The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT
Plaintiff Dennis A. Sanchez ("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
FACTS AND PRIOR PROCEEDINGS*fn2
In August 2007, Plaintiff filed applications for disability and supplemental security income benefits, alleging disability beginning July 7, 2005. See AR 171-180. Plaintiff's applications were denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 102-106, 108-112, 114-124. ALJ Michael J. Kopicki held a hearing and issued an order denying benefits on November 27, 2009, finding Plaintiff was not disabled. AR 9-17. Thereafter, on February 11, 2011, the Appeals Council denied review. AR 1-3.
ALJ Kopicki held a hearing on October 15, 2009, in Fresno, California. Plaintiff appeared and testified. He was represented by attorney Michael Goldberg. Vocational Expert ("VE") Jose L. Chaparro also testified. AR 20-52.
Plaintiff lives with his seventy-eight-year-old father and his girlfriend in Fresno. AR 21-22. He has two adult children who live outside the home. AR 24. He currently has no source of income, but did receive unemployment benefits in 2008 and 2009. He has not yet received a decision on his workers' compensation claim. AR 22-23.
Plaintiff was fifty-one years old at the time of the hearing. AR 23. He is five feet seven inches tall, weighs 175 pounds, and is right-handed. He attended high school through the eleventh grade, obtained a GED and has received vocational training. AR 23-24. He has never served in the military. AR 24.
Following surgery for a rotator cuff injury to his shoulder in July 2005, Plaintiff was off work for seven or eight months. Upon his return to work, he worked two days before being advised that his employer needed "further information from the doctor;" he never returned to work thereafter. AR 25; see also AR 40-42. At present, Plaintiff has undergone three or four surgeries on his right shoulder. AR 27-28. His current symptoms include pain and lack of movement. Specifically, he cannot move "upwards" or "sideways," nor can he lift anything over his shoulder. As an example, he cannot lift a full carton of milk from the refrigerator. AR 28. Plaintiff testified that he can "almost feel the piece of ligament stretching in [his] right shoulder, and the pain is consistent." AR 28. As a result of his disability, Plaintiff believes he will be a liability to any company and its employees. AR 28-29. Asked to rate his pain on a scale of one to ten, Plaintiff testified the pain is a ten. AR 29. Plaintiff has not followed through with physical therapy because he cannot "do the repetitious therapy" he was asked to do. AR 29. Further, Plaintiff testified that he spoke to his doctor about it and the doctor told him not to follow through. AR 29-30. Finally, Plaintiff does take prescription medication for his shoulder and it relieves pain, but its side effects bother his ulcer. AR 30. Side effects include stomach pain, dizziness, and feeling "[k]ind of zombied out." AR 32. Plaintiff's medications include Opana, Oxycodone, Cimetidine, Soma, Mobic and Tagamet. AR 31. He understands his shoulder pain is something he has to live with, and he may need a replacement in the future. AR 30-31. The pain also makes him jumpy and angry. AR 43.
Plaintiff also suffers from a herniated disc between the sixth and seventh vertebrae in his spine; the injury occurred in 1996. AR 30, 32. His symptoms include swelling in the neck and inflammatory pain up to his head and down his spine. AR 32. He takes pain medication and an anti-inflammatory to treat it. AR 32. Further, because Plaintiff cannot use his right dominant arm, he uses his left arm too much and now it is beginning to cause him difficulties. He has bursitis in both shoulders. AR 32.
As a result of his physical problems, Plaintiff suffers from emotional problems. He sleeps a lot and no longer socializes with others. AR 38. He is "insecure about" himself and has difficulty concentrating. AR 38-39.
Plaintiff estimated he could sit comfortably for thirty to forty-five minutes. AR 42. Asked to estimate the amount of time he could tolerate sitting in an eight-hour day, Plaintiff estimates four to five hours over the course of a workday, qualifying that he lies down at least three times during the day on average. AR 42-43. He can walk for a mile and a half or two miles at a time, and could stand for a couple hours at a time before needing to move and stretch. AR 44. When he was asked how much weight he could lift using both arms, Plaintiff estimated that he could lift twenty-five to thirty pounds, putting most of the weight on his left arm, although he has not tried doing so. AR 44-45. It is painful to reach for things as well. AR 45.
