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Jaime v. Astrue

June 1, 2010

JUAN JOSE JAIME, 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 Juan Jose Jaime ("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 October 26, 2005, alleging disability beginning May 2, 2003. AR 85-91. His application was denied initially (AR 25-29) and on reconsideration (AR 31-36), thereafter Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 39. ALJ Christopher Larsen held a hearing on February 28, 2008 (AR 440-470), and issued an order denying benefits on April 12, 2008. AR 5-13. Plaintiff requested a review of the decision (AR 81-82) and on January 6, 2009, the Appeals Council denied review. AR 1-4.

Hearing Testimony

ALJ Larsen held a hearing on February 28, 2008, in Fresno, California. Plaintiff appeared and testified. Plaintiff was represented by attorney Sengthiene Bosavanh. Vocational Expert ("VE") Thomas Dachelet also testified. AR 440-470.

Plaintiff was born January 27, 1956. AR 446. He is 5' 8", weighs 200 pounds, which is his normal weight, and is right-handed. AR 447. He is not married. AR 446. He lives with his sister and brother-in-law. AR 447. Plaintiff has completed the ninth grade and can read and write in English. AR 448. He has not obtained a GED. AR 449. Plaintiff no longer has a valid driver's license, but did have one in 2001. He takes the bus to get around more than three to five times per week. AR 448.

Plaintiff was last employed as a stacker at Foster Farms in 2003. He stacked boxes and baskets that weighed between 40 and 70 pounds each, "pretty much all day" for approximately one and a half months. AR 450-451. Plaintiff stopped working at Foster Farms because he was injured. He cannot return to that job because of the injuries to his back and legs. AR 450. Before that, Plaintiff did construction work for Continental Agency, working there for approximately one and a half years before being laid off. AR 451.

When asked what is keeping Plaintiff from working, he cited pain in his back, neck, and legs, and diabetes. AR 452. The pain is constant but can get worse when he sits or stands for a long period of time. AR 452-453. Plaintiff is taking medication, which alleviates some of the pain. AR 452. Plaintiff's doctor told him to do exercises but he does not do them because they are "kind of hard." AR 453. Dr. Chauhan*fn3 prescribed a cane for Plaintiff but he forgot it on a bus approximately five months ago. He did not ask his doctor for another one because he thought the doctor would get mad. AR 453-454. Plaintiff was prescribed Naprosyn for inflammation in his back but he could not take it because it made him feel dizzy and anxious. AR 454.

Plaintiff can stand for 30 minutes before needing to take a break. AR 455. He can stand for approximately two hours total and sit for approximately three hours total in an eight-hour day. AR 455-456. Plaintiff must lie down or put his feet up approximately every 30 minutes, for approximately three hours total each day. AR 456-457. He can lift 10 to 15 pounds with his hands, but probably only once each day. AR 457.

Plaintiff has migraine headaches that keep him from working and make it difficult to concentrate. AR 458-459. These headaches occur all the time, but he does not take medication for them. AR 459. Once Plaintiff's ear started bleeding from the headaches. AR 459. He still gets a pain in his ear approximately every two days. AR 464. Plaintiff experiences anxiety attacks where he becomes weak and sweats. These attacks have occurred four or five times in the last one and a half years. AR 459-460. Plaintiff can concentrate for 10 to 20 minutes before losing his attention. AR 460-461. Stress is a problem for him. AR 461. Plaintiff indicated that he used to have friends before he stopped working. AR 462.

Plaintiff does not cook; his sister does the cooking. He washes his own dishes. AR 462. Plaintiff has less energy now than before he got injured. He used to enjoy fishing and watching television but does not fish any longer and cannot watch more than 20 minutes of television. AR 463. Plaintiff also has problems sleeping, averaging three to four hours per night. AR 464.

VE Dachelet testified that Plaintiff's previous work as a farm laborer in 1998 and 1999 is medium, unskilled. Plaintiff's work at Foster Farms is medium, unskilled. Construction work is very heavy, unskilled. AR 465.

