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Florence Smith v. Michael J. Astrue

June 21, 2011


The opinion of the court was delivered by: Magistrate Judge Morton Denlow


Claimant Florence Smith ("Claimant") brings this action under 42 U.S.C. § 405(g), seeking reversal or remand of the decision by Defendant Michael J. Astrue, Commissioner of Social Security ("Defendant" or "Commissioner") denying Claimant's application for Disability Insurance Benefits ("DIB"). In response, Defendant filed a motion to affirm the Commissioner's decision. Claimant raises the following issues in support of her motion for summary judgment: (1) whether the ALJ obtained a valid waiver of Claimant's right to representation; (2) whether the ALJ developed a full and fair record; (3) whether the ALJ properly assessed several pieces of medical evidence in her residual functional capacity discussion; and (4) whether the ALJ properly assessed Claimant's credibility. For the reasons explained below, the Court denies Claimant's motion and affirms the Commissioner's decision.


A. Procedural History

Claimant initially filed for DIB on July 29, 2008, alleging a disability onset date of December 31, 2007. R. 92--95. The Social Security Administration ("SSA") initially denied the claim on October 21, 2008. R. 58--62. Claimant then filed a request for reconsideration, which the SSA denied on December 22, 2008. R. 63--64. Claimant requested a hearing before an ALJ on February 19, 2009. R. 69--70.

On July 23, 2009, Administrative Law Judge Janice Bruning (the "ALJ") presided over a hearing in which Claimant, her husband, and vocational expert Michelle M. Peters testified. Claimant appeared and testified without the assistance of an attorney, and no medical expert testified. R. 35--55. The ALJ issued a decision on September 16, 2009, finding Claimant not disabled under the Social Security Act. R. 21--34. Specifically, the ALJ found Claimant had the residual functional capacity ("RFC")*fn1 to perform light work with a sit/stand option and could as a result perform a significant number of jobs in the national economy. R. 27, 29.

Claimant then requested review of this decision. The Appeals Council denied review on March 10, 2010, making the ALJ's decision the final decision of the Commissioner. R. 1--3. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g).

B. Hearing Testimony-July 23, 2009

1. Florence Smith-Claimant

Claimant appeared at her hearing without representation. The ALJ spoke to Claimant about her right to representation, instructing Claimant that counsel could help her obtain information about her claim and explain proceedings to her. R. 38--40. The ALJ told Claimant an attorney would not be able to charge a fee unless authorized by the SSA and informed her that qualifying individuals may receive free representation from legal services organizations. R. 38. The ALJ said that she would help Claimant obtain medical records if Claimant chose to proceed without counsel. Id. Claimant said she understood her right to representation and wished to continue with the hearing. R. 38--39, 40--41. Claimant's husband expressed concerns about procuring medical records dating back to a 1979 surgery, but the ALJ assured him that she was concerned only with Claimant's more recent health.

R. 38--40. Claimant first described her background and work history. At the time of the hearing, Claimant was fifty-two years old. R. 92. Claimant stood 5'4" tall, weighed around 178 pounds, and lived at home with her husband. R. 41. She attended some college classes and has a real estate broker's license. Id. Claimant previously worked as an environmental technician. R. 107. She has not worked since December 31, 2007, her alleged disability onset date. R. 42. Claimant testified that she had been having a lot of problems with her hands and legs, and that she had been on a lot of medicine at the time. R. 42--43. Because she was sore and "down" all the time, she decided to stop working. R. 43. Additionally, she frequently felt sick as a result of her medications. Id. Because she did not know which medications were helping her, she decided to stop taking all of them. Id.

Claimant also testified to her physical limitations. She can walk for about a block before her leg becomes painful, and she only climbs the stairs every few days. R. 45. When asked how much she was able to lift, Claimant responded that she did not know, but that she could lift a gallon of milk. Id. Before she stopped working, Claimant had to lift fifty-pound coolers. Id. She did not think she would have a problem bending, reaching or balancing, but she had not tried to crouch or crawl. R. 46. Her leg problems are worse when she is cold.

R. 45--46.Her right leg is always swollen, and she elevates her legs at chair level as much as possible. R. 44. When she stands, she puts most of her weight on her left leg. Id. Claimant also has problems with her hands. R. 46. Her hands often become tender and sore, and are painful and numb when she is cold. Id. When her hands are painful, it hurts to touch things, and sometimes she is unable to pick things up. Id.

Finally, Claimant testified about the effects of her ailments on her daily activities. She does not have any difficulty with personal care, such as getting dressed or taking a shower.

R. 47. She sleeps poorly at night, and can lie for hours without sleeping. Id. Claimant occasionally cooks breakfast, but her husband cooks most of the time. R. 47--48. She can do laundry. R. 48. Claimant does not often perform housework like vacuuming or dusting, and does no outdoor work like gardening or shoveling snow. R. 48--49. She drives short distances every two to three days to visit Walmart or Walgreens, but she never carries heavy bags. R. 47. Claimant talks on the phone to friends and family, but not for prolonged periods of time, and she does not belong to any social organizations. R. 49. She has a computer and can sit for about an hour, but it bothers her fingers to use the keyboard.

R. 49--50. Some days her fingers are in so much pain she does not use the computer at all.

R. 50. Claimant has decreased her participation or ceased participating in some of her former hobbies, such as sewing, fishing, and bowling. Id.

2. Mr. Smith-Claimant's husband

Claimant's husband testified that Claimant's chronic problems began in 1979, following an operation. R. 50--51. After that operation, he observed a decrease in Claimant's ability to do all normal activities at home. R. 51.

3. Michelle Peters-Vocational Expert

The Vocational Expert ("VE") first described Claimant's past relevant work. R. 51--52. Claimant worked as an environmental technician, or a water tester, which is defined as a semiskilled occupation light in physical demand, although Claimant performed the position with a medium physical demand. Id. None of the skills Claimant used in this occupation are transferable to sedentary work. Id.

The ALJ then posed several hypothetical questions to the VE. First, she asked whether a person with Claimant's age, education, and work experience could perform any job, including Claimant's past relevant work, if the person could lift twenty pounds occasionally and ten pounds frequently; could stand and/or walk a total of six hours during an eight-hour work day; could sit at least six hours during the eight-hour work day; could never climb ladders, ropes, or scaffolding but occasionally climb ramps or stairs; and could occasionally balance, stoop, crouch, kneel, or crawl, while avoiding concentrated exposure to cold. R. 52.

The VE responded that such a person could not perform Claimant's past relevant work, but could perform other types of work, such as cashiering, information clerking, and assembly positions, all of which are readily available in the job market. Id. The ALJ then asked whether these positions would be available if the individual needed the option to sit or stand at will. Id. The VE testified that such an individual would not be able to perform cashiering jobs, but that the person would still be eligible for about 1,800 assembly positions; 1,500 hand packaging positions; and 1,200 information clerking positions. R. 52--53. The Dictionary of Occupational Titles ("DOT") does not address sit/stand options, but the VE cited as a basis for her numbers "my experience performing direct job placement services, labor market surveys, and video tape job analysis for the last 14-1/2 years." R. 53--54.

The ALJ also asked whether an individual could perform Claimant's past relevant work if the individual was Claimant's age and had her education and work experience; could lift ten pounds occasionally and less than ten pounds frequently; could stand and/or walk a total of two hours of an eight-hour work day; and could sit at least six hours in an eight-hour work day. R. 53. The VE responded that such an individual could not perform Claimant's past relevant work. Id. The ALJ modified the hypothetical, asking if there would be any work if the individual needed ...

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