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Frank Azevedo v. Michael J. Astrue

September 21, 2012

FRANK AZEVEDO, 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

AMENDED FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Frank Azevedo ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to Titles II and XVI of the Social Security Act. The matter was before the Court on the parties' briefs, which were submitted, without oral argument, to the Magistrate Judge for findings and recommendations to the District Court.

On July 30, 2012, the court issued findings and recommendations in this matter. Doc. 19. The Commissioner submitted objections to the findings and recommendations on August 13, 2012. Doc. 20. After further review, the court HEREBY VACATES the findings and recommendations issued July 30, 2012, and issues these Amended Findings and Recommendations Regarding Plaintiff's Social Security Complaint.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed for DIB and SSI on January 17, 2008. AR 122-24, 125-29. He alleged disability since January 10, 2008, due to hepatitis C and cirrhosis. AR 148. After being denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 72-74, 81-85, 94. On November 6, 2009, ALJ Daniel Heely held a hearing. AR 38-67. ALJ Heely denied benefits on February 24, 2010. AR 20-33. On June 9, 2011, the Appeals Council denied review. AR 1-5.

Hearing Testimony

ALJ Heely held a hearing on November 16, 2009. Plaintiff appeared with his attorney, Jeff Milam. Vocational expert ("VE") Stephen Schmidt also appeared and testified. AR 40.

Plaintiff's Testimony

Plaintiff was born in September 1961 and completed the tenth grade. He can do simple reading and writing. He last worked in January 2008 as a fabricator, earning $13.50 per hour and averaging sixty hours per week. AR 42-46.

Plaintiff claimed he could not work because of his liver and his hepatitis C. He is on a liver transplant list and is undergoing interferon treatment. The interferon treatment has side effects of fatigue and sleeping a lot. The treatment is a shot on Monday, five pills in the morning, and two pills in the afternoon. He takes five pills seven days a week. The treatment lasts 12 to 18 months. In addition to his hepatitis and liver disease, he has scoliosis. AR 46-47.

Plaintiff testified that he used to smoke, but stopped three years ago. He smoked half a pack a day for about 12 years. He has not been diagnosed with any breathing problems. AR 48-49. He is not drinking alcohol and has not had a drink in two years. He goes to AA meetings every Saturday and Sunday. Before he stopped drinking, he had three to four beers a day and then a 12-pack on the weekends. He is not using any illegal drugs and has not used any in the past two years. AR 49-50.

Plaintiff reported that he has depression and anxiety, which also stop him from working. He goes to Dr. Wong in San Francisco for treatment. He has side effects of depression and hopelessness from his prescription medications and the doctors changed his medication once. AR 50-51.

Plaintiff has been living with his mother since January 2008. During the day, he sleeps 8 to 12 hours. He watches TV for about one and a half hours. He does not have any hobbies or outside activities. He still drives about two or three times a week to the store. He has not taken any long trips since January 2008. If he is feeling good, he might sweep and do light things around the house to help his mom. AR 51-53. He is always tired and when he told his doctors they switched his medicines a couple of times. AR 53-54.

In response to questions from his attorney, Plaintiff testified that he does not cook and only microwaves food for himself about once every two weeks. He can fix a bowl of cereal. He also rinses dishes and puts away his own clothes, but does not wash clothes. AR 55-56.

Plaintiff reported that he can focus for about forty-five minutes. The doctor said it was due to an oxygen problem associated with liver disease. Dr. Plotzker is his treating doctor and Dr. Leonard is his general practitioner. AR 56-57. Plaintiff has not received a liver transplant because he is taking interferon. He did not know why it took so long to get the interferon. When he takes the interferon, it gives him nausea that lasts an hour. AR 57-58.

Plaintiff also testified that every two weeks or so he bleeds from his mouth and his nose. This has been happening since January 2008. He also has blood coming out in his stools once a week. He is taking some compounds that are supposed to help him, but they banded his varices twice in Reno and once in San Francisco. Since the bandings, the bleeding has been the same. AR 64-65.

Vocational Expert's Testimony

The VE testified that Plaintiff's past work as a welder was medium, SVP 6. His work as a crane operator was light, SVP 5, and his work as a pasteurizer was heavy, SVP 5. AR 58-61. The VE explained that Plaintiff would have transferable skills, including knowledge of operation of welding equipment, welding procedures, fabrication, knowledge of crane operation, and knowledge of operation of pasteurizing equipment for processing milk. AR 62.

For the hypotheticals, the ALJ asked the VE to assume a person of the same age, education and work history as Plaintiff. For the first hypothetical, the ALJ also asked the VE to assume a person who could sit, stand, and walk less than two hours each in normal workday, could lift and/or carry less than 10 pounds even occasionally, could never climb, balance, stoop, kneel, crouch, crawl or work around hazards, would need numerous unscheduled rest breaks more frequently and for longer times than normally allowed and could not maintain even simple, routine task concentration. The VE testified that there would not be any full-time jobs for this person. AR 62.

For the second hypothetical, the ALJ asked the VE to assume an individual who could work at jobs involving simple routine tasks, but nothing complex, technical or scientific, could sit, stand and walk six hours each with normal breaks, and could lift and/or carry 20 pounds occasionally, 10 pounds frequently. The VE testified that this person could not do any of Plaintiff's past jobs, but could do other jobs in the California economy, such as cashier, fast-food and assembly. AR 62-63.

Medical Record

On January 18, 2007, a CT scan showed slight induration or inflammatory change surrounding the pancreas and the gallbladder. AR 204.

On February 6, 2007, a CT scan of Plaintiff's abdomen showed right sided colitis, possible gastritis, liver cirrhosis and splenomegaly. AR 345.

On March 8, 2007, Plaintiff saw Dr. F. Craig Conrath because of thrombocytopenia. Dr. Conrath believed that the thrombocytopenia was secondary to effects from significant alcohol. Plaintiff was to have an abdominal ultrasound. AR 219-20.

On April 25, 2007, Plaintiff again saw Dr. Conrath after a low platelet count of 43,000 during an emergency room visit. Dr. Conrath would not transfuse platelets unless Plaintiff was bleeding. Plaintiff was to ...


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