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Stan P. Harris v. Michael Astrue

August 30, 2011

STAN P. HARRIS,
PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Stan P. Harris ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for supplemental security income benefits 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 Magistrate Judge Gary S. Austin, for findings and recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed an application for supplemental security income benefits in August 2006, alleging disability as of September 14, 2004.*fn2 AR 128-133. Plaintiff's application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 77-90, 99-107. ALJ Stephen W. Webster held a hearing, and issued an order denying benefits on December 8, 2008, finding Plaintiff was not disabled. AR 8-19. On April 30, 2010, the Appeals Council denied review. AR 1-3.

Hearing Testimony

ALJ Webster held a hearing on September 24, 2008, in Fresno, California. Plaintiff appeared and testified; he was assisted by attorney Sengthiene Bosavanh.*fn3 Vocational Expert ("VE") Cheryl Chandler also testified. AR 20-61.

At the time of the hearing, Plaintiff was forty-nine years old. AR 24. He currently lives with his son. He has a driver's license and can drive. AR 25. Plaintiff can take care of personal grooming needs, and cooks sometimes. He does laundry "with difficulty." AR 25. He struggles with household chores, and can grocery shop but it "takes [him a] long period of time." AR 26; see also AR 51.

When he was asked how many hours he watched television per day, Plaintiff indicated "maybe four hours." AR 26. Regarding other activities, Plaintiff indicated he does not read for pleasure, play video games or use a computer. AR 26. Nor does he attend church, visit with family or friends, or go to the movies. AR 26.

Plaintiff typically gets up about 11 a.m., makes and consumes a pot of coffee, then "attempts to wash [his] dishes," and on some occasions that "takes hours." AR 27. On other days he will attempt to do laundry, clean the bathroom or change the sheets on his bed. AR 27. After eating breakfast or lunch depending upon the availability of food, Plaintiff takes his medication and talks to his "mom about getting money to pay [his] bills." AR 28; see also AR 29. Plaintiff explained that these activities amount to his entire day. It takes "hours" to get the floor swept and mopped because his hands and feet hurt, swell, throb and burn. Plaintiff will "do a little, go sit down for a little, do a little more, go lay down throughout the day." AR 28. He does eat dinner and then retires after midnight or one o'clock in the morning. AR 28. When he was asked whether he slept through the night, Plaintiff replied that he has "a problem sleeping." AR 28.

After earning a high school diploma, Plaintiff attended college for about a year but did not earn a degree. AR 28. He served in the United States Army as a mechanic. AR 29. Plaintiff has not worked since August 16, 2006, and does not receive welfare or food stamp assistance. AR 29.

When he was asked whether he had ever been in jail, Plaintiff indicated he had served time on three occasions: he got in trouble in the military and then served time for "child abuse and spousal abuse." AR 29. Asked specifically about the length of time spent behind bars, Plaintiff replied "two or three weeks at a time" as to each occasion. AR 29.

With regard to his health, Plaintiff suffers from depression and anger, and "pain, swelling, burning, [and] throbbing" pain throughout his neck, hands and wrists, back, right hip, knees and feet. AR 30. Plaintiff sees his physician about once a month for medications and treatment. AR 30-31. He also receives treatment at Fresno County Mental Health once a month or every other month, for medication and counseling. AR 31.

Plaintiff can sit for about fifteen to twenty minutes, can stand for "a matter of minutes," and can walk for about ten or fifteen minutes before needing to sit down. AR 32; see also AR 42. The heaviest item he can lift is a gallon of milk. While Plaintiff can pick an object up, he has difficulty holding the object because his fingers begin to ache. AR 32. Grasping and gripping items is difficult, as are repeated movements. For instance, he can use scissors to make a cut but continuing to use the scissors for five minutes would "cause problems." AR 39; see also AR 41. He has braces on both hands/arms, wearing them "once a day, six hours a day" for the pain. AR 33-34. Dr. Henry Cain*fn4 gave him the braces about eight years ago. AR 33. He understood Dr. Cain diagnosed carpal tunnel syndrome and arthritis. AR 38. Plaintiff no longer sees Dr. Cain because he is no longer insured. AR 39.

With regard to the pain in his legs, it is constant and worse when Plaintiff is standing. AR 41. The left leg is worse than the right, and is more swollen. AR 42, 44. Plaintiff also suffers from back pain on a daily basis, that "comes and goes." Repeated motions such as bending or lifting cause pain. AR 42. His right knee bothers him all day if he is moving around or walking; his left knee bothers him at all times, even when he is at rest. AR 43. Plaintiff treats the burning in his feet by pouring alcohol on them "every five to ten minutes" when he is at home. It makes his feet feel cooler. He also uses Ben-Gay to treat the burning sensation in his feet. AR 49-50.

Plaintiff's neck pain is a daily problem and restricts movement when he turns his head to the right side. AR 44. His right hip bothers him when he is sitting and driving. AR 44-45.

The medications Plaintiff has been prescribed help with the pain, but do not relieve it completely. AR 40. The medications "bring [the pain] down to a three" on a scale of one to ten for "say four to five hours." AR 40. Plaintiff indicated that pain rated a "three" on such a scale would preclude him from working. AR 40-41.

