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Jerry Wayne Parks v. Michael J. Astrue

December 13, 2011


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



Plaintiff Jerry Wayne Parks ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his applications for disability 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 applications for disability and supplemental security income benefits in March 2006, alleging disability beginning February 15, 2001. AR 145-151. Plaintiff's applications were denied initially and on reconsideration, and he requested a hearing before an Administrative Law Judge ("ALJ"). AR 92-95, 98, 100-104, 106. ALJ Michael J. Haubner held a hearing and issued an order denying benefits on March 13, 2009, finding that Plaintiff was not disabled. AR 10-22. On September 10, 2010, the Appeals Council denied review. AR 1-3.

Hearing Testimony

ALJ Haubner held a hearing on September 18, 2008, in Fresno, California. Plaintiff appeared and testified; he was assisted by attorney Melissa Proudian. Vocational Expert ("VE") Cheryl Chandler also testified. AR 23-57.

Plaintiff was born December 9, 1956. He graduated from high school and received "vocational training on the job." AR 29. Plaintiff lives with his wife and her fourteen-year-old daughter. AR 30. His wife works at a store. AR 31. Plaintiff has a valid driver's license, without restriction, and drives his pick up three or four times a week. AR 31-32.

When asked how much alcohol he was consuming, Plaintiff indicated that he no longer drinks alcohol, having quit in September of 2007. AR 30. He did not attend Alcoholics Anonymous or similar therapy, rather he quit on his own with the support of his family. AR 30.

With regard to personal needs, Plaintiff indicated that "[m]ost of the time" he can brush his own teeth, bathe or shower, and put his clothes on. AR 33. However, during the winter months, he needs assistance every day to button his shirt or pants, or pick up his utensils to eat. AR 33. His wife shaves him. AR 33. Plaintiff makes the bed two or three times a week. AR 32. He can no longer cook, but once a day he can prepare a simple meal such as a bowl of cereal. AR 33. Two or three times a week he is able to clean up after himself and do the dishes. AR 33-34. He does not do laundry any longer and does not iron clothes. AR 34-35, 37. He empties the trash once a week. AR 35. Plaintiff does not sweep or vacuum, and mops only if he spills something. When he was asked how often he had mopped in the previous year, Plaintiff stated "a couple times." AR 36. He does not do any yard work of any kind. AR 34.

When asked how long it had been since he last did grocery shopping, Plaintiff replied it had been about two years. AR 35. He attends church once a week, but is not involved in any other social groups or organizations. AR 35-36. He visits with others outside the home two to three times a week, and talks on the phone three to four times a day. AR 36.

Plaintiff does care for a Chihuahua, providing it food and water, but he cannot give the dog a bath. AR 34. He walks the dog every day for about fifteen minutes. AR 34.

When asked how he passed the time, Plaintiff indicated that he watches some television and is "up and down more than anything else." AR 37. He estimated he watches about two hours of television a day; he does not read either newspapers or books. AR 37.

After identifying his various physical conditions and impairments, Plaintiff indicated he has difficulty picking up and grasping items. AR 38-39. He can hold smaller objects like a pen or a coffee cup for about an hour during the course of a day, and for about fifteen minutes at one time. AR 39-40. After gripping or grasping an object for fifteen minutes, Plaintiff would have to rest for about two hours before doing so again. AR 40. When he was asked how much weight he could lift and carry, Plaintiff responded "about 5 pounds . . . 2 to 5." AR 41. He can stand for ten to fifteen minutes before needing to sit down and rest, and can sit for about twenty to twenty-five minutes before needing to get up and move around. AR 41. Within a normal eight-hour period during the day, Plaintiff must lie down for about two hours. AR 42. He does so due to the gout in his leg. AR 53. Plaintiff can focus and pay attention for about fifteen minutes before losing concentration. AR 41.

When asked whether he was fully compliant with treatment recommendations and medications, Plaintiff indicated he was about seventy-five percent compliant and the "cost [is] the problem." AR 42; see also AR 53. Plaintiff indicated he is "supposed to be on morphine," however he cannot afford it. AR 54. His medications do not cause side effects. AR 42. Plaintiff's condition has worsened since 2001 and he feels constant pain in his entire body. AR 42-43. His pain is a seven and a half to eight on a scale of one to ten. AR 42-43. He has not had to seek treatment for his pain in an emergency room within the last two years, but did go to the emergency room about five years ago. AR 43.

VE Chandler indicated that Plaintiff's past work includes work as an auto body repairman or auto technician, skilled with an SVP *fn3 of seven, performed at the heavy exertional level. AR 45. During the course of that work, Plaintiff's skills included the ability to read and interpret instructions regarding maintenance and repairs, consult reference materials, order equipment and parts, estimate time and perform computations, use hand and power tools, and employ basic oral and written communication skills. AR 45. Those skills offer limited transferability because they are "industry-specific." AR 45.

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 about six hours in an eight-hour day and sit for six hours in an eight-hour day, can occasionally climb, balance, stoop, kneel, crouch, and crawl, whom should avoid concentrated exposure to extreme heat and cold, vibration, uneven terrain, machinery, and heights. AR 45-46. VE Chandler indicated such an individual would be unable to perform Plaintiff's past relevant work. AR 46. Nevertheless, the VE indicated such an individual could perform other work. AR

46. More particularly, the individual could perform the work of an auto parts counter salesperson, semiskilled and light. AR 46. At the light level, there are about 6,000 such positions available in California; national figures are obtained by multiplying by ten. AR 47. VE Chandler indicated Plaintiff's past relevant work skills would be utilized in such a position. AR

47. Additionally, the hypothetical worker could also perform unskilled work in the form of counter salesperson and cashier, with 6,000 and 115,000, positions, respectively, available in California. AR 47.

In a second hypothetical, the VE was asked to assume an individual capable of managing funds, with the ability to remember locations and worklike procedures, understand, remember and carry out short and simple instructions, maintain attention and concentration for extended periods, accept criticism and behave appropriately; the individual would not require constant supervision, can complete a normal workday and workweek, and can interact with co-workers and the general public. AR 47-48. VE Chandler indicated such an individual could perform Plaintiff's past work, the entire world of unskilled work at all exertional levels, and the auto parts sales position previously mentioned. AR 48.

In a third hypothetical, VE Chandler was asked to consider an individual whom can lift and carry twenty pounds frequently and forty pounds occasionally, can sit for eight hours, stand for four hours in an eight-hour period and walk for four hours in an eight-hour period, can frequently reach, handle, finger, push and pull, but is limited in upper extremity overhead reaching; the individual can use foot controls, balance, occasionally climb stairs, ramps, ladders, ropes and scaffolds, stoop, kneel, crouch and crawl, can occasionally work around unprotected heights and moving parts, whom can frequently operate a motor vehicle, and withstand extreme temperatures, dust, fumes, odors, gasses and vibrations. AR 50-51. The VE indicated such an individual would be unable to perform Plaintiff's past relevant work, but could perform the work ...

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