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Leach v. Astrue

July 1, 2010

TED LEACH, 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 Ted Leach ("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 May 5, 2004, alleging disability beginning February 1, 1993. AR 63-65. His application was denied initially (AR 25-29) and on reconsideration (AR 32-37); thereafter Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 38. ALJ Patrieia Leary Flierl held a hearing on October 25, 2006 (AR 455-486) and issued an order denying benefits on February 22, 2007. AR 8-18. Plaintiff requested a review of the hearing (AR 19) and the Appeals Council denied review. AR 5-7.

Hearing Testimony

ALJ Flierl held a hearing on October 25, 2006, in Fresno, California. Plaintiff appeared and testified. He was represented by attorney Melissa Proudian. Vocational Expert ("VE") Judith Najarian also testified. AR 455-486.

Plaintiff was born on November 21, 1959. He is 47 years old. AR 457. He is six feet tall, weighs 239 pounds, and is right handed. AR 458. Two to four years ago he weighed 200 pounds. The increase in weight is due to medication, depression, and anxiety. AR 458. Plaintiff is not married. AR 458. He has a 15-year old son, who was put in long term foster care. AR 458, 477. He took parenting classes, participated in rehabilitation, and is seeking parental reunification rights. AR 477-478.

When asked about where he lives, Plaintiff testified that he lost his home because he could not pay the mortgage. AR 464-465. He has been staying with friends and living in his car for one and a half years. AR 459, 465. Plaintiff has a cellular telephone and a post office box. AR 458-460. He has a valid California driver's license, and he drives a little bit every day to move his car around. AR 460.

Plaintiff graduated from high school. AR 460. In 1980 and 1981, he attended Fresno City College but did not complete any units. AR 460. He withdrew because his of his brother's "major criminal case." AR 460. He has had no other educational or vocational training. AR 461.

In a typical day, Plaintiff runs errands, reads, and sits at the park. AR 465. He bathes himself every day or every other day. AR 465. Stover Springs lets him use their kitchen and bathroom, or he goes to the gym at Fresno State. AR 465. He likes to fish but has not fished for two to three years. AR 465.

When asked about his work history, Plaintiff indicated that he last worked for about ten days in 2001, performing handyman services such as painting and construction work. AR 461. He was laid off because he could not do the work. AR 461. As a handyman, he had to lift 40 to 50 pounds. AR 461.

In 1993, Plaintiff did shipping and receiving work at a warehouse. AR 462. The warehouse work was part time through a temporary agency. AR 462. He was injured on the job and settled a workers' compensation case. AR 462, 473. He did 14 to 16 weeks of rehabilitation and physical therapy and went back to construction. AR 473-474. He hurt his back again but did not have another workers' compensation case. AR 473. He did not have an attorney nor did he obtain any settlement. AR 474. Plaintiff did not remember working in 1992. AR 475.

In 1990 and 1991, Plaintiff did some piece work in construction, such as roof sheeting and fascia. AR 461, 474. Before that, construction work was sporadic. AR 461. He has always done construction or something related to construction. AR 461. He also worked at Denny's. AR 461. Between 1985 and 1990, Plaintiff worked off and on because he "couldn't find any work" and "didn't have all the tools." AR 475. He was paid by check but his bosses weren't paying Social Security. AR 475.

Plaintiff is not working now. AR 461. His source of income is general relief and he also receives food stamps. AR 470. Plaintiff cannot work because of his back and knees, and because he has problems concentrating and remembering things. AR 462. He also has bad headaches, muscle spasms, and cramps. AR 463. Plaintiff's back has been "messed up" since 1993. AR 461. The pain affects his ability to sit and stand. He can sit in a chair for about 15 to 20 minutes, then he has to get up and walk around. AR 468. He can stand for approximately 20 minutes. AR 468. He can walk for about 15 or 20 minutes out of an hour. He can walk about a block before he has to stop. AR 468. He can lift up to 10 pounds without pain. AR 469.

When asked about his ability to concentrate and focus his attention, Plaintiff stated that it varies from day to day depending on stress and what he has to do. AR 469. On his worst day, the longest he can concentrate is 30 minutes. Then he has to take a break for 10 to 15 minutes to try and remember what he was doing and why. AR 469. His problems concentrating are because of attention-deficit hyperactivity disorder (ADHD). AR 469. Plaintiff indicated he would not be able to concentrate for successive 30-minute periods, with breaks in between, during an eight hour day. AR 470.

