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Jose Cordova v. Michael Astrue

August 7, 2012

JOSE CORDOVA,
PLAINTIFF,
v.
MICHAEL 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 Jose Cordova ("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 benefits on April 8, 2008, claiming he is unable to work due to diabetes, arthritis, depression, anxiety and asthma. AR 154. Plaintiff's application was denied initially and on reconsideration, and he requested a hearing before an Administrative Law Judge ("ALJ"). AR 62-63. ALJ William Thompson held a hearing and subsequently issued an order denying benefits on March 11, 2010, finding Plaintiff was not disabled. AR 17-25. This appeal followed.

Medical Record

The entire medical record was reviewed by the Court. AR 148-407. The medical evidence will be referenced below as necessary to this Court's decision.

Hearing Testimony

ALJ Thompson held a hearing on January 13, 2010. AR 26. Plaintiff appeared and testified; he was assisted by attorney Gina Fazio. Vocational Expert ("VE") David Dettmer also testified. AR 26.

At the time of the hearing, Plaintiff was forty-two-years old and living with his parents in Modesto, California. AR 23. Plaintiff testified that he only finished his sophomore year of high school, but obtained a GED. AR 32. Plaintiff testified that he was released from prison in 2005, that he is on welfare, and has not worked since 2005. AR 32. With regard to his previous employment, Plaintiff testified that he last worked as a part time employee for the Vial of Life Foundation. AR 33. Before that, he worked full time for Home Depot as a mill work specialist, and as a front end manager for a grocery store.

At the hearing, Plaintiff testified he suffers primarily from back and neck pain. AR 36. His back pain constantly radiates to his legs. AR 37. When asked about methods that Plaintiff uses to manage his back pain, Plaintiff testified that he attends physical therapy and takes pain medication but he has not had injections, or surgery. AR 38. Plaintiff was also prescribed a cane by his doctor, which he uses daily. AR 38. With regard to Plaintiff's neck pain, Plaintiff testified that his neck pain radiates down both of his arms, with a greater degree of pain in his left arm. AR 43.

When asked about a typical day, Plaintiff stated that during the day, he lays down when his back hurts. He does household chores, such as washing dishes and vacuuming. Plaintiff claims he does not do the grocery shopping or attend church because he suffers from an anxiety disorder. Plaintiff does not see a psychologist or psychiatrist for his anxiety, but he does take medication.

When asked about his other ailments, Plaintiff stated that he is a diabetic. For his diabetes, he regularly takes glucophage, a blood sugar medication. In fact, during the hearing, Plaintiff requested a short break in order to take his medications. AR 47. Plaintiff also testified that he is a smoker, smoking a pack of cigarettes about every three to four days. Plaintiff also has very limited walking ability without the use of a cane.

Thereafter, the ALJ elicited the testimony of vocational expert David Dettmer. AR 49-56. The expert stated that Plaintiff's past work was classified as sales of building materials, grocery clerk, and computer repair. AR 49. The VE was then asked to consider a hypothetical question posed by the ALJ.

VE Dettmer was asked to assume a hypothetical worker of Plaintiff's age, education, and work experience that is capable of lifting twenty pounds occasionally and ten pounds frequently. He is capable of standing and walking in combination for at least six hours in the work day; can sit for six hours in a work day; he can occasionally bend, stoop, twist, squat, kneel and climb stairs, however should avoid climbing ladders, ropes, or scaffolding. AR 50. The individual should not work at heights or around hazardous moving machinery; and mentally would only be able to perform work that involved simple instructions with restricted contact with the public. AR 50. VE Dettmer indicated such an individual could not perform Plaintiff's past relevant work, but the individual could perform unskilled light jobs such as mail clerk, office helper, and house keeper. AR 50-51.

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 17. See 20 C.F.R. ยง 404.1520 (2011). More particularly, at step one, the ALJ found that Plaintiff had not worked since the alleged onset date of December 1, 2005. AR 19. At step two, the ALJ found that Plaintiff had the severe impairments of degenerative disc disease of the cervical and lumbar spine, diabetes, ...


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