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Salvador S. Perez v. Michael J. Astrue

January 4, 2012

SALVADOR S. PEREZ,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT (Docs. 1, 13, 16)

I. INTRODUCTION

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") pursuant to Title II and Title XVI, respectively, of the Social Security Act (the "Act"). 42 U.S.C. § 405(g); 1383(c)(3). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1

II. BACKGROUND

A. Factual Background

Plaintiff was born on April 16, 1965, and previously worked as a laborer in construction. (Administrative Record ("AR") 35, 33.) Plaintiff has obtained the equivalent of a General Education Development certificate, but has had no further education or training, speaks Spanish as his first language, and speaks very little English. (AR 39.) Plaintiff filed applications for DIB and SSI on December 19, 2006, which were denied; he reapplied for DIB and SSI on November 7, 2007. (AR 186-90, 191-93.) Plaintiff alleges that he became unable to work on June 12, 2004. (AR 206, 211.)

Plaintiff asserts that his inability to work is due to a back injury that occurred sometime in 2003, and his back was re-injured in 2004. (AR 45-46.) Plaintiff also suffers from diabetes and glaucoma. (AR 48.) On November 16, 2006, Plaintiff underwent a laminotomy surgery and nerve root decompression at L3-4 and L4-5. (AR 390-91.) On January 5, 2007, Plaintiff completed a pain questionnaire and reported that he could do household chores, rake leaves, wash dishes, drive, and shop, but could not carry heavy objects. (AR 249-51.)

On July 17, 2007, Plaintiff failed to appear for a scheduled appointment at Sequoia Community Health Centers. (AR 507.) On July 19, 2007, Plaintiff was seen by Dr. Alan Sanders for a complex orthopaedic examination and report. (AR 454-67.) The purpose was to re-evaluate Plaintiff's condition because he had undergone surgery since his last visit. (AR 463.) Dr. Sanders noted that Plaintiff had care and therapy following his surgery, to which he had responded well. (AR 463.) Plaintiff reported that he was much better and that he no longer had numbness, tingling, or radiating pain in his leg. (AR 455.) Plaintiff, however, continued to have pain in his back upon bending, stooping, and lifting. (AR 455.) He also experienced discomfort and pain in his back generally, with pain shooting occasionally to his buttocks or thighs. (AR 455.) Dr. Sanders opined that Plaintiff "should be limited on a prophylactic basis to light work." (AR 463.)

On September 11, 2007, Plaintiff failed to appear for another scheduled appointment at Sequoia Community Health Centers (AR 506), but did return for a follow-up appointment on November 12, 2007 (AR 505). On December 31, 2007, Plaintiff completed an exertional daily activities questionnaire and reported that he did yard work, shopped, and drove. (AR 277-79.)

B. Administrative Proceedings

The Commissioner denied Plaintiff's applications initially and again on reconsideration. (AR 110-14, 116-19.) Consequently, on July 28, 2009, Plaintiff's request for a hearing before an Administrative Law Judge ("ALJ") was granted (AR 176-80), and a hearing was held on October 7, 2009, before ALJ Stephen W. Webster. (AR 30-54.) Plaintiff and a Vocational Expert ("VE") testified. (AR 30-54.)

1. Plaintiff's Testimony

Plaintiff testified that he was born on April 16, 1965. (AR 35.) He drives a vehicle, but only for short periods and cannot go over bumps because of pain in his back. (AR 37.) He is able to perform his personal grooming, but sometimes needs his wife to help him put on his socks. (AR 37-38.) His wife does all the cooking and laundry, but he helps clean around the house when he can. (AR 38.) He reads and writes in Spanish, but only speaks some English. (AR 39.) He has not worked since June 12, 2004. (AR 39.)

Plaintiff testified that he has pain due to back injuries, and he has diabetes. (AR 41.) He goes to Sierra Vista, a medical clinic, for treatment approximately once a month, when his medications run out. (AR 41-42.) He also receives treatment for some emotional problems at the same clinic. (AR 41-42.) He receives medicine for glaucoma, chest pain, back problems, and diabetes. (AR 42.) The medications help somewhat with his pain, and he has used a girdle to alleviate the pain. (AR 42-43.)

The ALJ observed that, during the hearing, Plaintiff was sitting on the edge of his chair and leaning against the edge of the table. Plaintiff testified that this was to support himself and that it did hurt a little. (AR 43.) He stated that it does not generally hurt him to sit, but he has to be careful and can only sit for one or two hours or less. (AR 43.) He can sit for 15 to 20 minutes at one time, stand for 45 to 60 minutes, walk for approximately three to four blocks, and lift approximately 10 to 15 pounds. (AR 44-45.)

Plaintiff testified that his surgery in 2006 alleviated pain and numbness in his right leg. (AR 46.) He believes his ability to work is limited because he can only perform any particular activity for one to two hours. (AR 47.) He lies on his side for approximately an hour to rest his back and alleviate the pain once every three days. (AR 47-48.) His diabetes affects his vision and he cannot see small letters because they are blurred. (AR 49.) At times, he misses reaching for small objects as a result. (AR 49.)

2. Vocational Expert's Testimony

The VE testified that a person of Plaintiff's age, education, and work experience who could lift 20 pounds occasionally and 10 pounds frequently; stand or sit about six hours in an eight-hour workday; and occasionally stoop, crouch, crawl, and kneel could not perform Plaintiff's past relevant work. (AR 50.) However, jobs in the national or regional economy existed that a hypothetical person with these limitations, at the sedentary*fn2 and light*fn3 unskilled level, could perform, including bagger, garment sorter, and grader. (AR 50-51.) Given these limitations, there would be 45,460 jobs as a bagger, 21,731 jobs as a garment sort, and 20,715 jobs as a grader. (AR 50-51.) The VE stated that there would be nine times the number of jobs available in the national economy. (AR 51.)

The VE testified that a second hypothetical person of Plaintiff's age, education, and work experience who could lift ten pounds occasionally; stand or sit at will; and occasionally stoop, crouch, crawl, and kneel could not perform Plaintiff's past relevant work. (AR 51.) However, jobs in the national or regional economy existed that a hypothetical person with these limitations, at the sedentary unskilled level, could perform, including ampule sealer, loader of semi-conductor dyes, and stuffer. (AR 51-52.) Given these limitations, there would be 3,135 jobs as an ampule sealer, 2,790 jobs as a loader of semi-conductor dyes, and 612 jobs as a stuffer. (AR 51-52.)

3. ALJ's Decision

On December 10, 2009, the ALJ issued a decision finding Plaintiff not disabled from July 18, 2007, through the date of the decision. (AR 20-29.) The ALJ found that Plaintiff (1) meets the insured status requirements of the Social Security Act; (2) has not engaged in substantial gainful activity since June 12, 2004; (3) has severe impairments consisting of chronic residuals from laminectomy and decompression surgery at L3-4 and L4-5 of the spine; (4) does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, ...


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