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George v. Astrue

September 20, 2010

WALLACE PAUL GEORGE, 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 Wallace Paul George ("Plaintiff"), proceeding pro se, 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, for Findings and Recommendation to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed his application on April 11, 2005, alleging disability since September 30, 2004, due to bone, joint and nerve problems, arthritis, back pain and right shoulder pain. AR 83- 85, 92-98. After his applications were denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 70-72, 77-80, 46. ALJ Sharon Rogers held a hearing on October 16, 2007, and issued an order denying benefits on January 17, 2008. AR 14-26, 48-67. On July 17, 2008, the Appeals Council denied review. AR 7-9.

Hearing Testimony

ALJ Rogers held a hearing in Stockton, California, on October 16, 2007. Plaintiff attended the hearing with his attorney, Tara Davis. Vocational expert ("VE") Steve Schmidt also appeared and testified. AR 48.

When questioned by his attorney, Plaintiff explained that he was in prior motor vehicle accidents that have contributed to his inability to work. In 1983, Plaintiff was in a motorcycle accident and injured his right leg and left shoulder. His shoulder is still a problem and has been reconstructed three times. His leg, mostly from the knee down, continues to be a problem. AR 55. In 1996, Plaintiff was in another car accident. His wife was killed in the accident and he injured his left shoulder, low back and neck. Plaintiff continues to experience constant, burning pain in both shoulders. AR 55-56.

Plaintiff explained that his shoulder pain affects his ability to lift his arm and thought that he could lift 20 to 25 pounds "for a second or two." He could not lift that amount on an ongoing basis. Plaintiff stopped working at his sedentary job in September 2004 because the desk work involved too much sitting and caused pain in his back, sciatica in his right leg, burning in his shoulders and stiffness in his neck. AR 57. He thought he could sit for about 10 or 15 minutes. AR 58. When he stands, he has lower back pain and sciatica. Walking long distances causes pain in his knee and he regularly uses a cane to walk. AR 58. Plaintiff did not bring an assistive device because he wanted to be judged on his "own merit" rather than on "outward appearances." AR 59. Plaintiff also explained that walkers, crutches and canes are difficult for him to use because of the pain it ultimately causes in his shoulders. AR 59. Plaintiff testified that he could no longer lift a grocery bag with ice cream or canned dog food. AR 60. He does not need assistance with his daily activities because he cuts them down to the "very bare minimum."

Plaintiff further testified that he has been diagnosed with atrial fibrillation that causes his heart rate to increase. This causes extreme fatigue, light headedness and headaches. Plaintiff is always fatigued during the day but cannot sleep because he can't get comfortable. AR 61. He estimated that he would need 20 to 24 breaks during an eight hour day because he has to get up every 15 minutes and "do something." AR 61.

Plaintiff also has problems with depression. He was taking medication but it interacted with his heart medications and was discontinued. He is scared to join counseling groups because his physical issues are so overwhelming and thinking about mental issues is "just way too much" to deal with. AR 62-63. He explained, though, that the loss of his wife was very difficult, as is the fact that he can no longer earn a good income. AR 63.

When questioned by the VE, Plaintiff explained that his prior position involved assessing manufacturing problems and performing quality control. AR 63-64. The VE classified the position as quality control engineer, usually performed at the light level, but performed by Plaintiff at the sedentary level. AR 65.

The ALJ asked the VE whether Plaintiff would have an opportunity to change position from sitting to standing in his prior position. The VE explained that it is a professional position that has a great amount of flexibility, but since most of the work is done at a desk or computer, sitting would be required most of the day. AR 66. The VE did not believe that there were sedentary level positions for which Plaintiff would have transferable skills that would offer more opportunity to change position. AR 66.

At the end of the hearing, the ALJ left the record open for 30 days to allow for the submission of additional medical records. AR 66-67.

Medical Evidence

A majority of the evidence predates Plaintiff's alleged onset date of September 30, 2004. In 1995, he underwent treatment and surgery on his left shoulder after a 1983 motor vehicle accident. AR 198-202, 213-217.

He was involved in a second motor vehicle accident in 1996 and underwent another surgery on his ...


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