Pierce v. Colvin

          ORDER REGARDING PLAINTIFF’S SOCIAL SECURITY COMPLAINT

          BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Plaintiff Steven Pierce (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his application for supplemental security income (“SSI”) under 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 Barbara A. McAuliffe.

         The 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 agency’s determination to deny benefits.

         FACTS AND PRIOR PROCEEDINGS

         On February 22, 2011, Plaintiff protectively filed his application for supplemental security income. AR 17, 120-26.^[1] Plaintiff alleged that he became disabled on December 1, 2009. AR 120. Plaintiff’s application was denied initially and on reconsideration. AR 72-76, 79-81. Subsequently, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). ALJ Timothy S. Snelling held a hearing on November 8, 2012, and issued an order denying benefits on November 30, 2012. AR 17-27. Plaintiff sought review of the ALJ’s decision, which the Appeals Council denied, making the ALJ’s decision the Commissioner’s final decision. AR 1-4, 15-16. This appeal followed.

         Hearing Testimony

         The ALJ held a hearing on November 8, 2012, in Stockton, California. AR 32-58. Plaintiff appeared and testified. He was represented by attorney Dennis Evans. AR 34. Impartial Vocational Expert (“VE”) Jeff Clark also testified. AR 53.

         At the time of the hearing, Plaintiff was 51 years old with an eleventh grade education. AR 38. Plaintiff testified that he worked as a care provider from January 2007 through December 2009. AR 38. In 1998, he also worked providing in-home support service to a friend, the mother of his children. He would help cook and assist with bathing and groceries. AR 39-40. In 2002, Plaintiff drove a forklift in a warehouse eight hours a day, forty hours a week. AR 41-42. Plaintiff stopped working there because the job moved out of town. AR 42-43. In 2010, Plaintiff earned a little over $2, 000 providing in-home support services for a couple of months. AR 43-44. Plaintiff was let go because they ran his record and found out that he had a violent crime. AR 44.

         Plaintiff testified that he suffered a gunshot wound in 1999, and the bullet is still lodged near his spine in the middle of his back. Plaintiff attributes his chronic back pain to the bullet. AR 45. He gets relief from the pain by moving and taking his medications. He takes pharmaceutical strength pain killers, but only took ibuprofen before the hearing. If he took Vicodin, then he would be out of it. He takes Vicodin four times a day because he needs it. His ibuprofen also is prescription strength at 600 milligrams. AR 46-47.

         Plaintiff testified that he has had a walker for over a year. It was prescribed by his primary care physician, Dr. Glen Villanueva, and covered by insurance. AR 47. Plaintiff testified that he is able to use public transportation. He does not own a car and does not have a valid driver’s license. AR 48-49. Plaintiff had a DUI and his license was suspended. If he had a driver’s license and a car, he would be able to drive. AR 49.

         Plaintiff also testified that he lives with the mother of his children, but his children do not live with them. AR 49. With regard to household chores, Plaintiff reported that he cooks, but his daughter washes dishes, does laundry, sweeps, mops, vacuums and dusts. Plaintiff does not go to church, but visits family or friends. When he hangs out with his friends, they go to the park and talk. AR 50-51.

         Plaintiff has a computer at home. He does not have Facebook, but he works on the computer a lot. He gets some of his news and information from the computer. Plaintiff also likes to read and watches a lot of TV. AR 51.

         When asked about his sleep, Plaintiff testified that he could only sleep on his right side because of pain. Plaintiff reported that in the last six months or so, he asked a doctor about surgical removal of the bullet. He was told that a lot of people have to live with it and the safe thing to do is leave it alone because surgery is risky. AR 52-53.

         Following Plaintiff’s testimony, the ALJ elicited testimony from the vocational expert (“VE”) Jeff Clark. AR 53. The VE testified that Plaintiff’s past work was classified as home attendant and warehouse worker. AR 53-54. The ALJ then asked the VE hypothetical questions. In his first hypothetical, the ALJ asked the VE to assume an individual restricted to light work with no climbing of ladders, ropes or scaffolding and occasional stooping, crouching and kneeling. The VE testified that this hypothetical individual would not be able to perform Plaintiff’s past work. AR 54. The ALJ asked the VE to further assume that this individual was between 49 and 51 years, with an eleventh grade education and Plaintiff’s past work experience. The VE testified that there were no transferable skills from Plaintiff’s past work. However, the VE indicated that this individual could perform about 90 percent of the light jobs listed in the Dictionary of Occupational Titles and about 99.9 percent of the sedentary jobs. AR 54-55. If the person were restricted to no more than two hours of walking, two hours of standing and three hours of sitting in an eight-hour day, this would eliminate the occupational job base and the person would not be competitively employable. AR 55. In response to questioning from Plaintiff’s counsel, the VE testified that there were no transferrable skills from the home attendant position to sedentary jobs. AR 55-56.

         Medical Record

         The entire medical record was reviewed by the Court. AR 202-454. The relevant medical evidence is summarized here or referenced below as necessary to this Court’s decision.

         On May 26, 2010, Plaintiff complained of chronic back pain and left knee pain. He was prescribed 20 Vicodin with no refills. AR 277-78.

         On July 15, 2010, Plaintiff sought treatment for chronic upper and lower back pain. He was prescribed Naprosyn. AR 227.

         On December 5, 2010, Plaintiff complained of chronic back pain, noting that he had run out of pain medication. He was prescribed Vicodin and Ibuprofen. AR 374-77.

         On February 3, 2011, Plaintiff complained of middle back pain. He was to continue Naprosyn and Baclofen. AR 226.

         On March 1, 2011, Plaintiff sought Emergency Room treatment for his mid-back pain secondary to an old gunshot wound. Plaintiff reported that he had chronic rib pain from the injury, but it was usually controlled with Naproxen and precautionary movements. Plaintiff now had pain in his chest. On physical exam, Plaintiff had a normal gait. AR 241-42. A CT of Plaintiff’s chest identified a dominant bullet fragment lodged adjacent to the right main bronchus. AR 242. Plaintiff likely did not need emergency removal and there was no surgical intervention. AR 243. The examining physician recommended stretching, warm compresses, and continuing Naproxen and Motrin as needed. Plaintiff also was prescribed a trial of Flexeril to see if the muscle relaxant helped with pain. AR 434-35.

         On April 22, 2011, Plaintiff underwent a physical therapy evaluation for back pain. Plaintiff was noted to use a motorized scooter. AR 207. Plaintiff attended ...