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Carlos S. Lopez v. Michael Astrue

April 25, 2012

CARLOS S. LOPEZ,
PLAINTIFF,
v.
MICHAEL 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 Carlos S. Lopez ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for supplemental security income benefits pursuant to Title 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

In July 2006, Plaintiff filed an application for supplemental security income benefits, alleging disability beginning January 1, 1999. See AR 135-141. Plaintiff's application was denied initially and on reconsideration. Thereafter, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 107-113. ALJ Theodore T. N. Slocum held a hearing and issued an order denying benefits on January 13, 2009, finding Plaintiff was not disabled. AR 20-27. On January 8, 2011, the Appeals Council denied review. AR 1-3.

Hearing Testimony

ALJ Slocum held a hearing on August 20, 2008, in Chico, California. Plaintiff appeared and testified. He was represented by attorney Shaneela Khan. Vocational Expert ("VE") Michael L. Stinson also testified, as did third party witness Raphael Serrano Lopez. AR 35-103.

Plaintiff's Testimony

Plaintiff was forty-seven years old on the date of the hearing. He lived with his parents at a rental home in Willows, California. AR 39-40. At five feet, seven inches tall, Plaintiff weighs 164 pounds and is right handed. AR 41. He currently receives welfare and food-stamp benefits of about $446 a month. AR 44-45. He no longer has a driver's license. AR 55-56.

Raised in San Jose, Plaintiff completed the tenth grade, dropping out of high school to work. AR 40-41. He can read and write, but not well. AR 81. Plaintiff has never served in the military. AR 41. He last worked for a couple months in 1998 for Properties Union passing out flyers. AR 41, 44. He left that position due to pancreatitis; he was drinking alcohol at the time. AR 41-42. He has never participated in an alcohol rehabilitation program, but when asked when he was last "drunk," Plaintiff indicated it had been about four years. AR 42. He no longer drinks alcohol as a result of the pancreatitis. AR 52.

When he was asked to identify the longest job he has held within the fifteen year period preceding his application for benefits, Plaintiff indicated that in 1991 he worked for Sundance Builders Company as a welder. He held the position for about year and it is the longest he has ever held a job. AR 42-43. He left because of a back injury; a related workers' compensation claim resulted in a settlement of $13,000. AR 43. Prior to that position, Plaintiff worked as an apprentice at a vehicle upholstery shop in 1994. He "couldn't handle it" because of his back. AR 44. He has not looked for work since 1998. AR 44.

Plaintiff's primary care physician is Dr. Garrison at Glenn Medical. AR 45. About five months ago, he underwent physical therapy on his back for about a month. AR 45. The last xray, CT scan or MRI performed on his back was in 1992. AR 45. He has never seen an orthopedic surgeon or neurosurgeon. AR 46. The back pain he feels has stayed the same since the time of his injury. Although his doctor has discussed obtaining an x-ray or MRI of Plaintiff's spine, his medical coverage will not cover either. AR 56. As a result of his back pain, Plaintiff has difficulty sitting for prolonged periods of time. He estimated he can sit for about ten to fifteen minutes before he needs to move around. AR 64. He also has difficulty with prolonged standing or walking, estimating he could walk about fifteen to twenty minutes before needing to sit or lie down. AR 64. The heaviest weight Plaintiff can lift and carry is twenty pounds. AR 64.

When Plaintiff was asked whether he could work if he were given a job that permitted him to sit and stand as necessary, and lifting was not an issue, he said that he "wouldn't be able to show up sometimes" as a result of his symptoms. AR 67. More particularly, Plaintiff indicated that sometimes he is unable to get out of bed. AR 67-68. This happens about twice a week, sometimes more. AR 68.

In 1999, Plaintiff was diagnosed with hepatitis. At the time of that diagnosis, he was using methamphetamine. He no longer uses drugs and last used about five years ago. AR 46. He has not received treatment for hepatitis because of a lack of medical coverage. His symptoms are fatigue, neuropathy or blurry vision, his hands and feet tingle and get numb, and he has difficulty grasping items and standing or walking. AR 57. His whole body shakes. AR 58. He takes prescription medication to treat the neuropathy, but it does not alleviate the symptoms completely. AR 58.

