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Gonzales v. Astrue

April 8, 2009

FREDDIE GONZALES, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge

OPINION AND ORDER

Plaintiff Freddie Gonzales filed a complaint on January 23, 2008, seeking review of the Commissioner's decision denying his applications for disability benefits. The Commissioner answered the complaint on June 3, 2008, and the parties filed a joint stipulation on August 8, 2008.

BACKGROUND

I.

On October 5, 2004 (protective filing date), plaintiff applied for disability benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. § 423, and the Supplemental Security Income program ("SSI") of Title XVI of the Act, 42 U.S.C. § 1382(a), claiming an inability to work since April 25, 2002, due to back and right leg injuries and hepatitis C. Certified Administrative Record ("A.R.") 69-72, 98, 397-400. The plaintiff's applications were initially denied on December 15, 2004, and were denied again on March 30, 2005, following reconsideration. A.R. 26-30, 33-39, 402-06, 408-13. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge James S. Carletti ("the ALJ") on January 11, 2007. A.R. 40, 414-29. On April 12, 2007, the ALJ issued a decision finding plaintiff is not disabled. A.R. 9-17. The plaintiff appealed this decision to the Appeals Council, which denied review on November 30, 2007. A.R. 4-8.

II.

The plaintiff, who was born on August 28, 1949, is currently 59 years old. A.R. 70, 397. He has a twelfth-grade education, has received training as an automobile mechanic, and has previously worked as a maintenance worker and a welder. A.R. 86-91, 99-100, 104, 109-13.

On April 25, 2002, plaintiff injured his back at work. A.R. 195, 264, 296. On May 13, 2002, Luisito L. Francisco, M.D., examined plaintiff at the San Bernardino Medical Group, diagnosed him with cervical and lumbar spine strain and released him to return to work at modified duties with a restriction of no lifting of greater than 5 pounds.*fn1 A.R. 291, 295-96, 313. Lumbar spine x-rays taken May 13, 2002, revealed minimal osteophytes with facet arthropathy at L5-S1, while cervical spine x-rays were normal. A.R. 292-93, 347-48. On May 17, 2002, Wilfredo M. Tupas, M.D., diagnosed plaintiff with an acute lumbar sprain, referred him for physical therapy, and placed him on a modified work schedule with no lifting of greater than 5 pounds. A.R. 289-90. Dr. Tupas placed plaintiff off of work from May 18, 2002, through July 1, 2002. A.R. 287-88. On July 2, 2002, Dr. Tupas diagnosed plaintiff with low back and left hip strains, noted plaintiff was still symptomatic despite 15 sessions of physical therapy and conservative management, and referred plaintiff for an orthopedic consultation. A.R. 285-86.

On July 19, 2002, Thomas K. Donaldson, M.D., an orthopedic surgeon, examined plaintiff and diagnosed him with lumbar spine myofascial strain and paraspinal pain. A.R. 276-81. Dr. Donaldson released plaintiff to return to sedentary work only,*fn2 with no pushing, pulling, or lifting over 10 pounds. A.R. 280. Low back x-rays and a lumbar spine MRI were generally normal. A.R. 273, 280, 282.

On August 10, 2002, G. Sunny Uppal, M.D., examined plaintiff, diagnosed him with discogenic low back pain, and opined plaintiff was temporarily totally disabled. A.R. 264-70, 272. X-rays of plaintiff's lumbar spine taken on August 22, 2002, revealed spondylosis*fn3 at L4-L5 and L5-S1. A.R. 271. Dr. Uppal treated plaintiff with lumbar epidural injections in December 2002 and February 2003. A.R. 164-87, 251, 256, 259. On April 22, 2003, Dr. Uppal performed a lumbar spine discogram, which was positive at L2-L3, but otherwise negative. A.R. 149-63, 238-39. On August 14, 2003, Dr. Uppal again diagnosed plaintiff with discogenic back pain, determined plaintiff was permanent and stationary,*fn4 and opined plaintiff was a qualified injured worker*fn5 who was precluded from heavy lifting and repetitive bending and stooping using his lower back,*fn6 should perform no pushing, pulling or lifting of over 25 pounds, and was limited in sitting. A.R. 190-92, 212-25, 229-31, 352. On August 28, 2003, Dr. Uppal reexamined plaintiff, diagnosed him with lumbar radiculitis*fn7 and discogenic back pain and again opined plaintiff was temporarily totally disabled. A.R. 209-10. On January 12, 2005, Dr. Uppal reexamined plaintiff, diagnosed him with discogenic disease at L2-L3, recommended plaintiff continue with home stretching exercises, prescribed medication to plaintiff, and opined plaintiff continued to be permanent and stationary. A.R. 370.

On August 5, 2004, H. Shoji, M.D., performed a qualified medical examination on plaintiff and diagnosed him with a lumbar spine strain superimposed on degenerative disc disease. A.R. 194-207. Dr. Shoji opined plaintiff was permanent and stationary as of August 14, 2003, and was a qualified injured worker who should be prophylactically precluded from heavy lifting. A.R. 203. Dr. Shoji disagreed with some of Dr. Uppal's conclusions, stating:

Doctor Uppal placed [plaintiff] on permanent and stationary status of August 14, 2003. On [Dr. Uppal's] record[,] range of motion of the lumbar spine was limited but there was no description of straight leg raising test. Neurological examination was documented as entirely negative. The results of my physical examination [of plaintiff] are also negative for neurological findings. Range of motion of the lumbar spine was much better than Doctor Uppal described. The [plaintiff] does not have any complaints of leg pain. [Plaintiff] testified that although Doctor Uppal discussed surgical treatment [Dr. Uppal] himself was not advising surgical treatment. Doctor Uppal suggested that [plaintiff] keep on living with the pain. The statement of [Dr. Uppal's] described in the deposition transcript[*fn8 ] certainly does not agree with his evaluation of the subjective factors of disability on August 14, 2003, where it was rated intermittent severe constant moderate low back pain. The results of his and my clinical examination with minimal findings on MRI do not go along with Doctor Uppal's subjective factors of disability, either. His advice to the [plaintiff] and his evaluation of subjective factors contradict each other, too. Although Doctor Uppal reported positive discogram at L2-3 level, the interpretation of positiveness came from leak of the dye and increasing pain reaction of the [plaintiff]. The interpretation of the discogram has [a] significant subjective element inherently. It is my impression that this [plaintiff] did not have [a] truly positive discogram that would indicate segmental instability of the lumbar spine.

A.R. 202 (footnote added).

On January 28, 2003, Gary M. Wernick, M.D., performed a liver biopsy on plaintiff, which showed plaintiff has chronic hepatitis C, which Dr. Wernick successfully treated with medication. A.R. 301, 307, 345-46. On December 16, 2004, Dr. Wernick again examined plaintiff, and found he was doing ...


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