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Wardell Jones v. Michael Astrue

January 23, 2013

WARDELL JONES
PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



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

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Wardell Jones ("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 Magistrate Judge Gary S. Austin, for findings and recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed an application for benefits in May 2008, alleging disability as of December 17, 2005. AR 139-142. Plaintiff's applications were denied initially and on reconsideration; he then requested a hearing before an Administrative Law Judge ("ALJ"). AR 86-89, 92-99, 101-103. ALJ Christopher Larsen held a hearing and subsequently issued an order denying benefits on April 28, 2010, finding Plaintiff was not disabled. AR 53-60. On October 21, 2011, the Appeals Council denied review. AR 1-4.

Hearing Testimony

ALJ Larsen held a hearing on March 15, 2010, in Fresno, California. Plaintiff appeared and testified; he was assisted by attorney Jeffrey Milam. Vocational Expert ("VE") Cheryl Chandler also testified. AR 14-49.

Plaintiff was born on March 6, 1959; he was fifty-one years old on the date of the hearing. AR 19. He is six feet tall and weighs 255 pounds. AR 21. Plaintiff is married and lives with his wife. He has a valid driver's license without restriction. When traveling long distances he shares driving responsibilities with his wife. AR 19-20. If he sits too long in the car, his back, knees and arthritis bother him. AR 21.

After high school, Plaintiff obtained an associates degree in law. When asked whether he used his associates degree "for any kind of work" that he performed, Plaintiff replied "no." AR 21. Plaintiff has also served in the United States Army. AR 22. He last worked in 2002, and stopped working due to arthritis, stress and depression. His doctors told him working would be "unfeasible" due to his health. AR 22.

As a result of depression and alcohol abuse, Plaintiff has been incarcerated for possession of a controlled substance (cocaine). AR 22-23. Although he could not identify a sober date, Plaintiff indicated he had been sober for "over a year," then stated he would "go with January 1, 2010," as a sober date. AR 23. He then corrected his answer to January 1, 2009.*fn2 AR 23. With regard to incarceration, Plaintiff has served time in jail and in prison. AR 24. Following a recent two-year prison sentence, Plaintiff was on parole for a period of three years. He was released from parole the day of the hearing. AR 24-25. After he was most recently released from prison, Plaintiff would use cocaine and alcohol two to three times a week; such use is referred to as "chipping." AR 25. Plaintiff's drug use preceded his mental illness as he began using drugs at the age of seventeen. AR 26.

Plaintiff has been battling mental illness since the time of his military service. He does not currently receive VA disability, but he is looking into it. AR 25. He also has trouble with concentration and focus. AR 23-24. When asked to describe his mental condition, Plaintiff indicated his problems include sleep apnea and not sleeping through the night, and voices. At one point he was hearing voices daily, but medication has lessened that symptom. AR 26. Presently, he hears voices once every two or three months "if that." AR 27, 32. His inability to focus is what keeps him from working. AR 27, 32. For example, he cannot watch an entire movie because he loses focus after fifteen to twenty, or thirty, minutes. AR 28. His focus or concentration would be worse without medication. AR 33. He also has difficulty being around other people and prefers to isolate himself. AR 28, 38. Additionally, Plaintiff has trouble keeping to a schedule, but his wife helps him. AR 28. Plaintiff has been hospitalized overnight in the past for depression as he has considered suicide. AR 29. He was last hospitalized in November or December of 2009. AR 29.

Plaintiff sees his primary care physician every week as a result of the pain he feels. AR 30. He takes various medications and the doctors advised him to rest much of the day. The medications he has been prescribed treat stress, depression and tension. AR 30. He does not have any bad side effects from the medications. AR 32. He lies down two or three times a day for at least an hour and a half to two hours or more. AR 31. Despite taking medication to treat sleep difficulties, he still suffers from poor sleep. AR 32. Plaintiff suffers from sleep apnea and uses a C-PAP machine at night. AR 33-34. Plaintiff also uses the C-PAP machine to treat anxiety and stress because stress causes breathing problems, and when he uses the C-PAP it helps him to focus and breathe. AR 34.

Low back pain is a daily problem. Plaintiff has pain all day long, and often has trouble sitting and standing for long periods of time. AR 35-36. He also has sharp needle-like pain in his right knee and has received physical therapy as a result. AR 36. According to his physicians, Plaintiff is supposed to "walk every 15 minutes every day" to reduce his weight. AR 37. He has not received pain injections, nor undergone surgery for these problems specifically. AR 37. Plaintiff has undergone surgery in the past for gunshot wounds to his arms and legs. AR 37-38.

Plaintiff used to enjoy bowling, and going to hockey games and to movies. He no longer enjoys being in a crowd. AR 38. He does regularly attend Cornerstone Church and remains involved with Behavioral Intervention's support group. AR 38-39. When at the support group, although there are others around, because they share similar feelings and experiences it lessens Plaintiff's anxiety. AR 39. While attending Sunday services in the big congregational setting,*fn3 Plaintiff typically sits in the back so he can see what is happening around him. AR 39-40. Also, he gets up and stands now and then due to the length of the service, and has had to leave the service because of pain. AR 40.

When asked to describe a normal day around the house, Plaintiff indicated that he tries to help his wife with cleaning or laundry. AR 40. He cannot sweep, for example, and even has difficulty getting dressed in the morning. AR 41. He has difficulty cooking because he forgets he has something on the stove, or he'll go to the microwave intending to retrieve a cup of coffee when he has already placed the cup in the refrigerator. AR 40-41.

VE Chandler identified Plaintiff's past work to include: security guard, semi-skilled and light per the DOT*fn4 , with an SVP*fn5 of three; and warehouse worker, unskilled and medium to heavy, albeit temporary. AR 44.

In the first hypothetical question, the VE was asked to consider an individual of Plaintiff's age, education and experience, who can perform light work but may only occasionally reach above the shoulder with his left arm, and who may only occasionally kneel. AR 44. VE Chandler indicated such an individual would be able to perform Plaintiff's past work as a security guard. AR 44. Alternatively, such an individual could also work as a: (1) food preparer, light and unskilled, DOT 311.674-014, with approximately 13,400 jobs available in California; (2) counter salesperson, light and unskilled, DOT 295.366-010, with approximately 15,000 jobs available in California; and (3) cashier, light and unskilled, DOT 211.462-010, with approximately 120,000 jobs in California. AR 45.

In a second hypothetical, VE Chandler was asked to consider an individual of Plaintiff's age, education and experience, who can lift and carry up to ten pounds, and who can stand and walk for a total of one hour and sit for a total of four hours in an eight-hour workday. AR 45-46. The VE indicated such an individual would be unable to perform any work. AR 46.

In a third hypothetical, the VE was asked to consider an individual of Plaintiff's age, education and experience, who was unable to maintain attention and concentration throughout an eight-hour workday. VE Chandler indicated no jobs would be available for such an individual. AR 46.

With additional limitations imposed upon the first hypothetical by Plaintiff's counsel, wherein an individual was markedly restricted in the ability to remember and carry out detailed instructions, was moderately impaired in the ability to maintain attention and concentration for extended periods of time, would encounter moderate difficulty in completing a normal workday without psychological interruption, coupled with a moderate ability to respond appropriately to changes in the work setting, VE Chandler indicated that such an individual would likely be ...


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