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Rojas v. Astrue

August 11, 2010

RUDY ROJAS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

(Doc. 1)

INTRODUCTION

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his application for Supplemental Security Income ("SSI") pursuant to Title XVI of the Social Security Act (the "Act"). 42 U.S.C. §§ 405(g), 1383(c)(3). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1

FACTUAL BACKGROUND

Plaintiff was born in 1965, has completed an eighth-grade education, and can read and write. (AR 54.) Plaintiff last worked in 2003 in a packing house where he lifted boxes and operated a machine to destroy them. (AR 54-55.) Plaintiff has had diabetes for 15 years; he stepped on a nail in 2005, causing an infection in his right foot. (AR 56.) Plaintiff's wound never healed, and his toes and part of his foot were amputated in November 2007; Plaintiff was prescribed a wheelchair. (AR 57-58.)

On January 20, 2006, Plaintiff filed an application for SSI, alleging disability beginning on May 2, 2004, due to diabetes, foot infection, and back pain. (AR 128-34, 150.) On July 17, 2006, Dr. M. O. Nawar, a state agency physician, assessed Plaintiff's physical residual functional capacity ("RFC "). (AR 212-16.) The doctor opined that Plaintiff could occasionally lift and/or carry up to 20 pounds and frequently up to 10 pounds. He could (1) stand and/or walk for a total of about six hours in an eight-hour workday; (2) sit for about six hours in an eight-hour workday; and (3) perform unlimited pushing and/or pulling. (AR 213.) Dr. Nawar determined that Plaintiff could frequently balance, kneel, crawl, and climb ramps and stairs, but never ladders, ropes, or scaffolds. (AR 214.) He could occasionally stoop and crouch. (AR 214.) Plaintiff had no manipulative, visual, or communicative limitations. (AR 214-15.) Because of Plaintiff's limitation due to back pain, he was to avoid concentrated exposure to hazards such as machinery and heights. (AR 215.)

On February 17, 2007, Dr. Damania, an internist, performed a consultative examination of Plaintiff. (AR 246-49.) Dr. Damania's diagnoses included insulin-dependent diabetes mellitus, hypertension, and a diabetic right foot. (AR 248-49.) After examining Plaintiff and reviewing his medical records, Dr. Damania's functional assessment of Plaintiff was as follows: "[Plaintiff] should be able to walk perhaps only two hours. There are no restrictions for sitting. No assistive device necessary." (AR 249.) "He should be able to lift 20 pounds occasionally and 10 pounds frequently." (AR 249.) "There are no postural limitations. There are no manipulative limitations. There are no visual or communicative limitations. Workplace environmental limitations would include climbing, balancing, prolonged standing, and prolonged walking." (AR 249.)

On March 2, 2007, Dr. L. V. Bobba, another state agency physician, assessed Plaintiff's physical RFC. (AR 250-54.) Dr. Bobba opined that Plaintiff could (1) occasionally lift and/or carry up to 20 pounds and frequently up to 10 pounds; (2) stand and/or walk for a total of at least two hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; and (4) perform unlimited pushing and/or pulling. (AR 251.) Dr. Bobba also determined that Plaintiff could frequently stoop, kneel, and crouch, and could occasionally climb, balance, and crawl. (AR 252.) Plaintiff had no manipulative, visual, or communicative limitations, but was to avoid uneven terrain. (AR 252-53.)

On December 17, 2007, one month after Plaintiff's surgical amputation, Dr. Srinivasan, a resident internist, completed a "Medical Source Statement of Ability to Do Work-Related Activities (Physical)" form.*fn2 (AR 335-41.) Dr. Srinivasan opined that Plaintiff could (1) lift and carry ten pounds occasionally, (2) sit three hours at one time for a total of two hours in an eight-hour workday, (3) stand three hours at one time for a total of one hour in an eight-hour workday, and (4) walk one hour at one time for a total of one hour in an eight-hour workday. (AR 335-36.)

Dr. Srinivasan also stated that Plaintiff had to use crutches to walk. (AR 336.) Plaintiff could occasionally operate foot controls with both feet. (AR 337.) Plaintiff could never (1) climb stairs, ramps, ladders, or scaffolds, (2) balance, (3) stoop, (4) kneel, (5) crouch, (6) crawl, (7) work at unprotected heights or around moving mechanical parts, or (8) operate a motor vehicle. (AR 338-39.) Plaintiff was also to avoid (1) humidity and wetness, (2) dust, odors, fumes, and pulmonary irritants, (3) extreme cold, (4) extreme heat, (5) vibrations, and (6) moderate office noise. (AR 339.) Additionally, Plaintiff could not (1) shop, (2) travel without a companion, (3) walk a block on uneven terrain, (4) use public transportation, or (5) climb a few steps with the use of a single hand rail. (AR 340.)

The Commissioner denied Plaintiff's application initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 77- 98, 100-05.) On December 18, 2007, ALJ Christopher Larsen held a hearing. During the course of the hearing, the ALJ asked a vocational expert ("VE") the hypothetical question of whether a person could perform any jobs in the national economy if he were of the same age, education, and work experience as Plaintiff and (1) could lift and carry 20 pounds occasionally and 10 pounds frequently; (2) could stand and walk a total of two hours per day; (3) could sit for six hours per day; (4) could never climb ladders, ropes, or scaffolds; and (5) had to avoid concentrated exposure to hazards. (AR 66.) The VE testified that such an individual could perform the jobs of semi-automatic sewing machine operator, ticket seller, and tacking machine operator, which are all light*fn3 and unskilled work. (AR 67-69.) If such an individual were restricted from using either foot to operate a foot control, the individual could work at the light exertional level as a ticket seller or cashier. (AR 73.) There would be no jobs available, however, if such an individual could only (1) lift and carry 10 pounds occasionally and less than 10 pounds frequently; (2) stand and walk for a total of two hours in an eight-hour day; and (3) sit for a total of two hours in an eight-hour day. (AR 69-70.)

Plaintiff testified at the hearing that he lived with his sister and was able to attend to his personal needs. (AR 62.) He also stated that he did no housework or yard work and that he was unable to drive. (AR 62-63.) Plaintiff stated that his daily activities consisted of watching television while lying down or in a seated position. Further, Plaintiff stated that he did not recall being treated by Dr. Srinivasan, a physician who completed a medical source statement on Plaintiff's behalf one day before the hearing. (AR 59, 335-41.)

On March 10, 2008, the ALJ issued a decision finding Plaintiff not disabled since the date of his application on January 20, 2006. (AR 12-23, 48-76.) Specifically, the ALJ found that Plaintiff (1) had not engaged in substantial gainful activity since the application date of January 20, 2006; (2) has an impairment or a combination of impairments that is considered "severe" based on the requirements in the Code of Federal Regulations; (3) does not have an impairment or combination of impairments that meets or equals one of the impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) has no past relevant work; and (5) could perform jobs that exist in significant numbers in the national economy. (AR 17-23.) Plaintiff sought review of this decision before the Appeals Council. On March 23, 2009, the Appeals Council denied review. (AR 2-5.) Therefore, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. ยงยง 404.981, 416.1481. On April ...


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