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Rogers v. Astrue

August 20, 2009

SCOTT T. ROGERS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Scott T. Rogers ("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

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed his applications on November 23, 2005, alleging disability since November 23, 2005,*fn3 due to rheumatoid arthritis. AR 59-61, 73-78, 160-162. After being denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 40, 43-47, 52-56. ALJ Edward Graham held a hearing on August 28, 2007, and denied benefits on September 11, 2007. AR 12-24, 164-180. On July 23, 2008, the Appeals Council denied review. AR 4-7.

Hearing Testimony

ALJ Graham held a hearing on August 28, 2007, in Palmdale, California. Plaintiff appeared with his attorney, Shaneela Kahn. Vocational expert ("VE") Randi Hetrick also appeared and testified. AR 164.

Plaintiff testified that he was 33 years old at the time of the hearing and completed the eighth grade, with some special education classes. AR 167-168. He can read and write, but it takes him a while to do math in his head. AR 168-169.

Plaintiff last worked in 2001. AR 168. He testified that he could not work now because he has "a lot of swelling and stiffness when [he] wakes up" in all his joints. AR 169-170. He also has a hernia that causes pain down to his groin. AR 170. Plaintiff believed he has developed depression and is on an antidepressant. AR 170. He also has panic attacks three or four times a month. AR 170. Plaintiff testified that he was pain-free for five days a month, during which time he can help his mother with the dishes or do some light housework. On his bad days, he lays in bed all day. AR 171. His mother sometimes helps him get dressed. Plaintiff does not drive. AR 172.

Plaintiff takes three pain medications that cause him to get tired "from time to time." The medication helps, but not always. AR 172. He has a hospital bed that adjusts to different positions. He estimated that out of a 12 hour day, he lays down for at least 8 to 9 hours. AR 173. Plaintiff could not be "up" for more than 15-20 minutes before needing to sit or lay down. AR 173. If he sits too long, his back and legs become uncomfortable. AR 174.

The ALJ then questioned the ALJ. He asked the ALJ to assume a person of Plaintiff's age, education and work experience who could perform sedentary work with mild pain. The VE testified that this person would be able to do unskilled sedentary work. Examples would be assembly work, food processing and manual work. AR 176.

Plaintiff's attorney asked the VE about the lifting requirement of these positions. The VE explained that these positions required "very, very light lifting," defined as lifting of under five pounds. AR 177. The positions would also have a sit/stand option. AR 177. The positions would require more than occasional fine motor manipulation. AR 177.

Plaintiff's attorney asked the VE to assume an additional limitation to the original hypothetical of a person who could perform fine manipulation only 50 percent of the day. The VE testified that this person could not perform the previously identified jobs. AR 177-178.

Finally, the ALJ asked Plaintiff why he had not his hernia surgically corrected. He stated that he didn't have any insurance and the surgeon told him that without it, he could not have the operation. He testified that he was "turned away." AR 179.

Medical Record

On November 22, 2005, Plaintiff saw Ashmead Ali, M.D., and complained of chronic pain in his joints and swelling. On examination, he had synovitis in his hands and wrists and effusion in his knees. AR 134. Dr. Ali diagnosed arthralgias in his knees, hands and wrists. AR 134.

In December 2005, and January 2006, Plaintiff returned to Dr. Ali. and complained of chronic pain. He diagnosed arthralgias ...


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