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Ritchie Corn v. Michael Astrue

July 9, 2012

RITCHIE CORN,
PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



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

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Ritchie Corn ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his applications for disability insurance 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 Magistrate Judge Gary S. Austin, for findings and recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed applications for benefits in January 2008, alleging disability as of May 17, 2007. AR 171-178. Plaintiff's applications were denied initially and on reconsideration; he then requested a hearing before an Administrative Law Judge ("ALJ"). AR 113-124. ALJ William Wallis held a hearing and subsequently issued an order denying benefits on June 18, 2010, finding Plaintiff was not disabled. AR 18-31. On January 6, 2011, the Appeals Council denied review. AR 1-4.

Hearing Testimony

ALJ Wallis held a hearing on March 5, 2010, in Fresno, California. Plaintiff appeared and testified; he was assisted by attorney Gina Fazio. Vocational Expert ("VE") Kenneth P. Ferra also testified, as did Plaintiff's friend Lou Ann Dautrich Mathewson. AR 33-77.

Plaintiff's Testimony

Plaintiff was born on August 13, 1952, making him fifty-seven years old on the day of the hearing. AR 39. He is married; his wife is disabled. AR 39. He receives general relief benefits and food stamps. AR 53-54. Plaintiff earned a GED. He did not receive any vocational training, nor did he serve in the armed forces. AR 40.

While he does have a valid driver's license without restriction, Plaintiff only drives occasionally because he is in constant pain. A friend drove him to the hearing. AR 39, 60.

Plaintiff became disabled on May 17, 2007, and has not worked since that date. AR 40-41. More specifically, he became "super dizzy," nauseated and sweaty; he thought he was suffering from heat stroke. He lost consciousness. His boss took him home, and his wife took him to the hospital. AR 59.

When asked about the last job he held, Plaintiff indicated he drove a "harobed" in the fields, picking up hay. He would regularly lift 150 to 175 pounds, depending upon the weight of the bale of hay. AR 67. He did not do a lot of standing or walking in that position, rather it was sitting and driving. AR 68. He also did landscaping work at a golf course. That position involved mowing lawns, cleaning and smoothing sand pits, and related maintenance. AR 68.

Plaintiff's conditions causing disability include brain blockage, hearing problems, fibromyalgia, back pain and spine problems, dizziness, blurry vision, weakness, and depression. AR 41. He continues to experience dizziness every day and often "staggers like [he is] drunk." AR 59-60.

With specific regard to his back pain, Plaintiff indicated the pain occurs throughout his lower back and "down to the back of rear bone." AR 42. The pain is constant and burning, causes weakness and soreness, and on a scale of one to ten, Plaintiff rates the pain as a ten. AR 42-43. He takes seven medications to treat his conditions; he takes Vicodin for the back pain.*fn2

Use of those medications relieve his pain to "about a five" on the pain scale. AR 43, 45; see also AR 61 [it helps "a lot"]. When asked whether there was anything else that helps reduce his back pain, Plaintiff replied "[d]efinitely not." AR 45. His back pain is worsened by lifting, bending, walking for a long period of time, sitting, and twisting and turning. AR 44.

Plaintiff also experiences constant pain in both arms and weakness in his hands. He experiences constant pain in both legs and both hips, with "a burning." AR 43-44. He has used a cane at all times for the past year and a half. AR 59. The cane was prescribed, but he cannot recall the name of the doctor issuing the prescription. AR 58. Because he has fallen in the past and has hit his head, Plaintiff uses the cane as he gets weaker. AR 59.

In addition to Vicodin, Plaintiff takes medications to treat depression and an inability to sleep. AR 45. The medication to treat depression does "[n]ot really" help, however, he does not receive any counseling or other mental health treatment. AR 46.

When asked about side effects from medication, Plaintiff indicated he gets "mean," "hateful" and "ornery" from the depression medication. He was never that way before. AR 46.

Once or twice a month Plaintiff sees Dr. Armstrong, who will refill his medications and talk. The doctor checks his back, checks to see if he can walk a little, and talks about having MRIs performed on his back, neck and legs, as well as a "heart gram on [his] heart." AR 46-47.

When he was asked a series of questions about an eight-hour period similar to a workday, Plaintiff indicated he could lift maybe two pounds on a regular basis, and stand for fifteen minutes before needing to change position. He cannot however then stand again because he would need to lie down as he gets "so weak." AR 41, 47-48. He can walk for about 200 yards, or for thirty to forty-five minutes, at one time. He would not be able to repeat that walk later in the day however. AR 48. Plaintiff can sit for fifteen to twenty minutes at one time before needing to move around. He does not believe he would be able to sit down again later in the workday for another fifteen to twenty minutes. AR 48.

Also, in a single eight-hour workday, Plaintiff indicated he would need to lie down for six to seven hours. AR 49. He cannot bend at the waist, stoop, squat, crouch, or climb a ladder. He could "crawl like a baby" if he had to, and could slowly climb about seven stairs. AR 49. He has difficulty using his hands because they tense and become weak and tight. AR 49-50. He is right-handed, but could not pick up coins with his fingers were they in front of him. He can hold a coffee cup with either his right or left hand, but he cannot discern whether something he is holding is hot or cold, smooth or rough. AR 50. He can twist a doorknob with his right hand, but not his left because it is weaker and will "cramp up." AR 50-51.

