Felix v. Berryhill

          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 ...