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Coleman v. Astrue

May 22, 2009

ELDEE L. COLEMAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Eldee L. Coleman ("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 Gary S. Austin, United States Magistrate Judge.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

On or about September 7, 2005, Plaintiff filed an application alleging disability since March 9, 2004, due primarily to schizophrenia, paranoia, bleeding ulcers, severe chronic back and leg pain, abdominal cramps, and auditory hallucinations. AR 83-89, 91.*fn3 His application was denied initially and on reconsideration, and Plaintiff thereafter requested a hearing before an Administrative Law Judge (ALJ). AR 26-27, 54-68, 75-78. ALJ Christopher Larsen held a hearing on May 16, 2007, and issued an order denying benefits on June 13, 2007. AR 19-25, 330-346. On December 28, 2007, the Appeals Council denied review. AR 5-7.

Hearing Testimony

ALJ Larsen held a hearing on May 16, 2007, in Fresno, California. Plaintiff appeared and was represented by Richard S. Hundal, an appointed non-attorney representative. Vocational Expert (VE) Kenneth Ferra appeared telephonically and testified. AR 330; see also AR 54.

Plaintiff testified that he completed the seventh or eighth grade. AR 340. In response to a question about any medication he takes for a psychotic disorder not otherwise specified, Plaintiff testified that he is aware of the purpose for some of the prescription medications that he takes, but as to others, he is not certain. He could not specifically identify a medication to treat his psychiatric disorder. AR 336.

Plaintiff testified that his knee problems began when he "went through a glass window." He did not undergo surgery following this incident, rather he was treated with steroid injections. AR 336-337. The injections did not resolve the pain, and Plaintiff believed it was necessary for the doctor to try the injection treatment before making a determination regarding possible surgery. AR 337. Plaintiff was using a cane at the time of the hearing, and indicated that the cane was prescribed by "[t]he therapist." AR 337. Plaintiff testified that without a brace, he cannot stand for long. When he is wearing the brace, Plaintiff can stand for about fifteen minutes. AR 337-338.

With regard to the degenerative disc disease, Plaintiff described pain in his lower back as "pressure" and "somebody hit[ting] me with a baseball bat or something." He takes Vicodin for the pain. AR 338. Plaintiff indicated that he is treated at University Medical Center (UMC) for diabetes, as well as for symptoms concerning his back and legs. AR 339.

When Plaintiff was asked whether Dr. Ky*fn4 was his regular treating physician, he was not certain. Plaintiff said he had "had so many different doctors." AR 338-339. Plaintiff believed Dr. Ky was at University Medical Center, but he did not know how many times he may have been seen by Dr. Ky. Plaintiff thought however that he had seen Dr. Dizon*fn5 for almost a year. AR 340.

VE Kenneth Ferra indicated that he has testified as an expert approximately 3,000 times in the past four years. AR 341. 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 down and walk for a period of one hour, and stand for a period of three hours. The person should also stand every thirty minutes for about five minutes, and should not sit continuously throughout the workday. He can lift and carry 50 pounds occasionally, 25 pounds frequently, and he must have four unscheduled ten-minute breaks per day. He can never push, pull, kneel, bend or stoop. The VE testified that this person could not perform any work in the regional or national economy. AR 342.

In the second hypothetical, the ALJ asked the VE to assume a person of the same age, education and work experience, who can lift and carry 50 pounds occasionally, 25 pounds frequently, and can stand, walk and sit for six hours. Also, the person must use an assisted device to walk and stand, but can occasionally climb, balance, crawl, stoop, kneel and crouch. The VE testified that this person could perform sedentary work, such as cashier and cashier II, and assembler, positions. There are approximately 12,000 such jobs in California. AR 343-344.

In the last hypothetical, the ALJ asked the VE what would happen in the assisted device restriction was removed, and the VE testified that "you'd be turning down access to a full range of cashiers here in addition to, . . . other occupations that would be compatible with the hypothetical . . .." AR 344.

During examination by Plaintiff's representative, the VE was asked to consider the difficulty that Plaintiff has interacting appropriately with others, including the general public and co-workers, due to a personality disorder. The VE then asked what was meant by his use of the word "difficulty," and the representative replied that "if it's an eight-hour day, I would, I would, you know, cut that at least by two or three hours per day, because of his anti-social personality." The VE testified that such a difficulty would not preclude such a person from working as a cashier or assembly person. AR 344.

