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Ricardo Garza v. Michael J. Astrue

June 27, 2012

RICARDO GARZA,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Ricardo Garza ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for supplemental security income ("SSI") benefits and disability insurance benefits pursuant to Titles II and XVI, respectively, of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Barbara A. McAuliffe, for findings and recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed an application for Social Security Disability Insurance Benefits and Supplemental Security Income on April 24, 2007, alleging disability beginning December 1, 2002.

AR 133. Plaintiff's applications were denied initially and on reconsideration. AR 58-74. Subsequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 68. ALJ Christopher Larsen held a hearing on October 7, 2009, and issued an order denying benefits on December 14, 2009. AR. 12-23. The Appeals Council issued a decision affirming the ALJ's order. AR 1-3.

Hearing Testimony

ALJ Larsen held a hearing in Fresno, California, on October 7, 2009. AR 28. Plaintiff personally appeared and was assisted by attorney Jeffrey Milam. AR 28-57. Vocational Expert ("VE") Kenneth Ferra also testified.

Plaintiff was fifty-two years old at the time of the hearing. AR 32. Plaintiff is not married and has three adult children. AR 33, 133. Plaintiff lives in a rented house with others that he pays for from general relief (i.e., welfare). AR 33-34. Plaintiff graduated from high school, but while in school he was enrolled in special education classes and he now has a very limited ability to read and write. AR 25.

Plaintiff testified that he was injured in 2006, when he was working as a mover for Mayflower Moving Company. According to Plaintiff, he was carrying a sofa down the stairs when another mover turned the sofa the wrong way, causing him to injure his back.*fn2 Plaintiff was later involved in a car accident which injured his knees. AR 45.

The ALJ asked Plaintiff his height and weight. Plaintiff testified he is 5'3 and 232 pounds. AR 38. In the last five years, he has gained approximately 40 to 50 pounds due to problems with his knees. AR 38. According to Plaintiff, he can no longer do the physical activities he was once able to do. AR 38.

When asked about his ability to work, Plaintiff stated that he was unable to work a full-time job, five days a week, due to spasms in his knees, sides, and lower back. AR 39. When Plaintiff was asked what other medical problems would keep him from working he replied, "That's basically about it." AR 39. Plaintiff reported experiencing knee pain "[c]onstantly." AR 40. He said that he cannot drive long distances because his knees bother him. AR 35.

When asked about his medical problems, Plaintiff testified that he has difficulty sleeping and used a CPAP machine for sleep apnea. AR 39. Plaintiff also testified that he has asthma and has used a cane for about two years whenever he is on his feet. AR 39-40. Plaintiff's doctor did not recommend that he use a cane, but according to Plaintiff his doctor feels his use of a cane is a good idea. AR 40. Plaintiff stated that he needed to use a cane because he experiences constant pain and swelling in his knees. AR 40. He also experiences constant back pain. Plaintiff testified that with his cane, he can only be on his feet for about ten minutes at a time. AR 41. He can sit in a chair for about twenty minutes before he has to get up. AR 41. Plaintiff has to elevate his knee for approximately two hours everyday and rests on his side for ten to fifteen minutes around three or four times a day. AR 43.

With respect to daily activities, Plaintiff has a driver's license, but he states that he does not drive long distances because signs often confuse him and it often bothers his knees. AR 35. Plaintiff stated that he drives to the store about three times a week, tries to take the garbage out daily, and that he can take up to half a day to mow his yard. AR 34, 47. Plaintiff testified that he was unable to spell anything other than his name and that he cannot read well enough to read a newspaper. AR 33-34.

Thereafter, the ALJ elicited the testimony of vocational expert Ken Ferra. AR 53-55. The VE stated that Plaintiff's past work was classified as furniture mover and driver, which was "very heavy" semi-skilled work. AR 53. The VE was asked to consider a hypothetical in which an individual is capable of light physical exertion as defined in the regulations but can only occasionally balance, stoop, kneel, climb, crouch or crawl and can perform only simple, repetitive tasks. The expert testified, in relevant part, that an individual with the same age, education, work history, and RFC as Plaintiff could not perform Plaintiff's prior work, but that he could perform other work, such as the representative jobs of cleaner, packing line worker, and sorter. AR 54.

The VE was asked to consider a second hypothetical in which an individual with the same age, education and work experience, but he can only lift and carry ten pounds occasionally, less than ten pounds frequently, can stand and walk up to two hours in an eight-hour day, but in order to do so he must use a cane or some other assisted device and can sit a total of only four hours in an eight-hour workday. The VE testified that there would be no jobs available. AR 39-40.

At the conclusion of the hearing, the ALJ left the record open until October 21, 2009 for Plaintiff's counsel to submit additional medical records. AR 31, 56.

Medical Record

The entire medical record was reviewed by the Court. AR 195-438. The medical evidence will be referenced below as necessary to this Court's decision.

ALJ Decision

Using the Social Security Administration's five-step sequential evaluation process, the ALJ determined that Plaintiff did not meet the disability standard. AR 18. More particularly, at Step 1, the ALJ found that Plaintiff had not worked since December 1, 2002, the alleged onset date of Plaintiff's disability. AR 17. At Step 2, the ALJ found that Plaintiff had the severe impairments of borderline intellectual functioning, obesity, torn meniscus of the right knee, and ...


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