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Hess v. Astrue

September 4, 2008

MICHAEL D. HESS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

(Documents 21)

BACKGROUND

Plaintiff Michael Hess ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") ceasing his eligibility for childhood disability benefits and denying his eligibility for Supplemental Security Income ("SSI") pursuant to Title XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Gary S. Austin, United States Magistrate Judge.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff's mother filed an application on behalf of Plaintiff for childhood SSI on February 15, 1996. AR 39, 99-111, 112-119. The Commissioner initially found Plaintiff not disabled in May 1996, but revised the determination on June 17, 1998, and found Plaintiff disabled due to a learning disorder. AR 39-40. After Plaintiff reached the age of 18 on September 5, 2002, the Social Security Administration reevaluated Plaintiff's disability status and found that he was no longer disabled under the adult definition of disability as of January 2003. AR 41, 51-54. In March 2003, Plaintiff requested reconsideration of his disability cessation. AR 69. A disability officer held a hearing and denied benefits. AR 61-72, 73-81. After being denied upon reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 82-84, 85. On September 16, 2005, ALJ David Flierl held a hearing. AR 417-453. ALJ Flierl denied benefits on November 3, 2005. AR 16-26. On April 20, 2007, the Appeals Council denied Plaintiff's request for review. AR 6-9.

Hearing Testimony

On September 16, 2005, ALJ Flierl held a hearing in Bakersfield, California. AR 417-453. Plaintiff appeared and testified. AR 419-434. Plaintiff's mother, Debra Bates, and vocational expert, Kenneth Ferra, also appeared and testified. AR 435-453.

At the outset of the hearing, the ALJ explained to Plaintiff that when a person who has received disability under the childhood standards reaches age 18, the person is re-evaluated because adult standards for disability are different. AR 420. The ALJ also notified Plaintiff that he could represent himself or that he could contact an attorney or other person to assist him. AR 420-421. The ALJ permitted the Plaintiff to talk with his mother about how to proceed. AR 421. After a break, Plaintiff informed the ALJ that he would proceed by himself. AR 422. The ALJ then explained to Plaintiff that he would be evaluating Plaintiff's disabilities based on the adult standards, whether or not there is any work Plaintiff could perform in the national economy given his limitations, age, education, past work and medical treatment. AR 422. The ALJ also explained that the cessation date in Plaintiff's case was 1/1/03, and he was going to look at the case at that time and not as to Plaintiff's condition at the time of the hearing. AR 422. The ALJ advised that if Plaintiff thought his condition had worsened since January 2003, then Plaintiff could file a new application. AR 422. The ALJ reiterated that he wanted Plaintiff to understand that he was not determining Plaintiff's disability as of the date of the hearing. AR 422. The ALJ also discussed the exhibits being admitted into evidence and the reason for the vocational expert's presence at the hearing. AR 423. When the ALJ began to question Plaintiff, the ALJ informed Plaintiff that if there was anything he did not understand at any time, then Plaintiff should let the ALJ know and the ALJ would rephrase it. AR 424-25.

Plaintiff testified that he was born on September 5, 1984. AR 425. He weighs about 240-250. AR 425. He is supposed to be 6'2", but because of the Sherman's disease he thinks he is 5'10". AR 425. He probably weighed 180 in 2003. AR 425.

Plaintiff had a back brace with him at the hearing. AR 425. He has had two, three or four back braces. AR 425. He did not remember when he got the current one. AR 426.

Plaintiff testified that he is left-handed. AR 426. He has an identification card, but does not have a driver's license. AR 426. He receives Social Security benefits. AR 426. He does not receive any other monies. AR 426. He has never worked or looked for work. AR 426. He graduated from high school in special ed. AR 426. He can read the local newspaper, but usually does not. AR 426. His mother gives him the Social Security papers and tells him where to sign. AR 427.

Plaintiff testified that he was put on disability because of his back condition. AR 427. In high school, he took a regular physical education class. AR 427. He tried to do all the activities the other students did, but he could not do all of it. AR 427. In 2003, Plaintiff would have pains in his back. AR 428. He would have the back brace on and start getting dizzy and having headaches. AR 428. He could have cuts and bruises on his arms and legs from the back brace. AR 428. He was using the back brace 24/7 and his mom told him she would let him have it off for two or three hours a day. AR 428. He has to get the back brace adjusted because he keeps gaining weight. AR 429. He did not see the brace man every two weeks to adjust the brace. AR 429. It was too far out of the way. AR 429. It was a two hour trip to get to Dr. King and the "brace guy." AR 429. They could not keep going back and forth. AR 429. He does not still see Dr. King in L.A. AR 429-430.

