The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT
Plaintiff, Bruce Maddon ("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
In December 22, 2003, Plaintiff filed an application alleging disability since June 17, 2003. AR 114. His applications were denied initially and on reconsideration. AR 47, 54. Subsequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 47, 54, 82. ALJ Sean Teehan held a hearing on October 18, 2005, and issued an order denying benefits on January 13, 2006. AR 61-65. Upon Plaintiff's request for review, on August 19, 2006, the Appeals Council vacated the decision and remanded the case for further proceedings. AR 66-67.
Pursuant to the remand, ALJ Bert Hoffman conducted a second administrative hearing on April 3, 2007. AR 420-465. On May 22, 2007, ALJ Hoffman issued an order denying benefits. AR 21-30. On June 8, 2007, Plaintiff requested a review of the hearing. AR 16-17. On November 13, 2007, the Appeals Council denied review. AR 7-9.
The October 25, 2005 Hearing ALJ Sean Teehan held a hearing on October 28, 2005, in Fresno California. Plaintiff appeared and testified. He was represented by Gina Fazia. Vocational Expert ("VE") Thomas Dachelet also testified. AR 347-419.
At the time of this hearing, Plaintiff was fifty-two years old. AR 351. He was living with a friend in a mobile home in Kerman California. AR 251. Prior to that time, he had been living with a friend in Castro Valley, California. AR 352. Plaintiff also sometimes stays with his ex-wife who lived in Freemont, California. AR 379; 384. Plaintiff testified that he received money from his mother and "Junior" for food. AR 378
Plaintiff did not graduate from high school but obtained a GED while he was incarcerated for driving under the influence of alcohol ("DUI"). AR 356. Plaintiff last worked in June or July 2002 driving heavy equipment at Hoff Brothers. AR 357. He performed this work for approximately six years. AR 358. Plaintiff stopped working there because he was diagnosed with chronic pancreatitis and he was experiencing pain in his lower stomach. AR 359.
At the time of the hearing, Plaintiff indicated he was unable to work because he was in too much pain due to his pancreatitis, fibromyalgia, gastritis, and rheumatoid arthritis. AR 361; 369. Plaintiff was taking Tramadol for pain, Pepcid for his acid reflux, Dicyclomine for gastritis, and Elavil for depression. AR 362. Plaintiff experienced dizziness and light-headedness when taking the Tramadol which he was taking three times a day. AR 363. Plaintiff also experienced blurred vision, dizziness, and sleepiness when taking the Dicyclomine. AR 366. Plaintiff testified that his rheumatoid arthritis causes him constant pain in both of his shoulders, and his left hip. AR 370. Plaintiff also experiences constant pain in his joints, legs, feet, toes, and neck due to fibromyalgia. 370-373. He also has numbness in both of his hands which prevents him from holding things, from writing, and from reaching forward with both arms. AR 398.
Prior to working as a driver of heavy equipment, Plaintiff worked as a bartender for approximately nine months. His duties included making drinks, cleaning up, and stocking the bar. AR 374-375. Plaintiff had also worked as a maintenance person at a Target store, as the head of a receiving department at Nicholas Stone Software, stocking shelves at Toys-R-Us, loading trucks for Zacky Farms, and as a janitor at Reno's Bar. AR 376, 392-396.
Since approximately 2003, Plaintiff relied on his mother and his friend "Junior" for food. AR 377. In the past, Plaintiff has lived with his ex-wife, "Junior" and his mother. Plaintiff is only allowed to stay at his mother's house for two weeks out of the year. AR 378. Plaintiff testified that when staying with his ex-wife and Junior, he cooks meals and cleans. AR 378-380. While staying with his ex-wife he would also help with groceries including carrying groceries into the house. AR 380-382. Plaintiff's mother has heart conditions so he takes her to appointments, vacuums, and helps her with grocery shopping. AR 382, 389. Plaintiff is able to do his own laundry. AR 382.
Plaintiff drives a car, although his license was revoked for a conviction for driving under the influence of alcohol ("DUI"). AR 378. Plaintiff occasionally drives from Fresno to Fremont, and drove to the Bay Area about a week before the hearing in order to retrieve some medical records. AR 385, 400. He also sometimes takes the train to visit family. AR 384.
Plaintiff has made the drive from Fresno to Freemont since becoming sick. AR 385. He can make the drive in five hours. AR 385. He used to be able to make the drive in three hours, but he had to stop too many times. AR 385. If he takes the train he can get up and walk around. AR 385.
On a typical day, Plaintiff gets up at 7:00 am, makes coffee, and smokes a cigarette. AR 385. Plaintiff smokes one pack of cigarettes a day and drinks between two and three twelve packs of beer a day. AR 386. Plaintiff has not obtained any treatment for his alcohol use since his incarceration. AR 387. He does not take any other street drugs. AR 387.
Plaintiff can walk about fifteen to twenty yards before slowing down and could walk a mile "if his life depended on it." AR 389-390. Plaintiff stated that he could lift a case of beer. AR 375, 391, 408. Plaintiff is able to sit for one hour but then needs to get up. AR 391. Plaintiff is able to stand for thirty minutes, and can stand all day, as long as he is given time to sit down. AR 391-392.
VE Thomas Dachelet testified that based on Plaintiff's testimony and hypothetical posed by the ALJ, he would not be able to perform his past work. AR 406. However, Plaintiff could perform work as a bagger, parking lot attendant, garment sorter, and a general office clerk. AR 408, 409, 413, 417.
