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Ruiz v. Commissioner of Social Security

United States District Court, E.D. California

June 27, 2019

ROBERT RUIZ, JR., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER DENYING PLAINTIFF'S SOCIAL SECURITY APPEAL (ECF Nos. 12, 13, 14)

         I. INTRODUCTION

         Robert Ruiz, Jr., (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for disability benefits pursuant to the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Stanley A. Boone.[1]

         Plaintiff suffers from degenerative disc disease, hypertension, hip osteoarthritis, and degenerative joint disease of the right shoulder. For the reasons set forth below, Plaintiff's Social Security appeal shall be denied.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff protectively filed an application for a period of disability and disability insurance benefits on July 9, 2014, and a Title XVI application for supplemental security income on November 18, 2015. (AR 88, 188.) Plaintiff's applications were initially denied on December 17, 2014, and denied upon reconsideration on April 3, 2015. (AR 100-103, 105-109.) Plaintiff requested and received a hearing before Administrative Law Judge Scot Septer (“the ALJ”). Plaintiff appeared for a hearing on January 12, 2017. (AR 32-78.) On February 9, 2017, the ALJ found that Plaintiff was not disabled. (AR 15-26.) The Appeals Council denied Plaintiff's request for review on April 30, 2018. (AR 1-4.)

         A. Hearing Testimony

         Plaintiff testified at the January 12, 2017 hearing with the assistance of counsel. (AR 38-68.) Plaintiff is 5' 10” tall and weighs around 218 pounds. (AR 42.) He is right handed. (AR 42.) Plaintiff attended school through the twelfth grade. (AR 48.) Plaintiff is married but is not with his wife. (AR 41.) Plaintiff receives general relief. (AR 55.)

         Plaintiff lived with his sister and her 19 year old daughter in Visalia, California. (AR 40, 41, 56.) They both worked opposite shifts so one of them was always home. (AR 56.) He has been staying with her for the past year to a year and a half. (AR 40.) When he lived with her she did her own cooking. (AR 49.) Plaintiff did what he could but his sister did most things. (AR 49.) Plaintiff did some cleaning and took out the trash once or twice a week. (AR 50, 54.) He cleaned for himself and had problems with bending over. (AR 50.) He would start hurting if he bent over so he has to watch what he is doing. (AR 50.) When he bends his pain will be between 7 and 8 all the time. (AR 51.) During the day, Plaintiff would spend one to two hours in the house. (AR 57.)

         Plaintiff's sister moved so he is staying with a friend right now. (AR 41.) His friend is disabled and does not work. (AR 56.) His friend does the cooking. (AR 50.) Sometimes he will help cook, but his friend likes to cook. (AR 50.) He has moved back and forth between his friend's home and his brother's home for the past six months. (AR 49.) Plaintiff does his own laundry, a little at a time. (AR 54.)

         Plaintiff gets up in the morning, eats breakfast and takes his medicine. (AR 55.) He stretches and takes a little walk. (AR 55.) He lives near the park so he walks there and back. (AR 55-56.) It is about the same distance that Plaintiff walked to get to the hearing. (AR 56.)

         Plaintiff has to get up and walk when he is sitting down. (AR 51.) But he cannot walk too much because he gets tired. (AR 51.) When he gets tired he starts walking differently. (AR 67.) He walked from the parking garage where he parked his car and he began hurting just a little bit. (AR 51.) It hurts more when Plaintiff walks up or down the stairs and he holds onto the railing and moves slowly. (AR 52.) Plaintiff drove from Visalia to attend the hearing but stopped in Dinuba for a little bit. (AR 52.) He does not drive much anymore. (AR 52.) When he does drive, he has to stop and stretch all the time. (AR 52.) He goes to Bakersfield to see the pain doctor and his mother. (AR 53.) When he goes to see the pain doctor, he will drive or a friend will drive him. (AR 53.)

         Plaintiff last worked for the City of Visalia part time for about three to four months in 2014. (AR 42, 43.) He was a tagger, getting off a truck and getting trash cans so the truck could pick them up. (AR 43.) Plaintiff worked full time in shipping from 2005 to 2012. (AR 43.) He was packaging metal. (AR 43.) He would open the metal and place it in boxes, seal and label the boxes, and roll them to the conveyor belt. (AR 43.) He would lift the metal out of the carts. (AR 44.) He would lift 100 pounds by himself and sometimes over 150 pounds with someone else. (AR 44.) Plaintiff started working for the company through an employment agency and then they hired him. (AR 44-45.) While working for the employment company in 2005, he also drove a forklift, delivering paper and boxes for bindery workers. (AR 46.) He primarily moved pallets, but he would pack and fill the pallets. (AR 46.) Prior to that Plaintiff had some temporary jobs. (AR 46-47.)

         Plaintiff has been identified as having a piece of metal in his body, but he has not had to see the doctor about it anymore. (AR 39.) Plaintiff has problems sitting, lifting his legs, hip and spine problems, pain radiating down his leg, arthritis in his back and right elbow, and high blood pressure. (AR 39.) When he has pain, he takes his medication, relaxes, and sits down. (AR 57.) He has a pain patch that he puts on once a week. (AR 57.) The pain patch helps a little bit, he also takes Norco which helps a little bit too. (AR 57.)

         Plaintiff would be able to lift a gallon of milk but he would feel something. (AR 58-59.) Plaintiff does all his lifting with his right hand. (AR 59.) If he were to walk to the garage it would not feel good at all, and his pain would be about a seven. (AR 59.) He feels it in his lower back and has to get up and stretch. (AR 59.) Plaintiff has a back brace that he got six to eight months prior to the hearing from the pain doctor but he was not wearing it at the hearing. (AR 60.) He wears the brace if he tries to do something. (AR 60.)

         Plaintiff takes his medication as prescribed. (AR 61.) He does not have any side effects and they help him with his pain. (AR 61.) His pain will go away for two to four hours when he takes his medication. (AR 61.) Plaintiff clarified that his pain is not gone it is just less. (AR 66.) It will be a three or four after he takes his medication. (AR 66.) When he starts doing something the pain might come back again depending on what he is doing. (AR 62.) He takes a muscle relaxer that makes him go to sleep and then he will start hurting when he sleeps a certain way. (AR 62.)

         Plaintiff can sit for 20 to 30 minutes and then he will need to get up. (AR 62.) He cannot sit in a really hard chair. (AR 63.) Plaintiff cannot even walk five minutes. (AR 67.) He can stand 20 to 30 minutes. (AR 68.) Sometimes Plaintiff will lie down during the day. (AR 68.) There have been a lot of times where he has to lay down during the daytime. (AR 68.) He does not regularly need to lie down. (AR 68.) He has more pain when it is cold. (AR 68.)

         Plaintiff has two bulging discs in his spinal cord. (AR 64.) He has had two injections. (AR 63.) The first one helped him for two to three months. (AR 63.) The second one hurt him and he told the doctor he did not want anymore. (AR 63.) The second injection did give him any relief. (AR 64.) He saw a surgeon who said he will eventually need surgery. (AR 64.) He had his last MRI in March or April. (AR 65.)

         Plaintiff is unable to work because he cannot sit down that long and when he gets up he cannot walk that far. (AR 65.) He has to push himself up with his arms to get out of a chair. (AR 65.)

         Mary E. Jesko, a vocational expert (“VE”), also testified at the hearing. (AR 69-76.)

         B.ALJ Findings

         The ALJ made the following findings of fact and conclusions of law.

• Plaintiff met the insured status requirements of the Social Security Act ...

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