The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT AND DENYING PLAINTIFF'S REQUEST FOR COURT ORDER (Docs. 20, 27)
Plaintiff Ryan Stevens ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability insurance benefits pursuant to Title XVI of the Social Security Act.*fn1 The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Barbara A. McAuliffe.
FACTS AND PRIOR PROCEEDINGS*fn2
Plaintiff filed an application for benefits on June 3, 2007, alleging disability beginning June 28, 2006. AR 169-172, 182-183. Plaintiff's application was denied initially and on reconsideration. AR 93-103. Plaintiff failed to timely file a notice to appear before an Administrative Law Judge (ALJ), but showed good cause, and the agency set a hearing for July 29, 2009. AR 43-60, 104-110. On July 29, 2009, Plaintiff appeared before ALJ Robert Milton Erickson for a preliminary hearing. AR 43-60. On April 21, 2010, a second hearing was held before ALJ Benjamin F. Parks. AR 43-88. ALJ Parks subsequently issued an order denying benefits on June 18, 2010, finding Plaintiff was not disabled. AR 21-30. This appeal followed.
Plaintiff's alleged disability stems from a 2006 on the job injury. While working for a construction company, Plaintiff was run over by a forklift which crushed his legs, feet and pelvis. The entire medical record was reviewed by the Court. AR 279-480. The medical evidence will be referenced below as necessary to this Court's decision.
ALJ Robert Milton Erickson held a preliminary hearing on July 29, 2009 in San Francisco, California. AR 45. Plaintiff appeared pro se. AR 43-60. Plaintiff stated that he understood his rights as to representation but that he wanted to proceed without a representative. AR 46. The ALJ first asked Plaintiff about his 2006 workers' compensation claim. AR 46. Plaintiff stated that as a result of his injury and resulting worker's compensation claim he has been to over 20 facilities. AR 47. Plaintiff requested that the ALJ proceed to a full hearing. AR 49. Expressing reluctance to question Plaintiff further without the appropriate medical records, the ALJ informed Plaintiff that he needed full and complete clinical records supporting Plaintiff's doctor's opinions. AR 51.
The ALJ continued with the hearing and after being duly sworn, Plaintiff testified that he had not worked since June 28, 2006. AR 56. Plaintiff testified that he spends the majority of his time using his computer to complete workers' compensation letters. AR 56. Depending on his pain, Plaintiff stated that he typically spends only five minutes on the computer before resting. AR 56. Plaintiff stated that he lives at home with his parents and the family dog. AR 57. Sometime after his accident, Plaintiff would walk the dog but when doing so he experienced severe pain in his feet and lower back. AR 58. Plaintiff has been unable to take his dog for a walk for over a year due to this pain. AR 57.
With respect to other daily activities, Plaintiff testified that he drove from Tehachapi to Bakersfield for the hearing. AR 58. At the conclusion of the hearing, the ALJ asked Plaintiff to sign a release for additional medical records. The ALJ notified Plaintiff that if necessary he would order an additional hearing. AR 60.
ALJ Benjamin F. Parks held a second hearing on April 21, 2010 in San Francisco, California. AR 63. Plaintiff restated he did not want representation. AR 63. Plaintiff testified that at the time of the hearing he was 28 years old. He has his high school diploma as well as "quite a few college credits." AR 64. Before his disability onset date, Plaintiff last worked in construction building steel buildings. AR 65. Plaintiff stated that he stopped working due to chronic pain in his feet, back, and hips. AR 65-73. Plaintiff expressed that his pain stems from a 2006 severe industrial injury. While on the job, Plaintiff was run over by a forklift which crushed his legs, feet and hip. AR 66. After the accident, Plaintiff was hospitalized for a few months and then spent time in a nursing home. AR 78-79. Plaintiff testified that one of his physicians has recommended surgery. AR 70. However, Plaintiff refuses the procedure because his doctor cannot guarantee that surgery will alleviate his pain. AR 70. Plaintiff testified to alleviate his pain the only medication he takes is ibuprofen, stating that workers' compensation would not provide him with a treating physician. AR 73. Plaintiff stated that without a primary treating physician, he cannot receive care or medication refills. AR 74.
