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Alvarez v. Astrue

September 29, 2010

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



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Michael J. Alvarez ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for supplemental security income pursuant to Title 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 Gary S. Austin, United States Magistrate Judge.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed his application on or about August 25, 2005, alleging disability beginning August 25, 2004. AR 12, 18-19. His application was denied initially on December 9, 2005 (AR 20-24), and upon reconsideration on April 24, 2006. AR 28-32. Thereafter, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 33. ALJ Eve Godfrey held a hearing on July 7, 2008 (AR 350-379), and issued an order denying benefits on July 25, 2008. AR 12-16. Plaintiff requested a review of the hearing and the Appeals Council denied review on December 31, 2008. AR 3-8.

Hearing Testimony

ALJ Godfrey held a hearing on July 7, 2008, in Bakersfield, California. Plaintiff appeared and testified. He was represented by representative Steven Whitfield. Medical Expert Dr. Steiner and Vocational expert ("VE") Mark Remas also testified. AR 352-379.

Plaintiff was born on July 26, 1977, and was twenty-nine years old at the time of the hearing. AR 354. Plaintiff is five feet nine inches tall and weighs 174 pounds. AR 365. Previously, Plaintiff weighed 210 pounds, however, he lost weight over the past three years because of his medical condition. AR 365. He currently eats only one meal per day. AR 365.

Plaintiff has lived with his mother for the last four months. AR 355. Prior to that time, he lived with his girlfriend and three children, ages three, six, and nine. AR 356. Plaintiff's girlfriend works for L'Oreal, however, both Plaintiff and his girlfriend collect public assistance. AR 356. One of Plaintiff's children also receives Social Security payments because he is disabled. AR 357. All three children live up the street and Plaintiff sees them everyday when his mother brings them down to visit. AR 364. During their visits, Plaintiff talks with his children and watches cartoons with them. AR 364.

During the day, Plaintiff sleeps "a lot" because he vomits and gets very bad migraine headaches when he stands for more than two hours. AR 357. Plaintiff receives potassium supplements and pain shots from the emergency room when this occurs. AR 357. Plaintiff does not receive potassium supplements on a regular basis to treat this condition. AR 357.

Initially, Plaintiff testified that he vomits once or twice a week, however, he later clarified that he vomits everyday. AR 364. His nausea is not correlated to his eating habits. AR 365. Although Plaintiff has been to the emergency room recently on several occasions, he has not been hospitalized since August 2004. At that time, Plaintiff had his appendix removed. AR 360-361. The appendectomy did not improve his condition. Id.

Plaintiff is being treated by his family physician, Dr. Tarn. AR 360. Plaintiff takes Vicodin, Compazene, Dilodid, and Topmax to treat his pain. AR 360. Plaintiff also takes over-the-counter medications such as Maalox to reduce his symptoms. AR 366. The side effects of these medications cause Plaintiff to lay on the couch all day because he is tired. AR 366. He is only able to sit up about two hours per day during which time he watches television. AR 358. Plaintiff usually takes several one hour naps throughout the day because he is only able to sleep two to three hours a night. AR 363. In addition to making him tired, the medications also cause him to have restless legs. AR 366.

Dr. Feldman, a psychiatrist, also sees Plaintiff one time per week. Plaintiff has seen Dr. Feldman for approximately one and a half months for counseling and for medication. AR 362. Plaintiff is currently taking 40 milligrams of Celexa and 400 milligrams of Seroguel. AR 360.

Dr. Feldman altered Plaintiff's medication about two weeks ago because the medicine was not effective. AR 363. Plaintiff was initially prescribed Prozac but Celexa was substituted because the Prozac was not effective. AR 362. Dr. Feldman also increased Plaintiff's dosage of Seroguel. AR 362.

Plaintiff last worked in 1999 as a cabinet worker. His also has worked as a farm worker and short order cook at Rally's. AR 100, 355. He believes he cannot work because he would have to miss work everyday due to his sickness which includes dizziness and passing out. AR 366.

Dr. Sheldon Steiner, a board-certified internist and medical expert, also questioned Plaintiff and testified at the hearing. In response to Dr. Steiner's questions, Plaintiff indicated that his blood pressure has been checked both when he is sitting and standing, but that it does not change when he stands up. Plaintiff further indicated that he gets headaches after vomiting because of all of the pressure in his head. AR 367-368. He does not get a headache first and then vomit. AR 367-368.

Dr. Steiner indicated that Plaintiff does not meet one of the listing levels and that there is nothing in the record that would preclude Plaintiff from working. AR 369-370. However, he recommended an endocrinology evaluation because Plaintiff may be suffering from porphyria, a disease which causes abdominal pain and vomiting, or from gluten which is an intolerance to wheat. AR 368. Dr. Steiner also recommended that Plaintiff be evaluated for an adrenal tumor. AR 368. Dr. Steiner stated that Vicodin and Dilodid were not appropriate treatments for abdominal pain or for headaches. AR 369. Dr. Steiner further noted that Plaintiff's symptoms may also be caused by Plaintiff's marijuana consumption. AR 369-370.

VE Remas testified that Plaintiff's previous work as a farm worker is "medium work, unskilled, SVP II." AR 371. Plaintiff's past work as a cabinet assembler and short order cook are both "light, semi-skilled, SVP III." AR 372. The VE was then asked to consider a hypothetical in which Plaintiff was limited to sedentary work that required Plaintiff to change positions every ninety minutes. Id. The VE indicated Plaintiff would be unable to perform his past work. Id. However, VE Remas indicated that Plaintiff would be able to perform work as a lens inserter, final assembler, table worker, and charge account clerk of which there are 57,000, 18,000, 16,000 and 38,300 jobs available nationally, respectively. AR 372-373.

When asked to consider a second hypothetical in which Plaintiff would be required to perform light unskilled work that required a break every ninety minutes, the VE indicated that Plaintiff would be able to perform jobs including a small parts assembler, packing line worker, and a scrap separator of which there are 500, 900, and 500 jobs in the region and 350,000, 200,000, and 145,000 nationally respectively. AR 373-374.

When asked to consider a third hypothetical in which Plaintiff would be required to perform sedentary to light work requiring easy access to a bathroom and one unscheduled ten minute break a day at a random time, the VE testified that Plaintiff could still perform the job of lens inserter, table assembler, order clerk, table worker, however, a packing line worker would be excluded. AR 374.

When asked to consider a fourth hypothetical in which Plaintiff would be required to perform sedentary to light work which required an unscheduled thirty minute break, the VE indicated there would be no jobs available.

Finally, when asked by Plaintiff's representative to consider a fifth hypothetical in which a person could only sit for one to two hours a day, stand for two hours at a time, would be required to lay down for one to two hours a day, and be unable to maintain concentration for more than fifteen to twenty minutes, the VE testified that there would be no jobs available. AR 374-378.

After the VE testified, the following dialogue occurred between Plaintiff's representative and the ALJ:

ALJ: Okay. Anything else, Mr. Whitfied ?

Rep: Mr. Alvarez's mother is present, if you like for her to testify. She can only corroborate what his daily activities is [sic], but I think it would be good to have her, if you think it's relevant because it doesn't [sic], that's the only testimony that she cannot add is describe this limitations and daily activities [sic]. But beyond that she couldn't really add anything else to the evidence at this hearing.

ALJ: All right. Well, she can't really add anything to it ?

Rep. Yes.

ALJ: I don't really think we need ...


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