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Macias v. Astrue

September 13, 2010

LEOPOLDO MACIAS, 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

FINDINGS AND RECOMMENDATION REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Leopoldo Macias ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits ("DIB") and Social Security Income ("SSI") pursuant to Titles II and 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 Dennis L. Beck, United States Magistrate Judge, for Findings and Recommendation to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed his applications for DIB and SSI on August 21, 2006. AR 129-33, 134-40. He alleged disability since January 1, 2006, due to mental illness. AR 173-74. After his applications were denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 74-77, 81-86, 87. ALJ James P. Berry held a hearing on October 16, 2008, and issued an order denying benefits on December 31, 2008. AR 7-16, 19-57. On June 18, 2009, the Appeals Council denied review. AR 1-4.

Hearing Testimony

ALJ Berry held a hearing in Fresno, California, on October 16, 2008. Plaintiff attended the hearing with his attorney, Robert Ishikawa, and was assisted by an interpreter. Vocational expert ("VE") Stephen Davis also appeared and testified. AR 21-22.

Plaintiff was 56 years old at the time of the hearing. He cannot communicate very much in English. He completed the fourth grade in Mexico. He cannot read or write in English, but he can read and write in Spanish. AR 23-24.

Plaintiff last worked at Wendy's in 2005. While there, he prepared meat for hamburgers. Before Wendy's, Plaintiff worked at Foster Farms for 90 days cutting chicken breasts into fillets. In 1999, he worked for nine months as a carpenter's helper. From 1994 to 1998, he worked at Zacky Farms weighing and hanging turkeys. Prior to that, he was a yard worker at Countrywide Building Materials. He filled orders and used a fork lift. During those times, he also had a weekend job selling corn on the cob. AR 24-26.

Plaintiff receives treatment at Fresno County Mental Health. He hears voices and forgets what he is doing. When he was working, they were loud. They don't affect his concentration very much anymore, but his mind wanders. He would like to be able to work, but doesn't feel capable. He qualifies to obtain a job and then cannot fulfill it because the volume of the voices might go up. AR 27-29.

Plaintiff testified that he has no enemies. He also initially testified that he has no physical problems. He subsequently testified that he has problems with his hips since being hit in Mexico. He has pain in his lower back at the tailbone. AR 29.

Plaintiff said he last drank in April. Prior to that, he last drank in October or November, and then started taking some medications. He takes Seroquel from Fresno County Mental Health. AR 29-30.

Plaintiff testified that he lives in a house with his wife. She works and gets food stamps. Plaintiff does very little housework. He mostly prepares dinner. He does not vacuum, sweep, or mop. He washes his clothes. He does yard work and all the cleaning outside of the house. AR 30-31.

Although he has a car, he does not drive because he is afraid of causing an accident. He never had a driver's license, but used to drive all the time. He does not have any activities outside his home, but his wife will send him to pay a bill. He takes a bicycle or the bus. AR 31-32.

During the day, Plaintiff goes out. In the afternoon, he talks to the relatives that live in a room behind his house. In the evening, he watches TV for about a half an hour. He doesn't really walk. He rides his bike. He could walk about 20 minutes. He guessed that he could stand two to three hours in an eight-hour day. He could sit maybe one to two hours. He could lift a five-gallon bucket filled three quarters of the way with water. AR 33-34.

One of Plaintiff's medications makes him feel weak. He also feels tired and lies down about three times a day for an hour or two. He gets up in the morning at 6:30 or 7:00. He lies down three times between 7:00 and 2:00. He goes to bed at 9:30 or 10:00. AR 34-35.

When asked if there was anything else that he would like to tell the ALJ regarding his disability, Plaintiff asked why they "put that apparatus to watch over us with those voices." Plaintiff then testified that when he went to Mexico, he heard the same voices. They knew everything he did, where he was, where he staying, and what he was eating. AR 35.

