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Oscar M. Sanchez v. Michael J. Astrue

August 24, 2012

OSCAR M. SANCHEZ,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT (Doc. 1)

I. BACKGROUND

Plaintiff Oscar M. Sanchez ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 405(g), 1383(c)(3). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1

II. FACTUAL BACKGROUND

Plaintiff was born in 1978, completed the 11th grade but had problems reading and spelling, and held various jobs including working as an aluminum polisher, a chemical mixer, a Christmas tree washer, and a chicken parts cleaner. (Administrative Record ("AR") 76-78, 80, 229, 242, 243-50, 574-75, 581-87.) On May 3, 2005, Plaintiff filed applications for DIB and SSI, alleging disability beginning on January 1, 2005, due to discogenic and degenerative disorders of the back and a learning disorder. (AR 80-81, 229-34.)

A. Relevant Medical Evidence *fn2

On July 11, 2005, Plaintiff was seen by Gurmej S. Dhillon, M.D., for an internal medicine examination. (AR 158-63.) Plaintiff's chief complaints were lower back pain and a learning disability. (AR 158.) Plaintiff stated that "he has had a learning disability since he was very young. He went to a special school with special classes and completed grade 11, but he cannot read or write." (AR 158.) Plaintiff further informed Dr. Dhillon that "[n]obody will give [Plaintiff] any job because he cannot read and write or comprehend. He can't even sign an application." (AR 158.) Dr. Dhillon conducted a series of tests and noted that Plaintiff's "physical complaint is not consistent with the physical examination" and, as such, Dr. Dhillon could not "put [Plaintiff] on any physical activity limitation on the basis of [the] examination." (AR 163.) As for Plaintiff's mental capabilities, Dr. Dhillon found that:

Mental status examination revealed [Plaintiff] was alert and oriented. He made some calculations like 2 and 5 and then further 7, he couldn't do it. He was able to do serial minuses, 5 from 100, and 95 and 90, but he refused to add 3 to 90. He was able to tell 2 x 2, but he refused to do 3 x 3 and 7 x 7. He stated he does not know. He was able to tell his date of birth, which is 09/25/78. He refused to tell his brother's age and date of birth. He was able to tell what he ate in the morning as hot dogs. He was able to tell today's date, month and year. When he was asked who is the President of the United States, he mentioned Martin Luther King. On mental status examination, whether it is subjective or real is hard . . . to tell.

AR 162.

Dr. Dhillon stated that "[a] psychiatric evaluation for [Plaintiff's] learning disability will be helpful." (AR 163.)

On July 13, 2005, Richard Engeln, Ph.D., performed a psychological evaluation of Plaintiff. (AR 164-76.) Plaintiff stated that he was applying for disability because "he has problems reading, and spelling, and with math. He, also, has bad headaches." (AR 164.) Dr. Engeln was informed by Plaintiff that he was hit by a car when he was 17 years old and in high school; "[h]e was hospitalized for 4 months" and "stopped going [to high school] after he got hit by the car." (AR 164.) Dr. Engeln noted Plaintiff's history, including that Plaintiff was living with his sister at that time and that he had completed a 30-day residential drug rehabilitation program six months prior for methamphetamine use; the program, however, "was not a court referral." (AR 165.) Plaintiff indicated that he worked for the Indian Motorcycle Company for three months "but lost the job when he failed his drug test." (AR 165.) Plaintiff also worked at New Agent Chrome but "apparently lost that job because of anger control issues." (AR 165.)

Dr. Engeln performed several psychological tests, including the Wechsler Adult Intelligence Scale III, Wechsler Memory Scale III, Bender-Gestalt Test, Trails A and Trails B, Rey 15 Item Memory Test II, and a Mental Status Exam. (AR 164.) Dr. Engeln determined that Plaintiff "presented with no evidence of any mental or emotional illness. Verbal expression was easily understood, appropriate in form and association . . . [and his] interview presentation suggested at least mid borderline intellectual skills." (AR 167.) However, Dr. Engeln also noted that "[i]n contrast, obtained intellectual measurements [of] verbal intelligence and visual intelligence [were] low in the mild range of mental retardation. These appeared to be underestimates of abilities instead reflecting attitudinal-emotional issues." (AR 167.) Dr. Engeln found that the following areas were in the moderate range of mental retardation: working memory requiring repetition and reflection of auditory-visual stimulus (although Dr. Engeln stated that the result was "globally inconsistent with [Plaintiff's] presentation") and delayed visual memory. (AR 167.) The following areas were in the range of low average findings: delayed auditory memory and immediate visual memory. (AR 167.) The Bender-Gestalt reproductions were in the high borderline to low average range in terms of performance quality. (AR 167.)

