Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Herrera v. Astrue

October 6, 2009

VICTOR M. HERRERA, 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 Victor M. Herrera filed a complaint on May 8, 2008, seeking review of the Commissioner's decision denying his application for disability benefits. On October 20, 2008, the Commissioner answered the complaint, and the parties filed a joint stipulation on December 15, 2008.

BACKGROUND

I.

On September 11, 2002, plaintiff applied for disability insurance benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. § 423, claiming an inability to work since April 1, 1997, due to neck, back, and waist problems. Certified Administrative Record ("A.R.") 57-59, 78. The plaintiff's application was initially denied on October 25, 2002, and was again denied on December 3, 2002, following reconsideration. A.R. 33-42. The plaintiff then requested an administrative hearing, which was held on July 17, 2003, before Administrative Law Judge Norman Buls ("ALJ Buls"). A.R. 43, 249-68. On October 24, 2003, ALJ Buls issued a decision finding plaintiff is not disabled, A.R. 14-25, and the Appeals Council denied review of the decision on April 19, 2004. A.R. 3-7.

On June 18, 2004, plaintiff filed his first complaint seeking review of the Commissioner's decision denying his application for disability benefits, Herrera v. Barnhart, EDCV 04-0732-RC ("Herrera I"),*fn1 and on July 20, 2005, this Court remanded the matter to the Social Security Administration ("S.S.A.") pursuant to 42 U.S.C. § 405(g), sentence four. A.R. 427-38. In so doing, this Court found that "the evidence is ambiguous as to when plaintiff's condition became disabling; however, it is clear that plaintiff's degenerative spinal condition predates his last insured date." A.R. 434. Accordingly, the case was remanded "so 'the ALJ [can] create a record which forms a basis for th[e] onset date. The ALJ can fulfill this responsibility by calling a medical expert or where medical testimony is unhelpful, explor[e] lay evidence[,] including the testimony of family, friends, or former employers to determine the onset date.'"

A.R. 438 (citation and footnote omitted).

Following remand, the Appeals Council remanded the matter for further administrative proceedings and ordered the administrative law judge to consider whether plaintiff's Title II application should be consolidated with his subsequent application for Supplemental Security Income ("SSI") disability benefits. A.R. 440, 630-32. On September 7, 2006, ALJ John W. Belcher ("the ALJ") held a new administrative hearing. A.R. 307-51. On December 22, 2006, the ALJ issued a decision finding plaintiff is not disabled. A.R. 291-301. The plaintiff sought review from the Appeals Council, which on March 28, 2008, granted review of the denial of plaintiff's SSI application,*fn2 as well as a later favorable determination, A.R. 269-73, 279-84, and on March 31, 2008, denied review of the denial of plaintiff's Title II application. A.R. 274-78. The plaintiff now requests this Court review the Commissioner's denial of his application for Title II disability benefits.

II.

This Court set forth the following relevant factual findings in Herrera I:

The plaintiff, who was born on March 10, 1954, is currently [55] years old. He has a ninth-grade education, and has previously worked as a painter, upholsterer and carpenter. [¶] The plaintiff has a long history of back pain, initially injuring his back in the 1980s. Between June 20, 1997, and September 20, 2002, plaintiff received treatment from Feliciano Reyes, M.D., who diagnosed him with a cervical sprain, among other conditions. A lumbar spine CT scan taken June 25, 1997, revealed broadbased circumferential disc protrusion at L3-L4, without focal protrusion, and degenerative changes in the apophyseal joints leading to mild foraminal encroachment at L5-S1. A lumbar spine CT scan taken September 5, 2002, revealed a bulging disc at L4-5 and a disc protrusion centrally at L5-S1. [¶] Cervical and lumbosacral spine x-rays taken at Victor Valley Community Hospital on March 20, 1998, revealed degenerative disc disease at C3-4, C4-5, and C5-6, with a small posterior osteophyte encroaching upon the central canal at C5-6, and mild anterior spurring of L3-L5. Cervical spine x-rays taken at the same facility a year later, on February 26, 1999, showed mild disc space narrowing at C4-5, C5-6, and C6-7, with facet spurring. [¶] On July 16, 1998, Rajiv Puri, M.D., an orthopedic surgeon, examined plaintiff and diagnosed him with a herniated lumbar disc, degenerative lumbosacral spine arthritis, and cervical spine arthritis. Cervical and lumbosacral spine x-rays taken July 22, 1998, demonstrated mild disc space narrowing at C5-6, with associated anterolateral and posterolateral spurring and the suggestion of early arthritic changes involving the facet joints at L5-S1 bilaterally. A lumbar spine MRI obtained August 13, 1998, showed mild degenerative changes of the lumbar spine, with straightening of the lumbar lordosis, which could be caused by muscle spasm. On August 17, 1998, Dr. Puri referred plaintiff for physical therapy. On February 15, 1999, Dr. Puri revised his diagnosis to include degenerative arthritis in the cervical and lumbosacral spine. [¶] . . . [¶] Starting on or about November 8, 2001, Arthur E. Jimenez, M.D., began treating plaintiff for herniated cervical and lumbar discs. On October 22, 2002, Dr. Jimenez opined that plaintiff: is limited to lifting or carry less than 10 pounds occasionally or frequently; can stand and/or walk for less than 2 hours in an 8-hour day; can sit for less than 6 hours in an 8-hour day; can occasionally climb, balance, stoop, kneel, crouch, or crawl; and is limited in his ability to work at heights or around moving machinery as well as to work at temperature extremes. Dr. Jimenez further opined plaintiff needs to alternate standing and sitting, and he needs a cane to walk if he walks over 2 miles. On June 5, 2003, Dr. Jimenez opined plaintiff: can lift less than 10 pounds; can stand and/or walk for approximately 5-10 minutes in an 8-hour day; can occasionally twist, stoop, crouch and climb; has problems handling, fingering, feeling, and pushing or pulling; needs the opportunity to change positions at will, and can only sit or stand for 10 minutes before having to walk for 10 minutes. Dr. Jimenez further opined plaintiff must lie down for 20-30 minute intervals at unpredictable times during the day. Finally, Dr. Jimenez found plaintiff should avoid all exposure to hazards, even moderate exposure to extreme cold or fumes, and concentrated exposure to extreme heat, humidity and noise. Dr. Jimenez concluded that plaintiff is "unable to perform any duties at this time."

A.R. 428-31 (Herrera I at 2:17-5:16 (footnotes and citations omitted)).

After this Court's remand, further medical evidence was obtained, showing: On February 10 and 11, 2004, plaintiff was treated in the emergency room at Loma Linda University Medical Center ("Loma Linda") for an acute exacerbation of his chronic low back pain, and he was provided Toradol*fn3 and recommended to attend a pain clinic. A.R. 536-49. A lumbar spine MRI showed multilevel degenerative disc disease and spondylosis with disc dessication from L2-L3 through L4-L5, a tiny left paracentral disc protrusion, without significant impingement, and fluid in the facet joints at L5-S1, suggesting inflammatory changes. A.R. 538. Lumbar spine x-rays showed no evidence of acute fracture or dislocation in the lumbar spine, minimal degenerative disc disease and facet arthritis, minimal degenerative listhesis and minimal sacroiliac arthritis. A.R. 547.

On March 28, 2004, Warren David Yu, M.D., an orthopedic surgeon, examined plaintiff and diagnosed him as having cervical neck pain with underlying spondylosis, low back pain with underlying degeneration, and bilateral carpal tunnel syndrome. A.R. 550-53. Cervical spine x-rays showed moderate multilevel spondylosis from C3 to C7, with straightening and reversal of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.