When asked about a typical day, Plaintiff indicated he gets up between 10 and 11 a.m., takes his pain medications, lies down again, then tries to do something around the house, like taking out the trash. AR 33. He uses a riding lawn mower to care for the yard and washes dishes. AR 33. He does not do his own laundry. AR 34. Personal grooming like bathing, dressing, and grooming are painful because of his shoulder. AR 34. He does not do any other yard work, relying on his brother or nephew for assistance. AR 35. Plaintiff does have a driver's license and drives on occasion, but typically his girlfriend drives as he is "under the medication." AR 35. His girlfriend does the grocery shopping. AR 35.
When he was asked about hobbies, Plaintiff indicated he works on electronics to keep busy, but is not a technician. AR 35. He used to enjoy fishing, lifting weights, and collecting antiques. AR 36. He attends church services, but does not socialize much. While he does have family in town, he stopped attending picnics and barbecues. AR 36. Plaintiff watches a lot of movies, estimating he watches five to six hours of television a day. AR 37. He uses the computer every now and then, but is "not very good at it." AR 37. He does not read anymore. AR 37.
Plaintiff previously used cocaine and participated in a drug rehabilitation program from September 15, 1997, through March 25, 1998. AR 36-37. He no longer uses drugs, nor does he drink alcohol. AR 37. Within the last fifteen years, Plaintiff has worked in street maintenance for the City of Fresno, as a construction laborer for Irish Construction, and in production at United Cold Storage. AR 39-40. He also briefly worked for a temporary agency. AR 40.
VE Chaparro identified Plaintiff's past relevant work as: construction worker II, very heavy and unskilled; highway worker, medium and semiskilled with an SVP*fn3 of three; stores laborer, medium and unskilled; and welder-fitter, medium yet performed as heavy and skilled. AR 47-49.
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 and carry ten pounds frequently and twenty pounds occasionally, with a limitation of no pushing or pulling with the right upper extremity, no more than occasional climbing of ladders, ropes or scaffolds, and who should avoid work activity at or above shoulder level with the dominant right upper extremity. VE Chaparro indicated such an individual could not perform any of Plaintiff's past work. AR 49.
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 Chaparro indicated such an individual would be capable of work as a fast foods worker, light and unskilled, DOT*fn4 311.472-010, with 171,500 positions available in California and 1,944,000 positions available nationwide; cashier, light and unskilled, DOT 211.462-010, with 181,000 positions available in California, and 1,797,000 positions available nationwide. AR 50. Additionally, the individual could work as a parking lot attendant, light and unskilled, DOT 915.473-010, with 6,100 positions available in California and 35,000 positions available nationwide. AR 50.
In a second hypothetical question, the VE was asked to assume the same hypothetical worker with the additional limitation of being off task three to four times a day for about ten to fifteen minutes due to the side effects of medications and pain, and who would require redirection by a supervisor. AR 50-51. VE Chaparro indicated such an individual could not perform any of the positions previously identified as available. AR 51.
The entire medical record was reviewed by the Court. AR 263-579. The medical evidence will be referenced below as necessary to this Court's decision.
Using the Social Security Administration's five-step sequential evaluation process, the ALJ determined that Plaintiff did not meet the disability standard. AR 9-17.
More particularly, the ALJ found that Plaintiff had not engaged in substantial gainful activity since August 31, 2006, the onset date. AR 11. Further, the ALJ identified right shoulder arthritis and rotator cuff tear - status post multiple surgeries, and a history of a herniated disc in the cervical spine as severe impairments. AR 11-12. Nonetheless, the ALJ determined that the severity of the Plaintiff's impairments did not meet or exceed any of the listed impairments. AR 12.
Based on his review of the entire record, the ALJ determined that Plaintiff has the residual functional capacity ("RFC") to lift and carry twenty pounds occasionally and ten pounds frequently, to sit, stand or walk for six hours in an eight-hour workday, yet must avoid pushing or pulling with his dominant right upper extremity, but may climb occasionally, and avoid work activity at or above shoulder level with the right upper extremity, and strenuous overhead work with the left upper extremity. AR 12-16.
Next, the ALJ determined that Plaintiff was not capable of performing his past relevant work. AR 16. Nevertheless, based upon Plaintiff's age, education, work experience and RFC, the ALJ determined there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. Specifically, the ALJ found Plaintiff could perform the work of a fast food worker, cashier, or parking lot attendant. AR 16-17.
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).
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. § 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 ...