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Larry D. Smith v. Michael J. Astrue

November 3, 2011


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



Plaintiff Larry D. Smith ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability insurance benefits pursuant to Title II 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 an application for disability insurance benefits in June 2006, alleging disability beginning November 1, 2005. AR 145-149. Plaintiff's application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 105-115. ALJ Michael J. Kopicki held a hearing on May 5, 2009, and issued an order denying benefits on July 22, 2009, finding Plaintiff was not disabled. AR 8-17, 121-124. On June 29, 2010, the Appeals Council denied review. AR 1-3.

Hearing Testimony

ALJ Kopicki held a hearing on May 9, 2009, in Fresno, California. Plaintiff appeared and testified; he was assisted by attorney Robert D. Hubbs. Vocational Expert ("VE") Kenneth Ferra also testified telephonically. AR 18-72.

Plaintiff was forty-nine years old at the time of the hearing. AR 25. He is six feet one inch tall, weighs 215 pounds and is left-handed. AR 25-26. Plaintiff lives with his parents, both of whom are retired and in their 70's. AR 24. He is presently separated from his wife. He has two boys in their 20's, one of whom is in prison. AR 26. Plaintiff does not have any source of income. He does receive food stamps. AR 24.

Beyond high school graduation, Plaintiff has attended community college courses for about two to three years. He earned six certificates from Shasta College in heavy-duty equipment repair. AR 25. Plaintiff also served in the Army and received an honorable discharge. AR 25.

In September 2005, Plaintiff began experiencing sharp pain in his right arm and thumb. Eventually, in November of that year, he underwent surgery on his neck. AR 27. He remained on his employer's payroll, despite being off work, until the following May. AR 27-28. Prior to having neck surgery, Plaintiff suffered from painful headaches. AR 31. The surgery was successful; he no longer has headaches or popping in the neck. AR 32. He does feel pain in his shoulder socket on the right side, but believes that to be separate from the neck. AR 42-43.

When asked to identify his biggest present problem that does not permit him to work, Plaintiff indicated his lower back is the biggest problem. More particularly, a sharp stabbing pain in the lower back that travels into his right leg. AR 28. The more active Plaintiff is, the greater the pain. Pain medications take the edge off, but do not completely resolve the pain. AR 29. In the past, he has used a TENS unit to treat pain in his "whole back." AR 29-30. Plaintiff has been told that surgery on his back is not advisable "because the benefits are worse than the risks." AR 30. He was told this by a neurosurgeon in Martinez, whom also advised him to stop jogging and to limit "jolt[ing]" activities. AR 30-31.

Plaintiff is followed and treated for hepatitis. AR 32. He feels a constant ache on his right side. He has received Interferon treatments on two separate occasions. AR 32-34.

In 1986, Plaintiff broke his right ankle. He still feels a throbbing pain that sometimes shoots up the leg and down into the foot. The pain in his ankle affects his ability to work, because the more he uses it the more painful it becomes. AR 34.

In the past three years, Plaintiff has suffered three fractured ribs. Just two weeks prior to the hearing, Plaintiff fell and fractured a rib. AR 45. About four to five months prior to that occasion, while in Redding, Plaintiff fell off a step and landed on his back. AR 45-46. He attributes the falls to his ankle because it just gives out on him. AR 45-46.

Plaintiff has difficulty sleeping due to sleep apnea and insomnia. AR 35. He indicated he sleeps an average of eleven to fifteen hours a week. AR 40. Plaintiff has used Tylenol PM and Benadryl to help him fall sleep. AR 40. Because he doesn't get enough sleep, he is tired all the time. Nevertheless, he cannot nap during the day. AR 41-42. Plaintiff has a CPAP device as a result of the sleep apnea, but indicated it "irritates" him and causes him to awaken. AR 42. As a result of his fatigue, he is not alert, and is "a little spacey now and then." AR 42.

While he has been diagnosed with depression, Plaintiff does not take any medication related to his depression, nor does he attend therapy or counseling sessions. AR 35. He does take Alprazolam for anxiety. AR 35-36. He does not attend therapy or counseling due to a lack of transportation. AR 35. As a result of a driving under the influence conviction, Plaintiff's license was suspended. Thus, he must rely on his parents for transportation and does not wish to impose on them too often. AR 35.

When asked to describe a typical day, Plaintiff indicated he gets up around 5:00 or 6:00 a.m. He used to go to school, but does not attend any longer. He tries to help his dad in the back yard and help his mom around the house. AR 47. Specifically, when helping his dad in the backyard, Plaintiff will use a self-propelled lawn mower to mow about 350 to 400 square feet of lawn. He also waters the lawn. AR 47. Plaintiff cares for and feeds three dogs: a Labrador and two Dachshunds. AR 48. He will occasionally go grocery shopping with his parents. AR 48. When he helps his mother around the house, Plaintiff picks up after himself and will occasionally vacuum or perform whatever chore his mother asks him to do. AR 48. He watches about seven hours of television a day. AR 49. He does not read for pleasure much, other than an occasional magazine article. AR 50. Plaintiff uses his parents' computer to check email and surf the web. AR 51. He does not have any hobbies, nor does he belong to any clubs or organizations. AR 51. He does not attend church. AR 52. Plaintiff visits with friends when they pick him up. AR 51.

Plaintiff used to attend West Hills College in Lemoore, but the workload became overwhelming. He was taking over twelve units, including algebra and biology. AR 49-50. He dropped out and is not sure whether he will go back. AR 50-51. While he was attending school, about ninety percent of the classes he took were online classes. AR 51, 56. For a period of time, Plaintiff received extra help regarding study habits and memory training. AR 54-56.

When asked how far he can walk, Plaintiff indicated he can walk about three quarters of a mile before the throbbing and stabbing pain sets in. He can stand about three hours and can sit for about three hours. AR 52. He does not know how much weight he can lift. AR 52.

Plaintiff's work history for the previous fifteen years involves the following positions: long haul truck driver, maintenance mechanic, dispatcher, delivery driver, garbage collector and construction worker. Some of the work involved very heavy lifting. AR 57-63.

VE Kenneth Ferra indicated that Plaintiff's past relevant work was semi-skilled with an SVP*fn3 of four, varying in exertional levels to very heavy. AR 65.

The VE was asked to consider a hypothetical worker of Plaintiff's age, education and work history, with the ability to lift twenty pounds occasionally and ten pounds frequently, who can stand or walk for six hours in an eight-hour workday and sit for six hours in an eight-hour workday, and whom can occasionally climb, stoop, kneel and crawl, with an additional limitation to simple, routine work. AR 65-66. VE Ferra indicated such an individual could not perform Plaintiff's past relevant work. AR 66. However, the individual is capable of performing the work of a cleaner, DOT*fn4 323.687-014, with approximately 56,000 jobs available in California; a packing-line worker, DOT 753.687-038, with approximately 31,000 ...

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