Gonzalez v. Kijakazi
| Decision Date | 16 May 2022 |
| Docket Number | Civ. 7:20-cv-00422 |
| Parties | HECTOR J. GONZALEZ, Plaintiff, v. KILOLO KIJAKAZI, [1]ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Plaintiff Hector Gonzalez, proceeding pro se[2] initiated this action by filing a Complaint for review of a Social Security disability pursuant to 42 U.S.C. § 405(g).[3] (Dkt. No. 1.) This case was referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636(b). On November 4, 2021, Defendant filed a Cross Motion for Summary Judgment (Dkt. No. 17) and Defendant's Brief in Support of Cross-Motion for Summary Judgment (Dkt. No 18). This case is ripe for disposition on the record.
Liberally construed, Plaintiff claims the Commissioner of the Social Security Administration (SSA) (the “Commissioner”) improperly decided he is not disabled under the Social Security Administration's definition and, therefore, Plaintiff qualifies for benefits.[4] (Dkt. No. 1 at 1.) Review of the record of the Social Security Administration (SSA) proceedings show that substantial evidence supports the Administrative Law Judge's (ALJ) decision that Plaintiffs severe impairment did not meet an impairment listing, Plaintiff is able to perform “past relevant work, ” and Plaintiff has a residual functional capacity (RFC) that allows him to do “any other work, ” as defined by the SSA. Thus as will be discussed in greater detail, Plaintiffs claims should be dismissed.
After a careful review of the record and relevant law, the undersigned recommends Defendant's Cross Motion for Summary Judgment (Dkt. No. 17) be GRANTED. In addition, to the extent Docket Number 16 is Plaintiffs motion for summary judgment, it should be DENIED. It is further recommended that Plaintiffs Complaint (Dkt. No. 1) be DISMISSED with prejudice, and the case be closed.
Plaintiff was a diesel mechanic for Pharr San Juan Alamo (PSJA) Independent School District for approximately ten years. (Dkt. No. 13-10 at 7.)[5] That position involves continuous standing, sitting, walking, bending, and frequent squatting, twisting, pushing, pulling, and kneeling. Id. Plaintiffs injury initially occurred on August 3, 2017. Id. Plaintiff and a coworker were backing a trailer to hook it to a truck hinge at the back of the truck. Id. When the Plaintiff and the co-worker lost control of the trailer on the sloping driveway, Plaintiff was hit and pushed in-between the metal pieces. Id. When it appeared that the trailer was going to hit him in his groin area, Plaintiff twisted to reduce the impact and the comer of the metal trailer hit the inner portion of his right thigh and his hand. Id. Plaintiff also twisted his back in this process. (Dkt. No. 13-10 at 7.) Plaintiff returned to work three weeks after this injury, but only to light duty. Id. Plaintiff could not return earlier due to his cellulitis in his right hand. Id.
Plaintiff then had a second injury on November 1, 2017. Id. This second injury was ultimately viewed as an extension of the primary injury by both the insurance carrier and the Texas Department of Insurance - Division of Workers' Compensation, apparently after a significant amount of time analyzing the issue. Id. On November 1, 2017, Plaintiff attempted to remove water pump bolts that were frozen to the engine block. Id. Plaintiff struggled to remove them, so he turned and twisted his body to try to get the large and heavy bolts loosened. (Dkt. No. 1310 at 7.) During this attempt, Plaintiff felt a burning sensation and pop in his lower back. Id. Plaintiff was sent home and woke up stiff the next day and “could not walk.” Id. However, it appears Plaintiff was able to return to work, yet was immediately sent home to see his local physician. Id.
In the June 19, 2018 examination performed by Lida Dahm, M.D., the accepted conditions listed were right hand cellulitis, right thigh sprain or strain , and a lumbar sprain/strain. Id. The disputed conditions included degeneration and dehydration of the L5-S1 level of the spine with disc protrusion and herniated nucleus pulposus L5-S1 with lumbosacral radiculopathy. Id. at 14.
