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Jose G. Ocejo v. Michael J. Astrue

November 15, 2011

JOSE G. OCEJO,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Jose G. Ocejo ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability insurance 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 *fn3

Plaintiff filed an application for disability insurance and supplemental security income benefits, alleging disability beginning April 20, 2001. See AR 13. Plaintiff's applications were denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 110-124, 130-133. ALJ Michael J. Kopicki held a hearing on January 15, 2009, and issued an order denying benefits on June 24, 2009, finding Plaintiff was not disabled. AR 13-21, 22-69. On July 8, 2010, the Appeals Council denied review. AR 1-3.

Hearing Testimony

ALJ Kopicki held a hearing on January 15, 2009, in Fresno, California. Plaintiff appeared and testified with the assistance of a Spanish language interpreter. He was represented by attorney Melissa Proudian. Vocational Expert ("VE") Jose L. Chaparro also testified. AR 22-69.

At the time of the hearing, Plaintiff was living with his "wife" or partner and three children in Orange Cove, California. AR 26-27, 29 (not married). The family receives food stamps and Aid to Families with Dependent Children. AR 27. Plaintiff has a driver's license and when he was asked whether he still drove he replied, "[n]o." AR 27. Later, when asked when he last drove, Plaintiff replied, "I think I drove yesterday or the day before yesterday." AR 28. He drives because "[t]he pain makes [him] go out there to crash." AR 38.

Plaintiff was born on September 26, 1970 and was thirty-eight years old at the time of the hearing. He completed the sixth grade in Mexico. He can read and write in Spanish, and cannot speak "too much" English. AR 28. He is five feet six inches tall and weighs about 220 pounds. AR 28-29.

When asked about the onset of his disability, Plaintiff replied that it began on April 20, 2001. AR 29. His most significant condition is the lower back pain. AR 29. Asked to describe the pain, Plaintiff indicated it is "strong" and always present. It rates as an eight to nine on a scale of one to ten. AR 29-30. The pain extends up to his neck and into his left leg and foot. AR 30. Flexing side to side increases the pain. AR 30.

Pain medication "calms" the pain "for a while," but it returns after about three hours. AR 30-31. He is currently taking the following prescribed medications: Methadone, Hydrocodone, "Imipramine, Rinka, Soma, Rinky . . . [a]nd Sampro."*fn4 AR 31. The medications cause drowsiness. AR 31.*fn5 Injections have helped, but only for about a day. AR 33. Plaintiff has also tried physical therapy, occupational therapy, heating pads and a TENS unit, but has not had much success. AR 33. On January 31, 1994, a laminectomy was performed. AR 34. Plaintiff worked thereafter because "the insurance . . . said [he] was fine." AR 34.

Plaintiff has also received treatment for gastritis or stomach issues, chest pain and neck pain. AR 35. Asked whether any doctor has ever explained why Plaintiff suffers such pain, Plaintiff indicated he has been told "it's because a disc, or I don't know something in my back is pressing my nerves." AR 36.

Despite treatment for depression, including prescription medications Cymbalta and Elavil, Plaintiff continues to "feel really bad" and occasionally cannot stand the pain. The medications do not stabilize his mood. AR 35.

Asked to describe a typical day, Plaintiff said he is "just there at home very desperate." AR 36. He does not do any housework but can prepare a simple meal in the microwave. He can also tend to his own personal hygiene needs. AR 36. He has difficulty tying his shoe laces because it is difficult to bend over. AR 36-37. When asked whether he shopped, Plaintiff replied that he gets "bored" and "very anxious with the noise." AR 37. Plaintiff does not watch a lot of television and sometimes turns on the radio. AR 37. He does not have a personal computer. AR 38. He can read for about three to four minutes. AR 37. He reads "little books" in Spanish to his son. AR 37-38. He does not have any hobbies, is not a member of any clubs or organizations, and does not attend religious services. AR 38. Plaintiff does not have any friends, and while he has family in Orange Cove, he does not visit them often. AR 39.

When asked how far he can walk, Plaintiff indicated he can walk about a block. He can sit and stand for about fifteen minutes before becoming uncomfortable. He estimated he could lift about five pounds. AR 40. Plaintiff could not perform a job that permitted him to change positions between sitting and standing because the medications make him "very sleepy" and without the medications he would be unable to endure the back pain. AR 41.

