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Fred Noble v. Michael J. Astrue

November 21, 2011


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



Plaintiff Fred Noble ("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


Plaintiff filed an application for disability insurance and supplemental security income benefits, alleging disability beginning June 1, 2008. See AR 151-158. Plaintiff's applications were denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 87-99. ALJ John Cusker held a hearing, and issued an order denying benefits on June 9, 2010, finding Plaintiff was not disabled. AR 8-16. On September 3, 2010, the Appeals Council denied review. AR 1-3.

Hearing Testimony

ALJ Cusker held a hearing on May 7, 2010, in Fresno, California. Plaintiff appeared and testified. He was represented by attorney Melissa Proudian. Vocational Expert ("VE") Jose L. Chaparro also testified. AR 17-57.

Plaintiff was forty-six years old on the date of the hearing. AR 22. He is no longer married and no longer drives because he cannot operate the pedals as a result of his condition. AR 23. He does not have a driver's license because "child support took [his] driver's license." AR 23. Plaintiff rode the bus in order to attend the hearing. AR 24.

When asked whether he had taken any medication that morning, Plaintiff replied in the affirmative and added that he took "a little extra actually." AR 25. Earlier that day, Plaintiff took both his morning and afternoon thirty-milligram dose of Oxycontin in order to "function and get out [] in the city." AR 26. His current medications include Oxycontin, Hydrocodone, Gabapentin, Proventil and Wellbutrin. AR 25. When he was asked whether he had consumed any alcohol that day, Plaintiff replied that he had consumed "an awful lot of liquor" the previous evening, consuming six beers before passing out. AR 26-27. Asked whether he has a problem with alcohol, Plaintiff replied "[n]ot really." He has never had to "go to classes," nor has he been "in trouble for it." AR 28. Later however, following an inquiry from the ALJ, Plaintiff admitted that he was convicted of a DUI in Arizona about ten years prior. AR 29.

Plaintiff completed the eleventh grade. He learned to read and write, but testified that he can no longer read the newspaper because his eyes are bad. AR 27. He claims "it just kills [him] to read anything these days . . . [e]verything is blurry." AR 27. He cannot read a paragraph without getting a headache. AR 27-28. Plaintiff has never received vocational training. AR 29.

Plaintiff last worked about two years ago. AR 30. His past work includes pool maintenance and building swimming pools. AR 29-30. About fifteen years prior, he worked at a golf course. He started out as a "bag boy"*fn4 and worked his way up to a supervisory position. AR 32. More recently he had been waiting tables at a seafood restaurant. He was let go after he "got a hernia." AR 30. When he was asked to indicate the time period during which he was employed at the restaurant, Plaintiff indicated it would have been the first four months of 2008. AR 31. Plaintiff testified that he did not work in 2009, but did offer that he received unemployment benefits after dishonestly indicating that he was capable and ready to work. AR 30-31.

Plaintiff is unable to work because he cannot concentrate as a result of the pain. AR 35. He has sciatica and it "feels like a truck is running over" his leg constantly. AR 34. He is "pretty much helpless." AR 35. Other than medication for pain, Plaintiff tried physical therapy but it made his condition worse and after his insurance expired, the "physical therapy people let [him] go." AR 35. Plaintiff believes "something is really wrong in [his] spine," because when he coughs or sneezes he "sees stars," sweats and blacks out. AR 38. He suffers from "drop foot" and it causes his right foot to be numb from the ankle down. AR 38, 44. Above the ankle, Plaintiff feels the pain up into his back. AR 44. He cannot walk up a flight of stairs. AR 45. It is also difficult to walk on uneven surfaces. AR 45. He has fallen trying to get into the shower and on other occasions. AR 45. Although a psychiatric examination occurred in May 2009, Plaintiff does not believe he has any mental problems. AR 39.

The cane Plaintiff uses was prescribed by his primary care doctor at Community Medical Center. AR 36. The doctor prescribes medications and has ordered various lab tests and an MRI. Plaintiff sees the doctor about once a month. AR 36-37. Plaintiff denied that he was told by his physician that he would have to quit smoking before becoming a surgical candidate. AR 37. Plaintiff uses his cane to pick things up that have fallen on the ground. He does not reach overhead with his arms. AR 46.

When asked how far he could walk, Plaintiff indicated he had tried to walk "the other day" and was able to get about a half a block, but he had to "sit down a few times." AR 37. He can stand about five to ten minutes without interruption. AR 37-38. He does not want to stand or sit, he would rather lie down. AR 38. The longest he can sit without interruption is about ten minutes. AR 38-39. He is "[b]arely" able to stoop or squat. AR 38. He cannot lift anything heavier than a gallon of milk. AR 38. Plaintiff estimated he spends about ninety percent of the time period between 6 a.m. and 6 p.m. lying down. AR 43.

With regard to personal grooming, Plaintiff indicated he showers about once a week. AR 40. It is difficult to shower because he cannot easily bend over. AR 41. Plaintiff can put his left shoe on, but has difficulty with his right. AR 41.

Plaintiff is currently homeless; he either stays on the floor at friend's home or at a church. AR 40. He has been homeless "since about January." AR 43. A typical day involves trying to make it to the park about a block away and lying on the grass "all day until the police kick [him] out." AR 41-42. If he cannot make it to the park, he sits, stands or lies down at the bus stop across the street. AR 42. Even when staying at his friend's home, Plaintiff does not do any chores or cook. AR 42. Prior to becoming homeless, Plaintiff had a girlfriend who did all his cooking and cleaning. She also helped him bathe. AR 43.

After some clarification, VE Chaparro indicated that Plaintiff's past relevant work includes: caddy, medium and unskilled, DOT*fn5 341.677-010; golf club manager, sedentary and skilled with an SVP*fn6 of 6, DOT 187.167-114; swimming pool installer, very heavy and skilled with an SVP of eight, DOT 869-463-010; swimming pool servicer, medium and semi-skilled with an SVP of four, DOT 891.684-018; and waiter, light and semi-skilled with an SVP of three, DOT 311.477-030. AR 48-51.

The VE was asked to consider a hypothetical worker of Plaintiff's age, education and work history, whom can lift and carry twenty pounds occasionally and ten pounds frequently, can stand and walk with the use of a walker and can sit without restriction, but whom cannot stoop, crouch or crawl. AR 51-52. VE Chaparro indicated such an individual would be unable to perform Plaintiff's past work. AR 54. Nevertheless, the VE indicated the individual could perform unskilled sedentary work. AR 54.

In a second 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 less than ten pounds frequently, can stand or walk for at least six hours in an eight-hour day using a cane, can sit for six hours in an eight-hour day with normal breaks, but cannot push or pull with the right lower extremity, and should avoid unprotected heights and walking on uneven terrain. AR 54-55. The VE indicated ...

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