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Larry Jenkins v. Michael J.

December 13, 2012

LARRY JENKINS, 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

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Larry Jenkins ("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 Magistrate Judge for findings and recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed for SSI on October 23, 2008. AR 141-43. He alleged disability since September 3, 2008, due to swollen hands, tendonitis in fingers, high blood pressure, diabetes and allergies. AR 160. After being denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 77-81, 83-88, 91-92. On October 18, 2010, ALJ Michael J. Haubner held a hearing. AR 19-57. ALJ Haubner denied benefits on November 10, 2010. AR 5-14. On August 25, 2011, the Appeals Council denied review. AR 1-3.

Hearing Testimony

ALJ Haubner held a hearing on October 18, 2010. Plaintiff appeared with his attorney, Gina Fazio. Vocational expert ("VE") Thomas Dachelet also appeared and testified. AR 19, 21.

Plaintiff's Testimony

Plaintiff was born in 1967. He completed the 12th grade and attended college for two months. AR 28. Plaintiff confirmed that he has a history of finger tendinitis, high blood pressure, diabetes, chest pain, "roulette," coronary artery disease, arthralgia in his hands, plantar fasciitis in his feet, along with a history of adjustment disorder with mixed emotional features, and some emotional or mental problems. AR 28-29.

Plaintiff testified that he can lift and carry two pounds. He can stand for twenty-five minutes at one time and sit for thirty minutes at one time. He can walk a block and a half before he needs to rest. He is right-handed, but has trouble gripping and grasping with both hands. The longest he can grip or grasp is two or three seconds with either hand. He needs to rest for five minutes before he can hold something for two or three more seconds. AR 29-30.

Plaintiff testified that he has criminal convictions for drunk driving, driving under the influence of cocaine, possession for sale of a controlled substance and fraud. AR 31. He last used street drugs in October 2009 and alcohol in August of 2010. He has not had a valid driver's license for eight years, but last drove in October 2009. AR 34. He is fully compliant with his treatment recommendations and takes all of his medications. Although doctors told him to quit smoking a year earlier, he still smokes 10 cigarettes a day. AR 32-33.

Plaintiff indicated that he lives with his mom and his brother. His brother is on SSI for physical and mental disabilities. Plaintiff sleeps on the couch in the living room. He can brush his own teeth, put on his clothes, and shower or bathe. He is not able to shave himself, but can do buttons and zippers. He does not cook or prepare simple meals. He goes out to eat two times a month and attends church every Sunday. AR 33-35, 38. He does not do any chores around the house. AR 36. He goes for walks every other day for about ten minutes. AR 37.

On an average day, Plaintiff watches TV for about four hours. He talks on the telephone and visits people outside of his house every other day. AR 38.

Plaintiff explained that his hands flare-up all the time. He cannot close his hand, it's swollen and he's in a lot of pain. However, he is able to hold a toothbrush with his thumb and index finger. He cannot make a fist. AR 39-40. Plaintiff testified that he can only sit for about 30 minutes at a time because he has sharp pain down his leg, but his main problem is his hands. Over the last two years, his hands have gotten worse and he has problems every day. AR 41.

Plaintiff confirmed that he worked with his cousin recycling in 2004 for about four months. In that job, he lifted thirty pounds. In 2005, he was doing general labor in production and lifted about twenty pounds loading boxes on a pallet. Plaintiff also worked for a month making cheese, putting chemicals in a mixer. In 2008, he worked part-time as a dishwasher at Denny's for six months. AR 41-44, 47.

Vocational Expert's Testimony

In response to questioning, the VE identified Plaintiff's past work as laborer, stores, as medium, SVP 2, unskilled and light as performed. Plaintiff's job as an apprentice cheese maker was medium per the DOT, light as performed, and unskilled. AR 47-48.

For the hypotheticals, the ALJ asked the VE to assume a person of the same age, education, language and experience background as Plaintiff. AR 48. For the first hypothetical, the ALJ asked the VE to assume a person capable of managing funds and mildly limited in the ability to remember location and work-like procedures, remember and understand very short and simple instructions, understand and remember detailed instructions, carry out very short and simple instructions, maintain attention and concentration for extended periods, accept instructions from supervisors and respond appropriately to criticisms. This person was mildly limited in social judgment and awareness and socially appropriate behavior. This person also was mildly limited in the ability to perform activities within a schedule, maintain regular attendance, function independently and sustain an ordinary routine without special supervision, complete a normal workday or week without interruptions and perform at a consistent pace, interact with co-workers and withstand stress of a routine workday. The likelihood of emotional deterioration in the work environment was minimal. The VE testified that this person could perform Plaintiff's past relevant work. AR 49-50. The VE explained that the mild limitations "essentially have no effect on eroding the world of work, particularly at the unskilled [level]." AR 50. This person could perform other unskilled work at all exertional levels. AR 50.

