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Mitchell v. Astrue

February 11, 2010


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



Plaintiff Chester L. Mitchell ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income pursuant to Title 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


Plaintiff filed his application on January 5, 2005, alleging disability since April 26, 2002, due to a back injury, diabetes, high blood pressure, a seizure disorder, vision issues and problems related to his kidneys. AR 44-49. After Plaintiff's application was denied initially and on reconsideration, he requested a hearing before an Administrative Law Judge ("ALJ"). AR 6, 10, 22. On January 24, 2007, ALJ Christopher Larsen held a hearing. AR 234-268. He denied benefits on March 29, 2007. AR 7-17. The Appeals Council denied review on August 26, 2008. AR 3-5.

Hearing Testimony

ALJ Larsen held a hearing on January 24, 2007, in Fresno, California. Plaintiff appeared with his attorney, Melissa Proudian. Vocational expert ("VE") Thomas Dachelet also appeared and testified. AR 234.

Plaintiff testified that he was 47 years old at the time of the hearing. AR 239. He was not married and has four children, all over the age of 18. Plaintiff lives with his mother and sister. AR 240. He has never had a driver's license because a doctor suggested his seizures may cause problems while driving. AR 242. Plaintiff completed the twelfth grade and received certification as a security guard. AR 243. Plaintiff last worked in 1992 or 1993 doing heavy labor. AR 243-244. He was "relieved" from that position because he and a co-worker "got into it." AR 244.

Plaintiff testified that he could not work because of his seizures, a prostate problem, back pain, a memory problem and vision issues in his left eye. AR 244. His calves and feet also constantly sting and burn. Plaintiff also has diabetes. AR 245.

Plaintiff explained that he has had seizures for quite some time and constantly has them. AR 245. He takes two medications, Keppra and Phenytonin, for seizures. He takes the medication every day as prescribed but his seizures are not controlled. AR 246. His last seizure was around January 1, 2007, but then he testified that he has had at least ten since that time. AR 247. Just prior to having a seizure, he gets weak and dizzy and starts to sweat. He doesn't remember anything after the seizure starts and loses consciousness. AR 248. He is sometimes out for more than an hour and has been hospitalized. After the seizure, it takes him about 20 to 25 minutes to figure out what's happening. AR 249. He also has to rest for a seven to eight hour period after a seizure, though he sometimes has to rest for two or three days. AR 250. Plaintiff had a seizure the week before the hearing after which he had to rest for two or three days. AR 250. In October 2006, Plaintiff had a seizure as he was crossing a courtyard and was hospitalized. AR 251. Every time he is hospitalized, he is kept at least overnight. AR 252. He currently sees a neurologist every two weeks. AR 253.

Plaintiff is also on medication for his diabetes. AR 253. He told his doctor about the numbness in his calves, but hasn't gone back since that visit. AR 254. Generally, his calves stay numb anywhere from 7 hours to all day, every day, and he has to stay off his feet to relieve the numbness. AR 254. He also elevates his legs until the feeling comes back, about two to three hours. AR 255.

Plaintiff also testified that he has a blind spot in his left eye after being injured while working in construction. AR 257.

As for Plaintiff's back pain, he testified that the pain is in his lower middle back. He has pain about five to six times a month, for about a day at a time. He rated the pain at a seven or eight. He uses a heating pad to help relieve the pain, though it doesn't take the pain away completely. Plaintiff does not take any pain medication. AR 258.

Plaintiff was diagnosed with prostate cancer in 2006 and just started medication to control the need to urinate. AR 259. He currently urinates over 15 times a day, for about two to three minutes a time. AR 260.

Plaintiff further testified that he could maintain attention for about 30 minutes before he needed to take a break for about 10 to 15 minutes. AR 260.

Plaintiff does not have trouble bathing or dressing himself. He does not clean, cook or do laundry. AR 262. During a typical day, he watches ...

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