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Justin Eugene Wells v. Michael Astrue

September 1, 2011

JUSTIN EUGENE WELLS,
PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



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 Justin Eugene Wells ("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 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 2007, alleging disability as of August 1, 2007. AR 111-113. Plaintiff's application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 56-60, 63-67, 69-71. ALJ Sharon L. Madsen held a hearing and subsequently issued an order denying benefits on January 5, 2010, finding Plaintiff was not disabled. AR 8-15. On April 23, 2010, the Appeals Council denied review. AR 1-4.

Hearing Testimony

ALJ Madsen held a hearing on November 17, 2009, in Fresno, California. Plaintiff appeared and testified; he was assisted by attorney Robert Ishikawa.*fn2 Vocational Expert ("VE") Cheryl Chandler also testified. AR 16-35.

Plaintiff was born April 11, 1984, and currently resides in Fresno with his grandmother. He is single, but has a five-year-old son who lives with his mother. AR 19-20. Plaintiff is not currently receiving any benefit, including food stamps. AR 21.

While he does have a driver's license, Plaintiff does not drive and it has "been a long time" since he has done so. He relies upon his girlfriend for transportation. AR 21. Plaintiff completed the eleventh grade, but has no education beyond that point. AR 21.

When asked about daily activities, Plaintiff indicated that he has difficulty with grooming and personal needs. More specifically, he cannot shave, comb his hair, or "wash [his] bottom" and requires the assistance of others due to the pain in his back. AR 21; see also AR 28. He does not do any household chores, does not cook, and does not use the microwave or make a sandwich. AR 22. Plaintiff does not do any shopping, attend church, or visit with friends and family in a social setting. AR 22. He spends time with his girlfriend and "friends [who] come by every once in a while to see" him. AR 22. He and his girlfriend sit around and watch movies. AR 22. A typical day for Plaintiff involves his lying in bed watching television, and falling asleep off and on. AR 22. He does not get up and walk around or go outside. AR 22.

Asked to describe his pain, Plaintiff indicated the pain goes across the bottom of his back, toward his hips, and to the side underneath his arm. He also feels pain in his stomach. AR 23. The pain is constant, and the cold, sitting in one place too long or trying to walk too far make it worse. AR 23; see also AR 30. Stretching and bending also make the pain worse. AR 23. He cannot lift his arms without feeling pain in his back. AR 28. The most comfortable position for Plaintiff is lying down. AR 23. When he was asked how many total hours in a day he lies down, Plaintiff indicated about twenty hours a day. AR 30. The pain is treated by the medication Tramadol as prescribed by a physician. AR 23. The Tramadol helps a "little bit," but also makes him dizzy. AR 30. Plaintiff sees a physician or attends a clinic about once a month. AR 23-24. He has never been sent to physical therapy because he does not have insurance. Surgery has never been mentioned. AR 24. Plaintiff does receive "MSD" from the county, receiving his medications once a month and seeing his primary physician about every ten months. AR 28.

When asked how much weight he could lift as a result of his back pain, Plaintiff indicated that it "hurts to lift a gallon of milk sometimes." AR 24. He estimated he could sit for thirty to forty minutes before the pain worsened. AR 24. Sitting puts pressure on his back and causes pain. AR 28. Plaintiff could stand for five to ten minutes before the pain worsened, and estimated he could walk a half a block. AR 25. Plaintiff uses a cane and believes it was prescribed after he was injured in 2003; he has been using the cane since that time. AR 25.

With specific regard to the injury he sustained in 2003, Plaintiff indicated he was the victim of a violent crime when he was stabbed by "a guy that was beating on a girl" and Plaintiff tried to stop him. He was stabbed with a carpet knife or box cutter about five times and received "like 150 stitches and 50 staples." AR 27. The wounds still bother him and "open up" whenever they become inflamed, or he bends the wrong way. AR 27-28. When the wounds do re-open, Plaintiff "just take[s] the pain." AR 28.

Plaintiff also suffers from depression and anxiety. Specifically, he becomes anxious because he cannot get around, cannot work, and does not have a social life. AR 25. He last sought mental health treatment "last year some time," but does take Paxil as prescribed by his primary physician. AR 26. Plaintiff has attempted suicide on three previous occasions in 2008, resulting in "5150" admissions. AR 29. He indicated that his medication helps, however, when Plaintiff does not take the medication he considers suicide. AR 29. Other than the suicidal thoughts, Plaintiff feels depressed and has lost interest in everything. AR 29.

Plaintiff uses marijuana, but has stopped drinking because he is not supposed to drink while taking the prescription medication. AR 26. The marijuana "helps [him] through pain." AR 30.

When he was asked whether he could keep track of what was going on while watching television, Plaintiff responded, "[s]ometimes yeah, it depends." AR 26-27. Plaintiff indicated he does not get along well with others, and in particular, crowds make him nervous. AR 27.

VE Chandler was asked to consider a hypothetical worker of Plaintiff's age, education and work history, who could lift and carry twenty pounds occasionally and ten pounds frequently, could sit, stand or walk for six hours in an eight-hour work day, but was limited to occasional stooping and crouching. AR 31. The VE indicated such an individual could perform the full range of light unskilled work. Representative work would include assembly, DOT*fn3 529.685-038, with 21,400 available positions in the state; filling machine operator, DOT 529.687-282, with 21,000 available positions in the state; or, sorting and inspection, DOT 741.687-010, with 14,800 positions available in the state. AR 31.

In a second hypothetical, VE Chandler was asked to consider the same factors as presented in the previous hypothetical, with an additional limitation to simple routine tasks. The VE indicated that the same jobs as those previously identified would remain available to this individual as well. AR 31.

In a third hypothetical, the VE was asked to assume all previous information, with an additional limitation to a sit/stand option. AR 32. Available representative work for such an individual includes cashier, DOT 211.462-010, with 12,000 available positions after a ninety percent erosion to reflect the sit/stand option. This worker could also perform unskilled sedentary work such as a materials handler, DOT 529.687-138, with 2,600 available jobs, and hand ...


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