United States District Court, E.D. California
ORDER REGARDING PLAINTIFF’S SOCIAL SECURITY
BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE
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
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.
AND PRIOR PROCEEDINGS
February 22, 2011, Plaintiff protectively filed his
application for supplemental security income. AR 17,
120-26. 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
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.
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.
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.
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.
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.
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.
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.
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.
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.
26, 2010, Plaintiff complained of chronic back pain and left
knee pain. He was prescribed 20 Vicodin with no refills. AR
15, 2010, Plaintiff sought treatment for chronic upper and
lower back pain. He was prescribed Naprosyn. AR 227.
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.
February 3, 2011, Plaintiff complained of middle back pain.
He was to continue Naprosyn and Baclofen. AR 226.
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.
April 22, 2011, Plaintiff underwent a physical therapy
evaluation for back pain. Plaintiff was noted to use a
motorized scooter. AR 207. Plaintiff attended ...