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Underwood v. Astrue

February 25, 2009


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



Plaintiff Clem Kenneth Underwood ("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


On March 21, 2001, Plaintiff filed his application for supplemental security income, alleging disability since September 1, 1990, due to obesity, depression, asthma, a congenital right hip deformity, severe knee damage, a learning disability and short-term memory damage. AR 182-183, 212-221. Ultimately, Plaintiff's claim was denied by the Administrative Law Judge ("ALJ") and the Appeals Council. AR 6-9, 12-20.

Plaintiff filed an action in this Court on August 26, 2004. The Court issued an order in favor of Plaintiff remanding the case for further proceedings on May 25, 2006. AR 642-677. The Appeals Council issued its order vacating the ALJ's decision and remanding the claim for further action. AR 678-681.*fn3

On June 27, 2007, ALJ James Berry held a hearing pursuant to the order of remand. AR 978-999. On July 9, 2007, he issued his decision denying Plaintiff's claim for benefits. AR 610-622. The Appeals Council denied review on September 9, 2007. AR 597-600.

Hearing Testimony

ALJ Berry held a hearing on June 27, 2007, in Fresno, California. Plaintiff appeared with his attorney, Robert Christenson. Vocational expert ("VE") Jose Chaparro also appeared and testified. AR 978.

Plaintiff testified that he was 33 years old at the time of the hearing. He was five feet, seven inches tall and weighed 300 pounds. AR 982. He completed the ninth grade, with special education classes, and has difficulty reading and writing. AR 982. Plaintiff has not worked in the last 15 years, except for working for about a month in 2005 at a pie factory. AR 983-984. He has been in and out of jail. AR 983.

Plaintiff explained that he could not work because his back and hips hurt constantly. He was born with a deformity in his right hip. AR 984. Plaintiff testified that the pain in his right hip and back and is a constant, stabbing pain. AR 986. Plaintiff also has non-insulin dependent diabetes and hepatitis C. He has not had treatment for his hepatitis C because he was using drugs. His diabetes is controlled by diet. AR 984-985. He has now been sober for about six months. AR 985. Plaintiff also testified that he was depressed sometimes, but "not real bad." AR 986.

Plaintiff believed that he has a shorter attention span because he does not sleep well at night and is tired during the day. AR 987-988. He thought that he could lift five, maybe ten pounds, but could not do it for two to three hours a day. He could stand five or ten minutes at a time and thought he could stand for 30 to 40 minutes total. He could sit for about 30 to 40 minutes a time and could sit for a couple of hours total. He has to lay down and take breaks twice during the day. AR 987. He was currently taking medication for high-blood pressure and Motrin. AR 989.

Plaintiff was on light duty in prison, which meant that he "really [didn't] do nothing." AR 989. He was also on the top bunk, though he is trying to get moved. AR 989.

When questioned by the ALJ, Plaintiff testified that the Motrin helped take the edge off the pain a little and despite his blood pressure medication, his blood pressure was still high. AR 990. Plaintiff refused his blood pressure medication last month, while incarcerated, because he was trying to go to a fire camp. AR 990. He wanted to try and do something and thought they got out earlier. AR 990. Plaintiff explained that there are multiple jobs at fire camp, including fire fighters, visitor workers, kitchen workers and trash collectors. He was going to do whatever position he was assigned. AR 991. In the end, he didn't apply because his counselor told him he was ineligible because of his hip and medication. He was in prison for burglary, check fraud, possession of stolen property and attempted burglary. AR 991.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and past relevant work. This person retains the residual functional capacity ("RFC") to lift and carry 20 pounds occasionally, 10 pounds frequently, to stand and walk two hours each and to sit for eight hours. This person could occasionally push and pull with the non-dominant left upper extremity, but could not balance, climb, kneel, crouch, crawl or stoop. This person could perform simple, repetitive tasks and maintain attention, concentration, persistence and pace. This person could relate and interact with others, adapt to usual changes in the work setting and adhere to safety rules. The VE testified that this person could not perform Plaintiff's past relevant work in the pie factory, but could perform work at the sedentary level. He identified the position of almond blancher (200 in California, 800 nationally), bench hand ("couple hundred" in California, about 1,200 nationally), and final assembler (100 to 200 in California, about 1,200 nationally). AR 994.

