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Marcus W. Magill v. Michael J. Astrue

February 13, 2013

MARCUS W. MAGILL,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER AFFIRMING AGENCY'S DENIAL OF BENEFITS AND ORDERING JUDGMENT FOR COMMISSIONER

Plaintiff Marcus W. Magill, by his attorney, Steven G. Rosales, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits under Title II of the Social Security Act and for supplemental security income under Title XVI of the Social Security Act (42 U.S.C. § 301 et seq.). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge.*fn1 Following a review of the complete record and applicable law, this Court finds the decision of the Administrative Law Judge ("ALJ") to be supported by substantial evidence in the record as a whole and based upon proper legal standards. Accordingly, this Court affirms the Commissioner's determination.

I. Procedural History

On October 30, 2007, Plaintiff applied for disability insurance benefits under Title II of the Social Security Act. AR 35. On November 20, 2007, Plaintiff filed for supplemental security income. AR 6. In both applications, Plaintiff alleged disability beginning December 1, 2005. AR 94.

These claims were denied initially on September 29, 2008. AR 35. They were denied upon reconsideration on January 29, 2009. AR 57. Plaintiff requested a hearing on February 18, 2009. AR 76. The hearing occurred on April 29, 2010 before ALJ Sharon L. Madsen. AR 532-567. Plaintiff appeared and testified. Id. On May 21, 2010, the ALJ denied Plaintiff's application. AR 13-25. The Appeals Council denied review on May 19, 2011. AR 7-9. Plaintiff filed a complaint seeking this Court's review on August 9, 2011. Doc. 1.

II. Factual Record

A. Plaintiff's Testimony

At the time of the hearing, Plaintiff was 35 years old. AR 536-37. He had a high school education. AR 537. He was married to a disabled woman and had three daughters, aged 10, 7, and 5. Id. Plaintiff stated he had not used methamphetamines for three years or marijuana for one year. AR 554-55. He was last incarcerated in 2006. Id.

Plaintiff had worked numerous jobs, including as a floor salesman in an industrial and hardware area where he would cut glass, fix screens and chains, and answer questions about home improvement. AR 540-41. He had also worked as a line cook, a groundskeeper for a golf course, a delivery driver, a floor installer, and a landscaper. AR 542-45.

Plaintiff testified that his symptoms included back pain following surgery to his lower back. AR 546. He described weakness on his lower left side. AR 546. He had tingling sensations and numbness from his calves to his feet. AR 546. His back hurt while stooping and bending. AR 547-48. Sitting pinched his nerves, while standing or walking caused tension in his body. Id. He would need to lie down several times during the day for an hour to an hour-and-a-half total. AR 557. When putting on shoes and socks, he needed to stop halfway through and rest for "two minutes or so." AR 554. Sometimes he could not move and would lie down for 24 hours or more if he could. AR 547. His medications helped with his pain, but they either made him drowsy or kept him awake. AR 549.

He stated that he had asthma all his life. AR 550-552. He constantly battled bronchitis. Id. A bronchitis attack could last for a month. Id. He had HIV, and this aggravated his asthma. Id. The asthma attacks and bronchitis would sometimes inflame his lungs; in February he was hospitalized for five days. Id. He had not smoked in a year. Id.

His HIV also caused diarrhea. Id. He would have diarrhea two or three days a week. AR 557-58. The diarrhea would send him to the bathroom from three to 20 times in a day, from eight to 25 minutes each time. Id. Due to the diarrhea his weight was constantly fluctuating. AR 551-2.

Plaintiff had good and bad days with illness and fatigue. AR 539-40. He stated he could lift 20 to 30 pounds comfortably, sit for 30 to 45 minutes on a good day and five on a bad day, stand for an hour on a good day and not at all on a bad day, and walk about a mile on a good day. AR 553-54. The longest he could perform an activity before needing to rest was "about a half hour." AR 557. The resting would last one or two hours, but sometimes he would have to give up altogether. AR 557. He could do the dishes and the laundry, cook dinners and breakfasts, shop, do some yard work including mowing and a little weeding, and drive his kids to school. AR 538-39. He spent some time on the computer but said it was hard to focus. AR 539-40.

