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Tair Ten Funches v. Michael J. Astrue

April 18, 2011

TAIR TEN FUNCHES,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Tair Ten Funches ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income pursuant to Title 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 Dennis L. Beck, United States Magistrate Judge.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed his application on May 25, 2005, alleging disability since March 10, 2005, due to Valley Fever. AR 70-72, 81-86. After his application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 57, 58-62, 65-69. ALJ Michael J. Haubner held a hearing on February 27, 2007, and issued a decision denying benefits on February 15, 2008. AR 10-20, 444-483. The Appeals Council denied review on February 25, 2010. AR 4-7.

Hearing Testimony

ALJ Haubner held a hearing in Bakersfield, California, on February 27, 2007. Plaintiff appeared with his attorney, Geoffrey Hayden. Vocational expert ("VE") Judith Najarian also appeared and testified. AR 444.

Plaintiff testified that he was born in 1984 and completed the twelfth grade. AR 452. He took all special education classes in high school. AR 453. Plaintiff made $1,700 in 2003 and $345 in 2002, and has not had any other work. AR 452. He stopped looking for work two years ago, when his doctor told him he could not work anymore. AR 453. Plaintiff was using a wheelchair that was prescribed in August 2006 after he had a thigh abscess. AR 454. He was still using the wheelchair even though his doctor told him to try and start walking when he got out of the hospital a few months ago. AR 455-456. Plaintiff last drank alcohol about two years ago. He uses marijuana every day and has a card for it. AR 457. Plaintiff thinks of suicide once a week. AR 457.

Plaintiff lives with his mother, sister and stepfather. AR 460. He has a driver's license but has not driven since August. AR 461. Prior to August, Plaintiff drove five to six times a week. AR 461. He currently visits family and friends twice a week. AR 462. Prior to August 2006, Plaintiff played sports, watched television, played video games and did chores. AR 463-464.

Plaintiff testified that he could stand up for two or three minutes and could walk about five feet. AR 465. He thought that he could lift and carry five pounds and concentrate for two or three minutes at a time. AR 466.

When questioned by his attorney, Plaintiff testified that he could not read or write. AR 474. He was diagnosed with Valley Fever in March 2005 and went to the hospital in July 2006 for a left leg abscess. AR 475. Plaintiff also explained that it was prior to his Valley Fever diagnosis, not August 2006, that he could play sports, etc. AR 477. Plaintiff had schizophrenia for two or three years and is taking medication for the pain of the abscess. AR 478. He also uses a morphine pump and has a medical marijuana card. AR 479.

Plaintiff's abscesses are caused by Valley Fever and he does not feel like he is getting any better. AR 481.

For the first hypothetical, the ALJ asked the VE to assume a person who could interact with co-workers and supervisors, deal with the public and understand, carry out and remember simple instructions and tasks. This person would need a payee to handle his funds. The VE testified that this person could perform the positions of poultry cutter, box vendor, bag loader and battery stacker. AR 469-470.

For the second hypothetical, the ALJ asked the VE to assume that this person could lift and carry 50 pounds occasionally, 25 pounds frequently, but had to avoid moderate exposure to fumes, dust, gasses, poor ventilation, etc. The VE testified that this person could perform the positions of battery stacker. AR 470-472.

If the first and second hypotheticals were combined, this person could perform the position of ...


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