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Steeves v. Commissioner of Social Security

September 25, 2009

JAMES STEEVES, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 13) and defendant's cross-motion for summary judgment (Doc. 14).

I. PROCEDURAL HISTORY

Plaintiff applied for social security benefits on July 1, 2005. In the application, plaintiff claims that disability began on September 6, 2003. In his motion for summary judgment, plaintiff claims that disability is caused by a combination of chronic obstructive pulmonary disease ("COPD"), lack of one kidney, high blood pressure, and scoliosis. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on October 30, 2006, before Administrative Law Judge ("ALJ") Daniel G. Heely. In a December 21, 2006, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. Plaintiff has the following severe impairments: COPD and scoliosis;

2. Neither impairment meets or medically equals an impairment listed in the Listing of Impairments;

3. The plaintiff has the residual functional capacity to perform sedentary work with no exposure to smoke or other environmental irritants;

4. Plaintiff cannot perform his past relevant work;

5. Plaintiff's subjective statements regarding pain and other symptoms are not credible; and

6. Based on application of the Grids, there are jobs which exist in significant numbers which plaintiff can perform.

After the Appeals Council declined review on February 15, 2008, this appeal followed.

II. SUMMARY OF THE EVIDENCE

The certified administrative record ("CAR") contains the following evidence, summarized chronologically below:

August 18, 2003 -- Richard Buys, M.D., reported following plaintiff's admission to the emergency room at San Joaquin General Hospital. (CAR 188). The doctor stated that plaintiff came in complaining of shortness of breath. He was provided medication and released.

September 6, 2003 -- Adriana Arreola, D.O., reported following plaintiff's admission to the emergency room at San Joaquin General Hospital. (CAR 203-06). He presented complaining of shortness of breath once a week. The doctor reported that plaintiff was smoking up to 1-1/2 packs of cigarettes per day. She also noted that plaintiff had a history of alcohol abuse, drinking 1/2 pint of vodka per day. Plaintiff was provided medication and released.

November 27 2004 -- Karen Philippi, M.D., reported following plaintiff's admission to the emergency room at San Joaquin General Hospital. (CAR 182-83). Dr. Philippi noted that plaintiff had arrived by ambulance complaining of shortness of breath. Plaintiff was provided medication and was later able to walk around the emergency room without shortness of breath.

March 1, 2005 -- Kanwar Grewal, M.D., submitted a "Physician's Supplemental Certificate" to EDD. (CAR 67). In this statement, Dr. Grewal indicated that plaintiff was disabled due to COPD and that he continues to use a nebulizer. The doctor also stated that plaintiff would be able to return to his regular work on May 11, 2005.

June 22, 2005 -- Madhuri Pellakuru, M.D., reported following plaintiff's admission to the emergency room at San Joaquin General Hospital. (CAR 104, 108-09, 111). Plaintiff was brought in by ambulance with complaints of worsening shortness of breath for one day. He also complained of chest pain while walking. On physical examination, the doctor noted that breath sounds were heard and that there was a wheeze bilaterally with minimal basilar crackles. The doctor also noted that plaintiff's urine toxicology was positive for cocaine and that plaintiff admitted that he smokes marijuana. Dr. Pellakuru provided the following assessment:

Chronic obstructive pulmonary disease exacerbation, secondary to bronchitis. Chest x-ray is within normal limits. No infiltrates. White blood cell count is normal. The patient is currently on Albuterol and Azmacort. . . . [¶] Polysubstance abuse, alcohol, marijuana, we will get a substance abuse consult. [¶] Smoking counseling done. The patient does not want to quit at this time.

Plaintiff was given medication and discharged.

September 19, 2005 -- Agency examining doctor Satish Sharma, M.D., reported on a comprehensive internal medical evaluation. (CAR 71-75). Dr. Sharma reported the following history:

The claimant is a 39-year-old Caucasian male who complains of cough and shortness of breath. He gives a history of cough with whitish-yellowish sputum. No history of hemoptysis. He is a smoker and used to smoke 2-1/2 packs a day but is now down to one pack per day. He has been smoking for the past twenty-five years. He has had several hospitalizations in the past five to six years for the exacerbation of shortness of breath, on average about two to three times per year. The last time was in June of this year. He also has had several Emergency Room visits, on average about four or five per year. He denies ever being intubated or being put on a ventilator. He says that mild exertion such as walking distances of less than one-half block makes him short of breath. Also doing small things such as putting shoes on can make him short of breath. He denied any exertional chest pain. There is no documentation of myocardial infarction in the past.

Dr. Sharma stated that there is no history of hypertension. On physical examination, the doctor noted that plaintiff's lungs showed scattered rales and decreased air entry bilaterally. He added that the expiratory phase is prolonged. He also observed scoliosis in the thoracic and lumbar spine with no tenderness to palpation and no spasm. Plaintiff's back range of motion was full and straight-leg raising was negative bilaterally. Lasegue sign was negative. Dr. Sharma provided the following functional assessment:

Because of his history of chronic obstructive pulmonary disease with shortness of breach on mild exertion, the claimant is limited to light work. The claimant should be limited in lifting to 10 pounds frequently, 20 pounds occasionally. Standing and walking should be limited to 6 hours per day with normal breaks. There are no limitations in holding, fingering, or feeling objects. There are no limitations in speech, hearing, or vision.

October 5, 2005 -- Agency consultative doctor Shepard Fountaine, M.D., submitted a physical residual functional capacity assessment. (CAR 84-91). The doctor's functional assessment was the same as that provided by Dr. Sharma. Dr. Fountaine added that plaintiff was unlimited in ability to push/pull and should avoid fumes, odors, dusts, gases, and poor ventilation. Dr. Fountaine noted that plaintiff's subjective complaints were only partially credible because "symptoms appear disproportionate to substantial evidence."

March 16, 2006 -- Agency consultative doctor Marshall Gollub, M.D., submitted a physical residual functional capacity assessment. (CAR151-58). Dr. Gollub opined that plaintiff could lift/carry 10 pounds both occasionally and frequently, could stand/walk for at least 2 hours but not as many as six hours in a workday, could sit for up to six hours, and push/pull without restriction. He also opined that plaintiff could only occasionally climb, balance, stoop, kneel, crouch, or crawl. No manipulative, visual, or communicative limitations were noted. The doctor ...


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