The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT
Plaintiff David L. Jackson ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his applications for disability and supplemental security income 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
FACTS AND PRIOR PROCEEDINGS*fn2
Plaintiff filed an application for disability benefits on November 20, 2004, alleging disability beginning October 2004. AR 58-61. Plaintiff had also previously filed an application for supplemental security income benefits. See AR 13. Plaintiff's applications were denied initially and on reconsideration, and he requested a hearing before an Administrative Law Judge ("ALJ"). AR 43-48, 50-56. ALJ Fenton Hughes held a hearing on October 4, 2007, and issued an order denying benefits on November 23, 2007, finding Plaintiff was not disabled. AR 10-21. On January 29, 2010, the Appeals Council denied review. AR 4-6.
ALJ Hughes held a hearing on October 4, 2007, in Bakersfield, California. Plaintiff appeared and testified; he was assisted by attorney Geoffrey Hayden. Medical Expert ("ME") Irwin Weinreb and Vocational Expert ("VE") Jeff Beeman also testified. AR 204-236.
Plaintiff was forty-two years old at the time of the hearing. AR 207. He lives with his wife and six children. AR 217. He is five feet three inches tall and weighs 239 pounds. AR 207. Although Plaintiff has a driver's license with a only a restriction to wearing corrective lenses, he no longer drives because his vehicle in inoperable. AR 207-208. Plaintiff's vehicle, when operable, is automatic, yet it is not specially equipped to accommodate his prosthesis. Rather, he uses his left leg to operate both the accelerator and the brake. He cannot drive a vehicle with a manual transmission, and would not be permitted to drive a bus or truck. AR 217.
Plaintiff last worked in April or May of 2004 performing general office and clerical type duties. He was not required to perform any heavy lifting in that position. AR 208. He worked for two or three months, having gained the position through the Welfare to Work program. AR 209. When he was asked why he left, Plaintiff indicated he could not recall, "but it had something to do with the training" he was receiving. AR 208. When he was asked whether there was a physical reason he could not continue to perform that type of work, Plaintiff replied that he had fallen over loose carpeting and slipped in water on another occasion. AR 209.
Before the aforementioned position, Plaintiff also worked as a file clerk at a temporary agency between 1998 and October 2001. He left that position because he could not walk at that time. His back was weak and he could not stand for six to eight hours during a work day, and one of his legs was giving out. AR 209.
When he was asked why he could not work now, Plaintiff indicated he had "too many medical problems, lower-back problems, [his] left leg, and both of his wrists." AR 210. These conditions have not improved. AR 216.
In 1967, Plaintiff's right leg was amputated above the knee and he wears a prosthesis. AR 210. The amputation was required because he was born without "a front bone and kneecap" in the right leg. AR 216. The prosthesis comes loose at the knee joint and/or foot, and is unstable, causing him to "fall down a lot." AR 210-211. It fits well at the stump, but were "the sock to go inside [the] prosthesis that supports [his] stump, [he] could have skin tears, which do lead to bleeding." AR 211. Plaintiff does not believe his prosthesis is unequal, causing one hip to be higher than the other as indicated by an examining physician, but he could not offer any other reason for the inequity. AR 211.
Plaintiff indicated he can walk about a one-half block before needing to stop. From time to time he will use a cane or crutches, with the same result: one-half block. AR 211. When he was asked how long he could stand before needing to sit down, Plaintiff replied "less than [ten] minutes." AR 211-212. He can sit for twenty minutes or so before needing to change positions. AR 212. He can lift less than ten pounds without difficulty. AR 212. He cannot kneel, stoop or squat without pain. AR 212.
When he was asked to describe a typical day, Plaintiff indicated that he gets up in the morning and has coffee and breakfast. Once in a while he will check his email, but not every day because he finds it too painful. He often lies down on his stomach to relieve the pain.*fn3 AR 215. He does not do any housework, cooking or grocery shopping. AR 215. He can shower and dress, although once in a while he requires assistance with putting on his shoes. AR 215.
Plaintiff stated that he has no social life and his exercise is limited to walking one-half block. AR 215.
