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Jose S. Vasquez v. Michael Astrue

April 8, 2011


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Plaintiff Jose S. Vasquez seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income ("SSI"), pursuant to Title XVI of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge.*fn1

Following a review of the complete record, this Court finds the decision of the Administrative Law Judge ("ALJ") to be supported by substantial evidence in the record as a whole and based on proper legal standards. Accordingly, this Court denies Plaintiff's appeal.

I. Administrative Record

A. Procedural History

On January 8, 2007, Plaintiff applied for SSI disability benefits, alleging disability beginning June 18, 2002. His claim was initially denied on May 16, 2007, and upon reconsideration, on August 29, 2007. On October 24, 2007, Plaintiff filed a timely request for a hearing. Plaintiff appeared and testified at a hearing on January 13, 2009. On May 13, 2009, Administrative Law Judge Sharon L. Madsen ("ALJ") denied Plaintiff's application. The Appeals Council denied review on September 11, 2009. On October 27, 2009, Plaintiff filed a complaint seeking this Court's review (Doc. 1).

B. Factual Record

Plaintiff (born August 26, 1955) graduated from high school and completed four years of college, but did not earn a degree. He had training as a carpenter and as a nurse's aid. Plaintiff worked as a raisin farmer until June 18, 2002, when he sustained back, neck, and shoulder injuries in a car accident. Although Plaintiff alleged that his disability began on the date of the accident, the record does not include any medical records of original or follow-up treatment of those injuries. Since the accident, Plaintiff has taken Vicodin*fn2 to relieve pain in his right leg. Plaintiff testified that physical therapy did not help him.

By March 2009, when Plaintiff testified at the hearing in this case, Plaintiff was homeless and living in his car. His wife and children were living with his wife's aunt.

In December 2006, Plaintiff developed a shoulder abscess attributed to drug-resistant streptococcus (MRSA). John Kettelle, M.D., performed emergency surgery, lancing the abscess and debriding the wound. By January 26, 2007, the wound had healed, and Plaintiff was reportedly "doing well," except for shoulder tightness. Subsequent treatment and testing revealed minor joint space narrowing and a limited range of motion. Physical therapy with home exercise follow-up improved his shoulder movement.

At about the same time, Plaintiff was diagnosed with diabetes mellitus. He experiences right foot neuropathy. Because of financial issues and his homelessness, Plaintiff's diabetes is uncontrolled. He takes oral medication (Glyburide and Metformin), but lacking refrigeration, does not administer insulin. The diabetes frequently complicated healing of Plaintiff's wounds. ///

In August 2008, Plaintiff, who has a history of kidney stones, developed a kidney infection when a stone blocked his urethra. Doctors surgically placed a nephrostomy tube to permit urine to drain from his right kidney until the urethral blockage was resolved. In late September, doctors performed surgery in which they removed the stone, placed a stent, and removed the nephrostomy tube. Although the stent was to have been removed later, Plaintiff still had the stent when he testified in January 2009.

Vocational expert testimony. Vocational expert Judith Najarian*fn3 testified that Plaintiff could not return to his prior work as a fruit crop farmer (heavy and skilled, SVP 7). Plaintiff skills were transferable in the farming industry.

For the first hypothetical question, the ALJ directed Najarian to assume a hypothetical person of the same age, education and work background as Plaintiff, able to lift and carry fifty pounds occasionally and twenty-five pounds frequently; able to sit, stand, and walk six hours per day; able to occasionally squat or kneel; unable to lift above shoulder level with the right arm. Najarian opined that, although the hypothetical person could not perform Plaintiff's former work as a raisin farmer, he could work as an industrial sweeper-cleaner operator (No. 389.683-010, medium, SVP 2), with approximately 58,434 positions in California; production worker/solderer (No. 813.684-022, light, SVP 2) with 5164 positions available in California; or production line assembler (No. 706.687-010, light, SVP 2) with 30,409 positions in California. For each job, Najarian omitted those subcategories that would require the individual to lift over shoulder level with his or her right arm.

For the second hypothetical question, the ALJ directed Najarian to assume the same restrictions as those of hypothetical question one, except that lifting and carrying was limited to twenty pounds occasionally and ten pounds frequently. Najarian opined that such a person could still perform the position of production worker/solderer and production line assembler, identified in response to hypothetical question one. In addition, such a person could perform the work of an information clerk (No. 237.367-018, light SVP 2). Approximately 9573 such positions are available in California.

Plaintiff's attorney then directed Najarian to assume the same restrictions as those of the first hypothetical question plus that the individual needed to rest from thirty minutes to one hour twice a day. ...

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