With respect to his activities of daily living, Plaintiff testified that on an average day he wakes up at 5:30 am, goes to Bakersfield Junior College from Monday through Thursday and spends the afternoon doing homework on his laptop in bed. AR 74-76. Plaintiff does his own shopping, cooking, and cleaning, and usually goes to bed around 10:00 pm. AR 76-77. Plaintiff stated he no longer visits friends because he cannot sit too long. AR 75, 77.
With respect to his other physical impairments, Plaintiff stated he had problems sleeping. AR 77. At the hearing, the ALJ noted that most of Plaintiff's records stopped in 2007 and requested that Plaintiff provide him with copies of any records after May 2007. AR 79-81.
Thereafter, the ALJ elicited testimony from Vocational Expert, Linda Ferra. AR 81. The VE testified that Plaintiff previously worked in positions classified as construction worker (DOT 869.687-026), machinist (DOT 600.380-18), yard worker (DOT 211.462-014) and cashier/checker (DOT 211.462-014). AR 82.
The VE was asked to consider four hypothetical questions posed by the ALJ. AR 83. First, VE Ferra was asked to consider jobs a hypothetical person could complete assuming a hypothetical worker of Plaintiff's age, education, and work experience capable of light work with occasional stooping, crawling, bending, no foot pedals and uneven surfaces. VE Ferra indicated such an individual could perform Plaintiff's past relevant work as a cashier/checker. AR 83. Plaintiff could also perform work as a cashier II and a packaging line worker. AR 83.
In a second hypothetical, VE Ferra was asked to consider the same individual, capable of light work with occasional stooping, crawling and bending, no foot pedals and uneven surfaces, but this person could sit for six hours and stand for two hours. AR 83. VE Ferra indicated such an individual could perform the full range of sedentary work including representative jobs as an assembler (DOT 734.687-018) and order clerk (DOT 209.567-014).
In a third hypothetical, VE Ferra was asked to consider the same individual, capable of sedentary work with occasional stooping, crawling and bending, no foot pedals and uneven surfaces, but this person could sit for six hours and stand and walk less than two hours. AR 83. VE Ferra indicated such an individual could not perform any work as it exists in the national economy. AR 84.
In the final hypothetical, VE Ferra was asked to consider the same individual, capable of light work with occasional stooping, crawling and bending, no foot pedals and uneven surfaces, but this person could sit for six hours and stand for two hours with a mental RFC of mild activities of daily living, and mild for social functioning and moderately impaired for concentration, persistence and pace, and the person would be off task 40 to 50 percent if given detail and complex instructions as well as 40 to 50 percent on simple, repetitive tasks and would be incapable of an "on production" schedule. AR 84. VE Ferra indicated such an individual could not perform any work as it exists in the national economy. AR 85.
Using the Social Security Administration's five-step sequential evaluation process, the ALJ determined that Plaintiff did not meet the disability standard. AR 21-30. See 20 C.F.R. § 404.1520 (2011). At Step One, the ALJ found that Plaintiff had not worked since the alleged onset date. AR 24. At Step Two, the ALJ found that Plaintiff had severe impairments including traumatic injury to pelvis and lower extremities with residual pelvic nonunion and status post right peroneal nerve decompression and transfer and right foot drop. AR 24-25. At Step Three, the ALJ found that Plaintiff's pelvic fracture met the criteria for Listing 1.06, 20 C.F.R. 404.1520(d).
The ALJ determined that Plaintiff was under a disability, as defined by the Act, from June 28, 2006 through August 31, 2008. AR 25. However, using the eight-step evaluation process the ALJ determined that Plaintiff experienced a medical improvement as of September 1, 2008. Based on his review of the entire record, the ALJ determined that beginning September 1, 2008, Plaintiff retained the residual functional capacity (RFC) to perform light work limited to occasional stooping, crawling, and bending. Plaintiff cannot perform work on uneven surfaces and can only sit for 6 hours in an 8-hour work day, and stand/walk for 2 hours in an 8-hour work day. AR 26. Given ...