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Francisco Rodriguez v. Michael J. Astrue

March 21, 2011


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


(Doc. 22)


Plaintiff Francisco Rodriguez ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications 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 his initial applications for Supplemental Security Income ("SSI") and Disability Insurance Benefits on November 13, 2006, alleging disability since April 1, 2002.*fn3

AR 136-148. His applications were denied initially and on reconsideration. AR 82-86. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 108. ALJ Patricia Leary Flierl held a hearing on October 1, 2008, and denied benefits on March 26, 2009. AR 9-68. On September 25, 2009, the Appeals Council denied review. AR 1-4 .

Hearing Testimony

An administrative hearing was held on October 1, 2008, in Fresno, California. AR 17-68. Plaintiff appeared with his attorney, Ms. Melissa Proudian. AR 19. Vocational Expert (VE) Susan Miranda also testified. AR 55-66.

At the time of the hearing, Plaintiff was 45-years old. He lived with his wife and two children, ages 14 and 10. AR 23. Plaintiff also has another child and three grandchildren who do not live with him. AR 23. Plaintiff has a GED and is attending community college. AR 25. He is majoring in family therapy and his courseload is currently 12 units. AR 25. He attends classes four times per week for approximately 15 hours per week and has "a lot of homework." AR 27. While at school, Plaintiff sits in class for one hour and then takes a ten to fifteen minute break to stand or walk. AR 27.

With regard to the daily activities of living, Plaintiff cooks three times a week, drives himself to school, washes the dishes daily, and grocery shops with his wife. AR 24, 50-51. He believes he is not able to work full-time due to pain in his lower back, right arm, and hand. AR 28. He also suffers from depression. AR 28.

The back pain began in 2002 after he hurt his back working as an assembler in 2001. AR 28-29. Plaintiff applied for Workers' Compensation and settled the case for $5,000.00.*fn4 Since the accident, he has continuing back pain which occurs once or twice a week, and lasts for 10 minutes. AR 30. Plaintiff treats his back pain with over-the-counter pain relievers and exercise. AR 33. For exercise, Plaintiff walks a half mile, but needs to take a break half way through. AR 33-34. Plaintiff also does modified push ups. AR 33. He engaged in physical therapy in the past, but has not participated in therapy since 2003. AR 40. He also currently uses a TENS unit approximately one hour a day to help to relieve the pain. AR 40-41.

Plaintiff is unable to sit for longer than one hour and can only stand for 20 minutes. AR 31-32. He is able to continue standing if he takes a break for five minutes. AR 32. He is also able to briefly lift his 22 pound grandchild with both hands, if she is on a high level surface. AR

32. However, he is only able to lift a water jug weighing three to five pounds for approximately five to ten minutes with his right hand. AR 32, 44.

Plaintiff had surgery on his right hand in January of 2007 to remove a "bump. " AR 42. However, he still experiences pain from his right wrist to his elbow which gets worse when doing repetitive activity. AR 42-43. He also has numbness on his fingers tips. AR 44. Notwithstanding the above, Plaintiff can reach his arm in front of himself at shoulder height without difficulty. AR 37. He is also able to open and close his right hand and use his right hand for fine motor activities such as opening a lock with a key, but he has problems with grasping. AR 43-45.

At school, Plaintiff can write with his right hand for twenty to forty minutes but then needs to take a break. AR 38. Similarly, he is able to type for ten to fifteen minutes but then stops for ten to fifteen minutes. AR 38.

Plaintiff has suffered from depression for the past eight months which has improved after he began taking Lexapro. AR 46. However, he still continues to cry everyday and he has difficulty concentrating and is easily distracted. AR 47, 49. He has had suicidal thoughts in the past, but those have subsided since taking the medication. AR 47-48. He sometimes has difficulty sleeping during the night, but he is able to sleep about six hours when he takes Lorazepam. AR 25. He naps five days a week for twenty to forty minutes. AR 36.

Plaintiff has held several jobs in the past. From 1989 through 1995, Plaintiff worked as a furniture coordinator/loader at Gottschalks. AR 56-57. From 1995 to 2002, he worked as an assembler/laborer and drove a forklift at an air conditioning company. AR 60. In 2003, he worked as a home inspector. AR 59. In 2006, he worked as a manager for a garden service for 40 hours a week. AR 60. From December 2007 until July 2008, Plaintiff also worked as a sales representative. AR 53, 61. Plaintiff had to quit the last position because the job required driving long distances. AR 53-54. He has not worked since 2008, but he has applied for jobs such as a clerk and counselor at a prison. AR 46-47, 55. Plaintiff has lifetime certifications in air conditioning and heating, as well as in home inspections. AR 26, 63.

Susan Miranda the VE also testified. AR 56-66. The ALJ asked the VE to assume a person of Plaintiff's age, education, who could lift 20 pounds occasionally and 10 pounds frequently, who could stand and walk in combination for six hours, who could sit for six hours, and who could frequently climb, balance, kneel, crouch, and crawl, but is limited to frequent fine and gross manipulation with the right hand. AR 63-64. The VE testified that Plaintiff would not be able to perform his past work as a furniture loader or forklift driver, but he could perform work as a manager, and sales assistant. AR 64. The VE testified that Plaintiff would also be capable of working as a cashier and as an office helper. AR 64.

The VE was asked to assume the characteristics of the same individual listed above except that the individual is limited to occasional fine and gross manipulation with the dominant right hand. The VE testified that this individual could not ...

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