For the second hypothetical, the ALJ asked the VE to assume a person who is not significantly limited in all functional areas. The VE testified that this person could perform Plaintiff's past relevant work and other unskilled sedentary through very heavy work. AR 50.

For the third hypothetical, the ALJ asked the VE to assume a person with mild restrictions of activities of daily living, mild difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence and pace, and insufficient evidence of any repeated episodes of decompensation. The VE testified that this person could perform Plaintiff's past relevant work and the entire world of unskilled work. AR 51.

For the fourth hypothetical, the ALJ asked the VE to assume a person able to lift and carry without limitations and no restrictions on standing, walking and sitting. This person could climb, balance, kneel, crawl, bend, crouch, stoop, walk on uneven terrain, climb ladders and work at heights. This person has a bilateral impairment in fine and gross manipulation with both hands, but has motor strength of 5/5 in all extremities, normal motor bulk and tone and normal peripheral pulses. The VE testified that he could not reduce the world of work at all based on the description, so it would be the same response as for the first three hypotheticals. AR 52. The VE further testified that the answer would be the same if combining hypotheticals one and four, two and four and three and four. AR 52-53.

For the fifth hypothetical, the ALJ asked the VE to assume a person who could lift and carry 20 pounds occasionally, 10 pounds frequently, could stand and walk about six hours out of eight and could sit about six hours of eight. This person has limited ability in the upper extremities to push and pull and this person should avoid frequent forceful pushing and pulling with either hand. This person should never climb ladders, ropes and scaffolds, but occasionally could crawl and frequently could climb ramps and stairs, balance, stoop, kneel and crouch. This person has limited handling and fingering and should avoid frequent forceful grasping, such as clenching. This person was limited to occasional fingering with either hand and no frequent forceful grasping such as clenching a wrench with either hand. This person was able to do frequent basic handling and simple grasping required for light work using either hand. The VE testified that this person could perform Plaintiff's past relevant work as performed at the light level, but not per the DOT. AR 53-54. The answer would be the same if combining hypothetical one and five, two and five or three and five. AR 54.

For the sixth hypothetical, the ALJ asked the VE to assume a person who could sit six hours out of eight, could stand and walk two hours and could lift five pounds frequently, less than five pounds occasionally. This person could reach 30 percent of the time, handle 30 percent of the time, feel 30 percent of the time, push and pull 30 percent of the time, and grasp 10 percent of the time each for 30 minutes at a time out of eight hours. The VE testified that this person could not perform Plaintiff's past relevant work or any other jobs at any skill level. AR 54-55.

For the seventh hypothetical, the ALJ asked the VE to assume a person who could lift and carry two pounds, could stand 25 minutes at a time, could sit 30 minutes at a time, could walk one and a half blocks at a time and could grip and grasp things for two to three seconds at a time and then must rest his hands for five minutes. The VE testified that there was no past relevant work and no other work that this person could perform. AR 55-56.

Medical Record

On October 3, 2008, Plaintiff sought emergency room treatment for complaints of lightheadedness, dizziness, near syncope, weakness and blurred vision. He was given glucose and Ativan. AR 224-28. Dr. Ronald Smith prepared an emergency room report, noting that Plaintiff tested positive for cocaine, which probably explained his symptoms. AR 234-36, 237.

On October 24, 2008, Plaintiff sought follow-up treatment for hypertension with Dr. Chi Nguyen. Plaintiff reported that he had not worked for the last three weeks, he could not make a fist with both hands and he could not grip anything. Plaintiff had called an ambulance a week earlier because his blood glucose went down to 70. On examination, Plaintiff was unable to flex the fingers of either hand "all the way." Dr. Nguyen assessed finger tendinitis, hypertension and diabetes mellitus type 2. AR 332.

On November 1, 2008, Plaintiff again sought emergency room treatment for complaints of chest tightness radiating to his right arm, along with shortness of breath. First cardiac enzyme was negative and an EKG showed no ischemic pattern. Plaintiff's urine drug screen was positive for cocaine. Dr. Chi Nguyen noted that Plaintiff had a history of arthritis and was unable to make a fist with both hands. Plaintiff had been referred to Dr. Lee for evaluation, but failed to show. Following examination, Dr. Nguyen diagnosed angina, ruling out myocardial infarction, substance abuse, elevated creatinine of 1.5, ruling out renal insufficiency due to chronic hypertension, history of hypertension, history of diabetes mellitus type II. AR 240-42, 250, 252.

On November 4, 2008, Plaintiff returned to Dr. Nguyen for follow-up after discharge from the hospital for chest pain. Plaintiff's cardiac enzymes were negative for myocardial infarction. Following examination, Dr. Nguyen assessed diabetes mellitus type 2, hypertension and chest pain, rule out coronary artery disease. AR 331.

On November 7, 2008, Dr. J. R. Lee indicated that Plaintiff had multiple tendonitis, a stiff hand and was unable to make a full fist. He also had a trigger finger that was not currently locking. Dr. Lee authorized ...


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