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Fraser v. Astrue

September 29, 2009

RICHARD FRASER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for Disability Income Benefits and Supplemental Security Income under Titles II and XVI of the Social Security Act ("Act"), respectively. For the reasons discussed below, the court denies plaintiff's motion for summary judgment or remand, and grants the Commissioner's cross-motion for summary judgment.

I. BACKGROUND

Plaintiff, born August 22, 1971, applied for Disability Income Benefits ("DIB") and Supplemental Security Income ("SSI") on June 21, 2004, due to "Left L3, L2 and L4 transverse process fractures, tibial fracture on left knee, disc bulges between L2, L3 and L4, headaches, resulting from motorcycle accident on 8/14/99." Administrative Record ("AR") 72-74, 565-570, 87. Plaintiff stated that these conditions limit his ability to stand or sit for extended periods of time, severely limit his ability to perform manual labor (e.g., lifting, bending, reaching), and that standing, sitting and manual labor significantly increase his pain and headaches. AR 87. Plaintiff further stated that he stopped working because his "[p]hysician continued to restrict work hours due to pain until it was no longer feasible to work." Id.

A hearing was held before administrative law judge ("ALJ") John J. Madden, Jr., on July 9, 2007. Plaintiff, then age 35, testified that he has an AA degree and that his last work attempt was as a self-employed videographer, after receiving training through the California Workers Compensation vocational rehabilitation program. AR 597. He testified that "the doctors thought this was the best idea . . . because I could stand and sit at my computer at home and do the work as I felt, you know, up to it." Id. This business did not work out, however, as videotaping weddings caused a lot of back pain, and their editing took far longer than he had anticipated. AR 597-598, 605-606. Plaintiff also compiled some "virtual walkthroughs" for realtors but doesn't plan to do more. AR 615-616.

Before his injuries, plaintiff worked as a bartender and a meat cutter, both requiring heavy lifting and significant standing. AR 599-600, 604-605.

Plaintiff testified that the majority of his pain is "just above my hip shelf." AR 606. He explained, "[i]t feels kind of like somebody's got their fist wrapped around my spine. And then when I do a lot of sitting it radiates out my hip shelfs and than it radiates up my back as well." Id. Plaintiff stated that his pain, on medications, averages a 5 or 6 on an ascending scale from 0 to 10. Id. However, he experiences side effects from his medications. For example, his pain medication, Norco, makes it hard for plaintiff to concentrate, and makes him nauseated, for which he takes Prevacid. AR 606-607. He also takes a muscle relaxant, which makes him tired, and "migraine pills," most recently Relpax, which "make my head spin, make me feel a little bit goofy." AR 607.

Plaintiff testified that he is not a surgical candidate. "They have not recommended surgery -- at least my primary doctor doesn't feel that it's a really viable option at this time because I broke three of my transverse process. Two of them broke completely off, and the muscles went with that [] and they can't reattach that to my spine [] column. So there's no use . . . because it's just going to cause more scar tissue and probably -- possibly even worse condition." AR 607-608. Asked whether his condition had gotten worse since the alleged onset date, plaintiff stated that it had gotten "quite a bit worse," in addition to the flu-like symptoms he experiences most of the time since moving to a new town two years previous. AR 608.

Plaintiff testified that he gets migraines two to three times a week, usually brought on by exertion the day before, like doing "a whole bunch of laundry" or taking a trip. AR 608-09. The migraines last "at least a day" during which plaintiff can't do much more than sit and watch TV. AR 609. Plaintiff also testified that he has a "mild lingering" pain in his left knee that aches when he stands and feels like it's going to explode when he kneels. However, he says the average pain in his knee is a "3 to 4." AR 609.

Plaintiff testified that he can sit 15 to 20 minutes at a time, but then needs to get up and walk around. AR 610. Plaintiff stated that in a full day he could probably sit a total of two hours initially, not counting breaks, but if he had "to do this every day it would be less than an hour probably." AR 611. Plaintiff estimated that he could stand for about 15 to 20 minutes at a time, for a total of less than an hour a day. AR 611. Plaintiff stated that walking was easier, and that he takes his dog for a walk every day for 15-20 minutes, but he "could walk a half an hour a couple of times a day probably." AR 611. Plaintiff testified that he can lift or carry less than five pounds "very infrequently." AR 612.

Plaintiff testified that he takes amitriptyline as a sleep aid, and it helps him get 4 to 6 hours of sleep initially; the remainder of the night he wakes up frequently, every half hour or so, "mostly due to pain in my back." AR 613. He has trouble with his legs falling asleep due to the pressure of lying down. AR 614.

On a typical day, plaintiff stretches, makes and eats breakfast, feeds and walks his dogs, has lunch, takes a walk in the afternoon, makes and eats dinner, and takes the dogs on a walk at night. AR 614. Plaintiff does stretching exercises throughout the day. Id. He testified that his only current hobby is photography, because "it's not heavy" and "it's quick." AR 615. He stated that he used to ride his mountain bike, golf, and hunt and fish, but he can't do these anymore. AR 614-15. He stated, "I used to golf, and after talking especially to my chiropractor, he said that's the worst thing you can do, is that motion in your back and especially with any kind of weight." AR 615.

The ALJ issued a decision on December 19, 2007, finding that plaintiff is not disabled.*fn1

AR 19-34. The ALJ made the following findings:

1. The claimant met the insured status requirements of the Social Security Act through March 31, 2005.

2. The claimant has not engaged in substantial gainful activity since March 30, 2004, the alleged onset date (20 C.F.R. 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.).

3. The claimant has the following severe impairments: degenerative disc disease and degenerative joint disease of the left knee (20 C.F.R. 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work with additional restrictions as discussed in this decision. [¶ ] Specifically . . . the claimant's residual functional capacity contains the ability to lift 20 pounds occasionally and 10 pounds frequently, to stand/walk and to sit for 6 hours out of an 8-hour day, and a limitation of pushing and pulling activities to the weight levels just cited. [¶ ] Additionally . . . the claimant should avoid using his left leg for repeated leg controls. Postural activities, such as climbing, balancing, stooping, kneeling, crouching, ...


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