Plaintiff is unable to sleep through the night. The pain keeps him awake and sleep apnea causes him to stop breathing. AR 212, 214. Plaintiff feels the pain in his "waist" and lower back. AR 212-213. He takes Tylenol and 800 milligrams of Ibuprofen. AR 213. When Plaintiff was asked to rate his everyday pain on a scale of 1 to 10, he indicated the pain was a "9." He has suffered from this type of pain since high school. AR 214.
Plaintiff takes a prescription medication to treat diabetes and he also takes baby aspirin as a preventative. AR 213. At the time of the hearing, Plaintiff was also taking an antibiotic medication for an infection near the stump area of his right leg. AR 213. With regard to medication side effects, Plaintiff indicated that Soma caused greater pain on his left side; as a result, it was discontinued. The Glucophage, prescribed to treat diabetes, also caused him pain and was discontinued by his physician. AR 214. Plaintiff was diagnosed with diabetes about two years ago and the condition is controlled with medication. He occasionally experiences double vision however. AR 213. Howard Jackson, M.D., has been Plaintiff's treating physician for about three years. AR 215.
ME Weinreb asked Plaintiff about the impact of his condition on his activities of daily living. Specifically, the ME asked Plaintiff about an evaluation prepared in February 2005 when Plaintiff indicated he was able to perform some household chores, including vacuuming, laundry, and washing dishes, stopping from time to time to take a break. Plaintiff indicated he can no longer do those activities. AR 217-218. Further, Plaintiff denied performing automotive repairs on his vehicle, and indicated that his father-in-law does so. AR 218. When asked specifically about a reference to Plaintiff himself having fixed the brakes on his car in September 2005, Plaintiff indicated that he had forgotten about that occasion, and that it was a single exception. AR 218-219.
With regard to difficulty changing positions, ME Weinreb asked Plaintiff to describe the trouble he experiences when he goes from sitting to standing and vice versa, and from lying to sitting and/or standing. AR 219. Plaintiff indicated he must change positions slowly, and he occasionally has difficulty with his left foot. If he stands too long, the pain in his foot causes "a curvature." AR 219. The left foot has been a problem for a couple years, but he does not wear a special shoe or insert. AR 219-220, 222. If he were to try to crouch, Plaintiff indicated that he is unable to get up from that position and would require assistance. AR 220. He has trouble getting up from the toilet seat, and does so slowly, and with the assistance of crutches. AR 220. Plaintiff has seen a physician at the Valley Institute of Prosthetics within the past year for a repair to the knee section of his prosthesis. However, the adjustment did not help his ambulation or ability to change positions. AR 221.
Plaintiff replied to the ME's inquiry about any trouble with the upper extremities by indicating that both of his arms, or more particularly his wrists, are painful. The morning of the hearing he "could barely move [his] wrists" and hands. AR 221-222. His wife brushes his hair for him, but he is able to wash his face. AR 222. He is right-handed and uses an electric toothbrush. Plaintiff denied any difficulty putting on his glasses with either his left or right hand. AR 222.
ALJ Hughes asked ME Weinreb to summarize his understanding of Plaintiff's case. AR 223-225. After doing so, the ME concluded that Plaintiff had the residual functional capacity ("RFC") to frequently lift and carry between five and ten pounds, occasionally lift and carry ten pounds, could stand and walk about two hours in an eight-hour day with regular breaks, could sit for six hours in an eight-hour day with regular breaks, and had the ability to occasionally stoop, kneel, and climb stairs or ramps, but should avoid working on uneven ground or at unprotected heights, and may not climb ropes, ladders or scaffolds. AR 226-227. When asked by Plaintiff's counsel about Dr. Jackson's opinion that Plaintiff is "disabled because of gait problems caused by strain of the contralateral leg" (AR 232) and how that applies to Listing 1.05, Dr. Weinreb indicated that his review of Dr. Jackson's examination notes from October 2004 to June 2007, reveals the notes did not specifically address or support that statement. AR 232-233.
VE Jeff Beeman indicated that Plaintiff's most recent past work was performed at the light, rather than sedentary, level. AR 228. Therefore, Plaintiff ...