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Myron E. Brown v. Michael J. Astrue

October 26, 2012


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge



Plaintiff Myron E. Brown ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for supplemental security income benefits 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 Gary A. Austin, United States Magistrate Judge.*fn1


In August 2006, Plaintiff filed an application for benefits, alleging disability beginning October 23, 2003. See AR 130-132. Plaintiff's application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 71-82. ALJ Sharon L. Madsen held a hearing and issued an order denying benefits on August 14, 2009, finding Plaintiff was not disabled. AR 13-21. Thereafter, on September 9, 2011, the Appeals Council denied review. AR 1-3.

Hearing Testimony

ALJ Madsen held a hearing in Fresno, California, on May 28, 2009. Plaintiff appeared via videoconference from Bakersfield and was assisted by attorney Rosemary Abarca. Vocational Expert ("VE") Kenneth Ferra also testified. AR 23-52.

Plaintiff lives in Bakersfield at a sober living home. AR 27-28. He was born June 30, 1961. He is five feet eight and a half inches tall and weighs 233 pounds. AR 28. While Plaintiff does have a driver's license, he does not drive because he does not have a car. AR 28. Typically, he uses the bus to get around, or he will get a ride. AR 29, 46. While Plaintiff attended twelfth grade, he did not graduate from high school. AR 29.

When asked about taking care of his own personal needs, Plaintiff indicated he does not have any difficulty showering, shaving or dressing. He makes his own bed and keeps his room clean. AR 29. He can prepare a sandwich or use the microwave, and can shop for necessary items. AR 30, 45. Once a week, Plaintiff attends church; he also attends an AA meeting every Friday evening. AR 30, 46. A typical day is spent watching television and resting. He also goes outside to water the grass. AR 30. For the previous year, Plaintiff has been the volunteer breakfast cook. This means he cooks the breakfast meal for the residents of the sober living home. It takes him about an hour and a half and he works with a helper. AR 41. He used to cook up to three meals a day about two years ago, but his health problems have affected his ability to cook. More particularly, lifting and standing make it difficult. AR 42.

In 1999, Plaintiff worked for the Kern County Transit Company as a cab driver. In the mid-1990s Plaintiff worked as a meat cutter in a small grocery store. AR 31. He has also worked at Domino's Pizza, taking orders and delivering pizzas on a part-time basis. AR 31.

With regard to back pain, Plaintiff indicated the pain is in his lower back and it comes and goes. AR 32. He takes Neurontin to treat his back pain. AR 33; but see AR 38 (neurontin treats tingling and numbness). He also has some neck pain and indicated "[i]t was ruled out to a pinched nerve." AR 33. Plaintiff indicated it is difficult to lift things because of the pinched nerve in his lower back and neck. He estimated he could lift two to three pounds. AR 35; but see AR 38 (can only lift that much weight due to numbness in his hand). He tends to drop things. AR 38-39.

Plaintiff has been treated at the emergency room for swelling in his legs on two occasions. The doctors told him it was normal but he believes it's getting better as he loses weight. AR 40. While both legs swell, it is worse in the right leg. AR 39-40. The swelling has been an issue for the last two months. AR 40. Plaintiff has elevated his legs everyday since leaving the hospital. AR 44-45. He elevates his legs at about 3 or 4 o'clock in the afternoon for about an hour or an hour and a half, and then does so again at about 8 o'clock in the evening. AR 45. If he does not elevate his legs, the pain increases and numbness occurs. AR 45.

Plaintiff takes insulin to treat his diabetes and has done so for five years. AR 37; but see AR 33. He takes both Lantus and Humalog and he keeps his sugar levels under control. AR 33, 38-39. He also follows a diabetic diet and has lost forty pounds in the last six months. AR 39. With regard to neuropathy, Plaintiff gets numbness and tingling from his neck down to his legs and feet. AR 33-34. The medication he takes for neuropathy helps, but it does make him a little dizzy. AR 34, 38.

High blood pressure and gastric problems are controlled with the prescription medications Metoprolol and Nexium. AR 34-35. He sometimes gets chest pain. AR 47-48. Plaintiff was prescribed Tramadol to treat his pain, however, he stopped taking the medication after two days because it caused itching and blurry vision. AR 47.

Plaintiff "[s]ometimes" has difficulty sitting and estimated he could do so for about twenty minutes or so before needing to move. AR 36. Further, Plaintiff estimated he could walk about a mile and a half. AR 36. He does so twice a week on the advice of his physicians. AR 42. He has to stop and rest and it will occasionally take him two hours to walk a mile and a half. AR 43. After walking about a half hour, he stops and rests for about twenty to thirty minutes. AR 43. Sometimes he gets short of breath. AR 43.

To treat his depression, Plaintiff takes the prescription medication Lexapro. He does not receive counseling because the medication controls his depression. AR 36, 43-44. Finally, Plaintiff has difficulty focusing and concentrating, and can do so ...

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