For the second hypothetical, the ALJ asked the VE to assume that this person could lift five to ten pounds, for less than one-third of the day. This person could stand for 30 to 40 minutes and sit for two hours, maximum. This person could maintain concentration for 20 to 30 minutes at a time, but must take two breaks per day for up to two hours each. The VE responded that this person could not perform Plaintiff's past work or any other jobs in the national economy. AR 995.

Plaintiff's attorney asked the VE about the first hypothetical, inquiring about the inability to kneel, crouch, crawl and stoop. The VE responded that none of the positions he identified required an ability to stoop. AR 996.

Plaintiff's attorney also asked the VE a separate hypothetical question. He asked the VE to assume that this person could lift ten pounds frequently, twenty pounds occasionally, but could stand and walk less than two hours a day in combination. This person could sit for six hours but cannot stoop. The VE testified that this describes sedentary work, but in light of SSR 96-9p, the complete limitation in stooping would preclude work. AR 997.

Plaintiff's attorney also asked the VE to assume a person who could lift ten pounds occasionally and frequently, but could stand and/or walk for less than two house in an eight hour day and sit for less than six hours in an eight hour day. The VE testified that this person could not perform any work. AR 997.

For the final hypothetical, Plaintiff's attorney asked the VE to assume a person with an RFC for light work who could not perform work activities on a consistent basis, could not engage in work activities without special or additional supervision, and who would have difficulty interacting with supervisors, co-workers or the public. This person would also have difficulty coping with the stress encountered in a normally competitive workplace. The VE testified that this person could not perform any work. AR 998.

Medical Record

Plaintiff was in a motor vehicle accident in August 1989. He suffered internal bleeding and lacerations of both legs, and underwent corrective surgery on his knees. AR 342-375.

On June 2, 1999, Plaintiff saw R. Roy Fratini, PhD., for a psychological evaluation. He was diagnosed with a mood disorder, not otherwise specified, alcohol abuse in remission for three months, amphetamine abuse in remission for three months, and borderline intellectual functioning. AR 436-439.

An October 24, 2000, notation from Plaintiff's 2000 incarceration indicates that Plaintiff should not be assigned to a job requiring him to lift more than 15 pounds or stand for more than one hour at a time. AR 448.

On August 9, 2001, Plaintiff saw Frederick R. Young, M.D., for complaints of pain in his right hip and right knee since childhood. On physical examination, Plaintiff exceeded the scale's limit of 350 pounds. Range of motion in his back was normal considering his size. Range of motion in his hips and knees was also full. There was no instability and his sensation was intact. Dr. Young opined that besides Plaintiff's obesity, "he [is] fine," and the only restrictions would be due to his weight. AR 524-525.

Plaintiff saw Michael S. Barnett, M.D., for a psychiatric evaluation on August 23, 2001. His chief complaint was that he didn't get along well with people. He reported that he's afraid that "people are trying to boss him around and feels he has to get away from them or hit them." Plaintiff reported that he dropped out of high school in the 12th grade and denied prior childhood physical or sexual abuse. On mental status examination, his mood was depressed and his affect was blunted. He was oriented times three. He could not perform serial threes and was very slow. His recent memory was intact. Dr. Barnett concluded that Plaintiff had a long-term history of substance abuse and was mentally retarded with a poor education. He was regressed socially and functioning at a very low level. Dr. Barnett diagnosed depressive disorder, not otherwise specified, polysubstance abuse in remission, and mental retardation, severity unspecified. Given his impaired mental status examination and significant mood disorder, Dr. Barnett opined that Plaintiff would struggle to work. He would have no difficulty understanding, remembering and carrying out simple one or two step job instructions. However, he would be unable to work regularly or perform work activities on a consistent basis, though he has no psychiatric symptoms that would interfere with the completion of a normal work day or work week. Plaintiff would need additional supervision, have a difficult time interacting with supervisors, co-workers or the public and have difficulty coping with usual stressors in the workplace. AR 526-528.

On October 22, 2001, State Agency physician James Peery, M.D., completed a Physical Residual Functional Capacity Assessment. He opined that Plaintiff could lift and carry twenty pounds occasionally, ten pounds frequently, stand and/or walk about six hours, and sit for about six hours. He could frequently climb ramps and stairs, but never ladders, ropes or scaffolding. He could frequently balance, kneel and crawl, and occasionally stoop and crouch. This opinion was affirmed on March 18, 2002. AR 133-140.

