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Higgins v. Astrue

June 4, 2010


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



Plaintiff Donald Higgins ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her 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


Plaintiff filed an application for supplemental security income in 1995.*fn3 AR 35, 102. An ALJ issued an adverse decision on September 25, 1996.*fn4 AR 12, 42. During this proceeding, the ALJ determined Plaintiff had a "residual functional capacity for light work with seizure precautions." AR 12.

Plaintiff re-filed his application for supplemental security income on or about June 7, 2005, alleging disability beginning August 1, 2002, due to physical impairments. AR 34. His application was denied initially and on reconsideration. Subsequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 29, 34-35. ALJ James P. Berry held a hearing on May 15, 2007, and issued an order denying benefits on May 24, 2007. AR 12-19, 151-174. On February 27, 2009, the Appeals Council denied review. AR 3-5.

Hearing Testimony

ALJ Berry held a hearing on May 15, 2007, in Fresno, California. AR 151. Plaintiff was represented by attorney Dennis Bromberg. Vocational Expert ("VE") Jose Chaparro also testified. AR 169-171. Plaintiff was born on November 5, 1955. AR 154. He was fifty one years old at the time of the hearing. AR 154. Plaintiff is a high school graduate with some college experience but he did not obtain a college degree. AR 155.

Plaintiff lives with his wife and eighteen year old son. AR 163. His wife is receiving Social Security benefits and has diabetes. AR 163-164. His son is a high school graduate and works part time. AR 164.

Plaintiff's daily activities involve maintaining the house, which includes doing the dishes, sweeping, mopping, vacuuming, dusting, and polishing furniture. AR 164. He also acts as a chauffeur to his wife because she cannot drive. AR 164. Plaintiff has to stop and rest while doing certain chores; for example, Plaintiff can wash dishes for twenty minutes but then needs to take a break. AR 164. Not all of the chores are performed every day. AR 164. The most time Plaintiff spends on chores on a given day is two and a half hours, excluding breaks. AR 165. Plaintiff's only recreational activity is playing cards with friends. AR 165. Plaintiff has no other activities outside the home except visiting sisters, nephews and nieces on Mother's Day, Father's Day, Thanksgiving and Christmas. AR 165.

Plaintiff last worked as a self-employed landscaper from 2000 to 2003. AR 87, 155. His clientele included private residences and commercial businesses. AR 168. His job duties included taking care of lawns, mowing, edging, trimming, pruning, and weeding. AR 168.

Prior to that time, Plaintiff was a stay at home father, raising his son. AR 155-156. Plaintiff ceased his self-employment after having a heart attack. AR 156. Since that time, Plaintiff suffers from twenty-four hour chest pain. AR 156-157. The pain gets worse when Plaintiff performs tasks that causes his heart rate to increase such as cleaning the house. AR 157. Plaintiff described the pain as "getting a thrust punch in [his] chest." AR 157. Mental stress also aggravates the pain; Plaintiff described the hearing with the ALJ to be "[u]ncomfortable." AR 158.

Six months after his heart attack, Plaintiff attempted to work in landscaping for Bianci Vineyards, but he was unable to keep up. AR 158. Whenever his heart rate would increase he had to take a break, causing him to take twice as long to complete a job. AR 158. His employment with Bianci Vineyards lasted roughly three months. AR 158. He claimed he could not push a lawn mower or turn it like he used to. AR 166. His employers noticed and recommended that he stop. AR 166. Plaintiff felt that his low energy levels and the chest pain were his biggest problems. AR 166.

Plaintiff also suffers from a seizure disorder requiring him to take Phenobarbital and Dilantin. AR 159. This last seizure occurred twelve years ago. AR 159. In response, Plaintiff's cardiologist told him to cut back on his smoking and not to engage in activities that required physical exertion. AR 159. However, Plaintiff still smokes five cigarettes a day which is a reduction from the two packs of cigarettes per day he previously smoked. AR 159-160.

Plaintiff also suffers from constant back pain which originates roughly an inch above his waistline and travels straight up his back to the top of his neck. AR 160. It is a shooting pain that is aggravated by "[a]ny lifting," and any sudden movements. AR 161. Plaintiff had back surgery in 1990. During this procedure, the surgeon filed off parts of swollen discs to relieve pressure "on the nerve." AR 163. However, Plaintiff claims the surgery was not helpful. AR 163.

When asked how much he could lift without hurting himself, Plaintiff responded that he could only lift a half gallon of milk. AR 161. Lifting an entire gallon required both hands, and he could only carry it a short distance, such as from "the shelf to the basket." AR 161. Plaintiff stated he has difficulty raising his left arm. AR 167.

Plaintiff's back pain is aggravated by cold and rainy weather which causes shooting pain down his left leg into his left foot. AR 161. He also feels shooting pain down his leg when he walks, or "overwalk[s]." AR 162. "Overwalking" is walking over half a mile. AR 162. When Plaintiff walks, he usually takes a break halfway through. AR 167.

Plaintiff is able to stand for approximately three hours in an eight hour period. AR 167. However, he experiences shooting pain in his legs after standing for more than fifteen to twenty minutes. AR 162. He is able to sit without experiencing pain as long as he sits "all the way back," and does not lean forward all the way. AR 162. Plaintiff is able to sit for long periods as a long as he puts pressure on his back. AR 162. The total amount of time Plaintiff can sit is four hours. AR 167.

Plaintiff takes 800 milligrams of Ibuprofen three times a day to help with the back pain. AR 162. The Ibuprofen does not erase the pain completely, but "just slows it down." AR 163. Plaintiff also takes 700 milligrams of aspirin every six hours for his heart and pain. AR 167. Other medications include Plavix, Lipitor, and Enemal in addition to the Phenobarbital and Dilantin. AR 167. None of the medication Plaintiff takes gives him any side effects. AR 163.

VE Chaparro also testified at the hearing. AR 169. The VE indicated that Plaintiff's past job as an industrial/commercial groundskeeper was unskilled medium work. AR 169. ALJ Perry asked the VE to consider a hypothetical worker of Plaintiff's age, education, and past relevant work with combinations of severe impairments and retention of a residual functional capacity to occasionally lift and carry twenty pounds, and ten pounds frequently. AR 170. The worker could also stand, walk, and sit for six hours. AR 170. In addition, the worker must avoid exposure to unprotected heights and dangerous moving machinery. AR 170. When asked whether this worker could perform the Plaintiff's past work, VE Chaparro stated that he could not. AR 170. However, he could perform other jobs within the national economy that required light and unskilled work such as: cashier II; fast food worker; and office helper. AR 170. There are 23,200, 33,500, 4,200 of those jobs, respectfully, in California; and 205,900, 384,600, and 32,900 of those jobs, respectively nationally. AR 170.

In a second hypothetical, the VE was asked to assume the same factors as the first hypothetical, but to assume this worker could lift and carry approximately eight pounds. AR 170-171. The worker could also sit for four hours, stand for three, and walk approximately one mile. AR 171. When asked whether this worker could perform the Plaintiff's past relevant work, VE Chaparro stated that he could not. AR 171. VE ...

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