Swinscoe v. Astrue

• Decision Date: 18 June 2012
• Docket Number: 1: 10-cv-01614-AWI-BAM
• Court: U.S. District Court — Eastern District of California
• Parties: MAYNETTA LYNN SWINSCOE, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

MAYNETTA LYNN SWINSCOE, Plaintiff,

v.MICHAEL J. ASTRUE,Commissioner of Social Security, Defendant.

1: 10-cv-01614-AWI-BAM

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date: June 18, 2012

FINDINGS AND RECOMMENDATIONS

REGARDING PLAINTIFF'S

SOCIAL SECURITY COMPLAINT

I. INTRODUCTION

Pending before the Court is plaintiff Maynetta Lynn Swinscoe's ("Plaintiff") motion for summary judgment and the cross-motion for summary judgment of defendant Commissioner of Social Security ("Commissioner"). Plaintiff seeks judicial review of an administrative decision denying her claim for Supplemental Security Income disability benefits pursuant to 42 U.S.C. §§ 1381a and 1382c(a)(3)(A). Plaintiff filed her complaint on September 6, 2010. (Doc. 1.) Plaintiff filed her summary judgment motion on June 20, 2011. (Doc. 22.) The Commissioner filed his summary judgment cross-motion and opposition on September 6, 2011. (Doc. 25.) Plaintiff filed her Reply Brief on September 21, 2011 (Doc. 26.) The matter is currently before the Court on the parties' briefs, which were submitted without oral argument to United StatesMagistrate Judge Barbara A. McAuliffe for findings and recommendations to Chief United States District Judge Anthony W. Ishii.

II. BACKGROUND

A. Overview of Administrative Proceedings

On July 17, 2007, Plaintiff filed an application for Supplemental Security Income benefits. (Administrative Record, "AR," at 110-120, Doc. 14.) Plaintiff's application was denied on initial review and again on reconsideration. (AR at 72-76, 80-85.) Thereafter, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR at 86.) On September 24, 2009, the ALJ issued a written decision finding Plaintiff not disabled. (AR at 7-27.) Plaintiff requested the Appeals Council review the ALJ's unfavorable decision and, on July 6, 2010, the Appeals Council declined to set aside the ALJ's decision. (AR at 1-6.) This final action from the Appeals Council made the September 24, 2009 opinion the final decision of the Commissioner. Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g).

B. Plaintiff's Background

Plaintiff was born on September 25, 1957. (AR at 31.) Plaintiff completed her twelfth grade education, and obtained a Business Associates degree in business administration and secretarial training. (AR at 31-32.) As recent as April of 2007, Plaintiff worked in a "front clerical office" position. (AR at 32.) Plaintiff is currently able to read and write. (AR at 32.)

Plaintiff is a single mother who lives with her eight year old daughter. (AR at 32.) Plaintiff lives in a mobile home unit, which is financed through the AFDC State Aid Program. (AR at 32-33.) Plaintiff has a driver's license, and owns a vehicle which she drives. (AR at 33.)

Plaintiff alleges a disability onset date of November 1, 1999, due to the following symptoms: neck and back pain; diabetes; vertigo; neuropathy in her hands and feet; arthritis in her hands; a hernia; and concentration limitations. (AR at 150.)

C. Plaintiff's Testimony At the Administrative Hearing

On May 4, 2009, Plaintiff testified before the ALJ regarding her claim for disability. (AR at 28-51.) Plaintiff was represented by counsel. George A. Meyers, an impartial vocational expert (the "VE"), also appeared at the hearing. Id.

At the Administrative Hearing, Plaintiff provided testimony relating to her activities of daily living. Plaintiff does basic house chores, including sweeping, mopping floors, washing dishes and gardening for five to ten minutes day. (AR at 41, 49.) Plaintiff testified that she drives herself to the grocery store, girl scout meetings, doctor's appointments, and that in a typical week, Plaintiff drives about two to three hours. (AR at 33.) Plaintiff tries to limit the amount of time she spends driving due to pain in her back. (AR at 33.)

