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Wilkins v. Astrue

September 24, 2010

DARRELL L. WILKINS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER REVERSING AGENCY'S DETERMINATION TO DENY BENEFITS AND REMANDING FOR FURTHER PROCEEDINGS

Plaintiff Darrell L. Wilkins, Sr., by his attorneys, Law Offices of Lawrence D. Rohlfing, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits under Title II of the Social Security Act (42 U.S.C. § 301 et seq.) and for supplemental security income ("SSI"), pursuant to Title XVI of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge.*fn1

Plaintiff contends only that the ALJ committed reversible error at step five of the disability analysis when he failed to propound a hypothetical including Plaintiff's specific limitations. The Commissioners responds that the error was harmless. Having reviewed the record as a whole and applicable law, this Court reverses the agency's determination and remands for additional proceedings consistent with this opinion.

I. Administrative Record

A. Procedural History

On July 3, 2006, Plaintiff filed protectively for disability insurance benefits, alleging disability beginning June 4, 2006. AR 13. His claim was initially denied on August 25, 2006, and upon reconsideration, on June 15, 2007. AR 13. On May 15, 2007, Plaintiff filed a timely request for a hearing. AR 13. Plaintiff appeared and testified at a hearing on March 28, 2008. AR 422-466. On November 21, 2008, Administrative Law Judge Michael J. Haubner ("ALJ") denied Plaintiff's application. AR 13-21. The Appeals Council denied review on March 11, 2009. AR 2-4. On May 7, 2009, Plaintiff filed a complaint seeking this Court's review (Doc. 2).

B. Factual Background

Plaintiff (born September 12, 1961) worked as an oil field roustabout*fn2 and as a semi-truck driver who loaded and hauled produce. AR 77, 113-116. Plaintiff's disability arose after he was injured in a fight on June 3, 2006, and ultimately experienced a cervical spinal fusion on June 12, 2006.*fn3 AR 78. Contributing factors to his alleged disability included significant residual symptoms resulting from the cervical fusion; moderate right ulnar nerve entrapment; moderate active, and moderate to severe chronic, denervation in his right arm; mild right carpal tunnel syndrome; depression; and anxiety. AR 78. Plaintiff is right-handed. AR 437. The May 2, 2008, report of the agency's consulting neurologist, Gregorio Pineda, M.D., noted significant and visible atrophy of Plaintiff's right arm. AR 130-131. In a disability report date January 17, 2007, Plaintiff reported difficulty caring for his own needs due to pain. AR 102. In January 2008, Plaintiff experienced auditory hallucinations and threatened homicide and suicide. AR 153-156.

At the administrative hearing on March 28, 2008, Plaintiff testified that he was able to lift three or four pounds; could stand for about ten minutes at a time; could sit for thirty minutes at a time; could walk about a block and a half before becoming dizzy; rested about four hours daily; could concentrate for thirty to forty minutes at a time; and could hold something such as a coffee cup with his right hand for about one minute.*fn4 AR 435-438.

Vocational expert Judith Nazarian testified that because Plaintiff's past work as a truck driver included loading and unloading the truck, the job included two different DOT classifications. AR 442-443. Driving the truck is classified as medium exertion and level 4 (semi-skilled). AR 443. Loading and unloading the truck, or working as a truck driver's helper, is classified as very heavy and unskilled. AR 443. Plaintiff's prior work as a roustabout is classified as a construction laborer, very heavy exertion and unskilled work. AR 443. Truck driving would have given Plaintiff such skills as driving, observing road regulations, keeping and maintaining a log, and observing safety rules, which would be transferable to other driving jobs. AR 443-444.

The ALJ directed Nazarian to assume, for each of the hypothetical questions, a right-hand-dominant individual of the same age, education, language, and experience as Plaintiff. AR 444. For the first hypothetical question, Nazarian was directed to assume that the individual could lift and carry twenty pounds occasionally and ten pounds frequently; could sit, stand and walk six hours out of eight; had an unlimited ability to push and pull; could occasionally climb ramps and stairs; could never climb ladders, ropes, and scaffolds; could occasionally balance or crawl; could frequently stoop, kneel, and crouch; but could not reach above shoulder level. AR 444. Nazarian opined that this person could not perform Plaintiff's prior work. AR 444. This person could perform light, unskilled jobs such as a bottle capper, a production assembler, or a parking lot attendant. AR 444-445. All three jobs are available in significant numbers in California. AR 445.

For the second hypothetical question, the ALJ directed Nazarian to assume that the individual could lift and carry ten pounds occasionally and ten pounds frequently; could sit, stand and walk six hours out of eight; had an unlimited ability to push and pull; could occasionally climb ramps and stairs; could never climb ladders, ropes, and scaffolds; could occasionally balance; could frequently stoop, kneel, crawl, and crouch; should avoid reaching above shoulder level; and has intact manipulative functions at the light exertion level. AR 445. According to Nazarian, this person could not perform Plaintiff's prior work, but could perform the same light, unskilled jobs listed in hypothetical one. AR 445-446.

For hypothetical question three, the ALJ directed Nazarian to consider an individual who had some difficulty with complex or detailed tasks. AR 446. Nazarian opined that this person could not do Plaintiff's prior truck driving job but could perform the full range of unskilled work at all exertional levels. AR 446. The ALJ could apply the grids. AR 446.

If the restrictions of hypothetical three were combined with those of hypothetical one (hypothetical 3A), the result is the same as hypothetical one. AR 446. If the restrictions of hypothetical three were combined with those of hypothetical two ...


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