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Lee v. Astrue

February 19, 2010

BLIA LEE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Blia Lee ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") 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 Gary S. Austin, United States Magistrate Judge.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed his application on or about January 25, 2005, alleging disability beginning in 1998 due to back pain and foot pain. AR 133-136, 144. His application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 90-95, 97-101. ALJ Stephen W. Webster held a hearing on May 16, 2007, and issued an order denying benefits on July 20, 2007. AR 107-114. On December 11, 2007, the Appeals Council vacated the decision and remanded for further proceedings related to Plaintiff's mental impairment. AR 117-118. Thereafter, on March 14, 2008, the ALJ conducted a second hearing. Plaintiff appeared and testified with the assistance of an interpreter and was represented by counsel. AR 53-72. On April 3, 2008, ALJ Webster issued an order denying benefits. AR 18-26. On July 10, 2008, the Appeals Council denied review. AR 9-11.

2008 Hearing Testimony

ALJ Webster held a hearing on March 14, 2008, in Fresno, California. Plaintiff appeared and testified with the assistance of a Hmong interpreter. Plaintiff was represented by attorney Melissa Proudian. Vocational Expert ("VE") Thomas Dachelet also testified. AR 53-72.

Plaintiff did not know his age at the time of the hearing, but admitted his birthday was December 31, 1958, when asked by counsel. AR 56. He indicated he is five feet, three inches tall, and weighs about 149 pounds. AR 56.

While Plaintiff has a valid driver's license, he does not drive when he is ill and consequently drives about twice a year. AR 57. Plaintiff has no formal education, except for "some adult school." He cannot read or write English, but he knows a few words in English, noting that if he is "real hungry [he] can beg for food." AR 57. Plaintiff can read and write in Hmong. AR 57-58.

Plaintiff has not worked since his application in January 2005, and in fact has not worked at all in the past fifteen years. He lives in Fresno with his wife and two children who are in seventh and eighth grade, respectively. His wife's older son and his spouse, as well as their four children, also live in the home. Plaintiff's family receives welfare and food stamp assistance. AR 56, 58-60, 66.

Plaintiff is unable to work any job eight hours a day, five days a week, because he is unable to sit and stand, and suffers from depression and memory problems. More specifically, his low back pain travels to his feet and up to his buttocks so that he cannot sit. He also has neck pain that travels into his head, causing headaches. Plaintiff also suffers from stomach problems that he believes are related to his gall bladder. AR 60.

Plaintiff is treated by "Dr. Calika"*fn3 and Dr. Nital, a gastroenterologist. His back pain is treated by Dr. Chung, a chiropractor. The medications prescribed by Dr. Kaleka work for a few hours, but then the pain returns. AR 61. When asked about any side effects of the medication, Plaintiff replied that the medication makes his body "sensitive to things" and it feels "like something is crawling all over" his body. AR 61-62. Plaintiff's back pain affects his ability to function because he cannot bend down to pick something up, nor reach high or turn to the side. The low back pain affects reaching on both his left and right arm. AR 62. Other than seeing Dr. Kaleka and the chiropractor, Plaintiff indicated he does not receive additional treatment for his back pain. AR 63. With regard to Plaintiff's foot pain, it is constant. The medication helps by numbing the pain. AR 63-64.

Plaintiff believes his depression is linked to his pain. It affects his ability to function because he "cannot perform the task" and gets angry and frustrated. He cannot concentrate on simple tasks such as passing a message on to another person because when he turns to do so he has forgotten the message. AR 64. When asked to identify the longest period of time that he could focus on an activity, Plaintiff responded "[m]aybe one minute." Afterward, he would get frustrated and "probably throw or smash" something. AR 64-65. Plaintiff does not generally finish a project. He indicated that he gets along well with others. He AR 65.

Plaintiff can sit "straight" for five to ten minutes before he experiences "burning pain." He also assessed a five to ten minute period with regard to his ability to stand. AR 62. He can walk for ten yards before he would need to rest. AR 62-63. With regard to the amount of time he lies down during the day, Plaintiff indicated it is "the whole day" because he is constantly changing positions. AR 65.

When asked how much weight he could lift and carry, Plaintiff replied that he could hold a piece of paper "for a little bit," but it would eventually fall from his hand without his knowledge. Asked about the weight of the bag he was carrying at the time of the hearing, Plaintiff replied that it weighed more than a piece of paper but less than ten pounds. AR 63.

With regard to personal hygiene, Plaintiff indicated he can dress himself when he is not depressed otherwise he tears his clothing. AR 65. He can bathe himself and use the microwave to cook a simple meal. AR 66. He does not help with cleaning the house because he gets angry and wants to smash things; he does not do his own laundry. AR 66. Plaintiff denied any problem with alcohol or illegal drugs. AR 66.

Plaintiff does not watch television, go to the movies, or read for entertainment. He does not work in the yard, nor does he take care of his grandchildren because he cannot take care of himself. AR 67. He occasionally visits with friends or family. He does not attend church because he cannot sit long enough. AR 67. Asked how he spends his day, Plaintiff indicated he spends the whole day shifting his position due to the pain. AR 67. He will lie down for a bit, walk for a bit, sit down, then lie down and rest, and repeat the process throughout the day. AR 67-68.

VE Dachelet was asked to consider hypothetical questions posed by the ALJ. First, the VE was asked to assume a hypothetical worker of Plaintiff's age, education and work history, with the ability to lift and carry fifty pounds occasionally and twenty-five pounds frequently, with the ability to stand, walk and sit for six hours in an eight-hour work day, who can perform simple, routine, one and two-step tasks. AR 68. The VE opined that such an individual would be able to perform sedentary, light and medium work in the regional or national economy. Three examples of available medium work included: packager, DOT 920.587-134, with 16,202 available jobs in California and ten times that many in the nation; line service attendant, DOT 912.687-010, with 55,880 available jobs in California; and cleaner III, DOT 911.687-014, with 25,369 jobs in California, and 666,000 jobs available in the national economy. AR 68-69.

Next, the VE was asked to consider the same hypothetical individual, who was unable to complete an eight-hour work day or forty-hour work week. The VE indicated such a worker would be unable to perform any work in the national economy. AR 70.

Medical Record

The entire medical record was reviewed by the Court. A summary of the reports and treatment notes is provided below.

V. S. Kaleka, M.D.

Plaintiff was treated by Dr. Kaleka from March 16, 2005, through January 9, 2008. Back pain, leg pain, anxiety and depression are all reflected in the progress notes. AR 427-453, 481-488.

Chiropractic Treatment

Treatment notes from Good Chiropractic Care indicate Plaintiff was treated from September through December 2003. AR 397-409, 413-426.

Plaintiff was treated at Universal Chiropractic Care between October 2005 and March 2007. AR 454-462.

From August 2007 through February 2008, Plaintiff was treated at Effective ...


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