in loud environments; and must avoid concentrated exposure to fumes, dust, odors, gases, poorly ventilated areas, and chemicals. (AR 59.) The VE opined that this individual would be able to perform Plaintiff's past work both as actually performed and as generally performed. (AR 59-60.)

         The ALJ presented a second hypothetical of the same individual who was limited to occasional handling with the left hand and all reaching on the left was occasional. (AR 60.) The VE opined that this individual could perform Plaintiff's past work. (AR 60.)

         The ALJ proffered a third hypothetical of the same individual but the individual could sit for no more than fifteen minutes at a time with a thirty minute break before resuming sitting and stand for no more than twenty minutes with a sixty minute break. (AR 61.) The VE opined there would be no work for this individual. (AR 61.)

         The VE opined that this testimony was consistent with the DOT. (AR 61.)

         Plaintiff's counsel asked what the handling requirement would be for Plaintiff's past relevant work. (AR 61.) The VE opined that it was frequent. (AR 61.) Counsel asked if the limitation was occasional how the individual would be able to perform the past relevant work. (AR 61.) The VE opined that because Plaintiff's right hand is dominant she would be using her right hand frequently. (AR 61.) Counsel asked if the DOT required the use of both hands or only the more dominant hand. (AR 62.) The VE stated that the DOT does not specify, it just says frequently. (AR 62.) The VE opined that Plaintiff could use her dominant hand frequently and her nondominant hand occasionally. (AR 62.) Her opinion was based on her experience rehabbing clients and placing them in positions since 1982. (AR 62.)

         Counsel asked what kind of job would allow the frequent use of the dominant hand and the occasional use of the nondominant hand. (AR 62.) The VE opined that Plaintiff's past job of billing clerk would allow such use. (AR 62.) Other jobs that would allow such use would be information clerk or ticket taker. (AR 62.) The ALJ noted that they were not going into other jobs. (AR 62.) The ALJ asked the VE if the job could be performed in an office environment as long as the right hand was dominant and that non-dominant hand only handled occasionally. (AR 63.) The VE affirmed that was correct. (AR 63.) Counsel asked which industries would allow such work, legal, medical, farm equipment. (AR 63.) The VE opined that all of the above industries would allow for such limitations. (AR 63.)

         Plaintiff's counsel presented a hypothetical of the same individual as the first hypothetical that was limited to occasional reaching in all directions with the left upper extremity and occasional feeling and fingering. (AR 64.) The VE opined that the individual would be able to perform Plaintiff's past work. (AR 64.)

         Counsel asked if there was any handling, fingering, and feeling limitation that would preclude Plaintiff's past work. (AR 64.) Specifically, would a limitation to rare preclude past work? (AR 64.) The ALJ noted that rare is not listed in the DOT. (AR 64.) Counsel asked if a limitation to fingering, handling and feeling less than ten percent of the time with the non-dominant extremity would preclude past relevant work. (AR 65.) The VE opined that this individual would not be able to perform Plaintiff's past relevant work. (AR 65.)

         Counsel offered the last hypothetical where the individual was limited to sitting no more than four hours in an eight-hour workday; standing and walking no more than four hours; had to use a walker for both standing and walking; had to shift positions every 45 minutes; but could continue to stay on task. (AR 65.) The VE opined that this individual could not perform Plaintiff's past relevant work. (AR 66.)

         Plaintiff's counsel asked the VE what other kinds of work would be available at a light exertion level. (AR 66.) The VE confirmed as prior stated, ticket taker, information clerk, and parking lot attendant in schools. (AR 66-67.)

         B. ...

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