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Cornell D. Wheeler v. Michael J. Astrue

November 23, 2011


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



Plaintiff Cornell D. Wheeler ("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 September 5, 2005. See AR 128-144. Plaintiff's applications were denied initially and on reconsideration. Thereafter, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 80-88, 93-99, 101-107. ALJ Stephen W. Webster held a hearing, and issued an order denying benefits on August 31, 2009, finding that Plaintiff was not disabled. AR 9-16. On September 3, 2010, the Appeals Council denied review. AR 1-3.

Hearing Testimony

ALJ Webster held a hearing on June 16, 2009, in Fresno, California. Plaintiff appeared and testified. He was represented by attorney Dennis Bromberg. Vocational Expert ("VE") Judith Najarian also testified. AR 17-43.

Plaintiff was born January 30, 1968. He is not married and lives with his mother and grandmother. AR 20-21, 38. He has four children. AR 21. While he does have a driver's license, Plaintiff indicated he drives only "sometimes," otherwise, his mother drives him where he needs to go. AR 21.

After graduating high school, Plaintiff took welding classes, but did not complete the course. He has had no other vocational training. AR 23. Plaintiff has not worked since the onset of his disability on September 5, 2005. AR 24.

A typical day for Plaintiff involves sitting around the house and watching television "on and off." AR 22, 38. He no longer plays video games and does not use a computer at home, nor does he read. AR 22. Plaintiff does not cook, but he can heat up food in the microwave and make a sandwich. AR 22, 39. While he does not shop, do the laundry, vacuum, sweep or mop, Plaintiff does take out the trash "sometimes." AR 22, 39.

Plaintiff does not require assistance with any personal grooming needs. AR 22. He does not have any hobbies and no longer goes to the movies. AR 22-23. He loves watching and renting action movies and has no difficulty paying attention during the movie. AR 36-37. Plaintiff is able to attend church and sometimes visits with friends. AR 22-23. He indicated he would like to go fishing, but cannot do so. AR 38.

Plaintiff suffers from depression and is "[j]ust not happy." AR 24. He receives treatment for his depression at Fresno County Mental Health and goes to the doctor there when his mother tells him to do so. AR 25. He seeks treatment for his physical ailments from his mother's physician, Dr. Kerr, and does so when she directs him to do so. AR 25.

With specific regard to his back pain, Plaintiff feels pain at the top of his buttocks up onto the left side of his back. AR 30-32. He pain is sharp "[e]very now and then." AR 30-31. Sometimes he can bend and stretch; other times he will feel a pinch. AR 31. The pain also goes down his left leg into his knee and down into his ankle. AR 34-35. When he was asked whether walking made the pain worse, Plaintiff replied that he could walk about an hour before having to stop. He can stand, as if waiting in line, for about fifteen to twenty minutes. AR 32.*fn3 Plaintiff can sit for about twenty minutes before having to get up. AR 32. He can lift and carry a gallon of milk, or about eight pounds. AR 27. Plaintiff indicated that his pain is alleviated by watching television because then he is not thinking about the pain; it takes his mind off of the pain. AR 33-34. The prescription medication Vicodin relaxes him and helps with the pain because it "works real good." AR 34. When he was asked about his energy level, Plaintiff responded that it was "[v]ery high." AR 36.

Plaintiff testified that his inability to "think right" is what he means when he says he is depressed. AR 28. He takes medication to relax. AR 28. As a result of the medication, Plaintiff indicated he has not heard voices "in a while," having last heard voices a few months prior to the hearing. AR 37. He does think about suicide every day and prefers to be alone. AR 37-38. Plaintiff denied ever having a problem with drugs or alcohol, specifically stating he did not use drugs or drink alcohol. AR 29.

VE Najarian*fn4 was asked to consider a hypothetical worker of Plaintiff's age, education and work history, whom can lift twenty pounds occasionally and ten pounds frequently, can sit, stand and/or walk for six hours in an eight-hour day, and whom may occasionally stoop, crouch, kneel or crawl, and is limited to simple, routine and repetitive tasks. AR 40. VE Najarian indicated that such an individual would be unable to perform Plaintiff's past work. Nevertheless, the VE indicated the individual could perform light, unskilled work. AR 40. For example, the worker could perform the following: meat or poultry cutter, DOT*fn5 525.687-010, with 6,881 positions available in California; production line solderer, DOT 813.684-022, SVP*fn6 of 2, with 5,164 positions available in California; and packing line worker, DOT 753.687-038, with 31,574 positions available in the state. AR 40-41. Nationwide figures are obtained by multiplying times ten. AR 41.

In a second hypothetical, the VE was asked to assume a hypothetical identical to the first, with an occasional limitation to maintaining attention, concentration and pace. AR 41. VE Najarian indicated such an individual would be unable to perform Plaintiff's ...

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