Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Daniel Kibbee v. Michael J. Astrue

May 24, 2011


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



Plaintiff Daniel Kibbee ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability benefits and supplemental security income pursuant to Title II and 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 Gary S. Austin, United States Magistrate Judge.*fn1


Plaintiff filed his application on or about April 11, 2006, alleging disability beginning January 1, 1999. AR 117. His application was denied initially on September 7, 2006 (AR 64-67), and upon reconsideration on April 24, 2007. AR 76-80. Thereafter, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 88. ALJ James P. Berry held a hearing on July 22, 2009 (AR 20-47), and issued an order denying benefits on August 25, 2009. AR 9-19. Plaintiff requested a review of the hearing and the Appeals Council denied review on December 1, 2009. AR 1-3.

Hearing Testimony

ALJ Berry held a video hearing on July 22, 2009, with Plaintiff in attendance in Bakersfield, California and the ALJ presiding in Fresno, California. Plaintiff was represented by attorney Miss Barker. AR 22. Vocational expert ("VE") Linda M. Ferra also testified. AR 44-47.

Plaintiff's Testimony Plaintiff was fifty-one years old at the time of the hearing. AR 24. He is currently homeless and often stays with friends. AR 24. He was in the U.S. Navy from 1974 to 1981, and completed a GED while in the military. AR 24-25. He was honorably discharged in 1981. AR 25.

Plaintiff last worked in 1998 or 1999 in a department store performing janitorial duties and maintenance on the dock. AR 25. He kept this job while it was part-time, but resigned when he was offered full-time employment. AR 26. Plaintiff was also a full-time assistant manager at a hardware store for approximately six months where he was responsible for tracking inventory, cashiering, and helping customers. AR 26-27. He quit that job when he had a disagreement with the owner. AR 27.

Prior to working as an assistant manager, Plaintiff was a hardware store clerk for approximately three months. AR 27-28. He has also held jobs as a delivery person and a maintenance engineer for a medical facility. AR 28. As a maintenance engineer, he repaired small equipment. AR 28. Plaintiff was laid off while he was a maintenance engineer, although he also stated he had difficulty with management. AR 29.

Plaintiff suffers from severe depression and experiences feelings of hopelessness. AR 29. He believes that his depression in conjunction with difficulty getting along with supervisors causes him to leave jobs and have extended periods of unemployment. AR 29. Plaintiff's depression began when he was assaulted in the military during the 1980's. AR 29. He still experiences flashbacks and nightmares as a result of this incident. AR 29. He has sought treatment for these problems since 1986 at the Veterans Administration ("VA") clinic in Bakersfield. AR 29-30. He visits the VA every two months for mental health treatment and also travels to West Los Angeles for counseling when he feels his is "in a crisis situation." AR 30. Plaintiff has been prescribed Celexa, Benadryl, and Diazepam which helps control his emotions and improves his coping abilities. AR 30. While the medications are effective, they cause him to become drowsy and he is uncomfortable driving or operating machinery. AR 30-31.

Plaintiff also has a history of drug and alcohol abuse. AR 38. He is not currently in treatment at this time, however, the church he attends focuses on recovery. AR 38. He last relapsed seven months ago. AR 38.

In addition to his psychological conditions, Plaintiff broke his back while working at the medical center. AR 31-26. As a result, he suffers from severe pressure and pain in his lower back which causes physical limitations. AR 31-36. For example, he can only walk approximately 100 yards and he occasionally uses a cane for assistance. AR 34. He can only sit for fifteen to twenty minutes before experiencing numbness and he must change positions frequently to alleviate the pain. AR 33-34. He is also only able to stand for increments of twenty minutes during an eight hour period and he sometimes suffers from severe ringing in his ears. AR 35, 39. Plaintiff also has difficulty gripping objects with his left hand. AR 35. Finally, he has trouble sleeping at night and therefore must nap for two to three hours during the day. AR 36.

Plaintiff has had a number of tests to diagnose his problems and he takes Gabapentin, Ibuprofen, and Hydrocodone to treat the pain. AR 32. He has also undergone physical therapy, heat treatments, and performs stretching exercises which have helped relieve the pain in the past. AR 31-32.

With regard to activities of daily living, Plaintiff is able to dress himself and do basic household chores up to four hours per day. AR 37-38. He also helps a friend with her cleaning business by performing light cleaning tasks. AR 41-42. Plaintiff has a valid driver's license and drives three to four times per week to the market and to church unless he feels over medicated. AR 36-37. In 2006, Plaintiff also traveled to Mississippi to complete some plumbing repairs on a friend's home after Hurricane Katrina. AR 42. Despite these recent activities, Plaintiff does not believe he can return to any of his prior jobs. AR 38.

Vocational Expert Testimony

VE Ferra testified at the hearing and classified Plaintiff's previous work as an assistant manager as "light" work. AR 44. She also classified Plaintiff's past work as a hardware store clerk as "light, semiskilled." AR44. Plaintiff's job as a maintenance engineer was "skilled, heavy work," and the department store work was "unskilled, medium work". AR 44.

The VE was also asked to consider a hypothetical in which a worker could lift and carry twenty pounds occasionally and ten pounds frequently; could stand, walk, and sit for up to six hours; could balance, stoop, kneel, crouch, and crawl occasionally; could perform simple, repetitive tasks with the ability to maintain attention, concentration, persistence, and pace; and could interact with others, as well as adapt to the usual changes in a work day. AR 45. The VE indicated such a worker would be unable to perform his past work. AR 45. However, this individual would be ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.