United States District Court, E.D. California
ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY
COMPLAINT
Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE
INTRODUCTION
Plaintiff
William Barron Felix (“Plaintiff”) seeks judicial
review of a final decision of the Commissioner of Social
Security (“Commissioner”) denying his
applications for disability insurance benefits
(“DIB”) under Title II of the Social Security Act
and for supplemental security income (“SSI”)
under Title XVI of the Social Security Act.[1] 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
Plaintiff
previously was found not disabled and capable of performing
past relevant work in October 2010 based on prior
applications for a period of disability, disability insurance
benefits, and supplemental security income. AR 15. In April
2013, after previously being denied in 2010, Plaintiff filed
applications for disability insurance benefits and
supplemental security income. AR 180-86, 195-205, 213, 215,
217.[2]
Plaintiff alleged that he became disabled due sciatica, high
blood pressure, and back problems. AR 223. Plaintiff's
applications were denied initially and on reconsideration. AR
115-18, 122-26. Subsequently, Plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”). ALJ
Andrew Verne held a hearing on May 21, 2015, and issued an
order denying benefits on July 28, 2015. AR 12-26, 32-75.
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, 10. This appeal
followed.
Hearing
Testimony
The
ALJ, appearing by video from Moreno Valley, held a hearing on
May 21, 2015, in Fresno, California. Plaintiff appeared with
his attorney John Molitoris. Impartial Vocational Expert
(“VE”) Judith Najarian also appeared. AR 34.
In
response to questioning from the ALJ, Plaintiff testified
that he was collecting foods stamps and unemployment. He had
been collecting unemployment for about three months following
seasonal work as a forklift driver. Plaintiff currently was
looking for jobs, and he had applied for several warehouse
and forklift jobs. AR 37-39. Prior to his seasonal job,
Plaintiff had not worked since 2008 because he fell off of a
house and hurt himself. Plaintiff fell off of a two-story
house and landed on his feet. He had left his keys inside and
was trying to get in through an upstairs window in 2008.
Plaintiff testified that he had surgery on his foot, which
took some of the pain away. He worked at the seasonal job
from July 2013 to October 2013, and he also worked for
Walmart prior to July 2013 as a janitor, but he could not
stand on his feet all day because of pain. The forklift job
was better, but still hurt his back, sciatica and feet. AR
40-42, 44-45.
When
asked why he could not work, Plaintiff testified that he
cannot sit or stand for very long. He can stand about 20 or
30 minutes at a time and sit about an hour at a time. The
rest of the time he is lying down on the couch. AR 42-43. He
has pain when he stands and walks, and takes NSAIDS, which
cause him dry mouth, constipation, stomach pain and nerve
pain. AR 42-43. He also has burning in his feet that feels
like “walking on eggshells.” AR 44. He has told
his doctor about his sciatica, but they are still working on
it. No doctor has told him that he cannot work and he has not
asked. AR 49. Plaintiff has not been hospitalized for any of
the conditions he is alleging prevent him from work, but he
did black out, fall off his chair and break his nose a month
prior to the hearing and went to the hospital. He did it
twice in one week. AR 50.
When
asked about his right ankle, Plaintiff testified that he has
received x-rays on both ankles and has chronic arthritis. His
left ankle is worse, but his right ankle hurts because he
puts weight on it to accommodate his left ankle. AR 51. When
asked about a typical day, Plaintiff testified that he can
take care of himself, shower, and put on clothes. He does not
do any chores and does not go grocery shopping. AR 51-52.
In
response to questions from his attorney, Plaintiff testified
that he uses a cane all the time. His doctor told him to use
it and helps take the weight off of his foot. He can stand
for thirty minutes at a time with the cane. When asked about
his left foot surgery, Plaintiff reported that his bone
healed, but his foot still hurts when he walks. The doctor
told him to use a brace until he could no longer stand the
pain and then he would either have to fuse it or live with
the pain. Plaintiff testified that he wears the brace on his
left foot pretty much every day. He also received cortisone
injections in his left foot, but the injections only
temporarily relieved the pain. No fusion surgery has been
scheduled, and he does not want it. Plaintiff also testified
that he had shoulder surgery because of ripped tendons. He
has had improvement in the shoulder, but it still hurts when
he raises his arms. He can lift to shoulder height with his
right arm. He also does not have very good range of motion.
These impairments have been worsening since his alleged onset
date. AR 53-57.
When
asked about his seasonal work in 2013 and 2014, Plaintiff
testified that he would have worked longer if they offered
him work. He did not miss any days while working, but he took
extra breaks before lunch because he would feel dizzy and
need to eat. He did not report it because he did not want to
get fired. He would take an extra half hour every day. He
also took pain medication while working, but would not tell
anybody because they would not have let him work. AR 57-59.
Plaintiff
further testified that he remembered being examined by the
Social Security doctor in 2013. When asked if he told the
doctor that he could climb stairs with railings, Plaintiff
denied that he could climb stairs, and had not climbed stairs
since he worked in 2000 to 2010. Plaintiff indicated that he
did not agree with the doctor's statements regarding his
abilities. Plaintiff explained that he cannot bend or stoop,
he cannot stand or sit and he can lift 10 pounds for about 20
minutes before he will start hurting. He hurts in his lower
back and feet and his shoulders hurt when he lift and
carries. AR 60-63.
Following
Plaintiff's testimony, the ALJ elicited testimony from VE
Judith Najarian. AR 63. The VE identified Plaintiff's
past work as janitor, industrial truck operator (forklift),
tractor-trailer truck driver, and supervisor, filling and
packing. AR 64-65. The ALJ asked the VE hypothetical
questions. For the first hypothetical, the ALJ asked the VE
to assume an individual that could lift and/or carry 50
pounds occasionally and 25 pounds frequently, could stand
and/or walk six hours in an eight-hour workday with normal
breaks, and postural activities could be performed frequent
with frequent over shoulder reaching bilaterally. The VE
testified that this individual could perform Plaintiff's
past relevant work as a truck driver, industrial truck
driver, janitor and supervisor. The individual also could
perform other work, such as stubber, dining room attendant
and packager, machine. AR 66-67.
For the
next hypothetical, the ALJ asked the VE to add that the
individual would have to alternate between sitting and
standing. The VE testified that this would eliminate
Plaintiff's past work as generally performed, but not his
work as a forklift driver as he performed it. It would
eliminate all jobs at the medium level, but some examples of
light work ...