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Bracewell v. Astrue

April 23, 2009

RUSSELL D. BRACEWELL, 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

BACKGROUND

Plaintiff Russell D. Bracewell ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application 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 Gary S. Austin, United States Magistrate Judge.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

On or about August 31, 2004, Plaintiff filed applications alleging disability since March 18, 2004, due primarily to Hepatitis-C and liver disease.*fn3 AR 43-45. His application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 11-14, 34-39. ALJ Mark C. Ramsey held a hearing on October 17, 2006, and issued an order denying benefits on May 24, 2007. AR 15-19, 226-259. On January 19, 2008, the Appeals Council denied review. AR 5-7.

Hearing Testimony

ALJ Ramsey held a hearing on October 17, 2006, in Chico, California. Plaintiff appeared and was represented by Shirley Hull. AR 226.

Plaintiff testified that he was divorced. He currently lives with his girlfriend of six years in a trailer home in Chico. His girlfriend is disabled as a result of grand mal seizures. AR 229.

Plaintiff graduated high school and attended one year of college. He served time in the Air Force and received an honorable discharge in July 1975. AR 229-230. Thereafter, he worked in the construction industry. AR 230-231. Plaintiff also worked stocking shelves at K-Mart, where he had been employed part-time for about one year. AR 232-233. Plaintiff was fired from K-Mart for having alcohol on his breath. AR 250-251.

Most recently in the construction field, Plaintiff worked at Cousin Gary's pulling the plastic sheeting off of mobile homes following transport. He quit working at Cousin Gary's after he nearly fell from a roof in the 100 degree heat. AR 233. From September 2004 to February or March 2005, Plaintiff worked for Premier Construction part-time as a carpenter. He just could not work any longer in such a labor-intensive job. AR 234, 242-243. He was tired after an hour or two, and the pain in his legs and back precluded him from continuing. AR 243. Plaintiff also worked construction at Chico Nissan, but quit because he could not communicate with his supervisor who spoke Spanish, and whom apparently referred to Plaintiff derogatorily in Spanish when Plaintiff requested the supervisor speak English. AR 232, 252.

Plaintiff is currently receiving general assistance and food stamps, and assistance toward the space rental for his trailer. AR 234-235.

Plaintiff attends to his own personal needs. He occasionally changes the sheets on the bed, does his own laundry and cooks. He does the grocery shopping on a weekly basis and is usually accompanied by his mother and/or girlfriend. His girlfriend vacuums the carpets, mops the floors, scrubs the bathroom and mows the law. AR 235-236. Plaintiff does tend to a small vegetable garden where he grows jalapeno and Serrano chilies, and occasionally will trim the trees. AR 236-237.

Because he does not drive, Plaintiff gets around using a bicycle or taking the bus. He does not attend church, see movies, go fishing or camping, nor does he play sports or exercise. AR 237, 249.

Plaintiff currently takes Norco for pain, and the natural supplement Milk Thistle for his liver. AR 238, 246-247. He has had problems with alcohol for years. Plaintiff testified that the day previous to the hearing he drank a quart of beer, but that he hadn't had any alcohol for the week and a half prior to that date. He has been advised by his doctor that he should stop drinking because it is going to kill him. AR 239. He has not quit drinking completely, but he has cut down. Plaintiff attended AA meetings when his liver problems were significant, and that is how he was able to cut down on his alcohol consumption. He will "quit for a couple weeks and then just ke[ep] it down to a bare minimum." AR 240. He stopped taking Antabuse after one dose because it made him "deathly ill." AR 240-242. Plaintiff testified that he has tried to quit drinking, but he has been unable to do so. AR 249.

Plaintiff's doctor advised him that the pain in his back and legs was attributed to the Hepatitis C. He sees his physician, Dr. Kurt Johnson, regularly, about every month or two months. Dr. Johnson has been treating Plaintiff for more than ten years. AR 244-245. Plaintiff rated his pain at a five or six without medication, and a three with medication. AR 248. Plaintiff has not undergone a liver biopsy, and understands his liver condition is monitored with blood testing. AR 248.

In response to a question by his attorney, Plaintiff indicated that he could perform the duties of a cashier, however, he could not stand for extended periods of time. AR 250. His typical day includes getting up, eating breakfast, and sitting down to watch ...


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