Plaintiff has trouble controlling his glucose intake as a result of his pancreas. AR 52. He has told his physician that his blood sugar is too high or too low because his pancreas "won't accept insulin sometimes." AR 54. He testified that although he maintains a good diabetic diet and takes his medications as prescribed, his diabetes is not always under control. AR 61.

For the previous year, Plaintiff has required assistance at home. AR 59-61. He feels stomach pain almost every day and passes out about every other day. AR 59. He is assisted by his brother with cooking and shopping. AR 62. His brother will also remind him to take his medications and will sometimes administer insulin. AR 63. When he was asked how many bad days he has in a month, Plaintiff replied about two days a week are bad days. He could not however describe a bad day because he "can't remember sometimes." AR 63.

Plaintiff is being treated for depression by a licensed clinical social worker. He has seen her for the past year and a half. He has never been treated by a psychiatrist or psychologist. AR 53, 61-62.

Plaintiff was scheduled to see a neurologist about one month after the hearing. AR 76. He has seen a neurologist before but could not recall when. AR 76. Plaintiff testified he takes prescription Tegretol for epilepsy. Dr. Garrison prescribed the medication about two years ago. AR 78.

When he was asked whether he had ever been convicted of a felony, Plaintiff replied that he had, but he was not certain as to the number of those convictions. He believed his convictions to be "[n]o more than four." AR 47. He was convicted in 1983 of grand theft for stealing a car stereo. He served three years in prison. AR 47-48. Thereafter, he suffered about three felony convictions involving drugs. AR 48. He has served time in Solano and San Quentin. AR 49-50.

Rafael Lopez

Plaintiff's brother Rafael Serrano Lopez also testified. He was thirty-six years old on the date of the hearing. Mr. Lopez graduated high school and works as a supervisor at a cannery. AR 70-71. Mr. Lopez leaves the house at 2 p.m. to begin his shift at work so he spends the morning in Plaintiff's company. AR 73. Once he leaves the house, his brother Martin takes over and provides Plaintiff further care. AR 73.

Mr. Lopez lives in the same house as his brother. When he was asked what types of things he helps Plaintiff with, Mr. Lopez indicated that sometimes Plaintiff's "bones are aching," so he will take him breakfast, or administer his insulin injection if Plaintiff is too weak. Mr. Lopez also does Plaintiff's laundry and his grocery shopping. AR 71. He "set[s] up" his medications for him. He has been doing these things for his brother for two or three years. AR 72.

Mr. Lopez does not believe his brother's condition is improving. He has noticed that his brother has difficulty with comprehension. AR 72. If Plaintiff's blood sugar is low, he looks as if "he's in space or something . . . just looks out of it." AR 72. He wakes in the middle of the night constantly coughing. AR 72. Mr. Lopez has heard Plaintiff "grunting like" and asked him what was wrong; Plaintiff replied that his bones ache. AR 73-74.

When he was asked whether he had ever seen his brother faint, Mr. Lopez indicated that he has seen it. He will check Plaintiff's blood sugars and inject him with insulin. Three or four months ago, Plaintiff was treated at a hospital in Willows because his sugars were higher than the meter could register. AR 74-75.

If his brother is having a good day, Mr. Lopez indicated that he will get up and make himself breakfast. AR 72-73.

VE Stinson

VE Stinson identified Plaintiff's past relevant work as: a tire repairer, DOT 915.684-010, semi-skilled with an SVP*fn3 of three, heavy exertion with frequent reaching, handling, fingering and feeling; apprentice automobile upholsterer, DOT 780.381-014, medium and skilled with an SVP of six, frequent reaching, handling, and fingering; and apprentice welder, DOT 810.384-010, heavy and skilled with an SVP of five, constant reaching and handling, frequent fingering, and insignificant feeling AR 82-84. Additionally, Plaintiff worked as a hand bill distributor or sandwich board carrier for a carpenter's union, DOT 299.687-014, light and unskilled with an SVP of one, occasional reaching, handling and fingering. AR 84-86.