Medical Record

On December 18, 2003, Paul D. Casner, M.D., performed a comprehensive internal medicine evaluation of Plaintiff. AR 168-171. Plaintiff's chief complaints were back pain from the neck down, and knee pain, greater in the right knee. AR 168. Plaintiff reported that he injured his back falling from a loading dock at the age of seventeen, and reported "pain in the back in the 1980's, requiring sutures." Id. His left knee was injured in a motorcycle accident in the 1980's and his right knee was injured soon thereafter "when he put it through a window." Id. Plaintiff reported he could sit for about twenty minutes, stand for about five minutes, and walk about a block, before pain limited those abilities. He does not drive, and last worked at a car wash in 2001. AR 168-169. Plaintiff indicated he was not taking any medication at that time, and indicated his past medical history involved hypertension and paranoid schizophrenia. He also indicated there is a family history of diabetes, hypertension and heart disease. AR 169. Dr. Casner noted that Plaintiff was well-groomed, articulate and in no acute distress. His affect was broad and his mood was appropriate. AR 169. The physical examination notes include a comment that "claimant appeared to walk slowly, with a wide-based limp," but that he could sit comfortably and get off and on the examination table without assistance. AR 169. Range of motion findings include "no joint discoloration or deformity . . . no objective evidence of any inflammation of the joints." His motor strength was normal, and while heel and tandem walking were "a bit awkward," it remained within normal limits. AR 169-170. Dr. Casner indicated that Plaintiff's report of progressive pain in the spine and knees is consistent with degenerative arthrosis. It was noted that Plaintiff faced a cardiovascular risk with untreated hypertension, possible diabetes and dyslipidemia, particularly in light of his family history, sedentary lifestyle and obesity. The doctor noted that while psychiatric conditions were not discussed, such conditions "may be as limiting as the claimant's physical complaints." AR 171. Dr. Casner concluded that Plaintiff could stand and walk about two hours in an eight-hour workday, due to pain in the back and legs, coupled with poor aerobic capacity due to cardiovascular and lung disease. The doctor found Plaintiff could sit without restriction in an eight-hour workday, provided he received a break every two hours. Plaintiff required no assistive device. Plaintiff could lift and carry twenty pounds frequently. Postural limitations included occasional forward bending, stooping, squatting, and kneeling due to pain in the back and knees. An environmental limitation due to that pain included limitations regarding walking distances and the use of stairs. AR 171.

On December 29, 2003, Plaintiff underwent a comprehensive mental status and psychological examination by Charles House, Ph.D., FACAP. AR 172-179. Plaintiff presented on time, and was well-dressed and well-groomed. AR 172, 174. Plaintiff's chief complaints, as indicated to Dr. House, were that he suffers from "'memory loss,'" and he "'cannot take care of [him]self'" or "'gainfully take care of [his] well-being.'" AR 173. He reported continuous anxiety and nervousness, and stated he had a panic disorder. He denied depression, suicidal ideation or anhedonia. AR 173. Plaintiff stated he had difficulty sleeping through the night without waking. He has difficulty managing anger, has difficulty with authority and argues with those who try to control his behavior, and has a criminal history that involves four driving under the influence convictions with subsequent incarceration. AR 173. While Plaintiff reported that he had difficulty paying attention and with memory, he was unable to provide specifics in response the doctor's inquiries. AR 173. Plaintiff reported to Dr. House that he heard "'men's voices telling [him] to do things,'" including drinking and telling him to jump from a window.

Plaintiff indicated he hears voices "'almost every day'" and had for the past ten to fifteen years. He reported that he is not bothered by the voices, and he sometimes does not pay attention to them. AR 173. Plaintiff reported physical problems including back and knee problems, balance problems, stomach cramps, and a history of blood in his stool. When asked how long he has suffered from his physical complaints, he indicated an onset in 1989, but was unable to tell the doctor what specific event or series of events led to the problems. AR 173.

Plaintiff told Dr. House that he could not work because he "'can't remember good enough,'" his body ached everywhere and he did not get along well with others. AR 173. Plaintiff denied a history of psychiatric intervention and indicated he was not taking any psychotropic medication. AR 173. He admitted a past history of drug and alcohol abuse, indicating he "tried 'everything,'" but did not require treatment for alcohol or drug abuse. He had been sober for one year. AR 174.

Plaintiff reported that he had been married once before, but it ended in divorce. He has five children, all of whom live elsewhere. He lives with his girlfriend currently. He completed the seventh grade, but no further education. His work history involves working as a laborer at Rainbow Car Wash and Zacky Farms. With regard to Zacky Farms, Plaintiff stated he worked there for three days before being fired for not following directions. AR 174.