Plaintiff also suffers from memory problems. For example, if he went to the grocery store for five items without making a list, he would not remember any of the items. AR 51. While he watches television, he cannot sit and pay attention to a half-hour television show. Rather, he can watch about ten minutes of it before he would have to get up. AR 51-52.

With regard to his hearing, Plaintiff is hard of hearing but he does not know the extent of the problem because he has not been tested since he was in school. Additionally, while he just picked up new prescription glasses, Plaintiff testified that his vision is blurry with and without the corrected lenses. AR 52-53. Plaintiff also indicated he suffers from cancer of the skin, nose and hands. AR 53.

In a typical day, Plaintiff's wife will cook; he helps once in a while. AR 54. She also helps him take a bath or shower because he is weak and afraid of falling. AR 54. When he gets up in the morning, Plaintiff makes coffee and uses the microwave. He goes outside and "sit[s] around the table," until he needs to get up and walk. He alternates between sitting and standing. He will sleep "for about an hour to relieve the pain," before getting up and eating a sandwich. Then he goes back outside again to sit, get up, walk out in the driveway, lean against the car, and walk back to the table again to sit. AR 55.

Before becoming disabled, Plaintiff used to help with household chores like washing dishes, making the bed, and vacuuming, but he no longer does so. AR 57. He used to enjoy car races, camping, fishing, shopping and going out to eat, however, he can no longer do those things. AR 58.

Plaintiff sleeps for two to three hours a night; otherwise, he sits up. AR 54. He sleeps about an hour during the day. AR 55. The sleep problems Plaintiff attributes to depression; he has "a lot on [his] mind." His doctor has not recommended counseling. AR 58.

While he earned a GED, Plaintiff doesn't really understand what he's read. He has difficulty pronouncing "[l]ong words." AR 55. He does read the newspaper to "read about what's going around in the area." AR 55-56. He also reads the Bible and participates in a weekly Bible study. AR 56. He no longer attends church regularly because he cannot sit that long without standing up. AR 56.

Lay Testimony

Lou Ann Dautrich Mathewson has known Plaintiff for about fifteen years. AR 62-63. She used to be his supervisor at Anberry Rehabilitation Hospital in Atwater. AR 63. She sees him about four to five times a week at his home; he stopped visiting her at her home about two years ago. AR 63.

Plaintiff gets very dizzy and walks like a drunk person would. He needs assistance getting to a chair when he nearly falls after walking to the kitchen. He also seems to be forgetful and she noticed this difference following his loss of consciousness at work. AR 63-64. He also suffers from a lot of back pain and cramping and has difficulty walking. He cannot "comprehend what a movie's about," or what he has watched on television. AR 64. He is also "a real depressed person now" because he is not able to work. AR 65.

Although she and her husband could not afford to attend the races every weekend, Plaintiff went to the Friday or Saturday night races every weekend. He no longer attends the races although his grandson races midget cars. AR 65. Plaintiff's wife told her that they no longer visit at her home because Plaintiff "panics." AR 65. They also no longer enjoy family get-togethers or bonfires like they used to. AR 65.

When Ms. Mathewson visits, Plaintiff is usually just sitting, or sometimes sleeping. He is a different person "since he's lost consciousness." AR 66.

VE's Testimony

VE Ferra identified Plaintiff's past work as follows: truck driver, performed very heavy and semiskilled, SVP*fn3 of four; and landscaper or greens keeper II, medium and semiskilled, SVP of three. AR 70.

In the first hypothetical question, the VE was asked to consider an individual of the same age, education, and work experience as Plaintiff, who has the ability to occasionally lift, carry, push or pull fifty pounds and frequently lift, carry, push or pull twenty-five pounds, who can sit, stand and/or walk for six hours in an eight-hour day, and who can occasionally balance. AR 70-71. VE Ferra indicated such an individual could perform Plaintiff's past work as a landscaper, and could also perform the work of a truck driver as regularly performed in the national economy, but not as Plaintiff actually performed it in the past. AR 71.

In a second hypothetical, the VE was asked to consider the same individual with the additional non-exertional limitations of the ability to learn and remember simple instructions and tasks, follow a schedule, make decisions, and complete simple tasks consistently, and the ability to work around others and adapt to the normal stressors of full-time employment. AR 71-72. VE Ferra indicated that such an individual would be unable to perform Plaintiff's past relevant work. AR 72. Nevertheless, the individual would be capable of performing other jobs in the national economy. More specifically, the individual could perform the following work: cleaner, DOT*fn4 381.687-026, with approximately 116,000 positions available in California; harvest worker, DOT 403.687-018, with approximately 61,000 positions available in California; and laundry laborer, DOT 361.687-018, with approximately 2,500 positions available in California. National figures are obtained by multiplying those numbers by ten. AR 72.

In a third hypothetical, the VE was asked to consider an individual with the ability to lift two pounds occasionally or frequently, who can stand and walk for forty-five minutes to one hour (but stand no more than 15 minutes at a time and walk no more than 30-45 minutes at a time) in an eight-hour workday, and sit for fifteen to twenty minutes at a time in an eight-hour workday, and who must lie down for six to seven hours a day, and cannot stoop. AR 72. VE Ferra ...


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