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Jesus Garcia Solis v. Michael J. Astrue

December 23, 2010


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



Plaintiff Jesus Garcia Solis ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") 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 Gary S. Austin, United States Magistrate Judge.*fn1


Plaintiff filed an application for disability insurance benefits on or about January 9, 2007, alleging disability as of April 18, 1995. AR 103-104. His application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 62-81. ALJ Christopher Larsen held a hearing on November 14, 2008, and issued an order regarding benefits on March 6, 2009, finding Plaintiff was not disabled. AR 15-22. On January 9, 2009, the Appeals Council denied review. AR 7-10.

Hearing Testimony

ALJ Larsen held a hearing on November 14, 2008, in Fresno, California. Plaintiff appeared and testified, and was represented by attorney Melissa Proudian. Vocational Expert Judith Najarian also testified. AR 23-61.

Plaintiff was fifty-four years old at the time of the hearing; his date of birth is September 15, 1954. AR 28. He is about five feet, six inches tall, and weighs approximately 280 pounds. AR 28. He has adult children from a previous marriage, and lives with his current wife. There are no children of the current marriage. AR 29.

Following high school and a diploma earned here in the United States, Plaintiff attended a year of college. He then went on to earn a certification in automotive repair from a private school in Arizona. AR 30-31. He worked in that field, primarily performing "brakes and alignments." AR 31. Additionally, following his injury in 1995, Plaintiff received vocational training in copy machine repair. AR 32. He worked in the field for two years, using light tools to repair the copy machines at the facility rather than in the field. AR 32-33. Plaintiff indicated that during this period he was "constantly being yelled at and embarrassed" by his superiors because he could not learn the job fast enough or perform it quick enough. He had difficulty keeping up an adequate pace due to his medical condition. AR 33-34. More particularly, Plaintiff indicated he was unable to hear and/or comprehend the instructions given. The majority of the instructions given were verbal, rather than written. AR 34-35. He resigned from the position. AR 36.

Asked to explain how he was hurt originally, Plaintiff indicated that a manager threw a tire that hit him in the head and knocked him into a metal rail. AR 36. The manager did not know Plaintiff was standing below when he threw the tire from an upper rack. AR 52. Plaintiff reported that Dr. Schuyler advised him he suffered a brain injury, and Drs. Fujihara and Evans diagnosed hearing loss with vertigo, causing blurred vision and a loss of balance. AR 36. As a result of his workplace injury, Plaintiff received a settlement through workers' compensation of approximately $25,000. AR 37.

Plaintiff does not believe he can work at any job for eight hours a day, five days a week. He holds this belief because he is unable to maintain his balance, has trouble sleeping, and suffers from depression "and fear." He continues to suffer from ringing in his ears, hearing loss in his left ear and headaches. AR 38.

More particularly with regard to balance, Plaintiff indicated he must lean on walls or counters to sustain his balance on a daily basis. He is "constantly spilling food" and dropping and breaking glassware at home. He loses his balance "all the time." AR 39. He does not use a cane however because he is afraid he will trip over it and fall. AR 40. Plaintiff would be unable to walk half a block without having to steady himself against an object. He has been told there is nothing more that can be done, and he does not take any medication for this condition. AR 40.

While Plaintiff has a valid California driver's license, he has rarely driven since 1999 or 2001. His wife does the driving. AR 29-30.

When Plaintiff was asked about a gap in his medical treatment, he explained that he became "a hermit" as a result of his condition. This is due to depression and fear and his lack of trust. He has suffered from hallucinations since his employment at the copy repair service, and his sleep has been disturbed as well. The minute he falls asleep he is attacked by "bears, tigers, a black panther, a dog, raving dog . . .." AR 41. He is not sure he is dreaming because the episodes are so real. AR 42. Plaintiff believes "someone" is breaking into his home and his cars. He has called the police to report this activity but no one is ever found. AR 48-49. Plaintiff indicated he wrote a letter to Governor Schwartzenegger because he believes someone has planted something in his ear or ears that creates a clicking or humming noise. AR 49. He also believes members of the police department and district attorney's office may be behind these activities. AR 49.

Plaintiff is currently under the care of a psychiatrist at Kaiser. Apparently he saw the physician right after his accident or injury, and then resumed seeing him in October 2008. Plaintiff explained the gap in treatment is the result of becoming "a hermit" and losing all contact with the outside world. AR 50. He sees neither friends nor family. AR 50. Asked whether he has ever had suicidal thoughts, Plaintiff says he has them "about once a month in [his] dreams." AR 51. He feels depressed all the time. He has difficulty concentrating or focusing his attention, and the longest period of time he could concentrate is about an hour. AR 51. Thereafter however, he would be "really exhausted, tired, fatigued" and would have to take a thirty-minute nap. AR 51-52.