Plaintiff testified that he prepares his own meals. AR 430. He has had a checking account and pays some of the bills himself. AR 430. He took college computer classes in the previous year. AR 430. In high school, they let him take an extracurricular activity called ROP. AR 431. He and a couple of friends went up there and did a computer class. AR 431. He would work on the computer about an hour a day. AR 431.

At about the time of the cessation, Plaintiff was living in Palmdale and was in his senior year of high school. AR 431. On a normal day, he would wake up in the morning, get dressed, take a shower, go to his class and do his homework when he got home. AR 432. He would help his mom out around the house--take the trash out or something--and then go to a friend's house and hang out for a couple of hours. AR 432. He would come back home, hang out with his parents for a couple hours and go to sleep. AR 432.

In January 2003, he was not taking any kind of medication. AR 432. He probably took Tylenol for his back. AR 432. It was over-the-counter medication. AR 432. To his knowledge, Dr. King did not prescribe any medication for his back. AR 432-433.

Plaintiff testified that he still had glasses. AR 433. His problem is distance vision, not reading. AR 433.

Plaintiff further testified that he does a little of the laundry. AR 433. They live in a duplex and he tries to do yard work, like rake or put trash in the trash cans. AR 433. Sometimes his back will start hurting so he has to drop it. AR 433-434. He had a dishwashing job when he was nine or ten in a restaurant where his father worked. AR 434. He also had a job on a school program where they had to go to department stores and work for two days. AR 434. They had him hang clothes on a hanger and move little objects from place to place. AR 434.

At the conclusion of questioning by the ALJ, Plaintiff also testified that there was nothing else that he wanted to tell the ALJ about his case that the ALJ had not asked. AR 434.

Plaintiff's mother, Debra Bates, also testified in response to questions from the ALJ. AR 435-436. Prior to answering questions, Ms. Bates notified the ALJ that she had paperwork to present on behalf of her son from Dr. King. AR 435. Ms. Bates explained that her son is on Social Security and saw Dr. King through "Children Services." AR 435. He also has a back brace through Children Services that no longer fits him now. AR 435. The "last one" she was supposed to go to was cancelled out because he was considered an adult. AR 435. Dr. King referred her to VIPA in Bakersfield because they do back braces. AR 435. It is an "electronical back brace" that they shave down because it cuts and bruises Plaintiff. AR 435.

After Ms. Bates was sworn in to testify, the ALJ indicated that Ms. Bates had called the previous day and wanted to know what was going on. AR 436. The ALJ reminded Ms. Bates that there was a hearing before a hearing officer about a year prior. AR 436. The ALJ explained to Ms. Bates that once her son turned 18, the law required that the case be re-evaluated under the adult disability standards. AR 436. The previous hearing officer determined that her son was not entitled to benefits as of 1/1/03. AR 436. She appealed the decision that her son was able to work, which was why she was at the hearing. AR 436-437. The ALJ indicated that a written decision was sent to her. AR 437. Ms. Bates reported that she did not get the decision and the only thing she got in the mail reinstated her son's benefits as an adult. AR 437. The ALJ explained that she must have signed a document requesting that benefits continue pending the appeal. AR 437. Ms. Bates responded that she understood what the ALJ was saying and the reason they were going to continue benefits was because she wanted to appeal. AR 437. Ms. Bates indicated that she did not have her son's medical background paperwork to give to the Social Security officer at that time to prove her son has Sherman's diseases, conosis and scoliosis. AR 437.

The ALJ further explained to Ms. Bates that in a normal disability case you look at the disability up to the present time, but not in this case. AR 437. In this case, he is looking at Plaintiff's condition as of 1/1/03, the cessation date. AR 437-438. The ALJ notified Ms. Bates that if there has been a substantial change in Plaintiff's condition since 1/1/03, then she should file a new application for disability under the adult standards. AR 438. Ms. Bates indicated that the reason the ALJ did not have anything up to date on Plaintiff is because he does not qualify under children's services and has to go under somebody else in Bakersfield. AR 438. The ALJ reiterated his point that he is looking at this case as of 1/1/03. AR 439. The ALJ then took records from Ms. Bates dated 1998, 1999, 2001 and 2002. AR 439.