On or about October 30, 2017, Plaintiff was shown to be at maximum medical improvement (MMI). (Dkt. No. 13-10 at 13.) Plaintiff requested and was given permission to go from light to full duty; unfortunately, as noted, he injured himself again November 1, 2017. Id. According to Dr. Dahm's report, the injury in November aggravated the previous degenerative L5-S1 disc disease injury. Id. at 16; see also Dkt. No. 13-10 at 88-89 ().[6]
As of December 11, 2018, the claimant's lower back pain persisted, with pain of “six-to-seven” out of ten on the pain scale. (Dkt. No. 13-10 at 67.)[7] “Previous treatment included physical therapy, epidural steroid injection, gabapentin, cyclobenzaprine, and naproxen.” Id. “An MRI of the lumbar spine without contrast performed on June 22, 2018, revealed L5-S1 disc protrusion/hemiation that impinges on the the cal sac and the descending SI nerve root bilaterally.” Id. Importantly, “there [was] no evidence of weakness in the lower extremities in an SI nerve root distribution as required by the guidelines.”[8] Id.
Plaintiff was not on any medications at the time of his December examination due to adverse side effects of the recommended medication. (Dkt. No. 13-10 at 11.) As for treatment, Plaintiff had physical therapy and IM (intramuscular) injections. Id.
On April 21, 2020, there was a hearing with the Plaintiff before the AL J. The Plaintiff, as noted, suffered from a disc herniation during his job as a diesel mechanic. (Dkt. No. 13-3 at 34.) Mr. Gonzalez argued that although he has had improvement in the actual area relating to the disc herniation, there has not been improvement regarding the level of pain Mr. Gonzalez suffers. Id. Mr. Gonzalez alleged he is unable to do “even a full, wide range of sedentary employment.” Id. Plaintiff pointed to three exhibits on the record: IF, 2F, and 7F. Id. at 35. Exhibit IF is an MRI from September 22, 2017, that shows Plaintiff's diagnosis of a 5.5 mm disc protrusion. (Dkt. No. 13-10 at 2-3.) Exhibit 2F is an MRI from June 22, 2018, wherein the diagnosis showed the 5.5 mm disc protrusion had shrunk to a 2.4 mm disc protrusion. Id. at 4. Exhibit 7F is a series of workers' compensation evaluations from July 2018 to April 2019, demonstrating, according to Plaintiffs Counsel, [9] Plaintiff was dealing with radiating pain. (Dkt. No. 13-11 at 2-72.)[10] Mr. Gonzalez requested the ALJ find him disabled. (Dkt. No. 13-3 at 63.) examiner. See Dkt. No. 13-10 at 67-68.
Among Plaintiff's physical ailments, are emotional ones. Id. at 37. Plaintiff has four' children and is in the process of divorcing his wife, the mother of said children. Id. Additionally, his mother-in-law is suing him for $90, 000 for repayment of a loan she gave to him and her daughter (his soon-to-be ex-wife) to build a new house after Plaintiff's old house burned down. Id. at 52. Plaintiff is now living with his mother since his wife kicked him out of the house. Id. at 53. Plaintiff currently has custody of his children every other week. Id. In addition to being sued by his mother-in-law, he is going through a wrongful termination suit with the school district. (Dkt. No. 13-3 at 56.) According to Plaintiff, the wrongful termination suit is why he will not get hired as a teacher. Id. In addition, Plaintiff is not completing any online schoolwork because he is unsure how to finance his education since he has already paid $34, 000 for his degree from Universal Technical Institute. Id. at 58.
Also, Plaintiff asserts his limited income is through a supplemental insurance program setup through his job with the school district in which he would pay for insurance in case of injury on the job. (Dkt. No. 13-3 at 51.) At the time of the hearing, Plaintiffs supplemental insurance contract had been renewed for another six months. Id. at 54. It was Plaintiffs idea to apply for Social Security benefits because he would like additional help with his medical situation. Id. '
The last time Plaintiff worked was in April of 2018 as a diesel mechanic. (Dkt. No. 13-3 at 38.) Plaintiff had been a diesel mechanic for eleven years. Id. at 39. After getting “pinched in between a generator and a truck, ” Plaintiff suffered an injury which is preventing him from “bending down, crouching, [and] kneeling.” Id. at 39-40. Plaintiff was terminated from his job in April of 2018 after his back injuries and while he was on workers' compensation. Id. at 38.
Since being terminated in 2018, [11] he has not looked for any other kind of work. Id. at 38, 51. Plaintiff has not put together a resume or looked around at all, because he has been “in and out of doctor's nonstop” and his wife “decided to leave [him].” Id.
Plaintiff has never given any thought to pursuing an alternate career because he is preoccupied with his divorce, his physical back pain, taking care of his kids, and trying to determine his future. (Dkt. No. 13-3 at 55.) Plaintiff has decided, however, that he is not going back to heavy work. Id. at 56.
When Plaintiff has a bowel movement, his legs go numb. Id. at 40. Plaintiffs energy is poor and he has...
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