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Hill v. Astrue

July 13, 2010

CHRIS E. HILL, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Chris E. Hill ("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.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed his application on June 8, 2006, alleging disability since March 31, 2006, due to herniated disc in lower back, fused discs in neck, nausea, vomiting, vertigo and asthma. AR 111-17, 147. After Plaintiff's application was denied initially and on reconsideration, he requested a hearing before an Administrative Law Judge ("ALJ"). AR 75-78, 82-86, 87. On August 29, 2008, ALJ Michael J. Haubner held a hearing. AR 20-62. He denied benefits on November 17, 2008. AR 6-16. The Appeals Council denied review on May 27, 2009. AR 1-3.

Hearing Testimony

ALJ Haubner held a hearing in Fresno, California, on August 29, 2008. Plaintiff appeared with his attorney, Rosemary Abarca.*fn2 Vocational expert ("VE") Judith Najarian also appeared and testified. AR 22.

Plaintiff testified that he was born in 1946. AR 29. He graduated from high school and has a bachelor's degree in criminal justice. He has a medical retirement for back injuries and a regular retirement. He was a full-time peace officer with the Kern County Sheriff's Department, was injured, and retired. The other retirement is from the Kern County District Attorney's Office Special Investigation Unit. AR 30.

Plaintiff has a driver's license with no restrictions. He drives an automatic car and has an automatic truck. On average, he drives two times a day. AR 30-31.

Plaintiff lives in a house with his wife, a 15-year-old son and a 24-year-old son. His wife does not work. She is disabled, but not receiving any benefits. She is physically ill. His sons are not on disability. The 15-year-old is in school. The 24-year-old just got out of the Army and started college. AR 31-32.

Plaintiff is able to care for his personal needs most of the time. He sometimes needs help putting on his shoes and pants. In the last six months, he needed help about 10 days. It is typical, in a six-month period, that he needs help about 10 times. AR 32-34.

Plaintiff testified that he does a little bit of yard work. He mows the lawn two or three times a month. He does not weed or water. He walks behind the mower, which is self-propelled. He does not make the bed or change the sheets. He takes out the trash once every three or four days. He does not sweep or vacuum. He does not clean the kitchen or the bathrooms. He talks on the phone every other day. He does not cook. He prepares simple meals once a week. He does not clean up after himself or do dishes. He does not mop or dust. He does not do laundry or grocery shopping. He shops for non-grocery items about twice a month. He goes to church or a place of worship three times a month. He does not go to any of his son's school functions. He does not help with homework. His hobby is "ESPN." He watches TV every day for an average of two and a half hours. He reads the paper every morning for 15 minutes. He does not exercise on a regular basis. AR 34-37.

Plaintiff testified that his back condition has stayed the same. He is not fully compliant with his treatment and medications. He misses some of the medications. AR 38. He was on a home exercise program, but did not do it. AR 38-39.

Plaintiff wears glasses when he is driving and reading. There is no restriction on his driver's license. The glasses correct his vision to 20/20. AR 39.

Plaintiff testified that he has Meniere's disease. Dr. Bush told him that about two years ago. AR 40-41.

Plaintiff can carry about 40 pounds. He has difficulty bending or stooping. He avoids it. He did not think he could bend or stoop two hours out of eight. He can stand 10 to 15 minutes at one time before he has to sit down and rest. He can sit about 10 to 15 minutes at one time before he would have to get up. He can walk one or two blocks before he has to rest. He has to elevate his feet or lie down for about two hours total in an eight hour day. AR 41-43.

The VE responded to questions from the ALJ. The VE testified that Plaintiff's past relevant work as a District Attorney investigator combined two classifications. Putting the two classifications together, it was medium, skilled, SVP seven. Lifting 50 pounds was consistent with the combined classification. AR 45-46.

In regard to Plaintiff's past work as an ag inspector, the VE testified that there was a classification of inspector/grader, ag, in the DOT as medium. It is a seasonal job and is unskilled with a two. Lifting of 50 pounds was consistent with the medium classification. AR 46.

The VE testified that Plaintiff would have gained skills in his past relevant work, including knowledge of how to locate and appropriately interview people, gather facts and document them, verbal and written communication skills, being observant, examining data, knowledge of how to do background checks, serving papers, knowledge of arrest procedures and weapon use and safety. AR 47. Plaintiff had to maintain handgun proficiency in the DA investigative job and had to qualify three times a year. The VE testified that this was consistent and there was transferability to other jobs. AR 47-48.

The ALJ asked the VE to assume for each hypothetical a person of the same age, education and work background as Plaintiff. For the first hypothetical, based on the August 2006 consultative examination, the ALJ asked the VE to assume a person who could stand and walk at least six hours out of eight and could sit eight hours out of eight. This person did not need an assistive device. This person could lift and carry 50 pounds occasionally, 25 pounds frequently. This person did not have limitations on bending, stooping, crouching, handling, feeling, grasping or fingering and frequently could do them. This person was limited to occasional overhead reaching. This person did not have any visual, communicative or environmental limitations. The VE testified that this person could do Plaintiff's past relevant work as an investigator and an ag inspector. AR 48-49.

In the alternative, the VE testified that there would be other work that this person could do with little or no vocational readjustment. One example would be a processor, which happens to be light, semiskilled. After reduction, there would be 5,467 jobs in California and about nine times that in the United States. Another example where transferable skills would be used, is an alarm investigator or shopping investigator, which are light and semiskilled. There are 4,894 jobs in California and nine times that in the United States. A third example using transferable skill would be a gate guard, like in security, which is light and semiskilled. There is no reduction. There are other titles in this category that also fit, such as a merchant patroller or airline security. There are 71,917 jobs in California and nine times that in the United States. AR 49-50.

For the second hypothetical, based on the residual functional capacity assessment of August 2008, the ALJ asked the VE to assume a person who could lift and carry 50 pounds occasionally, 25 pounds frequently, could stand and/or walk about six hours out of eight and could sit about six hours out of eight with normal breaks. This person had unlimited ability to push and pull. This person frequently could climb ramps and stairs, but never ladders, ropes or scaffolds. This person frequently could balance, stoop, kneel and crouch and occasionally could crawl. This person had limited ability to reach and should avoid overhead work. This person had limited near/far acuity and depth perception, resulting in the avoidance of fine detailed work, constant close work and the need for precision and depth perception. This person also should avoid concentrated exposure to heights and should avoid heights, moving machinery and situations of jeopardy due to intermittent vertigo. The VE testified that this person could not perform Plaintiff's past work as a DA investigator or an ag inspector. AR 50-51.

This person could perform other work, such as the process server with the same numbers. This person also could do the alarm/shopping investigator work with the same numbers. This person could be a gate guard, but some of the other titles would have to be reduced. There were six titles in the classification and only two of the six fit the hypothetical, which is a one-third reduction. There would be 23,972 jobs in California with about nine times that in the US. AR 52-53.

For the third hypothetical, the ALJ asked to VE to assume the same person as in hypothetical two, but without the vision limits. The VE testified that this person could not perform Plaintiff's past relevant work. As for other work, this person could perform the same jobs identified in hypothetical two. Without the visual limitation, the numbers would be the same as for hypothetical one. AR 53-54.

For the fourth hypothetical, based on the August 2006 consultative psychological examination, the ALJ asked the VE to assume a person who is able to understand, carry out and remember simple instructions. This person would be able to respond appropriately to co-workers, supervisors, and the public. This person would be able to respond in usual work situation and could deal with routine work settings. This person had some difficulty with social functioning and had some ...


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