Plaintiff was diagnosed with posttraumatic stress disorder (PTSD). AR 480. He is severely depressed most of the time. AR 464. When he is depressed, he does not want to see or talk to anybody. He isolates himself. AR 464. His depression makes him unable to focus. AR 471. He has suicidal thoughts once or twice per month. AR 471.

Sometimes when Plaintiff is by himself, he hears the voices of a man, woman, or child. AR 466. They call his name and say certain things, but he cannot quite make out what they are saying. AR 466. This happens a couple times per week. AR 466. When it does happen, Plaintiff takes his medication and listens to the radio on his headphones. AR 466.

When Plaintiff is around large groups of people in an enclosed room, he withdraws and has anxiety attacks. AR 472. This happens two to three times per week. AR 472. They are relieved by leaving the area where he is. AR 473. He also has panic attacks once every two or three days, caused by nightmares. AR 472.

Fresno County Mental Health treats Plaintiff for depression, anxiety, and stress, which affect his ability to function. AR 463. He started treating there a little over two years ago. AR 479-480. Plaintiff had mental health problems before but never received treatment. AR 480. He "pretty much grew up with [depression]." AR 463.

Plaintiff takes 200 milligrams of Zoloft and 100 milligrams of Elavil every night for depression. AR 467. They help "somewhat." AR 471. He takes Tramadol, Gabapentin, and Naproxen for pain several times per day. AR 467-468. When he takes the pain medication, it takes away the pain for "a couple of hours." AR 467-468. He also takes Methocarbamol for muscle relaxation, Lipitor for high cholesterol, and Triamterene for high blood pressure. AR 467. Side effects of the medication include buzzing and ringing in his ears, blurry vision, dizziness, drowsiness, muscle spasms, cramps, and shooting pains. AR 466-468.

Dr. Chu is Plaintiff's mental health treating source. Plaintiff sees him for prescriptions of Zoloft and Elavil every two to three months. AR 471. He has told Dr. Chu about the voices he hears several times. AR 471. The doctor said that the medications can only help so much and that he cannot up the dosage because Plaintiff is taking the maximum dosage of each drug. AR 472.

Plaintiff was treated for abuse of alcohol and marijuana. He went through a rehabilitation program. AR 463, 477. He is not currently being treated for alcohol or drug abuse, and his last drug test was one and a half years ago. AR 464. He does not do illegal drugs, and the last time he had marijuana was months or years ago. AR 464, 476. The last time he had alcohol was the previous weekend. He drank two beers at a friend's barbecue. AR 464. He drinks one to two beers every one to two weeks, and at most a beer each day. AR 464, 476. When Plaintiff is not drinking alcohol, the symptoms of his depression do not change. AR 464.

VE Najarian testified that Plaintiff's previous work as a warehouse laborer was considered a heavy physical demand, unskilled (AR 481), the short order cook is light, semi-skilled (AR 480), and construction is heavy, semi-skilled. AR 482. VE Najarian was asked to consider a hypothetical individual of Plaintiff's age, education, and vocational background, who is able to do sedentary work with occasional climbing, balancing, crouching, crawling, and stooping, and is further limited to simple repetitive tasks. AR 482. The VE indicated that this hypothetical individual could perform sedentary skilled work, of which there are 134 job titles corresponding to about 80,000 jobs in California. AR 483. She offered examples including: assembler, 5,317 jobs in California; almond blancher, 6,650 jobs in California; and nut sorter, 1,770 jobs in California. AR 484. Approximately nine times this number of jobs exist in the national economy. AR 484.

VE Najarian was asked to consider a second hypothetical individual of Plaintiff's age, education, and vocational background, who is able to do light work with occasional balancing, crouching, and crawling, and is further limited to simple repetitive tasks. AR 482. The VE indicated that such an individual could not perform any of Plaintiff's past relevant work. AR 484. She further indicated that this hypothetical individual could perform 1,571 job titles corresponding to about 741,036 jobs in California. AR 484-485. She offered examples including: small products assembly, 33,232 jobs in California; hand washer, 32,508 jobs in California; and bottle line attendant, 31,055 jobs in California. AR 485. Approximately nine times this number of jobs exist in the national economy. AR 485.

Finally, VE Najarian was asked to consider a third hypothetical individual, as posed by Plaintiff's counsel, with the same vocational factors as in the first hypothetical, with the added non-exertional limitation that he could not consistently show up to work every day due to severe mental impairments, and therefore possibly could not complete a full work week. AR 485. VE Najarian indicated that no work would be available to such an individual. AR 485.

Medical Record

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


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