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Ott v. Astrue

March 4, 2009


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge



Plaintiff Jack F. Ott ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits and supplemental security income pursuant to Titles II and 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 Gary S. Austin, United States Magistrate Judge.*fn1


Plaintiff filed both applications in August 2004, alleging disability since July 26, 2004, due to constant back pain and depression. AR 76-78, 93, 340-343. His application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 11-15. ALJ Stephen W. Webster held a hearing on November 17, 2006, and issued an order denying benefits on March 9, 2007. AR 13-23, 369-393. On October 23, 2007, the Appeals Council denied review. AR 8-10.

Hearing Testimony

ALJ Webster held a hearing on November 17, 2006, in Bakersfield, California. Plaintiff appeared and testified. He was represented by Miguel Lopez. AR 369.

Plaintiff testified that he was married and lived with his wife and four children in Delano, California. AR 372-373. Plaintiff has a driver's license and drives when not in great pain. AR 373.

Plaintiff attends to his own personal needs and indicated that he helps out around the house with chores such as dishwashing or laundry, providing he is not required to stand for long periods of time. AR 373-374. His older children perform work in the yard or garden. AR 374.

Plaintiff watches approximately two hours of television per day, reads the bible and other books, and spends little time on the computer. AR 374. Plaintiff testified that he sleeps a lot during the day. AR 376. He attends church services, but becomes uncomfortable sitting for long periods during the sermon. He does not see movies and spends little time around others. AR 374.

In 1982, Plaintiff earned a GED and took some college courses ten to fifteen years prior. His criminal background precluded him from a career in correctional administration, his chosen course of study. AR 375. Plaintiff has not worked for pay since July 26, 2004. AR 375. He receives cash aide and food stamps. AR 375-376.

Plaintiff testified that he suffers from degenerative disc disease, depression, anxiety, gastritis, esophagitis, irritable bowel syndrome and asthma. He complained of pain in his low back, neck and head, knees, legs and feet. AR 376. The prescribed pain medications relieve the pain "[t]emporarily a little bit." AR 376. Plaintiff testified that he can sit for ten to fifteen minutes, and stand for that same time period, before pain begins. AR 377. He can walk approximately half a block, and the heaviest item he can lift is "[m]aybe a gallon of milk." AR 377.

With specific regard to depression, Plaintiff testified that he feels hopeless and discouraged because there is "no help" and he worries about supporting his family. He feels "real nervous, tingling, and panicky." AR 377.

When questioned by his attorney, Plaintiff testified that the pain in his back is constant. On a scale of one to ten, Plaintiff indicated that at least once a week he experiences pain equivalent to ten on the scale, and that it is at a five or six at its weakest, and a six or seven on average. AR 379-380.

Plaintiff last worked for the City of Delano in the street department. He injured his back while on vacation, was on "12-week family leave or full-week leave," and was advised by a superior that if he did not return "100 percent," he did not need to return to work at all because there was no light duty assignment available. He claims he was forced to resign as a result. AR 380-381.

Plaintiff further testified that at that same time period he was experiencing psychological difficulties, which were exacerbated by his back injury. AR 381. He experienced anxiety attacks, shortness of breath, inability to focus and racing thoughts. AR 382. He become nervous and tense when around others, and avoids attending social functions as a result. He experiences panic attacks every other week on average. AR 382-383. During the attacks he gets hot flashes and tingling in his stomach, hands and legs. AR 383.

Plaintiff claimed that he suffers from constant headaches, waking every morning with a headache. In the event his related medications do not provide relief, he will seek treatment from the emergency room. On a scale of one to ten, Plaintiff testified that his headache pain was a "ten" and that it was "unbearable." AR 384.

The pain in Plaintiff's feet is "a shooting, tingling pain" that starts in his back and travels down his legs to his feet. AR 386.

Plaintiff also suffers from irritable bowel syndrome and takes medication for his condition. He believes the anti-inflammatory medications he has been prescribed over the past several years may have caused the problem. AR 386.

When asked by his attorney whether he believes he would be able to work even were his back problems to be resolved, Plaintiff testified that he believes his "emotional problems" would keep him from working because he fears working with others, has been attacked on the job, and sexually harassed. AR 386. In fact, Plaintiff testified his emotional problems were his greatest problem at that time. AR 386-387.

Plaintiff's energy is "very low," he has difficulty sleeping through the night, and does not feel as though he could "handle an eight-hour job." AR 385. His doctors have advised him that the future course of treatment of his pain involves "pain management [and] spinal injections." AR 385.

During the hearing, Vocational Expert Thomas Dachelet testified. For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and past work experience. This person could sit for six hours, stand for six hours and walk for six hours. He can lift and carry 20 pounds occasionally, 10 pounds frequently. He can occasionally stoop, bend, kneel, crouch and crawl. The VE testified that this person could not perform Plaintiff's past work. AR 387-388. In the second hypothetical, the ALJ asked the VE to assume the same factors, but also that the person must have limited or occasional contact with the public, co-workers and supervisors. Again, the VE testified that this person could not perform Plaintiff's past work, but could perform job such as bagger, garment sorter, and router. AR 388-390.

Medical Record

On August 2, 2004, Plaintiff was seen at the San Joaquin Valley Pulmonary Medical Group ("SJVPMG"). He indicated that he had suffered a back injury a week prior while running and playing basketball. He felt a pinch. Plaintiff reported having difficulty getting out of bed, with radiating pain in his legs and low back pain. X-rays and an MRI were ordered. Plaintiff was prescribed Toradol, Motrin, and Robaxin. AR 173-174.

On August 9, 2004, an MRI of the lumbar spine was performed at the Truxtun Radiology Medical Group. It was concluded that there was disc degeneration, a 3mm paracentral disc protrusion at L4-L5 encroached on the region of the L5 nerve root, resulting in mild right lateral recess, and proximal foraminal stenosis in association with mild bilateral facet degenerative change. Mild disc degeneration was also noted at L5-S1. AR 171-172.

On August 16, 2004, Plaintiff was seen at SJVPMG, complaining of continued low back pain. A neurosurgeon consult was ordered and Plaintiff was advised to avoid pushing, pulling or lifting over ten pounds, and to avoid repetitive bending or stooping. AR 170.

On or about August 26, 2004, Plaintiff was seen by Charles J. Wrobel, M.D. He complained of low back pain, worsened by most activities. Plaintiff also complained of sharp bilateral leg pain, worsened by coughing, sneezing, sitting and driving. Plaintiff indicated that steroid injections provided only temporary relief. It was noted that Plaintiff has "a history of multiple back injuries." It was Dr. Wrobel's opinion that Plaintiff not be operated on for the very small disc herniation present on the August 9, 2004, MRI, because Plaintiff was working in a fairly demanding physical profession and benefitted from previous positive steroid therapy. Dr. Wrobel recommended continued epidural steroid injections and anti-inflammatories. AR 158-160.

On August 30, 2004, Plaintiff was seen at SJVPMG for a follow up regarding his back injury. He reported continued lower lumbar pain. He was advised to avoid pushing, pulling or lifting over ten pounds, and to avoid repetitive bending or stooping. AR 169.

On September 30, 2004, Plaintiff was again seen at SJVPMG. He complained of pain in upper back and neck, ...

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