On October 24, 2001, State Agency physician Evangeline Murillo, M.D., completed a Mental Residual Functional Capacity Assessment. She opined that Plaintiff was moderately limited in his ability to understand, remember and carry out detailed instructions, and in his ability to work in coordination with, or proximity to, others without being distracted. He was not significantly limited in any other area and Dr. Murillo opined that Plaintiff was capable of understanding and remembering very simple, one to two step tasks. AR 141-149. This opinion was affirmed on April 4, 2002. AR 149.

Also on October 24, 2001, Dr. Murillo completed a Psychiatric Review Technique form. She believed that Plaintiff had the medical impairments of depression, low IQ and mental retardation, though he had no deficits in adaptive functioning. In assessing the degree of his limitations, she opined that he had mild difficulties in maintaining concentration, persistence and pace. AR 117-130.

On March 14, 2002, Plaintiff began treating with C. Nguyen, M.D. He complained of pain to both lower legs for approximately three weeks. Plaintiff had a history of drug abuse but reported that he had not used IV drugs for two years. He had been in prison several times between 1997-2001. On examination, Plaintiff was morbidly obese (over 400 pounds) and had surgical scars on both knees. He diagnosed diabetes mellitus, type two, and obesity. AR 861.

Plaintiff saw Dr. Nguyen again on April 25, 2002. He was taking Tylenol #3 but reported that it was not helping. Plaintiff also reported that he was not sleeping well because of the pain in his legs. On examination, neither lower leg showed edema or calf muscle tenderness. AR 858.

On May 16, 2002, Plaintiff returned to Dr. Nguyen and reported a history of asthma since childhood. He stated that his asthma was stable and he did not use inhalers. AR 537.

On June 24, 2002, Plaintiff had x-rays of his hips and knees taken. He had a mild deformity of the right femoral head, compatible with avascular necrosis/Legg-Perthes disease, most likely chronic. There was no evidence of any significant abnormality in either knee. AR 856.

On August 5, 2002, Dr. Nguyen completed a Medical Source Statement form. He opined that Plaintiff could lift and carry ten pounds occasionally and frequently, stand and/or walk for less than two hours in an eight hour day, and sit for less than six hours in an eight hour day. These limitations were supported by pain in Plaintiff's right hip. Plaintiff could not use either hand for simple grasping, pushing/pulling or fine manipulation. He could frequently reach, and occasionally bend, climb and crouch. He could never squat, crawl, stoop or kneel. Plaintiff could not tolerate exposure to unprotected heights or exposure to dust, fumes and gases. Dr. Nguyen classified Plaintiff's pain as moderate, meaning that it would cause a marked handicap in his performance. His pain would often interfere with attention and concentration. Dr. Nguyen opined that these restrictions became effective in July 2000. AR 530-533.

Plaintiff underwent visual testing on December 5, 2002. The examination revealed no signs of diabetic retinopathy. AR 587.

On December 26, 2002, Plaintiff saw Dr. Nguyen and complained of hip pain for the past month, though he had been having pain in both hips, on and off, for quite a while, as well as pain in both knees. Dr. Nguyen stated that Plaintiff "knew that the pain in the knees is related to his weight," which was 371 pounds in July. On examination, he had mild tenderness in the right hip. Plaintiff was given Darvocet. AR 847.

Plaintiff saw Dr. Young again on April 18, 2003, complaining of pain in his legs, back and hips. He was taking Tylenol with codeine and Darvocet for pain. Examination showed that Plaintiff was grossly obese, but had relatively normal strength, range of motion and reflexes. Dr. Young opined that Plaintiff's obesity would preclude some activities, but that he would be able to perform light (or desk-type) duties. AR 549-550. On a Medical Source Statement completed on April 1, 2003, Dr. Young opined that Plaintiff could occasionally lift ten to twenty pounds, ten pounds frequently, stand and/or walk for less than two hours in an eight hour day and sit without limitation. He was limited in pushing/pulling with his lower extremities and could never climb, balance, kneel, crouch, crawl or stoop. AR 551-554.

On May 7, 2003, Dr. Nguyen saw Plaintiff and noted that he was doing well and his weight had dropped about 25 pounds to 327 pounds. AR 842.

Plaintiff returned to Dr. Nguyen on November 4, 2003, complaining that he was depressed because he could not find a job in the past few months. He also wanted his welfare form filled out based on his severe arthritis in his knee joint and hip secondary to a motor vehicle accident. Plaintiff was ...

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