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Joseph A. Maher v. Michael J. Astrue

December 3, 2010


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge



Plaintiff Joseph A. Maher ("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.


Plaintiff filed his application on July 8, 2004, alleging disability since September 20, 2003, due to a bulging disc and nerve damage in his left leg. AR 74-76, 79-85. After his application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 54, 58, 67-71. ALJ Edward Graham held a hearing on May 18, 2006, and denied benefits on May 25, 2006. AR 14-26, 263-286. The Appeals Council denied review on October 11, 2006. AR 3-6.

Plaintiff appealed the denial to the United States District Court for the Central District of California. The Court reversed and remanded the action on October 29, 2007. AR 409-416. Pursuant to the order of remand, the Appeals Council vacated the prior decision and remanded the case for further proceedings. AR 405-408.

On May 15, 2009, ALJ Patricia Flierl held a second hearing. AR 303-330. On August 5, 2009, ALJ Flierl issued a decision denying benefits. AR 290-302.

Hearing Testimony

ALJ Flierl held a hearing on May 15, 2009, in Fresno, California. Plaintiff appeared with his attorney, Steven Rosales. Vocational expert ("VE") Cheryl Chandler also appeared and testified. AR 303.

At the beginning of the hearing, Plaintiff testified that he returned to work at his friend's truck repair business in September 2007. AR 308. He works full time but does not perform heavy lifting, kneeling or climbing. AR 306-307. Prior to that, he last worked in September 2003. AR 308.

During that four year period, Plaintiff testified that he could not work because of a work-related injury to his back and knees. AR 309. He was also treated for depression during that time. AR 308. Plaintiff returned to work after his friend offered him a position that would allow him to do what he could. AR 308.

During the time he could not work, Plaintiff "sat around in a lot of pain" and went to different doctors. AR 309. He also took a lot of medication and tried a lot of treatments, such as chiropractic treatment, epidural injections and trigger point injections. Plaintiff became more depressed as he was not "getting the attention [he] needed." Plaintiff lived with his mother during this time and did not do any chores because of his back. He did not participate in any social activities because he was in pain all the time and couldn't enjoy himself. AR 310-311.

Doctors have recommended surgery, but not all agreed. AR 312. Plaintiff currently takes Excedrin Back and Body and has not taken prescription medication since 2005 or 2006. AR 315.

He explained that he did not return to work until 2007 because no one would hire him because he was "a risk." AR 316-317.

Prior to presenting the VE with hypothetical questions, the ALJ and Plaintiff's attorney discussed the meaning of Dr. Goalwin's finding, in Worker's Compensation terms, that Plaintiff had anywhere from a 20 to 50 percent reduction in various mental abilities. AR 319. Plaintiff's attorney contends that a "slight" reduction is 20 percent and a "slight to moderate reduction is 50 percent, and that these percentages correspond to the percentage of the day." In other words, Plaintiff's attorney argued that a 20 percent reduction in the ability to maintain appropriate pace meant that this person lost this ability for 20 percent of an eight hour day. AR 320-322. The ALJ and the VE, however, believed that a 20 percent reduction translated into an ability that was "20 percent of normal capacity." AR 324-325.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and work history. This person could lift 10 pounds frequently, 20 pounds occasionally, stand and walk for two hours in an eight hour day and sit for up to six hours. This person could not climb, kneel, crouch or crawl but could occasionally stoop. The VE testified that this person could not perform Plaintiff's past work but could perform the world of unskilled, sedentary work. AR 326-327. For example, Plaintiff could perform the position of accounting clerk, telephone clerk and general clerk. AR 328.

For the second hypothetical, the ALJ asked the VE to add a sit/stand option to the first hypothetical. The VE testified that this person could perform a reduced number of sedentary positions, such hand packager, material handler and production worker. AR 328.

For the third hypothetical, the ALJ asked the VE to assume that this person is unable to concentrate in two hour increments. The VE testified that this ...

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