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Thao v. Astrue

March 30, 2009



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"). For the reasons discussed below, the court grants plaintiff's motion for summary judgment, denies the Commissioner's cross-motion for summary judgment, and remands this case for further development of the record.


Plaintiff, born July 1, 1983, applied for SSI on September 22, 2004, alleging disability since January 2002, due to "hearing disable, learning disable, memories disable, temper and appetites problem." Administrative Record ("AR") 43-48, 50; but see AR 43, 59 (alleging disability since June 1, 1987). With the assistance of his aunt in completing the application, AR 58, plaintiff stated that he last worked January 2001, but had to stop working because he had no transportation. AR 50. He stated that he last worked as a "cashier" at a McDonald's restaurant, with the following responsibilities: "[T]ake orders a few time[s] a day (sometimes), [] flick burgers, make burgers, clean windows, chairs, tables, floors and restrooms most of the time." AR 51. He also stated that "other employees would help me clean the tables and wash dishes." AR 50. In responding to the inquiry, "Check the highest grade of school completed," plaintiff checked both grades 11 and 12, with "2000" as the date completed; he answered "yes" to the question, "Did you attend special education classes?" and identified the school as "Community Day -- Special School for Disabled Persons, 7000 Franklin Blvd. #820, Sacramento CA 95823." A telephone number is provided. AR 56.

The Social Security field officer made the following observations upon accepting plaintiff's application: "The claimant spoke very little, he was not able to answer much of anything. He did not know the year he stop[ped] school, what grade he was in when he last attended school, after asking several questions different ways he was able to tell me he washed tables and dishes." AR 60.

At the December 14, 2006 hearing before administrative law judge ("ALJ") Joseph DiPietro, at which plaintiff was represented by counsel, plaintiff testified that he last worked, for a period of two to three months, at a McDonald's restaurant. AR 187. He earned $10,000 from 2001 to 2002. AR 187-188. His duties were "mostly" taking out the trash and doing the dishes, but he helped a little placing orders and with the cash register. AR 193. Plaintiff got the job through a friend and did not need to complete a formal application. AR 193-194. Plaintiff's dad would drive him to work; his mom would pick him up. AR 192. Plaintiff left the job because he and his family moved. AR 192-193.

Plaintiff testified that he does not have a driver's license, although he attempted the written test. AR 190, 195. Plaintiff stated that he completed his freshman year in high school, but then quit school because it was complicated. AR 190, 195. Plaintiff testified that he can read and write a little in English, but does not read another language. AR 190-191.

Plaintiff testified that he helps his parents at their convenience store, two to three days a week, cleaning and stocking shelves. He also helps at their laundromat. AR 188-190. Sometimes plaintiff stays home to "open the door for my brothers when they get home from school." AR 191. He stated that his brothers are younger, that he babysits them when his parents aren't home, but "[t]here's other people there that help me." AR 191. Plaintiff testified that he likes coloring with his five-year old niece, and playing video games with his brothers, age seven and eight or nine, but they argue about everything. AR 194.

Plaintiff testified that he cares for himself with respect to bathing and eating, but relies on reminders from his mom. He stated that he can cook a little bit, and makes peanut butter sandwiches. AR 195-196. Plaintiff could not identify his home address when asked by the ALJ. AR 197.

At the conclusion of the hearing, plaintiff's counsel was permitted to make the following offer of proof regarding the testimony of plaintiff's mother (AR 196-197):

[M]other would testify that he's had developmental problems since being a young child. Was noticed even amongst, when he was smaller, he had to be controlled. He would run out into the street, that sort of thing, and they, of course, had to watch him for his own safety. Since that time, he still functions at a level, in their mind, more consistent with his brothers, who you've heard him testify as fighting and playing with and that sort of thing, rather than more of, than an adult level. His job was accomplished through a friend and the reason they stopped, stopped working was because they would of course, have to drive him to and from work everyday. It was more of an accommodation than a regular job. At this time, he is still functioning at that level. Their hope is to get him into some sort of Alta (Phonetic) Regional or some sort of rehab program so [he] can learn independent skills in the next, so that at some point, he can be independent. . .

After the hearing, the ALJ left open the record to obtain the report of psychologist Michelina Regazzi. AR 186-187.

The ALJ issued a decision on September 17, 2005, finding that plaintiff is not disabled.*fn1

AR 14-22. The ALJ made the following findings:

1. Mr. Thao has not engaged in substantial gainful activity since September 22, 2004.

2. The medical evidence establishes that Mr. Thao has severe impairments due to borderline intellectual functioning and a learning disorder, but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.

3. Mr. Thao's allegations of disability are not fully credible for the reasons set forth in the above decision, and are not supported by medical evidence contained in the record.

4. Regarding Mr. Thao's residual functional capacity, he is limited to the performance of unskilled, entry-level work involving simple, routine tasks. There are no exertional limitations (20 CFR 416.945).

5. Mr. Thao's past relevant work as a fast food worker, as he performed it, and as performed in the economy, did not require the performance of the work-related activities precluded by the above limitation (20 CFR 416.965).

6. Mr. Thao's impairments do not prevent him from performing his past relevant work.

7. Mr. Thao has a limited education (20 CFR 416.964).

8. In view of Mr. Thao's age and residual functional capacity, the issue of transferability of work skills is not material.

9. Mr. Thao's non-exertional limitations do not significantly compromise his ability to perform work at all exertional levels, except performing more than unskilled entry-level work; therefore, section 204.00, Appendix 2, Subpart P, Regulations No. 4, and Social Security Ruling 85-15 indicate that a finding of nor disabled would be appropriate.

10. Considering the range of work at all levels which Mr. Thao is functionally capable of performing, in consideration with his age, education and work experience, he can be expected to make a vocational adjustment to work which exists in significant numbers in the national economy. Social Security Rulings 85-15 and 83-10 support this finding.

11. In the alternative, based on the framework of Section 204.00, Appendix 2, Subpart P, Regulations No. 4, in conjunction with Social Security Ruling 85-15, it is found that a significant number of jobs exist that Mr. Thao can perform based on a capacity for unskilled work and considering his age, education and work experience.

12. Mr. Thao was not under a "disability," as defined in the Act, at any time through the date of this ...

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