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Acosta v. Berryhill

United States District Court, E.D. California

March 21, 2017

GILBERT MARQUEZ ACOSTA, Plaintiff,
v.
NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security, Defendant.

          ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

          BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         Plaintiff Gilbert Marquez Acosta (“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.[2]

         Having carefully considered the parties' briefs as well as the entire record in this case, 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

         Plaintiff filed his application for supplemental security income on January 6, 2012. AR 166-74.[3] Plaintiff alleged that he became disabled on January 1, 2011. AR 166. Plaintiff's application was denied initially and on reconsideration. AR 104-08, 112-16. Subsequently, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). ALJ John Cusker held a hearing on March 12, 2014, and issued an order denying benefits on May 15, 2014. AR 15-28, 33-55. 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, 8. This appeal followed.

         Hearing Testimony

         The ALJ held a hearing on March 12, 2014, in Fresno, California. AR 33-55. Plaintiff appeared and was represented by attorney Michael Goldberg. AR 35. Impartial Vocational Expert Jose Chaparro also appeared and testified. AR 35, 49-54.

         At the time of the hearing, Plaintiff was 50 years old, 5'11” tall and 230 pounds. In response to questions from the ALJ, Plaintiff testified that he has a 10th grade education and can read and write. His last job was about three years prior to hearing, when he worked in onions, lifting, sweeping and sorting, and also worked in figs. In the last fifteen years, he has done warehouse work, tire shop work and farm labor. However, he did not work between 2000 and 2005, and had not worked since December 12, 2011. AR 36-42.

         In response to questions about his ability to work, Plaintiff testified that his ability is limited because he cannot stand on his feet more than an hour or two due to numbness from diabetes. He also cannot stand because of his back, and he has trouble with his hearing. AR 42.

         When asked about his medications, Plaintiff testified that he takes medication for diabetes, along with medication for dizzy spells, vertigo, anxiety and depression. He also has been taking methadone for 10 to 15 years, which helps with back pain. Plaintiff reported that he tests his blood sugars, but they are not controlled. He does not have side effects from medication. AR 42-44, 46-47.

         In response to questions about his daily activities, Plaintiff testified that he is able to dress and bathe himself without help. He does not cook, but sometimes helps with dishes, mows the lawn, rakes leaves and cleans house. He also plays videogames about four hours each day. AR 45-46. He can walk about half a block to a block, but cannot stand and walk for two hours. He can bend and squat, but can only lift about five pounds. He can sit for two hours at a time, but will have to get up and walk around for a little bit. AR 47-48.

         In response to questions from his attorney, Plaintiff confirmed that he had knee surgery in 1999, and he still has pain. He declined surgery on the other knee. Plaintiff also testified that he does not sleep for long because he needs to urinate every two to three hours. However, he is able to sleep during the day. AR 48-49.

         Following Plaintiff's testimony, the ALJ elicited testimony from the vocational expert (“VE”) Jose Chaparro. The VE testified that Plaintiff's past work was classified as warehouse work, fruit harvest worker, agricultural produce packer, tire repairer and tractor operator. AR 50-51. For the first and only hypothetical, the ALJ asked the VE to consider a hypothetical individual with the same age, education and work experience as Plaintiff. This individual could lift and/or carry 20 pounds occasionally and 10 pounds frequently, could stand and sit without restriction, could walk for one hour at a time without interruption and for three to four hours total in an eight-hour workday. This individual had no limitations with regard to the use of his hands or feet, but should wear proper footwear because of diabetes. This individual could do all postural activities frequently, but not continuously. This individual could maintain concentration and relate appropriately to others in a job setting, could handle funds in his own best interest, could understand, carry out and remember simple instructions, and could respond appropriately to ...


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