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Larry Chang v. Michael J. Astrue

September 17, 2012

LARRY CHANG, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Larry Chang ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI") pursuant to Title 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 Dennis L. Beck, United States Magistrate Judge.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed for SSI on August 21, 2006. AR 12, 88. He alleged disability since August 21, 2006, due to diabetes, arthritis and lower back pain. AR 27, 107. After being denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 55-57, 62-66, 67. On August 14, 2009, ALJ Stephen W. Webster held a hearing. AR 24-41. ALJ Webster denied benefits on December 10, 2009. AR 9-18. On July 22, 2011, the Appeals Council denied review. AR 1-5.

Hearing Testimony

ALJ Webster held a hearing on August 14, 2009. Plaintiff appeared with his attorney, Robert Christenson. Vocational expert ("VE") Linda M. Ferra also appeared and testified. AR 12, 26.

Plaintiff's Testimony

Plaintiff was born in August 1950. He is an immigrant from Laos and has a GED. He had been able to care for his personal grooming, but recently needed his son's help to get dressed because of right hand pain. He has a driver's license and drives his son's car. He does not cook, do laundry, clean or work in the yard. He watches television for about 10 or 20 minutes a day. He does not read, does not use a computer and does not have hobbies. He sometimes attends church. AR 27-30, 35.

Plaintiff reported back problems, diabetes, headaches, vision problems and shoulder pain. He sees Dr. Velasco once a month or more and takes medication. The medicine does not cause any side effects. He can sit about ten minutes, can stand about five minutes and can lift about 5 or 10 pounds. He uses a cane that was not prescribed by a doctor. He also lies down for one or two hours a day because of his back pain. He was shot while in Laos and still has a bullet in his back, which causes pain. AR 31-35.

Vocational Expert's Testimony

The VE testified that Plaintiff's past work as a child care worker was semi-skilled, medium and his work as an outreach worker was semi-skilled, light. He had transferable skills in the light category. AR 36-38.

For the first hypothetical, the ALJ asked the VE to assume a person of the Plaintiff's age, education and work history. This person could lift 50 pounds occasionally, 25 frequently, and could sit, stand and/or walk six out of eight hours. The VE testified that this person could perform all of Plaintiff's past relevant work. AR 38-39.

For the second hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and work history. This person could lift 20 pounds occasionally, 10 frequently, and could sit, stand and/or walk six out of eight hours. The VE testified that this person could perform Plaintiff's outreach job, but not the child care job. AR 39.

For the third hypothetical, the ALJ asked the VE again to assume a hypothetical person of Plaintiff's age, education and work history. This person could lift 20 pounds occasionally, 10 frequently, and needed to sit or stand at will. The VE testified that this person probably could perform Plaintiff's past relevant work as an outreach worker, alternating sitting and standing. AR 39.

For the fourth hypothetical, the ALJ asked the VE to assume the same factors as in hypothetical three, but also assume that this person would miss four or more days per month due to illness or injury. The VE testified that this person could not do any of Plaintiff's past relevant work and there would not be any work in the regional or national economy for this person. AR 39-40.

For the fifth hypothetical, Plaintiff's counsel asked the VE to assume a person of Plaintiff's age, education and work experience who needed to take lie down breaks during the day of one to two hours at unscheduled times. The VE testified that this person could not perform Plaintiff's past relevant work or any other work in the national economy. AR 40.

For the sixth hypothetical, Plaintiff's counsel asked the VE to assume a person that could lift 5 to 10 pounds, could sit 10 minutes at a time, could stand 5 minutes at a time and needed a cane to ambulate. The VE testified that such a person could not perform ...


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