During an average day, Plaintiff rests often, for a total of about two hours a day. AR 41-42. He has difficulty sleeping every night. AR 42. He can concentrate for about fifteen minutes before needing to take a break. AR 42-43. He does not like to be around others because of the noise. AR 43.

Since his operation in 1994 Plaintiff has been in pain. Since August 2006, his pain has worsened. He has also suffered mentally since that time. AR 44.

VE Chaparro indicated that Plaintiff's past relevant work includes: fruit harvest worker, medium and unskilled, although Plaintiff performed the work at a heavy exertional level; kitchen helper, medium and unskilled; and metal production inspector, medium and unskilled. AR 45, 49-50.

The VE was asked to consider a hypothetical worker of Plaintiff's age, education and work history, who is literate in Spanish, but not English, and whom can lift and carry twenty pounds occasionally and ten pounds frequently, can sit, stand or walk for six hours in an eight-hour workday, and can occasionally stoop, crouch, crawl, kneel and climb stairs. AR 50-51. VE Chaparro indicated such an individual would be unable to perform Plaintiff's past work. AR 51. Nevertheless, other work exists in the national economy that the individual could perform, including: "apple protecting header," light and unskilled, DOT*fn6 920.687-010, with approximately 4,600 available positions in California; bottle packer, light and unskilled, DOT 920.685-026, with about 1,100 position available in California; and housekeeping cleaner, light and unskilled, DOT 323.687-014, with about 4,200 jobs available in California. AR 51-52.

In a second hypothetical, the VE was asked to assume a hypothetical worker of Plaintiff's age, education and work history, whom cannot lift any weight, and whom can sit, stand and walk for one-hour in an eight-hour day. AR 52-53. The VE agreed that it was fair to say "no past relevant work or any other work whatsoever" is available for such an individual. AR 53.

In a third hypothetical, the VE was asked to assume a hypothetical worker of Plaintiff's age, education and work history, whom can lift and carry ten pounds occasionally and five pounds frequently, can stand and walk no more than two hours in an eight-hour workday and sit for six hours in an eight-hour workday with a sit/stand option, and whom can only occasionally stoop, crouch and kneel, and should never crawl or climb ladders or scaffolds. Further, the worker would be limited to simple, routine tasks, with no more than occasional contact with the general public, and must avoid exposure to loud noise. AR 53. The VE indicated the individual would be unable to perform Plaintiff's past relevant work or any work in the national economy. AR 53-54. Asked whether there were sedentary unskilled jobs available with a sit/stand option, VE Chaparro indicated sedentary jobs performed at a bench, for example, may be available. AR 54-55. Representative unskilled sedentary work that may be performed with the ability to alternate positions would include the inspector/tester/sorter group, including a table worker, sedentary and unskilled, SVP*fn7 of two, DOT 739.687-182, with about 800 positions available in California, and a lens inserter, sedentary and unskilled, SVP of two, DOT 713.687-026. AR 56-57.

The ALJ then asked the VE to consider a hypothetical worker of Plaintiff's age, education and work history, whom can lift and carry ten pounds occasionally and five pounds frequently, can stand and walk no more than two hours in an eight-hour workday and sit for six hours in an eight-hour workday, with the ability to occasionally stoop, crouch and kneel; crawling and climbing were precluded. Further, the individual was limited to simple, routine work and only occasional contact with the general public. AR 57. The VE responded that representative work the individual could perform included escort vehicle driver, sedentary and unskilled, DOT 919.663-022, with approximately 2,800 jobs available in California. AR 58.

Plaintiff's counsel asked the VE to consider the last hypothetical, with the additional limitation of the need for unscheduled breaks of about two hours during the workday. The VE indicated all work would be eliminated for such an individual. AR 58-59. All work would also be eliminated if the individual was unable to concentrate for increments greater than fifteen minutes. AR 59. Asked to consider an individual impaired by the side effects of prescribed medication such that the individual could not function for eight-hours a day, five days a week, VE Chaparro agreed no work would be available for such an individual. AR 60.

Medical Record

The entire medical record was reviewed by the Court. AR 270-757. The medical evidence will be referenced below as ...


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