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Thomas S. andrade v. Commissioner of Social Security

March 9, 2011


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



Plaintiff Thomas S. Andrade ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability benefits pursuant to Titles II and 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


Plaintiff filed an application for disability and supplemental security income benefits on October 24, 2008, alleging disability as of December 28, 2006. AR 126-132. His application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 88-97. ALJ Michael J. Kopicki held a hearing on July 22, 2009, and issued an order regarding benefits on August 19, 2009, finding Plaintiff was not disabled. AR 8-18, 21-63. Thereafter, on October 2, 2009, the Appeals Council denied review. AR 1-3.

Hearing Testimony

On July 22, 2009, ALJ Kopicki held a hearing in Fresno, California. AR 21-63, 104-108. Plaintiff appeared and testified. He was represented by attorney Melissa Proudian. Vocational Expert ("VE") Thomas Dachelet also appeared and testified. AR 21-63.

On the date of the hearing, Plaintiff was unable to provide his current address because he had recently moved in with his mother-in-law. AR 25. Along with his seventy-five year old retired mother-in-law, his wife also resides in the condominium. AR 25-26. Plaintiff's wife previously operated a day care business out of their home, however, they no longer have either the business or the home. AR 26. Plaintiff and his wife are not currently receiving any government assistance, although he indicated he intended to apply for such assistance. AR 26-27.

Plaintiff has two children with his wife and a stepson. His oldest child is twenty-three years old and the younger child is twenty-one years old. His stepson is thirty-five years old. None of the children reside in the home with he and his wife. AR 29.

Plaintiff was born April 23, 1962, and was forty-seven years old on the date of the hearing. AR 27. At five feet six inches tall, Plaintiff weighs about 204 pounds. He is right handed. AR 28. With regard to education, he indicated the last grade he actually passed was sixth grade, and that he quit attending school in the eighth grade. At the time he stopped attending school, Plaintiff was in special education classes. AR 27-28. He has never received vocational training and has not served in the military. AR 28.

Prior to becoming injured, Plaintiff worked for seventeen years as an asphalt laborer. AR 46. Depending upon the job, the pay ranged from $18 to $28 per hour, and often involved working overtime. He was a member of a union at that time. AR 46-48.

With the exception of a six-week period in 2007 wherein Plaintiff attempted to return to the work force, he has not worked since the onset of disability on December 28, 2006. AR 29-30. Plaintiff can no longer work because of the burning sensation in his left hand. The burning and throbbing travels from the tips of his fingers, up his shoulder, to his neck and across the backside of his neck. AR 30-31; see also AR 33-34. The pain is constant. AR 31. It worsens if he holds something like a coffee cup with his left hand. AR 31. When he was asked whether he was receiving treatment for the condition, Plaintiff replied he was not. When he was asked whether he was taking pain medication, Plaintiff replied that he was and indicated he takes Lyrica.*fn3 AR 31. The ALJ then asked, "[b]ecause of your Hep C?" and Plaintiff replied in the affirmative. AR 31. Plaintiff indicated that Lyrica helps but it makes him fall asleep. AR 31.

Plaintiff underwent surgery on his neck but it did not help his condition in any way. AR 31-32. In his words, "they just did the surgery and they didn't take the, the starting problem away" in his left arm. AR 32. Following the surgery, Plaintiff was told to return to work despite his continued complaints of pain. AR 32. Plaintiff's primary physician moved away, and therefore he had to find another physician. The new physician sent him to other doctors for additional testing. AR 32-33. One doctor advised Plaintiff he did have nerve damage or carpal tunnel syndrome, but another doctor said he did not. AR 33, 42. Similarly, one doctor advised Plaintiff he needed surgery on his left hand, whereas another doctor told him he did not need surgery. AR 42. In any event, he has not had surgery on his left hand. AR 42.

Despite the Hepatitis C condition, Plaintiff does not have any problems related thereto, nor did he identify any other problem. It was "just [his] left arm." AR 33.

When asked to describe a typical day, Plaintiff indicated he gets up about 6:00 a.m. He does not need any assistance showering or bathing, or washing his hair. His wife fixes him breakfast and coffee. AR 34. Because he takes medication three times a day - at 8:00 a.m., 1:00 p.m. and 6:00 p.m. - he gets drowsy and has to lie down and rest during the day. AR 42-43. Plaintiff explained that about forty-five minutes to an hour after he takes the medication he gets drowsy. Then he will go lie down for about thirty minutes, before sitting up and watching television. AR 43.

Plaintiff does not cook or clean, nor does he do the laundry. AR 34. Before he was injured, Plaintiff would help his wife with these chores "once in awhile." AR 35. He does not take care of the yard or fix things around the house because he can no longer do so. AR 35. Plaintiff used to restore classic cars as a hobby. It has been about two years since he last enjoyed his hobby; he had to stop because he could not hold onto anything with his left hand. AR 35. Plaintiff does not attend church or socialize outside the home. AR 35-36.

Plaintiff does drive, but "very little." For instance, he will drive a half mile to the grocery store. AR 34. On the date of the proceedings, his wife drove him to the hearing in his stepson's car. AR 34. When Plaintiff does drive, he does not go into the grocery store, rather, he stays in the car. AR 36.