The April 3, 2007 Hearing
ALJ Hoffman held a hearing on April 3, 2007, in Fresno, California. Plaintiff appeared and testified. He was represented by Charles Oren. Vocational Expert ("VE") Cheryl Chandler also testified. AR 420-465.
Plaintiff testified that he has been living at his mother's house in Kerman. AR 424. Plaintiff is only allowed to stay at his mother's house for two weeks at a time because his mother lives in a senior citizen community. AR 424-426. He usually lives with his ex-wife in Freemont. AR 424-426. He travels back and forth between the residences by train. AR 426. He occasionally stays with his drinking buddy and partner Junior Cudo in Kerman. AR 435.
Plaintiff testified that a rheumatologist at UMC diagnosed him with fibromyalgia in 2004. AR 427. At that time, he was treated with shots, was told there was nothing that could be done for his condition, and was referred to his primary care physician. AR 428. Thereafter, Plaintiff began seeing Dr. Dickey for fibromyalgia, however, Plaintiff acknowledged that Dr. Dickey had never treated anyone for fibromyalgia and "didn't know too much about it." AR 429. Plaintiff reported that his appointments with Dr. Dickey last about ten to fifteen minutes during which Dr. Dickey asks Plaintiff a few questions and fills his prescriptions. AR 453-454.
Plaintiff testified that his symptoms have become worse since the last hearing. AR 429. He was still taking Tramadol three to four times a day. AR 429. The medication makes him dizzy and sleepy. AR 430, 451. He has been taking the medication since 2004. AR 452. Plaintiff was advised not to drink alcohol while taking the medication, but he continues to drink a couple of beers a day. AR 430. He also "ties one on" approximately once a week. AR 430. He does not take the medication during those periods because it makes him get drunk too quickly. AR 430-431.
Plaintiff stated that his ex-wife and his mother are supporting him. AR 433. He spends most of his time at his ex-wife's house with his fifteen year old grandson. AR 432. Both his ex-wife and grandson are out of the house by 7:30 am. AR 432. Plaintiff previously took his grandson camping and fishing, but no longer does so. AR 433.
Plaintiff testified he takes Viagara when he goes to see his friend "Monica" in Castro Valley which occurs twice a month. AR 434. He travels by BART to see her. AR 434. He sometimes stays with Monica for a month at a time, and they go out to bars together. AR 442. He also indicated that although he sometimes cooks for her, she was more of a "take out person" and would bring food home. AR 442. When staying with Monica, Plaintiff sometimes walks to the store. AR 442-443.
Plaintiff stated that he hit his head in the summer of 2006 when he drank too much wine at a party and fell while dancing. AR 434-435. Plaintiff indicated that he cannot dance well with his fibromyalgia, but acknowledged he was drunk at the time he fell. AR 436. Plaintiff suffered a felony conviction for driving under the influence of alcohol and has three or four prior DUI convictions. AR 444.
Plaintiff testified he has pain all over his body including his shoulders, neck, knees, hips, feet and arms. AR 427. Specifically, he has burning in his left shoulder and both shoulders go numb if he tries to lift either arm. AR 436-437. He also suffers from neck and lower back pain and constantly feels like he is being stabbed in his back. AR 437-438. He also experiences numbness in his hands, neck and both of his feet. AR 437, 450. Plaintiff has difficulty sleeping which includes having trouble going to sleep and waking up during the night because his knees and feet go numb. AR 449-450. The numbness travels done his spine and circles around to his bellybutton. AR 450.
Plaintiff estimated that he is able to walk for five minutes and can sit for ten to twenty minutes, but he needs to stand up and stretch. AR 439. However, he is able to sit for approximately seven hours in an eight hour day. AR 438-439. He is also able to lift a gallon of milk. AR 440.
Plaintiff testified that his pancreatitis flares up when he drinks alcohol. AR 445. When this occurs, the pain is worse than the pain he experiences from fibromyalgia. AR 445. Plaintiff reported that his most recent bout of pancreatitis occurred three weeks ago and followed a three-day drinking spree. AR 445-446.
Plaintiff testified that in the past he worked as a leveler which entailed driving a tractor and paddle scrapper. AR 455. He would have to climb up two steps to get on the paddle scrapper. AR 455. Plaintiff also testified he was head of receiving at a computer software company in Freemont. AR 458. Plaintiff also worked as a roofer and a painter. AR 461.
VE Chandler testified that Plaintiff's past work as a tractor driver is light, semi-skilled work, and that his work as a roofer is medium to heavy unskilled. AR 461. The VE was asked to assume a hypothetical of a worker of Plaintiff's age and educational background who could lift and carry less than ten pounds in an eight hour day, could only sit for fifteen to twenty minutes and who could stand and walk for only fifteen to twenty minutes at a time. AR 462. VE Chandler indicated that there no jobs were available. AR 462.
In a second hypothetical, VE Chandler was asked to assume that the person had the residual functional capacity to do light work but the person could not do any lifting above the shoulder. AR 462. However, the worker was capable of pushing and pulling within the weight limits for fifty percent of an eight hour day. AR 462. The VE indicated this hypothetical worker could not perform plaintiff's past work as a tractor driver. However, this worker could perform work as a hand packager, unskilled light jobs in retail ...