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Barrett v. Astrue

January 30, 2009


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge



Plaintiff Albert Barrett ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for disability insurance benefits and supplemental security income pursuant to Titles II and 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 Dennis L. Beck, United States Magistrate Judge.*fn1


Plaintiff filed his applications on July 27, 2004, alleging disability since July 2, 2004, due to a pelvic fracture and being a "slow learner." AR 336-338, 389-395, 542-544. After being denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 301-305, 308-313, 314. On October 5, 2006, ALJ Michael Haubner held a hearing. AR 546-563. ALJ Haubner denied benefits on November 29, 2006. AR 16-25. The Appeals Council denied review on July 31, 2007. AR 8-10.

Plaintiff filed a previous application on September 24, 2001, alleging disability due to a pelvic fracture. The application was granted on January 29, 2004, for a closed period of disability beginning on August 11, 2001, and ending on June 1, 2003, as Plaintiff had resumed working. AR 26-33, 81.

Hearing Testimony

On October 5, 2006, ALJ Haubner held a hearing in Fresno, California. Plaintiff appeared with his attorney, Robert Christenson. Vocational expert ("VE") Judith Najarian also appeared and testified. AR 546.

Plaintiff testified that he completed the 12th grade and was 36 years old at the time of the hearing. He last worked full-time in January 2005. AR 549. He lives in a mobile home with his ex-wife and pets. AR 550, 553. Plaintiff has a driver's license and drives about 10 times a day to see his friends. He is able to care for his personal needs, prepare meals twice a day, clean dishes and shop once a day. AR 551-552. He eats out once a week and likes to watch football on television. AR 552. Plaintiff also spends about two hours a day doing yard work and cleans the kitchen twice a day, for 45 minutes a time. AR 554. He spends an hour a day sweeping. AR 554.

Plaintiff estimated that he could lift and carry about five pounds. AR 555. He could stand for 30 minutes and could walk about two miles before needing to rest. He could sit for 45 minutes. AR 556-557. He has trouble sleeping and thought he slept for about 6 hours a night.

Plaintiff explained that he lays down for 30 minutes and elevates his feet once a day. AR 556-557. He thought he could pay attention for about 30 minutes at a time. AR 557.

In response to his attorney's questions, Plaintiff testified that he was in a special education math class in ninth grade. AR 557.

The VE testified that Plaintiff's work as a fast food worker, as performed, was at the medium, unskilled level. His security guard position, as performed, was light and semi-skilled. AR 559.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and work experience. This person could occasionally lift and carry twenty pounds, ten pounds frequently. This person could not perform the fast food position as performed, but could perform it as the Dictionary of Occupational Titles describes it. He could also perform the world of unskilled light and sedentary jobs. AR 560.

For the second hypothetical, the ALJ asked the VE to assume that this person was moderately limited in the ability to understand, remember and carry out detailed instructions. This person could perform the fast food position, as well as unskilled work at all levels. AR 561.

For the third hypothetical, the ALJ asked the VE to assume a person who could lift and carry five pounds, could concentrate 30 minutes at a time and could walk for two miles before needing to stop. This person can also stand for 30 minutes at a time, sit for 45 minutes at a time, and would need one 30 minute unscheduled break a day. The VE responded that this person could not perform Plaintiff's past work or any other position in the national economy. AR 561.

Medical Record

In August 2001, Plaintiff was struck by a car while riding his bicycle. He sustained multiple injuries, including a fractured pelvis and closed head trauma. AR 145-162. He attended subsequent physical therapy and in October 2001, he was noted to have improved, although he was still "impulsive and unsafe in his gait." AR 164-173.

Plaintiff began seeing Cary Tanner, M.D., on September 4, 2001. He referred to Plaintiff as a "developmentally disabled male." Plaintiff had been compliant with treatment and was using a wheelchair. He had minimal resting discomfort and could sit comfortably. AR 246.

On September 27, 2001, Dr. Tanner noted that Plaintiff was not especially tender and was healing well. AR 244. X-rays taken the same day show "significant pelvic trauma." AR 245.

X-rays obtained on October 18, 2001, revealed a stable separation of the pubic symphysis with fractures of the right pubic bone. AR 243.

On January 8, 2002, Leslie H. Lessenger, Ph.D., performed a psychological evaluation. Plaintiff complained of continued pelvic pain with sitting, standing and walking. He said at the time of the accident, he had been working at McDonald's for over a year. On mental status examination, Plaintiff had a "child-like quality in his interaction," but was organized to person, time, place and the nature of his situation. There was no evidence of a thought disorder. He was sometimes depressed since the accident, and had nightmares and panic symptoms. Testing revealed borderline intellectual functioning. Dr. Lessenger diagnosed borderline intellectual functioning, moderate psychosocial stressors (unemployment and pain) and a GAF of 55. Plaintiff displayed poor judgment and impulsivity, although he had a relatively successful job history. Given his previous independent living and work status, a diagnosis of mental retardation was inappropriate. Moreover, Plaintiff's complaints centered on his pelvic fracture, not any cognitive deficits. AR 201-204.

Dr. Lessenger opined that Plaintiff would not have any restrictions in activities of daily living or maintaining social functioning. His concentration, persistence and pace were consistent with borderline intellectual ability, and Plaintiff was impulsive and tended to work quickly and carelessly. His ability to understand, carry out and remember simple instructions, as well as his ability to respond appropriately to co-workers, supervisors, the public and usual work situations were also consistent with his borderline intellectual functioning. AR 204.

Dr. Tanner indicated on December 7, 2001, that Plaintiff would likely be able to return to light work within 12 months. AR 239.

On December 11, 2001, Plaintiff returned to Dr. Tanner and complained of discomfort in his left leg. AR 237.

On February 2, 2002, State Agency physician Allen Peddleton, Ph.D., completed a Mental Residual Functional Capacity Assessment. He opined that Plaintiff was moderately limited in his ability to understand, remember and carry out detailed instructions. He believed that Plaintiff could perform simple directions. AR ...

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