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Khenn P. Krouch v. Michael J. Astrue

October 24, 2012

KHENN P. KROUCH, 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 Khenn P. Krouch ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income 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

Plaintiff filed his application on May 28, 2009, alleging disability since April 20, 2009, due to diabetes, high blood pressure, high cholesterol, stress disorder, headaches, swollen legs, low back pain and problems sleeping. AR 133-136, 150-157. After the application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 90, 91. On September 23, 2010, ALJ Phillip E. Callis held a hearing in Stockton, California. AR 42-78. He issued a decision denying benefits on October 7, 2010. AR 24-37. On October 14, 2011, the Appeals Council denied review. AR 1-7.

Hearing Testimony

ALJ Callis held a hearing on September 23, 2010, in Stockton, California. Plaintiff appeared with his attorney, Langley Kreuze. Vocational expert ("VE") Michael Stinton also appeared and testified. AR 42.

Plaintiff testified that he was 48 years old at the time of the hearing. He finished the third grade in Cambodia and can read and write a little English. He said he could not really read a newspaper, however. He also reads and writes a little in Cambodian. AR 49-50.

Plaintiff lived in a house with his wife and another person. He has adult children but could not remember how old they were. AR 51. Plaintiff's wife does not work and his daughter pays his rent. AR 51.

Plaintiff usually gets up around 6:00 a.m. and is able to wash himself or take a shower. His wife prepares his meals. During the day, he watches television in Cambodian, though he sometimes watches English shows. AR 52-53. He works in the garden sometimes and enjoys planting. AR 53-54. He goes to the Cambodian Temple with his wife once a month, although he doesn't talk to people much when he's there. AR 54. Plaintiff goes to the store with his wife once a week, but he sometimes sits in the car because he gets scared around a lot of people. AR 55. His wife takes the groceries from the cart to the car, and then from the car to the house. AR 56. Plaintiff can help with the "little light" ones. AR 57. He and his wife also visit their children about once a month. AR 57.

Plaintiff last worked in 1988 in Utah, where he built cement walls. AR 57-58. He stopped working because he had an ulcer. AR 58. He moved to California shortly thereafter and looked for work, but no one was hiring. AR 59.

Plaintiff explained that he could not work because he was sick, and when asked for specifics, he stated, "my back, and my hand, and my neck." He also explained that his feet "look like ants are crawling on the bottom." AR 61. He has talked to the doctor about these things and the doctor told him that they are from his diabetes. AR 61.

When questioned by his attorney, Plaintiff explained that in the past, he couldn't see a doctor because he didn't have any money. AR 62. A friend helped him fill out forms because he cannot read or write. AR 62-63. Plaintiff also takes a lot of medication, which causes him to feel sick to his stomach 3 or 4 times a day. He often feels sick to his stomach even when he doesn't take his medication. His medications also cause dizziness 3 or 4 times a day and constant sleepiness AR 62-63. Plaintiff has about 4 bad days a week when he's so angry and nervous that he doesn't know what happened. AR 63-64. He has short term memory problems every day and always has difficulty concentrating. AR 64. Plaintiff cannot watch an entire television show without getting dizzy. AR 65. Plaintiff is depressed, sad and lacks energy. He also has pain. AR 66.

For the first hypothetical, the ALJ asked the VE to assume a person with Plaintiff's age, education and experience who could perform medium, unskilled work. The VE indicated that this person could perform the positions of laundry worker and cook helper. Plaintiff's inability to read a list and his borderline illiteracy would prevent him from performing other medium positions. AR 71-72. At the light level, Plaintiff could perform the positions of sandwich board carrier, hand presser and packing line worker. R 73.

If a preclusion from working around moving machinery and unprotected heights was added, it would eliminate the positions of packing line worker and laundry worker. AR 74.

The VE also noted that the identified positions have limited public contact. AR 75.

If this person could not perform 40 hours a week or 8 hours day, there would be no positions available. AR 75. Similarly, if this person was absent 3 or more times per month due to illness, there would be no positions available. AR 75.

When questioned by Plaintiff's attorney, the VE explained that the identified positions required adequate pacing. If a marked limitation in concentration, persistence or pace was added, ...


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