Plaintiff last worked in 1999. Shortly after leaving the copy machine repair business, he was hired to prep new cars prior to sale at the Selma Auto Mall. However, when he appeared for his first day of work, he was advised to go home because the company's insurance carrier had deemed him uninsurable. AR 42-43, 55.

On the date of the hearing, Plaintiff was using a wheelchair due to pain and numbness in his hands and feet. He indicated he had been using the wheelchair for over a year, however, it had not been prescribed for him. He clarified that he does not use the wheelchair at home, rather, he uses it when he goes out. AR 43. When asked how he gets around outside, Plaintiff indicated he does not go outside due to his balance and "condition." AR 44.

With specific regard to headaches, Plaintiff suffers from headaches one or twice a week. The headaches will last a half hour to an hour and he takes over the counter medication to treat the symptoms. Sometimes a hot shower will help. AR 44.

A typical day for Plaintiff will involve watching television, eating a bowl of cereal, and using the computer. AR 45. Plaintiff goes "from the couch to the bed most of the time and the TV and the computer." AR 45-46. He naps or rests throughout the day, sometimes taking two or three thirty-minute naps per day. AR 46.

He has constant ringing in his left ear. When asked whether he has ever had to wear a hearing aide, Plaintiff indicated that Dr. Evans had never suggested it. AR 46-47.

VE Najarian testified that Plaintiff's past work as a front end mechanic and brake mechanic was medium and level six skilled work, performed at a very heavy level. AR 54. Plaintiff's past work as an office machine servicer is light and level seven skilled, performed at a medium level. AR 55.

In the first hypothetical, the VE was asked to assume a worker of Plaintiff's same age, education and work experience, who can perform simple, repetitive tasks, but can never climb ladders, ropes or scaffolds, or work at any height more than five feet off the ground, and the worker must avoid concentrated exposure to noise. AR 55. VE Najarian testified that the hypothetical worker would be unable to perform Plaintiff's past relevant work, however, the worker could perform the work of a mail clerk or sorter (DOT 209.687-026), copy clerk or photocopy operator (DOT 207.685-014) or price marker (DOT 209.587-034). There are approximately 8,063, 6,633 and 15,788, respectively, of such positions in California. National numbers are figured by multiplying the state figure by nine. AR 56-57.

In a second hypothetical where the worker was restricted to limited contact with the general public, the VE testified that the answer would remain the same: the hypothetical worker remained capable of performing the aforementioned positions. AR 57.

In a third hypothetical, wherein the hypothetical worker was unable to complete an eight-hour workday or a forty-hour workweek without interruption from psychologically based symptoms, the VE indicated that such a worker would be unable to perform any work. AR 57-58. VE Najarian indicated her testimony was consistent with the Dictionary of Occupational Titles and Selected Characteristics of Occupations. AR 59.

In a hypothetical posed by Plaintiff's counsel, VE Najarian was asked to consider the hypothetical worker in the ALJ's first example, limited further by an inability to "walk without balance problems and had to hold onto things or needed stability of some sort, assistive device or other things." The VE responded that the requirement of an assistive device would limit the worker to sedentary positions, rather than those that required standing or walking. AR 58-59.

Medical Record

The entire medical record was reviewed by the Court. Those records relevant to the issues on appeal are summarized below. Otherwise, the medical evidence will be referenced as necessary in this Court's decision.

Allen M. Evans, M.D.

Plaintiff was treated at the Central California Ear Nose and Throat Medical Group by Otolaryngologist Dr. Evans from 1995 to 2001.

In an examination of June 22, 1995, Dr. Evans reported to California Indemnity Insurance Company (CIIC) that Plaintiff advised he had been hit behind the head on April 18 after a tire fell from a height of ten to fifteen feet. He sustained a fracture of his anterior incisor teeth that required repair. Plaintiff reported that did not lose consciousness, but was very dazed and became acutely dizzy an hour after the incident. He suffers from ringing and decreased hearing in his left ear. The dizziness has improved since the incident but it has not fully resolved. An ABR*fn3 test and two MRI scans were normal with the exception of possible hemorrhage in the left mastoid cavity. The doctor's examination revealed normal findings regarding Plaintiff's eyes, nose, oral cavity, hypopharynx/larynx, and neck. AR 196. His ears were clear. There was a tendency to fall backwards on the Romberg test and Plaintiff fell to the left on tandem gait. Audiometry results were normal in the right ear, with a 40-50 db hearing loss in a frequency from 1500 to 8000 Hertz. Dr. Evans' impression was a head injury with a secondary loss on the left side, and vertigo with slow improvement. The doctor recommended a high resolution CT scan of the temporal bone to rule out a base of skull fracture. AR 196-197, 198-204.

Dr. Evans reported on July 27, 1995, that Plaintiff had undergone ENG testing, and the results indicated peripheral vestibular dysfunction localized to the left ear. Significant improvement had occurred with the exception of sudden head movement. The doctor recommended Plaintiff resume work ...

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