B. Functional Reports

Plaintiff also described his symptoms in a functional report dated February 28, 2007. AR 155-162. In the report, Plaintiff stated that his medical conditions affected his ability to squat, bend, and kneel; his concentration and memory; his ability to get along with others; and his ability to complete tasks. AR 160. He stated that he could only walk a couple of blocks before needing to rest. Id. He would then rest for 45 minutes. Id. He could only pay attention for a couple of minutes. Id.

His report also described his activities on a typical day. AR 155-162. He would perform each of these tasks without assistance. Id. Each day he would prepare meals such as sandwiches or TV dinners. Preparing food now took "twice as long" as it did before his ailments. He could do laundry and cleaning; these tasks would also take "twice as long." He would go outside a few times a day. He would go shopping for food or clothes, though these activities would take "twice as long." A few times a week he would visit his friends, or go to church, to NA meetings, or to medical appointments. He would travel on foot or bicycle. He stated that he was unable to play sports anymore: "I have gone into a depression and it's hard to be motivated to play sports anymore, energy level is below normal." AR 159. By contrast, before experiencing these conditions he could work long hours, play sports, and cook full dinners. AR 156.

On the same day, Plaintiff's mother Karen Magill submitted a third party functional report. AR 155-162. Ms. Magill's report largely mirrors Plaintiff's. She described how Plaintiff's medical condition affected his abilities: his asthma had worsened, he never completely healed from back surgery, he had problems with memory and concentration, and he could walk only a few blocks before resting. AR 152-3. She stated that, since his medical conditions began, his activities changed in that he now goes out less and "his energy level is way down." AR 151. She attributed this change in energy to pneumonia, pain, and depression. AR 154. Her description of Plaintiff's daily activities also resembled Plaintiff's description. She noted, as did Plaintiff, that certain activities took him twice as long to perform: doing laundry and housecleaning; shopping for food and running other errands; and preparing food. She also noted that a few times a week he would watch his three daughters. AR 148. He would feed them and help the oldest with her homework. Id. The only hobby or interest that she identified is "watching TV," which he would do "all day." AR 151.

C. Testimony of Vocational Expert

Thomas C. Dachelet testified as the vocational expert. He characterized Plaintiff's prior work as cook (medium, SVP5), forklift delivery driver (medium, 3), delivery driver (medium, 3), warehouse work (medium, 2), floor installer (medium/heavy/very heavy, 6), carpenter (medium, 7), groundskeeper (medium, 3), and hardware sales (light, 4).

For the first hypothetical question, the ALJ assumed a person of the same age, education, and work background as Plaintiff. The person could lift and carry 20 pounds occasionally and ten pounds frequently, and he could sit, stand or walk six hours in an eight-hour workday, with occasional stooping, crouching, crawling, and climbing. AR 563. He had asthma precautions of avoiding concentrated dust, gases, and fumes. Id. Dachelet testified that such a person could perform Plaintiff's past work doing hardware sales.

For the second hypothetical question, the ALJ directed Dachelet to consider the individual described in hypothetical question 1, who in addition had a sit/stand option. Dachelet testified that such a person could not perform Plaintiff's prior work. Such a person could perform the requirements of representative occupations such as bagger (21,179 jobs in California), garment sorter (21,179 jobs in California), and grader (20,188 jobs in California). These jobs exist at nine times these numbers in the United States. AR 563-565.

The remaining hypotheticals started with the person in the second hypothetical. Id. In the third hypothetical, this person would need an additional two to four breaks a day of 30 minutes. Id. In the fourth, the person would need to miss two days a month due to illness. Id. In the fifth, the person would need restroom breaks at least three to four times during the day, stretching from eight to ten ...


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