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Morinskey v. Astrue

March 19, 2010

DONALD H. MORINSKEY, 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 Donald H. Morinskey*fn1 ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits pursuant to Title II 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.*fn2

FACTS AND PRIOR PROCEEDINGS*fn3

Plaintiff filed an application on or about August 14, 2007, alleging disability since October 1, 2002.*fn4 AR 79-80. His application was denied initially and on reconsideration. AR 37-48, 55-61. Thereafter, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 61. ALJ Stephen W. Webster held a videoconference hearing on July 1, 2008 and issued an order denying benefits on August 22, 2008. AR 9-16, 17-36. On September 25, 2008, the Appeals Council denied review. AR 1-4.

Hearing Testimony

ALJ Webster held a videoconference hearing on July 1, 2008, in Fresno, California. AR 17-36. Plaintiff appeared in Bakersfield and was represented by Diana Wade, a non-attorney representative. AR 17-36. Vocational Expert ("VE") Cheryl Chandler also appeared and testified at the hearing. AR 17-36.

Plaintiff was born on September 9, 1950. AR 21. He is not married and has one adult child. AR 21. Plaintiff lives in a mobile home with his mother and currently receives food stamps. AR 21, 25-26. He holds a valid driver's license and is able to drive. AR 21.

Plaintiff is able to take care of his personal grooming needs such as showering, shaving, and getting dressed without any assistance. AR 21-22. He is also able to do chores around the house such as doing laundry and painting. AR 22. Plaintiff performs some work in the yard; he keeps his residence presentable by raking leaves and watering the bushes. AR 22.

Plaintiff watches television "quite a few" hours a day, but does not read much or spend anytime on a computer. AR 22. He also does not go to the movies, visit any friends or family, but he is able to attend church. AR 23.

Plaintiff attended school for nine years. AR 23. The highest grade he completed was either the eighth or ninth grade and he did not obtain a GED. AR 23. He was also never in the military. AR 23. Plaintiff completed truck driving school in 1991, but he does not currently hold a "class A" license for driving trucks. AR 24. Plaintiff is eligible to reapply for a license, however, he does not want to because he does not "seem responsible." AR 33. Plaintiff explained that he caused three single vehicle accidents in a one month period of time in 2002 due to his poor judgment and his difficulty staying awake at the wheel. AR 33-34. No drugs or alcohol were involved in these accidents. AR 33.

Plaintiff has not worked for pay since 2002, but he had attempted to return to work until September, 2005. AR 25. Plaintiff was under the belief that his claim for disability started in 2002 when he began treatment for mental health problems at College Community Services. AR 25. However, he amended his date of disability to September 9, 2005 after his representative noted he began treatment at College Community Services on August 11, 2005. AR 25.

Plaintiff has had some trouble with the law. As a juvenile, he had been to jail "on and off." AR 23-24. As an adult, Plaintiff went to prison in 1987 and was released in 1991 for a violent crime. AR 24, 30. He also was charged with driving under the influence a "couple" of times when he was approximately nineteen or twenty years old. AR 24.

Plaintiff suffers from many ailments. He has back pain and problems with his neck, jaw and his left elbow. AR 26. He currently receives treatment for some of these conditions at Kern Medical Center. AR 26. He is also receiving treatment for Hepatitis C. AR 26. Plaintiff testified that he has been to Kern Medical Center a few times over the past couple of years; three times for his elbow and once for his hepatitis. AR 26. He also has received treatment for a hernia and some psychological problems, but he could not remember the year he received treatment. AR 27.

Plaintiff feels pain in his jaw and neck; his jaw is "always clinched real tight" due to his nervousness and anxiety. AR 27. He also feels pain down his leg almost all the time because of his back. AR 27. In addition, his elbow limits his ability to function. AR 27. Plaintiff testified that "anything" he does, such as washing a window, causes his elbow to "swell up" and get ...


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