When asked how far he believed he could walk, Plaintiff indicated "[p]robably about a block." AR 36. This is so because he begins to get dizzy and shakes. He does not know why. AR 36-37. Despite explaining to his doctor that walking makes him dizzy and causes him to shake, Plaintiff indicated the doctor told him to "just keep working little by little." AR 37. He believes the dizziness and shaking is caused by the medication. AR 37. When specifically asked to describe the dizziness, Plaintiff indicated that it was "like you get blurry a little bit." AR 37. He attributes the blurriness to nervousness because walking a block makes him nervous. AR 38.

With regard to the period of time he is able to stand, Plaintiff replied "[n]ot very long" or "20 minutes probably." AR 38. The difficulty is not with his legs; rather, his lower back will begin to hurt if he stands too long. AR 38. Plaintiff can sit for about ten minutes before he has "to turn" and can sit for a total of about twenty to thirty minutes before needing to lie down due to the back pain. AR 39.

Plaintiff initially indicated he could lift no weight with his hands, then indicated he could probably pick up twenty pounds with his right hand. AR 39. With specific regard to his left hand, Plaintiff indicated he could "barely pick [up] but maybe five" pounds. AR 40. He could hold onto that five pounds for about three minutes. AR 44. Plaintiff does not know how much weight he could lift if he were to use both hands, but estimated he could then carry it "about 20 feet probably." AR 40. Additionally, Plaintiff is unable to turn or twist his left hand because "it burns." AR 44. He is unable to grip anything with his left hand. In comparison, his right hand is much stronger. AR 45.

Reaching overhead with his left hand is not possible for Plaintiff. He cannot reach out in front of himself at shoulder height with the left arm either because his arm will begin to burn. AR 40. Plaintiff estimated he could use his left arm for about five minutes before it began to burn and throb. Thereafter, he has to stop and he "can't use it no more." AR 40-41. He cannot use the index finger and thumb on his left hand to pick something up off of a table because his hand will throb and his fingertips will burn. AR 44.

Plaintiff cannot read and he cannot write. If someone called the house for his wife, for example, he is unable to leave a written message for her. AR 41. He can write his name. AR 45. When he was asked whether he could read street signs, Plaintiff indicated that if he sits and studies them for "awhile" he can do so. AR 41-42. When Plaintiff was asked how he obtained his driver's license if he was unable to read, he indicated that his wife helped him study and he was able to take the test orally. AR 45. Plaintiff's wife handles the household bills and writes the checks. AR 51.

When asked whether he had any difficulty concentrating or focusing his attention, Plaintiff indicated that focusing is a "little problem" because focusing is "[j]ust blurry." AR 43. About twenty minutes is the most he would be able to keep his attention on an activity. AR 43. After twenty minutes his "back starts hurting" and he will lie down. He would "do nothing after that." AR 43. A rest period of about thirty minutes would be necessary before he could resume focus for another twenty minutes. AR 44.

VE Dachelet opined that Plaintiff could not perform his past relevant work as an asphalt laborer or raker because it is considered to be very heavy, unskilled work. AR 46.

The VE was asked to consider several hypothetical questions posed by the ALJ. First, VE Dachelet was asked to assume a hypothetical worker of Plaintiff's age, education, and work experience who can lift and carry twenty pounds occasionally and ten pounds frequently, can stand or walk six hours in an eight-hour day, and sit for six hours in an eight-hour day. The worker should avoid climbing ladders, ropes or scaffolds, and overhead activity with the left upper extremity is limited to occasional, as is frequent handling and fingering on the left. Lastly, such a worker is limited to simple, routine work. AR 48-49. VE Dachelet indicated such an individual could not perform Plaintiff's past relevant work. AR 49. Nevertheless, such a worker could perform sedentary and light unskilled work. Examples would include the following positions: bagger, Dictionary of Occupational Titles ("DOT") 920.687-08, with 30,369 jobs available in California; garment sorter, DOT 222.687-014, with 32,499 jobs available in California; and grader, DOT 529.665-010, with 19,918 jobs available in California. AR 29. National figures are obtained by multiplying the state number by ten. AR 49-50. VE Dachelet indicated his testimony is consistent with the DOT. AR 50.

In a second hypothetical, VE Dachelet was asked to consider the same worker and an identical scenario to the first hypothetical, with an additional limitation to occasional (rather than frequent) handling and fingering with the non-dominant left upper extremity. AR 50. The VE indicated that with the additional limitation, only the garment sorter position would be available to such a worker. The bagger and grader positions would be unavailable. AR 52. As a general matter, the VE indicated that at both the light and sedentary levels, when frequent fingering is prohibited, approximately two-thirds of the available positions "disappear" or are unavailable. AR 52-53.

In a third hypothetical question, the VE was asked to consider the same worker, with the following abilities and/or limitations: can lift twenty pounds with the right hand but only five pounds with the left hand; can carry either weight no more than twenty feet; can stand for twenty minutes at a time, sit for twenty minutes at a time, and walk for about a block; must avoid handling or fingering with the left hand; and perform ...

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