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Norwood v. Astrue

August 25, 2008

DOUGLAS NORWOOD, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Douglas Norwood ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income pursuant to 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 the Honorable Dennis L. Beck, United States Magistrate Judge.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed his application for supplemental security income on February 11, 2004, alleging disability since February 22, 1995, due to pain, hypertension, swelling in his feet and problems concentrating. AR 65-69, 104-113. After being denied both initially and upon reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 41-45, 47-52, 53. On January 29, 2007, ALJ Eve Godfrey held a hearing. AR 273-309. She denied benefits on April 27, 2007. AR 11-22. On July 21, 2007, the Appeals Council denied review. AR 3-5.

Hearing Testimony

ALJ Godfrey held a hearing on January 29, 2007, via video conference. Plaintiff appeared with his attorney, Geoffrey Hayden. Medical Expert Michael Goldhamer and Vocational Expert ("VE") Gloria Lasoff also appeared and testified. AR 273.

Plaintiff testified that he was 52 years old at the time of the hearing and completed about 15 years of education. AR 280. He last worked as a floor hand on an oil rig, but has not worked for the past 15 years after getting hurt on the job in 1995. AR 281-282. He lives with his two children, ages 13 and 14, and his girlfriend. AR 283.

During the day, he sleeps a lot because of his medication. He also watches television and tries to move around a little for exercise. He walks for two or three minutes and can only sit for about 40 to 50 minutes before he's in pain. AR 283. He cannot stand for long. AR 284. He has a driver's license and can drive when he's not on medication. AR 284.

Plaintiff testified that he has diabetes for which he tries to follow a certain diet, takes medication and tests his blood twice daily. AR 285-286. He further testified that he last used cocaine in 1986, and that he did not remember a diagnosis of cocaine-induced mood disorder in 2004. AR 286-287. He drinks occasionally and smokes a pack of cigarettes a day. AR 287.

Plaintiff felt that he could not work because he doesn't concentrate well and has pain in his lower back and arms. AR 287. He also gets tired fast. AR 287. He described the pain in his back as a stiffness, after which his back "goes out." AR 288. The pain in his arms is sharp and shooting, and his arms sometimes get numb. AR 288. The medication he takes for his arm pain causes headaches and makes him nauseous. He also has trouble getting around on his foot since the gunshot wound. Plaintiff explained that he can't wear a normal pair of shoes for over two or three hours. AR 289. He also cited the warnings on his medications relating to operating machinery and driving and said that he would "hate to hurt someone else on my account." AR 290.

When questioned by his attorney, Plaintiff testified that he had four hernia surgeries in the past and that he still cannot lift "too much." AR 290. The gunshot wound occurred as he was exiting a convenience store and a passing car started shooting. AR 291.

Plaintiff also explained that he has heart trouble and can't see as well as he used to. AR 291. Plaintiff estimated that his pain was about an eight on a scale of one to ten. AR 292. On a normal day, he gets the kids up and off to school, tries to clean up a little or do something for himself and then pretty much watches television. He used to walk with crutches but doesn't anymore. AR 292. He has numbness in his hands and feet, and thought he could stand for an hour, at most, without pain. AR 293. He could not lift more than five pounds and could not kneel, stoop or squat without pain. AR 293.

Plaintiff was hospitalized in 2004 for psychological problems. AR 293. He was initially prescribed Haldol, but now takes another medication that helps. He still has trouble concentrating. AR 294. He sometimes hears "stuff" and gets paranoid. AR 294-295.

Dr. Goldhamer testified as a Medical Expert ("ME"). He explained that Plaintiff suffers from type II diabetes, a history of hypertension, a history of elevated lipids and multiple ventral hernia repairs. AR 296. He explained that Plaintiff's lipid-level was reasonably well controlled with medication. A ventral hernia would limit a person's ability to lift or do anything that would strain the muscle. Plaintiff's diabetes is under reasonable control if he takes his medications, follows his diet and exercises. Given these impairments, Dr. Goldhamer believed that Plaintiff could occasionally lift over 10 pounds. AR 297. Although most people do fine after hernia surgery, Dr. Goldhamer though that Plaintiff was part of a small percentage who have a continued weak spot based on his repeated surgeries. AR 298. Dr. Goldhamer did not have the exact dates of Plaintiff's hernia repairs, and he read the medical reports for all surgeries during a break in testimony. AR 300. He then explained that his thinking "changes quite a bit" because the last operation was in April 1998, and since that time, Plaintiff has had no further problems. AR 303. Since it appears that the 1998 operation corrected the problem, Dr. Goldhamer believed that Plaintiff could occasionally lift 20 pounds, 10 pounds frequently. That the surgeries were all on the same site did not change his opinion. AR 308. He did not believe any further limitations were necessary and did not see a basis for limiting bending, stooping or crouching. AR 303.

Turning to the VE, the ALJ asked her to assume a person with the ability to perform light work, with a limitation to simple, repetitive tasks. This person could perform the positions of machine packer, production worker and sorter. AR 304-305.

For the second hypothetical, the ALJ asked the VE to assume a person who could occasionally bend, stoop or crouch, lift 20 pounds occasionally and 10 pounds frequently, and stand and walk six out of eight hours. This person could not work on ladders or an incline plane. The VE testified that this person could perform the light jobs already identified. AR 305. Such jobs involved fairly limited contact with the public and supervisors. AR 306.

Plaintiff's attorney asked the VE to add a limitation of moderate pain that would preclude the full amount of light work for at least one third of the day. AR 307. The VE testified that there would be no jobs available. AR 307. Her testimony was consistent with the Dictionary of Occupational Titles. AR 308.

Medical Record

In February 2003, Plaintiff reported that he was not feeling well. Testing revealed random glucose hyperglycemia and he was diagnosed with diabetes mellitus. He was given medication and instructed on the importance of control. AR 157.

Records from March 2003 indicate that his diabetes was out of control and his medications were increased. AR 161. Plaintiff's diabetes control improved in April 2003, but by May, it was under "variable control" due to noncompliance. AR 163-164. He was also diagnosed with hyperlipidemia. AR 165. He was instructed to have testing done, continue his medication, and follow an appropriate diet. AR 165.

In June 2003, Plaintiff complained of increased shortness of breath, occasional flutters of his heart and increased pain in his right elbow and forearm, with weakness. X-rays of his left shoulder and right elbow and upper arm were negative. AR 170. His diabetes and hyperlipidemia were much improved and his right elbow/arm pain was probably secondary to tendinitis. He was prescribed Motrin, 800 mg, as needed. There was also a slight protrusion to his right mid abdomen, and given his history of abdominal hernia, a surgical consult might be necessary. AR 168-169.

Plaintiff underwent an exercise tolerance evaluation on June 11, 2003. He did not experience chest pain and his test was normal, but suboptimal. Although he tolerated the procedure well, he had limited exercise tolerance. AR 172.

On September 30, 2003, Plaintiff's diabetes, hypertension and hyperlipidemia were controlled. He had possible neuropathy secondary to diabetes or alternative etiologies (based on industrial exposure to asbestos). AR 174.

In October 2003, Plaintiff complained of low blood sugars, vision blurring and numbness and tingling in his feet. AR 176. An EMG was positive for underlying peripheral neuropathy, but negative ...


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