The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT
Plaintiff Juan Zaragoza ("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 Dennis L. Beck, United States Magistrate Judge.*fn1
FACTS AND PRIOR PROCEEDINGS*fn2
Plaintiff filed his initial application on August 17, 2005, alleging disability since July 13, 2005, due to a right ankle fracture and back pain. AR 14, 51-56. After the application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 36-40, 44-48. ALJ William C. Thompson, Jr., held a hearing on March 11, 2008, and denied benefits on April 23, 2008. AR 11-25, 226-244. On August 6, 2008, the Appeals Council denied review. AR 6-9.
ALJ Thompson held a hearing on March 11, 2008, in Stockton, California. Plaintiff appeared with his attorney, Sharon Kelly. Vocational expert ("VE") Stephen Schmidt also appeared and testified. An interpreter assisted at the hearing. AR 226.
Plaintiff testified that he was 43 years old at the time of the hearing and completed the sixth grade in Mexico. AR 230. He cannot speak English. AR 230. Plaintiff is married and has two children. AR 231. He last worked on July 13, 2005, when he was working in construction and fell off a roof. AR 233. Plaintiff has had five surgeries on his shoulder, knee and ankle. AR 233. Plaintiff thought that he could walk for a block and stand for 15 to 20 minutes. He also has trouble sitting and using his right side. He thought he could lift a gallon of milk with his right hand, with difficulty. AR234-235. Plaintiff didn't think he could return to a past position as a cannery worker because of his pain and because he cannot stand, walk or sit. AR 238. Plaintiff takes pain medication, with no side effects. He has headaches "all day" and has symptoms of depression for which he sees a psychiatrist. AR 237. He has seen Dr. Hobby twice and was not taking medication for depression. AR 239. Plaintiff explained that he is very stressed, feels desperate and doesn't want to converse with anyone. AR 238.
For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and past work, who could not communicate in English. This person could lift 20 pounds occasionally and 10 pounds frequently, stand and walk in combination for at least six hours and sit for at least six hours. This person could occasionally kneel, crawl and climb stairs, but could not work at heights. This person would also be limited to occasional reaching with the right dominant upper extremity and work involving "relatively" simple instructions. This person would also have "relatively restricted" contact with the public. The VE testified that this person could not perform Plaintiff's past work but could perform the positions of semiconductor worker, assembler and sewing operator. AR 240-241.
If Plaintiff testified truthfully about his limitations, an individual with those limitations could not perform work. AR 242.
Plaintiff's attorney asked the VE consider the three jobs identified and change the six hours of sitting, standing and walking to a preclusion to standing more than two hours per day. The VE testified that this limitation would preclude the semiconductor and assembler positions but would not have any impact on the sewing machine operator position. AR 242. The sewing machine operator position would not be compatible with a sit/stand option, however. AR 242.
Finally, the VE testified that if an individual had the limitations identified by Dr. Hobby, this person could not perform any work. AR 243.
Plaintiff saw Robert M. Cash, M.D., on June 21, 2006. Dr. Cash noted that Plaintiff was having "fairly significant psychological problems," with Plaintiff's wife reporting "significant depression, feelings of worthlessness and mood swings with some violence." Dr. Cash diagnosed persistent polytraumatic injuries with possible post traumatic stress-like symptoms of depression and recommended a psychological assessment. AR 150-151.
In his August 1, 2006, treatment notes, Dr. Cash noted Plaintiff's complaints of persistent feelings of depression and his interest in seeking counseling. AR 146. Dr. Cash believed that Plaintiff would require counseling. Plaintiff continued to be unemployable. AR 147.
Plaintiff saw Amos K. Hobby, Jr., Ph.D., on August 31, 2006. Plaintiff was unable to become physically comfortable in the office and appeared anxious, tearful and upset while relating his industrial injury. He explained that as he fell from the roof, he was afraid he was going to die. Plaintiff was taking Ambien for sleep difficulties, though it was not helping. Plaintiff reported nightmares, headaches, migraines that last all day with no medication for relief, weight loss and regain, lethargy, helplessness, memory problems, ...