Dr. Engeln determined that Plaintiff's reading comprehension was at the beginning second grade level, his spelling abilities were are the mid-first grade level, and his arithmetic skills were at the end third grade level. (AR 167.) Further, "Trails A, a very simple task, was done with multiple visual concentration errors. Trails B was rejected by the patient as too difficult." (AR 167.) Dr. Engeln noted that Plaintiff's "[r]esponse to Rey was positive for exaggeration" and found, overall, that "[b]ecause of [Plaintiff's] exaggeration, [Dr. Engeln was] unable to say what [Plaintiff's] abilities actually are." (AR 167.) Dr. Engeln opined:

Verbally, cognitively, and socially [Plaintiff] is capable of job adjustment in a context where instructions are unidimensional, at an entry level position where instructions are simple and unidimensional, and normal supervision is provided. Concentration and social skills are adequate for work adjustment. He would be able to receive instructions that are one-to-two steps in nature, but not technical or complex instructions. He is in a reported recovery phase of methamphetamine abuse. Methamphetamine abuse has been the most intrusive dimensions of his life adjustment pattern. (AR 168.)

On August 23, 2005, Archimedes Garcia, M.D., provided a psychiatric review of the medical evidence in the file. (AR 177-79.) Dr. Garcia concluded that Plaintiff's impairment of mental retardation was not severe. (AR 177, 179.)

B. Administrative Proceedings

1. First Administrative Hearing and Decision

Plaintiff's applications for DIB and SSI benefits were denied on August 26, 2005, and again on reconsideration on January 6, 2006. (AR 59-64, 68-72.) On January 11, 2006, Plaintiff requested a hearing before an administrative law judge ("ALJ"), and on March 14, 2007, a hearing was held before ALJ Patricia Leary Flier. (AR 44, 236-75.) The ALJ rendered a decision on June 19, 2007, finding Plaintiff not disabled. (AR 12-22.)

a. March 14, 2007, Hearing

At the first administrative hearing held on March 14, 2007, Plaintiff testified that the highest grade in school he had completed was the 11th grade; he had not completed a GED because he had "problems reading and spelling" and would get "frustrated." (AR 242.) Plaintiff stated that he was unable to obtain a driver's license because he could not pass the written test due to his difficulties in reading and spelling, and was also unable to pass the oral test, despite having taken the exam numerous times. (AR 241.) Plaintiff testified that while he could read "some words," there were other words that he "tried to read" but just "cannot," including reading job applications. (AR 263.) Plaintiff also stated that he had attempted to go back to school to learn to read and write, but that he "just . . . can't do it." (AR 262.)

Plaintiff said that he had last worked in October 2006 at New Age Metal, where he polished aluminum "bike" and "go-cart" parts. (AR 243.) His brother had helped to obtain that job and oversaw his work. (AR 244.) Plaintiff stopped working at that position after he was injured when his shirt was caught in a machine. (AR 244.) Plaintiff "didn't want to handle [working there] anymore" because he had become "scared" and "panicky." (AR 245-46.) Before working at New Age Metal, Plaintiff worked at Aqua Clor, where he would mix and bottle bleach and ammonia. (AR 247.) Despite wearing a mask, Plaintiff testified that the fumes aggravated his lungs, forced him to choke and gag, and caused headaches. (AR 247.) Plaintiff reported that his brother had also helped him to obtain that job and again assisted him with his work. (AR 247-48.) Plaintiff stated that he left this job because of "too much hassle with the boss." (AR 248.)

Plaintiff worked at Indian Motorcycle, where he would "clean parts." (AR 251.) Plaintiff's family got him the job and his brother worked there. (AR 251.) Plaintiff was "sucked into the machine" and broke his arm. (AR 251.) Plaintiff stated that he also worked at several temporary jobs, including "washing" Christmas trees, cleaning and loading chicken parts at Zacky Farms, cleaning houses, and working at Foster Farms. (AR 249-50.) Plaintiff testified that he was unable to continue employment at these jobs due to pain in his back. (AR 249-51.) He also attempted to get work through temporary agencies such as Labor Ready, where he was unable to pass their reading and math test, and Plus Group, where he was laid off for being "too slow." (AR 251-52.) Plaintiff also did landscaping at Mountain View Cemetery, a job that he obtained through his uncle, who would supervise him. (AR 252-53.)

