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Moreno v. Astrue

August 26, 2009

RAMON MORENO, 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 Ramon Moreno filed a complaint on May 22, 2008, seeking review of the Commissioner's decision denying his application for disability benefits, and on October 20, 2008, the Commissioner answered the complaint. The parties filed a joint stipulation on December 9, 2008.

BACKGROUND

I.

On October 4, 2005 (protective filing date), plaintiff applied for disability benefits under the Supplemental Security Income program of Title XVI of the Act, 42 U.S.C. § 1382(a), claiming an inability to work since December 7, 2004. Certified Administrative Record ("A.R.") 13, 66-77. The plaintiff's application was initially denied on January 6, 2006, and was denied again on February 7, 2006, following reconsideration. A.R. 37-41, 44-50. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge Mason D. Harrell, Jr. ("the ALJ") on April 24, 2007. A.R. 52, 288-311. On May 9, 2007, the ALJ issued a decision finding plaintiff is not disabled. A.R. 201-12. The plaintiff appealed the decision to the Appeals Council, which remanded the matter to the ALJ for further proceedings. A.R. 213-19.

On December 5, 2007, following remand, the ALJ held a new administrative hearing, A.R. 269-87, and on January 11, 2008, the ALJ issued a decision again finding plaintiff is not disabled. A.R. 10-24. The plaintiff appealed this decision to the Appeals Council, which denied review on April 25, 2008. A.R. 6-9.

II.

The plaintiff, who was born on July 31, 1959, is currently 50 years old. A.R. 67, 69, 73. He has an eleventh-grade education, and has previously worked as a truck driver, delivery driver, security supervisor and security guard. A.R. 82-89, 294.

Since October 31, 2004, plaintiff has received medical treatment at Loma Linda University Medical Center ("Loma Linda"), where he has been diagnosed with cervical and lumbar degenerative disc disease, asthma, bronchitis, diabetes mellitus and hypertension, among other conditions. A.R. 111-49, 176-200, 235-64. On December 15, 2004, plaintiff had cervical and lumbar spine x-rays, which revealed mild degenerative disc disease at C5-C6, with a suggestion of mild neural foraminal narrowing on the right and mild-to-moderate disc space narrowing, with endplate sclerosis; mild anterior hypertrophic spurring at L4-L5 and L5-S1, worse at the lumbosacral junction; and mild associated sclerosis of the facet joints at L4-L5 and L5-S1.

A.R. 108-09, 147-48. On February 3, 2005, plaintiff had a lumbar spine MRI, which revealed: mild right lateral recess stenosis*fn1 secondary to a 4-mm. right (greater than left) posterior disc bulge at L5-S1, with potential for impingement on the traversing right S1 nerve; mild-to-moderate right L5-S1 foraminal encroachment, with potential for impingement on the exiting right L5 nerve; 2-mm. posterior disc bulges at L2-L3 and L3-L4, without evidence of neural impingement; and mild-to-moderate degenerative disc disease at L4-L5, with a 2.5-mm. posterior disc bulge without evidence of neural impingement. A.R. 105-06. On April 19, 2006, plaintiff underwent electromyographic studies of both arms, which demonstrated bilateral moderate median neuropathy*fn2 at the wrist (carpal tunnel syndrome), slightly worse on the more symptomatic right side. A.R. 262-63.

On May 2, 2006, a Loma Linda physician, Dr. Danielle SawyerMacknet, noting plaintiff has stenosis at L5-S1, as documented by an MRI, and a history of a work-related head injury, which could account for his memory issues, A.R. 171, opined plaintiff: is able to occasionally lift and carry less than 10 pounds; can sit, stand and walk for less than 2 hours in an 8-hour day; can sit or stand for 5 minutes before changing position; needs to be able to shift positions at will from sitting to standing/walking, and will need to lie down 3-4 times during a work shift; can occasionally twist, stoop, crouch and climb stairs, and never climb ladders; and he might have problems fingering and feeling due to carpal tunnel syndrome and diabetic neuropathy. A.R. 170-72. Dr. Sawyer-Macknet also opined plaintiff is "moderately" limited in his ability to understand and remember very short and simple instructions; is "slightly" limited in his ability to remember locations and work-like procedures, maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, sustain an ordinary routine without special supervision, and work in coordination with or proximity to others without being distracted by them; and is otherwise not significantly limited. A.R. 265-66. Finally, Dr. Sawyer-Macknet opined plaintiff would miss three or more work days per month due to his condition. A.R. 172, 266.

On August 29, 2006, another Loma Linda physician, Dr. David Ham, opined plaintiff: is able to occasionally lift and carry less than 10 pounds; can stand and walk for about 2 hours and sit for about 5 hours in an 8-hour day; can sit for 30 minutes and stand for 10 minutes before changing position; must walk every 30 minutes for 0-5 minutes; needs to be able to shift positions at will from sitting to standing/walking; can occasionally crouch, and never twist, stoop, or climb stairs or ladders; should avoid all exposure to extreme cold, heat, fumes, odors, dusts, gases, poor ventilation, etc., and hazards; and might have problems reaching, handling, fingering, feeling, and pushing/pulling. A.R. 173-75. Dr. Ham also opined plaintiff is "moderately" limited in his ability to sustain an ordinary work routine without supervision; "slightly" limited in his ability to remember locations and work-like procedures and work in coordination with or in proximity to others without being distracted by them; and is otherwise not significantly limited. A.R. 267-68. Finally, Dr. Ham opined plaintiff would miss three or more work days per month due to his condition. A.R. 175, 268.

On December 5, 2005, Thomas R. Dorsey, M.D., an orthopedic surgeon, examined plaintiff, found there was no evidence plaintiff had radiculopathy,*fn3 and opined plaintiff can lift and/or carry up to 20 pounds occasionally and 10 pounds frequently, occasionally bend or stoop, and stand and walk for 6 hours in an 8-hour day. A.R. 150-55.

Medical expert Samuel Landau, M.D., testified at the 2007 administrative hearing, opining that plaintiff has obesity, low back pain, neck and low back degenerative disc disease, asthmatic bronchitis, type II diabetes mellitus, and carpal tunnel syndrome in both wrists, none of which meet or in combination equal a listed impairment. A.R. 272-78. Dr. Landau further opined plaintiff: should be limited to lifting and/or carrying up to 10 pounds frequently and 20 pounds occasionally; can occasionally bend and stoop; can perform occasional neck motions, but should avoid extremes of motions; should hold his head in a comfortable position most of the time; can sit for six hours with normal breaks every two hours, and stand and/or walk for two hours out of 8 hours; should be able to use a cane as needed for walking; can climb stairs, but not climb ladders, work at heights, or balance; can maintain a fixed step position for 15-30 minutes and then climb occasionally; ...


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