In the first hypothetical, the VE was asked to assume a hypothetical person of the same age, education and work experience as Plaintiff, with the ability to lift twenty-five pounds frequently and fifty pounds occasionally, stand, walk or sit for six hours in an eight-hour workday, with the unlimited ability to push, pull or operate hand or foot controls, without postural, visual, or communicative limitations, however the individual should avoid even moderate exposure to hazards such as moving machinery and unprotected heights. AR 86-89. VE Stinson indicated such an individual could perform Plaintiff's past work as a hand bill distributor or sandwich board carrier. AR 89-90.

Bearing the same hypothetical individual in mind, the VE was asked whether there were other jobs in the region that the individual could also perform. VE Stinson indicated such an individual would be capable of work as a cashier, light with an SVP of two, DOT 211.462-010, with 1,202 positions available regionally, 114,879 positions available in California, and 1,024,758 positions available nationwide. AR 90. Additionally, the individual could work as a fast food prep worker, light with an SVP of two, DOT 311.472-010, with 493 positions available regionally, 33,937 positions statewide, and 380,924 positions nationwide. AR 91. Finally, the individual could also perform the work of a telemarketer, sedentary with an SVP of three, DOT 299.357-014, with 241 positions available regionally, 25,580 positions available statewide, and 315,310 positions available nationwide. AR 91.

In a hypothetical question posed by Plaintiff's counsel, the VE was asked to assume the same individual as that posed in the previous hypothetical but add that the individual does not have the ability to perform basic math skills. AR 93. The VE indicated such an individual would be unable to perform the job of a cashier or retail sales clerk. AR 93. Further, a limitation regarding fingering would result in a seventy-five percent erosion to the telemarketer position. AR 94-96.

In another hypothetical posed by Plaintiff's counsel, VE Stinson was asked to assume the hypothetical individual was limited to unskilled, less than sedentary work. The VE indicated the world of work would be closed to such an individual. AR 96.

Medical Record

The entire medical record was reviewed by the Court. AR 213-461. The medical evidence will be referenced below as necessary to this Court's decision.

ALJ's Findings

Using the Social Security Administration's five-step sequential evaluation process, the ALJ determined that Plaintiff did not meet the disability standard. AR 20-27.

More particularly, the ALJ found that Plaintiff had not engaged in substantial gainful activity since July 20, 2006, the application date. AR 22. Further, the ALJ identified diabetes mellitus, peripheral neuropathy, chronic pancreatitis, and asymptomatic hepatitis as severe impairments. AR 22. Nonetheless, the ALJ determined that the severity of the Plaintiff's impairments did not meet or exceed any of the listed impairments. AR 22-23.

Based on his review of the entire record, the ALJ determined that Plaintiff has the residual functional capacity ("RFC") to perform medium work with a limitation to avoid even moderate exposure to hazards working around machinery or heights. AR 23-26.

Next, the ALJ determined that Plaintiff was capable of performing his past relevant work as a hand bill distributor. Further, the ALJ determined that Plaintiff's past work did not require the performance of work related activities precluded by the RFC. AR 26. Alternatively, the ALJ found that Plaintiff could also perform the work of a cashier, fast food prep worker, or telemarketer. AR 26-27. Therefore, the ALJ found Plaintiff was not disabled. AR 27.

SCOPE OF REVIEW

Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405 (g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The record as a whole must be considered, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner's determination that the claimant is not disabled if the Secretary applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See Sanchez v. Sec'y of Health and Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).

REVIEW

In order to qualify for benefits, a claimant must establish that he is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. ยง 1382c (a)(3)(A). A claimant must show that he has a physical or mental impairment of such severity that he is not only unable to do her previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. Quang Van Han ...


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