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Guajardo v. Astrue

July 24, 2009


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



Plaintiff John J. Guajardo ("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


Plaintiff filed an application on or about November 2, 2005, alleging disability since March 4, 2005, due to type 2 diabetes with diabetic retinopathy, hypertension, chronic renal insufficiency, and status post laparoscopic cholecystectomy. AR 80-82. His application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 7-10, 61-68, 70-74. ALJ Christopher Larsen held a hearing on October 9, 2007, and issued an order denying benefits on November 13, 2007. AR 11-18, 508-541. On May 27, 2008, the Appeals Council denied review. AR 3-5.

Hearing Testimony

ALJ Larsen held a hearing on October 9, 2007, in Fresno, California. Plaintiff appeared and testified. He was represented by Melissa Proudian. Vocational Expert ("VE") Cheryl R. Chandler also testified. AR 509-541.

Plaintiff testified that he is fifty-three years old, born May 11, 1954. He is divorced and has two children, ages 27 and 18. Neither of his children live with him; he lives alone. AR 513-514.

Plaintiff holds a valid California driver's license and typically drives four of seven days a week. He generally goes into town, to pay bills and buy groceries. AR 514.

Plaintiff completed high school. AR 514-515. He did not receive any vocational training. AR 515. He last worked in March 2005 as a janitor, and prior to becoming ill, had held the position for about three years. AR 515. Plaintiff sustained an injury while "playing ball for the company" and then he began "getting sick" thereafter. AR 516. A related workers' compensation case settled. AR 516.

Primarily, Plaintiff has held janitorial or dishwashing positions. He also briefly worked as an in home care worker, providing care to his mother. AR 516-518. While employed as a dishwasher or janitor over a fifteen-year period, Plaintiff testified that the heaviest weight he would have lifted was about twenty-five pounds. AR 518.

Plaintiff does not believe he could have worked any job since March of 2005 as a result of his illnesses. AR 518. More particularly, he began to suffer from diabetes, difficulty with his pancreas, hypertension, swollen hands, right leg pain and leg surgery, and issues related to kidney function. AR 519.

Regarding the diabetes, since onset of disability Plaintiff has taken both pills and insulin, through to the present. When insulin therapy commenced, he would take insulin once a day. Today however, Plaintiff takes insulin three times per day. AR 520. Plaintiff testified that his diabetes has not been under control at any point since March 2005. He follows a diabetic diet, takes his medication as prescribed, and checks his blood sugar daily. Asked what his average blood sugar results include, Plaintiff testified that the "lowest is 220" and the highest "is almost 400." AR 521. This is the reason his doctor increased his insulin intake to three times per day. AR 522. He has been treated by the same physician for diabetes since March 2005. AR 522.

Plaintiff has not specifically been hospitalized for diabetes, yet his diabetes was treated while he was hospitalized for pancreatic care. AR 522. He was hospitalized for three months, back in September or October of 2005. AR 522. Plaintiff testified that the doctors tried to get his diabetes under control "but it was always up and down." AR 523. He testified that his pancreas "erupted" and the doctors told him he was going to die and that he did not have a chance. AR 523. Nevertheless, he was treated and the doctor told him he had been lucky. AR 523. Plaintiff still suffers pain every day. AR 524. Additionally, Plaintiff testified that the doctors are presently keeping an eye on his kidneys. AR 524.

Asked about his energy level, Plaintiff testified that he is "drained out" about five days a week. AR 524. He takes about three naps a day for about an hour to an hour and a half each. AR 524. He has been napping in this manner since March 2005. AR 525. When he does yard work, he can only do so for about ten minutes before becoming short of breath and very tired. His doctors advised him to stop the activity. AR 525. Plaintiff does the cleaning and cooking, although often he buys things that can be prepared in the microwave. AR 526.

Surgery was performed on Plaintiff's right leg. He has a limp and continues to have problems with it. AR 526. His hands and feet bother him "every day" "five days a week" and the numbness lasts all day. He relieves the numbness by elevating his legs. AR 526. About twice a day, "five days" a week or "everyday," he will elevate his leg for about an hour or two. AR 526-527. When his hands are numb he rubs them. It helps, but then the numbness returns. AR 527.

Plaintiff suffers from difficulties related to his vision. His left eye is blurry despite three surgeries. His doctor advised that the surgeries did not help because Plaintiff suffers from high blood pressure. The blurriness does not go away or fluctuate, and it is getting worse. Glasses have not corrected the problem. AR 527-528. Plaintiff indicated that as a result of the blurriness, he is afraid to drive and it has limited his driving somewhat. He testified that he cannot read because he "can't see the words at all." He tries to watch television but it too is blurry. He is sensitive to light and wears sunglasses to avoid the sun burning his eyes. AR 529.

With regard to hypertension, Plaintiff takes medication daily and follows a diet related to hypertension. However, he testified his hypertension has not been brought under control. AR 529-530.

Plaintiff has been advised his kidney functioning is worsening, and currently functions at twenty-fix percent capacity. Further, he was told that if the function decreased further he will have to be hospitalized and placed on dialysis. AR 530. He experiences a lot of sharp pain on either side of his abdomen, and when he urinates there is a burning sensation. AR 530. Plaintiff is beginning to experience back pain in his lower left back on a daily basis. AR 531.

Asked how long he can sit before he would need to get up, Plaintiff said about an hour. He can walk about a block before he would have to stop. AR 531. He reported that the heaviest weight he can lift is five pounds without causing pain. He can concentrate for perhaps an hour before he loses focus and would need to take a break. He indicated he would have to rest for about two hours before going back to concentrating for another hour. AR 532.

In totality, since 2005, Plaintiff testified that his condition has gotten worse. AR 532.

In response to questions by the ALJ, Plaintiff indicated that he had surgery on his leg within the last two or three years. AR 533. Plaintiff was driven to the hearing by his brother. He sees his brother and sister-in-law almost every day. AR 533.

VE Chandler also testified at the hearing. When asked about Plaintiff's past work, the VE indicated his work as a janitor or custodian is classified as medium semi-skilled, and work as a ...

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