During questioning, the ALJ informed Ms. Bates that the biggest problem her son had in the case was with complying with what Dr. King told him to do about wearing the brace. AR 441. Ms. Bates testified that Plaintiff got his back brace from CCS "through Children's Services through Opine Motion through Dr. King's office." AR 441. Dr. King is the one who referred him out to children's services because her son was a child at that time. AR 441. They cared for him until he was 18 years old. AR 441. Dr. King did not know that the back brace was cutting and bruising Plaintiff, which is why Plaintiff was sent to Opine Motion and CCS to shave it down and correct him. AR 441. Plaintiff has to wear gauze underneath the brace. AR 441. Ms. Bates did not think he got a new brace, but that they attached another belt or something because the pole was choking him. AR 442.

Ms. Bates testified that Plaintiff's back brace was adjusted several times because he's been gaining weight. AR 442. There was no schedule that the doctor had. AR 442. It was through CCS and Opine Motion, not Dr. King. AR 442. Dr. King tested her son's back and told her that it was getting "worse and worse." AR 442. Dr. King said Plaintiff should see the "brace man" every two weeks to adjust the brace. AR 443. Ms. Bates and her son would go to CCS Children's Service and Opine Motion. AR 443. They noticed the brace was scratching and cutting Plaintiff because it would gouge his skin. AR 443. She did not think Plaintiff ever had a new back brace. AR 443. Plaintiff did tell them that it was hurting him and it was too small, so they adjusted it. AR 442.

Ms. Bates testified that her son has increased in weight and Dr. King told him to go on a diet. AR 443A. In the meantime, they adjusted it again. AR 443A. It does not fit Plaintiff's back anymore. AR 443A. He has gained wight. AR 443A. When he was supposed to go back again in September 2004, CCS would no longer see her son because he "turned an adult." AR 443A.

Ms. Bates testified that she and her son left L.A. in June 2004. AR 444. She was pretty sure that Plaintiff had seen Dr. King between November 2002 and November 2003. AR 444. Opine Motion told them her son could no longer see Dr. King at the age of 18. AR 445. Plaintiff turned 18 in September of 2002. AR 445. Ms. Bates testified that an MRI was not done because MediCal will not cover it. AR 445.

Ms. Bates also testified that Plaintiff graduated from high school in 2003. AR 447. He has a learning disability. AR 447. They tested him and they thought there was something wrong with his ears. AR 447. He has 80 percent scarring in his right ear. AR 447. He has had tubes done four times. AR 447. He is 21, but acts like he is 15 half of the time. AR 447. He has glasses, but does not wear them all the time because they give him headaches and need to be adjusted. AR 448.

Ms. Bates also testified that Plaintiff is angry because he wants to work, but knows he cannot because it hurts his back. AR 448. He always has back pains. AR 448. It bothers his lower back to lift out the trash. AR 448. He has been taking over-the-counter Tylenol and ibuprofen for his back. AR 448. Dr. King just told him to take Tylenol. AR 449. Dr. King said there was nothing he could prescribe for Plaintiff and suggested physical therapy, exercises, Tylenol and wearing the back brace. AR 449.

At the conclusion of questioning, the ALJ asked Ms. Bates if there was anything else she wanted to tell him about the case that he had not asked but that she thought he should know. AR 449. Ms. Bates responded "just that it's still going on. That he is seeing doctors for his back. And to see if we can get the back brace fixed again." AR 449.

The ALJ brought Plaintiff into the room to finish the hearing. AR 450. He allowed Ms. Bates to remain in the room during questioning of the vocational expert. AR 450. The ALJ then questioned vocational expert, Kenneth Ferra. AR 450. For the first hypothetical, the ALJ asked the VE to assume a person of 18 years of age at the cessation date, a high school education in "special ed" and no prior work history. AR 450. The ALJ also asked the VE to assume the person would be limited to the light level of exertion, simple, repetitive work and occasional stooping, bending and crouching. AR 450. The VE testified there would be some assembly positions in the national economy compatible with the hypothetical, with approximately 4,500 of those jobs in California. AR 450. At this point in the questioning, Ms. Bates indicated that she did not understand what they were talking about. AR 450. The ALJ explained that he was asking for jobs at the light level of exertion, of a simple repetitive nature, with only occasional stooping, bending or crouching. AR 450.

The ALJ resumed questioning of the VE. AR 450. He inquired whether the jobs included both sedentary and light. AR 450. The VE testified that it would be light. AR 451. The ALJ then asked the VE to further assume that because of the physical condition, the person would be likely to miss work on an unscheduled basis two ...


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