In response to questions from the ALJ, Plaintiff testified that he went to "De Pateclande Morelos," about an hour out of Guadalajara, to take care of some business with his brother. His brother was keeping Plaintiff's money. Plaintiff went by himself to get it, but his brother would not give it back. AR 35-36.

In response to questions from Plaintiff's counsel, the VE testified about his education and qualifications. The VE explained that he has a MA in counseling psychology and a BA in psychology. He has a post master degree in clinical psychology and is board certified by the American Board of Vocational Experts. He does not have a degree in vocational counseling, but is a board certified vocational expert. He is certified as a professional rehabilitation counselor at the state level. AR 36-39.

The VE asked questions about Plaintiff's past work. In the yard worker position, Plaintiff testified that he used to pick up about 94 pounds at the lumberyard. He drove the forklift almost all day for three years. It took him between one and two weeks to learn how to operate the manual forklift. If he did not understand what was written on the work orders, he would ask another worker. After a while, he could recognize what was written. If something new was ordered and written down, he would have to ask. AR 40-42.

In response to questions from the ALJ, the VE testified that Plaintiff's primary job was a meat packer, packager, 920-587-018, unskilled at two, classified at medium and performed at light. The other job as yard worker, lumberyard, 929.687-030, is classified as semiskilled at three, but Plaintiff performed it at two. It was unskilled, classified at heavy and performed at heavy. AR 42-43.

For the first hypothetical, the ALJ asked the VE to assume an individual 56 years of age, illiterate, with Plaintiff's past relevant work experience. The ALJ further asked the VE to assume that this individual has a combination of severe impairments and retains the residual functional capacity to lift and carry 100 pounds occasionally, 50 pounds frequently. The individual retains the ability to stand, walk and sit six hours each. The individual also retains the ability to perform simple repetitive tasks as well as maintain attention, concentration, persistence, and pace. The individual retains the ability to relate to and interact with others, to adapt to usual changes in work setting and to adhere to safety rules. With these limitations, the VE testified that this individual could not perform the yard worker job as Plaintiff performed it, but could perform it as defined in the Dictionary of Occupational Titles. The VE also testified that it would be unlikely that this individual could do the meat packager job because they have to stand the entire day. AR 43-44.

For the second hypothetical, the ALJ asked the VE to assume the same vocational parameters as the first hypothetical. The ALJ also asked the VE to assume an individual with a combination of severe impairments and a residual functional capacity to lift and carry approximately 32 pounds or less, to stand two to three hours total, walk 20 minutes total and sit one to two hours. This individual also would have difficulty maintaining attention and concentration and difficulty remembering work processes. This individual would require rest periods lasting one to two hours approximately two or more times per day. Given these limitations, the VE testified that such an individual could not perform either of Plaintiff's past jobs or any other work in the national economy. AR 44.

For the third hypothetical, Plaintiff's attorney asked the VE to assume the same vocational background. Counsel also asked the VE to assume that this person was unable to relate and interact with co-workers, supervisors, and the general public, but could carry out one to two-step job instructions. The VE testified that this person could perform the yard work position with 25 percent erosion. AR 47. According to the VE, the DOT describes the involvement with people at a very insignificant level and there is no contact with the public. The VE eroded the job 25 percent because there will be times when he would come in contact with co-workers, supervisors or the public. The VE believed the job could be performed without contact. He also believed that jobs exist in the national economy where you don't have to interact with people. He will erode them because he cannot be sure there won't be some unexpected communication or contact. AR 47-50.

For the fourth hypothetical, Plaintiff's counsel asked the VE to assume the same vocational background. This person also would have moderate difficulties maintaining social functioning and moderate difficulties in maintaining concentration, persistence or pace. The degrees of limitation are none, mild, moderate, marked and extreme. AR 50. The VE testified that the meat packer position had been ruled out. For the yard worker, there would be 50 percent erosion the way Plaintiff performed it and 75 percent erosion as classified at semiskilled. The VE further testified that to erode it further, there would need to be a production error of at least seven percent. The VE explained that a moderate impairment does not equate to error rate. If you have ...


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