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Jimenez v. Astrue

October 20, 2010

RUDY JIMENEZ, 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

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Rudy Jimenez ("Plaintiff") 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.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed his application on August 18, 2006, alleging disability since November 22, 2004, due to leg and back pain, depression and "mental intelligence challenges." AR 136-138, 150-158. After his application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 85-88, 91-95, 98. ALJ Christopher Larsen held a hearing on August 19, 2008, and issued an order denying benefits on January 7, 2009. AR 15-26, 27-67. On August 20, 2009, the Appeals Council denied review. AR 9-12.

Hearing Testimony

ALJ Larsen held a hearing on August 19, 2008, in Fresno, California. Plaintiff appeared with his attorney. Vocational expert ("VE") Judith Najarian also appeared and testified. AR 27.

Plaintiff testified that he was 50 years old at the time of the hearing. He has not driven since the day of his accident because he can't sit down for too long and is scared of the pain. AR 35. In November 2004, Plaintiff's left leg was crushed between a forklift and a railing. AR 36. At the time, Plaintiff was a forklift driver in shipping and receiving. AR 37.

Plaintiff completed the twelfth grade and can read and write in English. He testified that he could not perform his prior forklift job because he cannot climb or concentrate. AR 37-38. He explained that he also has diabetes, which is mostly controlled with insulin. AR 38. Plaintiff has numbness "24 hours a day, seven days a week," from his left foot to his neck. AR 39. He also testified that his arms and right foot are numb. AR 46, 48.

The ALJ asked Plaintiff if he was in pain and he indicated that he was and did not really want to continue the hearing. Plaintiff described sharp pains in his leg and back and asked for a glass of water. AR 40. Plaintiff continued testifying and explained that he has constant pain in his left thigh that feels like someone is stabbing him. His pain medication does not help. AR 41. Plaintiff also has pain in his upper and lower back. AR 41. His lower back causes more problems because it is painful when he is laying down, sitting or standing. AR 42-43. Plaintiff has a hard time walking on his left foot because of the numbness. AR 43. He also testified that he blacks out about two or three times a day, for about 10 to 15 minutes, because of the pain. AR 44. He blacks out often while standing and tries to reach for something so he doesn't fall too hard. AR 44. Plaintiff doesn't use a cane because a doctor never gave him one. AR 44. He also explained that he suffers from fatigue that causes him to lose energy three or four times a day. AR 45.

Plaintiff further testified that he suffers from depression and anxiety. He has not used drugs since the day of his accident. AR 47.

Plaintiff thought that he could sit for about 10 to 15 minutes and could stand for about 10 minutes. He thought he could walk for 15 minutes. Plaintiff estimated that he could lift 5 to 10 pounds, and explained that if he lifts more than that, his legs start shaking and he hurts everywhere. AR 47. When he walks, he has to lean on something every 5 to 10 minutes so that he won't fall. AR 48. If he reaches too fast with his arms, he starts to shake and falls down. AR 49-50. Plaintiff lays down about every 20 minutes during the day. AR 51. He cannot bend his left knee. AR 52.

Plaintiff further explained that he has problems with concentration and gets confused after focusing on something for 15 or 20 minutes. He spends the day in his house. He cannot do chores and testified that he is constantly in the restroom. He explained that because of his diabetes, he vomits about once or twice a week. AR 55. Plaintiff sleeps for about an hour and then is awake for two hours because of pain, both day and night. AR 56.

The ALJ asked Plaintiff if he was in as much pain during his May 2006 and November 2006 examinations as he was during the hearing. Plaintiff stated that he was. AR 57. The ALJ also asked why Plaintiff told a psychiatrist in November 2006 that he was still using crank and crystal meth when he could afford it, even though he testified that he stopped using drugs in November 2004. Plaintiff explained that his sister has him on a tight budget so he can't do drugs anymore. ...


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