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Mendez v. Astrue

September 16, 2009

ARMANDO TORRES MENDEZ, 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 Armando Torres Mendez ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") 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 initial applications for DIB and SSI on August 23, 2006, alleging disability since January 12, 1996, due to hypertension and diabetes mellitus with neuropathy. AR 94-98, 99-101, 120. After being denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 45, 71, 74-78, 80-84. On March 17, 2008, ALJ Bert Hoffman held a hearing. AR 24-39. ALJ Hoffman denied benefits on May 29, 2008. AR 10-22. The Appeals Council denied Plaintiff's request for review on September 22, 2008. AR 3-8.

Hearing Testimony

ALJ Hoffman held a hearing on March 17, 2008, in Fresno, California. Plaintiff appeared with his attorney, Robert Christenson. AR 26. A Spanish interpreter also was present. AR 26.

Plaintiff testified that he was 54 years old at the time of the hearing. Plaintiff completed sixth grade in Colima, Mexico. He cannot write in English, but understands some English. AR 27.

Plaintiff worked as a tractor driver from 1971 to 1979. He last worked in 2006. He picked grapes for two and a half to three months. He did not work in 2004 or in 2005. AR 28. His children helped support him. They lost the house. AR 29. Plaintiff did not do farm labor work, just tractor work. As a tractor driver, his duties were to plow the soil. At one time, he used to help his father sell fruit. His father died four or five years before the hearing. AR 29. He helped his dad selling fruit in 1992 for seven or eight years. AR 30. When his dad passed away, he quit doing it. AR 30.

Plaintiff did not work in March 2007. He did not recall why a physician's assistant gave him a note restricting his lifting to no more than 30 pounds in March 2007, but he cannot pick up "anything at all" with his right hand. AR 29-30.

Plaintiff testified that he has a lot of back pain, pain in his knees and blood pressure highs and lows, which are keeping him from working. Plaintiff's doctor told him that he had to do more tests to see what was wrong with his hand. The doctor said his hand was "in bad shape -- in very bad shape." AR 30.

Plaintiff has diabetes. AR 30. He is taking insulin in the morning and in the evening. He also is taking medication for pain and for diabetes. AR 31. He is starting to have problems with his vision from the diabetes. He also does not feel like doing anything for seven or eight days out of the month. His left leg and foot get numb, which affects his ability to stand and walk. If he walks "a little bit," the soles of his feet feel like they are on fire. AR 31.

Plaintiff had a brace on his right hand, which the doctor gave to him on March 4. The doctor was going to do more studies of Plaintiff's back and knees, but Plaintiff did not know what studies. AR 31-32.

At home, Plaintiff can lift 15 pounds for about 10 minutes and then the pain is unbearable. The pain is located in the spine and at the waist. AR 32. Plaintiff's hand has given him problems for about a month and a half. AR 32.

Plaintiff can stand 25 to 30 minutes and he gets "a lot of pain." AR 32. In an eight hour day, he can stand for a total of three hours or less. AR 32-33. Plaintiff also has problems sitting. He can sit about 15 minutes before he needs to stand up and walk around. He can walk about a quarter of a mile, but has to stop two or three times. AR 33. He has to take four rest breaks for 10 to 15 minutes each in an eight hour day. AR 33-34. During the rest breaks, he lies down. He needs the rest breaks when he cuts the lawn or when he helps his wife around the house. AR 34. He has some days that he does not function very well. Seven or eight days of the month he has no strength and does not feel like doing anything. AR 34. He does not have side effects from taking medication. AR 34.

Plaintiff testified that on a normal day he would feel like going out. He helps his wife with yard work. He cuts the lawn and puts the grass clippings into a trash can. He also helps his wife clean the kitchen. AR 34-35. He "hardly ever" goes out because his wife also is ill. She fell and they had to do surgery on her right shoulder in May of the previous year. AR 35.

Plaintiff last went to Mexico eight or nine years before the hearing. He does not drive. His wife has a license to drive in Mexico. He has a license to drive here. AR 35-36. He stopped driving because he gets dizzy. He has had to call his wife to come get him when he is driving because of his diabetes and not feeling good. It causes a lot of sweating. He last drove to Clarabella about 10 days prior to the hearing. His wife cannot drive now. AR 36.

Plaintiff testified that he is having problems dressing himself. He needs help to eat. His wife has to cut up his food so that he can eat because of his hand. AR 36. A month and half before the hearing, he could cut his meat. AR 37. During the hearing, Plaintiff stood up because his back hurt. AR 37. Plaintiff wanted the ALJ to know that he feels really bad and would like to go to work. Once they see his record they do not want to hire him because of the problems with his hand and his age. AR 37.

"Dr. Colper" is Plaintiff's doctor. Plaintiff has been seeing him once every month or two for a little over a year at Family Healthcare Network. AR 37.

Medical Record

On December 30, 2003, Plaintiff received treatment at Family Healthcare Network. He was diagnosed with uncontrolled diabetes mellitus Type II and stage 1 hypertension. AR 281. Plaintiff was temporarily prescribed insulin and started on the Patience Assistance Program to receive Glucophage and Avandia. AR 280.

On January 7, 2004, Plaintiff saw Matthew Kosel, PA-C, at Family Healthcare Network, for a follow-up appointment. Plaintiff had started insulin and had been checking his blood sugars daily. PA Kosel assessed Plaintiff with diabetes mellitus type II, hypertriglyceridemia and microalbinuria. He was to increase his insulin and continue blood sugar monitoring. AR 279.

Plaintiff did not show for an appointment on January 21, 2004. AR 277.

Plaintiff saw PA Kosel on January 22, 2004, for a diabetes check. Plaintiff had been tracking his blood sugars and PA Kosel opined that Plaintiff was improving control of his diabetes mellitus. AR 276.

On February 12, 2004, PA Kosel opined that Plaintiff was improving control of his diabetes mellitus. He had been checking his blood sugars twice per day and using insulin while waiting for Glucophage and Avandia to come through the Patient Assistance Program. AR 274.

On March 16, 2004, Plaintiff saw PA Kosel for diabetes consultation. PA Kosel diagnosed Plaintiff with type 2 diabetes mellitus with early neuropathy and stage 1 hypertension. AR 272.

Plaintiff did not show up for appointments on April 16, 2004, April 28, 2004, and May 4, 2004. AR 266, 269, 270.

On May 19, 2004, Plaintiff saw PA Kosel for a diabetes consultation. Plaintiff had not been checking his blood sugars because he went to Mexico for a family emergency. PA Kosel diagnosed him with diabetes mellitus, hyperlipidemia and elevated hypertension. PA Kosel referred Plaintiff to a nutritionist and ...


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