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Paul Gonzalez v. Michael Astrue

January 16, 2013


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



Plaintiff Paul Gonzalez ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his applications for disability insurance and supplemental security income benefits pursuant to Titles II and XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Gary S. Austin, for findings and recommendations to the District Court.


Plaintiff filed applications for benefits in May 2008, alleging disability as of May 26, 2005.*fn2 AR 110-122. Plaintiff's applications were denied initially and on reconsideration; he then requested a hearing before an Administrative Law Judge ("ALJ"). AR 70-74, 78-85. ALJ Nancy Lisewski held a hearing and subsequently issued an order denying benefits on April 2, 2010, finding Plaintiff was not disabled. AR 16-26. On June 27, 2011, the Appeals Council denied review. AR 1-3.

Hearing Testimony

ALJ Lisewski held a hearing on February 8, 2010, in Fresno, California. Plaintiff appeared and testified; he was assisted by attorney Gina Fazio. Vocational Expert ("VE") Cheryl Chandler also testified. AR 31-51.

Plaintiff lives with his fiance and two sons in an apartment. AR 43. He completed the ninth grade, but did not earn a GED. When asked whether he could read the newspaper, Plaintiff replied "somewhat." He is five feet, nine inches tall and weighs 295 pounds. AR 40. A few years ago he weighed 275 pounds, which he considers his normal weight. AR 41.

In response to an inquiry by the ALJ about the cane he was carrying, Plaintiff indicated he slipped and fell in 2003 and injured his back. As a result of the injury, he was unable to continue working. His condition worsens every day. AR 35-36. When asked whether any doctor prescribed the cane, Plaintiff replied, "No, MediCal wouldn't cover it, no." AR 38. Plaintiff indicated his treating physician, Dr. Bautista, referred him to an orthopedist, but MediCal will not cover that. AR 38. He has been using the cane for two to three years because it is difficult to walk due to back pain. AR 39. He uses the cane at home, and also uses a walker to get out of bed, although it was not prescribed by a physician either. AR 42.

Plaintiff testified he gets migraine headaches every other week, connected to pain in his neck. He has a disc bulge in his neck and one in his lower back. AR 39. He has had x-rays and MRIs and his doctors are "stumped right now" and cannot do anything. AR 41. His right leg is also numb and he believes it is sciatica. AR 39. The numbness in his leg began two or three years ago and is getting worse. AR 39-40. He also has problems grasping with his left hand (he is right-handed) and is waiting to see a specialist because something is "wrong with [his] nerve or something." AR 40. He has trouble reaching overhead because of a torn "socket" on the right side and arthritis in the shoulder. AR 41-42.

When asked to describe a typical day, Plaintiff indicated that he wakes up between five and six every morning, then uses the bathroom to vomit and to take his pain medications. Then he sits and waits for the medications to take effect. Medication side effects include vomiting, sweats, and diarrhea. AR 43. Plaintiff does not perform the household chores; his son helps out around the house. AR 43. When asked what he did all day, Plaintiff indicated he does therapy exercises while seated for fifteen minutes every other day. He also watches television for about six hours a day while lying on his side on the couch. AR 45.

Plaintiff can sit, with medication, for about a half an hour; without medication, he can sit for fifteen minutes. He can walk about four blocks with pain. AR 44. He can lift a ten pound bag of potatoes and a gallon of milk. AR 44-45. His fiance helps him with bathing and showering because he needs help getting in and out of the enclosure. AR 46. Plaintiff uses marijuana for his back pain and is hoping to get a prescription for it, but the physicians at Fresno Health would not sign the necessary paperwork. AR 46.

Although he takes medication for depression, Plaintiff is not receiving mental health counseling. AR 45. He believes his depression has an effect on his ability to work. AR 45-46. He used to be able to "do everything" and now he feels helpless and hopeless. AR 46.

Plaintiff wishes he could have surgery or get help for his pain so that he could "try to get back to normal," and so that he could play with his children outside. AR 47.

VE Chandler identified Plaintiff's past work as follows: security guard, semi-skilled and light, DOT*fn3 372.667-034, with an SVP*fn4 of three; general laborer, unskilled and heavy, DOT 519.686-010, with an SVP of two; and furniture assembly installer, semi-skilled and heavy, DOT 739.684-082, with an SVP of four. AR 48.

In the first hypothetical question, the VE was asked to consider an individual of Plaintiff's age, education and experience, who can perform jobs with an SVP of one or two, who can lift and carry ten pounds frequently and occasionally, and who can sit, stand and/or walk for six hours in an eight-hour day. AR 49. VE Chandler indicated such an individual would be unable to perform Plaintiff's past work. AR 49. However, such an individual could perform the work of: (1) usher, light and unskilled, DOT 344.677-014, with approximately 10,100 jobs available in California; (2) ticket-taker, light and unskilled, DOT 344.677-010, with approximately 9,300 jobs available in California; and (3) cashier, eroded by eighty-percent to accommodate the ...

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