Plaintiff testified that she can not perform any of her previous jobs because her spinal injuries and neuropathy and arthritis in her hands prevent her from getting on a computer monitor to type. (AR at 34.) Plaintiff's spine problems cause her "constant" pain in her neck and lower back. (AR at 39.) Plaintiff stated the neuropathy in her hands is a result of her diabetes. (AR at 34.) The neuropathy in Plaintiff's hand and feet causes swelling around two times a day. (AR at 40-41.) Plaintiff also complained of pain and swelling in her knees. (AR at 41.)

Plaintiff testified that she was restricted to lifting five to ten pounds. (AR at 42.) Plaintiff testified the longest she can sit in a chair before having to get up is 20 minutes. (AR at 43.) Plaintiff testified she can only stand for 20 to 30 minutes at a time, and she requires a cane to stand or ambulate. (AR at 44-45.) Plaintiff needs to elevate her legs three times a day for approximately 20 to 30 minutes. (AR at 45.) Plaintiff stated she has trouble reaching overhead or straight out due to pain in her neck. (AR at 46.) Plaintiff testified she can use her hands to grasp for ten minutes at a time. (AR at 48.) Plaintiff testified she can use her hands a bit more for things that do not require fine manipulation, like washing dishes, but not things like typing. (AR at 49.)

1. Vocational Expert Testimony

After listening to Plaintiff's testimony, the VE characterized the nature of Plaintiff's past relevant work as a "secretary, DOT number 201.362.010." (AR at 51.) The VE testified that a person of the same age, education and work experience as Plaintiff, who could lift twenty pounds occasionally, ten pounds frequently, stand and sit for six hours in an eight hour day, and required a "sit/stand option" could perform Plaintiff's past relevant work as a secretary as it is performed in the national economy. (AR at 51-52.)

D. Medical History

The entire medical record was reviewed by the Court. (AR at 132-518.) The medical evidence will be referenced below to the extent it is necessary to the Court's decision.

F. ALJ Findings

In reaching his decision that Plaintiff has not been under a disability within the meaning of the Social Security Act, the ALJ made the following findings:

1. Plaintiff has not engaged in substantial gainful activity since July 17, 2007, the alleged onset date (20 CFR 416.971 et seq.);

2. Plaintiff has the following severe impairments: diabetes, degenerative disc disease, asthma, and obesity. (20 CFR 416.920(c));

3. Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926);

4. Plaintiff's Residual Functional Capacity: Plaintiff has a residual functional capacity to perform a restricted range of sedentary work as defined in 20 CFR 416.967(a). Plaintiff can lift up to 20 pounds occasionally, frequently stand or sit 6 hours in an 8 hour day, occasionally climb, stoop, kneel, crouch and crawl, and should avoid concentrated exposure to hazards such as machinery or working at heights. Plaintiff requires a stand/sit option;5. Plaintiff is capable of performing past relevant work as a secretary. This past work does not require the performance of work-related activities precluded by Plaintiff's residual functional capacity;

6. Plaintiff does not have a disability within the meaning of the Social Security Act since July 17, 2007, the date Plaintiff filed her application for disability benefits.

(AR at 10-27.)

III. DISCUSSION

A. Standard of Review

Congress has provided a limited scope of judicial review of a Commissioner's decision. See 42 U.S.C. § 405(g). A court must uphold the Commissioner's decision, made through an ALJ, when the determination is not based on legal error and is supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). Substantial evidence is "more than a mere scintilla," see Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). Substantial evidence "means such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. If the evidence could reasonably support a finding of either disability or non-disability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987).

In order to qualify for benefits, a claimant must establish that he is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c (a)(3)(A). A claimant must show that he has a physical or mental impairment of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

In an effort to achieve uniformity of decisions, the Commissioner has promulgated regulations which contain, inter alia, a five-step sequential disability evaluation process. 20 C.F.R. §§ 404.1520 (a)-(f), 416.920 (a)-(f). Applying this process in this case, the ALJ found that Plaintiff: (1) had not engaged in substantial gainful activity since July 17, 2007; (2) has an impairment that is considered "severe" based on the requirements in the Regulations (20 CFR §§ 416.920(c)); (3) does not have an impairment or combination of impairments which meets or equals one of the impairments set forth in 20 CFR Part 404, Subpart P, Appendix 1; (4) Plaintiff has a residual functional capacity to perform a restricted range of sedentary work as defined in 20 CFR 416.967(a). Plaintiff can lift up to 20 pounds occasionally, frequently stand or sit six hours in an eight...