With regard to mental health issues, Plaintiff is schizophrenic, and sees "little bugs" or "little dots" at all times when he is in pain. AR 45. He suffers from anxiety and depression and an impulse control disorder. AR 45-46. He becomes angry, resulting in "hitting" and yelling. AR 46. A disagreement will trigger his loss of control. He does not want to be around others because "[p]eople make [him] get in trouble." He has been in trouble at work before for this reason. AR 46-47. While employed as a facilitator at "SVS" he was often called into the supervisor's office to be disciplined for his behavior. AR 47-48; see also AR 51. Plaintiff believes his difficulties with people stem from the manner in which he was raised; his parents slapped and hit him "[e]verytime [he] did something wrong." AR 48; see also AR 49-50.

Asked about employment within the past fifteen years, Plaintiff indicated that he worked at a recycling center for a period longer than six months but less than one year. He was the manager at the recycling facility, keeping everyone organized and assisting other employees. He did not prepare the work schedule or keep track of work hours, nor was he responsible for hiring or firing employees. He did supervise two others. AR 35. The heaviest weight lifted in that position was about ten pounds in the form of a cutting torch. AR 35; see also AR 38. Plaintiff also worked as a driver for SVS transporting handicapped people. AR 35. The clients were wheelchair bound and he would load the wheelchairs into the van using a lift and secure the wheelchairs and the clients before transport. AR 35-37. He worked there for about a year as a "facilitator." AR 36. That position also required changing diapers about two or three times a day as necessary. AR 37. Plaintiff was terminated from the position as a result of his criminal history and the company's state licensing requirements. AR 48. Plaintiff has had no other full time employment within the previous fifteen year period. AR 36.

VE Chandler indicated Plaintiff's past work skills were not transferable. AR 52. The VE was asked to consider a hypothetical worker of Plaintiff's age, education and work history, who could lift twenty pounds occasionally and ten pounds frequently, could sit, stand and/or walk for six hours in an eight-hour work day, but was limited to simple routine and repetitive work. AR 52. The VE indicated such a worker could not perform Plaintiff's past work, however, the hypothetical worker could perform light, unskilled work. AR 52-53. More specifically, the individual could perform work as: material handler, unskilled and light, DOT*fn5 922.587-010, with 6,700 available positions in the state; hand packager, unskilled and light, DOT 920.687-018, with 31,900 available positions in the state; or, production worker, unskilled and light, DOT 529.687-38, with 34,000 positions available in the state. National economy figures are obtained by multiplying the state number by nine or ten. AR 53.

In a second hypothetical, VE Chandler was asked to consider a hypothetical worker and the same factors as the previous hypothetical, with an additional limitation to only occasional contact with the public. AR 53. The VE indicated that the same jobs as those previously identified would remain available to this individual as well. AR 54.

In a third hypothetical, the VE was asked to consider a hypothetical worker of Plaintiff's age, education and work history, who could lift ten pounds occasionally and frequently, whom could sit or stand at will, and whom was limited to simple routine and repetitive work. AR 54. Plaintiff's past work would be unavailable to such a worker, however, the individual could perform unskilled sedentary work, in more limited numbers to reflect the sit/stand option limitation, such as a material handler (2,200 jobs; DOT 529.687-138), hand packager (1,000 jobs; DOT 920.687-034), and production worker (2,700 jobs; DOT 726.687-046). AR 54-55.

In a final hypothetical posed by the ALJ, VE Chandler was asked to assume a hypothetical worker of Plaintiff's age, education and work history, who could not complete an eight-hour day or forty hour work week. The VE indicated that such an individual would be unable to perform Plaintiff's past work. AR 55. Moreover, such an individual would be precluded from all work in the regional or national economy. AR 56.

Plaintiff's attorney posed a number of questions to the VE concerning fine and gross manipulation, other functional limitations, additional unscheduled breaks, and various mental limitations, for which the VE indicated no work would be available to such an individual. AR 56-59.

Medical Record

The entire medical record was reviewed by the Court. AR 200-357. The medical evidence will be referenced below as necessary to this Court's decision.

ALJ's Findings

Using the Social Security Administration's five-step sequential evaluation process, the ALJ determined that Plaintiff did not meet the disability standard. AR 8-19.

More particularly, the ALJ found that Plaintiff had not engaged in substantial gainful activity since August 16, 2006. AR 10. Further, the ALJ identified an injury to the neck and right knee, degenerative disk disease, and schizoaffective disorder as severe impairments. AR 10. Nonetheless, the ALJ determined that the severity of the Plaintiff's impairments did not meet or exceed any of the listed impairments. AR 10-11.

Based on his review of the entire record, the ALJ determined that Plaintiff has the residual functional capacity ("RFC") to lift twenty pounds occasionally and ten pounds frequently, can sit, stand and walk for six hours in an eight-hour day, and is limited to the performance of simple, repetitive tasks. AR 11-16.

Next, the ALJ determined that Plaintiff could not perform his past relevant work. AR 17. Nevertheless, based upon Plaintiff's age, education, work experience and RFC, the ALJ determined there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. Specifically, the ALJ found Plaintiff ...


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