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Ryan v. Astrue

September 16, 2009

COLLETTA VICKI RYAN, AS HEIR AND REPRESENTATIVE OF THE ESTATE OF AARON RYAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Colletta Vicki Ryan, as Heir and Representative of the Estate of Aaron Ryan ("Plaintiff"), seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff's applications 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 Dennis L. Beck, United States Magistrate Judge.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed his initial applications in November 2002, alleging disability since July 27, 2002, due to his AIDS diagnosis. AR 142-144, 170-179, 395-397. The Commissioner denied Plaintiff's applications at the hearing level and the Appeals Council ultimately remanded the claim on May February 11, 2005. AR 75-84, 114-117.

After remand, Plaintiff failed to appear at the hearing and his action was dismissed by Administrative Law Judge ("ALJ") Bert C. Hoffman, Jr. AR 88-90. The Appeals Council again remanded the claim. AR 93-95.

On December 12, 2006, ALJ Hoffman held a hearing pursuant to the order of remand. AR 444-472. He issued a decision denying benefits on April 26, 2007. AR 36-47. The Appeals Council denied review on May 14, 2008. AR 19-21.

Plaintiff passed away on July 15, 2008. Opening Brief, at 4.

Hearing Testimony ALJ Hoffman held a hearing on December 12, 2006, in Fresno, California. Plaintiff choose to appear without representation. Robin Ryan, Plaintiff's sister, also appeared and testified. AR 444.

Ms. Ryan testified first, explaining that Plaintiff has lived with her for the past six months, and she sees his health declining and how tired he gets from doing things. AR 447. For example, if Plaintiff does get the energy to mow or clean up, he's "down for three days afterwards." Plaintiff also loses his appetite and is "sick to his stomach in both directions." AR 448. She explained that his energy comes and goes. AR 449. When he's not feeling well, he gets up for the morning and goes back to bed shortly thereafter. AR 451. There have been times when he's stayed in his room for a week, only leaving to go to the restroom and maybe smoke a cigarette. AR 458. Ms. Ryan believed that many of his medications make him sick to his stomach and cause diarrhea. AR 458. She was also aware of his weight fluctuations. AR 458.

Plaintiff enjoys cooking full meals. AR 456. He occasionally goes out of the house on his bicycle to get his own cigarettes and soda, and he sometimes helps his mom "do some stuff." AR 452. Ms. Ryan sometimes takes Plaintiff to the movies or to the grocery store. AR 452. He talks to his friends on his trips to the corner store. She testified that Plaintiff was not drinking or doing drugs. AR 454-455.

Plaintiff previously worked at the Dole processing plant, putting lids on cans. He would work and then come home and sleep until it was time to go to work again. AR 452. He also worked holding signs on corners until a few weeks ago, when he was laid off because of weather. AR 453. Plaintiff worked at that position for four hours on Saturday and four hours on Sunday. AR 453.

Plaintiff testified that he thought he weighed about 160 pounds, and that he usually averaged between 145-160 pounds. He took a medication to help him gain weight, which helped him get to a certain weight. He is currently on his second set of drugs, and has been on this mix for about two years. Plaintiff has received his treatment at the Merced Clinic for the past four years because he does not have insurance, and goes once every three to six months. AR 460, 471.

When asked by the ALJ, Plaintiff explained that his "four cell count" was going up and down but then stabilized. Plaintiff testified that his count has a lot to do with stress. When he exerts himself, his counts go up and down. If he doesn't do anything and just maintains, his counts are okay. AR 461.

Plaintiff stated that he is still listed with a temp agency and has inquired about positions. Since most of the jobs are seasonal and he cannot do anything for a long period of time, he has not had a job. He explained that he could do the sign holding job because it was only four hours each on Saturdays and Sundays and it wasn't too difficult to hold a sign on the corner. As for his production jobs, he would work for a week and then he would sleep for a week because of the toll it took on his body. He would also work two or three days, and then miss two or three days. AR 462.

Plaintiff explained that his health fluctuates, meaning that he usually doesn't feel well for two or three weeks and then feels like he can do something. Once he does something, though, he usually overdoes it and is not able to do anything again for another two or three weeks. AR 464. He also explained that he often does not have an appetite. AR 466. For example, when he worked full days, he would eat a sandwich during the day and then come home and go to sleep. AR 466. He has diarrhea "all the time" and is in the restroom four or five times a day. Although he takes medicine to counteract the diarrhea, it doesn't work. AR 467. Plaintiff also has chronic thrush that does not go away. AR 468.

Plaintiff testified that he is faithful in taking his medications, though he stopped for a period before they changed his medication mixture. AR 468.

Plaintiff stated that it has been about a year and a half since he did drugs and about two or three months since he drank alcohol. AR 462. He does not have a driver's license because he lost it after a DUI 12 years ago. AR 463.

When asked to describe his day, Plaintiff testified that when he's working, his days mostly consist of getting up, going to work, and coming home. AR 468. The rest of his time is spent watching television and resting. If he's well enough to do yard work, he will. AR 469. He doesn't do "a bunch of little things" because it "just doesn't work that way anymore." AR 469. He went on a five day trip with his mother about a month ago, and it was fine because he really didn't have to do anything. AR 469.

The ALJ gave Plaintiff the definition of sedentary work and asked if he thought he could do that type of job. Plaintiff testified that he would probably be all right for a while, but didn't know if he could do it five days a week, everyday, for 52 weeks a year. AR 470.

At the end of the hearing, Plaintiff's sister clarified that Plaintiff is able to do things, such as taking out the trash, doing his laundry and taking care of his personal needs. However, after he does it, he is very tired for days afterwards. AR 471.

Medical Record

On October 18, 2002, Jennifer Ross, M.D., wrote a letter indicating that Plaintiff was under her care and had "disabling AIDS." AR 267.

Plaintiff was treated by Katharina Truelove, M.D., at Mercy Medical Center, on November 22, 2002. He complained of back pain and left arm pain. He also indicated that he had thrush about eight months ago, and that his anxiety medication was not working. Plaintiff's Paxil was increased. AR 302.

On December 13, 2002, Plaintiff complained of numbness in his left arm. Dr. Truelove discussed his treatment options and Plaintiff decided that he did not want to take any extra medications, as he felt "pretty good" right now. Plaintiff reported that Paxil was not helping much. He was also taking Vicodin for chronic pain. AR 301.

On January 31, 2003, Plaintiff returned to Dr. Truelove for complaints of big toe pain. He was instructed to take ibuprofen for pain and to soak his feet. He was 6'1" tall and weighed 142 pounds. Dr. Truelove instructed Plaintiff to take Ensure. AR 300.

Plaintiff saw Dr. Truelove on February 14, 2003, for follow-up on his toenails. He did not get Ensure, but his weight was up to 149. He was doing well on his medications. AR 295.

On March 8, 2003, Plaintiff saw Usman Ali, M.D., for a consultive internal medicine examination. Plaintiff indicated that he was diagnosed with HIV in 1999 and that he is tired and fatigued all day. Plaintiff also reported that he has lost 10-15 pounds in the past few months, has constant diarrhea, and takes medication for HIV and oral thrush. Plaintiff was doing ...


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