A typical day for Plaintiff involves showering, eating breakfast, watching television, and napping. He sometimes helps out around the house with clean up, dishes and sweeping. He attends church occasionally and visits with friends. AR 174.

Dr. House found Plaintiff to be emotionally guarded, with an indifferent and "somewhat menacing" attitude. AR 174. Plaintiff's thinking was "organized and logical," and his "mental activity [was] linear and goal directed." AR 174. The doctor noted that while Plaintiff alleged schizophrenia and paranoia, those symptoms were not present during the evaluation. His thinking was "not characterized by loosened associations, magical thinking or circumstantiality." Plaintiff did describe people "'who may be out to get him,'" but the doctor doubted the validity of the statement because Plaintiff's presentation was not convincing. AR 175.

Dr. House administered psychological testing. The REY 15 indicated a high probability for malingering or purposeful error, as did the TOMM and TMT tests. As a result, the data was considered to be invalid. AR 175. The Wechsler Adult Intelligence Scale III was administered, and resulted in a full scale IQ of 65, indicating mild retardation. However, Dr. House considered the findings invalid as well because Plaintiff committed purposeful errors, and those errors are suggestive of "a level of intellectual functioning significantly higher than retardation." AR 176.

The Bender-Gestalt Diagnostic was considered invalid due to Plaintiff's attempts to "skew data," but Dr. House did indicate that a diagnosis of central nervous system damage should be considered. AR 176. The Wechsler Memory Scale III and Folstein Mini-Mental Status were also invalid due to Plaintiff's malingering and conscious attempts to skew the data. AR 176-177.

Dr. House believed Plaintiff's intellectual level fell in the dull normal to high borderline range based upon Plaintiff's vocabulary and general cognitive functioning. AR 178. His clinical observations led him to conclude that Plaintiff could maintain adequate concentration, and that his memory was intact and functional. AR 179. It was noted that Plaintiff's social skills are impaired. AR 178. Dr. House's DSM-IV diagnoses included: a poly substance abuse disorder in Axis I; personality disorder with antisocial and paranoid traits in Axis II; a lengthy history of substance abuse, medical problems and a personality disorder in Axis IV; as well as a GAF score between 50 to 55 in Axis V. AR 178.

Dr. House concluded that Plaintiff would be capable of managing funds should SSI be awarded, and could perform simple, repetitive tasks, and maintain regular attendance in a workplace. AR 178-179. It was noted that Plaintiff may experience difficulty in the following areas due to his personality disorder: performing complex and detailed tasks, accepting supervision, interacting with co-workers and the general public, and completing a normal workday. AR 179.

A psychiatric review completed by Archimedes Garcia, M.D., on January 23, 2004, found no severe impairment of a schizophrenic, paranoid or other psychotic type disorder. AR 180. Those review findings were echoed by James V. Glaser, M.D., on July 27, 2004. AR 180.

On March 7, 2004, Plaintiff complained of blurry vision, dehydration, polydipsia and lower abdominal pain in the emergency room at University Medical Center (UMC). AR 198. Nurse notes indicate laboratory results established a "critical glucose value," and Plaintiff was admitted for treatment. AR 199; see also AR 200-205, 302-309. Relatedly, x-rays of Plaintiff's chest on March 8, 2004, ruled out pneumonia. AR 194. A UMC laboratory report dated March 9, 2004, indicates elevated glucose and ALT/AST levels, among others. AR 191.

On March 23, 2004, Plaintiff was seen at Sierra Adult Health Clinic (SAHC) for follow up after his admission to the hospital. He indicated he continued to experience blurry vision and irritability, and complained of chest pain when coughing. He was to return for follow up after an ophthamology referral, and laboratory results. AR 211-212, 299-300.

On March 27, 2004, Plaintiff was seen in the emergency room at UMC. He complained of blurred vision, bloody nose, cough, abdominal pain and frequent urination. AR 187. The clinical impression was diabetic ketoacidosis and Plaintiff was admitted for treatment. AR 188.

On April 6, 2004, Plaintiff was treated at the SAHC for complaints of increased nervousness and anger. AR 209. Regarding his use of alcohol - which apparently involves making wine from oranges - Plaintiff was offered a referral to a 12-step program but declined. He was prescribed medication for anxiety. AR 209-210, 297-298.

A laboratory report from UMC dated May 4, 2004, indicates elevated glucose and ALT/AST levels. AR 186, 296.

On May 20, 2004, Plaintiff was seen at UMC by Russell Schmidt, O.D., for a routine eye ...


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