VE Dachelet was asked to consider a hypothetical worker of Plaintiff's age, education, and work experience, who can lift and carry 20 pounds occasionally and 10 pounds frequently, stand and walk a total of six hours and sit a total of six hours in an eight-hour day, occasionally climb, stoop, kneel, crouch, and crawl, and frequently balance. VE Dachelet indicated that this hypothetical individual could not perform any of Plaintiff's past work, but could perform the entire world of sedentary and light, unskilled jobs. AR 466. Examples of light unskilled jobs are: bagger, 31,756 jobs in California; and garment sorter, 33, 983 jobs in California. A total of 835, 661 jobs exist in California at the light, unskilled level. AR 467.

VE Dachelet was asked to consider a second hypothetical worker of Plaintiff's age, education, and work experience, who can stand and walk a total of two hours and sit a total of three hours in an eight-hour day. VE Dachelet indicated that such an individual, in the absence of any other limitations, could not perform Plaintiff's past work or any other work found in the national economy. AR 467-468.

VE Dachelet was asked to consider a third hypothetical worker of Plaintiff's age, education, and work experience, who cannot maintain attention and concentration consistently throughout an eight-hour workday due to any reason. VE Dachelet indicated that all work is closed to such an individual. AR 468.

VE Dachelet was asked to consider a fourth hypothetical worker, as posed by Plaintiff's counsel, who can only move his neck 50 percent of the time because of pain. VE Dachelet indicated that all work is closed to such an individual. AR 468.

Medical Record

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

Charles O. Lewis, M.D.

On May 29, 2003, Plaintiff was seen by Charles O. Lewis, M.D. at Concentra Medical Centers for a follow-up appointment after injury to his back while lifting boxes on May 2, 2003. Dr. Lewis noted that lumbar strain is improved, recommended to continue physical therapy, and advised no lifting over 25 pounds. AR 186-188.

Robert L. Jones, D.C.

On August 19, 2003, Plaintiff was seen by Robert L. Jones, D.C. at Fresno Spine & Sport for complaints of back pain and headaches. Dr. Jones' exam indicated tenderness and decreased range of motion at the cervical and lumbar spines, and tenderness with no decreased range of motion at the shoulders. Dr. Jones diagnosed cephalgia, cervical and lumbar strain/myofibrosis, and segmental dysfunction of the cervical and lumbar spines. Treatment included ultrasound, electrical stimulation, intersegmental traction, myofascial release, neuromuscular re-education, therapeutic exercise, and chiropractic manipulation. AR 166-170.

On September 26, 2003, Dr. Jones issued a follow-up report, which stated that Plaintiff feels better after his therapy, is able to get a good night's sleep, and is able to perform daily living activities with more ease. Dr. Jones also stated that Plaintiff's pain levels are steadily decreasing, his ranges of motion are increasing, and he would benefit from a work conditioning program. AR 157-158.

Radiological Imaging

On July 20, 2003, Plaintiff underwent an MRI of his cervical and lumbar spine at Executive Imaging due to complaints of pain in his neck and lower back. The cervical spine MRI showed moderate protrusion of the discs and narrowing of the neural foramina at multiple levels, and disk desiccation and mild central stenosis at the C5-6 level. AR 151-153. The lumbar spine MRI showed central stenosis, disk protrusion, and narrowing of the neural foramina at multiple levels, and disk desiccation at the L2-L3 level. AR 154-156.

On November 6, 2004, Plaintiff underwent an MRI of his cervical and lumbar spine at Advanced Radiology. The cervical spine MRI revealed disc protrusions at several levels and disc bulging at level C6-7. AR 257-259. The lumbar spine MRI revealed disc protrusions and annular tears at levels L4-5 and L5-S1, and disc bulging at level L3-4. AR 260-263.

On March 3, 2007, Plaintiff underwent an MRI of his lumbar spine at Advanced Radiology. The MRI revealed congenital stenosis of the thecal sac and disk bulging, neural foraminal narrowing, and annular tears at several levels. AR 364-367.

Sanjay J. Chauhan. M.D.

On July 18, 2003, neurologist Sanjay J. Chauhan, M.D. performed an initial neurological evaluation of the Plaintiff. Plaintiff complained of neck pain and lower back pain. Dr. Chauhan diagnosed Plaintiff as having lumbar strain with radiculopathy and cervical strain. Prescriptions were given for Soma and Vicodin. Plaintiff was considered temporarily totally disabled until August 27, 2003. AR 323-330.

On July 21, 2003, an electrodiagnostic study was negative for lumbar radiculopathy. AR 319-322.

On February 10, 2004, Dr. Chauhan cleared Plaintiff to take GED classes at ...


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