Plaintiff indicated that his inability to read and write hindered his job prospects, and that he had difficulty learning new things because he would "forget . . . real fast." (AR 253-54.) Plaintiff testified that he had "a drug problem" but that he grew "tired of doing drugs" and, with his sister's assistance, he entered a drug rehabilitation program. (AR 258.) At the time of the March 14, 2007, hearing, he had been clean for 16 months. (AR 258.)

Plaintiff's sister Rachel Cervantes testified at the hearing that their brother Raymond would "take care of" Plaintiff at his various jobs and "train him constantly," because Plaintiff would "wander off or . . . not pay[] attention." (AR 266.) She believed that Plaintiff needed "special help" because he "tried and tried to do things on his own and it's very depressing to see that he can't." (AR 269.)

Vocational expert ("VE") Cheryl Chandler testified that all of Plaintiff's previous employment was unskilled and ranged from light to medium work. (AR 271.) The ALJ posited several hypotheticals to the VE. The first one assumed a person Plaintiff's age, educational background and work history with no exertional limitations but limited to simple one-to two-step tasks where reading and writing were not required. (AR 271-72.) The VE opined that such a person could perform some of Plaintiff's past relevant work, such as meat cutting, laborer, polishing and grounds keeping work. (AR 272.)

Hypothetical two assumed a person limited to medium work with simple, repetitive tasks, and one- to two-step instructions, and no ability to read or write. (AR 272.) The VE stated that such a person could perform the jobs indicated for hypothetical one, and could also perform packaging and auto dealer jobs. (AR 272.)

In hypothetical three, the ALJ posed the prior limitations but limited the assumed person to light work. (AR 272-73.) The VE stated that only Plaintiff's past job as a meat cutter would be classified as light and remain, but that Plaintiff could perform other jobs such as hand packager and machine feeder. (AR 272.) The VE testified that all of the above jobs were consistent with the Dictionary of Occupational Titles ("DOT"). (AR 272-73.)

Hypothetical four posed the same limitations but added that the assumed individual was unable to relate appropriately to supervisors. The VE testified that such a person could not perform any of Plaintiff's past relevant work or any other work. (AR 273.) Plaintiff's counsel asked about a hypothetical based on hypothetical four with the added restriction that the person would not be able to maintain a normal pace and required additional supervision. (AR 273-74.) The VE testifed that there would be no jobs available for such a person. (AR 274.)

b. June 19, 2007, ALJ Decision

On June 19, 2007, the ALJ issued a decision finding Plaintiff not disabled since January 1, 2005, the alleged disability onset date. (AR 12-22.) Specifically, the ALJ found that (1) Plaintiff met the insured status requirements of the Act through December 31, 2007; (2) Plaintiff had not engaged in substantial gainful activity since January 1, 2005, the alleged disability onset date; (3) Plaintiff had impairments of lumbar disc disease, borderline intellectual functioning, a learning disorder, and a history of substance abuse in remission based on the requirements in the Code of Federal Regulations; (4) Plaintiff did not have an impairment or combination of impairments that met or equaled one of the impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1; (5) Plaintiff had the residual functional capacity ("RFC")*fn3 to perform medium work involving simple and repetitive one- to two-step instructions where reading and writing are not required; (6) Plaintiff was unable to perform past relevant work; (7) Plaintiff was defined as a younger individual on the alleged disability onset date; (8) Plaintiff had a limited education and was able to communicate in English; (9) the transferability of job skills was not at issue because Plaintiff's past relevant work was unskilled; (10) there were jobs that exist in significant numbers in the national economy that Plaintiff could perform; and (11) Plaintiff had not been under a disability as defined in the Social Security Act since January 1, 2005, through the date of the decision. (AR 17-22.)

Plaintiff sought review of the ALJ's decision before the Appeals Council. On September 9, 2008, the Appeals Council denied review. (AR 5-11.) Therefore, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481.

2. March 12, 2010, District Court Decision

On October 22, 2008, Plaintiff filed a complaint in the United States District Court, Eastern District of California, seeking review of the ALJ's decision in case no. 1:08-cv-01627-JLT. (Doc. 2.) On March 12, 2010, the court issued an order in favor of Plaintiff and remanded the case to the Commissioner for further consideration. (Case no. 1:08-cv-01627-JLT, Doc. 21.)*fn4

The court found that the ALJ erred by failing to obtain an explanation for the conflict between the VE's opinion and the DOT. (Case no. 1:08-cv-01627-JLT, Doc. 21, 11:12-14:18.) Specifically, the court determined that the ALJ's conclusion that Plaintiff was capable of performing other work, particularly the jobs of hand packager and automobile detailer, was in error because the DOT states that such positions require the ability to read and write and the ALJ's RFC indicated that ...


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